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Category: Family Law
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For MyraB or anyone else if not available...I intend soon

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For MyraB or anyone else if not available... I intend soon to file a motion to vacate judgment with the district court pursuant to Rule 60(d)(3); the grounds will be judicial misconduct, and more specifically bias. This case I seek to vacate is a CIVIL CASE. I wrote up the motion pro se and most of the elements which would denote bias are right there in the transcript and which of course I reference and explain about in my writeup. However there was also an out-of-court circumstance which I argue validates the bias. It was a matter which my lawyer had shared with us prior the hearing. My lawyer suggested that the judge might have a vendetta against him for an incident which had happened the week prior involving a relative of the judge's. Anyway so I was wondering what the chances might be that the Court, before passing a judgment, would choose to have a "hearing" in regards XXXXX XXXXX I was wondering also if in my motion I would need to request specifically a hearing in order to have an opportunity for one, or should I just write "motion to vacate judgment on grounds of..." and just leave it at that and if the Court decides a hearing is required they just send word back that there will be a hearing. My understanding in regards XXXXX XXXXX is that the judge who issued the order would be the judge who would preside over the hearing (were there to be a hearing), however in this instance the judge has since retired and so another judge would preside in his place. However one would have to imagine that the judge who is under scrutiny would seek to be at the hearing in order to defend himself against the accusations of bias, isn't that correct? Also I of course would need to serve papers on the plaintiff. Should I expect the plaintiff to be at this hearing too? If there does end up being a hearing I will no doubt get a lawyer.

Hello and thank you for your question.

Generally, the judge that heard the trial and made the judgment would also hear any post-trial motions, because that judge would have the most familiarity with the case. However, where the grounds for the motion are judicial bias and prejudice, you would not want the same judge to hear the motion, so if the judge on your case were not retired, you would likely want to file a motion requesting that the judge recuse himself from hearing the motion anyway.

However, because another judge will be hearing the motion, one who has no knowledge of the case or prior proceedings, you will want to include enough information to orient him or her to the case and the specific issues you want to raise. It sounds like you have put effort into doing this with appropriate references to the record. If there was an outside incident that may have influenced the trial judge, then you may want support that with your own affidavit and preferably that of someone with personal knowledge of the event. Hearsay is one reason a judge can chose not to consider facts stated in an affidavit. Also, at a hearing the judge will likely exclude any hearsay, so you may want to have the attorney present at the hearing.

You will definitely want to request a hearing. You can make the request directly in the motion or in a separate request that you file with the motion. It is up to the new judge to decide whether a hearing will be held, so you will want to make sure your submissions contain enough justification to show that you have a meritorious issue. You must serve all the documents you file with the court on the parties. This does not include the judge who presided over the case. The other parties will have the opportunity to submit written opposition prior to any hearing and would likely attend the hearing if there is one. If the new judge deems it necessary he or she may request that the judge testify at the hearing, but this would be an exception. Generally, judges are not called to testify to justify their actions or decisions, so it would be very unlikely.

Please feel free to ask any follow-up questions.
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Customer: replied 4 years ago.

Hi. Thank you again for your excellent response. Again, this was a civil case inside of which there was arguable fraud upon the court. In my motion I argue for fraud upon the court perpetrated not only by the judge, but by my lawyer (who decided to not present a case at all on my behalf). Anyway so the plaintiff in the case is not the issue here, even though I do intend to serve the plaintiff with papers. My argument is against the judge and my lawyer by way of Rule 60(d)(3) for setting aside of judgment for fraud on the court. Would I need to serve papers on the judge and my former lawyer, seeing how they are the ones under scrutiny here and even though they were not the plaintiffs in the original case ?

Hello again.

You can serve courtesy copies of the motion on the judge who presided at the trial and on your former attorney if you want, but it is not required. If the support for your allegations of bias and ineffective assistance of counsel are in the record, then you can go ahead and file the motion without notice to them.

The plaintiff would have the most interest in opposing the motion as you are seeking to undo the judgment in the plaintiff's favor. The new judge may want to give the former judge an opportunity to respond to the allegations, but that would be unusual. If it were up to me, I would just serve the parties to the original action and neither your former attorney nor the previous judge.
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