“You Can’t Lose a Case by Making It Too Clear”: An Interview with Justice John Zebrowski

Timothy Kowal, Esq.
November 15, 2022

When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes.

This is but one example how Justice John Zebrowski, though retired from the California Court of Appeal since 1999, has served in a number of important roles affecting law and legal practice. On this episode of the California Appellate Law Podcast, Justice Zebrowski tells co-hosts Jeff and Tim about his work on the Law Revision Commission, and the BAJI Committee writing and amending civil jury instructions. But given the low-absorbency rate with jurors, is the practice of jury instructions at trial merely ceremonial? Justice Zebrowski weighs in on that. And what is the difference between BAJI and CACI?

Mediating or arbitrating a case? Justice Zebrowski offers some advice from 23 years as a neutral:

  • You can never can lose a case by making it too clear.
  • Initial “group meetings” at mediations are not helpful: they turn into finger-pointing and posturing.
  • Don’t expect a case to settle in one session. Most cases will settle, usually it is just a question of when—which, in turn, usually is a question of when the litigants are ready to lay down their egos.

Justice John Zebrowski’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.


Hon. John Zebrowski (Ret.)  0:03 
One of the things that you never lost your case doing is making it too clear for the decider.

Announcer  0:09 
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. Welcome, everyone.

Jeff Lewis  0:24 

I am Jeff Lewis.

Tim Kowal  0:25 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialist and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. And a quick thank you to our sponsor. Our

Jeff Lewis  0:41 
podcast is sponsored by casetext. Casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019. I highly endorse the service unless there's of our podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/CALP.

Tim Kowal  1:05 

Today on the podcast. We are honored to welcome justice John's the broski to the show. For the past 23 years since retiring from the Court of Appeal justice Zebrowski has held down a full time arbitration and mediation practice focusing on all manner of corporate and business related disputes. Justice Nebraska is an alumnus of the University of Pennsylvania and Georgetown Law. After several years in private practice, Justice Zebrowski had joined the Los Angeles Superior Court as a commissioner from 1982 to 1986. And he was appointed to the bench in 1986. And then in 1995, then Governor Pete Wilson made judge Zebrowski into justice Zebrowski, who then retired from the bench in 1999 to join ADR services. But as we'll discuss further, that was not the end of justice Zebrowski service in shaping California law. Justice Zebrowski, welcome to the podcast. Thanks for joining us today. Thank you. Now justice Zebrowski, I read that you are a western Pennsylvania native and the son of a factory Foreman and a waitress what was the path from there to the California Court of Appeal?

Hon. John Zebrowski (Ret.)  2:17 
Well, it was like things that happen in life where you get a little bit of luck and a little bit of help at the same time and things work out. And this was a situation where when I was in high school, my one of my high school track coaches was acquainted with an alumnus from the University of Pennsylvania. And this alumnus happened to be interested in the track team. And so my coach arranged for me to meet this alumnus and the alumnus arranged for me to meet the track coach from Penn. And one thing led to another and I was offered a scholarship to go to Penn, not 100%. Unfortunately, I still had a supplement. That was a little bit of side work, but it made it possible for me to attend Penn. So there was an attending Penn then, once I graduated from Penn, I worked for a couple of years and then applied to Georgetown when I went to Georgetown. And when I graduated from Georgetown, I came on to work for a firm here in Los Angeles that has since been merged out of existence and the old McCutchen firm. But I worked there for a while and then I was given this opportunity to join the Superior Court and I did join the Superior Court. And then from there, when as you said in your intro a little while ago,

Tim Kowal  3:24 
I also heard that you had done some spent some years working in steel mills now being being from Western Pennsylvania, that it's a common profession or common job out in those parts. So I take it that was that a career in law was not a not a straight trajectory you had your path led you through the steel mills. And as you mentioned, track and field scholarship, supplementing your income and other ways. Tell us about your experience working in the steel mills and how that informed your later work as an attorney.

Hon. John Zebrowski (Ret.)  3:52 

Well, I worked in the steel mills for during the during the time of my college undergrad career I worked at in the steel mills about 16 months in order to supplement the money that I had from the scholarship so I could afford to go to Penn. And but before I got to work in the steel mills, I had worked in other places to truck loading docks, construction work, dairy plant things and things of that nature. But working in the steel mills illustrated to me the danger of working in heavy industry like that, and people really do get injured jobs of that kind. And when I was there that was prior to the Occupational Safety and Health Act. So things were a little more dangerous than than they are now hopefully. But it was quite an experience to see how people worked and what risks they would take just to bring home a few dollars of pay

Tim Kowal  4:42 
and was a career in the law always almost part of your career objectives or did that only dawn on you at a later time?

Hon. John Zebrowski (Ret.)  4:50 

I always had an interest in it but it was really in my undergrad time that I decided I would go to law school. I can't say I was planning it from kindergarten. It was something that came up later on tonight, I started deciding what I was going to do that was not going to be working in the steel mill.

Tim Kowal  5:04 
Right? Well, justice, Nebraska while you have not served on the bench in a couple of decades, still, in that time, since you retired from the bench in 1999, you have served in a number of other important roles affecting law and legal practice. And I'd like to just touch on a few of those with you. First, you served on the law revision commission, you were appointed by Governor Schwarzenegger to the law revision commission in 2008, where you served as chair in 2010. What can you tell us about the role of the work that you do in in the law revision commission for our listeners who are not familiar with its impact on shaping California law?

Hon. John Zebrowski (Ret.)  5:39 
Well, the law revision commission is designed to assist the legislature in maintaining the statutory law of California and in good shape where there's not ambiguity. There's not miss types. There's not things missing there. It's the work of the law revision commission is to assist the legislature, but it's in a very technical way, it's not a policy discussion, we're not the ones that the legislature comes to to decide what the policy content of the statutory statutes should be. We're the ones to make sure that they make sense. Like, for example, one of the projects we did was to take all the references to firearms that appear in the California statutes, and make sure that they are all all those terms are clear to us. And we found things like, for example, there would be one concept that we have three different labels attached to it, even though it looked like they meant to say the same thing each time, they use three different words or phrases to refer to those topics. And as you know, when you're doing a statutory construction, one of the things you look for is a different word being used. And if a different word is used, there's a presumption that that's because the legislature wanted it to mean something different. But the lawyer who's in commission would do its work and conclude it really appears that the legislature meant to say the same thing here, but they were doing it at a different time in a different place, with different personnel involved, and so forth. So they used a different term to refer that very same concept. So our report them would contain a recommendation that just be looked at and to see whether we should have this amended so that it would all be one term and not lead to ambiguities. So those are the types of things that we do. And I think the people of California are getting a good bargain from the work of the largeish. Commission. It's very small, but it has some very good staff people and they do a lot of hard work.

Tim Kowal  7:28 

I wonder if it gets difficult finding finding folks to serve in a in a role that does not you say that the law revision commission does not concern itself with matters of policy, does it difficult to separate the two because those kinds of things always everything else tends to bleed into policy. I'm thinking of a recent discussion, Jeff and I had about a recent Ninth Circuit opinion where Judge Beya filed a separate opinion about the use of the term non citizen used in majority opinion, where the statute says uses the word alien. And the majority had reason that alien could be deemed to be a derogatory or offensive term and decided to use opt for the term non citizen instead. And Judge Beya said, That makes things difficult for the litigants who have to use the statute and its term alien, and then the judges who apparently now don't like the statutory term. So all things pedantic and definitional eventually become a matter of policy. It's only a matter of when it sometimes seems I wonder if it becomes if you ever had an experience where it was difficult to find that line in between what's policy and what's merely mechanical or definitional.

Hon. John Zebrowski (Ret.)  8:39 
I didn't really find that on my work with the law revision commission, although we would at times have discussions about whether the use of a particular term or phrase presents a question of policy. And if we were to determine that it did present a question of policy, we will then decide that we'll just tell the legislature that it looks to us like this implicates a question of policy, and therefore we're moving on past it. But if we're wrong about that, let us know. And we'll do a study of it and give you a supplemental report.

Tim Kowal  9:07 
But are there any pardon me? Are there different philosophies or schools of thought represented among the different commission members?

Hon. John Zebrowski (Ret.)  9:15
I didn't find that to be the case for this type of work. This type of work is really law technician work. You're just trying to find out are these these two words a non citizen alien are used? Is that because they mean different things? Or is that because they were put in at different times by different people, and maybe they should be harmonized?

Tim Kowal  9:34 
Right. And how many members are there on the law revision commission?

Hon. John Zebrowski (Ret.)  9:38
That's a good question. It's been a long time now since I was on the law revision commission, but if my memory serves me, I'd say it's about a dozen. Okay. There's a mixture of people in private practice and people in government practice and people from some of the prosecutorial offices and people that work for the legislature and get together get a good mix of people. Yeah.

Tim Kowal  9:59 
He also served on the State Bar lists pendens committee where you drafted code commentary that now appears in the annotated code. In my anecdotal experience, too many lawyers, both practitioners and judges don't seem to understand what a list pendens is and when you may record one, what is the role of the list pendants committee and what was your experience serving on it?

Hon. John Zebrowski (Ret.)  10:19 

What that was a sort of a unique situation. There was a list pendants law that was in effect until about 20 or 25 years ago, the time when this law that's now in effect went into effect. And that law, if you read it, it's it appeared to call for a a factual review of the loose pendants to determine whether it was valid or not. But the Supreme Court came up with a decision saying that you cannot consider the facts on a motion to expunge a list pendants. So this meant that the list pendens would stay on the encumbering the property up until the time of at least the end of appellate procedures and will cause a lot of mischief. And the mischief has been caused in a situation in which the law as being applied by the Supreme Court case was exactly 180 degrees, the precise opposite of what the legit what the state statute said. So I wrote an article about this was published in the magazine and the Los Angeles Bar Association, pointing out that we have this legend, we have the statute saying one thing and we have the casing another thing. And so that created some interest. And so the bar got the State Bar formed what they somewhat grandiosely, called the Liz pendants, task force. So so they had this basically with a committee, but they call it Liz pendants, Task Force and they asked me to join it. And the job given to the task force was to come up with a new list penance law. And so that's what we did. We came up with a new list penance law that is in the books now. And then we presented it to the legislature in the past.

Jeff Lewis  11:51 
So he's the reason we have to take a writ up instead of an appeal on a motion to expunge the list pendants. Well, there

Hon. John Zebrowski (Ret.)  11:58
are a lot of things that were changed. I mean, not now you can get a review of the facts. And if the facts don't support his payments, for example, maybe you have to post a bond or something. But it made a lot of what we regarded as improvements to the law. And as I say, I haven't really been following lis pendens matters too much in recent years, because it's not the kind of thing that would come up in an ADR setting very much. You'd need a unique circumstance to come up with an endless pendants, question, maybe in a malpractice case or something like that. But it seems to have been weathering the test of time pretty well.

Tim Kowal  12:32 
Well, that's an encouraging case study. So you spotted a problem. In this case, it was a deviation between the statute and what the California Supreme Court said concerning Liz pendants, wrote an article about it, the Los Angeles County Bar Association took interest in it created this task force and and then lo and behold, we got a legislative change out of it.

Hon. John Zebrowski (Ret.)  12:53 
Not as a state bar, not the LA County Bar, the article got published in the magazine of the county bar by the state bars bar that got interested in it. And all that was done by people who were active in the real estate section of the State Bar. And then I got asked to join after the this task force had been assembled.

Tim Kowal  13:10 
So is that a viable blueprint for other practitioners or judges, former judges who may see some some friction in the law, some room for improvement is to start with an article if you can get the attention of the State Bar or one of its practice groups? Well, I

Hon. John Zebrowski (Ret.)  13:25 

haven't seen it happen in any other circumstances. And I think you'd have to have a unique circumstance to have it work. But this was a situation where it was pretty obvious that the statute said one thing, and she sets on an 80 degrees, the opposite. And so it was an outlier that just was causing problems.

Tim Kowal  13:42 
And was it was it the fact that it was causing problems, the real impetus for effecting that change? Or was it? Was it really just the academic fact that people don't like it when statute says one thing, and that's in the Supreme Court says another thing? Or do you have to actually have the prejudice like we'd like to talk about in the appellate world?

Hon. John Zebrowski (Ret.)  13:59 

Well, I would say all of that, at the time at around the time that I wrote that article, I was serving in the old rescind receivers, departments in the Superior Court. So I was getting these those pendants, cases, one after another. And I'd look at it and I'd say, Well, the way the statute is written, this doesn't support this pennant, but the way the case is written, it does. And so I have to be making, making these decisions and explaining to the attorneys why I'm making this decision is contrary to the wording of the because I have to lower court so I have to follow the ruling of the upper course. So I have to follow what the Supreme Court says after explaining the attorney while making his ruling that is contrary to the plain language of this statute.

Tim Kowal  14:39 
Right. Now, we've had to go off on some unrelated tangent. We've talked about this problem of rule eight point 1115. And the rule that says the practitioners may not cite an unpublished opinion for any reason, we talked about this, this problem in the sense that the rule that the way that the rule is drafted is so broad that practitioners are actually forbidden. By the text of the rule from citing an unpublished decision, even in a petition for review to the Supreme Court on the grounds that there is a divergence of opinions. So you can say that there's a divergence of opinions but technically under Rule eight point 1115, you're not allowed to cite which of the unpublished diverging opinions exist. And I thought that's and of course, the the practice is that litigants will still cite to the unpublished opinions and the Supreme Court seems to sanction it seems to bless it as an accepted practice. But there you have some friction between the way that the Supreme Court actually practices and litigants before the Supreme Court actually practice and what the rule says, um, I wonder if you can comment on on that, either either as another example of friction that that needs to be addressed, or just on the on the topic of unpublished opinions. Generally,

Hon. John Zebrowski (Ret.)  15:49
we see a lot of citation of unpublished opinions at our work because the way the rule is drafted, it doesn't appear to rule out the citing of an unpublished opinion saved in arbitration. And in any event, people will cite them quite quite frequently. But now, you have to ask yourself, how did this situation arise where we have this opinion, but yet it's unpublished. Now we know what the rules say about if it breaks new ground, if it shows a new way of the laws applied, you're supposed to publish it, but yet we'll see these unpublished opinions come. A lot of times. The reason why an opinion is unpublished is you have to put yourself in the shoes of the Pella justice appellate justice sitting there has this case, a case has to be decided they can't the appellate justice can't say, Well, we're just not going to decide this is too close, or we don't think it's proper of the presented or whatever you have to you have to decide it somehow. But of course, you may not have complete confidence in the briefing that you got, you may not have complete confidence in the way that cases have been presented. But you have to decide the case. So what do you do you decide the case the best you can and then you don't publish it. Now the reason you don't publish it, so it won't be cited? Because you're not confident that it's right. So when you're dealing with a unpublished decision, it's not like it's, I talked to a lot of law professors about this, they just think everything should be should be published. Because it's more things for a law professor to play with, I think you can imagine what that would do to practice if we expanded the number of published opinions by a factor of about 10, or 15. And you'd have to read through 10 or 15 times as many case reports, as you do now, in order to present your papers. So if you see a case is not cited, there's not published, there's usually a good reason why it's not published.

Tim Kowal  17:32 
Well, and you just mentioned, one of the reasons is, is because there's just an enormous amount of effort that has to go into writing an opinion to begin with, and then if you're going to make it a publishable quality, so that they say if you have a, you have a case that the facts are subtle, and it could kind of go either way, but you get a you get the panel deciding that it should go that it should be affirmed rather than reversed. But it's it's a close call, and you don't want it to be an example that can be cited as a definitive, unequivocal case of why all such cases should go that direction, then you want to just make it unpublished. So it doesn't become a problematic precedent. So I wanted to ask you, if money and time are no object, and you could justices could invest as much time as we're as was needed into making the holding as crystal clear as possible. So that could it could be used assignable published authority, would we still have a need for a point 1115? Or there's the other cynical explanation for that appellate justices sometimes use the use on published cases is to kind of sweep cases under the rug. But if they're if the case should come out one direction, but maybe there's not good legal authority to support the outcome, the way the panel wants it to come out, then they'll just stamp unpublished on it and be on their way.

Hon. John Zebrowski (Ret.)  18:45 
Yeah, well, I'm not gonna accuse anybody, but I will say I've seen some of these unpublished opinions coming through in arbitrations, for example, and it's hard to imagine how somebody could write this opinion and then have it published. I mean, like, for example, the statute that says that when you're selling a house, you have to disclose all known defects. Well, it says known defects. But I see I've seen several cases in appellate in arbitration practices where the findings of the court was that the duty to disclose extends to not only known defects, defects you should have known in other words to a negligence test. Well, that's a quite a quite a different ballgame there. If they're going to say that you're subject to disclosure to an obligation to disclose things that you should have known but what you didn't so you can't disclose it, because you didn't know in

Tim Kowal  19:34 
the public cases hold that sellers have to disclose known defects, but there are some unpublished cases that will say known or should have known but but they're not published. And they just kind of so they kind of exist in that unsuitable periphery of the law,

Hon. John Zebrowski (Ret.)  19:50 
where sometimes you'll get a situation like that justice has a lot of things to do there other cases attend to your drafting an opinion. They look at it and they say, well, the attorney needs that are actually handling this case, they'll know what I'm talking about, because they've been handling this now for two or three years, so they know what this case is about. So I don't have to spend that extra 20 hours polishing the explanation here so that a person that walks in off the street completely cold, never saw this case before can read it and be clear about it. So they'll issue the opinion in unpublished form, because they're not worried about somebody misunderstanding and getting let off down a rabbit hole somewhere.

Tim Kowal  20:28 
And one other question about unpublished opinions in arbitration practice. Now, rule eight point 1115 doesn't apply to arbitration. So there's no the rule doesn't prohibit practitioners from citing unpublished opinions in in arbitration, which is why you you've mentioned that you've seen so many of them cited before you as an arbitrator. But notwithstanding the fact that they may and consistent with rule point 1115 cite that practitioners may cite unpublished decisions to you as an arbitrator. Do you? Do you find that it's appropriate to you welcome citation of unpublished opinion? Or do you get the sense that you often do that?

Hon. John Zebrowski (Ret.)  21:03 

I wouldn't say I objected it being done. But I look at them with a skeptical eye, let's say let's put it that way. Because if if it's an opinion, that's dealing with a well established point of law, you ought to be able to cite me the published opinion on that. So there's a quick there's a reason why it's unpublished. And it could be unpublished, mainly, just because it's cumulative to other cases that are published. But then as I said, you can always take me the publish case, then. So it's so it's not, the implication is it's not standing for the published opinion theory. But for some reason, it's not published, even though it seems to conflict with that as well. So why is it not published?

Tim Kowal  21:39 

Yeah. So if you see an unpublished opinion cited to you, as an arbitrator, you're probably thinking, Okay, this either is ought to confirm some published authority, or if not, we must be talking about some area of law. That is that is unclear. This is a matter of first impression.

Hon. John Zebrowski (Ret.)  21:56 
So it could have been one of these situations where it's not being explained clearly in the unpublished opinion, because the attorneys will know what the case is about. And it's not a good use of money resources. And there could be a lot of reasons like that why it's unpublished? Yeah. So you're putting up a whole new panoply of considerations that now instead of trying to resolve the cases before you and you're thinking, why was this case not published? Well, that's kind of irrelevant. See if you'll get into it

Tim Kowal  22:20 
as a former appellate justice, do you think you see that issue differently than other other arbitrators who have not served on the Court of Appeal? Or do all arbitrators kind of understand that to put an asterisk next to the citation of an unpublished opinion?

Hon. John Zebrowski (Ret.)  22:33 
That's a good question. I never really saw whether the people who had the experience of serving as an appellate justice look at that differently.

Tim Kowal  22:41
Alright, one other one of your other experiences I wanted to ask you about before we move on to talking about your experience as a as a neutral, you served on the Baji. Committee, which prepares the civil jury instructions from 2005. Up and I think up until the present, earlier this year, we had a discussion with another appellate attorney, colleague of ours, Stephen love. And we discussed some studies showing that jury instructions, just go in one ear and out the other of most jurors, and just the absorbency rate of jury instructions is effectively zero. I wanted to ask you the same question, as I asked Mr. Love is the practice of reading jury instructions to the jury merely ceremonial. But first, I want to just by introduction ask you, what does the bahji Commission do?

Hon. John Zebrowski (Ret.)  23:26 
The Budget Committee has been in existence for something like 60 or 70 years long time. And, as you mentioned, kept currently the bad instructions. Now the big instructions had to a certain extent, not, not technically, but in practical effects been to an extent superseded by the KC instructions, but the bad J instruction is still being maintained. So there's a committee of about half a dozen of us that meet usually once every six months and go over any new cases that have come up that impact upon jury instructions, and we update the badging instructions in West Sell, sell them and people buy them and use them a lot, particularly in federal court. And so they're still alive and kicking, although I don't know if they'll last Outlast Casey, because Casey has the support of the judicial council. So

Tim Kowal  24:19 
and yeah, so what is the you said that the badji is more often used in federal courts, but Casey has the blessing sanction of the California judicial commission?

Hon. John Zebrowski (Ret.)  24:29 
I don't know if it's, if I would say more often, but I would say that often I see them in federal court.

Tim Kowal  24:35 
So what is

Hon. John Zebrowski (Ret.)  24:36 
the future? The main the main difference seems to be that the case the instructions were created with the concept of trying to make the instructions more understandable to the average person. So that's the whole point of Casey they changed the the syntax of the sentences and try to make it more understandable which is a laudable goal. Of course, unfortunately, one of the things that can happen is if you're trying to simplify something, you can just leave some things out and there'll be simpler, but we'll also be wrong. And so there's that's the risk that is posed by taking the KC approach. On the big side. It's been around for a long time. And the criticism of badji is that sometimes the technical language it gets into the instruction is a little much for a jury to understand so badly and subject to that criticism. So there's different in different cases, you might want to use different set of instructions.

Tim Kowal  25:23 
And do you have a perspective on? On the question of what impact does reading jury instructions to actual jurors have on the outcome of a case now, when, as as attorneys, you know, Jeff, and my experience with jury instructions is probably when we're drafting a complaint we'll look at, we'll look at the jury instructions to make sure we have the elements, right. And then when we're preparing our opening statements and closing arguments are consulting on as embedded appellate counsel for the trial team, we want to make sure that we're hitting all of the ultimate facts to establish our causes of action or affirmative defenses. And then obviously, the judge wants to read the correct jury instructions so that on a potential appellate review, there's no jury instructional error, but that the critical moment is when the judge reads the jury instructions to the jury. And we hope we assume, rightly or wrongly that the jury is understanding them, and then actually applying the facts to those jury instructions. But like you mentioned, sometimes the jury instructions are complicated. Maybe we can make them simpler, but maybe there's no, maybe there's no denominator to too small and common. That is enough for 1212 jurors to all understand what the law actually is. What's your what's your impression of his reading instructions to a jury merely ceremonial.

Hon. John Zebrowski (Ret.)  26:40 
I think it's largely ceremonial. I think you're right that the jury doesn't absorb too much of what is read to them. That's why back when I was in a trial department in the mid 80s, and computers were just coming out. This is back in the days of the IBM desktops and the Korean knockoffs and all that I got myself a Korean computer, and I started preparing my instructions on instead of today's to be written out in in on forums and the internet, and the Asians look like chicken scratching, a lot of times you get a form, and you'd scratch things out and write things that really kind of a mess, I started writing out my jury instructions on a computer. And then I would print out copies so that every member of the jury had their own copy of the jury instructions. And then we would have to read them because the law requires you to read them. And I would explain to the jury or we have to read them. But you're going to get your own copy and get to keep this copy. And anytime you want to refer to it in the course of this litigation, you can refer to it. And I think that they absorb a lot more of it when when they have their own jury instruction. That's their set of jury instructions, reading it to them, I think you're right doesn't do much good. But it doesn't one thing, I guess it corporate takes it down. And you now have a record that these are in fact the jury instructions that were read to the jury who you would think it'd be easy enough to put an exhibit sticker on and put it back in to the fall within an IC sticker on it. But maybe people don't trust that system. But of course we don't trust it for jury instruction, we probably shouldn't not be real trusting about other things as well. But in the event reading this, their eyes glaze over. And it doesn't get them anywhere. But I found that when they have their own set of instructions, they read them like like they're reading through the Bible and looking for great truth in there.

Tim Kowal  28:23 
And yet, I don't. Yeah. Is that a common practice? And if not, should it be a common practice giving you handing the the jury jury instructions,

Hon. John Zebrowski (Ret.)  28:32 
I assume that's common practice now, because I was able to start doing it back around 1984, or five and, and all the way up through there. Of course, the computers do much better. And also a lot easier to do now than was that. And back in those days, there was no windows, it was all DOS, you had to learn all the keystrokes, and all that sort of thing. But then once you learned the basic stuff, you could do the instructions that way.

Jeff Lewis  28:53 
Your Honor, you're in your third decade as a neutral doing private dispute resolution. What are some of the most valuable things you've learned from 18 years on the bench and 23 years of ADR that you'd like our listeners to know,

Hon. John Zebrowski (Ret.)  29:07 

the most valuable things I've learned? Well, I would say that one of the things that you never lost your case doing is making it too clear for the decider. And sometimes we'll get some briefs in and they're kind of long, and they're kind of convoluted, and they're going down a lot of rabbit trails, and they're not real clear. They don't seem to be real clear. And then you fast forward till three weeks later after having worked with this brief for a long time. Now you realize that the case is not all that complicated and could have been presented in a much easier format and a much easier method. And when you make something that's not complicated, complicated, you're just creating a chance to snatch defeat from the jaws of victory. So one of the things I would say is don't make it too complicated and more complicated than it needs to be.

Tim Kowal  29:57 
Oh, it's great tip. That's yeah, I have I can at So that is just serving as appellate counsel, when I when I get hired by the client after after a jury verdict, usually I get the firehose of all of the evidence that was so great for my case and the jury, disregard it, and yada, yada, yada. And I think, okay, I need to get the the thumbnail version of this, let me go to the I'm going to get the transcript and go to the opening statement or the closing argument or the trial brief and see, hopefully, the the the ABLE trial attorney was able to make it to make it nice and simple. And sometimes sometimes they're able, and sometimes they're not sometimes they're all over the place where the critical issue is not covered there. It's if the critical issue is, yeah, but what are the damages, or there was all the damages? But what is the liability? Usually the weakest part of the case gets glossed over. And maybe that's for a reason.

Hon. John Zebrowski (Ret.)  30:46 
I think sometimes it's a bit of economics involved. It's like the A for ism. Some famous person once said that he wrote a long, long letter and finish off by saying it would have been shorter if I had more time. That's right. And I think it's just economics, it's easy to sit down and start typing and just typing until you're done. And then send it to the arbitrator, as opposed to refining and refining and refining and refining it like you do with your appellate briefs. And then try to streamline it and target it before you send it over. Maybe the money is just not there to spend doing that. And so it is what it is.

Tim Kowal  31:20 
That's right. I think that's true of a lot of practice. My office just got served with a couple 100 in a special interrogatory is and I asked my associate who to whom I assigned the project of responding to them. Are they contention interrogatory is or are they actually targeted? interrogatory is that the idea of being any said that they are contention interrogatory as I said, Okay, so if they're really, they could probably come over with a cover letter stating I would have propounded fewer interrogatory ease, but I didn't have the time. So I just sent it to my paralegal to create these shotgun contention. interrogatory is,

Jeff Lewis  31:53 
your honor a few years ago that the daily Jordan Journal reported in an interview with you that you had a strong, you had strong opinions against beginning in mediation with a group meeting of all the participants. Can you tell us a little bit about your thoughts about starting mediations with a group meeting? And what kinds of cases lend themselves to actually starting at a group meeting, which ones don't?

Hon. John Zebrowski (Ret.)  32:15 
Well, I was a little surprised to see that they said I had a strong feeling. I don't know if I call it a strong feeling. But I do agree with the general idea. The back when mediation was just getting started and revving up. Anybody who was becoming a mediator would go to mediation, classes, go to go to classes and have somebody teach you how to do mediation, and all the mediation courses will tell you the first thing you do is you get everybody in a room. And then you give them a little speech about what a mediation is, and what you're going to try to do. And then you start with the little, it was almost like a therapy session, we turn to Joe and you'd say, Now, Joe, the other side is claiming 123? How do you feel about that? And then Joe would tell us for a while, how he feels about it. And then you turn over here to Sam and and say, Sam, how do you feel about what Joe just said, and then Sam would come up with what he just says. And it would kind of ramble around like that and boss around the room. And sometimes they would go places that you didn't want them to go and weren't anticipating them going. So basically, I I don't mean this to say that they have having group meetings is not valuable, it can be valuable if it's used in the right place. So what I do now, and I talk with each side separately, beforehand, before I decide whether I'm going to try to get them together and ask them for their opinions about whether we should get together or not either at this point or later point, or should we have some subset that gets together? Maybe we send out a little diplomatic team of two or three people but we don't send the whole crowd over. I mean, so you have to kind of figure out where things are obviously otherwise, you may stir up animosities that you don't want to have stirred up in a mediation because they'll get in the way of settling the case. Right.

Jeff Lewis  33:52 
Yeah. Interesting. And yeah, there is some value to giving some people some catharsis at some point in terms of emotionally responding.

Hon. John Zebrowski (Ret.)  33:59 
Well, that's a good, that's a good point. I guess I should have prefaced my remarks by pointing out that most of the cases I'm handling are business and finance insurance and business type of cases where you do have to keep the psychology in mind, but it's not the same thing as handling a family law case or a PR or anything like that. Yeah, you're gonna get a little different approach when you have a case like that.

Jeff Lewis  34:24 
And during COVID, you know, we've all been doing things via zoom, and I assume you've been doing mediations during COVID via zoom. I was wondering, did you find zoom to be effective in terms of mediation? Do you intend to continue using Zoom once COVID-19 winds down?

Hon. John Zebrowski (Ret.)  34:40 
I had my doubts about it when I was getting started, but I've been doing it for a good while now. And I find that it works pretty well really. There are a few things that maybe need a little bit of finesse. Like you have to make sure you learn how to move people around from one room to another not get their own room and that's that sort of thing, but it works pretty well. One of the things that is true for mediation as well as an arbitration is that if you're, if you're handling a case that has a lot of documentation, so there's going to need to be a lot of looking at documents, and you need to make sure that either you set up a way to, to publish these documents, so everybody can see what the document is, or that you've just let everybody know before the mediation begins, that we may be looking at these 10 exhibits. So please have responded give us with you. So if I say I want to talk about the third paragraph, and exhibit 10, you'll be able to pull that right up and we're not on a 30 minute hot. Where's that document in Omaha? Right?

Tim Kowal  35:35 
The point? The point, Justice broski. How do you avoid doomed mediations, I've seen mediation start, for example, with the parties opening offers just galaxies apart, I think this will never settle. This is a waste of everyone's time, and yet who come up with a settlement. And then I've seen other mediations where the parties are, there's a gap in the middle. But it seems bridgeable, and yet no one moves throughout the entire mediation and it's a bust, have you been able to pick up any clues or signs that you've learned to look out for that tell you whether a case is likely to settle or these these parties are just entrenched, intractable, they're never going to move?

Hon. John Zebrowski (Ret.)  36:11 
Well, you have to remember that most cases, the statistics show most cases still do settle. Even if they don't settle at that first time you tried to mediate it. So there can be a sensible reason for having a mediation, even if you think the chances for settlement are not good right now, because it'll move it in the direction of settlement and may get the right kind of thinking started. So it's not like if the case has hasn't settled today that it's it's a failure, because the case is probably going to settle between now and the time that the case goes to trial. And it may be because of what you got started during the mediation. So you have to keep the an upbeat attitude toward it and see how much progress you can make. So I always try to make even if I can see that I'm not going to be able to make enough progress to bring the case to a complete resolution, I try to make as much problem progress as possible. So that the next time we talk, if we didn't talk again, which we tried to do, that we're starting from a better plateau to get a settlement done.

Tim Kowal  37:07 
Are there any other impediments to a settlement are their personalities wonder if you've ever if you've encountered a situation where you think that a party could be brought to a settlement posture. But but maybe that party's counsel is just still obsessed with with beating his chest and sticking out of principle, wonder if you've ever come across that and there is a solution for that sort of problem.

Hon. John Zebrowski (Ret.)  37:31 
That happens not infrequently there, you have to try to analyze the sort of, it's sort of like departing from the strictly logical I'm starting to analyze a psychological now and figure out who is stopping this case, from settling when it looks like it probably should sell. And then you have to dis find graceful ways of getting people apart from each other. So you can talk to somebody separately, getting getting sometimes getting people to people from one from one side of the case, one from the other side, getting them apart from the others. And you can't do that in a way that is going to antagonize the attorneys or make the attorneys think you're just trying to go around them or something like that, because they're in charge of one half of the case. And if they get their heels dug in there, they're probably going to stay that way. So it's a little bit of a less quantifiable value to try and start thinking about what somebody's psychology is. But sometimes it's the case settled or doesn't.

Tim Kowal  38:25 
Right. Let's talk about your your memories and experience from the bench. Can you can you tell us some fond memories looking back at your four years on the Court of Appeal?

Hon. John Zebrowski (Ret.)  38:34 
Well, that was a good experience all the way through, I had three good people I was working with. And we also would bring in pro tennis from time to time and they were all very helpful. And and I can't remember ever having an art argument the entire time that I was on the court of appeal with the people I was there with. And it's not because we didn't disagree, because at times we would disagree and people would write the sense and so forth that nobody would start calling each other names and things like that in the in the dissent, pointing out how stupid they are. And that sort of thing was all done very respectfully, and I thought it was very positive experience.

Tim Kowal  39:08 
Okay, now now moving to the other end of the of the spectrum, what was the hardest thing about being an appellate justice something that when you decided to retire, you thought, well, at least I'm not going to miss that part of being an appellate justice? Well, I

Hon. John Zebrowski (Ret.)  39:21 
don't know if this fits in your parameters. Exactly. But one of the things about being on the Court of Appeal is least when I was there, I you know, caseload is always changing. You have to know the current situation is caseload and I haven't talked to anybody up there for a while now about what their caseload is are like but when I was on the Court of Appeal, the caseload was such that you could easily work 24/7 never stopped working until you collapsed. And there was always more things that could be read more more time that could be spent on a case. So you always had to be determining when when is the time to shut off work on this case, move to the next case. We were talking earlier about the reason why cases are unpublished there's an example for With cases unpublished because we have the answer, but we were only talking about whether it's clear enough to be publishable when we don't have the time to decide that. So we're just going to not publish it and decided for this case and let the case go forward.

Tim Kowal  40:13 
Got it. What about what about the oral argument aspect of being an appellate justice was that I've heard from other justices, that it's particularly grueling part of the job, because you really have to, you've already read everything. But now you have to be be prepared for what the what counsel is going to say during the argument to prepare to ask questions. Was that did you find that a taxing part of the job?

Hon. John Zebrowski (Ret.)  40:35 
I didn't really because it always seemed to me that the amount of time that the appellate counsel got to argue their appellate case in the state courts at least was really quite small, really quite short? I mean, it was rare for anybody to get more in 30 minutes, you might get some division of 30 minutes. But that was that was just a culture that you didn't really have these long arguments. And most of the work I've done in back in chambers when you're studying the briefs,

Tim Kowal  41:03 
and how, how useful Did you find oral argument? Did you find that you had you had already typically gotten to a pretty good sense of the issues and the facts from the briefs? And the oral argument was maybe maybe ceremonial? Of course, you'd listen but or did you feel that it was as something vital that that may be there, maybe, maybe counsel is just not able to get there, to get the real gist of the case off of the page, they were buried in minutiae and oral argument was the time for for them to really shine forth with their with the brightest arguments?

Hon. John Zebrowski (Ret.)  41:34 
Well, I find that sometimes it's one of one of one side and one of the other the calendar would usually include some cases that after you spent a bit of time studying the brief and talking to your colleagues about it, and having conferences, and then reading the underlying cases, by the time the argument was coming up, here, we're going to go in and play Listen, but you're probably have your mind pretty much made up. But at the same time, on that same calendar, there may be a couple of other cases where you really want to hear what the argument is on a particular issue. They're the ones that get a little bit frustrating is where because of the short amount of time allotted to the console console comes prepared to talk about subject a when what you really want to talk about a subject B. And so occasionally, I've seen panels, send out a letter saying, please talk about this subject. And I think that's a very good practice, if you can induce the justices to do that, because then at least you'll be targeting what it is that they want to hear about,

Jeff Lewis  42:26 

what's the secret to inducing a justice to send out a focus letter before argument,

Hon. John Zebrowski (Ret.)  42:32 
or you send them a very polite letter? I'm not sure what else we can do.

Jeff Lewis  42:37 
Interesting, Your Honor, if we have listeners who are getting ready to appear before you in a mediation or an arbitration, what are one or two things you would want them to know about you or the way you conduct proceedings in order to get the most out of time in front of you either on a mediation or an arbitration?

Hon. John Zebrowski (Ret.)  42:52 

Well, there are a few things, I guess. So one is that my orientation toward the mediation is not necessarily to figure out what the right answer is, but rather to figure out how can we settle this case under these circumstances?

Jeff Lewis  43:08
Right. Interesting. So

Hon. John Zebrowski (Ret.)  43:11 
the attorneys will, will think we're trying to refine the law and find out what the what the real outcome should be if the case were litigated. But I'll tell people sometimes, you know, I agree that you should win on on argument a, but I'm telling you, you should pay money to settle a case anyway. Because you might not win, and if you don't win, things could get bad. It's gonna cost you a lot of money. And when there are a lot of other things that go into it. And it's not, you don't always want to play the scorched earth battle to the final conclusion.

Tim Kowal  43:42 

Now, justice, the broski, in in an interview you did some years back with the California legacy project, you said, of Court of Appeal opinions that when when they're done well, it produces a good body of law, that that will be beneficial to the public, but that when judicial opinions are done badly, they can cause problems. And I wanted to I wondered what you meant by an appellate opinion that has done badly? what are maybe some signs that you would look at to to to conclude that an appellate opinion is done badly? Or? Or maybe I'll ask a better question that that what kind of problems does a does maybe a poorly written or poorly decided appellate decision? Cause?

Hon. John Zebrowski (Ret.)  44:23

Well, I guess a good example would be that let's pin this case that we discussed earlier, because you get now anomalies in the law where things are not consistent. So what happens next? Now the next justice comes down the road and sees that things are not consistent, but they've got a fork in the road, they can go to the right or they can go to the left because things are inconsistent. So they, some of them may decide to go to the right, some may decide to go to the left, they come to another fork in the road where things are hit another inconsistency. So it just it just builds on itself and builds on itself until we have this large body of jurisprudence that is just followed up and it's an outlier and it's causing everybody a lot of injustice and extra expense and frustration and so forth.

Tim Kowal  45:05 
Now in the Justice broski, in the 20 years since you left the bench, Have you spotted any things in the legal profession that have changed, whether on the bench or in the, in the practice of law, or both? It seems

Hon. John Zebrowski (Ret.)  45:19 
to me that young attorneys don't get nurtured as much as they used to, they don't get trained as much to use was more of a seems like it's, at least among some of the larger firms seems to be almost a more Spartan approach, come out with your shoulder on it, but we're not going to train you before you go. Just go out there and fight the battle and you come back, great. Not that's the way it goes. And you have

Tim Kowal  45:41 
any advice or hopes that you'd like to impart to other to legal practitioners and judges?

Hon. John Zebrowski (Ret.)  45:47 
I think there's a value in this mentoring and if they not understand their economic considerations as well. But if you can afford the mentoring time, it's valuable thing to have.

Tim Kowal  45:56 
All right, very good. Well, I think that about wraps up my questions just as a broski. Are there any other words of wisdom that you'd like to impart to our audience today?

Hon. John Zebrowski (Ret.)  46:05 
Justin, when you come to your mediation, you should not necessarily have the mindset of being ready for combat because you shouldn't view it as combat, you should view it as a chance to use a problem solving methodology to try to get yourself a better result than you could get by fighting it out to the bitter end.

Tim Kowal  46:20 

Yeah, it's a different skill set, isn't it then than winning a trial participating in a mediation I think you have to get to put down some of your arms and be prepared to come to a to a compromise and you put down your sword

Jeff Lewis  46:33 
and bring your ears alright. All right. Well, that wraps up this episode, we again we want to thank casetext for sponsoring our podcasts each week, we include links to the cases we discuss using casetext and listeners, the podcast can find a 25% discount available to them if they sign up the casetext.com/calp

Tim Kowal  46:50 

LP and if you have suggestions for future episodes, please email us at info at cow podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. We once again thanks our guest today Justice John Zebrowski. Thanks again.

Jeff Lewis  47:08 
Thank you so much.

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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 tkowal@tvalaw.com or (714) 641-1232.

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