COURT: Alameda County Superior
APPOINTED: 2003 by Governor Gray Davis
LAW SCHOOL: Harvard Law School
PREVIOUS JUDICIAL EXPERIENCE: Judge pro tem and discovery referee, Alameda County Municipal Court (1992 to 2003)
PREVIOUS EMPLOYMENT: Pettit & Martin (1985 to 1989); Levy, Samrick & Bernard (1989 to 1994); Arnelle & Hastie (1994 to 1995); Grillo & Stevens (1995 to 2003)
PLACE OF BIRTH: Oakland
POLITICAL AFFILIATION: Democrat
Q: What do you like best about being a judge?
A: Well, there's so much to like, it's a tough question. One thing I really like about it is you have the privilege of participating in this really great exercise in democracy and government that this country represents. And I say that in all sincerity. When you are on that bench and you have people present a case, and whether it's decided by jury or whether you decide it, it's really something that's quite unique in the history of mankind; that the individual has a right to his or her day in court. The company has a right to its day in court. There are rules as to how that dispute will be resolved. It's not up to a king or a political hack or anything else and it works really well, and I enjoy being part of that process. That's kind of on the macro level.
On the other level, you get to interact with a lot of really bright people. I can't think of the last time I've had a lawyer come to my court and [I'd] say [to myself], "That's not a really smart person," because you're certifiably smart if you've gone to law school and passed the bar. There's that stimulation from that kind of interaction. You are helping people with problems. I kind of view courts as not just an institution where you come to have things decided, but in some sense you are a problem-solving institution. And, you are not doing it because you are any wiser, necessarily, but because you have a tried-and-true, tested way for solving problems that is built on substantive law and procedure. It's just nice to be a part of that process. I enjoy it.
Q: In your previous profile, you said, "If you aren't living your life by principle, then you aren't really living your life." What is the principle by which you are running your court?
A: First and foremost, I don't want anyone leaving my court feeling that they have not been heard. I know it irritates some people sometimes because I have pro pers who stumble in here and they are about to lose their house to foreclosure; they're about to be evicted; you're about to garnish their check. And I think that it's very important that people who don't have an understanding for the system or how the system works leave this court with a feeling that they've been heard. I think I'm able to do that most of the time. It never ceases to amaze me that after having a hearing where you have listened to someone spill their guts out to you about the problems that they've had, and in losing this house or this money it is going to devastate their lives and you tell them, "This is what my ruling is going to be. This is what I have to do." They will accept it. That's a real vote of confidence in our system and in our democracy.
I don't just try to do that for pro pers; I try to do that for everybody because if people leave your court lawyers or self-represented litigants and they don't think they've been heard, two things happen. One is, the system loses legitimacy and the second thing is, they come back and they will keep coming back until they do believe they've been heard. So I like it to happen the first time.
Q: Do you tend to write many opinions or do you tend to rule more from the bench?
A: Well, a significant number, particularly where dealing with writ practice or dealing with CEQA California Environmental Quality Act litigation and appeals from administrative hearings, you almost have to in every case issue a written opinion. It's just part of the job. It's a requirement to issue a statement of decision, whether requested. In many of these cases and other cases, say, some of the smaller ones where that's not required, I will still sometimes write something short to explain what's happened and what the reasoning is.
When I started practice, there was kind of a theory of judging floating around that said, "Say as little as possible," because the rule on appeal is that if there is any basis to affirm the court below then you affirm them and the thought was, if you said something, the appellate courts would say, "You're wrong." Then that's it. You're done.
I don't think that's the case. I think if you state the reason what your ruling is and you play it out logically, even if you may be wrong at first glance, you may give the appellate court another reason that they didn't think about to affirm. Or to reverse you, if you should justifiably be reversed. You're not going to get it right all the time down here.
Q: For case management conferences, what should the attorneys have prepared for you?
A: No. 1 is, bring your calendar. You'd be surprised how many times we have an opportunity to do scheduling and actually accommodate counsel in a way that will make for more efficient administration of the case and counsel didn't have the calendar. We come to a grinding halt.
It's always good to know the status of your case. What's going on in discovery? Have the depositions that need to be taken been taken? And another really important thing you need to do to prepare is to try to talk to your opposing counsel ahead of time. You'd be surprised how many times there's really not a dispute, but a communication problem.
Q: How can attorneys help the court settle more efficiently?
A: It helps to know your case. That's usually not a problem, but sometimes, parties don't know their case. That would be the single biggest impediment to settlement. Also, it's not infrequent that I will send parties away and have them do more depositions, more discovery, talk to their experts, and then bring them back after they have completed that. It's good to try to talk to each other if you can. And above all, keep an open mind.
You can come in here thinking you have the greatest case in the world. But it may not be what you think it is. I've had attorneys come in who've done a very good evaluation of the case and I couldn't really quarrel with it. I've had other attorneys come in who are kind of pounding the table and I say, "Look, people, you're not really seeing this case the way that you should. You really need to take another look at it." Sometimes I'm wrong on that, but I'd like to think I'm right on that more than I am wrong. So keeping an open mind is very, very important.
Q: Do you have any tips for new attorneys?
A: If you are going to be in the litigation sphere, get some trials, any trials. Doesn't matter if you are trying a collection case, a DUI or anything else. There is nothing that sharpens your practice skills, your wits and your intelligence as much as having to go prove a case in front of a fact finder and walk away with a verdict. I still do see younger attorneys who maybe are lacking in some trial skills but I think, on balance, we're much better off now that we were even 10 years ago on that.
The other tip I would have for new attorneys is just to remember what Abraham Lincoln said which is, "A lawyer's reputation is his stock in trade" he used the masculine back then. I really think that's true. There are practicing lawyers in every jurisdiction who, when they cite something to you, you can make book on the fact that if you go read that case it's going to say exactly what [they said] no more and no less. There are also lawyers in every jurisdiction where if they cite a case and that's a big if and you go read the case, it probably is not remotely related to the case that's before you. It's much better to be in that former category than in the latter.
Q: Do you have any pet peeves or practices you wish lawyers would avoid?
A: I really don't like people to be discourteous. I understand that the practice of law can be frustrating. I was a lawyer myself. I used to get frustrated a lot with the judges. That's just the nature of the game.
If I could kind of back into the answer. If I have a lawyer who receives an adverse ruling which is a close call or is maybe one of those rulings that maybe doesn't feel [to the lawyer] like it makes sense, but it's what the ruling is nonetheless and the lawyer politely thanks you and leaves the courtroom, that makes a much better impression than the lawyer who rolls his eyes and sighs and starts slamming paper. That's just not a good thing to do. It doesn't contribute to your professional image. And more importantly, to all the individuals sitting in court who are watching the decision making going on, it kind of delegitimizes the court a little bit. That never feels good.
Q: Do you have a dress code?
A: No. Show up in any form of dress that won't get you arrested.
Q: For your CEQA matters and those a bit more complex, do you have any standing orders?
A: No. I don't have any standing orders. I go by what's in the local rules. The reason I do that is, I think it can get very confusing to counsel to, if in addition to managing their caseload, and doing their research, and making their court appearances, they have to figure out for each judge whom they're before what, if particular, little things are done differently. I realize some judges do and I don't criticize that because it makes good sense depending on what your particular management style is, but I tend to be a little more free-wheeling in terms of giving counsel more latitude to present their case. It's all part of the advocacy process. If you follow the local rules, you'll get no beef from me.
Q: Do you see any common mistakes that experienced attorneys are making?
A: Yes. One is just not listening. You'd be amazed how many times you have an experienced attorney making a presentation and you're asking questions sometimes you've even written up for yourself a tentative that you think is the right ruling and you have just a few questions to confirm that it is and you're asking counsel questions and you want answers to them because maybe it'll allow to issue this ruling that is right, and they won't answer the questions. You're sitting there thinking, "What do I do with this case? I have everything here to rule the right way, I think, except the answers to two questions." That's a big one. And I think if you talk to most judges they'd say not listening and not answering the judge's questions.
Not reading cases. Not keeping up. It's probably a function of how busy practices are and such, but the law changes. We're fortunate here in Alameda County, we have our research clerks. They're all very smart. They all read cases. On any given day or week, if there's a case out there that impacts the body of work we tend to do in our department, our research attorney says, "Hey, judge, there's this new case. You need to take a look it." Sometimes it results in wholesale changes in how we are deciding things here. And if you are practicing in a particular area of law, you need to keep up on it because it changes, every day.
Q: If there were hostility in the courtroom, either between counsel, or if they were rude to you, how would you handle it?
A: Usually for that kind of situation I'd look them dead in the eye and say, "Counsel, if you speak to me in that tone of voice I'm much less likely to hear what you're trying to say to me and I don't think your client would like the fact I can't hear what you're saying because you're being rude. It's not appropriate." That will usually get them to stand up straight and think about it. I think on the few occasions when I've seen attorneys be hostile, or really, rude, what's really happening is they've kind of lost sight of their role as an advocate; maybe become a little bit embroiled.
So the idea is to reel them back and say to them, "I understand you are in advocacy, what I'm telling you now is that your advocacy is not only ineffective, but that you're really hurting your client by your demeanor. If you want to continue to hurt your client, go ahead." I can't think of any case where that hasn't stopped them cold.
Q: Any thoughts on technology in your courtroom?
A: Yes. It's great stuff. I think we're just really starting to know how to use it effectively. At least in this jurisdiction, in Alameda County. Effectively we have all civil court records and many criminal records online where you can access them by computer at home or by laptop. I can't tell you what that's done for efficiency. I think one reason why this county is in much better shape than some of the other counties with the budget cuts is we had some visionary presiding judges and court executives who really pushed the computerization early on. That has really helped us. We're basically state of the art here. We are the art, to tell you the truth. So there's that, which has really contributed to administrative efficiency.
The fact that attorneys can bring a laptop to court while we're doing a settlement, or doing a motion, anything else, if there's a misfiling or you can't get a hold of a document, someone can call the office and have it sent right to the court. Have it printed out. You saved yourself a continuance. Those sorts of things are just marvelous.
In terms of presentation of courtroom evidence, technology has really contributed to that also. Although I say that with one caveat: The best trial attorneys I've seen, the most experienced ones, don't lean on that as a crutch. They still mix it up with the paper/easel charts; with the little demonstrative wire that was defective; with the PowerPoint. So, it's a tool, but it's not the be all and end all in terms of presentation of evidence.
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