by the Honorable Gerald G. Johnston
After completing the column entitled With All Due Respect: Discussion of Some Litigation Best Practices from a Retired Bench Officer, Orange County Lawyer, Sept. 2024, at 52, I received input from former bench colleagues suggesting exploration of additional litigation approaches appreciated by judges. What follows is a brief discussion of selected topics as well as some thoughts as to what litigators and clients might reasonably expect as “best practice” from a judge handling their case.
The Golden Rule applies in court Litigation counsel should understand maintaining a respectful and friendly relationship with court staff is in the client’s best interests as well as their own. Clerks, Reporters, and bailiffs/courtroom attendants are hardworking professionals who labor to keep the courts running and functional. They deserve our respect and support for their contributions to the administration of justice. There is little value, in my opinion, in fighting with these individuals over policies or practices. Most of the time, whatever rules they attempt to enforce originate with the judge with whom they serve. If there is some issue created by a rule enforced by staff that you believe may impact your case, it is best to avoid attacking the messenger and wait to bring the subject before the judge.
Over nearly a quarter century sitting on the bench, I was sometimes surprised and bemused by the antics of a few litigators who would treat courtroom clerks, reporters, and bailiffs who displease them with disdain, rudeness, and, occasionally, contempt. Yet, these same practitioners (of whom I am glad to say there are not many) would quickly transform from raging berserker to an exemplar of professional and even unctuous demeanor once the judge entered the courtroom. Such inconsistent behaviors are noted by everyone in court and do not escape the attention of the judge. There is no faster way to lose the respect of your judge and endanger your credibility than to treat courtroom staff poorly.
Ex Parte applications should not read like William Faulkner novels A few years ago, I ended a court workday fatigued but pleased with the accomplishments of the sessions. I happily anticipated a well-earned evening at home with family. This pleasant fiction was shattered when I looked at my computer and saw four ex parte applications pending in my work queue for the next day. Each application was accompanied by voluminous exhibits. I quickly calculated, between the four applications, over 1200 pages of exhibits had been submitted for my review. I bid farewell to my home-cooked meal and hit the print button on my computer. Fortunately, I learned over many years of handling ex parte applications, large attachments to the petitions are, at times, not terribly probative in guiding one toward a ruling—and sometimes can be rather quickly scanned for relevant content. I was able to wade through the documents that evening, identify key information, and was ready to rule the next morning—and I was only an hour late for dinner. When confronted with ex parte applications with large attachments, I always uttered a silent blessing for the attorneys who clearly identified each exhibit in the declaration, tabbed the documents electronically, and highlighted (in some fashion) the specific language I should examine in the attachments to be considered.
Practitioners should be mindful that judges have limited time to read and contemplate ex parte applications and oppositions. Strict adherence to California Rules of Court, Rule 3.1200 et. seq is important. Technical defects (e.g., proper notice under Rule 3.1204) may result in a denial of relief. Equally important are the contents of the declaration filed pursuant to Rule 3-1202{c}: “An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief” (emphasis added). Applicants ignore this requirement at their peril. I denied hundreds of ex partes over the years, not because the sought-after relief lacked merit, but due to a failure to demonstrate the mandatory factual showing. Potential or feared future harm will generally not carry the day with this type of application. In most cases, it must be clear and apparent to the court that the relief should be granted ex parte to avoid actual harm and the matter cannot wait for a more formal, noticed and scheduled hearing. Seeking ex parte relief due to potential future harm is generally a waste of the court’s time and the client’s money.
Ex parte applications are a valuable tool to mitigate damage and/or maintain a status quo pending more complete hearings on cases. When used properly, they constitute an effective method to preserve a client’s interest.
My best advice for success in bringing an ex parte application or for effective opposition:
To object or not to object . . . to that question When I was a journeyman attorney learning to flex my newly acquired Evidence Code muscles in court, I would glory in my ability to frustrate the opposition and impress the judge with my mastery of evidentiary rule arcana. I felt a personal victory if I could cause opposing counsel to turn red with frustration as I glibly delivered evidence code body blows based upon lack of foundation, best evidence, and hearsay grounds. Each time I heard the judge utter “sustained” and I watched some attorney stutter and look confused, I felt proud of my superior lawyering and ability to prevent the opposition from moving forward with their case.
What I did not realize at this early stage in my career was the potential strategic value of knowing when to withhold a valid objection to a question. Why would an attorney want to allow an objectional question to stand? Answer: it can show professionalism, promotes increased efficiency, and at times may help your case.
I once oversaw a civil court trial with two seasoned and very talented litigators. The case included numerous exhibits and testimony of several witnesses about what had been said by others. Both sides could have made countless objections on foundational, admissibility, and hearsay grounds. However, over the course of the trial there were fewer than a dozen objections for me to rule upon. What I came to appreciate during that trial was that both counsel knew exactly what they wanted to do in terms of presenting the case. Both were willing to allow some objectionable questions and evidence that they did not consider to be harmful to their own case. Further, both understood that withholding certain objections was a more efficient practice, allowing the case to proceed quickly. Both presented their case extremely well and suffered no detriment from not asserting all available objections. It was an impressive display of litigation mastery.
When I encountered these two lawyers in subsequent proceedings, I had confidence they would know their case, act professionally and reasonably, and would be well-prepared to represent the client. They had earned a high level of respect through exemplary behavior.
Trial Readiness: Remember the Scouting motto One of the most frustrating events for a judge with a busy trial calendar is learning on the day of a scheduled trial that one or both sides are not ready to start and can offer no valid explanations for the failure. If the case will not start on the scheduled day, counsel should present a stipulation and request for continuance to the judge at the earliest possible time. This allows the judge to prioritize other proceedings that may also be set on the scheduled trial date.
Compliance with Division 3, Chapter 1 of the Orange County Superior Local Rules of Court is imperative. All counsel should review and confirm compliance with Local Rule 317 (Pre-Trial Requirements) starting weeks before a scheduled trial date. Failure to observe the directives in this rule will likely result in a continuance and raises the risk of an Order to Show Cause re: sanctions for non-compliance.
Zoom Etiquette It appears that remote appearances will remain a permanent part of our justice system. The convenience, efficiency, and economy of handling some legal proceedings in this fashion is significant. However, it is important for counsel to safeguard against becoming overly relaxed simply because you are in your office or at home rather than physically in court. Based upon my personal experiences with remote appearances, I would suggest the following best practices:
What you should expect from your judge As a new judge in 1999, I was given a copy of David M. Rothman’s Judicial Conduct Handbook. This book is an invaluable guide to help bench officers avoid ethical pitfalls and ensure the integrity and impartiality of the judicial process is maintained. Excellence in judging is a learned process which is never fully perfected. Even after nearly a quarter of a century on the bench, I continued to turn to David Rothman’s book for guidance on challenging ethical issues.
The role filled by judges is one that requires respect—and, at the same time, it is incumbent on judges to display behavior consistent with the dignity of the position they occupy. Judges can have bad days, difficult personal issues, and suffer from illness. Further, it is not always easy to display patience, impartiality and to avoid embroilment when confronted with poorly behaved litigants or lawyers. Yet, this is our solemn obligation. Lawyers have the right to expect to be treated respectfully and fairly even by a judge who is having a bad day. Such is the judge’s duty.
Nearly forty years ago, as a newly minted Deputy District Attorney just learning my craft, I appeared before a rather cantankerous older judge in one of my first jury trials. He was irritable as the trial commenced and made clear he did not care much for me or my case. Nonetheless, I forged ahead. Halfway through trial, while I was cross-examining the defendant, I noticed the judge hand a note to his bailiff and gesture in my direction. While the jury watched, the bailiff brought over and offered the folded piece of notebook paper which had my name written on the top. When I opened the note (which, at the time, I did not realize was an improper ex parte communication) I was shocked to read:
You are losing this case, and doing a terrible job. You should consider suing your law school. Warmly, Judge XXXXXX
I was deeply wounded and mortified. To me, as a young lawyer, judges were Solomonesque dispensers of wisdom and justice—indisputably correct critics of legal ability. Was I really a terrible lawyer? Should I have picked that other career path of writing pithy sayings for fortune cookies (a true story)? Feeling crushed and uncertain, I took the note and shared it with my supervisor, a savvy and experienced veteran of courtroom battles. He shared a few choice words about Judge XXXXX’s character, intelligence, and background, and then asked me if I thought I was losing the case. I said I believed I was actually winning. My supervisor told me to hold my head high, win the case, and show the judge he was wrong. I returned to the courtroom resolute about showing I could do the job. However, I was also confused and concerned to hear my superior discuss his view that a judge was anything less than a brilliant star in the legal firmament. It seemed rather heretical.
I did win. The judge made no further comment to me after that about my unwise career choice. A few years later he resigned from the bench with a complaint pending against him from the Commission on Judicial Performance for numerous instances of alleged misconduct.
I never forgot the humiliation of this early trial experience. Fifteen years later when I became a judge, I vowed to be the kind of jurist who did show respect, patience, fairness, and humility on the bench. Litigants and attorneys are entitled to fair treatment. No one should be subjected to the kind of behavior Judge XXXXXX displayed. Those appearing before the court are entitled to be greeted with courtesy, professionalism, and the opportunity to be heard. Our justice system suffers when parties depart a proceeding feeling they have been ignored or disrespected.
Fortunately, the Orange County Superior Court is filled with some of the most professional, intelligent, committed, and highly competent judges in the state. I doubt most practicing lawyers today can relate a personal story to match my early experience.
For our legal system to work properly, we must foster a practice of mutual appreciation and understanding between the bench and bar. In attempting to understand and support one another, we achieve better outcomes for those seeking access to justice. Judges and counsel are indispensable partners in the mission to manage and maintain one of the greatest justice systems ever devised. We must all assiduously discharge our obligations to keep the wheels of justice on track.
The Honorable Gerald G. Johnston offers mediation and arbitration services through JAMS. He can be reached at gjohnston@jamsadr.com.