Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about:
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Justice Laurie Zelon 0:03
Justice belongs to the community, not just to the lawyers and the judges. So let's bring the community in.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:26
And I'm Tim Kowal on this podcast. We try to provide a resource for trial attorneys. Both Jeff and I are appellate specialists, but we try to split our practices evenly between trial and appellate courts. And in every episode of this podcast, we tried to give our audience some news and insights they can use in their practice.
Jeff Lewis 0:43
And welcome to the podcast and a quick announcement. The podcast is sponsored by case text. He's text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a case tech subscribers since 2019. And I highly endorse the service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's case tax.com/ca LP.
Tim Kowal 1:10
Okay, and Jeff, you and I have been excited for this episode coming up because we have the privilege to bring on justice Lori's Ilan. Onto the show for the first time just as Elon is a former Justice of the Court of Appeal for the second district division seven justice Ilan sat on the bench for more than 22 years, including 19 on the Court of Appeal, just as Elon is legal career after Harvard Law School included an active commercial litigation practice and three years on the Los Angeles Superior Court bench before being elevated to the Court of Appeal. In 2020. Justice Ilan retired from the bench and now serves as a mediator, arbitrator and private judge with Judah Kitt West, along with arbitrations and private trials, Justice Elon provides appellate reviews to litigants curious of their cases, odds on appeal. So just as Ilan, welcome to the podcast. We're so glad to have you join us today.
Justice Laurie Zelon 2:00
Thank you. It's pleasure to be with you. Now, among the many
Tim Kowal 2:03
items on your very long resume, which I had to abbreviate for today's podcast, there's you have many pro bono service awards, including an eponymous pro bono Award, which will we'll talk about all that later. But I wanted to start off, I know that you're an avid reader, and I wanted to know if you had any book recommendations for our audience?
Justice Laurie Zelon 2:22
Well, I do but I am going to betray my background as an English major. The I highly recommend The Collected Poems of Wallace Stevens, there is an answer to almost everything in his poetry. I haven't
Tim Kowal 2:37
made it there. So you have you've gone well beyond my, my reading capacity at this at that early stage of the podcast. So, okay, Wallace Stevens. So can you share with our audience a little bit more about your background, and about your approach to the law and judging? Sure,
Justice Laurie Zelon 2:54
I feel like I've been in the law for a very long time. And when I graduated from law school, I wanted to do two things, I wanted to try cases. And I wanted to figure out a way to be of service to the community. And I was very lucky to find the law firm that would let me do both, and enjoyed litigating and trying cases, which is not always the same thing. In today's world, I had an opportunity to do both, but also had an opportunity to use the skills that I had to do pro bono work, as you mentioned, and also to work on projects that would open the court system and the justice system to more people. That motivated me, has always motivated me and continues to motivate me.
Tim Kowal 3:42
You mentioned something a moment ago about a difference between litigating cases and trying cases. And that several years ago was was a distinction that that opened, opened my eyes a bit and some attorneys, I think would would have their eyes open by it still, can you test out that distinction a little bit more between litigating a case and trying a case?
Justice Laurie Zelon 4:01
Well, in especially in large corporate representation or commercial cases, the odds of going to trial are pretty low. Because at the end of the day, it doesn't necessarily make sense for either party to go to trial. And so when I viewed myself as a litigator, I was getting cases in a position where you could understand whether it was worth taking them to trial, what the value of a settlement might be, and what an approach to settlement might be. And my distinction is then the cases where I actually stood up in the courtroom, in front of the jury or in front of the judge and put my client's case forward.
Tim Kowal 4:39
I wonder if in your experience, you've noticed attorneys who are in my own experience I ever since that distinction dawned on me I kind of used as a tail tail when a an attorney describes him or herself as a litigator or a trial attorney. I can I know to put them in one of two different boxes and and frankly, I'm more of a litigator before I came to to appel Law and I respect a great deal with trial attorneys do and it is a very unique skill set. And one that that I respect very much and other litigators might be the the attorneys who take the case up in the direction of trial. But maybe you need to hand it off to a trial attorney, I wonder if we'll get a little bit more into your new gig as mediator and providing appellate evaluations of cases. But I wonder if you notice any distinction between, you know, trial attorneys and litigation attorneys, you mentioned about getting a case into a posture for settlement. And I wonder if one type of attorney over another has more of an eye toward getting a case towards settlement?
Justice Laurie Zelon 5:37
You know, I think it's individual and a comfort level, some people are very, very happy and confident doing the preliminary work in a case. And by preliminary I mean, everything up until the eve of trial, I don't mean just the very initial stages, they feel that they are in the right place doing that work. And they feel that their skills are good, but they don't enjoy, they are hesitant about actually going to trial. And some people would just assume pick up a folder on the day of trial and go put the witnesses on, because that's where their comfort zone is. And so I think it is a matter of for each lawyer of finding the place where they feel they can do their best work. And going with that.
Tim Kowal 6:27
You also mentioned that when you started out your legal career, you wanted to both try cases and serve the community. And I wanted to talk about that latter aspect a bit. Where did that desire come from to serve the community? And was that was that service? Were you always directing those efforts toward the legal serving the legal community, in terms of where you've eventually created a probe, vibrant pro bono area of your career? or were there other aspects of serving the community? Where did that first come from?
Justice Laurie Zelon 6:56
Well, I either blame or credit depending on who you're talking to my parents for that. And when I was growing up, we lived in a small community. And my parents were always engaged in civic work, or through the religious entity to which we belonged. And that was the model and my brother and I were brought up to believe that that's what you do. That's what's appropriate. And if you have skills or talents, some of them have to go there, because you need to be a good citizen in your community. And so, you know, that was kind of what I was raised with. And it never occurred to me that that wasn't what you were supposed to do. So when I was in college, I volunteered for some groups on campus. In law school, I worked with the voluntary defender's organization, because there was a student practice rule in Massachusetts and did other volunteer work and didn't see how graduating could should change that. So that's the nutshell of where that all came from.
Tim Kowal 7:59
Just as Ilan, you started your career in the trenches doing commercial litigation, and then you went on to spend some time on the Trial Court bench and then the Appellate Court bench. What surprised you when you moved from the Trial Court bench to the to the Court of Appeal? Are there any any big distinctions that that you took note of?
Justice Laurie Zelon 8:18
Well, the biggest distinction in moving from the trial court to the Court of Appeal is time. As a trial court judge, I always felt that I needed to do something in a very timely manner, because people were waiting on it. And things had to move on the appellate court just by the nature of an appeal, the time that spent in briefing and the time that spent preparing for oral argument. And for the issuance of an opinion, you have the ability to metaphorically put your feet on your desk and think about it in a way that you don't always have on the trial court. You also have much more benefit on the Court of Appeal across the board of lawyers who have prepared authorities and are prepared to discuss them with you in a way that a prosecutor and a public defender don't always have. I spent most of the time on the trial court in a criminal assignment. And that's very different because of the nature of the work that the prosecutors and the defenders do, and their case loads. And so that was a very big change for me.
Tim Kowal 9:27
What about so you, I just asked you about differences between the Trial Court bench and the Court of Appeal bench? I wonder if maybe looking at differences over time in the 22 years you spent on the bench? Did you notice any differences in the in the way attorneys practice or the way that that judges decide cases or just the legal culture during your tenure on the bench?
Justice Laurie Zelon 9:50
Sadly, yes, I think that civility took a downturn that people were more willing to burn each other in front of the court and in their papers even in a way that when I was a young associate, my partners would have had my head if I had written some of the things that people feel more comfortable writing. I think that's not good for the system. I don't think it's good for the individuals who practice in it. And I don't think it serves the clients either. And I think that's a sad development. On the other hand, the ability to use resources on the, through the the web and the use the apps that have that make us more productive. I think people were able to find more cases to do more legal research, and to prepare better briefs, because they had more resources instantly available to them than when you had to go to the county law library to find out what happened with a statute. From its beginning to its current iteration. I spent many happy hours in the county law library as a younger.
Tim Kowal 11:04
And now what about any big changes that you noticed when you moved away from the bench and into private judging? Some of the differences I would assume would be obvious, but I would guess that there are there's some, there's some more flexibility that you would have, I wonder, you know, what differences that you anticipated, maybe some that you didn't anticipate?
Justice Laurie Zelon 11:25
You know, the main thing is, the flexibility, being on the Court of Appeal is, as one of my predecessors said to me, you know, it's a great job, because you can work any 80 hours a week you want to. And she had been at it for a very long time when she told me that. But, you know, the private judging gives me more control over my own calendar, and over my own workload, which is a welcome thing at this stage. And I, as I said, I was a lawyer for a very long time and a judge for a long time. And on both of those events, your time is not your own. And now I have the luxury of being able to schedule my time, which is something that I appreciate,
Tim Kowal 12:13
you had mentioned that being on the Court of Appeal, you had the benefit of more time than you did when you were a trial court judge, but you also mentioned that it is still a very taxing job being a justice on the Court of Appeal. So how do you square those two things you get, you get more time, but you still have to put in long hours?
Justice Laurie Zelon 12:30
Well, you get more time to decide your cases is what I mean, that you're not given a motion, which the briefing is complete the day before the hearing. And then you have to decide it from the bench. And that's what parties need and what parties expect. But you have more time to let ideas germinate, to think about things to do some independent research in greater depth than you can on the trial court. So that's what I mean about it. It's, you know, being a lawyer being a judge is a commitment of time. And that is what it is. And we all know that going in. And it's just where your time is spent. I think that is very different from the trial court and the court of appeal.
Tim Kowal 13:13
Yeah. Now, I guess you'd be able to bring in some aspects of both worlds, both the trial trial court world and the Court of Appeal world into mediating cases, sometimes there's a benefit to putting fast deadlines on the parties, you know, make make them decide make them go forward or putting the reins on things and letting you know, being the tea saucer and letting, letting things cool down letting emotions cool. Tim, you've
Jeff Lewis 13:37
just described my perfect nightmare. One day the Court of Appeal decides they're not going to grant extensions of time anymore, ever. That would dramatically change the way we practice law, don't
Tim Kowal 13:48
you think? Yeah. Well, I mean, when just as Elon was talking about the Court of Appeal has more time to decide cases, it may be realized that's probably why the Courts of Appeal are a little bit more indulgent to request for briefing extensions. It's not. When you ask for a briefing extension, it's in increments of 30 days, 60 days, you know, these are long extensions in the trial, you know, in the trial court world, where if you want an extension of time to file a brief, you know, you're asking for a few days. Yeah,
Justice Laurie Zelon 14:17
that's certainly true. But But think about it this way to that if you ask for time on appeal, and it means that you can do a more fulsome job on your brief. It saves having to provide supplemental briefing after oral argument, which is helpful to really anyone. Yeah, yeah.
Jeff Lewis 14:39
Good point, just to see when we've not had a retired justice on the show before to talk about the value of ADR in the context of appeals. Could you share with our listeners, how an appellate lawyer can use EDR to provide value to the client through either a moot court or a Neutral Evaluation?
Justice Laurie Zelon 14:58
Sure, and I think If you think about it in stages there, there are three basic stages to when ADR can be helpful. The first is, after the trial is over during the very short period of time when you're trying to decide whether to file appeal or during the longer time when you file the protective notice of appeal and are deciding how the briefing is going to go forward and whether the case is going to go forward. That's a good time for a neutral evaluation to have somebody say, you know, I know you think that the judge got it wrong three ways from Sunday. But let's look through and see if they're really issues that could be successful on appeal. I think the second stage is when all the briefing is filed, oral argument is coming. And the parties decide, let's like, Let's take one more shot at resolving this our way, instead of having the court tell us what the resolution is. And that would be, you know, a more traditional mediation approach, you know, both parties would come in and you would mediate the case. And the third part, I think, is the kind of moot court mock argument, which can be very helpful. I think, when you have the lawyers, you work with doing moot court with you, they may be more gentle. And they may not be as pushy, as someone who has had to use oral argument as a way to help resolve a case might be and I think that experience of the moot court can be very, very helpful in preparing for oral argument.
Jeff Lewis 16:35
Wow, interesting. I never really thought
Justice Laurie Zelon 16:36
those three phases.
Jeff Lewis 16:37
Yeah, that's helpful. I'd never would have thought of involving a retired justice right after the loss in court in the decision making whether to pursue an appeal or the conversations with the client about Shinju, a peon. That makes a lot of sense to me. Thanks. That's helpful.
Tim Kowal 16:53
Yeah, Jeff, you and I were just talking about that question of, you know, filing that protective notice of appeal. And I will admit that sometimes I filed that protective Notice of Appeal immediately, without just just knowing after doing the due diligence, that it is a it's an appealable order. But once I've done that, I don't want to chance any timeliness issues. So I file it, I haven't necessarily evaluated the issues to determine whether there are good issues, it's a non frivolous appeal, I would hope that I would never file a non frivolous appeal. But there may be some instances where I might not know until I after I filed the notice of appeal, and then start digging into the issues. And I wonder if after that point, I guess that to justice Zealand's point that would be a good time to bring in an evaluator or retired justice to force the parties to start looking at these issues seriously, because going back to the point that appeals can take a long time, and it might be several months before you actually sit pen to paper and work up that brief. So that's a good long window of time to really start looking at Neutral Evaluation.
Justice Laurie Zelon 17:53
There's another potential area where it can be helpful, although the timing makes this, I think makes it hard on the advocates to figure it out. But in some cases, it may be worthwhile, which is the decision whether to take a writ. Obviously, that is a very time sensitive matter. But given the fact that so few writs are granted. The question is, do you really want to spend the time and money to file that writ or not?
Tim Kowal 18:20
Right? Well, so in those instances would would a Neutral Evaluation, would a neutral be able to come in and do the evaluation soon enough to file that writ? Because, as you know, the writ has to be filed yesterday. I mean, you have the 60 days, technically, but the long if you if you're waiting till the 60 a day, you might as well not file it at all as a practical matter, because it's you've really undermined your urgency argument.
Justice Laurie Zelon 18:43
Absolutely. But you know, in theory, if you're filing a writ, it's because a motion has been granted or denied. And the motions probably been briefed. So there is something that you can give to a neutral to evaluate at that point.
Tim Kowal 19:00
I did want to ask you about, about repetitions. You know, a common question that attorneys appellate attorneys ask is what type of criteria appellate justices are using when deciding to grant relief? And I wonder if you could share any best practice tips with our audience regarding rip practice? Well, I
Justice Laurie Zelon 19:20
think the primary thing that gets looked at first is is it going to matter if we grant or deny the writ, because if the course of the case is really not going to change, it's extremely unlikely that it's going to be granted. And I think that's worthwhile to keep in mind that the you know, I know the sting of a loss as well as anyone who's ever gotten the case ready and take it in in the trial court, but sometimes it's really not going to matter. On the other hand, if you have an issue that is going to be dispositive of the case, and if you The decision goes the other way, the case will have to be retried. That's a very good case for read. Because the court does understand that the last thing you want to have happen is have a case get fully tried and then retried, when you could have predicted from the get go that that was a likely outcome.
Tim Kowal 20:22
That is good. I have seen those, those issues come up before. I also wondered about, you know, there are probably a lot of repetitions that get filed by by attorneys who don't file a lot of writs and maybe don't understand the rules don't understand the criteria for getting a writ and, and maybe those are easy calls to summarily deny them. But there are a lot I would guess that were filed by attorneys like myself who think this is really a righteous rip, this is a this really ought to really deserve some some consideration on the merits. And then it gets summarily denied as well. And I wondered if there is a common thread that goes through these kind of almost repetitions, or are there just a lot of hard, tough calls that have to be made?
Justice Laurie Zelon 21:02
You know, it's really just a lot of hard, tough calls. And some of it is trying to figure out whether it is going to matter in the case or not in the long run or whether this is an issue that's going to work itself out later in the case without intervention. But you know, you make an interesting point. Sometimes lawyers who filed writ petitions who are not accustomed to them, those repetitions may get more attention. Because if the panel doesn't want to make a mistake, and very, I can't think of any panel that wants to make a mistake, they're going to look and see if there's anything there that is lost in the fact that it isn't well presented. And so I would urge your listeners to do the very best job you can on a writ petition and tell the court number one, what's wrong. And number two, why it matters. But also to rest assured that I can't think of a panel that doesn't pay attention even to a repetition that isn't well prepared.
Tim Kowal 22:00
That's that's a great tip. Let me ask you a question about COVID. Now, with COVID cases diminishing and courts resuming normal in person operations, do you still offer your services via zoom? Or are you going back to in person? Do you anticipate going back to in person, Once COVID is fully abated? Or do you sense something of a new normal on the horizon?
Justice Laurie Zelon 22:22
I think there is a new normal, I think all of us have figured out by necessity, that there's some things that we used to do in person that we can do just as effectively this way, preliminary issues, you know, in, for example, in the arbitration area where I do arbitrations, there are a lot of things that happen well, before we get to the arbitration hearing itself, and for most of those, the lawyers don't need the time, they do need to take the time to drag down to physical location where I am for us to have a 25 minute conversation about what's going to happen. And I think that's a good thing that came out of COVID. I do think when you're talking about evidentiary hearings, that we need to go back to doing those in person to the greatest extent possible, because it's a lot easier as a trier of fact, to get a good read on what the witnesses are saying and not saying if you can actually see them in person, and I think the flow goes better, as well.
Tim Kowal 23:24
Yeah, Jeff and I talked about a recent court of appeal decision, unpublished decision, but involved a criminal trial that was held remotely over the objection of the criminal defendant. And it was held that that was that was not a prejudicial area was error, but not a prejudicial error. And Jeff, and I were a little vexed that it was not deemed a structural error, because those that sort of thing is so it's so intangible. How do you measure what the harm is from having done a virtual proceeding rather than an in person proceedings, things are seemed very difficult to measure. So
Justice Laurie Zelon 24:00
I think everybody struggles with that. But I think the courts are moving more and more in the direction of live proceedings again, in private judging, I think there is more flexibility to let the parties decide to some degree. And as I said, My practice is if the parties want to do everything up to the evidentiary hearing, by zoom, that's fine with me. But I want to do the evidentiary hearing in person,
Jeff Lewis 24:24
you want to let me let me ask you a related question in terms of oral argument in the Court of Appeal. You know, you're not determining witness credibility there. Did you find that Zoom appearances by lawyers for oral argument in the appellate context when there's no testimony that that was an adequate substitute for in person?
Justice Laurie Zelon 24:43
I don't think it was quite as good and when I talked about the flow of the proceeding, I really was thinking about that. I was a member of a very hot bench, and we questioned people extensively in my division, and there is a floated and knowing when you can break in and when you can't and reading body language. And it's much, much harder to do that over zoom. So I've found the Zoom arguments a little less informative than the in person arguments only because I never felt as if I really got all my questions.
Tim Kowal 25:22
Oh, do you feel it? You feel that you were had a more difficult time getting questions answered over virtual hearings than in person?
Justice Laurie Zelon 25:29
No, because the lawyers were evading but just because of there's a tiny little bit of lag. And sometimes there's over talking that you don't see in the courtroom. And it it makes you a little more hesitant to break in in the way that at least my division was accustomed to doing to lawyers. When we were alive.
Tim Kowal 25:50
Yeah. Well, on the topic of of oral arguments, you know, we've talked about how both Jeff and I have heard panels admonished counsel. Now we've read your briefs, we don't want to hear rehashes of your briefs. I wonder if you have any suggestions for for oral argument, because I've sense on the other side, there's a catch 22. Because on the other hand, you're not allowed to make new arguments for the first time at oral arguments. So on the one hand, you better not be old. And on the other hand, it better not be new. So you have to find a way to repackage old content to make it seem fresh. And then as soon as you find yourself repeating something that was in the brief Shut up.
Justice Laurie Zelon 26:28
Well, you don't want the court to make it easy for you to the I think the answer is that the most effective advocates I saw were the ones who had a theme that they were pulling through that is all of their arguments centered on a basic thought, or a basic theme. And they could link it together that way in a way you don't do in a brief when you move from issue to issue. But I think the most important lesson, and this is it doesn't tell you anything about the first two minutes of your argument, but is listen, because when you have a bench that's asking questions, they're asking those questions, either because the panel is not in agreement on the issue, or it's an issue that the panel wants to hear more on to make sure that the direction they're going in is correct. And the most effective oral argument is the one that answers the questions that the court has. And the least effective oral argument is one where you have a prepared argument and no matter what goes on, you are going to give that prepared argument whether the court wants to hear it or not. And the only other thing I would advise and this happened, I think the about the third oral argument I heard as a Court of Appeal justice, and it stuck with me. So that's why I tell the story is a lawyer was presenting his case. And I asked a question and the lawyer looked very annoyed at the question that I had asked that I had interrupted. And about three minutes later, one of my colleagues asked almost word for word, the same question to which the lawyer responded. Now that's a good question. Well, you can see why I remember it all these years later.
Tim Kowal 28:20
He really didn't like the way you asked the question, I guess.
Justice Laurie Zelon 28:23
Apparently not. So but I think you know, ears open is the best way to go into oral argument.
Tim Kowal 28:31
Here's open. I think that's good advice. Jeff, you want to ask you a question about tentatives?
Jeff Lewis 28:36
Sure, you know, appellate attorneys. Most of our loyal listeners are either appellate lawyers or trial lawyers who dabble in appellate law. And they love tentative rulings, and they love focus letters. And I've seen more and more courts moving towards either from your years on the bench, can you give any insight as to why certain courts are not giving tentative rulings or focus letters? Or what kinds of cases are not suitable for tentative rulings and focus letters?
Justice Laurie Zelon 29:04
Well, I think the it's different between the two because I think, a case where the issues are complex. And if you go one way, it's going to involve three different levels of analysis and to be go another way, it's going to be three different analyses. Those are great for focus letters, because the court can say, here's the central thing I'm grappling with, and a lot will turn on what the answer to that is. And that's a great area for focus letters. The other area where I've seen focus letters be incredibly helpful is where the record is not clear on some point, and often that does happen, and it's a way to get clarification of the record in advance because the lawyers are ready to speak to it. The issue with tentatives is they are great for the lawyers because it allows them to know just as You know, when you go into law in motion and you have a tentative ruling, you know, when you're going to be thinking if nothing else, but you know how to focus yourself is that sometimes the oral argument, it's surprising that we hear things that we didn't expect to hear that actually can turn things around. And if you give a tentative ruling, if you give a tentative ruling, you may never hear those things, because everybody goes down the path that you thought you were going down, and there's less opportunity to see that turning that you didn't see. And so, you know, I think there are good arguments on both sides. I resist the the explanation that some people give that the courts just don't want to be bothered to do the extra work, because in my experience, that's not what's what's driving it. But I think that there are some people who are just comfortable with focus letters, but not with tentative because they're afraid they'll lose something. And some people think tentatives are just fine. And it's going to be up to the panel, where that comfort level is. And I think that will change over time to as the panels change. You know, there are a lot of vacancies in the second district and things may change when there are no appointments. In terms of the approach to that issue.
Jeff Lewis 31:23
I have to say, I'm surprised to hear you say that sometimes you're surprised an oral argument is the sense I get from listening to MCL II I do a lot of appellate MCL Lee, and I hear appellate justices are retired appellate just to say that 90 95% of the time oral argument does not change the outcome of the of the bench memo, it's been prepared. And that in many cases, the party's a bit better served waving or arguments. I'm it's been a great insight. Thank you for sharing that.
Justice Laurie Zelon 31:54
You're welcome. And I mean, those statistics are right that, you know, 9590 to 95% of the time you walk onto the bench thinking the same thing you think when you walk off the bench. But there were enough times in my time on the court where a lawyer brought an argument in a certain way that caught me, just you know, made me say, that's a different way of looking at it than the way I was thinking about looking at it. And I want to go back and think about that some more. And those are important moments. Yeah, I've
Tim Kowal 32:29
heard justice hofstadt share a similar perspective on on oral arguments and focus letters saying to the effect that, that what you just said, just as Ilan, that that one of the one of the beneficial things about oral argument can be when when a good advocate puts the entire case through a different prism or a different theme, and can make the justices see something that maybe was not was not well presented, maybe not not well presented, but just just didn't come across as well in the brief or they found a new way to put it and and a focus letter would just make the advocates laser pointed on that one issue that was addressed in the focus letter and and you would lose that important persuasive vehicle of being able to put the case through a different theme or prison. Let's pivot back and talk about about appellate mediation. And I wanted to ask, because you had you had mentioned justice Elon, that about a couple of examples of good times, that may be good opportunities, potential, potentially, for advocates to bring their cases into a settlement posture. Even at the appellate stage, I have found it a little bit trickier in my cases to get a case into a settlement posture. And I chalked that up to maybe at that point, the the party's positions are too well entrenched in and it's all or nothing at this point. And I wondered if, if you have seen that seen that phenomenon? And if if there are any ways you can suggest to the council to try to tell their tell their clients that they know, you know, an appeal, if you're the respondent, the you know, things can change on appeal. And if you're the appellant, you know, it's it's an uphill struggle. But ways can you can you suggest to get a case into settlement posture when it's on appeal?
Justice Laurie Zelon 34:10
Well, I mean, I think it is absolutely correct that the further down the road on a case you are the more entrenched everyone is in their positions, and the harder it is to get them to see the other side. On the other hand. Delay is something that is real. It just takes time to process and appeal through. And I think in some cases, the parties have been living with it so long that they they really haven't reached the point where they can't stand it anymore, and you're offering them an exit door. But I think the most important thing is that there is a level of uncertainty on appeal. It is a different level of uncertainty than taking a case to trial because the statistic Because about how many appeals are successful, are significantly different from how many trials are successful for the plaintiff. But it allows the parties, I think, to structure, what's going to happen, that an appellant who, whose lawyer says, basically, we've got a shot at it, but I really can't make you any promises. But if we go into mediation, we can seek an outcome that you can live with in a time in a manner that you're comfortable with that that, that is the way to begin to change people's minds is by reestablishing a level of control over the process that they really don't have otherwise. And I think for, you know, certainly for some of my clients, when I was practicing law, the the notion of giving everything up into somebody else's hands was difficult for them. And anything that I could do to bring it back to a position where they had some control over how it would go down, if not, what the outcome would be specifically gave them more confidence and more comfort. And I think that that is a helpful angle to take with a client who really is committed to their position, but is deep into this process.
Tim Kowal 36:31
Do you have any pet peeves? Or have you observed anything that attorneys do that are counterproductive that you wish they wouldn't do? Or which says something that good advocates do that you wish you would see more doing?
Justice Laurie Zelon 36:43
I think my biggest pet peeve is when people misrepresent what cases say, on the theory that nobody's going to go and read the case. And the best advocates don't do it. I mean, if you know, if you're a good advocate, and you say, the case says x, then when I go and read the case, the case is going to say x. But if a brief turns on a certain case, and the case is just sometimes not even close to what the brief says it is, that hurts the position on so many levels. First of all, it lowers the competence of the court and everything else that advocate is putting forward, it makes you wonder why they feel it necessary to misrepresent a case. And it I think shows a certain level of disrespect towards the court on the assumption that the court is not going to put the time and energy into figuring out what the law actually is before rules. And so that's my pet peeve. And I think it's the same in the private context, where you know, there's more flexibility, there's more flexibility on timing, and whether you do let our briefs or formal briefs or things like that, but I think, you know, absolute honesty with the court, or the mediator or arbitrator is critical, and it's hard to get around it once you lose that credibility.
Tim Kowal 38:11
Yeah, I would guess that would that sort of thing of Miss citing a case? misrepresenting what a case says happens more often in the trial court where things are fast, you got to brief this thing fast. And so attorneys may more often just be relying on what it said in the head notes and maybe not reading the full case? I think there would be it would be much harder to excuse that practice in the Court of Appeal when you are given a lot more time to to research the case. Know what it says and faithfully represent what it's holding is. Yeah, I would I think that's a justifiable pet peeve. I wonder if on the other hand, you see too much reliance on cases. Let's say for example, in a case, when a case goes up on appeal, it's probably because the cases are not clear on a certain point. And maybe there's you know, there's one case that says X and the other case, it says Y and the Court of Appeal has to decide which it's going to follow. But in some cases, they're just there's no good case on all fours. And I wonder if in those cases, sometimes one tax attorneys take is to argue, you know, every single case there is out there remotely in the universe of this area of law and say see, it fits in with the majority of these other cases. Other times I wonder if it's just more effective to say, look, here's here's the general principle of law. This is the outcome that really makes the most sense and just rely on an argument and persuasion rather than kind of a doctrinal trying to jam the square peg into the round hole.
Justice Laurie Zelon 39:38
Yeah, you know, if it's really a case of first impression, if there's nothing out there that's on the point, then analogies important, much more important than you know, in 1776. This happened and this follows directly from what happened in 1776. But an analogous situation is often very helpful when they when there's not so much absence of authority, the worst thing to do is to cite 75 cases, all of which say basically the same thing, instead of picking the key cases and the most recent cases in the area so that neither the Justice nor their research attorney has to read 75 cases, all of which say, when you come to a stoplight, you should stop. So but but it's the problem, I think, was saying this fits within within a doctrinal point is that doctrines change, and there's flexibility and the law changes. And so just because there was a case, that was decided that seems similar, and seem to set out a principle, you should cite it, but that's not the be all and the end all. And so really explaining where this would go, what the what the outcome would be, if you go one way rather than another way on the law, I think is much more important, because on the trial court, you're deciding the case in front of you, and you are on the Court of Appeal as well. But because of the Court of Appeal in California, is the last stop for almost every case, the panel always has to say if we decide this this way, what is that going to mean for cases down the road. And in an area where the law is developing, being able to help the court make that decision and see where the path is, is very helpful.
Tim Kowal 41:36
Now, just as Ilan, you we talked a little bit earlier about your commitment to public service and to community service and pro bono work. You've served on a number of public service positions, you were a former chair of the Standing Committee on lawyers public service responsibility, you are a former member of the consortium on law and the public, former chair of its national law firm pro bono project. And you're also former chair of the Standing Committee on legal aid and indigent defendants, I think we can all identify several problems with our justice systems with our justice system. And I wondered if through all of your efforts and activity in in community service, and particularly in the legal profession, I wonder, in your perspective, are all of our problems with the justice system intractable? Or are there some problems that you could you would point to and say, Look, we can actually fix this problem, or at least make some headway toward fixing it? Do we always have to throw our arms up and say, Oh, well, you know, it's just just this intractable problem. And we're just going to be complaining about it until the end of time. I don't
Justice Laurie Zelon 42:38
think we can just throw our arms up and say it's intractable and move on. Because for the people who use the justice system, that's not a solution. If you can't get your problem resolved, if you can't get a fair hearing that has consequences that echo through the society. And when people feel dispossessed, and unable to get justice. The good news is I think if we think about things in a different way, and I've been involved in some efforts to say justice belongs to the community, not just to the lawyers and the judges. So let's bring the community in. Where do people go when they have problems, they often don't go to a lawyer because they don't know what one, they think they can't afford one, or they think they can't find a good one. But for whatever reason, so where do they go, they go, if they have a social workers there often go to their social worker, if they have a religious leader that they're in touch with, they'll do that they go to the public library, they ask their doctors, who are the trusted people in the community that people present their problems to. And let's give those people the information and the ways to connect the people who need justice to a way to get their problem solved. And there are 15 states in the United States that have joined on to a program to do just that to work with people throughout their community. And California has actually been working on that through the Access to Justice Commission for a very long time. And I think we can make a lot of progress, if we, in some ways give up exclusive ownership of justice and take it to the community. So I don't think it's intractable. It's hard, but it's not intractable.
Jeff Lewis 44:33
Your Honor, I'm super busy. I got three opening briefs and a petition for review do in the next 30 days. Do you have any advice on how busy lawyers like me can find time to give back to the legal community and and to otherwise help improve the judicial system?
Justice Laurie Zelon 44:50
Well, the the the funny answer, which people always said to me, was, well, you just don't sleep. But that's not Got a real answer? You know, all of us find time in our day to do things that we want to do. You know, and there are times in everyone's life when they just can't take on one more thing. And you got to, you got to respect that and roll with it. But there are also times when we have time, and looking for opportunities where you can take that time and use it. You know, I was lucky enough, as I said to be with firms that respected my desire to do pro bono, but you schedule it like you schedule everything else. And I don't mean to sound offhanded about this, but it is a matter of scheduling and just setting a priority for some of your time for some of that work.
Tim Kowal 45:46
Jeff Lewis 45:47
I guess it's easier for older lawyers like me and Tim, and have more control over scheduled and young lawyers coming into it or at the mercy of their bosses. Yeah, my
Justice Laurie Zelon 45:56
kids often wondered why I wasn't home for dinner. But yeah.
Jeff Lewis 46:00
Listen, Your Honor, you've been more than generous with your time. We've covered a lot of topics here today, before we wrap up and conclude the interview. Is there. Is there anything else you want to share with our audience of appellate lawyers about your time on the bench or your current work as a neutral?
Justice Laurie Zelon 46:17
Well, I have to say that I consider myself to be one of the luckiest human beings who walked the face of the earth. Because I had great jobs as lawyers and were was able to do things that I really wanted to do. I enjoyed the trial court. And it was the privilege of my life to serve as an appellate justice. Because if you know if there is a goal in the law to make the law better, that's one of the great places to do it. And I feel incredibly honored to have been able to do it at this point in my life. Going back to solving problems one at a time with people, I think, feels very good to me to be able to take what I've learned over the years and see if I can help people work through something and I as I said, I'm very lucky to be where I am and to be able to do what I have done and plan to do going forward.
Tim Kowal 47:11
Well, just as Elon, we want to thank you once again for joining us on the podcast. And that's going to wrap up our episode we want to thank case text once again for sponsoring the podcast each week we include links to the cases that we discussed on the podcast and using case text links and listeners of the podcast can find a 25% discount available to them if they sign up at case texts.com/ca LP.
Jeff Lewis 47:33
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 47:44
We'll see you next time. Thanks again, Justice Zelon.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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