Latest / Coopers' Code / What Lawyers Get Wrong About the Courtroom: Justice William W. Bedsworth, Part I

Transcript

What Lawyers Get Wrong About the Courtroom: Justice William W. Bedsworth, Part I · Coopers' Code

0:00
I tell young lawyers, one of the most important things that you
0:05
have to do is, if not make friends, avoid making enemies.
0:12
If you want to be a judge, you have to fill out this long,
0:17
complicated, humongous application to which you are
0:23
required to append the names of 50 lawyers who are familiar with
0:28
your work. God help you if you don't have
0:31
50 friends or at least 50 people that aren't your enemy who will
0:37
fill out forms. Your life is just so much better
0:42
if you're good to people. Howdy, and welcome to the show.
0:48
Cooper's Code focuses on legal issues and notable
0:50
practitioners, distilling wisdom so we all achieve the best
0:54
results for our clients. I'm Miles Cooper and I'm
0:57
thrilled to share this conversation with Justice
0:59
William Betsworth. Justice Bedsworth is best known
1:03
probably for his long standing 44 year running column which has
1:08
now been syndicated nationwide. His humor and his approach to
1:12
life is one that people throughout the legal community
1:14
are likely already aware of. Justice Bedsworth initially
1:18
started as a District Attorney in the Orange County DA's
1:21
office. He focused his career on writs
1:26
and appeals and was elevated to the bench and ran for judicial
1:30
office, winning a seat as a trial court judge in Orange
1:34
County where he sat for nine years in criminal and one year
1:39
in civil before being elevated to the California Court of
1:42
Appeals. Other items of note, having
1:45
served as a goal judge for the Anaheim Ducks, having written
1:49
some of the Seminole opinions on civility in the courtroom, as
1:53
well as Seminole being on LGBTQ rights.
1:57
So without further ado, please join us for this marvelous
2:02
conversation with Justice Bedsworth.
2:05
Welcome to the show, Justice. Thank you, Miles.
2:09
I appreciate the invitation. And for those wondering about
2:11
the chuckle, before we started, we had a little conversation
2:14
about what honorific or name one should use with someone who has
2:18
has come off off the bench. So why don't we start a little
2:22
bit in terms of of your background, how you ended up
2:26
going to law school and and becoming a initially ADAI.
2:31
Grew up blue collar and in post war blue collar families.
2:37
The dream was that the sun would become either a doctor or a
2:42
lawyer. I was not good at math and
2:45
science. I was not interested in math and
2:47
I just a lot of science was math.
2:51
So it was decided I was going to be a lawyer very early on and I
2:58
never questioned it. If I'd had a decent high school
3:01
guidance counselor, I would be doing play by play for the low
3:05
dye crushers today, but those That was not a perceived career
3:12
path for a smart kid in a blue collar family, so I always
3:19
assumed I would be going to law school.
3:21
Where did you grow up? I grew up in Gardena, which is a
3:24
little suburb of Los Angeles. People familiar with the area
3:31
will know the larger suburb of Torrance and the beach cities,
3:36
Redondo Beach, Manhattan Beach, which Gardena is close to.
3:42
When you finished law school, did you have an idea of what
3:46
direction you you planned on going?
3:48
No. Well, by the time I finished,
3:52
yes, I aced my first year, came home and told my wife we're
3:58
going to be rich. It turns out I'm really good at
4:01
this. For various reasons.
4:03
I did not clerk my first year and then went back for my second
4:10
year and I was taking corporations, remedies, UCC, and
4:19
something else equally dull and hated it.
4:26
I kept thinking, you know this. I not only didn't go to law
4:30
school to try to save GE $20,000 on their taxes, I rather hope it
4:36
can be done. I was bored silly and I stopped
4:42
going to class in November and went back and tried to line up
4:49
some other kind of employment. I went back to my college to see
4:53
if I could teach English. I talked to my college baseball
4:58
coach who said, you know, I don't have a budget that's left
5:06
for another assistant, but Saint Mary's in Moraga is looking for
5:12
a head coach. You should talk to them.
5:14
And I interviewed at Saint Mary's a couple of times, and I
5:18
was that close to being the head baseball coach at Saint Mary's,
5:23
which also involved field maintenance and teaching one
5:27
class. And I went to dinner with a
5:32
friend of my wife's and her father.
5:37
And after we talked for a while, he said, you know, anybody who
5:42
likes to eat as much as you do should get a job or he can
5:46
afford food. And this coaching gig is not
5:51
going to do that for you. Go back to law school, catch up
5:55
on your classes, take your finals, drop all those classes
6:00
that are boring you for the next semester.
6:03
Take 4 things that sound interesting.
6:06
I took sports and entertainment law, international law, labor
6:13
law, and criminal procedure and I fell in love with criminal
6:17
procedure and so I started taking all the criminal classes
6:22
I could find. Now I was interested again.
6:26
I came out, got a post barred pre results clerking job with
6:33
the Orange County DA's office close to home.
6:37
It's where my roots were and I came back and started working
6:41
for the Orange County DA's office.
6:43
In today's era, a lot of people who want to become DA's find
6:48
that unless you get started early in the process with an
6:51
internship or you're willing to move up to some county far north
6:55
or somewhere where people don't want to live, it's really hard
6:58
to get ADA job. Was it like that back then?
7:02
No, it was not easy because this was a perceived route to
7:07
litigation. You would learn to try lawsuits
7:11
in the DA's office and then you would go into civil practice.
7:15
And now that you knew how to try a lawsuit, you would get rich.
7:21
And that was that was the goal. I was lucky enough to get the
7:26
job. The the three people who
7:29
interviewed me interviewed me for the last time.
7:34
There was a three interview process to get the job.
7:38
At the end of the interview, one of them said to the other, and I
7:41
found this out years later, one of them said to the other, hey,
7:46
I'm late for lunch. You guys hire whoever you want
7:49
to hire. These last three are fine.
7:52
Well, except for the fat wimp. I was the fat wimp.
7:59
And one of them said if he can't be a wimp, he was a Division One
8:04
catcher. You can't catch college baseball
8:08
and be a wimp. And the first guy said, OK, if
8:12
you want to hire the fat wimp, that's OK too.
8:15
And so my three years of law school, my writing sample, my
8:21
references, none of that helped me.
8:24
I got the job because I've been a backup catcher at Loyola.
8:29
The weird things that shape your life.
8:32
Two different directions that I want to go down with that and
8:35
the first is how did you find out that that was what was said?
8:40
Oh years after one of the interviewees said funny story
8:46
about your interview and and told me at by the time we were
8:52
both judges. The funny thing is the guy who
8:57
said don't hire the fat wimp was, as it turns out, absolutely
9:01
correct. I didn't like litigation.
9:05
I wimped out. I am a failed trial lawyer.
9:09
I grew up fat, poor and with glasses.
9:15
You don't build up a lot of self-confidence.
9:18
My athletic skills and my academic success kind of even
9:23
things out for me and and helped my own psyche, but they never
9:27
made me at ease with meeting people.
9:31
I am marginally phobic about meeting people.
9:36
And that's all you do as a litigator.
9:40
You meet the new judge, you meet the witnesses, you meet the
9:43
police officers if you're ADA. And then you have that world's
9:49
worst cocktail party called Vladir, where you meet 60
9:54
strangers and try to talk to them about their lives long
9:59
enough to get a sense of whether that's somebody you want on your
10:02
jury. Stranger after stranger after
10:06
stranger. I did not like it and I was
10:11
going nowhere. I was I was good at it.
10:14
In fact, they they sent a litigator to watch me.
10:19
One day I looked up and one of the top litigators in the office
10:22
was in the back of my courtroom while I was trying and driving
10:25
under the influence case. And I came back to my office at
10:31
lunch and he wasn't there. I came back to court after
10:35
lunch. There he was in the back of the
10:37
court. I came back to my office and
10:40
there he was. I sat down and before I could
10:43
say anything, he leaned forward and said, why don't you like
10:47
this? You're good at this.
10:49
Why don't you like doing it? And I lied.
10:52
I said, oh, I I like it fine. Shawna, I don't know what you're
10:56
talking about. And he said, your stats make it
10:59
clear that you don't like anything.
11:01
We've looked at the dispositions.
11:03
The chief entered. You're not giving away the
11:05
store, but you are only going to trial when you have to go to
11:09
trial. And I had to admit, yeah, I was
11:14
not comfortable doing that. And he shook his head and said,
11:19
well, you're good enough at it that we'll find something else
11:21
for you to do until you feel better about it.
11:24
And they put me into their sections.
11:27
They called the Writs and Appeals, which did written
11:30
appeals, but they had me doing felony law in motion and I I was
11:35
fig and swap. I was going out there every
11:38
Friday with a brief I had written and arguing to the court
11:42
for 15 minutes or putting on a 1538 and interviewing one or two
11:48
witnesses. I was a happy camper and my
11:50
career took off. Interesting, How long was it
11:54
before you found kind of the the the right path within the DA's
11:58
office? Five years.
12:01
It was 3 before I got to felony trials, which was a long time to
12:07
be doing misdemeanors. They finally said, you know, we
12:11
got to give this guy a shot at felonies.
12:13
And I did fine trying my felonies.
12:16
But when I got to felonies, I met the people who were doing
12:19
felonies and they were the ones who said, hey, put him in there.
12:24
It's an appeals be fine and get set of pills.
12:27
One of the things I want to go back to is your comment about
12:33
the world's worst cocktail party ever for deer.
12:37
We're fast forwarding a little bit getting on the bench with
12:39
something that you you strove for and, and ultimately ran for
12:43
and won. And I think of a particularly a
12:47
trial judge. One of the things that that
12:51
there's a lot of is for deer. So how?
12:53
How did those two work for you? Juries love me juries.
12:57
Juries love all judges. Really.
13:00
Something all attorneys have to keep in mind is if you are
13:04
perceived as being disapproved of by the judge, it really hurts
13:08
you when they get back into that jury room.
13:11
If you're the guy who was fighting with the judge, you've
13:14
got a problem. Yeah, if the judge is a jerk,
13:17
then it evens out and you don't have a problem, but you're not
13:20
going to run into many who come across to the jury as jerks.
13:25
I loved Vaudir when I got to just joke with the jury for a
13:31
few minutes to try to put them at ease and then turn the
13:35
attorneys loose. I used to start every day with a
13:38
This Day in History, but the This Day that I chose was always
13:43
offbeat stuff. There was a radio station in
13:47
Texas that banned Beatles songs, said they are not going to play
13:52
any more Beatles songs. And that night their tower got
13:57
struck by lightning. You know you.
14:01
I collected a bunch of things like that, and I would start out
14:05
with that, and I started every day of trial throughout my life,
14:12
throughout 37 years on the bench the same way.
14:17
Good morning, ladies and gentlemen, welcome to the Hotel
14:20
California. There was a method to that
14:24
madness. It always loosened people up.
14:27
It always made the people who were nervous about court and
14:33
with jurors absolutely intimidated by court.
14:36
Relax a little bit and feel like, OK, this isn't going to be
14:41
as bad as I thought. Relax, lawyers do a better job
14:46
and nervous lawyers. And in the Court of Appeal, I
14:51
always felt like, OK, this relaxes people.
14:57
This will help their performance.
15:00
I would open with that. I would tell them the Day in
15:04
History thing and then I would remind them, OK, you've had some
15:07
fun. Now we're going to get into the
15:11
serious part. We're going to get back to our
15:13
trial. Miss so and so call your next
15:16
witness. And lawyers liked coming to my
15:21
courtroom. Defense lawyers especially liked
15:24
it. Criminal defenses.
15:26
I, I did for the 10 years I was there, I did 9 criminal and one
15:31
civil. The word on me was that I had a
15:36
nice, relaxed view of relevance. If you were a criminal
15:42
defendant, you were liable to get more liable to get your
15:45
evidence in in front of me than you were in front of other
15:48
people. I was not a good judge if you
15:51
were going to lose for sure, because I was not a good
15:55
sentencer for the defense. But if you had shot, I was a
16:00
good place to meet. Not a good sentencer for the
16:03
defense. Sounds a little euphemistic.
16:05
Does that mean that if somebody was convicted, it was going to
16:08
be a bad day for them? Yes, I didn't intentionally do
16:12
that. It was just that I guess I was
16:16
more offended by things than some.
16:20
I looked at the statute and it said 135 and I said OK, this was
16:25
a a middle of the road 1 so he gets a three, you know, unless
16:30
and I was hard to talk out of that.
16:33
With nine years in criminal trials and all the work in the
16:39
DA's office, did you find the exposure to some of humanity's
16:46
worst impacted you in any way? Yeah, it's, it's impossible to
16:53
do that job without becoming a little pessimistic about human
16:57
nature. A little cynical.
17:00
If you're aware that that's happening to you or that it
17:05
that's something that could happen to you, you can deal with
17:08
it. But I knew judges who'd been on
17:12
the criminal courts for years, whose view of human nature was
17:16
pretty bleak, and I attributed it to that.
17:20
We, we used to laugh about the the poor forensic psychiatrists
17:24
and psychologists who got up there who spent their entire
17:28
careers dealing with psychopaths.
17:32
And, you know, how in the world did they go into the market and
17:35
deal with people? But yeah, nine years on the
17:39
criminal bench had an effect on me.
17:41
Now my one year of civil, the presiding judge and a friend who
17:46
was a judge came to me and said, we know you want to be on the
17:51
Court of Appeal. You've got nine years of
17:54
criminal practice. You were ADA for 15 years.
17:58
You need some civil on your resume.
18:01
We've created a job for you. You're going to be a civil
18:07
overflow court five days a week. You're going to do nothing but
18:11
try civil cases. You won't have to deal with the
18:13
pretrial motions. You won't have to deal with any
18:16
of that stuff. We will just send you civil
18:19
cases for trial. And you know, as I said earlier,
18:24
you've you've tried criminal cases.
18:26
You can try civil cases. The evidence code is the same
18:30
and they would send me civil cases.
18:35
I didn't think about it at the time, but I think I was probably
18:39
the most effective settlement tool they had ever had.
18:45
The attorneys would answer ready, your honor, six weeks of
18:51
trial and the calendar judge will look at them and say,
18:57
great, I have a courtroom for you.
19:01
I have an ex prosecutor who has never so much as seen a civil
19:05
case who will try your case. And what's more, he'll do it
19:10
five days a week. So you won't be getting Friday's
19:13
off. You'll be in trial every day.
19:15
We'll knock that six weeks down to three and you will be done.
19:22
And they'd say, you know, you're our, we've been nursing this
19:26
case for five years. We've tried and tried
19:29
unsuccessfully to settle it. But if you'll give us 5 minutes
19:34
without sending us to that ex prosecutor, I think we may be
19:38
able to work something out. And I mean, they were dealing
19:42
cases in the calendar court like crazy as long as I was open.
19:46
That's that's funny. I.
19:47
Had a good time and and the civil bar took wonderful care of
19:50
me. They knew that I didn't have the
19:52
background and they would come in with trial briefs.
19:57
So help me if I expressed doubt about what time we would start
20:02
trial the next day. I would have a trial brief by
20:05
the end of the day recommending whether we should start at 9:00
20:09
or 9:30. You don't get that in criminal
20:14
trials. You're lucky if you get any kind
20:18
of briefing and sometimes the arguments you get.
20:22
Do not really help you a whole lot and you have to wing it.
20:27
Boy, those civil lawyers, they took real good care of me.
20:30
It was it was nice work. If you're enjoying what we're
20:33
doing here with Cooper's code, please help us extend our reach
20:36
by giving us a five star review on Apple Podcasts and consider
20:39
sharing an episode with a friend.
20:41
Additionally, we want to know who you want to hear on the
20:43
show. Have an interview suggestion?
20:45
E-mail us at podcast at Cooper's dot law.
20:48
I jumped ahead to the discussion of of the bench and I I didn't
20:55
go into depth in terms of what you what you liked about the
20:59
writ and appellate work for the DA's office.
21:03
And when I I say that I'm having not done that job or talked to
21:08
anyone who's done that job before.
21:09
Be lovely to hear a little bit about what it entails and and
21:12
what in particular you liked about it.
21:14
Sounds very research and writing intensive.
21:17
Yeah, it it, it was. And that's that's why it
21:21
happened. I was just very, very lucky.
21:25
If you think about it. I mean, our, our office at that
21:28
time was less than 100 lawyers, I don't know, 8090 lawyers.
21:35
There were 95 of them who wanted to be in the courtroom and five
21:42
who were willing to sit in the law library and do that work.
21:46
And right. So I had my choice of competing
21:50
for advancement with 95 lawyers or with five.
21:56
I didn't think about it in those terms.
21:58
I was just thinking, oh, I like doing this, but it really helped
22:03
my advancement. They needed somebody to do this
22:07
job. The defense bar was bringing in
22:09
experts by that time, four years, and it'll probably be
22:13
hard for people practice now to imagine.
22:17
But back then, and we're talking the 70s back then, the DA's
22:23
would try their case all week. And then on Thursday night, they
22:26
try to put together their lawn motions, their 1530 eights,
22:31
their 99 fives, their Miranda issues, all that stuff that was
22:35
going to be argued on Friday. For those of us who spent all of
22:38
our time on the civil side, would you just define it?
22:41
Because that's the second time I think the 1530 Eights came up.
22:43
That's the curse of the criminal lawyer.
22:45
We we do that all the time. 99 fives are motions to dismiss the
22:49
indictment or information on the basis that there isn't enough
22:53
evidence to support it. 1538 point fives are motions to
22:58
suppressive until the basis of a Fourth Amendment violation.
23:02
And then there are the Miranda motions, First Amendment
23:06
violations that takes up most of the Judges Friday calendar.
23:11
And that's what I was doing and I was just as happy as a clam.
23:18
I've told people for years on about the appellate court that
23:22
our court consists of seven lawyers who write and one writer
23:27
who practices law. I love to write, and here I had
23:33
a job where I was just writing. Now, it did make me the
23:38
Dalmatian in the room full of black laps.
23:42
I was considered very odd by a lot of people.
23:46
I'm sure in the DA's office I got a reputation as some kind of
23:50
genius because whenever they had a problem on the 4th Amendment
23:55
or the 1st Amendment or whatever, I was the guy they
23:58
came to and they were good lawyers.
24:02
There was no shortage of intellect there.
24:05
But they weren't living the 4th Amendment and the First
24:11
Amendment as I was. I got to be extremely well
24:15
versed in search and seizure law and all those things.
24:19
One of the things that drove me crazy about my career on the
24:23
bench was that you don't get to be an expert anymore.
24:28
It forces you to become a generalist, and you know less
24:33
and less about the thing that you used to know inside and out.
24:39
I went from being the guy that you went to with a Fourth
24:44
Amendment question to being the guy who would say to his
24:50
research attorney, OK, the law used to be X and then they
24:54
changed it to Y, or it used to be Y and they changed it to X,
24:59
Which is it? Now what?
25:01
What is the law on this point? And that's hard on your ego.
25:07
You know, you have to find yourself looking at the
25:09
nameplate that says judge or justice to remind yourself, OK,
25:15
it's not that I've gotten stupider.
25:18
It's that I'm having to know a broader base of things.
25:24
I've talked with a few other judges on the on the show.
25:29
I don't know that I've ever asked a question along the lines
25:32
of defining what it means to be a judge.
25:37
And specifically to this point of having been a master of the
25:41
4th Amendment and then having become a generalist.
25:44
Do you consider the job of a judge or a justice to be a
25:47
master of the law or a master of interpreting the advocacy that
25:52
is put in front of you or or what?
25:55
The simple answer, of course, is it's, it's, it's both your, your
25:59
instincts are right that those are both important things.
26:04
One of the reasons people like to come into my court that was
26:08
expressed to me by others was that I let lawyers try their
26:13
case. You have to listen to what the
26:17
lawyer is doing and let him or her go in that direction.
26:23
Whether you think it's the right direction, whether that's the
26:26
smartest way to try the case or not.
26:30
Part of your job is staying out of the fray.
26:34
You have to be above it and and running it.
26:38
You obviously have to have a really good grasp on the law to
26:44
be able to referee the contest. You have to know the rules
26:50
really well or you can't be the umpire.
26:54
And knowing the rules is a big part of it.
26:59
But the bigger part is knowing human beings and being able to
27:06
distinguish between the lawyer who is being disrespectful and
27:12
the lawyer who is just a jerk and doesn't really know any
27:17
other way except this way. It's just the way he or she is
27:24
not taking offense. You know, you spend a lot of
27:26
time with one side or the other telling you you're wrong, and
27:30
you just have to learn to deal with that.
27:33
I tell people the best grade we ever got on the C of Court of
27:39
Appeal was AC. The lawyer who thought you got
27:44
it right said, oh hey, of course.
27:48
You know, I, I gave him the brief.
27:50
There's no way this court could have screwed that up.
27:53
Reasonably intelligent golden retriever could have gotten this
27:56
right. The other side says it was a one
27:59
issue test and they got it wrong.
28:02
That's an F. Well, you, you balance out an A
28:06
and an F and you're AC and you know, maybe you're AC minus if
28:12
you said something they didn't like.
28:14
The joke in the trial court has always been that every time you
28:17
make a ruling, you make a temporary friend and and a
28:21
permanent enemy. And by the time the the trial is
28:24
over, the losing sight is not crazy about you and you have to
28:29
be able to just deal with that. Fortunately, almost nobody who
28:33
gets those jobs gets them without a big ego.
28:38
And so it's it's easier to say, oh, he was just wrong.
28:41
He was just a jerk. She just didn't know what she
28:44
was doing. Whatever.
28:47
But you have to deal with that. I imagine on the criminal side
28:53
you're seeing repeat play and, and I'm referring here to the
28:56
being in the trial courts, you're seeing repeat players on
28:59
a regular basis. On the civil side, for the year
29:02
that you did civil, is the Orange County bench or, or the
29:05
cases that you saw small enough that you were also seeing repeat
29:07
players or was it bigger? No, even then and, and now it's,
29:13
it's much bigger. Of course, the size of the bar,
29:17
especially in a county three and a half million size of the civil
29:22
bar is such that you never see them again.
29:27
And that's one of the problems that we face now.
29:30
I have become known for writing the Holy Trinity of civility
29:35
cases. I wrote 3 cases about civility.
29:39
Very strange for me because in the criminal law there was very
29:43
little civility problem. Everybody knew, you know, I'm
29:48
going to be dealing with that public defender or that DA next
29:51
week. That private attorney is going
29:55
to be back in front of that judge two weeks from now.
29:59
And civility was a matter of staying afloat in the civil bar
30:05
where, you know, I'm probably never going to see this person
30:08
again. We're running into a lot of
30:11
people who think that bullying and intimidation is an easier
30:18
way to win a case than being right.
30:22
And unfortunately, in a lot of cases, they are.
30:25
There are a lot more civil practitioners who've never tried
30:30
a case or never tried more than four or five cases in the DA's
30:35
office or the public defender's office.
30:37
You try four or five cases a month and you will become a lot
30:43
harder to intimidate. In the civil bar.
30:48
You can be intimidated. And I don't mean to suggest that
30:52
the civil law is being practiced by a bunch of wimps.
30:55
I just mean that people without experience are more likely to
31:01
perhaps consider settlement than they would have been if they'd
31:04
had more trial experience under their belt.
31:09
And we, we are seeing, I was seeing before I left the bench,
31:15
a lot more conduct that just can't be tolerated, has to be
31:23
stopped. And God bless him, my ex
31:28
colleagues are trying to do that right now.
31:30
Let's unpack the the Holy Trinity of civility.
31:34
Can you can you tell us a little bit about the cases and how
31:38
those came to you and, and, and what impact you made?
31:43
The first one was a case called Kim versus Westmore Partners and
31:48
and the main issue was default. There was a default judgement
31:51
and and it wasn't properly taken in the 1st 10 pages of that
31:56
opinion deal with that issue. But then we felt we had to
32:02
address the incivility. And I said that for too long our
32:10
profession has talked about a golden age in which lawyers
32:16
treated each other with respect. But for decades we've been
32:20
trying to get them to practice law the way it should be
32:24
practiced. And we've given lip service to
32:29
civility. And all those years of lip
32:33
service to civility have gotten nothing but tired lips.
32:37
That's actually in the opinion. And this time, we're going to
32:42
take action. We're going to put teeth behind
32:45
those lips. The teeth are going to be in the
32:47
form of a $10,000 sanction and we are going to continue doing
32:52
this as long as people keep practicing law this way.
32:56
If this be quixotic, so be it. Rosenante is saddled up and we
33:00
are prepared to tilt this windmill for as long as it
33:04
takes. As you can imagine, language
33:08
like that got attention. Yeah, definitely.
33:11
And judges began saying, OK, there's a Court of Appeal that's
33:18
going to back us up if we take action against this incivility.
33:23
There's now some case law out there.
33:26
And I wrote two more opinions there.
33:30
There is an obscure civil statute that requires Civil
33:35
Code. The joys of being 78.
33:38
It's either the Code of Civil Procedure or the Civil Code.
33:41
It's mentioned in LaSalle versus Vogel and Icra versus see how
33:50
the name specialty products. Those are the other two cases
33:54
and that code requires that the parties cooperate says it black
34:01
letter law. And I said, we got to start
34:03
enforcing the statute that requires cooperation.
34:08
And to my satisfaction, other courts began doing it.
34:16
And trial courts began saying, hey, finally we're getting some
34:22
backup. We can take charge of our
34:25
courtroom. There are now half a dozen cases
34:30
out there, maybe more. Yeah.
34:32
I've been away a year in which courts have said this is
34:36
unacceptable behavior and sanctioned the parties.
34:42
My colleague Tom Goeffels had a case in which the attorney
34:49
admitted that his strategy for the settlement conference was to
34:54
intimidate the other side. And he was a huge pain in the
34:59
ass throughout the settlement conference.
35:02
And the trial judge finally held him in contempt.
35:06
And Gofels said that's exactly what you should do in these
35:12
cases. And the trial court said,
35:15
wonderful, we've got a contempt possibility.
35:19
We can use that as a weapon against incivility.
35:23
I was never held in contempt. I always said, someday some
35:28
judge is going to hold me in contempt and I'm going to say,
35:32
good, that makes us even. I I never had the nerve or the
35:37
foolishness to do it. But I told people for years, a
35:43
contempt citation, the punishment is not the fine or
35:49
even having it on the record. The punishment is all the work
35:53
you've got to do to undo that contempt citation.
35:57
They're going to be hours that the attorney has to put into
36:00
that contempt citation to make it go away.
36:05
And that's essentially a fine in itself.
36:09
At whatever his hourly rate is, he or she will have to spend
36:12
those many hours. I want to stay with this for for
36:16
a minute because the the parallel to civility from our
36:21
experience in in the civil side is the games that get played in
36:26
discovery. And one of the challenges that
36:30
we find being both in federal and in state courts is in state
36:37
court, a side who wants to play games in discovery has learned
36:42
that they can play games and there's rarely A sanction.
36:45
And if there is a sanction, it's very minimal, usually below a
36:48
reporting threshold. And it seems to be that the
36:51
judge, the. Cost of doing business, yeah.
36:53
Whereas in federal court, the judges do not screw around, that
36:57
they will hand out sanction orders, that they get people to
37:02
line up. And I'm curious about your
37:05
experience on both as a Superior Court judge and as a justice, if
37:10
you have any thoughts on why there's a difference between the
37:14
two systems, why there's that issue with discovery in the
37:18
state court? There's a distinct difference
37:21
between the state courts and the federal courts.
37:24
Federal judges, our lifetime appointees.
37:28
They answer only to God and the Archangel Rayfield.
37:31
And Rayfield needs an appointment.
37:35
It's easy for them to slap a big number on a party.
37:40
They're used to making all kinds of orders that would stun a
37:45
state court judge. I know a federal court judge who
37:49
ordered the parties to rent office space because he was
37:52
tired of them being late. They were both LA attorneys
37:56
coming to Orange County. And he said, I'll give you a
37:59
week to rent office space because you have abused my
38:03
calendar so much. And that was considered
38:07
something that federal judges do.
38:09
I was astounded that somebody could do that.
38:12
So you've got a very different idea about what the powers are.
38:17
The, the state court judge is up for election every six years and
38:25
needs bar support. And I don't know, I, I was never
38:31
in that position. I was a criminal law judge and
38:35
then I came to the Court of Appeal and had a 12 year term.
38:39
And, you know, there's just not much you can do that people will
38:43
remember and be offended by for 12 years.
38:47
The civil court judges have to worry about how many people they
38:51
antagonize. I tell young lawyers, one of the
38:56
most important things that you have to do is, if not make
39:03
friends, avoid making enemies. If you want to be a judge, you
39:09
have to fill out this long, complicated, humongous
39:14
application to which you are required to append the names of
39:19
50 lawyers who are familiar with your work.
39:23
God help you if you don't have 50 friends or at least 50 people
39:28
that aren't your enemy who will fill out forms.
39:32
One of my colleagues on the courts appointment to the Court
39:36
of Appeal was delayed for three years because the local bar
39:40
ripped him and the governor's office said, you know, we really
39:44
can't appoint you with this kind of response.
39:49
Spend a couple years making friends with a local barn and
39:52
come back to us. And he did.
39:54
And he eventually got to the Court of Appeal.
39:57
But God, it's just your life is just so much better if you're
40:03
good to people. True story.
40:05
Let me tell 11 more. Story.
40:07
I'm sitting in the calendar court, criminal calendar court.
40:12
There is a terrific attorney in that court.
40:16
He later practiced in San Francisco for many years.
40:19
One of the finest criminal defense lawyers I ever knew, but
40:25
a huge pain in the ass, just treated people badly.
40:31
And I'm sitting there and he comes up to the calendar deputy
40:35
and he says I didn't get my discovery.
40:40
And I had heard this very same argument 3 minutes earlier from
40:46
a very nice man, a man who everybody liked, you know,
40:52
yearly nominee for nicest human being on the planet.
40:56
And he'd said, I don't get my discovery.
40:58
And the calendar deputy said, oh, I'm sorry, Lloyd, what
41:01
didn't you get? And he told the calendar deputy
41:04
and calendar, he said, how much time do you need to respond?
41:07
And he said no, 4 weeks, six weeks.
41:12
So they continued the case and then the jerk comes up and makes
41:17
the very same showing I didn't get this, this and this exactly
41:20
the same thing as the earlier guy had said he didn't get.
41:24
And the calendar deputy looks at him and says file your motion,
41:28
Marshall, you you want those things, file the motion.
41:34
And I thought, here is this excellent lawyer, really a smart
41:40
man. How has he never figured out
41:43
that his life is so much tougher because he's not nice to people,
41:48
because he treats them badly? And I saw plenty of lawyers like
41:53
that who just, I don't know what their lives must be like.
41:57
They're constantly at war. And I just don't think you hold
42:02
up well if you're constantly at war.
42:05
Pivoting into the the role in the trial courts, whether
42:09
criminal or civil, I imagine there's some big egos, whether
42:13
whether they're nice jerks, disrespectful, what have you.
42:18
How did you engage with some of the big personalities who try
42:22
to? I've been in courtrooms where
42:24
big personality will come in and try and eclipse everyone else.
42:28
I've got a big personality. When I was a young lawyer, I was
42:34
trying to get evidence in and I was failing.
42:38
Defense was objecting, was being sustained.
42:42
I couldn't figure out what I was doing wrong.
42:44
I was trying over and over and over again.
42:47
And the trial judge looked at me and said, Mr. Bedsworth, would
42:50
you like a recess? And I said, no, Your Honor, I
42:53
can tread water for as long as he can make it rain.
42:58
And so I, you know, I would get these people into my courtroom.
43:04
And I would say to myself, hey, if if you're stupid enough to
43:10
want to make this a battle between you and me, while those
43:13
12 jurors are watching and deciding who they like and
43:17
they're going to like me, you go right ahead.
43:22
And I would occasionally at a sidebar or in chambers, tell a
43:27
lawyer you are making enemies with this jury.
43:31
Every time you fight with me in the courtroom, you want to come
43:35
up and fight with me at recess, that's fine.
43:40
But you are not helping yourself in the courtroom by trying to
43:44
overwhelm Miss so and so on the other side.
43:48
And me, we had a judge who always wanted the parties to
43:53
step out into the hallway and resolve this issue and come back
43:56
in front of it. There are judges that we, we
44:00
used to say whoever speaks last wins.
44:04
And you know, that's just a matter of personality.
44:07
And you, you deal with that. You've got one affidavit of
44:12
prejudice. If you're going into a weak
44:15
judge against a big personality, then you might want to go
44:20
elsewhere. But I don't have a magic bullet,
44:25
I'm afraid. Thank you for listening and
44:28
please join us next week as we continue this conversation.
44:32
Please e-mail us at podcast at Coopers dot law with questions,
44:35
comments, feedback and suggestions for who we should
44:38
have on the show. Like what you heard?
44:40
Share us with a colleague and leave us a five star review on
44:42
your podcast platform of choice. To all of you doing justice out
44:45
there, happy hunting.