The Inner Workings of the Courthouse Chambers – How Judges Work and Decide Cases – Part One – by Nate Bernstein, Esq.

Reprinted with permission from AOA.

The “battle zone environment” of the downtown Los Angeles Superior Court is something to witness in person if you have never been there to experience it.  It is not for the genteel or the faint of heart.   The downtown Los Angeles Superior Court, located in the Stanley Mosk Courthouse, at 111 North Hill Street, is one of the largest in the United States.  It is an old building that needs to be razed, modernized, and rebuilt as a “state of the art” courthouse- it is what it is. The Court has more than 75 judges on 10 floors that handle, civil limited and unlimited jurisdiction cases, unlawful detainers, small claims cases, writs and receivers cases, family law cases, probate matters, post- judgment matters, and other hybrid matters.  The clerk’s office is overburdened, and attorneys must wait in the same long lines as messengers to file a document.  At times the clerk’s office is understaffed and only 2 clerks are working when the line is 25 persons deep.  

Criminal cases are handled in another location around the corner in the Criminal Courts building on 210 West Temple Street.  The court system is overburdened with cases in most departments, and some judges have in excess of 12 distinct case matters on the calendar each and every morning.    You may or may not get a perfect evaluation of your case matter on calendar, or a just and fair result from the Court.  Generally speaking, I will say that the Courts and their staff usually get it right– sometimes they don’t and one side gets a raw deal.  That is when an appeal may be required. Probably the most important safeguard a party can have is retaining counsel that is really watching the case and your opponent, and monitoring court staff carefully.

If you ever visit a courtroom at the Los Angeles Superior Court you will be amazed at the number of attorneys that are present, and you will be amazed at how long matters take to get decided and completed. Due to the large calendars it is generally the norm that a five minute contested court matter can take 1.5 to 2 hours to be heard and decided. Bring a newspaper and a pillow cushion. Judges are overburdened and very busy, and often have approximately 12 case calendars four to five days per week in the morning- that is an enormous case load. Attorneys also use “court call” to make appearances by calling in on routine matters such as case management hearings and post mediation status conferences. Court call service has made it easier on attorneys to avoid a personal appearance on routine matters.   Still, the phone call hold times can be as much as one hour in busy courtrooms.   Small claims and unlawful detainer calendars are huge, and judges are on a tight time schedule to complete these calendars.

Judges Are Less Accountable Because No Court Reporters Are Present Unless You “Retain One” 

It is unfortunate that judges may be less accountable and scrutinized for their decisions, behavior, and demeanor, as they used to be. That is because in courtrooms, the courthouse administrative staff does not provide free court reporters to take write down a transcript of what happens and what is said in court. The days of the free court reporter are over!!  Court reporters are only available if parties pay for the court reporters.  The end result is that some judges may be less thorough on the record since there is no court reporter taking down the judge’s statements. So if a judge abuses an attorney or berates a witness or bad mouths a party or makes a poor, unsupported legal decision, the verbatim language spoken by the judge is not recorded unless a court reporter is hired to be present. If a judge makes a mistake on ruling on the admissibility of evidence, an oral ruling is not recorded unless a court reporter is hired by the parties to be present.  Court reporters are expensive and charge by the word.  Having a court reported record is very important for a case on appeal- the appellate attorneys and the Court of appeal can review the record, and determine if the court has made an error.  Judges make “minute orders” about their proceedings and their rulings- they write down their decision, note the appearances, but the minute order does not report the verbatim words of the judge – only the final ruling.

During lunch time if you visit the cafeteria on the 10th floor- the cafeteria is packed with attorneys and parties who share a common theme- their cases have not settled and they are waiting for their trial to start or a trial to continue.   The cafeteria and its 100 tables acts as a makeshift  non private conference room for attorneys and parties who are discussing cases, documents, and strategies. Some judges may order the attorneys and the parties to gravitate to the cafeteria to try to work out a settlement or to try to resolve a discovery dispute. Cafeterians also have to tolerate the cafeteria food at the courthouse, which on some days is at most “average,” and on other days is “lousy.” If you don’t like the cafeteria- there is a Starbucks café next door with limited indoor seating taken up by at least one local derelict.

Due to budgetary cuts, court clerks only have limited phone hours, such as 10:00 a.m. to 12:00 p.m. only – if you don’t make the call at the right time, you have to wait until the next day to speak to a clerk and get your question answered.  Courtrooms are closed from 12:00 p.m. to 1:30 p.m. – judges may be able to get nine golf holes in or take a cycle ride before the afternoon trial calendar begins.    In the afternoon, judges generally hear trials and a discovery dispute or two – the trials may be bench trials or jury trials. For jury trials, judges have to deal with the attitudes, behavior, and schedules of jurors.  Jury selection and the process that goes along with it are very “political” in nature. Attorneys are obviously trying to manipulate the jury system to get favorable jurors from the jury pool.  Judges spend energy and resources protecting and buffering jurors from the aggressive attorneys in the courtroom, and trying to keep the jurors relatively happy in the process.  Since jurors are registered voters- and voters tend to vote in judicial election, judges try to keep jurors happy and want to get them in and out of the system as rapidly as possible with the least amount of scar tissue. This is difficult, and judges always want to appear that they are moving matters forward, and not letting jurors wait around.

The Inner Workings of the Judicial Decision Making Process

If your case or law and motion matter does not settle, you run the gauntlet and risk of having a judge decide the issue before the court. This is how they do it, but first, a few words about how court chambers function in this warzone environment that has difficult working conditions.

It is important to understand that judges are overworked, and by some standards under paid for their long hours.  Judges are human beings, and are not paper pushing robots.  Because they see issues over and over again, they are bored with the mundane, and like to hear interesting issues- such as a products liability case where the air bags failed to deploy.   Judges rely on their staff research attorneys a great deal to complete research and decide legal issues. The court also may have volunteer law school interns work on some matters assigned by the research attorneys- these interns work without pay, but may get law school credit in exchange for their service. The research attorneys will do extensive research, will work up the matter, and make recommendations to the judge. The judge may not have time and resources to read all or some of the papers that you file in court for a hearing- it may not be humanly possible to ready 15 motions in limine before trial starts.

This is an interesting phenomenon- you retain counsel, spend money on attorney’s fees and costs, and you come to court and the judge has not some read or read all of your papers!  Some judges may be good actors, or may admit “this matter will have to be continued so I can provide further review of the briefs- I will continue the hearing and take it under submission.”  Some judges are honest about not having the time to read the papers, but other judges may fudge it.    Other judges have read the papers thoroughly, discussed the issues with their staff attorneys, and may have certain additional questions about the evidence or the law.  Other judges are concerned about new case authority that has just come out that may impact the result in the case because the authority is on point.

Judges also rely on their courtroom deputies- or calendar clerks a great deal to manage the busy court calendar.  Now in Superior Court, for unlimited jurisdiction cases,  calendar matters are set through a computerized reservation system so courtroom deputies have to coordinate with the on line system to get matters on calendar.  The days of calling the courtroom deputy and reserving a law and motion hearing date are gone- it’s all done through a computer reservation system that spits out a confirmation.  Some superior courts (like Orange County) also require that documents for motions and trial be filed and uploaded on line, but downtown Los Angeles courthouse has not yet implemented that type of filing system.

In addition, judges rely a great deal on the attorneys before them for presentation of legal authorities and factual information.  Attorneys are both officers of the court and advocates for their clients. When a judge asks for information or legal briefing from the attorneys, this is a great opportunity for a skilled attorney to persuade the judge on an important issue in the case.    Judges may ask for a “letter brief” on a particular issue. For example, a judge once asked me for a short brief on whether a trustee of a private trust can appear in court without an attorney – I researched the issue and provided the judge with an answer – she appreciated my efforts.

(Part two next month – How Judges Decide on Issues Before Them.)

 

Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy matters.  He is a 22 year veteran Los Angeles real estate and business attorney and trial lawyer.   Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights and debtor’s bankruptcy options and created www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation.   For more information, call (818) 383-5759, or email natebernstein44@gmail.com.

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