Nov 06, 2017
OCTOBER JUDGES LUNCH RECAP
The Top Ten Things NOT to Do in Court
Nov 06, 2017
By Robert Rosborough
Was that David Letterman appearing at MCBA’s annual Judges Luncheon on October 25? No, it was Presiding Judge Kelly Simmons regaling the sold-out audience with a very funny Top 10 Judges’ Pet Peeves list. Judge Simmons pulled off the difficult task of entertaining the audience while simultaneously helping us stay out of trouble the next time we are in court.
Before Judge Simmons got to that Top 10 list, MCBA President Dorothy Chou Proudfoot called a general membership meeting to order with the primary objective of voting on 2018’s new officers and directors. By unanimous voice vote, the members in attendance voted into office the previously announced slate. Congratulations to incoming President Tom Brown and all of the officers and new directors. She also introduced one of MCBA’s newest members, Joseph David Manuel, a CPA and tax attorney recently arrived from Singapore whom she hopes will reinvigorate our tax section.
Our President drew attention to the numerous programs that the Marin bench and MCBA operate that are made possible by the considerable volunteer efforts of the bar. The luncheon’s program had a complete list of the programs and all 200-plus volunteers who helped staff them in 2017. You can see the full list here. Many thanks to everyone who contributed their time and expertise.
Marin Court CEO James Kim brought the exciting news that e-filing is no longer a distant dream but has begun to move toward reality. Justice James Humes, Presiding Justice of Division One of the First District Court of Appeal, recently visited the Marin bench on behalf of the Judicial Council to assess the state of the courts. E-filing was a hot topic of discussion and in subsequent discussions, Justice Humes has confirmed that the Judicial Council will request funding for new e-filing programs for seven county courts, including Marin. The Legislature is expected to approve the funding and the process is already underway to obtain bids for a new vendor to implement e-filing. Kim pointed out that Marin will get the benefit of having a new vendor who can learn from what has and hasn’t worked in the counties that already have e-filing. His hope is that the entire process will be complete in a couple of years.
Judge Simmons then welcomed all of the Marin court’s judges and congratulated Judge Adams for being named Marin Trial Lawyers Association Judge of the Year (and for her induction into the Marin Women’s Hall of Fame last year) and Judge Wood for receiving Legal Aid of Marin’s Lifetime Achievement Award. She also congratulated Ali Quam as Family Law Court staff member of the year as determined by the Family Law Executive Committee of the State Bar. And she was excited to announce that the bench has just received permission from the Jeannette Prandi center to use their facilities for supervised child visitations. Since parents had to go to San Francisco for the visits up until now, it is welcome news.
She noted that most judicial assignments will remain the same for 2018 except that Judge Lichtblau will move to the trial department and Judge Howard will move to Department M. Judge Haakenson will also become Presiding Judge when Judge Simmons steps down from that position at the end of this year.
Judge Simmons commented that with the help of her colleagues, she had accomplished her goals as Presiding Judge. One of the most important was to improve the way the justice system works for the mentally ill. She noted that the system has made great strides for people dealing with addiction but less so for other mental illness. She was pleased to be able to announce that after working with numerous other offices and Supervisor (and MCBA board member) Damon Connolly, Marin will now have the benefit of a social worker to direct mentally ill clients to appropriate resources as they encounter and leave the justice system.
One of her other goals was to improve morale after the Marin courts suffered over two million dollars in budget cuts over the last five years and are expecting further cuts of about that much over the next five years. When Justice Humes visited recently, he commented that a number of other courts have infighting and hostility to the point where some judges only communicate in writing—he was impressed with how well the court operates in light of the budget cuts. Judge Simmons told him and us that this is the result of a truly dedicated, hard-working and innovative leadership team, staff and judges, and of the invaluable and extraordinary efforts of a thoroughly engaged bar—and she thanked us for that.
Finally, Judge Simmons was asked if the Marin judges have any pet peeves they would like to share with MCBA. After conferring with her colleagues, the answer is a resounding “Yes!”
And now, in Judge Simmons’ own words (altered slightly for publication), she submits to you this year’s Top 10 Pet Peeves from the Marin County Superior Court Bench:
10) The “one more thing” attorney: This is the attorney who always must have the last word.
If you fit into this category, I have some words of advice from the judicial perspective: If the Judge looks at you after arguments have been made and says, “Is the issue submitted?” this means that the Judge has heard enough and is ready to rule. The answer is, “Yes.” (Enough said.)
9) The “I can’t hear you” lawyer, also sometimes referred to as the “Judge, that’s not what you mean” lawyer: This is the lawyer who interrupts the Judge mid-sentence and then speaks louder than the Judge to avoid hearing what the Judge has to say, or continues to argue with the Judge either after or during his or her ruling.
If you fit into this category, I have some words of advice from the judicial perspective: If the Judge starts talking, you should stop talking and listen to what he or she has to say, you might find their comments to be helpful. Also, when you interrupt them or talk over the Judge, you are annoying him or her.
8) The “my opponent is a moron” attorney: This is the lawyer who personally attacks his or her opponent.
If you fit into this category, I have some words of advice from the judicial perspective: If you want the Judge to think that you are a professional advocate, do not make personal attacks on the other side. Using personal attacks does not make you better than the other side, it just makes you look small.
7) The “this is an emergency” lawyer: This is the lawyer who files everything ex parte whether there is an emergency or not.
Words of advice from the judicial perspective: Don’t do that.
6) The “diarrhea of the mouth” attorney: This is the lawyer who cannot make their objections succinctly. Instead, they use every objection opportunity to state (and restate) the remarks they plan to make during their closing argument.
If you fit into this category, I have some words of advice from the judicial perspective: Judges hate that. Save it for the appropriate time. Learn how to state your objections plainly, let the Judge rule and then move on.
5) The “Hey Bob, that is not our agreement” lawyer: This is the lawyer who speaks to opposing counsel during court proceedings and in front of the Judge.
If you fit into this category, I have some words of advice from the judicial perspective: This is not appropriate. When in court, address your comments to the Judge. Talk to your opposing counsel at a later time.
4) The “My client should win, my client should win” lawyer: This is the lawyer who states his position in the papers, then reiterates every single point that was stated in the papers on the record and then repeats the same argument in rebuttal.
If you fit into this category, I have some words of advice from the judicial perspective: We have read your papers. Many of us read them in the evening or on the weekend. Although we appreciate that you may want to summarize a key point here or there, please do not repeat everything you have already stated. It makes us think we wasted our time.
3) The “no no no” attorney: This is the attorney who is unwilling to try to make something work if it is not exactly what he or she wanted.
If you fit into this category, I have some words of advice from the judicial perspective: The Judge wants to help get this case worked out. If he or she proposes a path forward, please don’t be the one who rejects all suggestions and offers nothing in return. That is just frustrating. (Also, as an aside, if a date proposed by the Judge does not work for you, just offer a date that works better. We do not need to know that on December 1, you cannot come back because you will be arguing in front of the United States Supreme Court and then you will be gone on a European trip the next week. We don’t care. Just give us a date.)
2) The “I must respond to this right now” lawyer: This is the lawyer who interrupts his or her opponent either verbally or physically, such as popping up from the chair as soon as he or she hears something that he or she does not like.
If you fit into this category, I have some words of advice from the judicial perspective: You are not garnering favor with the bench when you do this. There is no reason why you can’t wait politely for your turn. (And the Jack-in-the-Box tactic is disruptive.)
And the Number One pet peeve of the Marin County Superior Court Bench:
1) The “We love Judge Howard” lawyer: This is the lawyer who sings Judge Howard’s praises throughout the Courthouse. The lawyer who tells all of the other Judges how “amazing” Judge Howard is. The lawyer who asks, “When will Judge Howard be assigned to my cases?”
If you fit into this category, I have some words of advice from the judicial perspective: Please stop telling us how much you love Judge Howard!
Rob Rosborough is attorney Of Counsel to Monty White LLP. He is also a mediator and teacher. His mediation practice focuses on disputes where an ongoing relationship is at stake, particularly elder/adult-family conflict such as disagreement over caring for an aging parent. And he maintains a general advisory and transactional law practice focusing on personal and small business issues, including end-of-life planning. Rob also teaches conflict resolution skills for use in everyday life to older adults at USF’s Fromm Institute and helps lawyers cope with the stresses of practice and life by teaching them meditation skills as a certified iRest® meditation teacher.