Judicial Profile: Department 23
Honorable Charles “Ben” Burch
- Biographical Information
- Undergrad: Stanford, Political Science,
Law School: University of Chicago,
- Pre-bench Legal Experience:
- Prosecutor, Cook County, Illinois; federal prosecutor for 28 years in Chicago then San Francisco
- Political Affiliation:
- Judicial Experience
- Appointed to the bench in 2005.
- Pre-bench Civic & Professional Activities
- Moraga’s town planning commission. Coached basketball and baseball for 13 years with the Lamorinda Youth Association. Various professional organizations.
- Current Civic, Professional & Educational Activities
- Participates in local moot court and mock trial programs.
- Courtroom Policies
- Rules from the bench over 90% of the time in short cause matters; generally takes long-cause matters under submission and issues Statement of Decision when requested under CCP 632.
- Generally is flexible in allowing client or attorney appearances by phone for non-evidentiary hearings.
- Prefers responsive pleadings when possible for motions at preliminary hearings, as long as it does not unduly delay the case.
- Just follow the statutory requirements (Penal Code § 1054.1). “I certainly don’t require any more or any less.”
- Settlement Conferences
- Rarely seen by the time cases get assigned to Department 23 for trial. But if the parties have resolved the case, Judge Burch will take the plea.
- In Limine Motions
- Prefers them in writing with some explanation of the law.
- Voir Dire
- Allows both sides additional voir dire after he does basic questioning based on his review of the completed juror questionnaires. Generally gives each side up to 30 minutes for additional questioning.
- Jury Instructions
- Follows CALCRIM—much preferred over CALJIC.
- Recent Publications
- Two recent articles in the California Courts Review: Reducing Peremptory Challenges in Misdemeanor Cases: A Modest Reform; and Let’s Reconsider Jury Instructions on Circumstantial Evidence.
Why are ten peremptory challenges necessary in misdemeanor cases? Statistics show it’s rare for one side to use more than six. Only three states allow ten. “[The] issue is, how do you treat jurors? And do you consistently inconvenience people when it’s an unnecessary thing to do? You get all these people who are summoned in, and never serve.”
About the circumstantial evidence jury instructions: “They make no sense, and therefore they ought to be modified, or eliminated entirely.”
- Witnesses and jurors
- Encourages parties to have witnesses available so court doesn’t have to adjourn early, but is realistic about the fluidity of trial. “I recognize that trials are dynamic events and things just happen sometimes.” Some jurors “probably think court hours are like banker’s hours.” Others probably think a shorter day is enough time and don’t mind getting out a little early—trial demands intense concentration and many don’t have jobs that require such intense listening. When the court and parties have to adjourn early or deal with issues without the jury, “I don’t think they mind, as long as you explain that you’re at work and not just sitting in the back working on your stock portfolio.”
- Has only come close to sanctioning an attorney once in three years, “and hopefully it will continue that way.” “I suppose I’m inexperienced enough that I haven’t had enough instances of behavior from a particular attorney that I’ve had to sanction somebody.” But “[a]s it stands now, I’m not in a position to say there’s any attorney out there that has trouble in Judge Burch’s court because they’re already close to the line. I think by and large, the practice here in Contra Costa is acceptable, and polite.” That doesn’t particularly differ from his impression of Cook County, Illinois, or federal practice in Chicago or San Francisco. “A certain amount of conflict is expected…I think it goes with the nature of these types of proceedings, where you have an adversarial system. As long as [the attorneys are] polite and courteous, they can still be forceful advocates.”
- Both the Family court and Probate courts now have a standard pre-trial order to be followed by attorneys preparing cases for trial/long cause hearings.
- Expects people to be courteous and to treat each other like strangers they met for the first time. People shouldn’t become something different when they’re in court. If someone is crossing the line, the first reminder from the bench will often be outside the presence of the jury. The next time will be in the presence of the jury. Typically a first warning is all that’s needed.
- Court Reporters & Translators
- Court reporters: professional and generally not a burden on the court, and Judge Burch tries to reciprocate. Interpreters: the party who needs one should make appropriate preparations and notify the court.
- Cell Phones and Blackberries
- Cell phones must be silenced. Blackberries are fine as long as their use doesn’t interfere with court. They can be helpful for scheduling.
- Court Contact
- The Department’s phone number is published.
- Cameras in the Courtroom
- Has not allowed it yet. “I’m not going to say I’ll never allow it. But I would be extremely cautious. The presence of the camera tends to change what’s happening in the court, and most of the time in a negative way.”
- Technology in the Courtroom
- Technology equipment is welcome. Discuss it with the other side and give advance notice so the court is able to accommodate that in some way. Judge Burch encourages A/V aids whenever the parties or attorneys feel it’s helpful for the jury to see or hear the point. San Francisco federal courts have various technology aids—in some cases a monitor for each juror. A document can be shown to all at once—often as soon as a witness starts talking—instead of handing it around. That captures virtually all of the jurors regardless of whether they are an audio, visual, or audio/visual learner. The use of technology in Contra Costa seems to lag a bit behind in federal practice in San Francisco. Why? Perhaps several factors including limited resources, limited preparation time, or less need in a relatively simple case.
Can technology be overdone? It depends on the case. Jurors love an A/V presentation and have, to a certain degree, come to expect it. If the other side brings a tech-heavy onslaught, “I’d be the last to say just give them an old Andy Griffith type of presentation” in response.
- “Helpful is be prepared. Unhelpful is not being prepared. Helpful is making concessions when concessions are what gives you credibility with the court and the jury…. [M]aking honest concessions about the weakness of your case in certain areas is actually a benefit to you individually in gaining credibility—in that case and in future cases, and also for your client.”
Three marks of a bad brief?
(1) Motions to dismiss that omit specific discussion of the possible legal issues (which forces the judge to start the hearing without knowing what it’s about).
(2) “I can’t tell you how often I’ve seen briefs where the most important point was not supported by any specific legal authority.”
(3) Explain if a case is against you. You’re not going to help yourself by hiding it. The judge or other attorney will find out, and you haven’t done anything to explain it.
Top three marks of a good brief?
(1) As short as possible.
(2) One legal citation for the most important point or points you’re making.
(3) A coherent explanation of the facts.
Phone interview 9/30/2008 and 10/2/2008 by Christopher Schweickert of Bergquist, Wood & Anderson, LLP, Walnut Creek.