Things we have learned over the past year (or not)

A little over a year ago, as we emerged from the COVID pandemic, I asked over 500 colleagues for input, advice, pet peeves, peccadilloes, and whatnots about "the dos and don'ts" for their courtroom. Things that counsel or self-represented litigants may have forgotten after the long hiatus and where gentle reminders from the Bench would help smooth the return to normalcy. Allegedly, time heals all wounds. So I thought I would follow up with my colleagues and ask them if that is true. In some instances, it was, but in many cases, a common theme yet again emerged.

Remote appearance decorum!

I received lots of responses on many topics. Most were one or two sentences. However, I received short novels on one topic, remote appearances. The responses came in many fashions and flavors. Hence the reason it is capitalized and bolded with exclamation points. So many responses were received on this big overall topic that I broke them down into smaller subgroups to ensure that I covered every issue mentioned - and there were a lot of them.

The first response I received when soliciting input was to "ban all remote appearances." When I responded that I did not think that would occur my colleague conceded defeat by, in essence, knocking over his king (chess reference). One colleague suggested I take a poll to find out who likes them and who does not, but I decided against that idea for fear of the outcome (I also did not have permission). But here is what the Bench is generally saying about remote appearances.

Peace and quiet

Peace and quiet. And when you cannot have peace, then just quiet will suffice. I mention this because they had specific rules when I was practicing law and using a remote court connect service (which I will not name because it is not affiliated with my current employer but was a revolutionizer in the industry). One rule was that you could not be on a cell phone. All calls had to be from landlines (either home, office, or payphone if those still exist). For younger readers, Google an image of a payphone (for my older readers, two words, Maxwell Smart; if you are young, Google that as well). However, over the past twenty years, cell phones have become so ubiquitous that many people no longer have landlines. So to continue to enforce that rule would make little sense. But that does not mean we should allow it to become a free-for-all. Nor that we should end the quiet requirement. So when cruising on the freeway at 65 mph (or any speed as this is LA) with the windows (or top on your convertible) down, that is not the time to call the Court.

Tip: When you call the Court, you should not open the windows so we can hear the lawnmowers, dogs barking, birds chirping, planes and helicopters flying overhead, kids (or yourself) playing in the pool, or deciding that is the most suitable time to make a smoothie in the blender. You should not be in line at a Starbucks or Mcdonald's, pumping gas, going through airport security, OR, as one of my colleagues pointed out, in the courtroom audience talking to one Court while the other one is on the Bench. Find a nice quiet spot and stay there until your matter is completed, even if that means pulling over and roasting yourself in your car with your windows up in the middle of Summer.

You forget yourself

For some reason, and I have tried to ponder a basis for this conduct, why people who use remote appearances forget themselves and where they are calling. I have never had an attorney walk into my courtroom as I am in the middle of a proceeding and blurt out, "I am here. Do you see me walking through the door?" Yet for some reason, attorneys and self-represented litigants feel that they can, even in the middle of a proceeding, just start announcing over the phone that they are present and asking if we "can hear them" as if this is a cell phone commercial. Others feel that while a bench officer is in the middle of another case, that is time to start asking the judicial assistant questions. You do not approach the judicial assistant while Court is in session, so do not ask questions during a remote appearance while Court is in session. Other colleagues wanted me to mention that attorneys should not ask out loud over the phone what other attorneys are present so they can ask them to pick up documents from the Court or opposing counsel or start discussing dates for depositions.

So I was a jeans, t-shirt, and tennis shoes guy in my law practice. That was the standard uniform of choice if I was not attending Court. Why be uncomfortable in a suit and tie all day to sit at my desk, talk on the phone and type on my computer? If I had Court, I always wore a suit and tie (except once, I forgot my suit jacket, but I apologized to the Court for my lapse). We could not care what you wear on the telephone as long as you are quiet (see above). Be a nudist law practice for all we care. To each their own, I say. But if you are making a video appearance, this is a court proceeding, and you are expected to dress accordingly. That applies to both attorney and self-represented parties alike.

Tip: Do not be rude or disruptive to the Court during the proceedings. Act as if you were actually in Court. Avoid wearing inappropriate attire during video appearances and remind your clients to do the same (especially if you actually appear in Court).

Understand how to use the technology

I know a lawyer who handwrote his law review paper because he did not know how to use a computer. He sort of does now, almost thirty years later, but let's say technology is not his strong suit. My mother believes, for some reason, that unless you nearly punch your finger through the screen on the cell phone, it will not register whatever she is touching. We recognize that not everyone has the same skill set when it comes to technology, but at this point it is imperative that if you are going to use remote appearance technology you understand how it works and how to use it.

Tip: Practice with the technology, and if necessary, have someone who has the ability to use it sitting next to you the entire proceeding. The middle of the proceeding is not the time to start yelling for your assistant to help you. Know how to both mute and unmute yourself. Also, if you are going to use the video appearance portion, please make sure we can see your entire face and not just the top of your head or one side of your face. Most importantly, be prepared that the technology may fail and have a backup plan.

Your Honor, can you tell my client...

So this request has come in many forms, but I will explain it like this. The attorney chooses to make a remote appearance, but the client attends the hearing in person (or is in custody). Scenario A: Attorney decides that open Court is the most opportune time to discuss the case or interview their client over the remote appearance platform. "Um, you realize we can all hear you, right?" Scenario B: The client, who is in custody or sitting by themselves at counsel table, starts to talk to the Court about their case, their feelings, their attorney, or whatever comes to their mind and ends up on their tongue. To which the attorney over the remote appearance platform will ask, "Your Honor, will you tell (or even order) my client to stop talking?" "Um, no." It is not the Court's obligation to control your client; since it is their case, they can say anything they want, good or bad. And without your physical presence, there is an excellent chance they will say something (usually not beneficial to them) when someone says something negative about them.

Tip: If you intend to appear remotely, you might want to discuss that with your client in advance and explain how they should act under all situations. There is no attorney-client privilege over remote technology in open court sessions.

Recognize the situation!

There is a great divide among bench officers about using remote appearances. Some love them. Others despise them. Many are indifferent to some remote appearances for non-substantive matters (initial trial setting conferences, status conferences, OSC Re: Entry of Judgment, etc.) but cannot fathom the rationale for appearing on a highly contentious substantive hearing remotely (i.e., Motion for Summary Judgment). If you have not figured it out yet, it is challenging to be persuasive when you are sitting on your living room couch with dogs barking in the background in a Hawaiian print shirt.

Tip: Consider the hearing and its significance in the case and decide whether it might be an excellent decision to make an in-person appearance to argue your position. California Rules of Court, Rule 3.672(d) and California Code of Civil Procedure, Section 367.75 control remote appearances. Both Rule 3.672(d) Section 367.75 provide that the Court may limit the appearance of a party or witness in a proceeding through remote technology for a variety of reasons, specifically, "the quality of the technology or audibility at a conference, hearing, or proceeding prevents the effective management or resolution of the conference, hearing, or proceeding" (Section 367.75(b)(2)), see also Rule 3.672(d)(2)). The Court can also limit remote appearances if it feels that an in-person "would materially assist in the...resolution of the particular case." (Section 367.75(b)(3).)

Now that we have beaten that horse, let us move on to some other mentions from the Bench.

Argue persuasively, not nastily, personally, or improperly

Motions and Trial Briefs are persuasive documents. You should argue why your position is correct under the facts and law and why you should prevail. However, briefs submitted for voluntary settlement conferences, informal settlement conferences, and mandatory settlement conferences should be written in terms of tone and content in a factual and brief manner. They are not an opportunity to bait the other side to unleash a list of horribles in response. The briefs should foster the willingness to engage in settlement discussions. If there are real concerns, put just the necessary facts in the brief (the who, what, when, and where) and leave the complaints and legitimate concerns to the discussion phase.

During voir dire, opening statements, and closing arguments, counsel should avoid using gratuitous remarks to ingratiate themselves to the jurors. They should also not use that time to denigrate the opposing counsel or party. It is also not proper to discuss the history of the legal system, jury trials, talk about your own family, how long you have practiced law, that you are a veteran, where you live, where your office is located, or your life experiences. Counsel is permitted to comment about the strategy of an opposing attorney or the evidence ("opposing counsel has attempted to mislead"). Still, it would be best to avoid negative statements towards the opposing counsel ("counsel has lied to you"). Lastly, avoid subtly hidden messages to infer topics that have been precluded or are inadmissible.

Tip: Be nice. It does not serve any purpose to be rude, nasty, or disagreeable and will often turn both a bench officer or jury, or both, against you and your client.

Tidbits

As I mentioned above, I received lots of single-sentence suggestions; here is what I received for your edification:

Remember to check-in

Remember to check in when you enter the courtroom with the judicial assistant or deputy when the calendar is being called (see admonition above). If you do not, your case may not be called and could potentially go off-calendar.

Ask for an interpreter

If your client needs the assistance of an interpreter, please inform the judicial assistant of that need at calendar check-in (see above). If your client needs an interpreter for a less common language, you might want to call a day or two, or more, in advance and let the judicial assistant know so that it can be arranged, as there may only be one of that specific language in the entire county court system.

Bail

Though there is much talk about bail and bail schedules in California, you are reminded that a bail schedule may exist in your county, and the bench officer must follow it.

Listen and hear

Listening and hearing are not the same. People often listen without hearing what is actually being said. If the Court makes a statement about your case, ensure you both listen and hear what is being conveyed. You might have already won, but you did not hear it because you were only listening. This also applies when the Court asks questions of a party or counsel. Even if painful or adverse, you should answer the question that is being asked. It might result in a ruling in your favor in the end.

It's a court order, not a suggestion

For those who read my past article, this issue was raised before. Clearly, you read the article but did not necessarily comprehend the article.

These trial orders (or local rules) explain how and when trial documents (briefs, witness lists, exhibit lists, jury instructions) must be prepared and submitted. These are not suggestions. Failure to follow the procedures specified may result in the continuance of the trial, denial to call witnesses or present evidence, or monetary sanctions.

Trial binders

I mentioned last time the need for only relevant exhibits, not every piece of paper, which might refer to some tangential issue in the parties' lives. If you have binders of exhibits, please ensure that the exhibits are separated by either exhibit tabs or a different color paper to show where one exhibit ends and the next begins.

Meet and confer

Again, this issue was raised before, but I have chosen to end with it (assuming you have gotten this far in the article) because many bench officers asked that I mention "meet and confers."

As I stated, talking in the hallway just before trial or sending a letter entitled "meet and confer" is not a meaningful "meet and confer." Before filing any discovery motion, remember that the California Code of Civil Procedure, Section 2023.020, states the court "shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct." In Ellis v. Toshiba America Information Systems, Inc., 218 Cal. App. 4th 853, 880 (2013), the Court upheld a sanctions order of $165,000, finding "[a] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel.... Rather the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate."

Tip: Please do not get sanctioned because you do not meet and confer in good faith. To most people, $165,000 is a lot of money to pay the opposing party or counsel.

Conclusion

Will these tips help? It depends...