Appellate Appearances (Was Appearance before 9th Circuit ...

[nerdanel]

Okay, no personal experience whatsoever with court-appointed criminal cases, except that a solo criminal attorney I worked with while in college took the court-appointed cases (and completely slacked on them because he felt the state wasn't paying him enough - we move on without pausing to consider what all the various ethical canons and codes say about that one). But I've had a bit of experience with the equivalent - "court-appointed" civil cases.

Now, of course, courts do not actually "appoint" counsel in civil cases. But in Massachusetts domestic, probate, and district courts, people wander in having no counsel, no money, and no idea what they're doing. They will literally walk in and say, "Your Honor, I need help. My boyfriend - he, he's hurting me and I need some sort of court order, the police said, but I don't know what it is and how to get it and I have no money to hire a lawyer." The judges and victim advocates will immediately try to pair them with an area legal aid organization, and I spent time working with one.

At least on the civil side, these clients are HARD. They're often not well-educated, many don't speak a lot of English, they sometimes cannot communicate in full sentences, a lot of their legal opportunities may have lapsed because they didn't know to seize them in time, they ask you to provide them remedies that have nothing to do with the law ("The school district was unfair to my kid, and I want the court to make them give me a public apology on local television from the School Board,") and they are often unable or unwilling to stop saying or doing things that aren't in their best interest. ("You TOLD the police officer that your boyfriend had stopped being violent to you a long time ago and you were now best friends AND romantically involved?" "Yes, because it's true." "When did he stop being violent?" "Three days ago." Guess who you hear from the next day. From the hospital.)

From what little I observed on the criminal side several years ago, those clients can be even harder, in so many different ways. I'm afraid that, rather than rolling over, I'd have to resist the temptation to say something that would get me thrown in jail for the worst instance of contempt that the judge had ever heard. Okay, so I wouldn't actually say it. But...appellate judges who want to be snippy for the sake of being snippy are just annoying. If you don't think the argument is great, then rule against that side, don't take potshots from the bench. And I find it doubly annoying if it was a court-appointed criminal case. If anything, the judge should have been applauding the fact that there was an attorney who was really trying to do right by the client, because frankly, I've seen too many attorneys take those cases and not even bother to look at the file until trial, and then strongly discourage the client from appealing because they don't want to do the associated work. (both the attorney I worked with, and virtually all the other regular criminal attorneys in the same city did the same thing. And openly discussed it among themselves.)

EDIT But for a series of opinions and orders by US judges that are very much hilarious, check: http://www.lawhaha.com/strange.asp#A0

The parties can be ridiculous just as much as the judges. The newest order on that page features a federal judge in Florida ordering the parties to settle a dispute as to deposition location by rock, paper, scissors, because the attorneys were unable to stop their constant bickering.

[Jnyusa]

But...appellate judges who want to be snippy for the sake of being snippy are just annoying. If you don't think the argument is great, then rule against that side, don't take potshots from the bench.

I'm afraid my opinion of judges in general is not very high, from the little I've seen. Very few people are as intelligent, discerning, and principled as the attornneys we have on this board and I've not been over-impressed with the competence of attorneys I've had to use. The behavior of the judges I've observed has been pretty boorish.

Voronwë, and nel, and our other lawyers who have to interact with these chosen ones on a regular basis, how do you feel about the fact that judges are elected politically?

In the Court of Appeals they are appointed, aren't they? Does that make a difference?

Which is worse, do you think? (Notice I did not say 'which is better?')

Jn

[nerdanel]

Jn, all federal Article III judges - Supreme Court, Court of Appeals, and District Court are appointed rather than elected; they have life tenure and salary protection. Most state judges are elected. I don't know about the CA Court of Appeal, but if memory serves, the CA Supreme Court itself faces elections every several years. I don't remember.

You are correct that it is a question of the lesser of two evils. If judges are appointed, then there is the risk that they will use standardless discretion to achieve the outcomes that they would prefer; this is, of course, judicial activism, engaged in by both the Left and the Right. If judges are elected, then there is the risk that they will bow to political pressure for personal gain and avoid applying the law to achieve a politically unpopular result. An example of the latter is clearly seen in states that use the death penalty frequently. Often, the reviewing courts are comprised of elected judges. There is such intense pressure on them not to find for the defendants no matter how strong the case. My perception, even as a death penalty supporter, has always been that they yield wrongfully to that pressure in many cases.

I have a high opinion of the federal judiciary as a whole (acknowledging, of course, that as an institution it will be no more perfect or infallible or free of human biases than any other). My perception based on my limited experience is that members of the federal bench are often extremely competent individuals who take their jobs seriously and want to arrive at just, reasonable decisions. On the whole, I feel comfortable with the federal judiciary being granted life tenure and salary protections barring impeachment conditions. I also think it's important to remember that the majority of the work that judges handle are not the intensely political cases we might hear about - judges do not spend their days deciding whether women have constitutional rights to abortions, whether same-sex couples should marry, and whether a constitutional right to die exists. More often, they are worrying about (much more) apolitical matters such as whether the defendant infringed the plaintiff's patent or whether a manufacturer should be held strictly liable in tort or how many years to put away a wire fraudster for. It amuses me when people rant about judicial activism, as though the liberal members of the judiciary are all huddled together in a room, scheming to divest the American people of their rightful power under our constitutional scheme (and the people's power, by the way, has NEVER included the right to decide when an individual's or minority group's constitutional rights are being violated.) Most judges do not often have many (or any) cases which even afford them the opportunity to be judicial activists. So - recognizing that there will always be a minority of judges (as with people in all positions) who will abuse the power entrusted to them - I believe the federal judiciary should be appointed. I think that to have one appointed and two elected branches, and to entrust the appointed branch with safeguarding the interpretation of the laws, represents the correct balance of power in the federal system.

However, I'm not sure how to feel about the state judiciaries. In small town America, you hear about the judges going out golfing with their local attorney friends, who appear before them the next day. Couple the personal pressure these judges may experience with the political pressures of being reelected, and my confidence that they are applying the law correctly, or at all, decreases. I'm not sure I like the alternative either. State judges on the whole (granted, with hundreds if not thousands of exceptions) are not necessarily of the same caliber as the federal judiciary, and I have reservations about making them as hard to dislodge from their posts as federal judges.

Do I have any confidence that a state judge elected in certain parts of the country will be able to apply the law correctly under political pressure with respect to certain individuals and groups? Very little. And in addition, I fear that many are less well-versed in the law AND less scruplous about applying it. To conclude, a humorous and yet sadly true anecdote that a professor of mine liked to tell about her days in private practice (public interest/criminal defense work).

Judge: I'll rule for the government on that matter.
Defendant's attorney (now professor): Your Honor, I believe that the Supreme Court has ruled to the contrary in X vs. Y. I have the case right here with me; may I approach the bench?
Judge: (starts laughing) Look. I don't need to see the case. I may get reversed by the Supreme Court once every ten...fifteen...twenty years, if that. But in my courtroom, I overrule the Supreme Court every day.

Inspires confidence, doesn't it?

[Jnyusa]

ut in my courtroom, I overrule the Supreme Court every day.

Yes, the disenchantment many feel with the law and the status of justice in our courts arises from such exercise of petty power.

Jn

[Voronwë the Faithful]

I don't know about the CA Court of Appeal, but if memory serves, the CA Supreme Court itself faces elections every several years. I don't remember.

California uses what is known as "the Missouri Plan". From Wikipedia:

Under the plan, when there is a judicial vacancy, a non-partisan judicial selection commission solicits applications, conducts interviews, and recommends three persons to the governor. After interviewing the candidates, the governor selects one of the three to fill the seat.

After one year on the bench, judges must then run, unopposed, at the next general election for retention in office on their record. If a majority of voters disapproves of a judge, the judge must leave the bench and a new judge must be appointed to the vacancy according to the same rules. However, judges rarely fail to gain public approval.

In 1986, California Supreme Court Chief Justice Rose Bird, and her liberal allies, justices Cruz Reynoso and Joseph Grodin, became the first California appellate judges to fail such a vote, after a high-profile, highly partisan campaign. I'm not aware of any judges that have failed such a vote in California since, though my knowledge in this area is not complete.

Local superior court judges are appointed by the governor, but then stand election in which they can be opposed. Ironically, the one Santa Cruz County Superior Court judge who was defeated in such an election in recent years was my opponent in the Ninth Circuit case.

Generally, I agree with Nel about the relative merits of Federal Court judges and justices versus state court, although of course their is great variance and exception on both sides of the coin. The Sixth District of the California Court of Appeal is well known as being extremely pro-prosecution in criminal cases (there actually was a recent expose about this in the San Jose Mercury News). What bothered me yesterday more then the justice's pithy comment that I quoted is that he repeatedly (and I would almost say wilfully) misstated the facts from the record, forcing me to correct him (which is never a good position for a lawyer to be in). Generally, his attitude was "whatever you're guy was guilty anyway".

Next week I get to back to the same court (but hopefully a different panel), but for the first time I will be doing an appellate oral argument as the respondent (meaning that I will be defending the lower court's decision rather then trying to get it overturned). That will be a different experience. This is in a very major sexual harassment case which we have yet to have any opportunity to litigate on the merits of the case, because we have been stuck debating the enforcability of an arbitration agreement that my client signed when she was hired. After I filed suit, they did a motion to compel arbitration, which I sucessfully opposed by convincing the judge (one of the better judges in Santa Cruz who unfortunately soon passed away after this decision) that the agreement was both procedurally unconscionable (meaning that it was an "adhesion contract" which was forced on the party with less power - the employee - by the party with more power - the corporate employer) as well as substantially unconscionable (meaning that it contained provisions that were patently unfair to my client), and that arbitration would therefore not sufficiently allow her to vindicate her statutory righ ...

Sorry, I was interrupted in writing this post by a knock on my office door by one of my colleagues, who wanted to inform me that a local attorney that I know fairly well was shot dead yesterday by a disaffected client.

[Jnyusa]

Good lord.

Jn

[axordil]

I was going to ask how you felt about BNSF vs White, V, but wow. That's pretty awful.

[Voronwë the Faithful]

More fun with the same justice.

"Your client just doesn't want to arbitrate!"

I spent almost 20 minutes arguing back and forth with him (I was only supposed to be alloted 10 minutes). The other two justices were silent the whole time. He would ask me a question, and then interrupt me as soon as I would start to cite what the case law actually says. It was abundantly clear that he had his mind made up and that he wasn't even going to give me an opportunity to explain why - under the law - he was wrong. It's possible that when it comes time to make a decision the other two will go the other way, but it is far more likely that he will push his view forward, since he obviously cares much more about it then they do. Then its either accept arbitration (giving up the right to a jury) or delay the case many months more by petitioning the California Supreme Court to review the case (the vast majority of such petitions are rejected without even looking at the merits).

Very frustrating.

[Ellienor]

Tip from the senior partner from my old law firm:

"your client is your worst enemy"

Sorry, Voronwë, for your colleague.

[Ellienor]

Just out of curiousity, V, why is arbitration considered less favorable to plaintiffs than court?

As you know I am a transactional person completely out of touch with courts, but I have been involved with a number of arbitration matters with regard to domain names and have generally found them to be quite reasonable.

Sorry if its a stupid question, but I have wondered ever since law school.

[Voronwë the Faithful]

I had another appearance today before the Sixth District of the California Court of Appeal. A MUCH better experience then the last two, for the simple reason that that one extraordinarily rude justice wasn't on the panel. This was in one of the two cases that I lost in one day last November (the other was an arbitration so there basically was no appeal rights, which is part of my answer to your question, Ellie, that I for some reason never saw before). The main argument that I was making, however, did not relate to the decision made at the trial last November; it related to a decision earlier in the case when our main claim was thrown out on a demurrer (basically saying that as a matter of law the claim was not valid).

This case involved a settlement agreement from a previous case. In that previous case, my client sued both his employer (a corporation) and the owner of the corporation for religious discrimination (he is Jewish). We reached a settlement that was to be paid over time. The settlement agreement was signed by the owner on his own behalf and on behalf of the corporation, and obligated my client to dismiss his claims against both, but specified that the payments would be made by the corporation. The corporation then went bankrupt and the payments were not made. Our main argument was that under California law, by signing the agreement as an individual as well as for the corporation, the owner was obligated to make the payments if the corporation failed to do so, and thus was liable for breach of contract. Our secondary claim was that the owner was liable for fraud because he knew that the corporation was going to declare bankruptcy and stop making payments when the agreement was entered into, and failed to reveal that knowledge. The court threw out the breach of contract claim on demurrer (a wrong decision, based on the law, in my decision), and then the fraud claims proceeded to trial, which we lost (a more difficult decision to contest, because it is based mainly on factual findings of the trial court).

I am cautiously optimistic; the justices seemed to be somewhat more questioning of my opponent's position then mine. It would be huge if that decision were overturned. We'll see.

Ellie, in addition to the fact that there is virtually no appellate review of arbitration decisions, arbitrators are notoriously pro-business. For someone like me who represents employees who have claims against their (usually former) employers, that is obviously a bit disadvantage (since the employers are usually businesses, of course). Arbitrators also generally make much smaller awards then juries, even when they find liability. So from my perspective, they are to be avoided if possible

[Voronwë the Faithful]

I am cautiously optimistic; the justices seemed to be somewhat more questioning of my opponent's position then mine. It would be huge if that decision were overturned. We'll see.

Apparently it didn't go as well as I had thought, because I got word yesterday that the decision was afirmed in full. I am very disappointed.

[anthriel]

[Primula Baggins]

too.

[Voronwë the Faithful]

Thanks. I'm very lucky to have friends like the two of you.

[axordil]

Will they ever learn that agreeing with you is just so much easier?

[Voronwë the Faithful]

Apparently not.

We will probably petition for review by the California Supreme Court, but that is a long-shot, at best.