If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
Rule 63.Judge's Inability to Proceed
Group VII: Judgment · Last amended March 1, 2011 · Last verified July 15, 2026
In one sentenceRule 63 lets a different judge take over a hearing or trial when the assigned judge can't continue, once the successor judge certifies familiarity with the record and finds the case can proceed without prejudice, and requires recalling a material, disputed witness at a party's request in a hearing or nonjury trial.
Full Text of Rule 63
Explanatory Note
Rule 63 was amended, effective March 1, 1990; March 1, 1994; March 1, 2011. Rule 63 is derived from Fed.R.Civ.P. 63. Rule 63 was amended, effective March 1, 1990, to follow the 1987 amendment to the federal rule. The amendment is technical in nature and no substantive change is intended. Rule 63 was amended, effective March 1, 1994, to track the 1991 federal amendment by expanding the situations in which a new judge may take over a case. The amendment provides for substitution of a new judge during proceedings. Formerly, substitution was only allowed in cases of disability after the verdict was returned or findings of fact and conclusions of law were filed. To avoid injustice, the successor judge is required to certify familiarity with the record and to determine that the case may be completed before the judge without prejudice to the parties. This will necessarily require that there be available a transcript or a videotape of the proceedings prior to substitution. Rule 63 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Plain-English Summary
Rule 63 addresses what happens when the judge presiding over a hearing or trial becomes unable to proceed. Any other judge may step in, but only after certifying familiarity with the record and determining that the case can be completed without prejudice to the parties — a certification that, in practice, depends on having a transcript or recording of what already happened before the new judge takes over.
In a hearing or a nonjury trial, the successor judge must recall any witness whose testimony is material and disputed, if that witness is available to testify again without undue burden, when a party asks. The successor judge also has discretion to recall any other witness on the court's own initiative, even without a party's request.
The rule's Explanatory Note traces how this authority grew over time. Substitution was once allowed only after a jury's verdict or the court's findings had already been filed, and only in cases of the original judge's disability. A 1994 amendment expanded that to allow substitution mid-proceeding, adding the certification-of-familiarity requirement precisely so that a case wouldn't move forward before a new judge who hadn't reviewed what came before.
Frequently Asked Questions
What must a new judge do before taking over a hearing or trial partway through?
The successor judge must certify familiarity with the record and determine that the case can be completed without prejudice to the parties, which in practice requires reviewing a transcript or recording of the proceedings that already occurred.
Can I require a witness to testify again once a new judge takes over?
In a hearing or a nonjury trial, yes, if the witness's testimony is material and disputed and the witness is available to testify again without undue burden — Rule 63 requires the successor judge to recall that witness at your request.
Can the judge recall a witness even if no party asks for it?
Yes. Rule 63 lets the successor judge recall any other witness on the court's own initiative, beyond the material and disputed witnesses a party can insist on.
Why was Rule 63 changed to allow substituting judges during a case instead of only after a verdict?
The Explanatory Note explains that the earlier version allowed substitution only in cases of disability after a verdict or findings were filed. The rule was expanded to permit mid-proceeding substitution, paired with the certification requirement, to avoid the injustice of forcing parties to start over.
What happens if there's no transcript available when a judge becomes unable to continue?
Rule 63 requires the successor judge to certify familiarity with the record before proceeding, and the Explanatory Note observes that this will generally require an available transcript or recording of the prior proceedings before that certification can be made.
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
Also known as: judge unable to proceed north dakotasuccessor judge civil case ndsubstitution of judge mid trial north dakotajudge disability rule nd civil procedure