Rule 88.Judge's Inability to Proceed

Rule 88 covers what happens when the judge hearing a case cannot continue -- illness, reassignment, retirement, or anything else.

The certification

Any other judge may proceed with the hearing or trial if that judge certifies familiarity with the record and determines that the action may be completed without prejudice to the parties. Both findings are required, and both are the replacement judge's to make. The first is about preparation; the second is about whether the case can fairly be finished at all rather than restarted.

When a witness must be recalled

The certification assumes there is a record to become familiar with. Where an adequate record is unavailable, the replacement judge must recall a witness if all three conditions hold:

• a party requests it;
• the testimony is material and disputed; and
• the witness is available to testify again without undue burden.

All three, not any. A party who wants a witness reheard must ask -- the judge does not act on their own under this provision -- and testimony that is material but undisputed does not qualify, because nothing turns on the judge having watched it given.

Beyond the mandatory case, the replacement judge also may recall any other witness at their own discretion.

Why credibility drives it

Rule 82(a)(5) tells a reviewing court to give due regard to the trial court's opportunity to judge the credibility of witnesses. Rule 88 protects the assumption behind that deference: where the record cannot substitute for having been present, and the testimony is genuinely contested, the new judge hears it directly rather than inheriting a credibility finding never made.