Plaintiff appeals from the trial court's denial of his recusal motion. Before trial of this commercial dispute, plaintiff learned that the judge secured the trial assignment in response to an ex parte communication from a former law clerk, who was an attorney with the law firm for defendant. The attorney asked the judge if she was available to preside, and identified the partner who would try the case. The judge said the partner "likes appearing before me." Plaintiff unsuccessfully argued this amounted to "judge shopping."
On appeal, the court concludes that an ex parte communication to have a case assigned to a particular judge is not a mere scheduling matter. The judge's affirmative response to the communication in this case created an appearance of impropriety. As for remedy, the court holds that less than a complete retrial can restore public confidence in the proceedings' integrity and impartiality. The court affirms the jury's verdict on liability. It decides de novo, or as a matter of original jurisdiction, the remaining evidentiary and legal issues on appeal, and remands for a new trial on damages before a new judge.