The California Appellate Law Podcast

What Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff Calkins

August 26, 2021 Tim Kowal & Jeff Lewis Season 1 Episode 15
The California Appellate Law Podcast
What Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff Calkins
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The California Appellate Law Podcast
What Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff Calkins
Aug 26, 2021 Season 1 Episode 15
Tim Kowal & Jeff Lewis

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and Tim Kowal about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why the California appellate courts may tend to go easier on trial courts than federal appellate courts. Jeff also shares his theory on why California appeals are not as much "fun" as federal appeals (hint: it has to do more with the legislatures than the judges), and disagrees with Tim's proposal that Rule of Court 8.1115 be amended to allow parties to cite unpublished opinions.

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

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

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

Cases and other resources mentioned in this episode:

Show Notes Transcript

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and Tim Kowal about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why the California appellate courts may tend to go easier on trial courts than federal appellate courts. Jeff also shares his theory on why California appeals are not as much "fun" as federal appeals (hint: it has to do more with the legislatures than the judges), and disagrees with Tim's proposal that Rule of Court 8.1115 be amended to allow parties to cite unpublished opinions.

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

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

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

Cases and other resources mentioned in this episode:

Jeff Calkins  
The Court of Appeal is to paraphrase an old phrase, it's not last because it's right. It's right because it's the last.

Announcer  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Poole and Jeff Lewis.
 
Jeff Lewis
Welcome everyone, I am Jeff Lewis

Tim Kowal
and I'm Tim co all operating under, under a provisional license from the California Department of podcasting. In each episode of The California appellate law podcast we provide trial attorneys with legal analysis and practice tips from an appellate perspective, both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. And in this podcast we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis
All right everyone, welcome to episode 15 of the podcast.

Tim Kowal 
Yes, and today we welcome Jeff Caulkins to the show, Jeff spent the last three decades as a research attorney at the Court of Appeal for the fourth district third division here in Santa Ana, Jeff was my boss when I was an extern during law school under then Presiding Justice David sills and then he worked under acting Presiding Justice railers dam and then went on to work for justice beds worth before his retirement last year, before going to work at the court of appeals, Jeff had a very interesting career as a journalist that maybe he'll share with us a little bit today on the podcast so welcome and thank you for joining us here today, Jeff,

Jeff Calkins
well and I'm totally scared, and of course I'm crap in person, and if I could think on my feet. I would never have gone into a pellet, I would never have gotten into appellate law I would have actually been a trial lawyer, but here I am anyway.

Tim Kowal 
Well maybe pick the right profession, then, what was it like working as a research attorney in the Court of Appeal.

Jeff Calkins
Oh well, I'm like, it's it's a wonderful monastery, it does have a monastic, um, sterile intellectual quality that is absolutely wonderful for people have that kind of variety I mean it's if you were. It's essentially not any different from your typical academic day where you just, you read and you write. Today I read, You know what did you do today. There is I, well I read some cases, and I read some stuff, and that's it. And that's sort of what I'm. That's sort of what the academic life is I mean it's not that different from it being an Oxford dawn. Some ways or being at a research institute or even a think tank. In fact, as you know I think I introduced you to the Court of Appeal, by saying we're simply a think tank with consequences.

Tim Kowal 
Yes, I do remember the, I think it was a monthly roundtable. It's been too long it might have been a weekly or I think was a monthly Roundtable talking about the risks that had come in, there's a specific red panel that deals with all of the emergency risks that come in, and I think, you know, certain of the research attorneys take up the responsibility of briefing digesting summarizing those those risks, and discussing them with the justices on on the RIP panel on rotation,

Jeff Calkins
for the sake of your audience who have real jobs, and do it and do that kind of real work. Let me explain that it's a different set in California, At least it's a different set of research attorneys who work on the rich, as distinct from the opinions.

Tim Kowal
So they, they're, they're segregated so to speak, never

Jeff Calkins 
read attorneys are, that's a specific job. They don't. Most of the time, they don't write the opinions for at least the first draft of the opinions. They only prepare memos on rich, and generally speaking they are looking for ways to deny. Hmm.

Tim Kowal 
Do you ever do you ever get to an appeal of the the the merits briefing and then notice that that there have been a rip filed and summarily denied and you think, hey you know this one was really righteous, what, what were these guys thinking why didn't they grant that writ

Jeff Calkins
well because, oh, as a technical, well the answer is, if it can be corrected on appeal, you don't grant the writ it you know it's, you know, the classic formula you know you'd have no remedy at law I have no remedy lined up, I need to I need to rent. Well, you do have a remedy of law, it's called an appeal. The question is, if the rent wasn't granted when it should have been no you'd got problems in getting around but that's very rare. I mean it's what's, what's the classic read that should be granted some, some order from the trial court that requires you to disclose your. Suppose an attorney client privilege. Well, you can still correct, you can even correct that on appeal, you simply said the trial judge should have excluded it if it should never have gotten to the trial of trier of fact, for example, I mean there are a lot of little ways you can mechanically get around, say, the improvident denial of rent, or you can even on occasion fall right in the opinion well we improvidently denied that. And yeah, it's correct Jeff can I,

Jeff Lewis 
can I ask you real quick. I've heard from a number of research attorneys in the second district, that if you have 60 days to file a writ, and you wait till day 58 or 59 That's like a huge red flag to the research attorneys and it's not really all that important and urgent, and that you should get it in as soon as possible and. Could you comment on whether or not the fourth Appellate District while you were there had that same philosophy,

Jeff Calkins
yes, yes, that's generally you'll find that throughout the system, you wait too long on a writ, you have signaled that well, this is really an appellate issue, and we'll let the guys who do the appellate opinions, work on it, ya know, that the people in the second district are absolutely correct. They're telling you the right, you know the right thing on that one.

Tim Kowal 
Okay. Is that even the case when the appeal when the writ is not necessarily an emergency, it's just not, it's just not directly reviewable such as a an appeal from a peremptory challenge or an order striking a peremptory challenge to the trial judge, maybe there's, there's not a trial pending so there's not, you know, a red flaming emergency that requires it to be filed as a writ the next day, but if it's filed in a little bit closer to the 60 day deadline, there's been no prejudice, does it still trigger that same red flag and with the research attorneys that yeah it's probably not important enough,

Jeff Calkins 
no, no. Okay, you point out an exception if something is pretty obvious should should be taken care of. You might have up to 58 days to do it. It's never a good idea because I think as an equitable matter, waiting too long is just a reason by itself to deny read

Tim Kowal
write well and Jeff mentioned the second Jeff mentioned the second district, are there any Yep. Did you ever have any opportunity to interact with research attorneys from other district courts of appeal, are there any cultural differences are huge.

Jeff Calkins 
Those are set by the justify themselves. And in part, the legislature in setting up the courts where did where and why and how they did I mean, there's a different culture, I think in the fifth. Fifth District and friends now, a hugely different culture at the Ronald Reagan Building in Los Angeles, in part because it's so big and you never see each other, and there was a huge difference, even at the DC 343 When we were at the Spurgeon street place, which was a sort of Ethan Allen furniture store that had been converted into an appellate court, it was charming, it was like you know something out of Victorian novel, and then we moved into our own facility that had been designed to be an appellate court, yeah there was, there was a huge difference Apple, just the fact that all the research attorneys at the Spurgeon street court were on one floor, and we can all talk to each other, whereas all they had to be split up for the, you know, for the run straight court. And then you have also a culture depending on the judges as to whether the research attorneys are allowed, encouraged or forbidden to talk to, not only themselves about the cases that they may be working on in common but go directly to the justice. You know, I've heard many times in the 1990s I just walked into Tom Crosby's office or walked into an Wallens office and just started talking about the case. Now, to be sure, in the case of the late great TED Wallen, you would probably end up having to talk a lot about his various programs for national betterment and whatever he wanted to talk about before you can get to the case but I had no problem doing it. Do any. It was less so it's still possible, in, in, after we moved to the, to the Ross street court.

Tim Kowal
Yeah. Do any of these cultural differences among the different District Courts of Appeal trickled down into what practicing attorneys might call local local rules, things that a practice practitioner ought to be aware of if they're going to be practicing in that court of appeal.

Jeff Calkins
Thankfully not. I don't think that the culture in the ivory tower, you know, say the fifth district or the second district. I don't have any knowledge of the first district has a lot to do with the out the door, product, no.

Jeff Lewis 
Well, let me offer a dissenting view. If I could go. Early in my career I did a lot of Criminal Appeals and annually I would attend the California appellate defense counsel's CLE presentation where they had the heads of the nonprofit's like Calpe and appellate defenders all come in and they would sit in a room and they would be asked the same question. And you'd usually get two or three different answers on, you know, do you like to see a motion to augment versus a notice that the record is incomplete, or would you like an EO t you know at this point in time or later in time, get two or three there I was really surprised how different the practices were across the state, at least on the procedural point and at least in criminal cases.

Jeff Calkins 
No there okay. That's not what I was talking about, I'm happy to address that because that's because I agree with you on that one point, what happens is, you have what is a known as a managing attorney, the managing attorney, generally runs the risk staff. And so for all the interim stuff that involves either the presentation of a read, or the presentation or getting the record on appeal, up to the various chambers, those will tend to be different now. And I've, I've known a lot of managing a true several ones I've known, they would have various ways of being, of being accessed any couple where you just call them up and say what can I do and they would usually tell you oh right file this now or do whatever, others I think would be not quite as helpful. So I think that does depend on the manager, but I'm not sure that's a function of the culture of the court, as it's a function of the managing attorneys approach to that great gap between what you want to take a read from or appeal from and some decision of the Court of Appeal. Yeah, yeah, I will say,

Jeff Lewis 
let me just add one final comment on this is that when I transition from civil litigation to appellate work. The transition from dealing with civil litigation clerks in the Superior Court to appellate clerks was amazing, by and far the research attorneys and appellate clerks that I would speak to in the second fourth district were so helpful in kind and understanding compared to their overworked and undermanned brother and spirit court, it's just a pleasure.

Jeff Calkins
Oh absolutely, totally. Oh yeah, in fact, but you also probably found that with the actual court clerks as distinct from the attorneys. Yeah, yeah, no, no, no,

Jeff Lewis
you didn't even with the research attorneys that everyone saw you have occasion to speak or interact and, you know, it's it's a different vibe. Okay.

Tim Kowal
Well, speaking of. Speaking of clerks, we sometimes struggle with filing clerks at the different courts of appeal, some of them have different approaches I take it, they have their marching orders that come up from above about whether to accept a brief if it does not have all the appropriate bookmarks, including the certificate of compliance under the table of contents the brief may be rejected for, for as slight reason as that is the are those criteria. I assume they differ from one district court to another, and they come from, how much input do they do, do you research attorneys have on that decision or does that come from the justices directly.

Jeff Calkins
Generally speaking, that's the manager, that's the managing attorneys job. So if the managing attorney as hard as you may have to have that word count or that a proper, proper table of contents. My experience at four three is everyone was. I hate to be the bearer of good news just wonderful and very accommodating, on that point. I've only heard apocryphal stories about perhaps somewhat more difficult, ish difficult times and other courts,

Tim Kowal
so you don't have any reports of, you know, getting a lot of briefs that are not in compliance that make you spend extra time finding citations or scrolling around through the document because they're not appropriate bookmarks or tightest citation format so that you go to the managing attorney and say, You need to tell those clerks and start rejecting more filings,

Jeff Calkins 
nothing like that I did gnash my teeth on a number of occasions when citations were correct or tables of authorities weren't correct or little things like that. But generally speaking they left it to the research attorneys to do the teeth gnashing they weren't going to do it themselves.

Tim Kowal 
Right. Here's a question I get from clients rather frequently on on appeals and this, you may laugh at this but, do, do the staff attorneys or justices ever take notice or consider how many extensions, a party is extensions of time to file the brief that a party has asked for

Jeff Calkins
all the time the attorney does managing Okay, the managing attorneys, the one who's going to, and then he or she will then go to the presiding justice, if there's, you know you've had three extensions, and it doesn't look good. I mean, generally speaking, it's the job of the managing attorney attorney, and his or her staff to get the file to the chambers. As, as easily as possible, they don't really want to spend a lot of time going back and forth but they will they do the hard work. I mean, they get extra pay for it and they deserve

Tim Kowal
clients on trial attorney sometimes. You know what, we're in the business sometimes of reading the tea leaves, especially for the when it benefits the client. So we'll say things like, well the respondent has asked for a 60 day extension of time to file the respondents brief, that must mean they're really flummoxed by our appellants opening brief and the research attorneys are going to notice that. No, sorry. No. Okay, no, no, no, no note. Okay, yes I think Jeff when we, when I invited you to be on the podcast we talked about some ideas for for a title the podcast and, you know, the the topic that that you suggested we talked about what had something to do with the philosophy of judging on appeal and the philosophy of persuasion. the title that we came up with for the, for our podcast today was, what difference does an appellate judge make ideology orientation and temperament in the intermediate appellate courts of California. So I'm going to give this over to you and can you start unpacking that a little bit what, What was it you want to talk about today about differences in judicial philosophies among various appellate jurists,

Jeff Calkins
well I actually had to go back to my own career, and ask, what were, what, what were the reasons, judges disagreed with each other. And you see that in dissents you know why, why is there a dissent, and why is there changes and things. And I suppose I'm going to start off by again being the bearer of good news on at least two points. First of all, you'll know I think as a Juris presidential point. There are there's less play in judging, at all levels, when the legislature is more monolithic, by which I mean, if one party is in power and it's making the rules. So in California. The Democrats have been in power, clearly since 2010. And the law actually is, at least the statutes tend to be clearer than they were in the period. Say 1982 to 2010. And so there's less play in statutory language, or what the legislature intended. And for that reason we're getting just generally speaking, and this is my own general impression it's certainly more with my experience for three less dissents. At one level, in jurisprudential it's looking at the intermediate appellate courts far less California appellate courts is much less fun now than it used to be. I mean it was, it was, you know, it was like the Ninth Circuit now back in the 1990s. Now let's, let's segue over, you still have lots of fun if I can use that phrase, lots of vigorous dissents at in the Ninth Circuit and in the federal courts why because federal law is not quite as monolithic there's a lot more that there's a lot more room for etiology to manifest itself, and that's why you have these big fights over who gets to be on the Ninth Circuit, who's gonna do the appointing.

Tim Kowal
Okay, so let me, let me get you to define the term monolithic, a bit when when you say monolithic Do you mean the that there is less room or less ambiguity in the, in the legislation, or are you talking about the more homogeneity of the appointments to the judicial branch.

Jeff Calkins
Now I'm talking about. The first one, there's, there's less ambiguity in the legislation.

Tim Kowal
Okay. And is that a function of. Now before you had just given that explanation I might have thought that that had to do with state versus federal that because we have our federal Constitution is that you can read it in an hour, the state constitution, you'd have to reserve, set aside a whole week to read anything, and you would you would probably be banging your head against the wall before you finished. But, but you're, You're not saying it's a function of constitution, you're saying it's a function of legislation, and you're not even saying that it's a function of our state's laws are are so clear compared to other states. You were saying that even before 2010 our legislation was much less clear than it is now, Is that right, yeah,

Jeff Calkins 
yeah, I mean, let's let's face it one parties had a chance to clear things up and where there's ambiguity make it clear for their son. Hmm. So we're getting less to sense now and there's it's intermediate California intermediate courts are far more, I think it's it's predictable. Now, you in. Tim, when you, you sent me a message that I was found fasting, I've never heard of John hoarseness, prior to, like yesterday. suddenly I discovered, you know, there's this professor out there, a libertarian bent, bent, who thinks that, well, there really isn't such a thing as the rule of law. There's just all politics.

Tim Kowal
Yeah, his, his thesis is that the rule of law is just the latest iteration of the Divine Right of Kings, Divine Right of Kings was an idea that's that gave legitimacy to the law, you know, by, by saying that well it's the law is the law because that's what God says it is because God set up his vicar on Earth and that is the king and he makes the laws kingpin do no wrong and all of that philosophy that flowed from it that and the rule of law is the same kind of thing, we take, we take theology out of it, of course, but we all say that we're not under, under any, any human source of authority, it's all under democracy and then the laws that we create through the democratic process. But John has this talks about, you know, as a, as a law professor using the Socratic method he would you know devilishly give his students to different authorities to support completely opposite positions for the same for the same issue. And the one student would come prepped and ready and believe that they had it right and then the other side would cite the other authority that helps predict to the complete opposite and hasn't said, you know, it's not really about, You know the law is not stable, just because it's the rule of law, he says you have to look for something else and it has something to do with the institution and the institutionality the demographics that all of our jurists, our legal profession is brought up in the same in the same kind of academies and that might be why SCOTUS the Supreme Court, you know, is all is stocked full of Harvard and Yale and Columbia. Graduates, is it because they're, they are just the most impeccably trained, or does it have something to do with they all kind of come from the same club, and can be basically the same way.

Jeff Calkins
Tim, I'm gonna unpack what you just said, because there's three different strains in in the has that we'll call it that has this theory that I think need to be, well, I'm just going to comment on. Yeah. First, a bigger issue is the growing irrelevance of law professors and law reviews to the legal, the actual real legal profession, You go back into the 1960s. Judge trainer would actually consult law review articles by the 21st century. Judges are pretty much oblivious, I think real world judges, except maybe at the Supreme Court level and then it's only to, you know, for a quote, they need to bolster some pieces. I think the legal profits storage has become more and more irrelevant. As time has gone on, that's probably a good thing and it has missed this case, even though I might be inclined to maybe agree with some of his, his thinking I think he's, he's doing political philosophy instead of law. Okay, second point. I don't think it's impure I think that empirically he's wrong. And he's empirically wrong because, well, contracts still get enforced. There are still reasonably predictable outcomes in fact you have outcomes that are reasonably predictable, a lot of the time.

Tim Kowal
Yes. And when you say he's wrong the proposition that you're specifically talking about is that what that the that the law is not stable or that you could use cases to, to prove anything you like,

Jeff Calkins
he's wrong that the law is not stable. Okay, now he's right. for the big constitutional quasi public political issues, it's not stable there, it won't be stable. The really big issues of that the US Supreme Court seems to duck more and more these days tend to be, yeah, that's, that's politics but, you know, you're talking about a small, small small percentage of real world cases. And

Tim Kowal
 what, what I would say, in, in has this as defense is that he doesn't, I don't think he takes the position that the law is not stable, what his position is, is that the law is stable but not because of the rule of law and the rule of law is so great and it works so well, his position is that the law is stable because you have the same kind of people from the same kind of backgrounds and not, not, you know, race and class and everything else that they cut they all come from Harvard and Yale and Columbia from the, you know, if you're looking at the, at the US Supreme Court. And so they're all going to give the same kind of same kind of analysis. They on on political issues, yes, maybe, maybe that is thrown out a little bit but maybe I would say you're never going to get a populist or a libertarian coming out of one of those institutions that they're all going to be more or less at some level, big state, people, big, big government. People

Jeff Calkins 
Clarence Thomas came from Yale. He picks people from the Federal society maybe from the Ivy League chapters, but he came from Yale and he is, I think, as close to a populist or libertarian, as there is and who knows what the some of President Trump's appointees will show so I think I think positive this is to, to focus on because law professors tend to be the political issues at the United States Supreme Court. Now, in the real world, where you've got contracts and regulations to figure out, and entitlements to figure out other things, but I think there's an incredible amount of stability, I think maybe 85%, to 95%, stability and that's good enough to keep apples from flying up toward the tree instead of dropping down. Let me give you my one of my favorite statistics that I sent you. Someone did an analysis of the times when the notorious Ruth Bader Ginsburg and Antonin Scalia, agreed with each other when they were both on the DC Circuit, and then compared that with Abner nerve nerve Mykolas times now, MC fo was counsel to President Clinton. Very very Democrat, you know, straight from from as much as much an establishment Democrat as you can imagine, but Ginsberg and Scalia at us. To be sure not a statistically significant amount actually agree with each other more, but 90% of the time, that suggests a real world war, a real world stability of law at the intermediate appellate level, because, you know, those of us who've been in that particular toiled in that particular vineyard, don't get to rewrite Supreme Court cases, we don't get to say, oh well this was bad, you know, the Supreme Court case was badly written it should be. Oh, we can say that but you say that in a concurrence. You don't get to craft a result around it. So no, I think he's, he's wrong there, but finally I'm going to attack, what he would call the sociological analysis, and that's the ivory tower, it's like everybody came from Ivy League universities, I'm sorry that doesn't accord with the fact that most of the law, most of the time throughout the United States is not done from by Ivy League graduates, it's done by people from Western law schools like Chapman and Loyola and Arizona State and Hastings, whatever you think. Pick your non Ivy League schools. The point is is that, well, if you want to say, if you do want to say it's because of a socialization blame Christopher Columbus Langdon, who was the Dean at Harvard 1970 and gave us the, the case method and thanks to Langdale. We all are fit so should have been socialized to do fine parsing of bodies of case law to come up with, come up with applicable precedent that is most onpoint. So I'm afraid, as much as has misses, you know, seductive I can't agree with him.

Tim Kowal 
Okay, well and to bring it back to California, yeah state appellate judging. You know, like you mentioned that ninth circuit and federal appellate appellate practice can be fun to use your word because there, there tends to be a lot of a lot of disagreement, there's a lot more dissenting opinions, and these days are a lot of pop cultural references and peppery opinions to make it a lot of literal fun to read, you

Jeff Calkins
know, that's been going on since my since I was in law school, read the site woofie opinion, you are familiar with it, of course,

Tim Kowal 
but it's been more. I'm not familiar with that, that opinion.

Jeff Calkins 
Well, you okay you can find it if you go into the legal databases, I suggest you type in the phrase, the site lofi s YUF New guy, why not, if you would defy the cyber feat, Rosetta Stone. In the Sophie opinion it's United States for society and it's an anti trust case, there are something like 300 allusions to movies. It was a Kaczynski opinion, he was of course a great movie fan. And it was an anti trust case involving movie. Movie theaters, and the pop call and it is as it is as high Oh, put this way it is, there are I don't, it's impossible to think of an opinion with more culture, with more pop cultural references than Sophie and it was like, from the late 1970s, they've been doing it for a long time.

Tim Kowal 
Yeah, well, so let me let me just put, put the question to you, why don't we have as much fun in the California appellate system.

Jeff Calkins 
Well, because there are fewer disagreements. Now, in part because one party is has been controlling the appointments, and when parties, and the same party has been controlling the legislature, since 2010. So there's far less, you know, right, left tension there's it's. So there's, there's more agreement, maybe that's good I mean maybe in terms of if you don't mind, whatever is substantively done at least the stability is there. So,

Tim Kowal 
so there's less. Yeah, so the if there's less need for compromise we'll say in the legislature and they can, yes, the the party in power can write laws as they see fit without having to, you know, insert clauses in there to curry favor with the other side that's going to make the statute a little bit a little bit less clear in terms of what its overarching objective is because that if you're the minority party and you're trying to bring some compromising and get some of your views into the legislation that's that's the whole point right is to make it a little less clear that the legislature is adamantly in favor of, you know policy acts and wants to, you know, throw a put a fig leaf in there, somewhat to policy why

Jeff Calkins 
I, yeah. Are you familiar with, There's a UCLA, UCLA, USC law professor named Susan, or skimmed I believe. My memory isn't the earth scan I think is her name, or esslyn, I have to look it up, it's something like that. But she's written a lot on legislative intent. And one of the points she has made and it's cited in Jay jump the Jay Jones opinion from the four, three, is that sometimes the legislature leaves things ambiguous deliberately because they want the courts to figure out, they can't come to some clear compromise in the committee draft, so. Oh well, let's just let the courts figure this out, we'll each one, each one of us, each side will hold it will cross its fingers and hope that the courts agree with it. Now, that's a case that you have that when you have two parties or at least two factions, trying to craft legislation. If you have more monolithic legislators, you don't have to have that you can you can solve the ambiguity, rather nicely, and therefore the courts don't have to wrestle with it, therefore you don't get a dissenting a majority opinion on that point.

Tim Kowal 
Okay, notwithstanding all that you. You did suggest that there may be a typology of judging that could be proposed and you

Jeff Calkins
know what you heard this first, this is the Caulkins typology of judges. I seem to recall, maybe I'm wrong but Richard Hostettler applied the same similar topology to presidents you know there are passive aggressive presidents aggressive active presidents passive, passive presidents, and of course you, you can decide it mine's a little simpler. I'm going to call them I'm going to use the active, passive analogy of type while rubric. Yeah, rubric, yes. I mean, and I'm going to suggest that appellate intermediate appellate judges tend to fall into one of four categories. Right, right, active, left, right, passive left active left passive

Tim Kowal 
left active. We go over miguet left active left passive right active and right. Okay.

Jeff Calkins 
Yeah, and that's that was sort of my experience and I think if you, if I was willing to do the work. I could slot most of the judges, over the years in California judging into one of those four categories. Now, my feeling is, right now, most judges are left passive, which means they take the law they crunch it, you know, there's not a lot of itch to move it in one direction or another but since the law is pretty much left of center, anyway. They'll, they'll be happy to apply it.

Tim Kowal 
And when you say, and when you say left to center again you're referring to what the California Legislature has done for the last 10 years. Yeah, okay. And, but given that the, the statutes, at least to the extent these, these appellate issues are arising from statutory interpretation, in a, in a post 2010 statute. Is there much occasion to be able to decipher the, the particular topology of the justice in question because if all the laws are very clear. Aren't these questions, pretty much just conducive to a to an objective, fairly neutral approach to judging. Yeah, for example, can you, can you tell based on an outcome on a modern California appeal, the topology of the judge. Are they are they left are they right Are they active are they passive, seems like it would be hard to determine.

Jeff Calkins 
It would be hard to determine in a lot of cases, but then it would have been hard to determine on all those cases where Scalia and Ginsburg. Um, so you have to look at those wonderful cases involves some somewhere where there's some kind of play in the judging to use mon Fuller's phrase, the interest disease. And I think that might come out, you'll find a lot, I think you would find more of it in the pre 2010 case law.

Tim Kowal 
Okay. Well, I think you suggested a few of the types of of issues that that might arise that could, that could maybe activate some of the judges particular topology, so you had mentioned, where respect of persons is at play. I guess it like a personal dignity or maybe a civil rights type of case that could give rise to the topology of the judges.

Jeff Calkins 
No, I think I might have misstated myself there were several respective persons I think is a whole different issue in judging. Respect to persons, I think, is more of a, it's, it's, it does explain why opinions from the California Court of Appeal are far less interesting than the opinions from the Ninth Circuit judges in the Intermediate Court of California, appointed by both Democrat and Republican governors tend to come from the trial courts. Okay, they are, and the trial courts in California tend to be. Well, big urban courts, people, there's a lot of internal politics and all that. So, there's a danger that judges at the intermediate level may go easy on their former colleagues, after all they have to see them every, every night, every year of judges not, there's a danger that they might go easy, possibly there's a danger they might get tough if they, if there was some sort of feud going on at the trial level.

Tim Kowal 
Is that different. Yeah, I never thought about it, the difference between federal and state practice is that, in state practice appellate judges more commonly come from the trial bench. Yeah, then do in the federal system.

Jeff Calkins 
Absolutely. To his great credit, Jerry Brown, like to appoint professors like Edwin lubes just brilliant. To the California Supreme Court. So you don't have that problem of judges who are now judging their buddies.

Tim Kowal 
So that would be a type of implicit bias, right, that would

Jeff Calkins
be one, but it's a different kind of I mean if we were, we could switch over and talk about good judging versus bad judging, which I distinguished from ideological judging versus non ideological judging or passive right passive with passive.

Tim Kowal 
Yeah. Well, let me making any sense if not we could cut this out. No, that's okay, I wanted to I wanted to go back and we talked about these different rubrics or topologies of judging and so I wanted our listeners who are, you know who may be filing briefs in the Court of Appeal and are wondering, you know, do what do I need to do I need to try to activate these topologies or avoid these topologies, or at least I want to know when they might come into play. I think you had mentioned a solidarity, when it, when a case involves some kind of angle of solidarity with the poor and the weak.

Jeff Calkins 
Okay, there are a group of cases, um, you know, when I was in law school, they were you know widow and orphan. There are cases where you have the big bad Corporation versus the, the poor consumer whatever we do, It's funny, we don't get a lot of those. It's funny, we don't, but you do get cases where a judge might try. It depends on the quality of the judge. The judge might try to look for ways in which the result can come out in favor of the weaker part, for example, because that's just feels good. Yeah. I mean, I know some wonderful judges who will put aside their tendency to be bleeding heart and will actually follow the law.

Tim Kowal 
Now, yeah, are there. Well, are there appellate justices who, who don't put that aside.

Jeff Calkins 
I'll let you, you might think that but I couldn't possibly comment. Right.

Tim Kowal 
And what can a practitioner do anything in practice, sure you can do to mitigate against that you just try to not to minimize, no, no,

Jeff Calkins
no, sorry, you're stuck with the panel. Yeah, now you can examine, who, if you know a little bit about the panel, there may be some towering intellect on the panel that you can pitch your brief to. And that towering intellect may be able to sway a weaker judge who tends to only think about the poor and the weak or respective persons, whatever, and then you'll, you'll, you'll prevail if you have if unless you have the poor and the weak in which case you, you might pitch it but that's all informal stuff.

Tim Kowal 
I have heard from another. Another research attorney who worked for justice beds worth that because justice bed beds worth so enjoys good creative writing that sometimes if there's a brief with a lot of, you know that's that's exceptionally well written. Justice beds worth might reach in and grab that, that appeal and put himself on that panel, any truth to that. I might I might be misremembering or, or misunderstood what this research attorney said but that was my takeaway,

Jeff Calkins 
maybe at the rent level. I that was not my experience,

Tim Kowal 
but otherwise the panel's

Jeff Calkins 
reach in, no that was not my experience, he, he didn't. There was no way to trick. In fact, my experience was there's no way to get. There's, there's just no way to influence a judge to pick a case at the once it reaches the appellate level. Now, at the risk level, because you've got a rip panel, then yeah, you might, you might get some you might get some good line that triggers the triggers the interest to one or two judges.

Tim Kowal 
Yeah, okay. I wanted to move on and and ask you a couple questions about unpublished opinions, good, and I have kind of a little bit of a cynical take on, on the practice of unpublished opinions and rule of court eight point 1115 And I always like to ask who, whoever, Whoever is willing to sit in the hot seat I like to put to them. This quote from Howard bashment he runs the. Is it the how appealing blog, and he wrote this, this article back in 2017 and the ABA journal for counsel of appellate lawyers, the journal was appellate issues. So here's the quote, quote, the most sinister and inappropriate use of an unpublished opinion must also be considered, sometimes it must be admitted, applying existing law to the facts of an appeal would produce a result that is difficult to describe as quote unquote justice in the context of a given case. In such circumstances it may be difficult for appellate judges as human beings to avoid the temptation of using an unpublished opinion as a method of arriving at adjust resolution of the current case, while being able to disregard that result in the future as a one off outcome, having no binding effect on future cases and how Mr Bassman goes on to say, I wish I were inventing this possible use of an unpublished opinion, but I have heard appellate judges admit to admit to it themselves, To explain why an appeal might result in an unpublished opinion instead of a published opinion and quote. So, after having read that to you. I wonder if you have any reactions to Mr Bushmans observations there.

Jeff Calkins
Well, what he's saying is, is you can you can bury the bad stuff under the rug by not giving it air, giving it the light of publication.

Jeff Calkins 
Ah,

Jeff Calkins
that was, it's ironically, that wasn't my experience, my experience. And this goes back actually to the early 80s When I was just the law clerk and for two. Um, you sometimes saw situations where judges would look at the Supreme Court of a state, remember 1982 roseburn was reigning supreme. And you would think. And this goes to particularly California cases. If you published the opinion would get much more scrutiny from the higher court. Now, here's the conventional wisdom with which alas, I have to agree. Because in California. The Supreme Court is a not a court of air, it is a Court of Review. It's got its main focus is keeping the appellate courts consistent with each other. You have to have the published opinions because they can't, they'll seven people on the California Supreme Court can't keep everything consistent. And so, stuff could get buried, if it's not published, because it gets less scrutiny. Also look the California Supreme Court has to give screws, you know, has to, has to play a sermon I've tried to catch on what it does and it will get more scrutiny to the published opinions that particularly those opinions that create a split in the not circuits, but among the panels. Please know that happens at the US Supreme Court level to where the courts, the Supreme Court mark is more focused on consistency is perfectly. You know, it's part of the problem of just resources or whatever, we can't get consistent, we're not, we can't have Supreme Courts being courts of error, so they can't review everything. So an unpublished opinion from the Intermediate Court is. Alas, often too often, perhaps, arguably, in some existential sense. The last word in the case. And now, do I think that happens deliberately I actually never saw it when I, I worked at for three.

Tim Kowal 
Well, of course, no, no one would ever admit that they're doing it deliberately and they might not even admit it to the

Jeff Calkins 
house, but if the opinion were sufficiently a hot potato or sufficiently innovative, that it required publication, I never saw it, not be published. In other words, I never saw anything that was not published for a bad reason. I saw stuff that might not have been published because it's just boring and ordinary or maybe it wasn't well written, but I never saw actually never saw batteries at four, three, sorry. What about do unpublished decisions get less editorial scrutiny, just Yes, just fact checking proofreading, no, no. Even site checking generally depends on the chambers. But there's, yes, the Yo this is for publication, so you know, proofread it, you know 15 times instead of 10.

Tim Kowal 
Okay. I recently saw an unpublished opinion that said that orders denying a motion for new trial are appealable. And I said, What, and I had to go back to do my Westlaw machine and check and no that's not a correct proposition of law,

Jeff Calkins
I'm getting a phone 979081 For those of you who are still watching this. If you do have a call blocker one of the ways to telemarketers are circumventing it is now simply to give their number.

Tim Kowal 
Yeah, I put the recording on pause and all. Okay, thank you anyway go back, um, hold on a sec, let me. I'm just going to note down. You know I wish zoom had a, had a timer so I could tell I can give the editor of the timestamp when this happened but we're probably at about. It's

Jeff Lewis 
about an hour and five minutes on the transcript, if that helps.

Tim Kowal 
Okay yeah if you're okay, okay, I'm gonna hit OK, I'm gonna hit record again progress. Hello. I can't hear anybody. Oh, you can't. No no no, we're here.

Jeff Calkins
Let me let me elaborate on what you were saying Tim just recently, um,

Tim Kowal 
and maybe I should maybe I should repeat it just in case I got cut off. Oh my. I forgot what my question was, I think I pointed out, we're talking

Jeff Calkins 
about burying bad result Yeah, under the rug, in a non published case. And the problem with that is, you know, it's it's the old Playtonic who will guard the Guardians. So, the Court of Appeal is a court of error, even both at the Ninth Circuit, and in California. So we do try to keep, are we, you know the Courts of Appeal do try to keep the trial judges from committing prejudicial error. The Supreme Courts can't do that. And that means, the Court of Appeal is to paraphrase an old phrase, it's not last because it's right, it's right because it's the last, and it just happens. I'm not sure if there's a solution to it other than creating some ludicrously yet another level of courts to review what the Court of Appeal does and that would just, Oh, please don't,

Tim Kowal 
you know. Alright, well let me let me offer my other criticism of the unpublished opinion, the whole philosophy, and that is that. Now, go back to, you know the essence of what it, what judicial power means, remember that I think the Federalist Paper talks about how they have neither force nor will but merely judgment. And the idea being that Madison said that it's the, the, the courts decisions are only binding on the parties before it there, it's not legislation, it's not binding across the entire jurisdiction only on the parties before it, and in part of our constitutional republic is that the other branches of government are supposed to pay them some heat and and respect the the holdings, the holdings of Earth, Tim I've been cut off. Now, Oh, well I can, I can still hear you. Your, your video is frozen out here. I heard you, Tim. Hello. Hold on, I'm gonna put it on possibly I can see myself but can you guys see me. Oh yeah, yeah, we can see, you see, okay, you were talking about Madison's quote about well, yeah, okay, let me, let me cut back in.

It's gonna make a note for the editor here. Yeah, the idea in in the Federalist papers that the court has neither force nor will but merely judgment and the idea being that its decisions are only binding on the parties before it they're not binding throughout the jurisdiction except to the extent that it gives a it's Telegraph's to the rest of the citizens in the jurisdiction that this is what the court is likely to hold in the future if you wind up coming before the court with a similar dispute. But the the other the other limitation on the court. So that's a limitation to prevent the court from impeding on the other branches, but what protects the, the parties that come before the court from from having the seeing the court just do any old thing it likes to those parties, and that guarantee that the court can't do, just do any old thing it likes to the parties before it is that, don't worry, we can just do anything we like because anything we do, we have to follow that in the future, so don't worry we're not going to do anything crazy to you because then we be obliged to do that same crazy thing in the future, but the unpublished opinion rule takes us out of that guarantee and so the parties no longer have the guarantee that you're not going to do some crazy thing to me because that would be binding on you in the future because when an unpublished is a decision, it says, No, whatever we did to you is just buried in the record, you can't gainsay it know that it's not reviewable it's not suitable by any by any other court we don't have to follow it in the future. so it's kind of all bets are off.

Jeff Calkins 
When you're treading in the steps of the my suspect is now that the late great Gideon Cantor was a professor of law at Loyola, who loved to write articles for the daily journal the gravamen of which was, I've had these appellate opinions to disagree with each other. And even if, and I can't even tell the court, that it's disagreeing with itself. Your real point is that the Court of Appeal is too often, particularly and what we'll call the boring cases where there's not a sexy constitutional issue that will get taken up the court, the very last court. Now, can you stop. I'm sorry, can you figure a way to solve that problem. And I'm not sure that the publication. Now what you're saying is we published everything that would keep the courts of appeal on is the Court of Appeals producing all Courts of Appeal everywhere are producing way too many opinions, you and the possibilities of trying to reconcile. Um, can you imagine, even a simple contract case where able counsel is able to cite 100 contract, what otherwise would have been 100 contract cases out of this court of appeal that supposedly go in the opposite direction, and then you've got the task of distinguishing those 100 cases and explain No, these have been misapplied. Goodbye. You know we see through your argument, it would only gratuitously increase the workload of the intermediate courts, sorry, but from the from the standpoint of the parties. The parties would say you know that sounds like a you problem, that's that's not a it's not a me problem,

Tim Kowal 
I'm entitled, if I wanted to go to, to private judging and just go to jams and have have an arbitrator just do any old thing to me I could always do that but I like to go through the, through the court system through the justice system because we have these rules and the judicial power is of such a nature that it's, it's, it's, it is constrained and obliged to give me a reason to pinion that is binding and future cases and that's the essence of judicial power and just because it's inconvenient or cumbersome to do that, you know, I think from the standpoint of the parties, that's a, that's not my problem.

Jeff Calkins 
Tim, there are 120 Plus appellate judges in the state of California. More than 1000 superior court judges. There is just, and those 120 appellate judges produce at least 100 opinions to maybe 150 opinions, a year. If they were all publishable and sizable as precedent, it would be too cumbersome, I'm sorry, yes, it might be a you problem versus a knee problem, but I think unless you are prepared to have essentially a Court of Appeal. Look it up as a different court of appeal over every trust Superior Court division in the state of California and by the way, that would be bad too because I have to mention one more thing you haven't mentioned in California, unlike the ninth circuit we don't have horizontal starry decisis, we have. It's only vertical, right, and that means that one panel can disagree with each other, right dude

Tim Kowal 
yeah the respective District Courts of Appeal opinions are not binding on each other. But, you mean at the federal level, no, no at the court level at the California Court level. Yeah, in fact I'm working on, like in the ninth circuit where anything they do is binding is on

Jeff Calkins 
late binding and more and more they are finding it difficult to reconcile some dumb opinion, that was written 10 years ago with the dumb opinion they want to write today yeah I get it, so I, unless you have a solution, a practical solution other than a society devoted to total law, and I don't know what,

Tim Kowal 
what about the federal rule where they, they unpop they have unpublished opinions, and they are, they're suitable for persuasive value only. What about a system like that amending rule eight point 1115 and the California Rules of Court to allow living problem site.

Jeff Calkins
Tim if we really did have a. That's the functional equivalent of just publishing everything, because if it's suitable for persuasive value, you know, you can start larding your briefs with just any number of cases. Now maybe we should rethink the horizontal starry decisis maybe we should you know go to some sort of us starry decisis within a given, district, or within a given even a given panel maybe that would change the jurisprudence and at least bring given panels and given districts into consistent but then you've got one problem I'll just raise it i i can countered it in my career at some point early in my career, which is the judge who has an agenda and wants to write on some hot issue first Rights First, and that's, that's the problem with horizontal starry decisis. In other words, Oh, I like my name in print, I'm going to write on this now, I'm going to do, and then all of a sudden, oh, that didn't make sense in the second case now. Yeah, so at least when we don't have horizontal decisis, the second panel can say oh our colleagues down the hall, perhaps misjudged or miss figured the full force of the statutory language, something like that.

Tim Kowal 
Right, right. Well, Jeff, I always enjoy discussing and debating with you over these over these topics. Now disagreed enough, not only discussed. Well, we've only just begun because Jeff now is going to initiate the lightning round and ask you the really tough questions. Oh yeah,

Jeff Lewis 
we have. Yeah, the most divisive and vexing questions facing appellate practitioners around the world, but before we hit the lightning round, I do have one question that doesn't really fit squarely within the lightning round, and that's this, it's an area that, that Tim and I disagree over. And that is the practitioner, the appellate practitioners use in a brief of the paratheoretical cleaned up. Are you familiar with that. No. If you have a long quote with citations and question marks and ellipses and brackets you strip all of that distracting nonsense out, you just have the words falling but, but a citation with the parents, medical cleaned up. I'm a big fan of that. Tim, I'll speak for Tim and say, he preferred to have appellate justices and their attorneys stumble over commas and periods and not have the words at the forefront.

Tim Kowal 
Thank you for putting my position so charitably Jeff.

Jeff Calkins 
Oh Jeff, I'm sorry I have to totally disagree with you, tono totally, totally disagree with you. Without getting into too much jurisprudence, if you, if you are at all a positivist, and you believe that law is language and that language counts. If you're going to make a quotation, you know put ellipses if you, if you want to, but put it in the footnote or have it fully out there, and honestly tree, the language, warts and all. Because if I see cleaned up. I think you're inserted, I think you I as a research attorney, and maybe there are a few cynical judges like myself who would who judges who would like myself, who, like myself would get skeptical. I'm going to think you're playing games you've got you've inserted your ideas in here suddenly and sent out and I've got no, That's that's why I think I don't know, justice, fairness, your point.

Jeff Lewis 
Yeah, no, that's a fair point, it's a fair risk that the reader who reads the cleaned up citation may feel that the stripping away has somehow changed the meaning, and that the author's lost credibility by doing so

Jeff Calkins
well, why don't you just give me your paraphrase and then put the actual language in a footnote and then you're saying, Here's my paraphrase but you can check it out and figure out that I'm an honest guy because of what I've just done. You know you can always use italics and

Jeff Lewis 
their point. Okay, all right behind us. Let's go to the lightning round, we call it the lightning round because guests will sometimes give us one sentence or one word or quick 50 responses to the most important questions vaccine appellate attorneys around the globe. Question one font preference century schoolbook Garamond or something else. Preference. Yeah, what do you like to write it when you're writing font, Times New Roman font. Times New Roman old school. Okay, two spaces or one space after a period, two spaces. And do you refer to it as pled or pleaded.

Jeff Calkins 
I like pled but I'm an Anglo files, and most judges like pleaded.

Jeff Lewis 
Yeah. What headings. Go ahead, go ahead. Oh,

Tim Kowal 
in headings in the brief. Do you prefer, all caps, initial caps or sentence case sentence case. And when using, if a if a party is using initial caps, should they capitalize all the words, or just those words under four letters, or some other convention convention that omits of space does, and all that. Okay, and last one left justify or Full Justify left justify. Full Justify is awful. These are steady references are easy questions. These are well you know I did mention that, but I was trained under Jeff So all his all His answers are correct.

Jeff Lewis 
Oh, yeah, exactly, exactly and on the cases that we work on together. We've just looked at adapt to each other.

Tim Kowal 
Yeah. All right, Jeff Well want to thank you for being on the podcast, it was a, I enjoyed the conversation, we got deep in the weeds on some judicial philosophy. I think we had some things that were that were hopefully will be of use to practitioners, but feel free

Jeff Calkins 
to edit out what you don't, I don't mind being edited down to five minutes, particularly if, particularly if I said something really dumb.

Tim Kowal 
Well you just told us that you would you just told us you would not suffer any quotation even to be modified clean it up. Clean it up, we get clear not up words at all words at all. Right. All right. Thanks, Jeff.

Jeff Lewis 
All right, good. Nice to meet you, recording stopped.

Tim Kowal 
Okay, I put it on pause. Jeff Lewis and I usually go go on and we'll talk about a few recent cases. Jeff, did you get any news and tidbits you want to hit or do you want to.

Jeff Lewis 
I didn't have any additional ones I'm just gonna say this, this, this interview was very rich in content and I don't know that we could squeeze news and tidbits into it, we're at an hour and 20 minutes right now. Okay, so might want to just skip do it just have them do our typical ending.

Tim Kowal 
Okay, sounds good. All this, I'm going to hit resume, and so will this will the sale on to the end here. So Jeff, we can just kind of hang back there and I'm going to I'm going to hit, Jeff, you're going to start the wrap up

Jeff Lewis 
this episode. Okay, here we go, recording in progress. Well that wraps up this episode.

Tim Kowal
If you have suggestions for future episodes, please email us at Cal podcast@gmail.com That's c a l podcast@gmail.com, and in our upcoming episodes look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis
See you next time

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