A recent visit to the Court of Appeal added another war story to the ever lengthening list of examples of why an attorney should never overestimate judges and justices, who sometimes don’t understand the most basic of concepts.
But first, a little context.
I wrote an article on the wonders of using speech-to-text voice dictation in order to create court documents. In that article I also explained that boilerplate language can be reduced to a couple of words, and dictating those words will expand into all of the desired language. For that point, I used various examples, including the legal standards for a demurrer. I just say “demurrer language” and the three paragraphs I have written that set for the legal standards for a demurrer are filled in. I of course added disclaimers about always checking to see if the “boilerplate” is still current and applicable to the particular facts of the case.
A reader commented that there is no reason to include such language in a demurrer, because judges already know those standards. I replied that such an assumption is a terrible idea, because it assumes facts not in evidence, as the saying goes. You can’t assume that the judge knows anything.
And that leads to today’s examples of why you should never overestimate a judge or justice.
I occasionally teach litigation skills at a nearby law school, and for years I always told my students to envision the judge as a fourth grader (making them about nine years old). If the student knows a fourth grader, all the better. I would suggest that they keep that image in mind as they draft their arguments, to see if that child is able to understand.
Now you might think this is rather pejorative toward the mental capabilities of judges, but it really isn’t. It is merely a mechanism that recognizes the minimal amount of time, and the perhaps total lack of knowledge regarding the particular subject matter, possessed by the judge. Interestingly, after using and teaching this technique for years, I attended a seminar taught by a judge, and he asserted that lawyers should always write as though the judge is a third grader. At least according to this judge, I had been setting the bar too high.
The Motion for Summary Judgment
Long ago, I was retained to enforce a contract, but the challenging fact was that the client did not have a copy of the contract. He had kept his copy of the contract in a filing cabinet at work, and when his partners decided to give him the boot, the contract disappeared.
Defendants brought a summary judgment motion, which I thought was strange because clearly there was a triable issue of fact. My client claimed there was an agreement, and defendants claimed there was not.
At the hearing on the motion for summary judgment, the judge declared that she was going to grant the motion, because there were two declarations saying that there was no agreement, and only one saying there was. She concluded that the evidence weighed in favor of defendants. She was completely unaware that the court cannot weigh the evidence on a motion for summary judgment, and all my arguing fell on deaf ears.
The defendants were smart enough to know that the court’s ruling would not survive on appeal, and settled the case, but it could have been a long road to overcome the judge’s ignorance.
Arguing to the Jury
Another strange episode arose when I was brought in at the last minute to handle a trial.
I represented the two defendants, and I was arguing against certain motions in limine brought by plaintiffs. The first problem arose when I used the term “we,” as in, “contrary to the claims by plaintiffs that they were not present at the City Council meeting, we will be presenting witnesses and a video tape of the meeting, showing that they were present.”
The judge screwed up his face, and looking at me like I had a third eye, said, “who is this ‘we’ you keep talking about?” Okay, I thought, maybe he’s just being precise and wants me to refer to my clients by name or as defendants. But when I started referring to the defendants by name, it became clear that he still did not know who I was talking about.
We were about to start trial. The judge had been handling this case for over a year. He had purportedly read our trial briefs and the motions in limine from both sides. But I realized he knew nothing about the case. I had to change my presentation to . . .
“The plaintiffs in this action are Mary Smith and Dianne Jones. They filed a lawsuit and are the parties suing Joe Dokes and William Johnson, who are the defendants in this action. Plaintiffs have filed a motion in limine, which seeks to keep us, oh, sorry, the defendants Joe Dokes and William Johnson from introducing evidence regarding the City Council meeting, arguing that is irrelevant since they, oh, sorry, the Plaintiffs Mary Smith and Dianne Jones were not present at the City Council meeting, making it irrelevant . . .”
For a brief moment that seemed to work, but then I made the mistake of arguing, still in conjunction with the motions in limine, that the the City Council evidence was highly probative and relevant because I intended to argue to the jury that the plaintiffs could not have been misled in the way they claim, given the discussions they witnessed at the City Council meeting.
Again I was met with the screwed up face, with the judge saying,
“Argue to the jury? You don’t get to talk to the jury. You put on your evidence, the other side puts on their evidence, and the jury decides. You don’t get to talk to them, and you certainly don’t get to ARGUE to them!”
I then had to walk the judge through the whole concept of closing argument.
How Hearsay Works
I was at a contractual arbitration hearing, and I represented the claimant, whose claims included an action for fraud.
The setting was somewhat informal, with the arbitrator at the head of a conference table, with me to his right, opposing counsel to his left, and the parties beside each respective counsel. The arbitrator was a retired judge who had served for some 30 years in Orange County Superior Court, and had been the presiding judge during his tenure.
I am questioning my client, and I reach the part of the questioning where I am establishing the elements for fraud, including the misrepresentations that were made by respondent to my client. As my client begins to testify to the misrepresentations, the judge cuts in and tells my client that he cannot testify to what was said to him by the respondent. In his best Foghorn Leghorn voice, he explains to my client that such testimony would be hearsay, and that he does not permit hearsay.
Arbitrators often forget that they are arbitrators, and instead try to mediate the dispute. I honestly thought his hearsay explanation might be some sort of a mediation technique. So as not to ruin his strategy, I leaned over and whispered, “You do know that’s not hearsay, right?”
Apparently he was not trying any strategy that needed to be preserved, because he bellowed that of course it is hearsay. The witness was about to testify to something that was said outside of court. I then explained to the judge that by definition a misrepresentation will always be a statement that was made outside of court, and evidence of that misrepresentation is essential to the fraud claim. Further, since it is offered to prove a false statement, it is not being offered for the truth of the matter asserted.
The judge announced that in his 30 years on the bench, no one had ever explained it to him that way, and allowed the testimony.
How many case had he heard where he excluded this sort of purported “hearsay?”
The Judgement Debtor Exam
I certainly don’t consider myself a collection attorney, but it comes with the territory given that anti-SLAPP law is a big part of my practice. With anti-SLAPP motions comes the award of attorney fees, so I often have to undertake some collection efforts to recover the fees.
Scheduling a judgment debtor’s examination is often all it takes to recover the fees, since people are loathe to turn over all their financial records. And if that doesn’t motivate the debtor and the examination goes forward, I learned long ago to have blank turn-over orders ready to go at the time of the examination. If the debtor identifies some asset, I just fill in the blank, walk back into court, and have the judge sign the order. Works like a charm.
So following this plan, I reach the point in the examination where I ask the debtor if he owns any vehicles. He proudly proclaims that he paid cash for the brand new Lexus SUV sitting in the court parking low. He even bragged about all the options he had added to the vehicle. After finishing the examination, I go back into the courtroom with the debtor in tow, and hand the judge the turn-over order, listing that big, fat asset sitting in the parking lot.
The judge looked at it and said:
You want me to order him to turn over his truck? If a debtor is honest enough to disclose an asset, I would never punish that behavior by letting the creditor take it.
How Oral Argument Works
I could given a dozen more such examples of judges not understanding the most basic concepts, but let’s end with the Court of Appeal. This tale of woe actually provides two examples.
I took a case for no reason other than I thought it would tee up an issue that was ripe for appeal. The issue was whether a certain Act created a private right of action.
Problem was, I was too good at trial, and I convinced the judge that there was no private right of action. The judge found in favor of my client. That was a problem because to create the precedent I wanted, I now had to depend on the plaintiff to appeal the judgment.
We followed the usual process where I filed a proposed judgment, and plaintiff had ten days to object. His counsel objected by claiming I was full of bull, and that there was a private right of action under the Act, offering a reported appellate case as proof.
The case contained no discussion of whether there was a private right of action under the Act, and I so argued. It was a situation where defense counsel in that case had simply failed to raise the issue, so the Court of Appeal made no determination one way or the other.
And here’s where things got weird.
The case in question had been decided in 1983! Since the opinion had no discussion of whether a private right of action existed, the judge in our case decided to do a little sleuthing. He called counsel for plaintiffs from the 1983 case, and asked if that had been an issue in the case. Based on that attorney’s response, and with me not having any opportunity to cross-examine this “surprise witness,” the judge decided that there was a private right of action. He reversed his own judgment and awarded a small amount of money to plaintiff. The only good news was it now presented me with the opportunity to appeal.
But before we move onto the appeal, consider what just occurred. The judge had no idea how precedent works. Imagine a world where we no longer have to rely on the wording of an opinion. Now, we can obtain declarations from the parties to the appeal and underlying case, offering their interpretations of what the opinion really means. How special.
So I took the matter up on appeal, and ran headlong into another, shall we say, uninformed jurist.
The Court of Appeal (Second District) had issued a tentative ruling prior to oral argument, and it indicated that my argument would carry the day. The Court agreed that there was no private right of action under the Act. HOWEVER, the tentative ruling also stated in bold text that the tentative was not the final word, and the Court could reach a different result.
Come the day of oral argument, since I represented the appellant, I stood up to argue first.
In a really snarky tone, the Presiding Justice asks me if it is my intention to argue, even though the tentative was in my favor. I responded that yes, I was going to reserve the bulk of my time for rebuttal, but that I wanted to hit on a couple of points initially.
To which she responds, “so you want us to reverse our tentative?”
Well, Presiding Justice, let’s think about that for a moment.
First, unlike every other tentative I have ever seen, your tentative contained disclaimers, emphasizing the fact that this is only an indication of the current leanings of the court, but that the court may elect not to follow its own tentative.
Second, although I can read the tentative, I have no way to know which or how many of the justices agree with that tentative. Perhaps one of the three is not yet convinced to my position, and I should take the opportunity to win him or her over in case a justice flips.
But perhaps the most important point, it comes down to how oral argument works. As the appellant I have the burden, so I make my argument, respondent makes their argument, and then, and this is important, I get to respond to the points just raised by respondent. I can’t bring up something entirely new in my response, because that wouldn’t be fair. Respondent would have no opportunity to respond.
If I reserve all of my time for rebuttal, I will be limited to the points raised by the respondent. The tentative said nothing about how the judge called an attorney and let him inform the court what the Court of Appeal opinion had met. It’s a safe bet the Respondent isn’t going to bring it up, so if I reserve all my time for rebuttal, I won’t get to argue that point. I have to argue it first.
I totally get the concept of snatching defeat from the jaws of victory. For a law and motion matter, I likely would not argue if the tentative is in my favor, but this is different. Oral argument at a law and motion matter is far less formal, and the judge might let each side argue five times. But in front of the Court of Appeal, it is a strict appellant – respondent – appellant format, with a timer running.
So, the bottom line is that you should never ever assume that your judge or justice knows anything, no matter how basic.