Revelations

My good friend and colleague Justice William Bedsworth (Beds) is a talented writer and columnist. Some time ago we were talking about our mutual obsession, or if you will, neurosis, for writing columns. Why anyone would commit themselves to writing a periodic column under a self-imposed deadline while also facing deadlines to write and file opinions in a timely manner is beyond my ken. Writing a periodic column reminds me of Samson. You know what he did to columns. Beds and I mused that when one has been writing a column for decades, the columnist could possibly … inadvertently, of course, recycle earlier columns. Mmm, not a bad idea. But after more than 30 years of writing a column for the Daily Journal, I cannot remember whether I inadvertently recycled something I had written earlier as opposed to deliberately doing so. But I am not so vain as to think a reader … well, maybe one or two elderly readers, might note what they imagine is a repetition and out of perversity write a complaint to the editor. To brace myself for what could be the shock of discovering that I have rewritten or reimagined a past event, I listened to the wonderful Lerner and Loewe song “I Remember It Well” from the movie Gigi, sung by Maurice Chevalier and Hermione Gingold. I urge you to listen to it on YouTube. For the young, it is what to expect. For the mature (euphemism for elderly), you know what I am talking about. Certain topics that have permutations in different situations bear reexamination. Columnist Myron Moskowitz who offers invaluable pointers about appellate practice for the Daily Journal will look at a topic whether it be effective brief writing or oral argument from different perspectives in more than one column. Trial lawyer John Blumberg has written a variety of articles for various publications about effective advocacy. The nature and posture of a particular case may determine how best to use direct or cross-examination. Blumberg has shown how direct and cross-examination of lay witnesses and experts may vary depending on the nature of the case. Reexamining an issue we decided in the past often offers new insights. Blumberg notes that it is wise to rethink what we thought we understood. I use this as a segue into a brief look at how my appellate court works and how I know most others work in general despite specific differences. This is prompted by an article in the Daily Journal last Thursday, January 28th. Well-known appellate attorney Jon Eisenberg complained to the Judicial Performance Commission about delays in filing opinions in the Third Appellate District. As a rule, I would not write on this subject at this stage. But many readers have asked for my view of Eisenberg’s complaint and the phenomena of delay in general. And because like Mount Everest the topic is there and challenging, I offer these few general comments. I draw on articles, columns, and lectures I have given in the past on appellate practice to give the reader a context in which to consider the subject of delay. Please note Eisenberg’s complaint is not about the quality of work produced by the Third District. I often look to the opinions from the Third District for guidance in my own opinions. I know and respect the justices and feel the same about Eisenberg. I have served on the Court of Appeal for nearly four decades. (Hope that is not interpreted as a declaration against interest.) And though I have written on this subject in previous columns, I offer a perspective into the workings of many Courts of Appeal, drawing specifically from my own division. I offer this not as a defense or indictment of the Third District. But it might provide a glimmer of insight to dispel possible misimpressions readers may have drawn from Eisenberg’s complaint. I will not presume to speak for the Third District, but in my division, we have a” blind draw.” Cases are assigned in rotation to the justices as they are filed with the clerk. So-called “monster” cases, with multi-volume records, are on a separate rotation track. This way the cases that require more judicial resources and time are more equitably distributed. All justices have a judicial assistant and research attorneys who are indispensable in helping draft the opinions. The time a justice spends on a case is obviously determined by the difficulty and novelty of the issues presented. It may involve distinguishing, agreeing, or disagreeing with other published opinions. Because appellate opinions involve three justices, the two justices who are not authors of the opinion must be intimately familiar with the issues to decide whether to concur or dissent. This, in turn, requires research and close analysis of the briefs and record in the author’s particular case. Often cases are continued for a variety of reasons. The attorneys request continuances, or justices may “hold” an opinion in which an issue is pending for decision before the Supreme Court. Sometimes it is advisable to wait for our Supreme Court to rule on an issue pending in that court. And I need not repeat the cliché about justice delayed. It is an issue we all take seriously in keeping a fair balance between quality and expedition. But keep in mind that what is missing from Eisenberg’s complaint are the reasons for the delay. And that has made all the difference