A recent Appellate Division case exposes the pitfalls of “judge-shopping” by a former law clerk with the cooperation of the judge. In Goldfarb v. Solimine, Docket No.  A-3740-16T2, (June 26, 2019) the panel ruled that a plaintiff alleging promissory estoppel in an employment context was entitled to a new trial on damages after an unusual practice was exposed, and after the now-retired trial judge refused to recuse herself.

Just prior to trial, the judge’s former law clerk texted the judge that a partner in her firm had a case on the upcoming trial list in a County with a central calendar (a calendar in which trial judges are assigned at random on the day of trial). The judge understood from the text that the partner liked appearing before her. The judge spoke to the Presiding Judge and manipulated the case assignment to herself, based on her seniority and the fact that she didn’t like trying car accident cases. Defense counsel found out about the text and moved to recuse. The judge denied the motion stating in her opinion, the practice of lawyers checking on judges’ availability was common and she believed the partner wanted her due to her skill and experience. During trial she barred plaintiff’s damages expert. The jury held defendant liable, but awarded limited damages.

The Appellate Division affirmed the jury on liability and reversed on damages. It did not opine on whether the practice of lawyers checking on judges’ availability was common, but criticized any attempt to select a judge, holding the method the defense firm used to have the trial judge assigned resulted in an appearance of impropriety and a perception of partiality.