The things we have learned over the past year (or not)

For those who hang on to every word of my articles (mostly my mother), this one might sound a bit familiar. Just over a year ago, as we were emerging from the peak of the COVID epidemic (and as we now find ourselves in another, according to the news), I reached out to over 500 colleagues for their "dos and don'ts" from their perspective. In the hope that time would heal all wounds and being an optimist, I decided to check in again and see how things were going. Well, things are definitely going. In which direction, my readers, I will let you decide. Here are some common themes that emerged.  

REMOTE APPEARANCES DECORUM!!!

Yet again, I received the most amount of responses on this topic. Lots of exclamation points were added to many comments. While Marcel Proust may hold the record for the longest book (1.5 million words, "Remembrance of Things Past"), I think we might get closer to "War and Peace" (587,000 words) by putting these comments together. Like before, I capitalize and bold this topic with exclamation points (and if the Daily Journal would let me underline it). So many responses were received on this big overall topic that I, again, broke them down into smaller subgroups to ensure that I covered every issue mentioned, and there were a lot of them.

While no one this time recommended "ban all remote appearances," my colleagues remain less than enthused with remote appearances overall and the users' conduct and approach to online appearances. But here is what the Bench generally says about remote appearances.   

PJs?

Most of you reading this article are well-educated. You attended four years of college (or more) and three years of law school (or more), took a grueling exam (the tougher took three days, just saying) to determine some level of competence in different areas of law, you are paid well, have a respectable profession (some would say) and most represent their clients competently. So, in the famous words of Frank Gorshin (he played The Riddler in the original Batman series), "Riddle me this...why do you think it is appropriate to appear for court in your pajamas still lying in your bed? I wish I could say that is the worst of it, but I have heard stories from colleagues near and far about what people are wearing on remote appearances, to name a few: Hawaiian shirts, t-shirts, no shirt at all, bathing suits, workout clothing and doing various activities which I won't even mention.

You want us, as bench officers, to take your client's case seriously. But when you are sitting at your kitchen table wearing Scooby Doo pajamas and eating Eggo Waffles while trying to convince us otherwise, it is a really tall hill to climb.

Remember, you are officers of the court and are expected to conduct yourselves appropriately. That includes the manner of your dress when appearing before the court. California Rules of Court, Rule 9.7 states, "In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following: 'As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.'" (Emphasis added).

Still no peace or quiet

I guess when I wrote about this before, the continual violators of this rule were the ones who did not read my article. But, hopefully, if I bang this drum enough, it will eventually sink in. Peace and quiet. Standing at a checkout line at the supermarket is not the time or place to make a remote appearance. Nor is cruising on the freeway with your windows down, playing with your new chainsaw, practicing your drums, or anything else that is distracting to the court proceedings.

Turn on your camera

In this day and age, every single person should know how to use their camera. When we use Zoom, Facetime, or Court Connect so often, there really should not be a reason to have your camera turned off. It allows both the court and other parties to determine who is speaking. The "I can't figure it out" excuse left the building a while ago and has now gone the way of my 1970 Gremlin. Additionally, people still seem to believe that you can hold up a document to the camera, and everyone can see it. We can't, and neither can the witness or anyone else in the courtroom. If you intend to appear remotely (or a witness does) make sure they (and the Court) have all the exhibits in advance. At the time of the hearing is not the time to determine if everything arrived. You might want to check that out ahead of time.

Just plain decorum!!!

So now that I have jumped off one soapbox about online appearances, I will move on to the next soapbox, which has been brought to my attention: plain and straightforward interpersonal decorum. As one colleague pointed out, "If you have been uncivil throughout the entire litigation process, don't be surprised when the Court doesn't step in to save you when you need a courtesy, and the other side denies it." I think there is a general consensus amongst not only my colleagues up and down the State but also in the legal profession at large that there is now a lack of civility, which once existed among lawyers. In fact, I was just at a bar function where they emphasized civility between opposing counsel (as they seem to do at all bar functions nowadays). My take is that it is true. So much now is based on avoiding seeing people in person and emphasizing conducting business through email, text, and online communications, we have lost the ability to communicate civilly with each other. It's easy to write angry nasty emails. It is much harder to say the same to a person's face.

Civility

I have some very general rules. Don't interrupt or speak while the other side is speaking. And don't interrupt me while I am speaking. Everybody will get a chance to say what they want, I promise. But the amount of time you get to say your piece dwindles as you require me to waste time to constantly stop you from interrupting each other (which is referred to as holding your peace). And don't talk across the table to each other. Direct all comments and arguments to the court. It is also never wise to interrupt the court by saying, "Well, you interrupted me." It usually will not end well. We are not interrupting you; we are usually trying to either point you in a direction or we are seeking to clarify or gain information on a point you raised. Those are the questions you want to answer, as those are the ones which we need help determining. Merely re-arguing everything you wrote in your written documents is not helping us.

Meet and confers

So, with that, I forward the request again for a meaningful "meet and confers." Sending threatening letters back and forth is not a meaningful "meet and confer." Pick up the phone and talk to your opposing counsel (or the opposing party). Find common ground and resolve those issues. If there are areas where you differ, then proceed with those. Talking in the hallway as you walk through the door does not qualify either. This is especially true for joint trial documents. You do not have to agree, but you better have "met and conferred" and be prepared to explain why you disagree regarding foundation or authenticity of documents.

Tip: Most bench officers do not like Motions to Compel (especially Further Motions to Compel), so contact the judicial assistant and see if your bench officer does informal discovery conferences. Many are willing to do so if it will help cut down on the motion work.

The practice of law!!!

This category deals with things you should have or did learn but may have forgotten, so I am here to remind you (cue Alanis Morrisette's "You Oughta Know").

Priority requests

Nothing in the Local or California Rules of Court designates how cases on the calendar should be called in any given courtroom. Each judicial officer is free to call their calendar in any particular order that best suits that day's calendar. I generally will call cases first where there will be a continuance, service issues, or they are uncontested. Why should those people sit through long, protracted matters to be sent on their merry way in less than a few minutes? Most courts will also try to handle interpreters' matters first because of the shortage of interpreters around the courthouse and the county, and we know our colleagues are often waiting for them to call their cases. Most judges will also handle CMCs and TSCs first because those are relatively short and quick.   

But then there is the priority request. What merits priority? Does counsel have another hearing? Is counsel in a trial? Is counsel standing at the altar waiting to get married? Though I do not speak for all of my colleagues, I will pretend to. You can generally rest assured that you are not getting priority if your matter is going to be heavily contested. So, while you are free to ask, you will most likely not get priority on a Motion for Summary Judgment. Heavily contested custody, visitation, support, or probate matters where heirs are at each other's throats over money they think they deserve under a will or trust are most likely not getting priority.

The fact that you chose to schedule a deposition, arbitration, or mediation on the same date you have to argue a complex matter does not create an emergency on the Court's part to place your matter above everyone else. They have all been waiting for their day in court and do not want to sit through an hour or more argument on whether or not a disputed material issue of fact exists (it most likely does).

A priority request is for an unforeseen circumstance requiring your matter to be handled as soon as possible. It is not because counsel has two (or more) matters on the same day in different courthouses and in different courtrooms.  

2^nd Call

If you do have multiple hearings on a single day or are going to be late, then let the opposing counsel know. (This could also have gone into the decorum section above). I hated it when opposing counsel would leave me sitting there in the courtroom waiting for an hour or more because they had some other matter to attend to. Let the court and opposing counsel know you have another matter so they can plan accordingly.   

Trial time is precious

Ask any of my civil colleagues, and they will cite their caseload for you. My probate colleagues handle 40-50 matters daily, and those of us in family law usually handle 15-20. But despite our daily work, we all carve out time for trials. And that time is very precious. So when you ask for trial time, we will usually determine how much time you really need. But once it's granted, it cannot be given to anyone else. So if your case settles, please do not show up on what would be the first day of trial to tell us, "Oh, that case settled months ago." As soon as you settle, let us know. We can almost certainly find someone who can use the time, even if it is only a few weeks (even sometimes days) before your trial is supposed to start.

I'm just appearing for...

Despite what you may think, we review each case (even for TSC, CMCs, etc.) to understand the matters before we call them. So we expect the same from you or anyone you send on your behalf. The triggering words "I am just covering for..." followed by "this isn't my case, so I am not really sure what's going on or what it is about" are like nails on a chalkboard. Thank you very much for wasting everyone's time. Whoever comes to court does not have to know every detail about the case, but they should understand the nature and extent of the case to have a meaningful conversation about it. Has discovery started, what remains, and when will it be completed? Are any motions expected to be filed? Are there going to be experts? Jury or nonjury trial? Time estimate. If someone is appearing at the TSC, they better either be trial counsel (as some of my colleagues require) or have the ability to set a trial date. Do not come to a CMC or TSC and say I do not have the authority to pick a trial date; only trial counsel can do that. That is not going to end well. Nor should you show up for a TSC or CMC and expect a continuance because trial counsel could not come. You are there; you are a lawyer; handle your business.

Tidbits

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

Easter eggs

As a child, everyone loved looking for eggs hidden around the house and in the garden at Easter. Legal pleadings are not Easter eggs. Numerous comments asked that I remind you to state early in the pleadings (i.e., the first few lines and opening paragraph) exactly the relief you seek and why your client is entitled to it. Legal pleadings are not M. Night Shyamalan movies where we await the twist at the end.

Motions in limine

It has been brought to my attention that many of you struggle with what is and what is not the proper use of motions in limine. In most cases, they are entirely unnecessary in a bench trial. As stated in Amtower v. Photon Dynamics, Inc. 158 Cal.App.4th 1582, 1593 (2008), "A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. The advantage of such motions is to avoid the obviously futile attempt to unring the bell in the event a motion to strike is granted in the proceedings before the jury. What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure. It has become increasingly common, however, for litigants to utilize in limine motions for this purpose." (Citations omitted). When it is a bench trial, merely reminding the court of a prior ruling will suffice, in limine motions are not helpful. It is unnecessary to file an in limine motion to exclude all witnesses from the courtroom during trial (bench or jury). Again, merely asking at the outset will suffice. If you are going to seek for a witness or evidence to be excluded, explain why that piece of evidence, testimony or witness should be excluded. Merely asking that it be excluded without explanation is completely unhelpful.

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. If you are going to file your exhibits electronically, please do not send each exhibit as a separate filing. Put them all together if there is not an extensive amount or batch them (1-10, 11-20).

Courtesy copies

If you are going to deliver courtesy copies, it does not help to drop them off at 4:00 p.m., the day before the hearing. They should be delivered as they are filed. And merely because you have resurrected Gustave Eiffel and figured out a way to bind two feet of paper together in a single filing does not make it useful (unless you plan to install an elevator and give people rides to the top to see the view). If the document is extensive, split the document into multiple documents, so we can review and use it effectively. They should also not have internally stapled documents.

Following up

If you agree to prepare or are ordered to prepare, a Notice of Ruling or a Findings and Order After Hearing, please be precise and specifically which Motion, Request for Order, or Petition (for Probate) you are referencing in the Notice of Ruling or Findings and Order After Hearing, especially if there are multiple matters included in your submission. Preferred method: On the Notice of Motion to Compel filed on 01/01/2024, the Court ruled as follows. . . "Rather than, "The Court ruled as follows. . . ."

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 or sooner. 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.  

Conclusion

Will these tips help? It depends...