Litigation Finance and the Role of the Judge in a Lawsuit

Whenever people are anticipating a lawsuit, often their first thought is something along the lines of needing to find the best attorney possible to fight for me and while attorney representation can be very critical to the success of a case, attorneys are not the only important people in the courtroom.  Judges often have a very important role in a trial, not only to maintain order of the proceeding and ensure that the proper procedures for that court are followed but also to decide any issue of law.

A common misconception is that in jury trials, the jury decides everything about the case.  However, that is not true, juries decide questions of fact but any time an attorney raises an objection the judge is making a decision as a matter of law.  For example, an objection to a piece of evidence, the judge is deciding based on the Rules of Evidence (law) if that particular piece is admissible or not. Additionally, in jury trials it is the judge that instructs the jury on relevant laws and refines the scope of facts under the jurors’ consideration. Of course, in bench trials, there is no jury so the judge decides both questions of fact and law.

Over time judges begin to acquire reputations.  Sometimes these reputations are on a particular topic, such as that judge is particularly pro-life or this judge is anti regulation on campaign finance. Or sometimes a judge’s reputation may be broader, that they are a plaintiff-oriented or defense-oriented.  Often these reputations can be found by reading the judge’s previous decisions, newspaper articles on the judge, or looking at their past work and life experiences.

So what does this have to do with litigation finance? This is just one factor than could potentially be important in analyzing if the financier wants to invest in this case.  It is can be helpful to see if the judge has ruled on any of the same or similar kind of cases recently as the one the funder is evaluating to see how that case came out.  Additionally, if a judge has a reputation with attorneys of being cold or running a very difficult courtroom it may be an incentive for attorneys to want to settle which is good for the potential financier to know beforehand.

It is unlikely for a funder to decide to invest in a case or not based solely on who the judge is and sometimes a funder gets involved before the case has even been assigned a judge.  But it is an interesting factor that may be considered in the analysis and is often overlooked by potential claimants.

Topics:  litigation finance, alternative litigation finance, third-party funding

Works Cited:  Eyeing the Beholder: Accounting for the Pivotal Role Judges Play in a Lawsuit, LexShares (May 22, 2017).