Tips from the Judges
Last year I gave advice on how to write for the court from the perspective of a research attorney. This year I thought I would go straight to the source – the civil fast track judges – to ask their likes and dislikes. Here are the results:
Judge Steven K. Austin
Current Assignment: Civil Fast Track, Department 33
Years on the Bench: 21
Key Pre-Judicial Legal Experience:
Private practice in insurance defense firm
Law and Motion papers: Don’t bury the lead. State clearly on the first page and the last the relief you want. Be brief. Make your point and move on. Be sure to tab your exhibits. Your motion may be continued until you do.
Law and Motion oral argument: When calling in to contest the ruling, tell the clerk in a sentence the reason you are doing so. If it takes more explanation than that, fax a one-page letter to the department. In oral argument, go straight to the point. Tell the court what you think it may have missed (directing the court to the pertinent page and line of the ruling) and politely ask it to take the matter under submission and reconsider its ruling. Don’t expect or demand an immediate reversal from the bench, and don’t blame the claimed error on court staff (i.e., the research attorneys).
Judge Charles “Ben” Burch
Current Assignment (Eff. 1/1/20): Civil Fast Track, Department 23 (½ limited; ½ unlimited)
Years on the Bench: 14
Key Pre-Judicial Legal Experience: Federal prosecutor
Law and Motion papers: The following guidelines are the same for written work and oral advocacy: Be brief. Cite the single best and most current case rather than using a string citation. Don’t fail to acknowledge and discuss contrary authority. Acknowledging contrary authority is recognized in the ABA rules as an ethical responsibility and is a hallmark of the best lawyers.
Law and Motion oral argument: My procedures for contesting tentative rulings are not set yet, but I will likely want not just a telephone call but also a brief pleading that specifies exactly your objections and any suggested modifications. In oral argument, I prefer polite informality. Be prepared to be flexible and to make clear which things you concede – there is no need to discuss at length points that are conceded. I enjoy some give and take with lawyers and may go from one attorney to another for immediate responses on key points rather than following a more structured approach.
Judge Jill Fannin
Current Assignment: Civil Fast Track, Department 21
Years on the Bench: 16 years
Key Pre-Judicial Legal Experience: Private practice and mediation
Law and Motion papers: The court will rule on the motion you have brought, not one under some other statute or subsection of the same statute, so be clear about the basis for your motion in your notice. Don’t ignore prior rulings in the same case or the court’s indications of how it would rule on future motions. Motions build on each other. The second demurrer need not cover all the same ground as the first.
Law and Motion oral argument: When calling to contest a tentative ruling, you must specify the issues to be argued. Don’t just say “I intend to argue the entire ruling.” If you can specify the issues briefly, do so in your call to the clerk. Otherwise outline the issues you will argue in a letter faxed to the department. Each party planning to contest a part of the ruling must separately call the department. A call-in by one side does not entitle the other to argue other aspects of the ruling. Argue law and motion matters in person if at all possible. Personal appearances are much more effective than telephonic ones. Avoid canned arguments. Be prepared to respond promptly and directly to questions from the court. Think on your feet.
Judge Charles Treat
Current Assignment: Civil Fast Track, Department 12
Years on the Bench: 14
Key Pre-Bench Legal Experience: Civil Litigator with appellate specialty
Law and Motion papers: Don’t write as for a law school examination. Write so clearly and concisely that the papers could be given as a speech and the listener would understand. If you write a conclusion, don’t say the motion should be granted “for the reasons stated above.” Use those final lines to clinch the argument. Also, think creatively about how to present pivotal legal issues to the court, despite procedural obstacles. The last thing the court wants is a case not to settle, or a jury to waste three weeks of its time, when the case may turn on a key legal issue.
Law and Motion oral argument: If you contest the tentative ruling, you must notify the court in writing of the points to be contested. Email this notice to Dept12@contracosta.courts.ca.gov. Before oral argument, be sure you have thought through the consequences of the rule or outcome you are proposing.
Judge Edward G. Weil
Current Assignment: Complex Civil, Department 39; Supervising Judge, Civil (until 1/1/20)
Years on the Bench: 10
Key Pre-Judicial Legal Experience: California Attorney General’s Office, Environment Section
Law and Motion papers: Avoid lengthy boilerplate on common principles of law, like the standard on a demurrer. On the other hand, my department handles complex cases, and I understand that an extended discussion on a particular area of law may be necessary. Invective is unhelpful. Keep a neutral, professional tone.
Law and Motion oral argument: I do not require a letter outlining the issues to be argued when a ruling is contested. But when you appear, focus your argument on the case you think I have not addressed or the error you think I have made in reviewing the record. Also, don’t argue as though a jury is present when it is not. And when the issue is limited, as for instance when you are seeking a TRO, don’t focus on how just your client’s claim will prove to be, but why immediate relief is needed today.