Changing the Judge or Venue in Your Case

July 12, 2018

There are times when a party to a case does not feel that the venue in which the matter is to be heard is a good fit. Similarly, there may be instances where the judge assigned to a particular case is not to the liking of one of the parties, for any number of reasons. Most states have provisions in their rules of trial procedure which allow for a change of venue or change of judge under certain conditions. This article will outline those procedures as they are stated in the Indiana Rules of Trial Procedure, governing cases in the State of Indiana.

What changes are possible?

Indiana law allows for parties to a case to request a change of the judge set to hear the case, or of the county in which the case is to be heard. These two elements – judge and venue – are both critical elements of any case, so having the ability to change them is quite significant. The reasons why one would wish to change a case’s judge or venue are outlined more fully below.

Why the change?

There are a number of reasons why a party may wish to change the judge or the venue for a particular case. In regard to judges, perhaps a party knows of some association between the judge and the opposing party, which they believe will prove detrimental to their case. Perhaps a party’s attorney has been before a particular judge, and based on their past experiences, believes that another judge would better suit their client’s interests. Perhaps a particular judge’s political leanings are well-known, and a party believes that such leanings would likely cut against their legal position. There could be a number of other reasons, of course, why a change of judge would be preferred.

There are also several reasons why a party might wish to change the venue of a case. A case’s venue is the geographic location in which a particular action may be properly tried. Perhaps the plaintiff and defendant live or operate (in the case of a business) in different counties, and one party is wary of having the case heard on the opposing party’s “home turf”. Perhaps both parties are in the same county, but one party does not feel that he or she could get a fair trial in that county due to their own reputation within the county, a perceived bias on the part of local county officials/judges, the specific nature of the case, or other reasons. As with the reasoning behind a change of judge, there could be numerous other reasons why a party might prefer a change of venue.

Bear in mind, also, that just because one party wishes to have a change of judge or a change of venue, that does not mean that such a change will be granted. Whether a party is successful in actually gaining the desired change will depend on the specifics of their individual case, and the application of the Indiana Rules of Trial Procedure. These facets are discussed in more detail below.

The rules

Changes of venue or of a judge are governed by the Indiana Rules of Trial Procedure, and specifically Rule 76. Let’s look first at the rule regarding change of venue.

For change of venue, Rule 76(A) states that: In civil actions where the venue may be changed from the county, such change of venue from the county may be had only upon the filing of a verified motion specifically stating the grounds therefor by the party requesting the change. The motion shall be granted only upon a showing that the county where suit is pending is a party or that the party seeking the change will be unlikely to receive a fair trial on account of local prejudice or bias regarding a party or the claim or defense presented by a party.
Note that in order for a party to receive a change of venue, they must file a “verified motion.” This is a motion that formally asks the court for a change, and is signed by the party asking for the change. Note also that the motion must specifically state the grounds for the request.
It should be noted that, under the current Indiana Rules of Trial Procedure, venue in any Indiana county is considered “proper,” and therefore, at least in theory, a civil action may be commenced from any county. However, the Indiana Supreme Court has acknowledged that some counties have a “special relationship” to the people, property, or issues in question, and therefore ought to be given preference as counties of venue. The exact parameters of preferred venue are outlined in Rule 75(A) of the Indiana Rules of Trial Procedure.
There are a number of reasons why a court could grant a change of venue, but Indiana courts have looked primarily to two objectives in determining whether to grant such a change: the right of each party to a fair trial before an impartial judge, and the goal of conducting a trial in a county unaffected by prejudice.
What will determine whether your change of venue is granted? That, of course, is largely left to the discretion of the judge, and will be based on any number of factors; this blog article in no way attempts to make predictions about case outcomes. However, the essential element to keep in mind is whether the party seeking a change would be unlikely to receive a fair trial in the current setting, based on local prejudice or bias.

Now let’s turn our attention to the rule regarding change of judges.

For change of judge, Rule 76(B) states that: In civil actions, where a change may be taken from the judge, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. Provided, however, a party shall be entitled to only one [1] change from the judge. After a final decree is entered in a dissolution of marriage case or paternity case, a party may take only one change of judge in connection with petitions to modify that decree, regardless of the number of times new petitions are filed. The Rules of Criminal Procedure shall govern proceedings to enforce a statute defining an infraction.
The right to a change of judge is separate from the right to a change of venue. The bar for changing a judge in a trial is lower than that for changing venue. As stated in the above-referenced trial rule, a party to a case need only file an unverified motion (meaning it does not have to be signed by the party) for the change, and such change will be automatically granted.
Note that after a decree of divorce or paternity has been entered by a court, only one change per party made be had for subsequent motions to modify that order.

NOTE
All legal references are made with respect to Indiana law. Please check the laws of your local jurisdiction if you live in another state.
The articles in this blog are for informational purposes only. No attorney-client relationship is established through the publication of these articles.