The California Appellate Law Podcast

“They Don’t Laugh at My Jokes Anymore.” Justice Lambden’s Lessons from the Trenches to the Benches and Back

September 20, 2022 Tim Kowal & Jeff Lewis Season 1 Episode 51
“They Don’t Laugh at My Jokes Anymore.” Justice Lambden’s Lessons from the Trenches to the Benches and Back
The California Appellate Law Podcast
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The California Appellate Law Podcast
“They Don’t Laugh at My Jokes Anymore.” Justice Lambden’s Lessons from the Trenches to the Benches and Back
Sep 20, 2022 Season 1 Episode 51
Tim Kowal & Jeff Lewis

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.

Justice Lambden also talks about his single unpublished dissent.

Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”

Justice Lambden serves up a lot of sage advice:

  • “Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”
  • Hire your appellate attorney before the verdict!
  • Have an elevator-pitch for your case. If you only have arguments but no theme, you’re not ready.
  • On unpublished opinions: Who cares? The California Court of Appeal is not bound even by published decisions, as there is no horizontal stare decisis in our system. If you find good reasoning, use it: if the good argument comes from a published case, make the argument, and cite it. If the good argument comes from an unpublished case, make the argument, but don’t cite it. In either event, it’s not the best citation but the best argument that wins. (This reminds me of Johannes Scotus: “Authority sometimes proceeds from reason, but reason never from authority….We should not allege the opinions of the holy Fathers ... unless it be necessary thereby to strengthen arguments in the eyes of men who, unskillful in reasoning, yield rather to authority than to reason.”)
  • On the importance of focus letters and oral argument.
  • On access to justice, quoting Chief Justice Ronald George: “Without access, there is no justice.”

Justice James Lambden’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.

Show Notes Transcript

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.

Justice Lambden also talks about his single unpublished dissent.

Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”

Justice Lambden serves up a lot of sage advice:

  • “Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”
  • Hire your appellate attorney before the verdict!
  • Have an elevator-pitch for your case. If you only have arguments but no theme, you’re not ready.
  • On unpublished opinions: Who cares? The California Court of Appeal is not bound even by published decisions, as there is no horizontal stare decisis in our system. If you find good reasoning, use it: if the good argument comes from a published case, make the argument, and cite it. If the good argument comes from an unpublished case, make the argument, but don’t cite it. In either event, it’s not the best citation but the best argument that wins. (This reminds me of Johannes Scotus: “Authority sometimes proceeds from reason, but reason never from authority….We should not allege the opinions of the holy Fathers ... unless it be necessary thereby to strengthen arguments in the eyes of men who, unskillful in reasoning, yield rather to authority than to reason.”)
  • On the importance of focus letters and oral argument.
  • On access to justice, quoting Chief Justice Ronald George: “Without access, there is no justice.”

Justice James Lambden’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.

James Lambden  0:03 
Going back out among the bar without worrying row is kind of intimidating. Like they say, they don't laugh at my jokes anymore.

Announcer  0:11 

Welcome to the California pellet 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  0:28 

And I'm Tim Kowal. The California appellate law podcast is a resource that Jeff and I put on for trial and appellate attorneys. Jeff and I are both appellate specialists, but we split our practices about evenly between trial and appellate courts. And in each episode, we try to bring some perspectives and news that practitioners can use in their practice.

Jeff Lewis  0:44 
And our podcast is sponsored by casetext. A quick announcement about casetext it's 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, and I highly endorse the service listeners of our podcasts can receive a 25% lifetime discount available to them if they sign up a That's

Tim Kowal  1:10 
And today we are very privileged to welcome the Honorable James Landon to the show justice Landon sat on the First District Court of Appeal in San Francisco for 17 years authoring over 1000 opinions and joining and hundreds of other published opinions authored by his colleagues, more than 100 of his opinions resolved important civil issues and several of those resulted in new law either by subsequent legislation or as affirmed precedents. Justice lambda now serves as a mediator, arbitrator discovery referee and appellate consultant with ADR and we are so pleased to to have justice Landon, join us on the show today. So welcome. Thank you very much

James Lambden  1:47 
to Jeff for inviting me. I'm very happy to be here.

Tim Kowal  1:51 

And we will like I said, we're honored to have you. I wanted to start off just asking maybe some some personal questions that I've learned about you by digging. You've there have been some pieces in the daily journal and the recorder published about you talking about how you're an avid outdoorsman for many years and I wonder even what when you're on the bench you were getting outdoors. Since you have left the bench Have you been able to liberate yourself more often from the city to to get out into our beautiful exterior in California?

James Lambden  2:22 
Well, we were talking about the mural was fine is being the Eastern Sierra. I have an early picture of me when I was a skinny freshman in high school on my first backpacking trip. I went backpacking every year more than once for almost 50 years, maybe more than 50 years. And I very much enjoyed that I hiked the John Muir Trail twice, once in pieces and once through hikes. I lost 18 pounds. I lost three quarters of a pound a day during that night.

Tim Kowal  2:54 
And how long is that hike?

James Lambden  2:56 

It's about 225 miles and it took 21 days a little bit extra. When my wife picked me up in Yosemite Valley, she took one look at me and burst into tears. I was surrounded by a group of tourists who were basically wondering what happened to them. And it was one of the high points of my career and hiking. I worked with several my friends were judges as well. And I continue to get outdoors although I retired 10 years ago and when I when I retired, I did take some some of those more vigorous fights, which were daunting. But now I get out several times a week for a good five miles but I don't go to the altitude quite so much. But I still very much enjoy the outdoors.

Tim Kowal  3:42 
Oh, good five miles at a stretch is is a good number I have no I have small kids. So I use that as an excuse that it would exceed their limit. So as a result, I've gotten fat sitting in my chair. Well, and in addition to your career on the bench and your avocation in the outdoors, I also understand you're a man of many hats, literally, that you are a collector of hats that used to display in your chambers.

James Lambden  4:06 
Well, you must have seen it like it was a daily journal article and the photographer who came was delighted to see all those hats and actually did a sort of a montage I've always had floating in the air. I'm not sure exactly how it happened, but my baby pictures have me wearing hats. I had seven uncles and I was a late baby. So there was a lot of I got a lot of attention from my family. And one thing about hats is when people think you'd like hats they give them to you. So one point I had maybe 35 hats, most of which didn't fit me because people found that there was amusing you could give me a three quarter and a hat with a feather on it but it wouldn't fit me. Since I've retired. I've had better hats. And I've done a couple of mock trials in New York and I have a hat up in New York that I frequent and treat myself whenever I go, I get lecture about hats. There's there's three places in the country where you can get hats, Chicago, New York and St. Louis. And they sell their hats in Hollywood. So in California, you can find them in Hollywood as well. So we're talking about good hands. An indulgence. Yeah.

Tim Kowal  5:21 

Yeah, a hat wearing is kind of a lost lost art in my generation. There's not a lot of hat wearing going on. What's the I know, you're not wearing a hat today, for example. So what is the what's the proper decorum for hat wearing?

James Lambden  5:34 
Well, generally, you need to get one that doesn't come small, medium and large. It needs to have numbers attached to it. And you need to know what your what your hat size is, and you need to spend some money on it. I mean, they're not, they're not inexpensive. One thing that I enjoyed was it when I retired and I got back out on the street. In San Francisco, I would be walking along Market Street and middle aged woman would come up to me and say, Oh, it's so sweet to see you wearing a hat. My grandfather wore hats. That put me a little bit off because I was in the grandfather stage when I was coming up in the 60s. And the only people that wear hats were young, black, new and old white man. And I kind of fit the second category. But I enjoy him a lot. He gets me a lot of attention.

Tim Kowal  6:20 
And I heard a story or I read about a story where you I know I know John Eisenberg, or I know everyone knows of John Eisenberg in the appellate world, that you gave John Eisenberg, a hat one time, that a true story is that I

James Lambden  6:34 

did, I did indeed get a Johnny hat. He's one of the few people that had a hat big enough to to that I can hand me down one. I have another good story in the Old Hawthorne laid restaurant, I went in there one day with some colleagues wearing a hat. And when I came out, I gave him my ticket. And they brought me Willie Browns hat, because he was apparently in the in the restaurant at the same time. And I teased Mayor Brown later saying that his hat was way too small for me. But she thought it was funny.

Tim Kowal  7:07 
So are your best hats. The ones that you buy for yourself or the ones that you've been given?

James Lambden  7:11 

The ones I buy for myself. That joke hats are not are not really very good unless somebody also let me try on their barristers wig, which is sort of a hat. I don't have one of those partly because they're horrendously expensive. They're antiques. I don't think I need to invest in one of those.

Tim Kowal  7:32
Well, let's move on from hats and talk about talking about your career on the bench. And and now you're in private judging. Is there something can you tell us something about private judging, that you that you enjoy or that maybe surprised you as you transition from the bench as some time ago that now that you transition, but why you got advantage on both worlds? Well,

James Lambden  7:51 
I like to say that I had all the best jobs that you can have in the legal profession, I was a partner at a great law firm. And I was I enjoyed being a trial judge very, very much. And the Court of Appeal is I think, the best job in government you can have, you have resources, you've got help, you've got some influence, and nobody knows who you are, for the most part, and the game is not in the paper, so you don't get as many death threats. And I was surprised at how much I enjoyed the the private, the private world the alternative dispute resolution consulting work, partly because I had forgotten how gregarious I am. So I enjoyed seeing the people there are a lot of people in court of appeal, obviously, but they're the same people. What

Tim Kowal  8:38 
do you mean, you would you would forgotten how gregarious you are? Well, because

James Lambden  8:41 
when I was in law in motion in Alameda County, I did the whole county is in a master calendar. So I had about 30 cases a day. And during that time, you know, the estimate is in a, probably her 25 to 30,000 cases. And during that period, all of the people that I ran into tended to be the younger attorneys, given the job of going to law. And when I came out, I found that they're all managing partners. Now. They're still practicing, and they're still happy to see me and they remember me. So I discovered that I had many more friends and I hadn't seen in a long time working on the Court of Appeal is like working in a museum in a certain way. It's very comfortable, and it's very quiet. So I was really happy to get back out on the border friends again.

Tim Kowal  9:34
Yeah, you don't get you don't get as many opportunities to interact is oral argument at the Court of Appeal is not the same thing as interacting with counsel at law in motion.

James Lambden  9:42 
Ya know, it's one day a month or two, maybe and again, you kind of see the same people. I was always surprised that over half of the cases they would wait argument. I really Yeah, I would never do that. But I think at one point it was about 60% We're waiving arguments, mostly those were the criminal, a lot of those were the criminal cases. Or remember that we complained when the AGs office, which was located in the same building, and we were in would call and will appear by telephone, Justice client in particular. So we at least you've jumped downstairs. Okay. So I've always really enjoyed the arguments.

Jeff Lewis  10:25 
Yeah, it's that it's that, or what would you say is something that you miss the most from the Court of Appeal? Was that the arguments or anything else?

James Lambden  10:32 

Well, I certainly I certainly missed the people. You know, you get very close to your to your staff in particular, over the years I have had, I was on the trial court. At one point, I had seven research attorneys who report to me Oh, and on the Court of Appeal, I always had no fewer than three and maybe an extra. And you get very close to those people. I mean, you really kind of sit around in the office and Jawbone with them a lot and and get to know them very closely, along with your assistants, and they're on the staff. So I really missed the people. I didn't miss the time that you have. The thing about the Court of Appeal is that you finish the opinion when you say it's finished, although you know, we have over the years are some complaints about the delays. But having the time to reflect is really nice, a lot of motion. It's kind of a shoot from the hip decision that you make. And I enjoyed that a lot, too, although it's very wearing to have that many cases today in order to do a good job on all those cases. Because like I said, I had seven attorneys. And every afternoon after the calendar, we would line up on two couches with me in front and go down the line with them briefing me on the next day's cases. And that was makes the time go by for sure.

Jeff Lewis  11:51 
I bet I bet when I first when I was a young law student, I clerked for the la da da da is office doing preliminary hearings, you'd show up in the morning and they'd hand you 10 files. All right here your preliminary hearings for the certified law student. He just never knew what it would be.

James Lambden  12:09 
Like I always I always told my my law clerks, I had a lot of interns on the Court of Appeal. And that's, that's one thing I really enjoy. And if you really want to be a trial lawyer, go to work for public office. Because they'll hand you a dozen files and say here, take care of these. And, and you will learn to talk on your feet pretty quickly.

Jeff Lewis  12:28 
Yeah, that's great advice. And you get in front of so many different judges, when you're certified law students that by the time you're graduate, and you're ready to practice, you're no longer intimidated by certain personality types on the bench. It's

James Lambden  12:41 
another story there, then it's, you know, it's a fairly small community. So I when I came on the bench, I was the first civil lawyer in a long time to be the Pope, because of Meijin. He appointed a lot of prosecutors, and my very first faladi calendar, I walked out to a packed courtroom, every da and PD in the building, I've had come to see how to land and perform that first day. And it was daunting. Then I got that I got the flops, let's actually actually have one of the defendants have a jury box filled with guys wearing orange suits. And one of them actually spoke up and said, Aren't you supposed to remind him he has a right to a lawyer? They said thank you and skip that in my script. So that was a very steep learning curve, but I enjoy doing criminal cases as well.

Tim Kowal  13:33 
Wow. Well, you mentioned that the one of the things you missed from the Court of Appeal are your colleagues. While you were at the first district Division Two, you worked alongside Justice Anthony Klein, who had been Governor Jerry Brown's legal affairs secretary and you also worked alongside justice Paul Paul hurl, who had been governor Reagan's appointments, Secretary, there must be some stories there do the did the different perspectives represented on on your panel produce better results, and it produced friction or a little about? Well,

James Lambden  14:03  
a little of both, but I think generally a very good result. Justice Harley was certainly a more conservative justice, but he was also a gentleman, and very willing to listen to different points of view. And Justice Klein was rather famous for me, opinionated. And there had been for a number of years server revolving door in Division Two, in terms of people who moved on. And there were some famous feuds in Division Two as well. But on balance, I think that I think that we did a good job. The three of us later we were joined by Justice robola. In getting along, a good example would be the very first cannabis case that was hurt in California came to work. And by the luck of the draw, went to justice Harley, and we teased him A great deal about handling the first cannabis case, including getting him hemp stationary. And I can't remember what else we did for him. But it was a good example that although he was conservative, we got the right answer. And I was very proud of the result in that case and others as well. Another one that we had was the one on one California shooting, which came through our division. And we had elaborate discussions over how to deal with that case. And I think I think we ended up with three different opinions. I can't remember exactly I know I wrote separately. So yes, I think we I think we did a good job.

Tim Kowal  15:39 

Now there's been, you know, as you were talking and made me reminded me that there's been a lot of lot of ink recently as the Governor has been looking to fill the Chief Justice slot on the Supreme Court. And there's been a lot of a lot of folks out there talking about opining about how how collegial, and how consistent the Supreme Court has been in our state and in giving a lot of unanimous decisions, despite even controversial issues. And one of the more common explanations is that well, maybe all of them, all the justices are more or less ideologically aligned, there tend to be slightly left of center. That explanation didn't quite seem to match up with, with your panel with with justices Klein. And in Harley, it seems like you were in yet during your 17 years on the bench. You never filed a dissenting opinion. So you obviously had very good collegiality produced a lot of unanimous opinions. So what was the secret sauce there?

James Lambden  16:36 

Well, I think you I think you've, you've pointed out the exact point, which is that I always tried to mediate between my my two colleagues and I didn't write any I did actually write one dissent. I'll tell you about that in a minute. It was unpublished, but I was in the catbird. Seat. I mean, generally, I was going to be the deciding vote if there was a big disagreement. So my effort was to try as best I could to achieve a unanimous, unanimous decision. If I could negotiate the the language of an opinion that everybody signed, I was very, very proud to do that. I did worry, one dissenting opinion. And I think it is my my friend, Justice ruled that it was only him. And it involves some ridiculous dispute over trees that were cut down by a homeowner's association. And I was convinced that he got it wrong. But it wasn't necessary for me to descend generally. And we wrote some very good opinions. And I think for that reason,

Tim Kowal  17:38 

you mentioned, you mentioned that the opinion over over cutting down trees, I've had those kinds of cases. And I hear about those kinds of cases. And Jeff and I have talked about in another episode about how the court of appeal has a lot of has a wide panoply of cases that it has to decide, many have very grave ramifications. There are death penalty cases or people with life without parole, there are custody cases involving parents rights to over their children. And then we have cases about whether you should have cut down my tree or not. And I wonder if that fact factors in do you get those decision those cases sometimes and say, another one?

James Lambden  18:16 
Well, one thing that was really enjoyable going back again, to what I was on the court of truck court in law in motion, I was kind of on the bubble, because if I read something in the Chronicle or the or the East Bay papers on Thursday, I might well have an ex parte application on Friday relating to that. And one thing that you mentioned trees, Berkeley, in particular is tree central for tree lawsuits. So I got a lot of those on the court. And then you also find on the Court of Appeal that you see the trend as well. If you go to the old, you know, any of the old digests, you'll discover that there's a huge number of cases involving ladders, trees and fences, because that's what people get involved in, in their neighborhoods. And then on the other end, you get big questions of policy, you know, and they really enjoyable work on the Court of Appeal is to get it in a really great policy question that you get to think about and argue with your friends about and maybe influence. I mentioned the the California shooting the one on one California shooting that was one that allowed us to debate greatly what the gun control could look like. And this was pointing years ago, more than another thing that people don't particularly realize is that we give up our First Amendment rights to go on record, essentially, you know, you can't go around talking and advocating and you should not. For example, I was never a member of the Sierra Club because their their cases were cut in front of me even though I'm an avid outdoorsman, but a good story of On the other side would be that I wrote an opinion, overturning the divorce settlement of Barry Bonds, which you may recall, which was a little bit off the off the ranch because we interpreted strict scrutiny into statute in order to overturn his divorce settlement, probably reversed by the Supreme Court. But I took a copy of the opinion that I wrote and wrote FYI on it and sent it to somebody in the State Senate. And the law was changed. And another example of that would have been the one on one California said, at the time, I wrote a concurring opinion pointing out, the legislator had pointed past a Civil Code section that said that manufacturers of firearms cannot be held liable. And once again, I took a copy of our opinion in that case, which was the result that we were forced to reach. And I sent a copy of that to the Speaker of the House, or the speaker of the assembly at that time, Don Bharati, and that code section was rescinded. So, and that's not advocacy, that's just for your information legislature. And we have the ability to comment on the law, which is important.

Tim Kowal  21:19 

No, it's interesting, because we lawyers see that from time to time in the opinions where it will conclude there'll be a topic about the separation of powers that well, while we sympathize with the appellant, this is a policy proposal that only the legislature can make, and we're not a legislature. So we we suggest that the legislature take a look at this next time it's in session, that sort of thing. Whenever we lawyer see that, should we is it safe to assume that that may be the author of The that opinion is sending a copy up to the to the legislature?

James Lambden  21:50 

Well, possibly, because like I say, it is part of our job to educate and, and bring attention to that when it's not the law. And when I when I was in law in motion, I would frequently tap on the microphone for the reporting transcript and say, Court of Appeal. This is an interesting issue. The lawyers in the audience always like to, and occasionally they listen, as well.

Tim Kowal  22:15 
I've never heard that done. But that's, I liked that idea. You can you can punctuate the record that way.

James Lambden  22:20  
Ya know, I often encourage people to appeal me, you know, more than once saying this is this deserves an opinion on things I ran across. One thing that I run across now as a, as a read a rabbi and evaluation is that there are areas where people will argue, make arguments, and they'll say there's no, there's no authority? And the answer is will nobody ever brought it up. And there should be an opinion on this, or nobody. It wasn't needed, because you're wrong. It's not It's so obvious that you don't, you're not going to find authority because nobody's ever going to bother.

Tim Kowal  23:00 
Yeah, you're so obviously wrong, or or you're just brilliant, and no one understands.

James Lambden  23:05 
Yeah, and by all means, if we can't sell it today, go ahead and file your appeal.

Tim Kowal  23:10 

Right. Now, I just wanted to go back to one thing that you mentioned about the you are in the catbird seat when you're on your panel with with your colleagues. And I wonder if that if that can translate in any practical advice to practitioners who are they're drafting their their arguments in their appellate briefs? And maybe they're maybe they're envisioning their panel? Maybe has they got one vote to to reverse one vote to affirm and then there's a there's someone like justice Landon Landon, in the catbird seat, is there something that you can use to kind of modulate your arguments to to appeal to that middling row position?

James Lambden  23:45 
Yeah, well educate yourself. Because sticking with that point, I often had the feeling that I was being spoken to, in the arguments, because they might, in that particular case, think I was going to be the deciding vote. But I advise people, when I'm doing appellate consultations to try to figure out who's going to write this opinion, I still, you know, I still know most of the people on the Court of Appeal, and even the ones that didn't work with so when we're, when I'm consulting, the very first thing we want to I want to try to do is to figure out who we think is going to write this and what their predilections will be, and who might be the who might be the person that's going to argue with the author, as well. It's kind of hard to do. And it's one of the things that a pellet, ADR consultant can do as we did in in that before when we were still appearing in person. One thing that I enjoyed doing was showing up in the at the arguments because they know that you're sitting up and they pretty much know why you're there because you've been involved in the case is you may remember that when Justice cokie retired from the third district, he got a little bit of a stir because he showed up as an advocate, like in the same court within a month or two She was noticed nothing wrong with it. Can't remember the case, but it was obviously designed to be influential.

Tim Kowal  25:08 
Yeah, we have the same thing happening in the ninth circuit with former judge Kozinski, former chief judge because it because insky is now a practitioner in that court.

James Lambden  25:15 

I've got a lot of convinced case stories, but I probably won't tell you most of those, because he's very interesting, though.

Tim Kowal  25:20 
Maybe after the red light goes off all Alaska again, you described yourself as a judge as being an academic judge, and that you're you're trying to get the right answer. And I wondered if you could just elaborate on that a little bit. Are there? Are there different schools of thought on that point? I would think that that all judges are trying to get to the right answer. But I wonder Well,

James Lambden  25:40 
I think if I had to restate that, I would say that I'm a process Judge, I wants to describe myself to one of my colleagues as that our position is a guardian of due process. One of my colleagues, federal judge was confronted in a country store somewhere. And they sort of braced him saying, Well, are you one of them liberal judges? And his response was that well, if Congress passes what you consider to be a liberal law enforcement, if they pass a conservative law, I'll enforce that. I think we, as I mentioned earlier, we give up our First Amendment rights to some extent. And the pledge is that we will, you know, stay within the lines and trying to try to make sure that the process itself protects the law. And even if we may disagree with the result that we reach, and I've disagreed with a lot of opinions, a lot of the results that I have reached personally, but the law is the law. What about

Tim Kowal  26:41 
your work in private judging? Do you do you see your role as being the same? Do you? Is it following a process? Or is it trying to get a right result? If those two things are different? Or is it is it a different kind of animal? Well, one reason I enjoy

James Lambden  26:54
it is that it's very much a different kind of animal. And it's more directly applicable to the problem. The legal process is opaque to most people, except for the lawyers. And the fact that I get to educate and advocate directly to the parties is and is required, because they're the ones that are deciding what they're going to do with their case. They're all surprised to hear when I tell them that my entire career almost 50 years, more than 95% of the cases that are filed in court settle. And they're shocked by that they assume that everybody, it all goes to trial? No, it doesn't. And one of the things that I'm enjoying about this private practice is that there is a growing realization, particularly post COVID, that litigation is not like preparing for a battle is more like going on an expedition. It's more like taking a trip across the mountains and encountering different places where you have to do different things. And I'm seeing that lawyers are beginning to appreciate that more so that you know, you don't sit down and just think well, I'll threaten the other guy that I'm gonna go to trial, and I'm gonna go. And well, that's really not what the process is going to achieve, if that's your attitude. So I've always advocated against going away from the sort of chest beating, threatening, beat you in court kind of approach to being as collaborative as you can, that you got two clients that aren't getting along and have a dispute and you need to help them resolve it. So I think that the new paradigm now is much more shifting in that direction. Like I can feel it, partly because the courts are appreciating it. They're appreciating that managing the calendar, rather than simply calling the case and trying it as a much better way to resolve the disputes, basically recognizing that most should settle.

Tim Kowal  28:55 
But what do you mean that you said you you see things shifting what what has changed? I very much like that observation that litigation is not a battle, it's more like an expedition. Because in my experience, it feels like at the beginning of a case, you only know what your client has told you. And maybe you've done a little bit of independent investigation just to satisfy your your one 20.7 obligations. But usually, by the time you get to trial, you're looking back at your complaint and you think, gosh, if I only knew then what I know now,

James Lambden  29:22 

well, I advocate an early not evaluation, the mediator, but an early early evaluation of your case by recognizing those signposts along the way, or things will occur. A good example, though, is an early mediation, where the complaint is filed and you call up the other side and beat your chest and said how powerful and what a great attorney you are, and then decide what comes next is frequently useful to decide, well, let's do the P and K the person who was qualified deposition right now. And then let's talk to a video or alternatively, Let's start thinking about what this what discovery is going to be like, if you've got a case that has a million items, electronically stored information, you should be able to recognize that's going to be a problem. And that the other side is going to object, everything and you're gonna object to everything. So think about how you're going to manage that. Because you are going to management management, no matter how many times you go to court and shout at each other over somebody's not answering or answering effectively, you're still going to have to get over the information. So another thing that I'm seeing more from the courts are references for the discovery of doing a lot of them. And in the old days, there was a reluctance to do that, because of the expense to the parties and the feeling that you were putting people off to somebody else, plenty of authority now that you can't just assign your discovery calendar to a referee, but you can assign the management of discovery to a referee. And ultimately, it may be cheaper for the parties, to not have to reserve a date go in and yell at each other for each problem they arise. So what I'm doing a reference, for example, we have an initial meeting where I'm kind of mediating, say, what are your What are your B's going to be like? What do you think's going to happen with all of this ESI? How is it going to be managed? And then regular conferences that are reported to the court? What's going on? Now the judges in court love it. Really, I think that's something that's really changed, rather than being reluctant to get help outside of court. Now they're seeing what a boon it can be in terms of not just putting the work on somebody else, but actually making the case get settled and get moving. Yeah.

Tim Kowal  31:44  
I hate discovery disputes. Yeah, well, and another example

James Lambden  31:47 
would be, this comes up in a mediation where I've been talking to the parties, it's businesses being let's say that the one, the one issue is going to be the value of the stock there are. So you can you can either stipulate or get the court to appoint an accountant who will decide that issue and present it and the case will sell. And she got that number. And I've done some arbitrations like that, where they brought me just one issue inside whether or not this agreement for purchase and sale of stock is enforceable. Once they get that answer. It's done.

Jeff Lewis  32:23  
So we talked about evaluating cases like pre trial in terms of discovery, how about in terms of appeals and post trial is the best time to get a neutral involved, immediately after the adverse verdict when emotions are running hot, and someone's thinking about appealing or maybe a year later, when appellate briefs are about ready to be written? When's the best time to get a neutral evaluation of a possible appeal?

James Lambden  32:47
Well, one thing you mentioned that in the right case that needs it, you can afford it, you should hire your appellate lawyer before the verdict. That's number one. And then secondly, appellate mediations are difficult, because somebody's already won. And that generally means that they're going to try to bring it to me, for example, to tell them who's going to win the appeal. And that's not particularly useful, because that can't just say, I think the court was wrong, give them the money, because they're, they're not gonna like that answer. But you can, you know, evaluate in the right case have better result. And that's where the evaluation of an appeal with a mock trial may be useful to write the briefs as well, to say it's not only here's how your argue can be improved, but this isn't the issue is really going to matter. And this is the one that they may or may not publish on. We have done in my office focus groups, we have a number of retired justices. So we've actually had cases where we've been large enough that they've hired maybe two or three panels, multiple justices to here and then vote on what do you think the result is going to be? And they pay attention to that?

Jeff Lewis  34:07  
Let me ask you, I've got buddies from law school who have done moot courts with in advance of appeals. What can a retired justice offer or group of retired justices offer in a in a mock argument that my law school pals camp? Well, it

James Lambden  34:21  
depends, you know, I would say this, some of my, you know, there's a wide variety of how good that experience can be. One thing I would suggest is if you're going to bring a mock trial, hire, find one of your law school buddies to play the other side and get somebody that you know, will do a good job. And then make sure that you get justices who will engage many of the oral arguments on the Court of Appeal are not particularly engaged, but get people who will really take him seriously in terms of not acting like they used to on the bench, but actually being interested in your problem. And that's helped me in that regard. It's helpful if you bring us in to talk about the case when you're writing the briefs. When when you're putting it together, so the typical consultation for me it starts at that point, maybe the appellate brief is in file and the respondent wants just wants to help draft, you know, help draft the reply. And if we're engaged at each stage of the appellate opening, brief response, and then the reply, it's pretty easy to direct people in the direction of where do you think the arguments gonna go? Particularly if you're forewarned in some fashion by knowing who the panel? Yeah, yeah. All right.

Jeff Lewis  35:35  
So you shared some best practices in terms of things to make sure you do in connection with a mock trial. I wonder whether it's mediation or evaluation, post trial, are there any pet peeves, or things that lawyers should avoid doing to make sure they get the best value out of an evaluation or mock trial?

James Lambden  35:55  
Gender, generally, it's a good idea to practice your elevator speech on what the script is, too much information is not helpful, you know, frequently, they'll send, even in a non appellate case, they'll send their whole file, read all my briefs filed in this case, and that's not particularly helpful, the thing that's most useful is to focus on what's going to be important. So. And I observed that when I was a trial judge as well, I get to the day of trial, and it occurs to me, these people don't really have a theory of their case, they haven't really figured out what they're going to argue here. So you need to regard it as a narrative from the beginning and write your script accordingly. And then when you get to somebody that you're paying a lot of money to evaluate, make sure that you're bringing up the points that are pertinent, or ask which points are going to be pertinent. But that's, that's the point of having somebody evaluate. And there's been a real shift that everybody recognizes now from sort of a sociological approach to mediations to the evaluation approach, which doesn't mean coming in and you know, you arrive and you say, Judge, evaluate this and tell them to pay me, it means that you'll actually talk about what's going to happen and what the moving parts are, which aren't all legal, and aren't all money. A lot of times it's Mother, Mother always like to invest or I hate my brother in law. That's, that's one of the things that's much more interesting and enjoyable quark is dealing with people.

Tim Kowal  37:30  
That's, that's what you refer to as the sociological part of the case.

James Lambden 37:34  
Well, you know, originally, the mediation work came from sociological studies about sort of getting people to recognize their own interests and get it off their chest and cause them to have some sort of a kumbaya moment where everybody shakes hands and says, Oh, we didn't meet, it will settle. Everybody realizes that, that's interesting. But it's not really how it works in Hurly burly of the legal world in litigation. But it's still a factor. So I expected because of the, you know, taking some mediation courses, that there would be a lot more of this sort of warm and fuzzy stuff about trying to find out how people are feeling about their opponents, it's pretty easy. Usually, they're mad at their opponents, you know, you walk in the door, and they know that you're, they know that somebody's either suing them or they're being sued and sort of pissed off, I kind of refer that as a fortress mentality, that everybody hunkers down behind their battlements and says, We're gonna win this battle, and assumes positions without really thinking about what that means, in terms of a two year court delay to get a trial, the amount of money they're going to spend on their lawyers, and you know, what their hard feelings are worth to them in the real world. So that that part I still enjoy very much, but it's kind of subrosa legal discussion.

Tim Kowal  38:57  
Yeah, as you talk, I hear you, I hear you talking, touching on a lot of themes that I could, I could describe as theory of mediation and different it's a different skill set, or it's a distinct skill set from from the skill set, you practice as being a jurist. And I wonder, is, was the transition to to, you know, to adapting and, and utilizing these, this mediation skill set? Was that natural or that takes some time to, to learn these? Or did this all come from being on the job training being a superior court judge and then a Court of Appeal justice?

James Lambden  39:32
Well, some of each, a lot of my colleagues, both trial judges and appellate justices kind of find that transition to be difficult. This sort of going back out among the bar without worrying the row is kind of intimidating. Like they say they don't laugh at my jokes anymore. So there's that and then there's also the situation where the instinct is to be very Evaluate it right off the bat, say, I've read your brace, you're gonna win pay him. And that that won't work. Also, judges are sort of taken aback to discover that they're not working for the lawyers. Really we are the lawyers pick the mediators and arbitrators. And that that can be a little intimidating. But my background was searching the internet also, in terms of what I did, as extra extra curricular activities on the Court of Appeal was that I was more open to being out among the people and paying attention to their non legal questions, and non legal interests. And I've always was, I always thought I would end up being a professor, because I really like educating people turns out that I can do that get paid much better than I would if I was a professor. So I'm doing it now. So that part I enjoy a lot. And as I said earlier, being able to talk directly to, to the people who are the stakeholders, and answer their questions is very, very enjoyable.

Tim Kowal  41:03  
Well, you mentioned about the elevator pitch problem we talked about a lot is the throwing the spaghetti at the wall problem when you don't have a theory of the case. And you're just gonna throw all your arguments out there. And it made me think back to from your time on the bench, are there some best practices that you can share with our audience about brief writing to grab the court's attention? I take it the same, the same advice would apply there. Don't throw all this spaghetti at the wall. Do a lot of attorneys have trouble learning that that lesson?

James Lambden  41:33
Well, one thing that I love about attorneys and one thing that annoys me is that there's so thorough that the one thing that an attorney fears more than being buried alive is missing center. So think about the bar exam. It's all about recognizing issues, so that thoroughness leads to over writing. And over arguing, generally, when I was on the law in motion bench, I frequently would raise my hand and say, Okay, you're running the loop again, you don't need to do that. I've heard the argument the first time. Another thing that I used to say is, somebody had told me that I could I could have wrote written a shorter brief, but it didn't have enough time. Because it takes more time to write succinctly. And that is to write to the point. So not giving up an issue. I think I used to say on the Court of Appeal, there's nothing stronger than conceding an issue to say, all right, Your Honor, I know that issue is not my strongest point. Let me tell you what my strongest point is.

Tim Kowal  42:37 
But that goes against all of our training.

James Lambden  42:38  
Exactly. And it takes courage. It takes courage to do that. Because your client then like to hear that bro, one thing you know, your clients pay by the edge of the briefs, to be thorough. So

Tim Kowal  42:51  
what's the advantage of conceding a point? What what is that by the attorney,

James Lambden  42:55
it buys you credibility in the Court of Appeal, to argue a point, that's clearly not the most important point, and you've got 15 minutes to make your argument is just a waste of time. And we always noticed, when somebody would say, I'm not going to talk about that, I'm going to talk about this. That's, that's what's strong about it. And it takes the courage of your convictions, knowing what your case is about, and not simply being ultra thorough. I would say to that, I will I will mention one other pet peeve, I suppose at the pet peeve would be the, the, what you'd call it the the battle theory that you I'm not going to answer any of your questions. You're not going to get any cooperation out of me ever on anything. I'm going to fight you tooth and nail right to the courthouse steps in front of a theory. I still run across attorneys that behave that way. And it's it's always annoyed me but it's also a counter purposes with what their what their job is. And, you know, I think we've all observed there a sizable percentage of attorneys who get along pretty well, despite being unpleasant. You know, you can settle, you can settle cases, you can, you can recognize cases that will settle this because I'm tired of dealing with that. So, I always encourage people to remember to show my compassion but allow your opponent to save face, you don't need to grind their heel on the fact that they've lost their emotion.

Tim Kowal  44:28  
I wanted to ask you about something that I was thinking about recently about one of the differences between the California State appellate system and in the federal system is that in the California State system, we don't have horizontal starry decisis meaning that a court of appeal in the in California can look at another District Court of Appeal opinion as persuasive or not. If the court doesn't is not inclined to agree without holding. It's it can treated as if it doesn't exist. And I wondered if you thought for Your time on the bench. This makes a big difference or a small difference in in your work and as a as a justice deciding the cases there's practitioners out to keep in mind. Well, there's a

James Lambden  45:11  
parallel question there. And that is the perennial fight over whether or not you can cite unpublished cases, which are available to everybody. And it's, you know, the old kept secret that Court of Appeal justice can look at it and publish case and like the reasoning of it, and find a way to put it in an opinion. You make me think of a recent arbitration that I that I did, where I actually put a footnote in pointing out that if you read the Mon chars decision from the Supreme Court that the Justice Lucas road, if you read that carefully, it essentially says that an arbitrator can look at anything, you know, you're not going to have an appeal on it, and not limited to published opinion. So I think I was, might have shocked the parties because I had this arbitration where both sides were arguing at great length, unpublished opinions and complaining that the other guy should be allowed to cite them. And of course, I found all of them very persuasive. And wrote an opinion that way, so. So you can always find a way to get the reasoning into the case. And as you know, I would admit that a court of appeal, justice will do that, and adopt the reasoning of the case. So I think that happens in all the court system. You know, it's not once again, it's not a big community. So we know what other people have said,

Tim Kowal  46:36  
ya know, that that's a good thought. I mean, that the point that you that a lawyer may not cite an unpublished decision, but that practitioner could still copy and paste the language that reasoning make the same argument, and it has as much binding authority. The reasoning has as much binding authority as another published District Court of Appeal opinion in that it doesn't have any binding authority. It's it's what the Court of Appeal decides it finds persuasive or not.

James Lambden  47:04
Well, and you know, I can't give you any citations. One thing I loved about my friend justice client, is that he could give you the citation for every case he ever wrote. But if I, if I had some time to study it, I can show you some appellate opinions that contain the reasoning of unpublished opinions, which then makes them published, which is, which is the way it works? So you know, the right answer is where you find,

Tim Kowal  47:33  
yeah, yeah, that's right. Let me ask you this question. Most appellate attorneys that we talked to would would love it. If the Court were to issue more tentative opinions or focus letters and your divisions practice, when you're on the bench was to issue focus letters before oral argument, which would tell the advocates what issues the panel was particularly interested in hearing about during oral argument? What was your experience, like with the focus letter, it was was it positive,

James Lambden  48:00  
it was definitely an ad, I'll go back a little further to say that I wasn't the wasn't the midwife for the idea of tentative rulings, but I was there at the birth. And the idea on the trial court was that you didn't make people come to court, you know, you put it on the phone line, what the ruling was, and they wouldn't show up. But on that on my trial bench, I most frequently used it to say parties appear, I want to hear your argument on this point. And I would say, parties appeared. And I'm interested in this, and they would show up, and that carried over to the Court of Appeal on the Court of Appeal. Originally, when I started, the idea was, well, if we give them a tentative ruling, they're just going to come in, argue with us, and tell us we're wrong. And we've already written the opinion. So we don't want to hear it. So the compromise was really the focus letter, which is kind of like saying parties to appear, we want we want this is what we want to hear about. And then also avoid that concession problem and discuss some issues that we just that aren't going to be important to us. So I think it worked really well. I know that some of the divisions, I think in the first district are now posting their draft, which was done in the fourth different for many years. And I haven't I have no objection to that either. But I think the focus letter makes the argument better, because you're actually saying this is what this is what we're interested in, rather than here's the draft, and once again, you can come and argue with us and tell us we're wrong, which is which is not really helpful. It comes from my actually thinking that oral argument is important. Versus as I said, surprises me that so many people weigh that and it may be appropriate and routine cases. But on the other hand, if it's worth appealing, I think I'd like to talk about it.

Tim Kowal  49:51 
Well on that subject you your division did not have I wasn't aware of this your division did not have time limit on oral argument you had said at one point that we just let you talk until we're not until you're not interested anymore. And I wondered if maybe the corollary to that is at some point, the panel probably is no longer interested, how do lawyers get the hint that they ought to stop talking?

James Lambden 50:13
Well, we would let you know, obviously, we'd never, in all my years on the on the Court of Appeal, we never use the lights that light up and say you're done. But you make me think of an interesting story where it was turned back on us, the late Dennis Reardon, passed away very recently, was a real favorite of ours. And I can remember a day in an oral argument where he had his notes, and he was arguing at great length and became frustrated, closed his folder and said, Well, if you guys don't get it done, and sat down, we all we all laughed uproariously, actually. And it was and it was very, it was very amusing. And it was very tennis as well. Yeah. So we were never, I can remember reading well into the lunch hour, if we found both attorneys with an issue that mattered talking very well without the particular issues. And we often would set calendar that way. If we had a case where we were really arguing about the result, we could at last, we could run into lunch, because I think all of us enjoyed argument

Tim Kowal  51:25
that any attorneys abused the privilege and just droning on and on and on, even though the bench may have been cold.

James Lambden  51:31
No, we wouldn't let him do that. When you're when you're when you're done, you're done. I should say to that. Another thing about being with Harley and Klein was that I think I presided. It was actually presiding judge and oral argument maybe two or three times in 17 years. And a couple of those were when I was protesting in a different division, because one of them was always there. Yeah, because the only person that served longer with Klein was Harley, and by about six months, because I like to say I did a 70 year sentence with Klein.

Tim Kowal  52:06  
Well, I wanted to conclude by talking about your work on access to justice more broadly. And I know this has been part of your life's work since 1997. You've you were first a founding member and then chairman, and now an ex officio member of the California Commission on access to justice, you served on the board of the National Consortium on racial and ethnic fairness, for nine years, you chaired the access and fairness Advisory Committee of the California Judicial Council. And in 2013, you received the Benjamin oranda award for your lifelong work to removing barriers to access to justice. And you've talked before about how your sister's hearing loss initially spurred your interest in helping the deaf and blind to gain better access to justice. So when you started this journey 25 years ago, and you're working on access to justice, what were the resources like and how have they improved?

James Lambden  52:55  
Well, there wasn't much when I was a young lawyer, and because of my sister, I, and also because my firm had clients when the California School for the Deaf was in Berkeley at that time, I was really struck with the fact that if you're deaf in the courtroom, you're excluded, completely excluded. Nothing know what's going on. Basically, my very first project was to get the Bar Association referral line put on a TTY so that deaf people could actually get a lawyer. And once you open that door, and you see the barriers to justice the first time you see them everywhere. And when I started working for the court, I remember those signs, maybe to you remember, there was a sign on every clerk's desk that said we're not allowed to give legal advice go away, basically. So something as simple as where do I file this? And he would frequently said, well, we don't have to tell you and got rid of those. I was lucky when I came on the Court of Appeal, in particular, because I followed the appointment of Justice George. And he very much agreed that without access, there is no justice. So that was really kind of the golden age of really pushing on the issues of the fact that many people are excluded, whether by language, whether by their hearing impairments or disabilities or anything else like that. If they're not allowed to get into court. That's a problem. And it's still it's still goes on, obviously. And it's been one of the big rewards of my career to be able to work on some of that stuff. I'll tell you, I know that you'd like to hear one more story. One was that when I was working on all those committees of the State Bar and the Supreme Court committee, we tried for years to get a budget line item in the California budget for legal services to fund legal services at the community level. We A proposal of one year and before Governor Schwarzenegger and he didn't sign it. We proposed it the next year. And he didn't sign it. The third year, we changed the title of it to the Sargent Shriver access issue. And we always believed that Maria Shriver probably had a little f, little influence on the governor because he signed it. And it was the first time in California had ever actually funded legal services at the at the level. And it's been a line item ever since. And I think we're somewhere north of 4000 for Excuse me $400 million. It's been the same spent on legal services. So I'm very proud result.

Jeff Lewis  55:46  
Let me let me ask you a related question. When I first practice started practicing law 26 years ago, when I showed up in a courtroom, anywhere I went, there was always a court reporter. last 510 years, there has not been court reporters and civil departments. And this past month in LA, they just announced that in family law, probate, writs and receivers and the department's in handle restraining orders for domestic violence. None of those are going to have court reporters anymore. And the presiding justice for LA announced that it's, it's not a problem of compensation. There's just not enough court reporters out there to show up and do the work. And I wonder if you had any thoughts from your years on the bench about this court reporting crisis, and access to justice and where this is going to end up?

James Lambden  56:30  
Well, it's interesting, because when I came on the bench in the late 80s, everybody was all excited about the possibility of electronic records. And we actually my first courtroom had been outfitted with recording devices and cameras. Nobody ever really thought about the question, is the Court of Appeal? Are they going to watch the film? Or are you going to transcribe it? And if you're going to transcribe it, that's a court report. So rapidly, everybody realized that court reporters, I used to prefer to call them word processing technicians or something or communication directors, something like that, because they did way more than simply transcribing good example would be the death question again. My court reporter was the first one in Alameda County to have the real time reporting screen on her computer. So I got all the deficits, because they can come in and they can read what was going on on the screen. So the technology has improved, but you still need someone to do the work. So I think our reporters, now I still get a lot of them, even though my calls are adroit at running the equipment and figuring out how to make sure that everybody's on the Zoom call and that sort of stuff. A lot of the work that I do know, in arbitrations, I have court reporters out of state, it's similar also with interpreters. We get a lot of out of state and interpreters, because they're all over the place. So that's another good way to wrap up the comment I made earlier about how there is a paradigm change. We haven't really felt it yet. But remote access is really changing the landscape in a good way. I think. And it's been a long time since I was trying to argue in front of the judicial council to say that we should allow video arraignments rather than putting the poor guys on a bus at 3am and driving them across San Diego County for four hours, so that they can stand up and say not guilty. So looking back over my career to when we were having arguments about whether or not that was a good idea, everybody thinks it's a good idea. And the clients think it's a good idea in civil cases. And once that happens, things change. Very quickly.

Tim Kowal  58:56 
I think I love your your comments on that. Earlier in the discussion, you you mentioned how you saw yourself as a process judge, and you saw that one of the important roles of a judge is to afford a fair process to lead against and I think that really does dovetails exactly with your work on access to justice, because it's about affording an opportunity to everyone in our state and our opportunity to be part of that process, whatever the outcome is, that's going to be dictated by the law and sometimes forces out, you know, beyond beyond the road that you're wearing. But but your job is to is to afford that process. And and it's hard to do that if not everyone has access to it. So I know you've mentioned that access to justice is your one exception to not being ideological about things and I think that is a worthy exception to allow. And I thank you for your time justice Landon. Although I do you have to ask to Yes, you do indulgence and just a few more minutes so that we can run a very quick lightning round today to ask. Jeff has got some some doozies to ask you for the benefit of our listeners. Those who have come to expect. This from our show,

James Lambden  1:00:01  
is there a buzzer or something that I have to press?

Tim Kowal  1:00:05
You have to wait until Jeff finishes the question before giving your answer that made me hard. A little, a little

Jeff Lewis  1:00:11  
twist on this. You know, most of our guests are pellet nerds and have strong opinions about fonts and spacing, we're not going to be asking you what you prefer to use in terms of when you write. But we're going to be asking you what you prefer to see when you're on the bench or as a neutral in terms of making something the most readable or persuasive. So a little twist on the lightning round. So here we go. Do you have a preference regarding fonts, like century school, book, Garamond, or anything else? When you're reading a brief,

James Lambden  1:00:39
I use Times New Roman. And there's something about that that's a little classic to me. And I liked that. The main thing is to make it big enough for me to see, you know, the court rules take care of that. And the pate, the word counts takes care of that. And well to in my career, I've seen every trick in the book to get extra extra words in and you've already heard how I feel about writing too much. So keep it keep it short. Keep it going and see

Tim Kowal  1:01:07
and, and don't skimp on the on the font size.

James Lambden  1:01:11  
Yeah, yeah. Well, I should mention too, if you're able to do hyperlinks, we love them. And more and more people are doing.

Jeff Lewis  1:01:20
Yeah, that was my next question. Actually briefs with either hyperlinks to the record or to cases, if you find it helpful or distracting,

James Lambden  1:01:27  
absolutely helpful. You know, older judges and justices have a rep for VA not particularly technological. Those of us who are bought into it, we love it, it makes it much more much easier to work on.

Jeff Lewis  1:01:42  
All right, fantastic. And then in opening brief, oftentimes, there's an introduction or a summary of argument, when you were on the bench. Did you prefer that there'll be citations to every statement in that argument? Or in that summary of argument? Or is it okay to kind of skip the citations in that summary,

James Lambden  1:01:59  
not in the introduction, the introduction should be your elevator speech. And we've talked about that. And I like to have the elevator speech at the beginning, roll all the way back to the concluding paragraph. So the citations go in the middle, but tell me what your problem is about front. When I was on the trial bench, I used to tell people to use the ass backwards system, write the order. First, write the order that you want me to make for you make your argument don't jump right in on the argument, because you need to know what you're asking for your start.

Tim Kowal 1:02:33 
I think that's great advice.

Jeff Lewis 1:02:35  
All right. And then final question of a lightning round when you were reading briefs on the bench in terms of main arguments, all capital letters or initial capitals or sentence sentence case? Did you have a preference in terms of your eyes or what made it more readable?

James Lambden 1:02:50  
Well, you know, the points and authorities aspect where the point is made, I think any sort of emphasis on the point and making sure that it's short, whether you underline it, or make it bold, maybe bold is going a little too far, I tell the sizing would definitely be going too far, because it's a little harder to read italics. But make those points stick out. I would also mention that I'm a big fan of bullet points. And I think I think most of my colleagues are some might be annoyed in a brief, but in the kind of recent I get in my work now I like bullet points a lot. So if you can think of them in terms of being bullets that are a little bigger than have stories, that's fine.

Jeff Lewis  1:03:32
And how about in terms of readability, either while you're on the bench or today in private practice to spaces or one after a period?

James Lambden  1:03:42
I go with two. But I think that maybe is a little bit more readable. You know, obviously, we used to have arguments about that there are no rules for commerce, but trying to make your sentences, assemble your sentences will add a lot of content. Because if you got a lot of comments, it probably means you got a lot of clauses, and a lot of clauses is not a good thing. Sentences shouldn't be direct. And paragraphs. paragraphs should start with a topic, fill in the examples and end with a conclusion and people kind of lose that. Everybody knows string sights are not necessarily good. Yeah, you're not gonna want to do those. You know what we one thing we enjoyed on the bench when we were able to bring our computers up to is to pull it, pull a case out of the middle of the string side, mask them about it. So once again, keep it short and keep it to the point.

Jeff Lewis  1:04:32  
Yeah, you know, my staff knows I don't really know how to use commas. I think I'm a pretty good writer, but I don't know how to use commas. So generally when I'm editing briefs, I just rip to shreds any sentences that have commas. Just

James Lambden 1:04:44  
recommend I'd recommend that book. You've probably heard it's called each shoots and leaves.

Jeff Lewis  1:04:48 
Yeah. Right. All right. Well, you have survived our very first justice edition of lightning round. So congratulations and yeah, well done.

James Lambden  1:04:59
Well So I appreciate you inviting me and I hope you'll have the again, I've got obviously got a lot of opinions about, about the work that I've done in the past and what I'm doing now.

Jeff Lewis  1:05:09  
Oh, we're gonna invite you back to talk about the cases where unpublished decisions were transformed or cited into published decision. So

James Lambden  1:05:19
we do prepare by having my footnote from the month chars decision sort of summarizing, but justice Lucas sin, which is kind of well, anything goes, you know, a fair result, which I think is interesting when you're talking about arbitration.

Tim Kowal  1:05:35
Well, we always love a good example of how to get around the rule against citing unpublished opinions. So so that will go in the annals. So that that wraps up this episode. And again, we want to thank our sponsor casetext for sponsoring the podcast each week when we publish the episode, we include show notes with cases that we discuss and we use case text for those links. listeners of the podcast can find a 25% discount available to them if they sign up to case text at,

Jeff Lewis  1:06:02  
and if you have suggestions for future episodes, please email us at info at cow And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  1:06:12  
See you next time. Thank you very much.

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