the journal of the litigation section, state bar of …hard-copy publishing. i confess that i read...

THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA

Volume 25 • Number 2 2012

Michael A. Geibelson

California Litigation Vol. 25 • No 2 • 2012

Editorial OpinionOn the Health of Trial Lawyers and Trial CourtsBy Michael A. Geibelson

A s an ailing friend once saidto me, only half-jokingly,she was just one more

stomach flu away from her targetweight. Like her stomach flu, trialpreparation and trial seem to havethe same unintended but positiveconsequence of shedding pounds.Sleep deprivation, the lack of easyaccess to a range of attractive foodoptions…oh, and all that pensivepacing behind counsel table. Puttingaside the sidebar discussions, ap -proaching the witness alone cancover more than three-quarters of amile during a two-week trial. (Cal -culated as 100 exhibits x 2.5 feet perstep (average) x 8 steps ap proaching

x 2 (returning) ÷ 5280 feet permile.) Double that for federal court,if you are permitted to step awayfrom the lectern.

Then you’ve got your Banker’sBox lifting, and the mad dashes backto the office or hotel to retrieve mis-placed exhibits. (This is to say noth-ing of the aerobic benefits of carry-ing an expert on your back on redi-rect when he mistakes the reportwritten in your case for that fromanother case.)

Together, trial preparation andtrial are a virtual decathlon. I’ve shedsix pounds in the three weeks lead-ing up to a trial next week, and I sim-ply can’t find the time to eat more.

Even with my arteries hardeningfrom the stress, and the rush of corti-sol altering my metabolism, on bal-ance, it’s all very healthy.

— Stress Tests for Courts —Trials are also a stress-test of sorts

for our state courts. Unfor tunately,they are not healthy. And they aregetting progressively sicker asdemonstrated by what will certainlybe a smaller number of trials thisyear and even fewer in the years tocome.

(Continued on Page 48)

1

Inside Editorial Opinion:On the Health of Trial Lawyersand Trial CourtsBy Michael A. Geibelson

2 Book ReviewBy John Derrick

3 Editor’s Foreword:In Praise of StyleBy John Derrick

4 Citation Style:Why Do We Care?

By Edward Jessen

9 What Do the Rules of CourtReally Say About Typography?

By Matthew Butterick

15 When Mass Murder and Theftof All Human Rights Were “Legal”:The Nazi Judiciary and Judges

By Hon. Richard D. Fybel

22 Ethical Practice:How the Feds Enforce ItBy Charles G. Gomez

28 Evidentiary Extrapolations in California Class Actions:Guidance from Brinker

By Kimberly A. Kralowec

34 Complying with the Government Claims ActBy Alberto Boada

37 After the Deadline:How to Submit a Late Government Claim

By Jaclyn Smith

40 Litigation Tech:Twenty-Four/Seven Access

By Paul R. Kiesel

44 “I Learned about Litigating from That”Don’t Wait for the Planets to Align

By Carla Minnard

46 McDermott On Demand:Other Desert CitiesBy Tom McDermott

THE JOURNAL OF THE L IT IGAT ION SECT ION, STATE BAR OF CAL IFORNIA

Volume 25 • Number 2 2012

M embers of the Litigation Section tend to be civil lit-igators, not criminal ones. I’m not sure why. If thehallmark of a “true” litigator is actually taking cases

to trial (not that everyone would agree with that characteriza-tion), then criminal lawyers tend to have a leg up on their civilcounterparts.

And it’s not as though criminal lawyers do much except tolitigate. “Transactional” work in a criminal context doesn’tconjure up particularly wholesome images. But maybe it’sbecause there’s a separate Criminal Law Section in the StateBar family tree.

Anyway, those thoughts passed through my mind when Iwas sitting down to review The Lincoln Lawyer, a novel byMichael Connelly. Yes, I know it’s been out for a bit, but thisjournal does not compete in the first-to-press-market. We pre-fer to add thoughts that others left out.

The Lincoln Lawyer tells of a solo practitioner in LosAngeles who finds himself in some murky waters, in whichconflicts of interest arise. Novels can actually be excellentmaterial for classes in legal ethics. At Boalt, I took a class inAdvanced Criminal Procedure, taught by Robert Tanenbaum,a former Head of the Homicide Unit at the Manhattan DA’sOffice, and also a former Mayor of Beverly Hills. The entirereading consisted of Tanenbaum’s novels telling of the adven-tures of Butch Karp, a New York prosecutor. Definitely someof the best reading I did at law school.

The Lincoln Lawyer is so-called because the lead charac-ter, Mickey Haller, uses a Lincoln Town Car as a mobile office.Haller sits in the back and employs a driver. That’s an ideafrom which civil litigators might borrow. Indeed, the late BillMcClafferty — a fine man who sat on the Santa BarbaraSuperior Court until his untimely death in 2010 — told methat when he was a lawyer, he used to employ a driver to takehim places so that he could get work done on the way. Beingdriven to LA and back for a deposition would free up fourhours.

Of course, if California had better public transport, onewouldn’t have to resort to that. If work takes me down fromSanta Barbara to San Diego, I usually try to take Amtrak. Butservice only to LA is too slow and patchy to be practical.

If you’re in LA, however, don’t overlook the subway. TheLA Metro Rail is no BART. And it doesn’t go to all that manyplaces. But where it does operate, it’s a bit of a hidden gem. Itook it recently from Hollywood to Downtown and wasimpressed by the cleanliness and even grandeur of the sta-tions. It reminded me of the magnificent subway in Pyongyang(on which, yes, I have ridden).

Connelly isn’t an attorney, himself. But, for the most part,he captures the detail of the legal system quite well. A bigexception was an appeal that took only about three or fourmonths from start to finish (and, no, it wasn’t and couldn’thave been a writ). If he needs an appellate consultant nexttime, I’d be happy to oblige. Overall, though, a very good read.

John Derrick is the Editor-in-Chief of this journal

Book Review by John Derrick

2

EDITORIAL BOARDJohn Derrick Santa Barbara, Editor-in-Chief

Stan Bachrack, Ph.D. Los Angeles, Managing EditorSharon J. Arkin Los Angeles

Winnie Cai VenturaPaul Chan Los Angeles

Thomas C. Corless Los AngelesPaul J. Dubow San Francisco

Saji Dias Gunawardane Santa BarbaraRussell Leibson San Francisco

Thomas J. McDermott, Jr. Palm DesertHon. Wm. F. Rylaarsdam Santa Ana

Jill Jackman Sadler Santa BarbaraBen Shatz Los Angeles

Susan E. Anderson Wise Long BeachJoan Wolff San Francisco

LITIGATION SECTION EXECUTIVE COMMITTEEMichael A Geibelson Los Angeles, Chair

Lisa M. Cappelluti San Francisco, Vice ChairRobert M. Bodzin Oakland, Treasurer

Carol D. Kuluva Los Angeles, SecretaryElizabeth A. England Immediate Past Chair

Farzaneh Azouri Woodland HillsKathleen Brewer Westlake VillageTanja L. Darrow Los Angeles

David P. Enzminger Los AngelesEric P. Geismar Northridge

Reuben A. Ginsberg Los AngelesRuth V. Glick Burlingame

Tahj E. Gomes ChicoRhonda T. Hjort San Francisco

Kevin Holl San FranciscoMegan A. Lewis Sacramento

William Seligmann Santa CruzMichael R. Sohigian Los Angeles

Joan Wolff San FranciscoJustice Victoria Chaney Los Angeles, Advisor

Justice Eileen Moore Santa Ana, AdvisorHon. Lawrence W. Crispo (Ret.) Pasadena, Advisor

Hon. J. Richard Haden (Ret.) San Diego, AdvisorHon. James P. Kleinberg San Jose, Advisor

Hon. Ronald S. Prager San Diego, AdvisorHon. James L. Warren (Ret.) San Francisco, Advisor

Donald W. Barber Whittier, AdvisorCharles Berwanger San Diego, Advisor

Paul Chan Los Angeles, AdvisorJamie Errecart Sacramento, Advisor

Michael Fabiano San Diego, AdvisorJoel Wm. H. Kleinberg Los Angeles, Advisor

Mark A. Mellor Riverside, AdvisorMichele L. McGill San Francisco, AdvisorGregory A. Nylen Santa Monica, Advisor

Erik J. Olson Palo Alto, AdvisorNorm Rodich Irvine, Advisor

Jerome Sapiro, Jr. San Francisco, Advisore. robert (bob) wallach San Francisco, Advisor

Jacquelyn K. Wright Oxnard, AdvisorHerb Yanowitz San Francisco, Advisor

Mitch Wood Section CoordinatorAna Castillo Administrative Assistant

“The Lincoln Lawyer”By Michael Connelly

Inspiration for Civil Litigators?

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Copyright 2012, State Bar of CaliforniaThe opinions contained in this publication are solely those of the

contributors.California Litigation is pleased to review original articles submit-

ted for publication. Articles should be 1,000-2,000 words. Pleasesubmit proposed articles – and Letters to the Editor – to JohnDerrick, at [email protected].

To subscribe:California Litigation is mailed free to all members of the

Litigation Section of the State Bar of California. To join the LitigationSection, send your name, address, telephone number, and State Barmembership number to Litigation Section, State Bar of California,180 Howard Street, San Francisco, CA 94105-1639. Section duesare $75 per year and should be enclosed with the enrollment information.

3

C ivil Code section 3528 pro-vides in full: “The law re -spects form less than sub-

stance.” That may be so. But form —or style — matters too.

If there’s one Rule of Court thatmost California lawyers flout on aregular basis, I’d say it’s Rule 1-200.That’s the one that makes it manda-tory to cite using California StyleManual or Blue Book protocols (pre -ferably the former, according to theAdvisory Committee Comment). Asan appellate specialist, I read lots ofother lawyers’ work. And I’d say that

Germany in the years before andduring World War II. In a thoughtfulanalysis, he examines how and why,when the rule of law collided withtyranny in those dark days, the judi-ciary yielded. And he asks about thelessons to be drawn.

All that and much more in thesecond issue of our 25th anniversaryyear. The journal has entered into itssecond quarter of a century at a timewhen some question the future ofhard-copy publishing. I confess that Iread novels on a Kindle (and readmuch more as a result). And Ihaven’t touched a hard-copy Rutteror Witkin volume in years. But thereis something about a journal thataccomplishes things that no Web siteor blog can do. The diversity of con-tent in this issue, drawing on a rich-ness of experience, is something youcouldn’t easily assemble by clickingon links on your browser. If you’veread this far in my foreword, makesure you read more of this issue.Take it to lunch, the beach, bed, orwherever. There’s a lot of good stuffin it.

Editor’s ForewordIn Praise of StyleBy John Derrick

very few lawyers get a passing gradein that respect.

Does it matter? Personally, I thinkit does. But someone much betterqualified than I to answer that ques-tion makes the case for style in thefirst article in this issue. He’s EdwardJessen, the editor of the CaliforniaStyle Manual and the Official Re -porter of Decisions at our Su premeCourt. And, by the way, if the subjectcaptures your interest, he and I willbe on an MCLE panel at the StateBar Annual Meeting in Monterey inOctober.

The second article in this issue,by Matthew Butterick, focuses onanother aspect of style, typography.You may not have thought muchabout the role of typography in yourlitigation practice before, but theRules of Court have some things tosay about that, too. However, theyalso leave you a fair amount of dis-cretion, which, as Butterick shows,you can deploy to your advantage bymaking your documents more pleas-ing to the eye. Butterick, too, will beon an MCLE panel in Monterey inOctober, along with California Liti -gation editorial board memberBenjamin Shatz.

The third article goes into a verydifferent realm. Justice RichardFybel, of the Fourth District Court ofAppeal, Division Three, examinesthe role of the judiciary and judges in

John Derrick


John Derrick, the Editor-in-Chief ofCalifornia Litigation, is certified by TheState Bar of California Board of LegalSpecialization as a Specialist in Appel -late Law. [email protected]

4

Citation Style:Why Do We Care?

By Edward Jessen


F or a moment, let’s play Jeopardy.The answer is, Judge Richard Pos -ner, the late Professor Charles Alan

Wright, and the Convention on Civil Aviation.The improbable question is, why should thebench and bar conform to a legal citationstyle guide, and how much conformity isenough?

The short answer is that there is a courtrule requiring authors of legal documents

filed with courts to conform to either theCalifornia Style Manual or The Bluebook.(Cal. Rules of Court, rule 1.200.) Most courtrules are supported by reasons, but theunderlying reasons for conforming to one orthe other of the legal citation style guideshave perhaps been taken for granted and notmuch explored. Looking at the underlying

Edward Jessen

5

reasons may contribute to better complianceand greater assurance that legal documentswill be understood by decisionmaking read-

ers in the way intended by authors. There is now at least one computer pro-

gram on the market that nicely styles legaldocuments to conform to either the Cali -fornia Style Manual or The Bluebook, evenchecking the accuracy of cites and quotes. Sowhen basic citation styling can be accom-plished by a computer program, the moreinteresting questions today involve the bestchoices to make for concise and informativecitational clarity within the rules of a particu-lar style guide, or when that clarity mightbest be achieved by not following the rules.

— The Choices You Make —

The late Charles Alan Wright, University ofTexas School of Law professor and coauthorof the well-known federal practice treatise,framed the citation styling dilemma in abroader context for the 1967 foreword to theTexas Law Review Manual on Usage & Style:“The rules of usage developed over the cen-turies are intended to produce clarity. Ob -servance of them lends a professional polishto the product, and this in turn inspires con-fidence that the writer…is equally profes-sional and equally competent in the sub-stance of what he says. [¶] It is a truism thatrules are made to be broken. This is especial-ly true of rules of usage. Only rarely can it besaid that a particular form is ‘right’ andanother ‘wrong.’ The authorities teach onlythat one is ‘desirable’ and the other ‘undesir-able.’ Growth of the language comes whenmasters of usage, such as Churchill orShakespeare, recognize that in a particularsituation their thought can best be expressedby departing from the conventions. The rulesin this manual, therefore, should not beregarded as a Procrustean bed. The user ofthe manual who knows what he is doing andwhy should feel free to depart from the ruleswhen this produces a better result. Most ofus, however, are neither Churchills norShakespeares, and for us the safer course isto follow the rules rather than to strike outon our own.”

So who might today be a Churchill orShakespeare of legal citation styling? JudgeRichard A. Posner, United States Court ofAppeals for the Seventh Circuit, based on hisconsiderable reputation as an appellate judgeand author. Judge Posner wrote on legal cita-tion styling in The Bluebook Blues (2011)120 Yale L.J. 850, and in a predecessor articleentitled Goodbye to the Bluebook (1986) U.Chi. L.Rev. 1343. Within the judge’s criticismof The Bluebook is instructive guidance for

‘The case for the

standardization and

uniformity provided by

following any legal citation

style guide is that it serves

as a lingua franca across

disparate fields of the law.’

6

all legal authors struggling to reconcile con-cise and informative citational clarity withrote conformance to the rules of the styleguides.

In The Bluebook Blues, Judge Posnernotes that the basic function of any citationsystem is to provide enough information forthe reader to assess the significance of thereference and find it if desired. The judge

repeats the four principles for the design of acitation system first set forth in Goodbye tothe Bluebook: (i) spare the author fromthinking about citation form; (ii) economizeon space and reading time; (iii) provide infor-mation for the reader; and, (iv) minimize dis-traction. While Judge Posner is opining abouta citation system, these are points to keep in

mind when determining if, and how, onemight depart from a style guide’s rules toachieve a better result for concise and in -formative citational clarity.

One caveat, however, is that JudgePosner, in The Bluebook Blues, discountsthe importance of standardization and uni-formity in stating his guiding principles. Thejudge, as a renowned author of appellateopinions, law review articles, and books, maywell have the privilege of doing that withoutcalling into question his competency as tothe substance of his writing. The rest of us,however, may want to pay heed to ProfessorWright’s admonition that most of us are nei-ther Churchills nor Shakespeares and shouldgenerally take the safer course of followingthe rules.

The case for the standardization and uni-formity provided by following any legal cita-tion style guide is that it serves as a linguafranca across disparate fields of the law.Following a style guide enhances communi-cation and clarity between authors and read-ers by providing a common set of definedstyling conventions that reduce ambiguity,imprecision, and reader uncertainty. Thismakes for efficiency in writing becauseauthors familiar with their style guide neednot focus on peripheral matters such asdeciding, citation by citation, if readers willappreciate the significance of, and be able tolook up, what is cited.

For decisionmaking readers generallyfamiliar with the legal style guides, the read-ing will be more efficient and precise withfewer guesses about what is meant or whatis cited. In other words, concise and informa-tive citational clarity is most often achievedthrough the standardization and uniformityfound, for example, in the California StyleManual or The Bluebook. The writing will bea comfortable and familiar read that fulfillsthe expectations most readers will bring tothe document.

‘So how is the lingua

franca example of

the international air

traffic control system

instructive for styling

legal documents?’

7

— The Parallel of —Air Traffic Control

The need for a lingua franca is not, ofcourse, limited to legal citation styling. Forinternational air travel, the need for pilots to

efficiently and precisely communicate withair traffic controllers is an everyday matterof life and death in ways that few legal docu-ments are. In 1944, the Convention onInternational Civil Aviation established theInternational Civil Aviation Organization tocoordinate and regulate international airtravel. Effective in 1947, the convention des-ignated English as the international lan-

guage, or lingua franca, of aviation.Although local languages can sometimes beused under the convention, English is the“default language” for communicationsbetween, for example, an Air France pilot ofa European-made Airbus aircraft and aBrazilian air traffic controller guiding the air-craft into Sao Paulo, and the technical docu-mentation and manuals for maintenance ofthe Airbus while it is on the ground in SaoPaulo will be in English.

The investigations of two commercial air-line accidents resulting in a loss of 932 livesassigned significant causation to miscommu-nication between the pilots and air trafficcontrollers. In 1977, at Tenerife in theCanary Islands, standard English terminolo-gy was used between the pilots of two air-craft and the air traffic controllers, but it wasnot the native language of either pilot. As aresult of poor visibility and one pilot notunderstanding the number of the taxiwayonto which he had been directed to turn, hisBoeing 747 was still on the runway when asecond 747 started its take off and collidedwith the one still on the runway. In 1990,due to airport fog, a Colombian aircraft wasflying in a holding pattern over New Yorkand running out of fuel. The pilot requested“priority” from the air traffic controller, whodid not regard the pilot’s situation as anemergency because “priority” does not havethe same import as “mayday,” “emergency,”or “pan, pan, pan.” The aircraft ran out offuel and crashed on Long Island. Other pilotsfor the Colombian airline told investigatorsthey were only familiar with the word “prior-ity” for emergency situations.

So how is the lingua franca example ofthe international air traffic control systeminstructive for styling legal documents? Ifambiguity, imprecision, miscommunicationor lack of clarity occur between pilots andair traffic controllers, the consequences mayinvolve loss of life that all the world will

‘…there are situations

where slavishly conforming

to a style guide will

not produce the best

result for concise and

informative citational

clarity.’

8

know about, and eventually the world willknow the cause was some manner of mis-communication. If the same thing occurswith a legal document, the consequences willlikely not involve loss of life, but authors willnever know if poor citation styling resultedin miscommunication causing, at least inpart, the document to be unsuccessful inconvincing decisionmaking readers. Authors

will never know if poor compliance with alegal style guide, or an ill-considered deci-sion to break free of Professor Wright’s“Procrustean Bed,” caused the substance ofthe document to be discounted, perhapssubconsciously, or if it caused some form ofmiscommunication or misinterpretation ofcited authority. De cisionmaking readers whoare judges or members of appellate panelsare silent critics of styling.

In conclusion, competently conforming toone or the other of the legal style guidesspecified for use in California may inspireconfidence in readers that the substance ofthe document is also competent. Followingthe style guide provides authors with a lin-gua franca that facilitates precision, clarity,efficiency, and assurance that decisionmak-ing readers familiar with the “language” will

understand exactly whatthe author intended to cite,and be able to find whatwas cited.

On the other hand, thereare situations where slav-ishly conforming to a styleguide will not produce thebest result for concise andinformative citational clari-ty. When tempted to breakfree of Professor Wright’s“Procrustean Bed” for thatreason, keep in mind JudgePosner’s guiding principlesto aid in determining if youshould really “break free”for a particular reference.Unlike the international airtraffic control examples, ifan author makes badstyling choices, or simplydoes not competently fol-low the rules, the resultingcontribution to the “crash”

of the document will be indiscernible to theauthor. The decisionmaking readers arenever going to tell authors that poor stylingcaused those readers to discount the sub-stance of the document.

Edward Jessen has been the Reporter ofDecision for the California Supreme Courtand Courts of Appeal since mid-1989. EdithV. Lavin, an attorney in the Reporter’s Officesince 1997, assisted in pre par ing this article.

9

T ypography is the visual componentof the written word. Every docu-ment a litigator creates necessarily

involves typography.Court rules about typography, however,

are designed to ensure fairness to parties andproduce a minimum standard of readability.They’re not designed to produce good typog-raphy. As a lawyer, that’s your job.

As you consider the typography of your

documents, the most important principle isfollow the rules. Don’t take shortcuts. For in -stance, California Rules of Court, rule 2.107says “the left margin of each page must be atleast one inch.” Should you reduce the mar-gin to 0.75 inches, because you think it looksbetter? No. The rule is clear. Follow it.

Other rules, however, give you a fair

What Do the Rules of CourtReally Say About Typography?

By Matthew Butterick


Matthew Butterick

10

amount of typographic discretion. And whenthey do, use it. It’s not about being differentfor the sake of being different. It’s about fill-ing in what the rules deliberately leaveincomplete.

Nevertheless, 99.99 percent of court filingsin California look alike. Why? Is it becauseevery lawyer has read the relevant sectionsin the California Rules of Court and, in anextraordinary coincidence, interpreted themthe same way? No. It’s because lawyers lookat other filings, assume those filings complywith the rules, and then format their workthe same way. For instance, nearly everydocument filed in state court has two verticallines in the left margin, and a single verticalline in the right margin. That’s because therules say you have to include those lines —don’t they?

No, they don’t. (See rule 2.108.) If this sur-prises you, then read on. The rules are stricton certain issues, but otherwise offer plentyof latitude for lawyers who care about thepresentation of their written work. The mostimportant rules are 2.100 through 2.111. Irecommend you read the full text of thoseyourself, but, below, I cover some key points.

[Rule 2.100] The rules in this chapterprescribe the form and format of papers tobe filed in the trial courts…[Rule 2.102]One-sided paper: On papers, only one sideof each page may be used.

I endorse printing on both sides of thepaper — also known as “duplex printing” —because it saves trees and makes documentslook more like professionally printed materi-al. Though you can’t file duplex-printed doc-uments in Superior Court (rule 2.102), it’sfine to use duplex printing for your servicecopies (and there’s no duplex prohibition forbriefs filed at the Court of Appeal orSupreme Court). It not only saves paper, butalso postage — duplex-printed documentsare lighter and, therefore, cost less to mail.

[Rule 2.101] Recycled paper must be

used for…[a]ll original papers filed withthe court and all copies of papers, docu-ments, and exhibits, whether filed with thecourt or served on other parties…

[Rule 2.103] All papers must be on opaque, unglazed paper, white or un -bleached, of standard quality not less than20-pound weight, 8 1/2 by 11 inches.

The Rules of Court require recycledpaper, but, as with many things, there’s awide range of quality. The biggest problemwith cheap printer paper is that it’s slightlygrey instead of white, and slightly transpar-ent instead of opaque, both of which makeprinted text harder to read. If you care aboutthe presentation of your written work, findthe good stuff and use it.

[Rule 2.104] All papers must be printed…in type not smaller than 12 points.

In professionally printed materials, text isoften set at 9 to 11 point, not 12 point, whichusually looks overlarge. 12 point is a stan-dard in office typesetting only because of thetechnical limitations of the typewriter andthen the personal computer. These limita-tions are obsolete — even a budget laserprinter will produce very high resolutionpages. Rule 2.104 requires type “not smallerthan 12 points,” but I recommend that youdon’t make it any bigger, either. Keep itexactly 12 points. (But keep in mind thatTitle 8 rules applying to appellate briefsrequire a minimum of 13–point type.)

[Rule 2.105] The typeface must be essen-tially equivalent to Courier, Times NewRoman, or Arial.

I interpret the phrase “essentially equiva-lent” to mean that your font must have thegeneral legibility and length characteristicsof Courier, Times New Roman, or Arial. Idon’t interpret it to mean that you can useonly those three fonts. If the rule meantthat, it would’ve said so.

I disqualify Courier because it’s one ofmany bad typographic habits that’s been

11

held over from the typewriter era. We don’tuse typewriters, so please — don’t useCourier.

I disqualify Arial because it’s a sans-serif

font (i.e., a font without “feet” protrudingfrom the ends of the strokes, which are theserifs). Most books, newspapers, and maga-zines use serif fonts for body text. It’s the tra-ditional choice and still the best choice.

We’re left to choose from fonts that are“essentially equivalent” to Times New Ro -man. That’s still a wide range of fonts. On

your computer, you have options like Pala -tino, Baskerville, and Century Schoolbook.For even better results, you can buy a pro-fessional font and install it on your comput-er. For instance, if you like how the textlooks in the New Yorker, you can use theirfont (Adobe Caslon). For my legal writing, Iuse Equity, a font I designed for lawyers.

What about good old Times New Roman?Use it if you like, but bear in mind that it’sentrenched in the legal profession purely forreasons of history and habit. (Remember thevertical lines?) Rule 2.105 doesn’t require it.In my own litigation work, I’ve never filed adocument set in Times New Roman. Still, Iwon’t try to talk you out of it.

In return, please don’t email me to saythat “judges prefer it” to all other fonts. TheUnited States Supreme Court forbidslawyers from using Times New Roman, andnever uses it for its own published opinions.Chief Judge Frank Easterbrook of theSeventh Circuit is an outspoken critic ofTimes New Roman. The Seventh Circuit’stypographic guidelines encourage lawyers touse something else. I concur.

[Rule 2.107] The left margin of eachpage must be at least one inch from the leftedge of the paper and the right margin atleast 1/2 inch from the right edge of thepaper.

With point size (rule 2.104), I recom-mended that you stick to the minimum per-mitted size. But with margins, I recommendmaking them bigger than the rules permit.Before you exclaim “Larger margins? Thosewill waste my page count!” — hear me out.

On standard 8.5 by 11 inch paper, theminimum margins of rule 2.107 create a textblock that’s 7 inches wide. Wide lines werefine in the typewriter era, because type-writer fonts used a lot of horizontal space.But for traditional text fonts like Times NewRoman, it gives you a line length that’suncomfortably long. As you read, it’s harder

‘What about good old

Times New Roman?

Use it if you like, but

bear in mind that it’s

entrenched in the legal

profession purely for

reasons of history

and habit.’

12

for your eye to accurately jump to the begin-ning of each successive line.

Ideally, you want to fit about 45–90 char-acters per line, or 2–3 lowercase alphabets.With 12-point type, you’ll usually get themost comfortable line length with left andright margins between 1.5 and 2 inches.These larger margins will fully comply withthe rules.

“But what about my page count?” If you’rethe kind of litigator who’s not satisfied untilevery available square inch is filled withwords, ignore this tip. But if you’re a litigatorwho believes legal briefs should live up totheir name, and always ends up with someunused pages, making your margins larger isone of the best and easiest ways to improve

your document layout.The California appellate courts control

document length with word counts, not pagecounts. This is the more sensible technique. Ihope the rules governing trial courts eventu-ally follow suit. Page counts worked in thetypewriter age, because each page of type-writer output was uniform. But in the digitalage, they make less sense, because artful for-matting and layout can make documentsappear longer or shorter as needed. Also,every word processor has a word-count func-tion (which typewriters did not). Wordcounts would also allow some of the othertypographic rules to be relaxed.

[Rule 2.108] The lines on each pagemust be one and one-half spaced or double-spaced and numbered consecutively…Descriptions of real property may be sin-gle-spaced.

Double-spaced means line spacing that’stwice as large as the point size. Single-spaced means line spacing that’s the same asthe point size. Beware of your word proces-sor’s pre-fabricated “Double” and “Single”line-spacing options, which typically addmore space than this. For instance, at 12point, Microsoft Word’s “Double” line spacingis about 28 points, when it should be 24points. Use the “Exact” line spacing option inyour word processor to get it right.

Here we also find the least-exploited op -portunity in the set of relevant rules: you canuse “one and one-half” line spacing — with12-point type, that means 18-point line spac-ing, which works out to 37 lines per page.How is it possible that I’ve never seen a 37-line filing? Is it because California lawyersdon’t know about the rule, or because theydon’t know how to make a 37-line documenttemplate in their word processor?

When you don’t have to comply with acourt rule, the ideal line spacing for text isbetween 120 and 145 percent of the pointsize. For instance, with 12-point text, this

‘Caption pages are

the most difficult chore

in any litigation filing.

They are best handled

using tables in your

word processor.’

13

works out to 14.5–17.5 points of line spacing.[Rule 2.108] Line numbers must be

placed at the left margin and separatedfrom the text of the paper by a vertical col-umn of space at least 1/5 inch wide or asingle or double vertical line. Each linenumber must be aligned with a line oftype, or the line numbers must be evenlyspaced vertically on the page. Line num-bers must be consecutively numbered,beginning with the number 1 on each page.There must be at least three line numbersfor every vertical inch on the page.

Now the truth can be told: rule 2.108 givesyou the option of a “single or double verticalline” in the left margin, but it’s not required.And the rule says nothing about the rightmargin. So while these lines may be tradi-tional, I prefer to omit them. They’re extra-neous and just add clutter to the layout.

[Rule 2.111] The first page of each papermust be in the following form…

Caption pages are the most difficult chorein any litigation filing. They are best handledusing tables in your word processor. Tablesare obviously useful for grids of data, butthey can also be used as scaffolding for diffi-cult layouts. Add the cells you need, and atthe end, turn off all the borders.

I like to set up the top half of a captionpage with a table that spans the whole widthof the page. The first row has one table cellwith the attorney information in it, aligned tothe left. The second row has one table cellwith the name of the court, centered. Thethird row has two table cells. The left cellcontains the party names. The right cell con-tains the case number, document title, andso forth.

Using a table has three benefits. First, thetext in each part of the page is separatelycorralled, making it easier to control the rela-tive positioning. Second, the table stretchesto fit the text, so you don’t have to make for-matting adjustments when you start a new

document or a new case. Third, you can usetable borders to make the vertical and hori-zontal line that separates the party names(instead of stacked parentheses, which look

awful and are just another holdover from thetypewriter). Like the vertical lines of rules2.108, these lines aren’t required by rule2.111, but they add clarity and structure tothe page.

— Where Typography Fits In —That covers the major requirements of the

rules relating to Superior Court practice.While it seems detailed, there’s still plenty oftypographic territory left open, mostly in thearea of type composition and text format-ting. For instance: use one space between

‘Let’s be clear — no

case will ever turn on

whether you used one

space or two after each

sentence, or whether

you used a single

or double line in the

left margin.’

14

sentences (not two), don’t underline (it’sanother ugly holdover from the typewriterera), use caps for less than one line of text(not whole sentences or paragraphs), avoidexcessive formatting in headings, and putnonbreaking spaces after section and para-

graph marks (to keep them attached to thenumerical references that follow). (More tipscan be found at typographyforlawyers.com.)

Let’s be clear — no case will ever turn onwhether you used one space or two aftereach sentence, or whether you used a singleor double line in the left margin. But thetypographic impression a document makes isthe cumulative result of many small deci-sions. Taken in isolation, any one may seemtrivial. Collectively, they are not.

Moreover, typography is just one moreway you can improve the presentation ofyour argument. After all, do you show up tocourt in jeans and sneakers? No, of coursenot. You wear proper court attire, even

though there’s no rule that says you must.And when you speak to the judge, do youslouch at the lectern, eyes cast downward,and read from a script in a monotone? No, ofcourse not. You change the speed and vol-ume of your delivery. You gesture. You

extemporize. You do these things becauseyou don’t merely want to be heard — youwant to persuade. To persuade, you need tohold the judge’s attention. To hold that atten-tion, you want to present yourself and yourargument in the best possible way.

It’s the same on the printed page. Andthat’s why good typography is part of goodlawyering.

Matthew Butterick is an attorney, designer,and writer in Los Angeles. He is the author ofthe website and book Typography for Lawyers(typographyforlawyers.com), and the design-er of Equity, a font for lawyers (equityfont.com).

15

B ecause of my service as a judge andChair of the California SupremeCourt’s Advisory Committee on the

California Code of Judicial Ethics and myfamily history, I became interested in theGerman legal system and the roles of thejudiciary and judges in the years before andduring World War II. My parents wererefugees in the late 1930’s, my mother fromLithuania and my father from Germany. Both

made it safely to America. Millions of othersdid not.

This article is an overview of the Nazi Ger -man legal system and its judiciary andjudges. I will conclude with thoughts aboutAmerican justice and judicial ethics.

How were millions of lives destroyed andfreedoms stolen as an official policy and

When Mass Murder and Theftof All Human Rights Were “Legal”:

The Nazi Judiciary and Judges

By Hon. Richard D. Fybel


Hon. Richard D. Fybel

16

practice of a nation state in the civilizedworld in the twentieth century? The chilling,core message is that everything the Nazis didwas “legal” under the German legal system atthe time.

— Anti-Jewish Laws —In January 1933, Germany had a civil code

enacted in 1898 and an established and wellorganized legal system. Hitler was legallyappointed Chancellor. The Nazis recognizedand emphasized reliance on their writtenlaws as a source of state authority. Theyacted to establish their rule “within theframe work of traditional law.” (DiemutMajer, “NonGermans” under the ThirdReich: The Nazi Judicial and Admini -strative System in Germany andOccupied Eastern Europe, with SpecialRegard to Occupied Poland, 19391945,trans. Peter Thomas Hill, Edward Vance, andBrian Levin (Baltimore, MD: John HopkinsUniversity Press, 2003), p. 6.)

Anti-Jewish laws enabled the state —essentially the Nazi party and the police —to ignore individual liberties. These lawswere enacted on an incremental and funda-mental basis.

In February 1933, relying on the Germanconstitution, President von Hindenburg andChancellor Hitler issued an emergencydecree “for the Protection of the People andthe State.” The decree suspended sections ofthe constitution affecting freedom of thepress and individual rights. (William F.Meinecke Jr. and Alexandra Zapruder, Law,Justice, and the Holocaust (Washington,DC: United States Holocaust MemorialMuseum, 2009), p. 810.)

Although many rights were in suspense,Germany still had a constitution. But theconstitution permitted it to be changed by atwo-thirds vote of a quorum of the nationallegislature, the Reichstag. The Enabling Lawof March 1933 empowered Hitler to enact

legislation deviating from the constitutionfor four years. By this law, the Reichstageffectively voted itself out of existence andgave Hitler dictatorial powers.

When von Hindenberg died in August1934, Hitler became Führer, the “Leader andReich Chancellor.” This act was ratified by anationwide plebiscite. (Richard J. Evans,The Third Reich in Power: 1933-1939(New York: Penguin Books, 2005), p. 42.)

German judges began taking an oath tofollow Hitler. The new oath eliminated theformer oath’s reference to their country’sconstitution. Both oaths maintained a judge’sduty to observe (or be obedient to) the law.(As of August 20, 1934, the oath became: “Iswear I will be true and obedient to theFührer of the German Reich and people,Adolf Hitler, observe the law, and conscien-tiously fulfill the duties of my office, so helpme God.” Before this change, the oath hadread: “I swear loyalty to the Constitution,obedience to the law, and conscientious ful-fillment of the duties of my office, so helpme God.” (Meinecke and Zapruder, Law,Justice, and the Holocaust, p. 20.) Notethat both oaths ended with “so help meGod.”

Next, by executive decree and emergencylegislation, all public assemblies in Germanywere subject to prior police approval. Allpublic assemblies, which could pose a poten-tial threat to public order and security, wereprohibited. A ban was placed on publicationswhose content was likely to endanger publicsecurity and order. All rights under the Ger -man Constitution were suspended by lawand replaced by a new law directed against“treacherous acts against the Government ofthe National Revolution.”

Cities proclaimed and enforced their ownlaws excluding Jews from public life and pro-fessions in Germany. A powerful pictureshows lawyer Dr. Michael Siegel paradedthrough the streets of Munich in March

17

1933, with a sign around his neck, reading, “Iam a Jew and I will never again complain tothe police.”

Even more decrees were issued from theReich ministries covering everything fromforbidding Jews from attending theaters andmovies, expelling all Jews from Germanschools, freezing all Jewish property andassets, to organizing Kristallnacht. TheNazis also persecuted gypsies, Jehovah’s

Witnesses, the mentally and physically dis-abled, and homosexual persons.

In November 1938, all Jewish newspapersand magazines were ordered to stop publi-cation; all Jewish cultural activities weresuspended indefinitely; and all Jewish chil-dren were ordered out of elementaryschools. It became a crime for a Jew to pos-sess a weapon.

The Special Court (the VGH) and— the German Supreme Court’s —Interpretation of Anti-Jewish LawsIn April 1934, the Nazis created a special

court, the National Socialist Peoples Court(VGH), in which the judge became thestate’s investigator and prosecutor. Judgeswere retained and appointed because oftheir “loyalty to the National Socialist state.”(H. W. Koch, In the Name of the Volk:Political Justice in Hitler’s Germany(New York: I.B. Tauris, 1997), p. 4.)

The judiciary’s own acknowledged pur-pose was not to dispense justice, but, in thewords of a state prosecutor, “to annihilatethe enemies of National Socialism.” (IngoMüller, Hitler’s Justice: The Courts of theThird Reich (Cambridge, MA: HarvardUniversity Press, 1994), p. 141.) The VGHhad jurisdiction over Germany and all occu-pied territories. (Koch, In the Name of theVolk, p. 5.) Indeed, by 1939, the court hadbecome “a direct tool of the state executive”and completely subservient to the Gestapo.(Id. at p. 57.) The Gestapo itself “neverbowed to the principle of control of policeaction by the courts.” (Majer, “Non-Germans” under the Third Reich, p. 350.)

What was the reaction of the judiciary tothe anti-Jewish laws and conduct of thepolice? According to Rabbi Leo Baeck, theleader of Berlin’s Jewish community: “Theuniversities were silent, the courts weresilent.…” (Eva Fogelman, Conscience &Courage: Rescuers of Jews during the

‘The judiciary’s own

acknowledged purpose

was not to dispense

justice, but, in the

words of a state

prosecutor, “to

annihilate the enemies of

National Socialism.”’

18

Holocaust (New York: Anchor Books, 1994),p. 24.) Indeed, as historian and Pulitzer Prizewinner Saul Friedländer has observed, “Notone social group, not one religious communi-ty, not one scholarly institution or profession-al association in Germany and throughoutEurope declared its solidarity with theJews.…” (Saul Friedländer, The Years ofExtermination: Nazi Germany and theJews, 1939-1945 (New York: HarperPerennial, 2008), p. xxi.)

In 1935, the “Nuremberg Laws” werepassed by the Nazi Party Congress. This“Reich Citizenship Law” deprived GermanJews of citizenship, limiting German citizen-ship to persons of German or “kindredblood.” The legal rights of Jews were can-celled and their voting rights were abolished.A decree ordered dismissal of all Jewish pro-fessors, teachers, physicians, lawyers, andnotaries. These laws also prohibited inter-marriage and “extramarital relations” be -tween Jews and non-Jews. The penalty wasdeath. All laws were enforced by the police.

The judiciary and judges fully cooperatedin these actions against the Jews. Indeed, theSupreme Court of Germany broadly inter-preted and enforced the Nuremberg RaceLaws. The written opinion of the SupremeCourt regarding the Nuremberg Laws is adramatic example of its aggressive interpre-tation of law. According to the court, theNuremberg “Law for the Protection ofGerman Blood and German Honor” forbids“extramarital relations between Jews andsubjects of the state of German or relatedblood.…” A government “ordinance” thendefined extramarital relations as “sexual rela-tions.” The Supreme Court stated the mean-ing of that term “is left for the courts todecide.” In its opinion issued in December1936, the Supreme Court held, among otherthings, that “sexual relations” consisted ofany act that satisfied the sex urge; a verbal

proposition for sex violated the law; and thecrime did not require bodily contact.(Meinecke and Zapruder, Law, Justice, andthe Holocaust, pp. 32-34.)

By 1942, the German Ministry of Justiceannounced that the Führer had the right tointervene in all judicial rulings “over and

above all existing formal arrangements.”(Majer, “Non-Germans” under the ThirdRiech, p. 361.) From late 1942, Jews werenot subject to its jurisdiction because theywere all deemed to be “inferior people,” and“not worthy of the rule of law.” (Koch, In theName of the Volk, p. 5; Majer, “Non-Germans” under the Third Riech, p. 365.)

‘We have observed

the coordination of

the entire judiciary

into the Nazi system.

What was the role of

individual judges?’

19

— The Rationale of the Judiciary —What was the underlying rationale that

supported the judiciary’s role as an instru-ment of Nazi state power?

According to one scholar, “[t]here wereessentially three principles that were held to

be axiomatic for the entire field of adminis-tration as well as the judiciary: the principleof absolute rule by a leader (the Führer prin-ciple), the principle of authority of the partyover the state, and the influence of race asthe fundamental principle guiding affairs ofstate (‘racial inequality’).” (Majer, “Non-Germans” under the Third Riech, p. 10.)Another historian agrees: “The purpose ofthe law, in the eyes of the Nazis, was not toapply long-held principles of fairness andjustice, but to root out the enemies of thestate and to express the true racial feeling ofthe people.” (Evans, The Third Reich inPower, p. 73.)

According to an historian, “the first andforemost task of the judiciary was to subor-dinate itself to the totalitarian will ofNational Socialism.” (Koch, In the Name ofthe Volk, p. 84.)

— Individual Judges —We have observed the coordination of the

entire judiciary into the Nazi system. Whatwas the role of individual judges? Accordingto one author, the “German legal profession,above all judges, had fully succumbed to thepower of corruption, not in the material butin the ethical sense.” (Koch, In the Name ofthe Volk, p. 119.) As he describes, the judgesentered a “moral abyss.” (Id. at p. 120.)

The most comprehensive study of thisquestion concluded that “not a single judgeappears to have resigned in protest.” (Koch,In the Name of the Volk, p. 119.) Indeed, noauthor I have discovered has confirmed theresignation of any German judge in protestof the acts of the Nazis, or to protest the“coordination” of the judiciary into the Nazistate. (Id. at p. 119.) One judge did complainto authorities about “injus-tice…masquerading in the form of law” con-cerning the treatment of the mentally ill; hewas allowed to quietly retire in late 1940

‘Whether the number

of judges who resigned

or retired in protest was

none, one, or two, the

total is meager. The

German judges who

continued to perform

their jobs without

question did the work

of the Nazis.’

20

with a pension. (Müller, Hitler’s Justice, pp.193-95.) In addition, one source quotes awoman who claims that her father, a judge inMarburg, Germany, refused to join the NaziParty in 1936, and, as a result, he “was sum-marily dismissed from the judiciary but man-aged to land a job as a court messenger.”(Fogelman, Conscience & Courage, pp. 23-24.)

Whether the number of judges whoresigned or retired in protest was none, one,or two, the total is meager. The Germanjudges who continued to perform their jobswithout question did the work of the Nazis.The president of the court declared that“[t]he German judicial system can take pridein being the first branch of government inthe Third Reich to carry out in its personnelpolicies, throughout the Reich and at all lev-els of civil service, the principle that themovement, the people, and the state areone.” (Müller, Hitler’s Justice, p. 192.)

Scholars agree that the “judiciary largelycontributed to its own demise.” (Majer,“Non-Germans” under the Third Reich, p.352.) In particular, it “actually promoted [itsown] takeover by close cooperation with thepolice.” (Ibid.) The judiciary complied withthe Nazis with “zeal.” (Id. at p. 361.)

A question that naturally arises is: Whydid the German judges so willingly coordi-nate themselves in the Nazi system andenforce its doctrines?

A key scholar argues: As Nazis, they“believed that a state was not only empow-ered but also obliged to override individualcivil rights in the interest of creating an eth-nically homogeneous nation.” (ClaudiaKoonz, The Nazi Conscience (Cambridge:Belknap Press of Harvard University Press,2005), p. 168.) Koonz states the Nazis“denounced the idea of universal humanrights, saying: Not every being with a humanface is human.” (Id. at pp. 1-2.) As shedescribes, “[t]his belief expressed the

bedrock of Nazi morality.” (Id. at p. 2.) This“morality” was a combination of “biologicaltheories and racist passions.” (Ibid.) Koonzpowerfully wrote, “ethnic Germans wereexhorted to expunge citizens deemed alienand to ally themselves only with people sanc-tioned as racially valuable. The road toAuschwitz was paved with righteousness.”(Id. at p. 3.)

Koonz’s explanation joins many other the-ories on why Nazi civil servants coordinatedthemselves with the Nazi system. Why wouldmany of the same people who were judgesbefore Hitler make decisions according toNazi doctrine? Were their actions driven bynationalism or racial pride? Were they con-cerned their careers were threatened? Didthey seek to advance their own careers?Were they afraid of the Nazis for the safety ofthemselves and their families? Were they justfollowing orders?

German judges after the war claimed theywere victims, too, and were only followingthe “law.” Those judges argued they did nothave the power of “judicial review” of execu-tive and legislative acts and their only jobwas to follow and “interpret” the law.

Last year, I had the honor of engaging inan extensive conversation with Nobel PeacePrize Laureate Professor Elie Wiesel. He saidthe German judges ignored the impact oftheir decisions on individual people anddemonstrated a total absence of “humanity.”

Whatever the reason or combination ofreasons, it is manifestly true that the Germanjudges coordinated themselves into the Nazisystem and were ethically corrupt. As suc-cinctly stated by a leading scholar, the “prin-ciple of [the] rule of law [is] not compatiblewith that of authoritarian leadership.” (Majer,“Non-Germans” under the Third Reich, p.351.) As she observed, judges became“immediately answerable to the Führer”(italics omitted). This reality “representedthe climax of the destruction of judicial inde-pendence.” (Id. at p. 23.)

21

Important Contrasts— with Jurisprudence —

in the United StatesI wish to conclude this article with observa-

tions about jurisprudence in the United Statesduring World War II and today. First, ourjudges take oaths to uphold the Constitutionsof the state and the United States, not to aperson or officeholder. Second, in the UnitedStates, judges have the power and responsi-bility of judicial review of legislative and exec-utive actions.

The point of judicial review is best illustrat-ed by the opinion of the United StatesSupreme Court in mid-1943 during the war, inBoard of Education v. Barnette (1943) 319U.S. 624. In Barnette, the Supreme Courtruled that students who were Je hovah’sWitnesses could not be compelled to pledgeallegiance to and salute the American flag.Justice Robert Jackson, writing for theSupreme Court, eloquently stated: “The verypurpose of a Bill of Rights was to withdrawcertain subjects from the vicissitudes of politi-cal controversy, to place them beyond thereach of majorities and officials and to estab-lish them as legal principles to be applied bythe courts. One’s right to life, liberty, andproperty, to free speech, a free press, free-dom of worship and assembly, and other fun-damental rights may not be submitted tovote; they depend on the outcome of no elec-tions.” (Id. at p. 638.)

Justice Jackson continued: “If there is anyfixed star in our constitutional constellation, itis that no official, high or petty, can prescribewhat shall be orthodox in politics, national-ism, religion, or other matters of opinion orforce citizens to confess by word or act theirfaith therein. If there are any circumstanceswhich permit an exception, they do not nowoccur to us.” (Board of Educa tion v.Barnette, supra, 319 U.S. at p. 642.)

In California, judges are required to decide

cases regardless of partisan interests andwithout bias or prejudice. Canon 3B(2) of theCalifornia Code of Judicial Ethics mandatesthat “[a] judge shall be faithful to the lawregardless of partisan interests, public clam-or, or fear of criticism.…” and Canon 3B(5)provides: “A judge shall perform judicialduties without bias or prejudice. A judge shallnot, in the performance of judicial duties,engage in speech, gestures, or other conductthat would reasonably be perceived as (1)bias or prejudice, including but not limited tobias or prejudice based upon race, sex, reli-gion, national origin, disability, age, sexualorientation, or socioeconomic status.…”

— Lessons, Gratitude —and Confidence

I have researched Nazi German legal histo-ry because we can learn important lessonsfrom the catastrophic ethical corruption of itsjudiciary and judges.

When my mother and father were onboard ships entering New York harbor, I imag-ine each of them thought, in Yiddish, theywere arriving in der goldenach medinah,the golden land, America. As their son, I amgrateful to our nation and the opportunities ithas afforded to me and my family. As a judge,I am confident our judiciary and judges willcontinue to uphold their oaths, our Con -stitution and the values of impartiality,integrity, due process of law, liberty and equaljustice.

Richard D. Fybel is an Associate Justice of theCalifornia Court of Appeal, Fourth District,Division Three (Santa Ana). This article isadapted from the chapter authored by JusticeFybel entitled, “The Absence of Judicial Ethicsand Impartiality: The German Legal System,1933-1945,” in National Security, CivilLiberties, and the War on Terror, a book editedby M. Katherine B. Darmer and Richard D.Fybel (New York: Prometheus Books, 2011).

22

A ttorney disbarment or suspensionis an all-too-common occurrence atthe state level, much less so in fed-

eral jurisdictions. The most frequent groundsfor an attorney’s exit from the federal playingfield is reciprocal discipline — the federalcourt carrying out the same discipline previ-ously meted out by a state bar or state

supreme court. Similarly swift and summaryaction is taken for attorneys convicted of anycrime that calls into question the fitness topractice law. (Standing Committee v. Ross(9th Cir. 1984) 735 F.2d 1168, 1170-1171.)

Ethical Practice:How the Feds Enforce It

By Charles G. Gomez


Charles G. Gomez

23

Disbarment or suspension for other formsof attorney misconduct that occur before

federal courts varies widely within the NinthCircuit. The reason is two-fold: First, impos-

ing sanctions for attorney misconduct is dis-cretionary. Second, there are no uniformstandards for determining what constitutesmisconduct and appropriate punishment forattorney misconduct. In fact, except for thegeneral disciplinary rules under FederalRules of Appellate Procedure (FRAP) 46,the Ninth Circuit has made clear that dis-tricts within the circuit are free to developtheir own disciplinary rules and grounds forpunishment. (In re Crayton (9th Cir. 1996)192 B.R. 970, 976, fn. 7.) In essence, whenfaced with sanctionable attorney miscon-duct, judges within the circuit get to call it asthey see it.

The amorphous nature of attorney disci-pline is rooted in the broad-brush standardof FRAP 46(b), which provides that an attor-ney is subject to suspension or disbarmentwhen “guilty of conduct unbecoming a mem-ber of the court’s bar.” This is obviouslymurky.

— Conduct Unbecoming —The Supreme Court defines “conduct un -

becoming” as any conduct “contrary to pro-fessional standards that shows an unfitnessto discharge continuing obligations to clientsor courts, or conduct inimical to the adminis-tration of justice.” (In re Snyder (1985) 472U.S. 634, 645.) Thus, just about any form ofnegligence, inattention, incompetence orbreach of any statutory or professional dutyin the course of practice may subject anattorney to discipline in federal court. Forinstance, Ninth Circuit districts naturallytake a dim view of attorney misrepresenta-tions, but the resulting discipline is generallylimited to a brief suspension.

Thus, in DCD Programs, Ltd. v.Leighton (9th Cir. 1988) 846 F.2d 526, anattorney was suspended from the Circuit fortwo months for misrepresenting the findingsof the district court on appeal. The disci-plined attorney claimed unintentional negli-

‘The Supreme Court

defines “conduct

un becoming” as any

conduct “contrary to

professional standards

that shows an unfitness to

discharge continuing

obligations to clients or

courts, or conduct inimical

to the administration

of justice.”’

24

gence, but even intentional misrepresenta-tion may result in only a few more months ofsuspension. In the matter of In Re: Thomasv. Girardi (9th Cir. 2010) 611 F.3d 1027, theCircuit found that two attorneys intentionallymisrepresented the name of a corporatedefendant on a foreign judgment they wereattempting to enforce in U.S. federal court.The resulting suspension: six months.

Inflated fees are also a form of misrepre-sentation that might lead to disciplinary pro-ceedings. For instance, in a class-action set-tlement proceeding before the Eastern Dis -trict of Washington, the judge found coun-sel’s requests for reimbursement for exces-sive billing and inflated and inappropriateexpenses were sanctionable, but limited thediscipline to either a formal admonition or aformal written reproval. (Plumbers UnionLocal No. 12, Pension Fund v. Ambas sa -dors Group, Inc. (E.D. Wash.) No. CV-09-214-JLQ, 5/25/2012, Memorandum Re:Attorney Fee Lodestar Calculations andRequested “Expenses and Disbursements”Reimbursements.)

On the other hand, attorney incompe-tence can lead to longer suspensions or dis-barment. In a published 1975 opinion, theCircuit indefinitely suspended a criminaldefense attorney for unduly delaying a crimi-nal appeal, but left open the possibility ofreinstatement if the disciplined attorneymade an adequate showing that he had“acquired knowledge of and experience withthe Federal Rules of Appellate Procedureand the rules of [the Circuit].” (In ReMargolin (9th Cir. 1975) 518 F.2d 551; seealso Matter of Withey (9th Cir. 1976) 537F.2d 324, 326.)

In Crayton, an attorney was permanentlydisbarred from filing Chapter 11 casesbecause he admitted in a disciplinary hearingto being “incompetent to practice Chapter 11bankruptcy law.” (In re Crayton, supra, 192B.R. at p. 979.) Disbarment is an easy call

when an attorney admits s/he does not knowhow to play the game.

Reining in attorney incompetence does

not always require a permanent ban. In thecase of In Re Nguyen (9th Cir. 2011) 447B.R. 268, the Circuit upheld wide-rangingsanctions imposed by the bankruptcy courtagainst an attorney whose “incompetenceand shoddy office practices” resulted in non-attorneys from his office advising clients andpracticing law. The disciplined attorney wassuspended until he completed 10 hours oflegal education in bankruptcy law and ethicsand was thereafter permanently enjoinedfrom filing any bankruptcy case or schedulesunless an attorney conducted the initial

‘Failure to prosecute

is also considered

unbecoming conduct

that may lead to

suspension, but

rarely disbarment.’

25

client interview and counseled the debtor onasset disclosure. The disciplined attorney wasalso permanently enjoined “from allowing hiswife or other non-attorney in his office to give

legal advice.” (Id. at pp. 275, 283.)Failure to prosecute is also considered

unbecoming conduct that may lead to sus-pension, but rarely disbarment. (See In reGadda (9th Cir. 2004) 377 F.3d 934, 946-947[surveying failure-to-prosecute cases and,citing only one instance of indefinite suspen-sion].) In Matter of Chandler (9th Cir. 1971)450 F.2d 813, an attorney was subjected todisciplinary proceedings for both derelictionof duty (failure to prosecute appeal) andmisrepresentations to the court and herclient. Although the Circuit was inclined todisbarment, since it was the attorney’s first“serious offense,” a three-year suspensionwas deemed sufficient “to protect potentialclients, as well as this court…against similarneglect of duty, incompetence and chi-canery.” (Id. at p. 814.)

Attorney misconduct undermining theauthority of the court is another quick exitfrom federal practice. For instance, inPacific Harbor Capital, Inc. v. CarnivalAir Lines Inc. (9th Cir. 1999) 210 F.3d 1112,a Florida attorney was barred from appear-ing pro hac vice before an Oregon districtcourt, in part, for advising his client toengage in conduct that had been specificallyand immediately prohibited by the court’sissuance of a TRO. (Id. at pp. 1118-1119).(Co-counsel from Florida was also barredfrom appearing pro hac vice for the addi-tional misconduct of engaging in misrepre-sentations to the court. (Id. at pp. 1119-1120).) The Circuit upheld the ruling, find-ing ample evidence that the attorney’s con-duct was made in bad faith.

— Suspension for Talking Back? —While the foregoing examples are repre-

sentative of clear-cut areas of misconductthat lead to suspension or disbarment, con-duct that “impugns the integrity of thecourt” remains a highly contested groundfor discipline. This is because conductimpugning the integrity of the court typical-ly involves some form of attorney speech

‘What if an

attorney’s harsh

criticism is trained

directly on a federal

judge? Does such

unbecoming conduct

“impugn the integrity

of the court” or “interfere

with the administration

of justice?”’

26

that a federal judge just “didn’t like,” with theresulting disciplinary dispute devolving intoan exploration of the limits of free speech.

The Supreme Court’s seminal opinion onattorney criticism of the court as “unbecom-ing attorney conduct” is In re Snyder,supra, 472 U.S. 634, where an attorney wassuspended for six months for writing a letterto a North Dakota district court secretaryharshly criticizing the manner of the court’sadministration of appointed criminal defensecounsel fee claims under the Criminal JusticeAct. The attorney appealed his discipline ongrounds of protected free speech and denialof due process for lack of proper notice, andalso argued that his letter did not rise to thelevel of unbecoming conduct. (Id. at p. 642.)After the Eighth Circuit upheld the suspen-sion order based on its determination thatthe “contumacious” letter demonstrated anunfitness to practice law in federal court, theSupreme Court reversed. (Id. at pp. 645-646.) Avoiding the constitutional issues, theSupreme Court limited its ruling to whetherthe letter violated FRAP Rule 46 — the pro-hibition on unbecoming conduct. (Id. at pp.642-643.) It did not. Although the SupremeCourt recognized the need for civility, it con-cluded that the “ill-mannered” tone of theletter did not “rise to the level of conductunbecoming a member of the bar” or demon-strate an unfitness to practice law in federalcourts. (Id. at p. 647.) Criticism directed at acourt employee regarding the administrationof the Criminal Justice Act is simply notcause for discipline. (Id. at p. 646.) Thus,attorney condemnation of court staff may bein poor taste, but it seems unlikely to get youejected from court.

What if an attorney’s harsh criticism istrained directly on a federal judge? Doessuch unbecoming conduct “impugn theintegrity of the court” or “interfere with theadministration of justice?” According to theNinth Circuit, probably not, as considerations

of free speech will prevail in all but the mostextreme cases.

In the now infamous dispute between civilrights attorney Stephen Yagman and Cali for -nia’s Central District Court, the Ninth Circuitwas asked to consider the appropriatenessof disbarring Yagman for engaging in a wide-ly publicized attack on the personal charac-ter of Central District Judge William Keller,including claims of anti-semitism.(Standing Committee v. Yagman (9th Cir.1995) 55 F.3d 1430.) However distasteful,the Circuit found that Yagman’s public dis-paragement of Judge Keller amounted tonothing more than rhetorical hyperbole and

27

mere name calling that did not rise to thelevel of impugning the integrity of the court.(Id. at p. 1440.)

The Central District’s Standing Committeealternatively argued that Yagman’s harsh and

intemperate criticism was motivated byjudge-shopping to force Judge Keller to

recuse himself from all future assignments tocases involving Yagman, thereby interferingwith the administration of justice. The NinthCircuit found that the Committee applied thewrong standard, and that possible futureinterference was not a proper basis for dis-barment. (Standing Committee v. Yagman,supra, 55 F.3d at pp. 1444-1445.) An attor-ney’s misconduct must “immediately imperil”the administration of justice to serve as abasis for disbarment. (Id. at p. 1444, citingCraig v. Harney (1947) 331 U.S. 367, 376.)

Had Yagman made specific allegations ofjudicial misconduct that had been disprovenby the Standing Committee, the result wouldhave been markedly different. For instance,Yagman alleged that Judge Keller had beendrunk on the bench, but the StandingCommittee failed to present evidence estab-lishing the falsity of Yagman’s allegation.(Standing Committee v. Yagman, supra,55 F.3d at pp. 1441-1442.) The Circuit wouldlikely have found impugnment had the Com -mittee made the requisite findings. Rantingsby an attorney against the judicial system, itsjudges and administrators may be unseemlyfor an officer of the court, but such conductgenerally falls within the penumbra of pro-tected speech.

There may be no uniform disciplinarystandards guiding judges and attorneys prac-ticing in the Ninth Circuit, but there is clearlya lesson to be learned from those that stum-bled into the history books. If you need tokick up a little dirt and complain about ajudge’s call or the unfair turnings of thewheels of justice, do it on your own time.Federal practice is a privilege that requireseveryone to play by the same rules. Breakthose rules and you may find yourself headedfor a cold shower.

Charles G. Gomez of the Los Angeles office ofManatt, Phelps & Phillips, LLP practices civillitigation.

‘There may be no

uniform disciplinary

standards guiding judges

and attorneys practicing

in the Ninth Circuit,

but there is clearly a

lesson to be learned from

those that stumbled into

the history books.’

28

Kimberly A. Kralowec

Evidentiary Extrapolations inCalifornia Class Actions:

Guidance from Brinker

By Kimberly A. Kralowec


When the Supreme Court issued itsopinion in Brinker RestaurantCorp. v. Superior Court (Hohn -

baum) (2012) 53 Cal.4th 1004, many classaction attorneys anticipated a landmark rul-ing on the use of evidentiary extrapolations— from representative testimony, expert sur-vey evidence, and/or expert statistical sam-pling evidence — as a method of commonproof in class litigation.

The expectation was not unjustified. The

plaintiff workers had proffered such evidenceas a means of adjudicating certain of theirmeal period, rest break, and off-the-clocktheories class-wide, and as a way to manageany individualized questions that might arisein litigating those theories. The Court ofAppeal addressed the issue in its opinion(holding that any expert survey and statisti-cal evidence that plaintiffs could present

29

would be insufficient as a matter of law).The parties’ merits briefs covered it indepth, and the press had taken note. (E.g.,Ernde, Sleeper issue buried in Brinker:Plaintiffs’ lawyers seek to use statisticsand surveys to prove claims, S.F. DailyJournal (Oct. 17, 2011).)

Interest in the use of evidentiary extrapo-lations had been further heightened by Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct.2541, in which the U.S. Supreme Courtexamined this type of evidence in the con-text of Federal Rule of Civil Procedure 23,and by the Court of Appeal’s opinion inDuran v. U.S. Bank National Association(2012) 203 Cal.App.4th 212, review grantedMay 16, 2012, S200923, which suggestedthat such extrapolations may be permissiblefor determining class-wide damages but notfor establishing class-wide liability.

While Brinker does not address the issuein depth, the majority and concurring opin-ions do provide some useful guidance forfuture cases.

Justice Werdegar’s— Concurrence and the —

Importance of ManageabilityJustice Werdegar wrote the majority opin-

ion in Brinker. She is also the author ofSav-on Drug Stores, Inc. v. SuperiorCourt (2004) 34 Cal.4th 319, a leading deci-sion on predominance under Code of CivilProcedure section 382. The first place tolook for guidance on evidentiary extrapola-tions is her concurring opinion in Brinker,which was joined by Justice Liu.

As explained in the majority opinion, pre-dominance hinges on “whether the elementsnecessary to establish liability are suscepti-ble of common proof or, if not, whetherthere are ways to manage effectively proofof any elements that may require individ-ualized evidence.” (Brinker, supra, 53Cal.4th at p. 1024, italics added, citing Sav-

on, supra, 34 Cal.4th at p. 334.) Put anotherway, even if some elements of a claim cannotbe established with common proof, and thusrequire individualized evidence, class certifi-

cation can nonetheless be granted. The rele-vant question from a predominance stand-point is whether the individualized evidencecan be managed. (See ibid.; see alsoLockheed Martin Corp. v. Superior Court(2003) 29 Cal.4th 1096, 1105-1106 (maj.opn. of Wer degar, J.) [certification of anytype of claim is potentially proper, “so long asany individual issues the claims present aremanageable”].)

‘One way of making

individualized questions

manageable is to

extrapolate class-wide

conclusions from

evidence found to be

representative of members

of the class.’

30

One way of making individualized ques-tions manageable is to extrapolate class-wideconclusions from evidence found to be repre-sentative of members of the class. Evidenti -ary extrapolations can be drawn from the tes-timony of a subset of class members, a formalsurvey devised and conducted by a qualified

expert, statistical sampling of records, andthe like. In her concurring opinion, JusticeWerdegar emphasized the Supreme Court’s“historic endorsement of a variety of methods

that render collective actions judicially man-ageable.” (Brinker, supra, 53 Cal.4th at p.1052 (conc. opn. of Werdegar, J.).) Thesemethods are core to the class action processbecause they “enable individual claims thatmight otherwise go unpursued to be vindicat-ed,” and “avoid windfalls to defendants thatharm many in small amounts rather than afew in large amounts.” (Id. at p. 1054.)

In particular, in class litigation, “[r]epre -sentative testimony, surveys, and statisticalanalysis all are available as tools” to makeindividualized questions manageable andcommon questions predominant. (Brinker,supra, 53 Cal.4th at p. 1054 (conc. opn. ofWerdegar, J.), citing Sav-on, supra, 34Cal.4th at p. 333 & fn.6; Bell v. Farmers Ins.Exchange (2004) 115 Cal.App.4th 715, 749-755; Dilts v. Penske Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638.) JusticeWerdegar described these as “settled princi-ples” of California class action jurisprudence.(Id. at p. 1055.)

Justice Werdegar’s choice of supportingcitations is significant. In Bell, expert statisti-cal extrapolations were found admissible andprobative to establish the employer’s liabilityfor unpaid overtime wages and the amount ofwages owed. (Bell, supra, 115 Cal.App.4th atpp. 749-755; see Sullivan v. Oracle Corp.(2011) 51 Cal.4th 1191, 1208 [employee mis-classification, standing alone, is not unlawful;liability attaches upon employer’s failure topay earned overtime].) Dilts held explicitlythat “[a]s to liability, the use of statistical sam-pling, at least when paired with persuasivedirect evidence, is an acceptable method ofproof in a class action.” (Dilts, supra, 267F.R.D. at p. 638.)

The same holds true when it comes toaffirmative defenses that may raise individu-alized issues. Such affirmative defenses “poseno per se bar” to class certification. (Brinker,supra, 53 Cal.4th at pp. 1053-1054 (conc.opn. of Werdegar, J.), citing Sav-on, 34

‘Justice Werdegar’s choice

of supporting citations is

significant. In Bell, expert

statistical extrapolations

were found admissible and

probative to establish the

employer’s liability for

unpaid overtime wages

and the amount of

wages owed.’

31

Cal.4th at pp. 334-338; Weinstat v. DentsplyInternat., Inc. (2010) 180 Cal.App.4th 1213,1235.) Again, class certification “will hinge onthe manageability of any individual issues.”(Id. at p. 1054, emphasis added.) Defensesthat “hinge liability vel non on considerationof numerous intricately detailed factual ques-

tions” are distinct from, and will be manageddifferently than, defenses that “raise only oneor a few questions and that operate not toextinguish the defendant’s liability but only todiminish the amount of a given plaintiff’srecovery.” (Ibid.)

Accordingly, there can be no doubt thatJustice Werdegar — author of five of theSupreme Court’s nine leading class certifica-

tion opinions since 2000 — accepts what theSupreme Court already recognized in Sav-on:that evidentiary extrapolations from repre-sentative evidence, including expert surveyand statistical evidence, may be freely usedas a method of common proof and as a way tomanage any individualized questions that theclaims or substantial defenses may present ina class action.

— Signposts in the —Majority Opinion

The majority opinion, likewise, contains aseries of signposts on the kinds of evidentiaryextrapolations that are permissible in Cali -fornia class actions.

The workers in Brinker had identified sev-eral distinct theories of liability against theemployer for its rest-break violations, one ofwhich was that, due to understaffing and re -sultant workload pressures, the employersystematically failed to meaningfully “autho-rize and permit” its workers to take restbreaks, in violation of the Industrial WelfareCommission’s Wage Orders. (See Brinker,supra, 53 Cal.4th at pp. 1018-1020.) Becausemissed rest breaks are not recorded, theworkers had proposed using a survey de -signed and conducted by a qualified expert,and had retained a statistician to analyze thesurvey results and extrapolate those resultsacross the class of restaurant workers. Thisevidence, accompanied by representative tes-timony of a selected group of class members,would establish the frequency and number ofmissed breaks, and coupled with other com-mon evidence of the employer’s policies andpractices, would thereby establish liabilityand damages on a class-wide basis. Theworkers proffered this evidence in support oftheir class certification motion under theauthority of Sav-on.

The trial court implicitly accepted theproffer, and granted class certification of therest break claim as a whole. The Supreme

‘The workers in Brinker

also claimed damages

for off-the-clock work,

arguing that the employer

unlawfully required

employees to work

while clocked out for

meal periods.’

32

Court affirmed that ruling in toto, withoutdrawing a distinction between violations. Therecord contained evidence of a common, uni-form rest break policy under which workerson an eight-hour shift would be allowed one,rather than two, rest breaks, and that evi-

dence, the Court determined, was sufficientto affirm the order certifying the entire restbreak claim for class treatment. (SeeBrinker, supra, 53 Cal.4th at p. 1033.)

In so holding, the Supreme Court declaredthat “[c]laims alleging that a uniform policyconsistently applied to a group of employeesis in violation of the [law] are of the sort rou-

tinely, and properly, found suitable for classtreatment.” (Brinker, supra, 53 Cal.4th at p.1033 (maj. opn. of Werdegar, J.), citingJaimez v. DAIHOS USA, Inc. (2010) 181Cal.App.4th 1286, 1299-1305; Ghazaryan v.Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1533-1538; Bufil v. DollarFinancial Group, Inc. (2008) 162 Cal.App.4th 1193, 1205-1208.)

Although the court did not mention theproffered statistical and survey evidence,Justice Werdegar’s selection of case cites isonce again significant. In Jaimez,Ghazaryan, and Bufil, the appellate courtsall reversed orders denying class certification.In Jaimez, in particular, the court acknowl-edged the propriety of evidentiary extrapola-tions in class cases, drawn both from repre-sentative testimony and from expert sam-pling: “[Plaintiffs] could attest to the typicalamount of overtime time they worked eachday, even in the absence of time records.…The possible use of survey evidence or testi-mony from a random and representative sam-pling of class members can certainly beexplored to facilitate the necessary calcula-tions.” (Jaimez, supra, 181 Cal.App.4th atpp. 1302-1303, italics added, cited withapproval in Brinker, supra, 53 Cal.4th at p.1033.)

The workers in Brinker also claimed dam-ages for off-the-clock work, arguing that theemployer unlawfully required employees towork while clocked out for meal periods.(Brinker, supra, 53 Cal.4th at pp. 1019,1051.) They once again proffered expert sur-vey and statistical evidence as a way of estab-lishing the frequency of such work. The trialcourt certified this claim for class treatment,but the Supreme Court reversed, finding theworkers had not “presented substantial evi-dence of a systematic company policy topressure or require employees to work offthe clock.” (Id. at p. 1051.) The workers’ the-ory that they were in fact clocked out “cre-

‘For unknown reasons, the

Court did not mention or

consider the proffered expert

testimony, but the opinion

nonetheless provides

guidance for those seeking

to establish such a

“systematic company

policy” in future cases.’

33

ates a presumption they are doing no work,”and “[n]othing before the trial court demon-strated how this [presumption] could be[rebutted] through common proof, in theabsence of evidence of a uniform policy orpractice.” (Id. at pp. 1051-1052.)

For unknown reasons, the Court did not

mention or consider the proffered expert tes-timony, but the opinion nonetheless providesguidance for those seeking to establish such a“systematic company policy” in future cases.

The opinion highlights three cases againstWal-Mart “in which off-the-clock classes[were] certified,” Salvas v. Wal-Mart Stores,Inc. (Mass. 2008) 893 N.E.2d 1187, 1210-11;Hale v. Wal-Mart Stores, Inc. (Mo. App.2007) 231 S.W.3d 215, 220, 225-28; andIliadis v. Wal-Mart Stores, Inc. (N.J. 2007)922 A.2d 710, 715-16, 723-24. (Brinker,supra, 53 Cal.4th at p. 1051.) In each ofthose cases, the appellate courts either af -firmed class certification (Hale) or reverseddenial of certification (Salvas and Iliadis);the Brinker opinion conspicuously did notcite the cases against Wal-Mart (relied on bythe employer) in which class certification wasdenied. In Hale, particularly, the court heldthat “a random sampling of the class” coupledwith “statistical analysis” of the sampleresults was a permissible way to manage“individual issues including injury in fact andproximate cause” in a classwide trial. (Hale,supra, 231 S.W.3d at p. 228.)

The types of evidence considered andfound sufficient in Hale, Salvas, and Iliadis,as well as in Jaimez, Ghazarian, and Bufil,may provide useful guidance for litigants infuture proceedings given their favorable cita-tion in Brinker.

While the Supreme Court’s Brinker deci-sion may not have been the watershed deci-sion many anticipated, the opinion nonethe-less provides helpful guidance on the use ofevidentiary extrapolations in class litigation.Further guidance is in the offing. The Su -preme Court has just granted review inDuran, in which the central issue, accordingto the docket, is “the use of representativetestimony and statistical evidence at trial of a[wage and hour] class action.” (Duran,supra, review granted May 16, 2012;S200923.)

Kimberly A. Kralowec, of The Kralowec LawGroup in San Francisco, served as lead appel-late counsel for the workers in Brinker.

‘While the Supreme

Court’s Brinker decision

may not have been the

watershed decision many

anticipated, the opinion

nonetheless provides

helpful guidance on the

use of evidentiary

extrapolations in class

litigation.’

34

M ost litigators are aware that com-pliance with the GovernmentClaims Act (Gov. Code, §§ 810-

996.6) is generally a prerequisite to suing apublic entity for damages. The issue of whatconstitutes compliance with the Claims Act iscurrently before the California SupremeCourt in Hope DiCampli–Mintz v. Countyof Santa Clara (2011) No. S194501, a casethat will decide whether delivery of a claim toa county’s risk management department sat-

isfies the Claims Act. This article presents anoverview of Claims Act requirements and dis-cusses how technically deficient claims maybe deemed sufficient under the substantialcompliance doctrine.

— Claim Presentation Requirements —The Claims Act came into being nearly 40

Alberto Boada

Complying with theGovernment Claims Act

By Alberto Boada


35

years ago as a legislative attempt to bring co -herence to what had previously been a con-fusing array of different requirements for su -ing public entities. Although relativelystraightforward and simple, the Claims Acthas generated its fair share of judicial at -tempts to decipher its meaning. Much of thisjurisprudence has been aimed at preventingthe Claims Act from becoming a “trap for theunwary,” while simultaneously protecting thepublic purse.

At first blush, it’s difficult to understandwhy plaintiffs, especially those representedby counsel, have such difficulty complyingwith the Claims Act. Its requirements for pre-sentation of claims are easy enough to follow.With certain exceptions, a timely claim formoney or damages must be presented to apublic entity’s clerk, secretary, auditor or gov-erning body prior to the filing of a lawsuit.Claims for personal injury or property dam-age must be presented within six months ofaccrual; all other claims must be presentedwithin one year. (Gov. Code, § 911.2.)

The public entity is required to give writ-ten notice of its rejection or of its inaction.(Gov. Code, § 913.) Failure to do so will typi-cally result in a waiver of any defense basedon untimeliness. (Gov. Code, § 911.3, subd.(b); Phillips v. Desert Hospital Dist. (1989)49 Cal.3d 699, 706.) If proper notice of rejec-tion is given, suit must be commenced withinsix months. (Gov. Code, § 945.6, subd.(a)(1).) If no notice or improper notice ofrejection is given, a claimant has two yearsfrom the accrual of the cause of action withinwhich to sue. (Gov. Code, § 945.6, subd.(a)(2).)

The claim must include the material factssupporting the alleged wrongdoing, but neednot specify each particular act or omissionlater proven to have caused the injury.(Stokett v. Association of Cal. Water Agen -cies Joint Powers Ins. Authority (2004) 34Cal.4th 441, 445.) Nor does the claim need to

specify a theory of liability. If a claimant relieson more than one theory of recovery, howev-er, each must be fairly reflected in the claim.Whether a cause of action is “fairly reflected”in a claim is generally subject to a rule of lib-eral interpretation. (Smith v. County of LosAngeles (1989) 214 Cal.App.3d 266, 280.)

If a claim is defective or incomplete, thepublic entity may notify the claimant of thedeficiency. (Gov. Code, § 910.8.) Otherwise,any defense as to the sufficiency of the claimis waived. (Gov. Code, § 911.) On the otherhand, letters or other documents that containno threat of litigation are not considered

‘The courts have

developed a doctrine of

substantial compliance

to determine whether

the claim presentation

requirements of the

Claims Act have

been satisfied.’

36

claims at all and trigger no duty on the part ofthe public entity to respond. (City ofStockton v. Superior Court (2007) 42Cal.4th 730, 744-745.)

— Substantial Compliance Doctrine —The courts have developed a doctrine of

substantial compliance to determine whetherthe claim presentation requirements of theClaims Act have been satisfied. Under thisdoctrine, a claim is valid if it substantiallycomplies with all Claims Act requirementseven though it is technically deficient in oneor more particulars. (Santee v. Santa ClaraCounty Office of Education (1990) 220Cal.App.3d 702, 713.) The doctrine is basedon the premise that substantial compliancefulfills the purpose of the Claims Act. That

purpose is to afford prompt notice and per-mit early investigation and evaluation of theclaim and informed fiscal planning in light ofpotential liabilities. (Sparks v. Kern CountyBd of Supervisors (2009) 173 Cal.App.4th794, 498.) The goal is not to prevent sur-prise, but rather is to provide the public enti-ty sufficient information to investigate claimsand to settle them, if appropriate, withoutthe expense of litigation. (City of Stocktonv. Superior Court, 42 Cal.4th at p. 738.)

DiCampli-Mintz illustrates the difficultyin predicting how courts will apply the sub-stantial compliance doctrine. The trial courtdismissed the case based on plaintiff’s failureto comply, but the appellate court reversedon the ground that substantial compliancehad occurred. The Court of Appeal went sofar as to credit plaintiff with streamlining theclaims process by sending her claim directlyto the risk management department, ratherthan to one of the recipients designated bythe Claims Act. After all, the court explained,had plaintiff presented her claim to the clerk,secretary or auditor as required by theClaims Act, that recipient would have justforwarded the claim to the risk managementdepartment. It will now be up to theSupreme Court to decide whether skippingthis statutorily required step is fatal to aplaintiff’s case.

However the Supreme Court rules, weshould not lose sight of the fact that Ms.DiCampli-Mintz has spent five years suingSanta Clara County and has yet to see hercase get to trial. All this delay could havebeen avoided had her attorney simply fol-lowed the rather basic requirements of theClaims Act and presented her claim to thecounty’s clerk, secretary or auditor.

Alberto Boada is the Litigation Supervisor inthe County of Ventura County Counsel’sOffice.

37

T he Government Claims Act express-ly provides a mechanism to pursue alate claim by a member of the gener-

al public for an injury on public property.(Gov. Code, §§ 911.4, 946.6.) Indeed, asmany courts have noted, the Act is not in -tended as “a trap for the unwary.” (Bet ten -court v. Los Rios Community College Dist.(1986) 42 Cal.3d 270, 275.) Instead, courtsare generally willing to grant relief and allowa claimant to litigate the case on the underly-

ing merits rather than preclude recovery onthe technical ground of missing a filing dead-line. However, just like filing a timely claim,filing a late claim involves wading through amyriad of procedures.

— Plan “A” —If a claimant fails to submit her claim with-

in six months, she must first seek relief from

Jaclyn Smith

After the Deadline:How to Submit a Late Government Claim

By Jaclyn Smith


38

the public entity itself. (To avoid confusion, Iwill refer to claimants in the feminine.) Thefirst step to pursue a late claim is to file anapplication for leave to present a late claim(“Application”) with the government entityinvolved. The claim itself, albeit late, must be

attached to the Application. The Applicationmust also explain why the claimant missedthe six-month claim filing deadline.

While a timely claim must be presentedwithin six months, the Application for a lateclaim must be filed within a less explicit time-line. The Government Code provides that theApplication must be submitted within a “rea-sonable time,” not to exceed one year from

the date the cause of action accrues. (Gov.Code, § 911.4, subd. (b).)

Claimants should pay close attention tothis “reasonable time” limitation when seek-ing relief. Just because an Application is filedwithin a year does not mean that a court willfind it was made within a “reasonable time.”At most, an Application may be submittedwithin one year from the date of injury. But aclaimant who becomes aware that her claimis late (for example, mere days after the six-month filing deadline passes) does not neces-sarily have an additional six months in whichto file her Application. A court may find thatunexplained delay, after a claimant knowsthat the claim is late, is unreasonable andcould deny relief on that ground. As such, aclaimant should act diligently after realizingthat a claim is late by submitting an Ap -plication with the applicable public entity assoon as possible. Waiting months will onlyreduce the chances for relief.

— Plan “B” —If the Application is denied by the public

entity, a claimant must then file a petition forrelief from Government Claims Act require-ments (Petition) with the Superior Court.Ultimately, this is where a claimant willobtain the relief she seeks after filing a lateclaim.

A claimant must show that two conditionsare met to obtain relief at the Superior Court.First, the claimant must show that while shemissed the original six-month claim filingdeadline, she (and her attorney) were other-wise diligent in investigating and pursuingthe claim. This dovetails with the require-ment that a claimant file her Applicationwithin a “reasonable time.” Essentially, oncea claimant knows the claim is late, she shouldact quickly to remedy the late filing. AnApplication should be filed as soon as possi-ble with the relevant government entity andif the Application is denied, the claimant

‘If the Application

is denied by the public

entity, a claimant must

then file a petition

for relief from

Government Claims Act

requirements with

the Superior Court.’

39

should then quickly file a Petition with thecourt.

The claimant must also show that the rea-son for the late claim falls within one of fourenumerated categories. (Gov. Code, § 946.6,subd. (c).) A claimant is entitled to reliefonly if:

(1) The failure to present the claim wasthrough mistake, inadvertence, surprise, orexcusable neglect;

(2) The person who sustained the allegedinjury, damage or loss was a minor during theentire six-month claim filing deadline;

(3) The person who sustained the allegedinjury, damage or loss was physically or men-tally incapacitated during the entire six-month claim filing deadline and the failure topresent a timely claim was because of thatinjury; or

(4) The person who sustained the allegedinjury, damage or loss died before the six-month claim filing deadline expired.

The latter three categories are fairlystraightforward. If a claimant is a minor,physically or mentally incapacitated, ordeceased during the original six-month filingwindow, courts will likely grant relief for alate claim. But the meaning of excusable“mistake, inadvertence, surprise, or neglect”sufficient to warrant relief is less clearlydefined. As a measuring stick, courts havedetermined that excusable mistakes arethose which would have been committed bya reasonably prudent person (or attorney)under similar circumstances.

— Good Excuses —By way of example, courts have consid-

ered the following to be excusable mistakes:• The case involves a confusing mix of

state and local government entities and theattorney serves the incorrect governmententity with a claim.

• The attorney miscalendars the filingdeadline.

• The attorney’s secretary improperlyremoves the claim filing date from office cal-endaring system and the attorney relies onthe incorrect calendar.

• The claimant retains an attorney shortlybefore the filing deadline expires and theattorney immediately begins investigatingthe claim.

By contrast, the following are examples ofinexcusable mistakes that do not entitle aparty to relief for filing a late claim:

• Mere assertion of mistake or neglect.• Simply failing to discover a fact until it is

too late.• An attorney’s failure to exercise reason-

able diligence.• An attorney’s declaration admitting

neglect without explaining the circumstancesof the neglect.

• A claimant’s failure to take any action inpursuit of the case or obtain counsel.

— A Forgiving System, —Within Limits

Under these rules, it is clear that there is apreference both in the Government Codeand by judges to allow a claimant to have herday in court. Even when a claim is late, thereare ways to have the claimant’s case heard.This requires that the claimant and her attor-ney act diligently, however. As soon as it isdiscovered that the claim is late, a claimantshould file an Application (and Petition, ifnecessary) without delay. The claimant mustthen be able to show that the reason theclaim was late matches one of the groundsdiscussed above. Most “late” cases will fallinto the “excusable mistake” category. Solong as a claimant can show that the omis-sion in filing the claim on time was reason-able, it is likely that a judge will grant relief.

Jaclyn Smith is an Assistant County Counselfor the County of Ventura specializing in liti-gation and appellate practice.

40

With the advent of technology, ourprofession has literally turned into a 24/7 commitment. We are

never truly “away” from our work or even ouroffice. Unless we choose to be. There areinexpensive ways to achieve that kind of con-stant contact environment — for those of youwho want it.

— Skype Video for Lawyers —One such way is Skype, the Internet phone

software — now owned by Microsoft — thatallows you to call computer-to-computer any-where in the world at no cost. So, for exam-

Paul R. Kiesel

Litigation Tech:Twenty-Four/Seven Access

By Paul R. Kiesel


41

ple, I have a Skype account under my nameand anybody who wishes to call me, assum-ing that my computer is on, simply finds meon the Skype directory and asks the comput-er to contact me. People on my contacts list

can see if I am online, whereas others would“dial” my contact. If I’m on, we talk; if not,you can leave a message.

But Skype is even cooler than that. Theway I use Skype is multifaceted. For example,Skype has a very robust chat application thatallows me to communicate with as many aseight callers, via video, at the same time.Assuming the other callers have cameras ontheir devices, we can all see each other whilewe talk.

I used this software effectively whilepreparing to take the deposition of witnessesin England last year. I had an English Bar -rister from London on my computer screen,along with my two co-counsel from Texas,working together to prepare.

— Skyping with Judges? —I firmly believe this video technology will

likely be a way many of us will interact withcourts in the not-too-distant future. Thereare several courts in Los Angeles that arepreparing to do a pilot using Skype video toallow counsel to appear before the court, sothat everyone can see each other but nobodyis physically in the same place at the sametime.

As we face deeper budget cuts and re -duced court staffing, we’ll find efficiencieslike Skype video (or whatever the video tech-nology happens to be) becoming a powerfulway to “appear” in court without all of thecosts and time associated with physicallytraveling to the actual courtroom. You couldappear in San Diego, Los Angeles, and SanFrancisco all in one day, almost as effectivelyas being there in person, at no charge(though I suspect our court system will find away to extract some income from thisprocess).

— Phoning with Skype —There is another element to Skype that

you might not have considered, but that Ihave used for at least the last decade. Let’ssay I traveled to London and am there doingdepositions and want to use Skype. How canI make and receive calls on Skype and do soeither for free or for very little money?

If you are simply calling from your com-puter to another computer, there is nocharge anywhere in the world; but if you areusing your computer to call either a cellphone or landline, you pay a few cents everyminute for that call. So, from my London

‘I firmly believe this

video technology will

likely be a way many

of us will interact

with courts in the

not-too-distant

future.’

42

hotel room, I can call Los Angeles for 2 centsper minute. All I need is Internet access.Needless to say, if I was using a cell phone ora hotel phone, it would likely be over a dollarper minute.

But let’s say I want people to call me, andlet’s further say that I want people to be ableto call me, via Skype, even when they are notat their computer. How do you do that? Bypurchasing what is known as a “Skype In”phone number. The cost is about $50 peryear, but the flexibility this number provides

has a far greater value.Here’s how it works: My Skype number is

310-928-1199. When anybody dials this num-ber, several things happen. The person dial-ing it has no idea they are actually dialing aSkype phone number; it’s just another num-ber they have by which to reach me. How -ever, if my computer is on and someone dialsthis number, my computer actually rings. Ican answer the phone call while on my com-puter, assuming the Skype program is open.

But here’s where it gets really cool. Skypeallows you to forward calls to this number towhatever other number you designate. Sowhat I do is this: Once I land in London, Ipick up a local SIM card (that’s one of thechips that gets inserted into an unlocked cellphone to provide a local number). Sincenone of your contacts has the phone numberon this SIM card, as you just purchased it,how is it possible someone could reach you?Well, you simply forward calls to your USSkype number to the new UK number. Thismeans anybody calling me on my 310-928-1199 number, or anybody who is trying toreach me through their computer using theirSkype account, will automatically be con-nected to my new international phone num-ber — but they still pay only the cost of adomestic call. I do this for each country I flyto and simply change the call forwardingnumber on my Skype account to whateverthe new SIM card number is.

Think of how simple it is. You never needto give anybody any number other than yourSkype In number, and yet you can bereached throughout the world on a cellphone with a number that nobody else has.Very simple, very cool, very cheap!

— Google Voice: —One Number, Multiple Lines

Okay, one more telecommunications tip. Itend to refer to myself as “the easiest lawyer

‘Think of how simple

it is. You never need to

give anybody any number

other than your SkypeIn

number, and yet you

can be reached throughout

the world on a cell phone

with a number that

nobody else has.’

43

to reach in America.” Unlike my partner, whosometimes is very difficult to reach, I pridemyself on access. I typically tell clients if I do

not call you back, it’s not that I didn’t get themessage — I always get the message — it’sthat I didn’t want to talk to you. Seriously.You might as well be honest!

So how does this work? I have anothernumber, which was provided by Google. Thisnumber is associated with a Google Voiceaccount. There was a time you could only get

this number by invitation, but Google hassince made the service available to anyonewith a Gmail account.

So for the last several years, I have had aGoogle Voice number, which is 213-222-8648. What does this number do? Googleconfigured Google Voice to allow users toconnect other phone numbers with yourGoogle Voice number. You can have multiplenumbers all connected to your Google Voicenumber, so that — get this — when some-one calls you on your Google Voice line,every single phone you have connected tothis number rings at the exact same time.

You read that right. Every single line youhave connected to the Google Voice linerings until one of them gets picked up. Thisis a way to be certain you never miss a call.

For me, my Google Voice line is connect-ed to my cell phone, my private line at theoffice, my home, and my Skype In number.The only phone I could not link to theGoogle Voice account was my satellitephone, since it had a unique string of num-bers that Google would not recognize and towhich Skype wouldn’t allow me to forwardcalls.

I guess if the worst-case scenario is youcannot reach me while I’m somewhere in theworld using my satellite phone, so be it.How ever, this tool is a very powerful re -source. It gives you the comfort of knowingthat when you give someone your GoogleVoice number, you’re going to be reachedwherever you are.

Never again do you have to worry about“missing a call,” since no matter what phoneyou are near, cell, office, home, etc., thephone rings. For some of you I realize thismight be just a bit too much access, but forme it provides great comfort.

Paul R. Kiesel is a partner in Kiesel BoucherLarson LLP in Beverly Hills.

‘I guess if the

worst-case scenario

is you cannot reach me

while I’m somewhere in

the world using my

satellite phone, so be it.

How ever, this tool

is a very powerful

resource.’

44

S cience has shown that theplanets, actually, have notaligned, and will never do so.

They will come close, but not untilsometime around the year 2850, andI think it is safe to say that anyone

reading this article won’t be alivethen in any event. So the questionbecomes, what do we do for the next840 years? My life long before thelaw taught me one of the most valu-able lessons I have ever learned and

used as a litigator: Leap, and thenet will appear.

“I Learned AboutLitigating from That”

Don’t Wait for the Planets to Align

By Carla Minnard


Carla Minnard

45

— A Simple Question —I am a high school dropout. My

father was a high school dropout. Igrew up in a poor family and spent myteenage years living in a trailer parkworking a minimum wage job in a fast-food restaurant. There was neverenough money for the basic necessi-

ties of life, much less tuition and text-books. In short, there was no clearpath to any type of higher educationor profession, much less a law degree.

But then along came 80-year-oldMrs. Richards. Mrs. Richards was aregular in the fast-food restaurantwhere I worked. Like clockwork, shecame in every day at 4:00 pm, sat atthe same table, and ordered the samething: single cheese, no pickle, noonion and a small Coke.

One of my jobs when it sloweddown in the afternoons was to mopthe dining room. After months of see-ing Mrs. Richards every day sittingthere, we started talking. We wouldtalk about news, life, the weather,anything really. One day she askedme “what are you going to do withyour life?”

My 17-year-old selfwas completely con-fused by her questionand, lacking anythingresembling basic con-versational decorum, Iblurted out “what doyou mean?” Her simplequestion led to a seriesof life-changing conver-sations. I explained my“situation” to Mrs.Richards: I was an une-ducated, poor, preg-nant, high-schooldropout who could notsee any way out of mycircumstances.

She listened patient-ly to my catalogue ofobstacles and then verysimply said: “Leap, and

the net will appear.” She told me thatshe had that quote (by naturalistJohn Bur roughs) taped above herbed to encourage her to be fearlessand trust that not every step had tobe planned and accounted for beforeacting. Just start moving.

And I did. I got my GED and Iapplied to colleges, despite the factthat I had no idea how I would pay forit. I got accepted, and quickly becamean expert in financial aid. I lept. Nets

appeared: Pell Grants and StaffordLoans, and Work Study jobs.

I never saw Mrs. Richards afterleaving for undergraduate school,but I never forgot the lessons shetaught me and they have becomepart of the fabric of my life as a liti-gator fighting for people who oftenhave no clear path of their own and,more often than not, fightingagainst great odds and well-fundedde fendants. As litigators, we mustbe fearless.

— Be Fearless —Be fearless in taking cases, be

fearless in trying cases. For everysingle case I have ever tried to ver-dict, I have had people who havetold me in advance that trial was abad idea. From well-meaning col-leagues to settlement conferencejudges to paid professional consul-tants, there has never been a short-age of people willing to plant seedsof doubt and fear in my litigator’smind.

But if we are to serve our clients— on both sides of the bar — wemust be fearless. We must be will-ing to takes risks in pursuit of ahigher cause or purpose. Whenthere is no clear path to where youare trying to go, pick up yourmachete and just start hackingaway at the wilderness until youstart to see some light.

Carla Minnard heads up theCivil Rights & EmploymentDivision at The Farrise LawFirm and is based in Oakland.

46

I live and practice law in thedesert. La Quinta, to be precise;the Coachella Valley, to be

inclu sive; Palm Springs, to be comprehensible.

Tani Cantil-Sakauye, California’sChief Justice, recently spoke to ourDesert Bar Association in a collegialmanner that demonstrated her

extraordinary capabilities. She is ahelluva speaker. Although optimisticherself, her subject was a downer: a24 percent cut in the budget of theCalifornia courts. We know we are introuble out here in the sticks whenimportant people come to speak tous on other than Coachella Festweekends.

It would be fair to state that myclients have lost, on average, 24 per-cent of their money. Many of themhave lost all of their money, savewhat is necessary for rent and food.

McDermott On Demand:Other Desert CitiesBy Tom McDermott

Tom McDermott


47

How do we lawyers here in the heartof the heart of the recession, with12.1 percent unemployment, dealwith such catastrophe? You can’tsuck it up because there is nothingto suck up. You cut, then you cutagain.

Is a deposition important to yourcase? Too bad. The court reporterexpects to be paid. Perhaps we cando as Los Angeles County just didand get rid of the court reporters.How about a deposition with nocourt reporter? Might be lacking in,say, a transcript. The answer is sim-ple; there won’t be any deposition.

— Lawyering in —“Our Town”

Judge Cantil-Sakauye empha-sized, in her ebullient way, that sheand her judicial colleagues werecommitted to seeing that there is nodiminution in the quality of justicedue to these difficult times. With alldue deference and respect to thejudiciary, I am afraid there will be adiminution in the quality of justicebecause it’s the lawyers who do thevast majority of the heavy lifting andit is the clients who have to pay forit, and it just can’t happen anymore.

Forget free legal services, on theone hand, and lawyers who get paidover $1,000 an hour, on the other.Altogether, they don’t amount to1/10,000th of the system. The realwork is done by ordinary lawyersrepresenting ordinary clients in aplace resembling “Our Town.” Andthat is good, the way it should be.

There is no “satisfactory” solutionthat I see, but there may be somefixes. The late Harry Hupp, an out-standing federal judge in the CentralDistrict, told me he would considerlimiting the use of electronics in thecourtroom based on a client’s abilityto pay. This was right at the begin-ning of the revolution when complexre-enactments on laser disk were allthe rage. Judge Hupp felt they werefine if both sides could afford them,but would be unfair if only one sidehad the capital to produce them.

— How to Level —the Playing Field

To deal with the unfairness thatmay result from an uneven lack ofmoney, the following might be con-sidered, on request by one party:

• Depositions would be limited toone or two.

• Written interrogatories wouldbe limited to 35 with no exceptions.

• Experts would be limited, oneper party.

• There would be one case man-agement conference, at which time atrial date would be set by agreementof the parties. There would be noother court appearances except fordiscovery disputes.

• Fees incurred in discovery dis-putes would be paid by the attorney(not the client) found to be in thewrong.

• Eliminate demurrers, motions tostrike, and motions in limine.

• Eliminate motions for summaryjudgment.

Many of these procedures andrestrictions already exist in arbitra-tion, and the sun still rises.

In all of my writing, I have tried toconsecrate the client. The justicesystem exists not for the judges, notfor the lawyers, but for the clients.And the clients are being forced outfor lack of money. One can say thelawyer could work for free. You willfind we do, all too often, these days.In the depths of the Depression,MGM cut its salaries by 50 percentfrom top to bottom. Not too bad forLouie B. Mayer and Clark Gable, butimpossible for the grips and bestboys. It did not last too long. Law yersneed to make enough to live on andthey cannot indefinitely representclients in litigation for nothing.

The litigation system has been inneed of modernization for manyyears. Perhaps something good willcome out of this economic disaster.Justice Cantil-Sakauye can lead us;even I may become optimistic.

The title of this article? Sorry,that’s my T.S. Eliot moment, a refer-ence so remote it’s incompre hen -sible, but so right. You might tryWikipedia.

Thomas J. McDermott, Jr., wasselected in 2010 to receive theNinth Circuit’s John P. FrankAward, which recognizes “an out-standing lawyer practicing in thefederal courts of the westernUnited States.” A longtime memberof the California LitigationEditorial Board, Mr. McDermott isa sole practitioner in Palm Desert.

48

I, along with many others havewritten and spoken often about theserious negative effects that Cali -fornia’s current budget crisis hashad, and will continue to have, on lit-igants. In addition to the hundreds ofmillions of dollars in cuts the courtshave endured in the past severalyears, Governor Brown is proposinganother $500 million in cuts to thestate’s court system. Among otherthings, his proposal includes a freezeon new construction projects toreplace California’s crumbling court-houses. While new construction mayseem a luxury, the courthouses’ con-tinuing decay is a physical manifesta-tion of what’s going on inside admin-istratively, and substantively.

Chief Justice Tani Cantil-Sakauyehas been quoted widely as sayingthese cuts constitute a “systematicelimination of the judicial branch.”Even before this proposed round ofdeep cuts, State Bar President JonStreeter commented that “what is atstake is the trust and confidence citi-zens have in their court system. Ifcourts are viewed as slow, inaccessi-ble and forbidding, that will under-mine the respect and confidence weneed for their proper functioning. Itwill contribute to a feeling thatcourts are only for the wealthy; thatthe average citizen need not botherwith justice; and, ultimately, it willbreed contempt for the authority oflaw.”

I regret that in many ways, and tomany clients, we have alreadyreached that point. Courts are

already viewed by many as an unwel-come but necessary ill. Thus, evenwhen the budget woes ease, thediminution in respect for the judicialsystem and its participants will havelasting effects and indubitably slowthe return of its funding.

Indeed, the opinions of litigantssuffering through the cancer of bud-get cuts are not unanimous. For oneside, delay is helpful. A broken courtsystem puts off justice (and usually,the payment of money). For theother side, delay is anathema andfaster processes are essential tosecure swift justice.

As a result, no one but lawyersand judges are likely to rise to clam-or for greater court funding. Buteven lawyers too often echo the sen-timents of their clients who are notdecidedly in favor of remediating thesystem. Add a dose of helplessnessand insignificance in the grandscheme of the court system, andthose lawyers, too, go silent.

— A Contagion —in the Profession

The Litigation Section has beenunwilling to remain silent. It has, forexample, proposed meet-and-conferrequirements to put the burden ofdiscussion on the lawyers beforethey set foot in the courtroom for acase management conference. Buteven this modest proposal has beenmet with impassioned advocacy onboth sides.

The Legislature has nibbled at theedges of the problems with proce-dural proposals. For example, AB1875 proposes a presumptive seven-hour limit on depositions, akin to

federal practice. Here too, lawyerson opposite sides of the “v.” havelined up on opposite sides of the bill.

Like the toxic effects of partisan-ship in Washington D.C., a similarcontagion has spread through ourprofession. Lawyers too frequentlyexalt their duty of loyalty over theirduty as officers of the court. Law -yers who believe their clients’ inter-ests (actual and potential) precludethem from taking positions that fos-ter the administration of justiceshould (re-)read the CaliforniaAttorney Guide lines Of Civility AndProfessionalism. Section 1 providesin relevant part that “The dignity,decorum and courtesy that have tra-ditionally characterized the courtsand legal profession of civilizednations are not empty formalities.They are essential to an atmospherethat promotes justice and to anattorney’s responsibility for the fairand impartial administration of jus-tice.” And Section 2 expressly im -poses an obligation to improve theadministration of justice.

The time is upon us to speak, tobecome more active, to contribute.We must commit ourselves to offerone constructive suggestion forevery one we hear and dismiss. Onlythen can we restore the health ofthe court system and stay at ourtrial weight.

Michael Geibelson is a partnerwith Robins, Kaplan, Miller &Ciresi L.L.P. and the 2011-2012Chair of the Litigation Section’sExecutive Committee. He wel-comes the submission of ideas tostreamline the administration ofjustice at [email protected].

Editorial Opinion(Continued from Inside Front Cover)

Litigation Section Executive CommitteePast Chairs

Alvin H. Goldstein, Jr. 1983 – 1985Daniel M. Sklar 1985 – 1986Robert Aitken 1986 – 1987James C. Hagedorn 1987 – 1988Hon. Lawrence W. Crispo 1988 – 1989Mark A. Neubauer 1989 – 1990Cedric C. Chao 1990 – 1991Michael D. Whelan 1991 – 1992Mark C. Mazzarella 1992 – 1993Thomas J. McDermott, Jr. 1993 – 1994Mark W. Hansen 1994 – 1995Kimberly R. Clement 1995 – 1996Teresa Tan 1996 – 1997George L. Mallory, Jr. 1997 – 1998Dana J. Dunwoody 1998 – 1999Robert S. Gerber 1999 – 2000Jerome Sapiro, Jr. 2000 – 2001Curtis D. Parvin 2001 – 2002Laura Lee Blake 2002 – 2003Charles V. Berwanger 2003 – 2004William J. Caldarelli 2004 – 2005Richard L. Seabolt 2005 – 2006Erik J. Olson 2006 – 2007Mark A. Mellor 2007 – 2008Gregory A. Nylen 2008 – 2009Michael D. Fabiano 2009 – 2010Elizabeth England 2010 – 2011

Past Editors-in-ChiefMark Herrmann 1987 – 1989Mark W. Hansen 1989 – 1991Christopher Engh 1991 – 1994Robert Aitken 1994 – 1996Russell Leibson 1996 – 1999Hon. Elizabeth Humphreys 1999 – 2002Joan Wolff 2002 – 2006Sharon J. Arkin 2007 – 2011

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VOLUME 25 • NUMBER 2 2012

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