It’s the middle of August, 1985, and I’m up to my elbows in alligators with the likes of Browne Greene and Art Hewes
opposite me in two tire failure cases scheduled for trial within the next three months, one a paraplegic plaintiff and
one a quadriplegic plaintiff, each of whom were passengers in the cars which rolled over when the tires failed. I’m
happily married and my children are 12 and 8 years-old. Unfortunately, I’m working six to seven days a week and I’m
not able to devote the time I want to my family. The good news is that a few months before I had submitted my name
to the Governor’s office for appointment to one of eleven new Superior Court positions which had been authorized by
legislation in 1984, and I was hoping for a call from the Governor.
Around 10:00 a.m., my secretary comes into my office and closes the door, not always a good sign. She tells me the Governor had just called but she cut him off when trying to transfer the call to my line. Fortunately, he called right back and I received the appointment I was hoping for. I was sworn in October 1, 1985, and assigned to sit in Torrance. I spent the remainder of 1985 in a trial department in Torrance handling jury and non-jury criminal, civil and family law trials. I was transferred to Long Beach in 1986 where I continued to handle all types of trials and back to Torrance in 1987 where I was again assigned to a trial department, except for 1989 and 1990 when I served as the supervising judge in Torrance.
Once I became accustomed to the judicial role, I loved it. Because I was in a trial department all I had to do was handle one case at a time. (Direct calendaring was not implemented in Torrance until after I was elevated to the Court of Appeal in 1993.) I no longer had to propound and respond to discovery; I didn’t have to prepare and represent clients and witnesses at depositions; I didn’t have to prepare and respond to law and motion; I didn’t have to prepare for trials which got continued time and again and I didn’t have to deal with clients, billing problems or firm administrative issues. All of a sudden I was sleeping through the night, not waking up at 3:00 a.m. to worry about deadlines looming or how I would respond to tactics by counsel on the other side of the case. I discovered I had time in the evenings and on weekends to regularly work out, dine with the family and attend our children’s school and sporting events. I even took up surfing again. While our income suffered a bit, the trade off was worth it. I told the children they should excel in school to try and get into one of the California State Universities, rather than the higher priced private colleges. And they did. Laura graduated from UCLA and Douglas from Cal. Diane worked part time and we were able to pay for their education without dipping into our investments.
Probably the most enjoyable time on the trial bench was when I served as the Supervising Judge in Torrance. I handled the civil master calendar, the family law calendar, the probate calendar, daily ex parte matters and I presided over three law and motion calendars each week. There was no wasted time, as there often was in a trial department. And while the law and motion and probate calendars did usually require extra time in preparation, it was not oppressive because I could do the work at home. (I didn’t use law clerks for the law and motion calendars because I learned early on that they usually didn’t have any practical experience and I could work up the files in less time than it took me to correct errors made by them.)
I was lucky to be able to handle a number of interesting and exciting trials, some of which would make interesting stories and which I may write about on another occasion. Two of them were covered by television: the Hank Gathers wrongful death case against Loyola Marymount University and a criminal drug case involving an Australian flight attendant which was televised to Australia. But after awhile jury trials started to become boring, no matter how interesting the facts or how good the attorneys. In late 1992, six positions were open on the Court of Appeal and I applied for elevation. Governor Wilson filled the first five and the last one remained open for nine more months. Finally, on a Friday when I had no matters on calendar, and none were available to be sent to me, I decided to take the day off and go down to the desert for a golfing weekend. Of course, that Friday is when the Governor’s office called and I wasn’t in chambers or at home to receive the call. It wasn’t until Sunday night when we returned home that I had a message on my answering machine asking that I call the Governor’s office. The first thing Monday morning I called to learn that the Governor’s Appointment Secretary, Chuck Poochigian, had left for vacation and would not return for two weeks, and the Governor was on a trip. Fortunately, Mr. Poochigian’s secretary was able to get him on the phone and he called later that morning and offered me an Associate Justice position on Division 4 of the Second District, which I accepted. On September 21, 1993, my daughter’s 21st birthday, the Commission on Judicial Nominations approved the appointment and I was sworn in.
The primary difference between the trial court and the Court of Appeal is the amount and pace of the work that must be done within a given period of time. The trial judge is more or less a passive participant in the trial that is taking place in the courtroom with the pace usually set by the attorneys and the witnesses. The trial judge cannot try more than one case at a time. In the Court of Appeal, a monthly calendar is provided to the justices with a set number of cases for which notices of hearing have been sent out and which must be reviewed, researched and opinions written before the two scheduled days of hearing each month. Continuances, at least in our Division, were frowned upon. That means that each justice and his or her staff must work at whatever pace is necessary to get the cases ready for hearing. Joan Dempsey Klein probably summed up the concept best after the Commission on Judicial Nominations had affirmed my appointment when she said: “Welcome to the Court of Appeal where you can work any 60 hours a week that you want.” And she was correct. The work is more intense and time consuming but the justices and staff have much more flexibility over when the work is performed. I could stay home and surf in the morning if the surf was “up,” or golf if I had a starting time, but I would have to make up the time elsewhere, and I did.
When I joined Division 4 its calendar was significantly backlogged, approximately 950 cases in various stages of readiness. Chuck Vogel had been appointed to Division 4 nine months before me but for almost two years before that the Division was staffed with only two justices, Presiding Justice Arleigh Woods and Associate Justice Norm Epstein. They had been getting by with a series of pro tem justices from the Superior Court. As such, they could not keep up with the pace of cases which were becoming “ready” for hearing each month. With a full complement of justices, we began attacking the backlog. While my time was more flexible, I was spending time at home and going on vacations with bundles of briefs and with my new laptop computer that the Judicial Council had supplied to me as Chair of the newly formed Court Technology Committee. The work was more time consuming but was also more challenging and rewarding as I learned the nuances of appellate law and advocacy.
Each Justice was assigned to a panel of between 40 and 55 cases each month. My staff and I would be responsible for reviewing and preparing an opinion in one quarter of those cases, while I would be a panel justice on the remaining cases. I would have to read, research and make notes on briefs of all of the cases and review the records of at least the cases for which I was responsible to write an opinion. At the same time, we were also reviewing about 40 writs each month. I quickly realized that if I ever got behind I would never catch up.
The Court of Appeal hears appeals and writs from every type of case handled in the Superior Court, except for death penalty appeals which go directly to the Supreme Court. I figure it took me about five years until I became comfortable with appellate law and procedure as well as with the law relating to issues and types of cases I had not handled in the trial court. At about that same time we were getting the backlog down to a manageable level. Shortly after the beginning of the new century we had managed to bring the backlog down to where we were “current,” meaning that a case would be set for hearing on the next calendar after the last brief had been filed. At that point, each of us was handling between 20 to 35 cases per month. It was almost like semi-retirement. With fewer cases each month, we were able to review each case more thoroughly and give more time to the cases that deserved it. Also, by this time my staff and I had become so well attuned to each other that we were able to turn out the work more efficiently.
In October of 2005, I was 62 years old, had been on the bench for 20 years and I qualified for full judicial retirement, which I had to consider. In 1998, my wife was diagnosed with breast cancer and underwent chemotherapy, surgery and radiation therapy, in that order. It was a wake-up call for both of us and I told her if we had our health when I was eligible for retirement we had to seriously consider it. Thus, on my 63rd birthday in February of 2006 I retired. Diane retired at the end of the school year in June. I continued to sit with the Court through July, 2006, until my replacement, Justice Nora Manella, was in place.
I don’t miss the work of reviewing briefs and writing opinions. On the other hand, discussing issues with my staff and colleagues and the two days of oral argument each month were the most exciting part of the process, and I do miss that. But I have found another outlet. In August of 2006, I began teaching at Southwestern Law School. That fall I taught a course in Trial Advocacy which I patterned after my twelve years experience as a faculty member with the National Institute for Trial Advocacy at their winter program each January at Loyola Law School. The following spring I taught the same course as well as a seminar in trial advocacy, which I designed. I am trying to impart to the students in the seminar some of the wisdom (if any) and thoughts I formed about our litigation system during my 13 years as a trial lawyer and my 21 years as a judicial officer. I taught the same two courses this last spring. The students are very receptive and I find it rewarding. Although, at times class preparation reminds me a bit too much like trial preparation when I was a lawyer. I also continue as a founder and active member of the Benjamin Aranda III Inn of Court in the South Bay
In February of this year I also joined other retired judges and justices at Alternative Resolution Centers (ARC). I have done a few mediations, one reference and I have two arbitrations scheduled. While I had not originally planned on doing this type of work, I found Diane and I can only travel so much, I can only play so much golf, the surf is not always up, the garden pretty much takes care of itself as long as I give it one day a week, and even with my teaching I have some extra time on my hands. And I do like lawyers, those who I have known over the years and the new ones I meet along the way.
I have some thoughts I have formed over the years about our judicial system which I am trying to impart to my students. I would like to share one with you before I close.
The purpose of litigation is not to empower a competition between lawyers, a power trip for judges or provide an opportunity to bill excessive hours to enhance profits. Nor is it a process to establish winners versus losers or to provide an opportunity for one party to oppress another. Actions which reflect those motives are neither desired nor appropriate.
The purpose of our judicial system is to resolve disputes peacefully. For the public to support the system, it must believe that the system is operating properly and dispensing “justice.” I will not try to define “justice” at this point because it is an elusive concept. But studies have been done over the past few years which establish that what the public wants most is fairness in the process, what the social scientists call “procedural justice,” as compared to any particular outcome, what they called “distributive justice.” Tom R. Tyler, a professor of psychology and law at New York University authored an article in the winter 2006 California Courts Review magazine where he addressed this concept: “The idea that people might be more interested in how their cases are handled than whether or not they win often strikes people as counterintuitive and wrong-headed. Yet it is the consistent finding of numerous studies conducted over the last several decades, including a recent study of the California state courts. These studies show that people use ethical criteria to evaluate their experiences, and that they particularly focus on their views about appropriate ways for authorities to act when deciding how to resolve legal problems.” (Id. at pg. 22, footnote omitted.)
When I first read this article I had to agree with the author that the concept was counterintuitive. But as I read more and reflected on the issue, I came to appreciate how the issue can inform a better understanding of and approach to litigation.
Patrick A. Long in his Editor’s Note titled “Houses of Woe?” at page 3 of the 3rd quarter 2006 issue of Verdict made the following valid observation. “Parties to civil actions, their witnesses, employees, and relatives are not there because they enjoy going to court. Plaintiffs (at least those who are legitimate plaintiffs) are there seeking money damages for things money can’t cure. Civil defendants are generally very angry about being in the courthouse, believing they didn’t do anything wrong, and besides resenting the fact that they are defendants, they are often intimidated by the legal process, and sometimes distrustful of attorneys in general, or occasionally their own attorney.”
We must remember that the process is not about us, the litigation professionals. If we are to maintain a viable judicial system, the public must be satisfied that the process works. At pages 22 and 23 of his article in California Courts Review, Professor Tyler lists four factors which he states “dominate evaluations of procedural justice”:
“1. Voice. People want to have an opportunity to state their case to legal authorities. They are interested in having a forum in which they can tell their story; that is they want to have a voice.
“2. Authorities’ neutrality. People react to evidence that the authorities with whom they are dealing are neutral – that is, make decisions based on consistently applied legal principles and the facts of the case, not personal opinions and biases. Transparency or openness about how decisions are being made facilitates the belief that decision-making procedures are neutral.
“3. Respectful treatment. People are sensitive to whether they are treated with dignity and politeness and whether their rights as citizens are respected.
“4. Trust in authorities. People focus on clues about the intentions and characteristics of the legal authorities with whom they are dealing. People react favorably to the judgment that the authorities are benevolent and caring and are sincerely trying to do what is best for individuals. Authorities communicate this type of concern when they listen to people’s accounts and explain or justify their actions in ways that show an awareness of and concern about people’s needs and issues.
“When people are dealing with a particular legal authority, they focus on whether that person seems trustworthy and caring. They try to discern whether that person is concerned about their situation and is sincerely trying to do ‘what is right’ in the situation. Trust, in other words, is a key issue in personal experiences with judges and other court personnel.”
Each of us must strive to provide our services to the public which encompass these ideals.