Announcer  0:03  
Music. Welcome to the California appellate 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, welcome everyone.

Tim Kowal  0:17 
I am Jeff Lewis and I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast co host, we try to bring our audience of trial and appellate attorneys some legal news and perspectives that they can use in their practice. If you find this podcast useful, please recommend it to a colleague. Yeah,

Jeff Lewis  0:34  
Tim, thanks so much for covering for me while I was away. You had two great episodes about the reporters, transcript and audio recording issue in the LA courts and and now you're off and on the road, and want to do a quick episode about what you've been up to and what you've seen on your road trip. Yeah,

Tim Kowal  0:48  
I'm I was recently in Washington, DC, and now now traveling around the East Coast and now in the in the South, in Georgia, visiting some friends. But I came back just fresh from the lawyers, National Lawyers conference of the federal society, that is an annual conference every November. This is actually my first year making it out there, and they have a lot of panels, a lot of great content there. Maybe I'll tell you about some some of the other panels that I did get to visit while I was there. One panel that I that I missed is part of the the news du jour. There was a spicy interaction between Fifth Circuit Judge Edith Jones, and think it's Georgetown Professor Stephen Vladeck, and more importantly, a podcast alum, Steven Vladeck, who has talked extensively, done a lot of great and important research on the court's emergency docket, otherwise locally known as the shadow docket. I think that was the title of Professor Vladik book, and both Judge Jones and Professor vladich Were on a panel discussing the independence of the judiciary, and that turned into a heated exchange between Professor Vladik and Judge Jones on the topic of independence and judge shopping, specifically with Professor Vladik criticizing the practice of venue shopping and judge shopping and Judge Jones, expressing concern that it was undermining the integrity of judges and suggesting that some judges were were to be avoided, or Some judges were not not impartial, and it turned into a heated exchange. We don't have to go. I think anyone who's interested in it should go and look at the video, which is online. But I thought Jeff that that we could each give our hot take after reading some and I watched the video of the panel this afternoon, and so I thought I'd give my hot take on it, because we have talked about judicial independence, not specifically judge shopping, but we've talked numerous times about the importance of the institution of the judiciary, but also that it is, you know, it's not immune from attack. It's not there needs to be transparency to some level, and there has to be some ability to challenge what we what are reasonably seen as maybe prejudices or biases, and as appellate attorneys, Judge Jeff, what we do is we're challenging judges. So we are, we're we work within the institution, but our business is challenging the decisions of the institution. So there's a tension there in being institutionalist, but also the whole, the whole point of the appellate institution is to recognize that the institution is not perfect and it needs oversight. And so part of the critique of Judge shopping, so so called, is the academics critique or attempt to bring transparency to what it perceives to be an ill with another, a different ill within the institution. So at some level, challenging what is perceived as Judge shopping, or at least improper choice of venue or venue shopping is a worthy endeavor. So at some level, one would be concerned about Judge Jones, a sitting fifth, Fifth Circuit Judge taking Umbridge at Professor Vladik sitting next to her on the panel for doing what he sees to be his job as an academic and bringing some transparent transparency to this potentially troubling problem.

Jeff Lewis  4:11 
Yeah, so I have to say I'm jealous you were there at this conference. I know you weren't at this particular panel, but I'm jealous. I think this might be something I might want to see sometime in the future. What an amazing opportunity to have a panel of a law professor who has raised issues about the manner in which balls and strikes are called in the court system, and this judge and the same panel, and I will say I've read from Steve's write up after the fact that the panel, as it went, is not exactly as they had rehearsed in terms of the topics that they thought that were going to be touched upon. And it is a little concerning when you have a judge reading the tweets of a co panelist, in a way, suggesting that, you know, Steve is responsible for one judge having Secret Service protection or criminal threats, and I don't know the way it all went down, it's a little concerning. I hope this doesn't, this whole incident doesn't. Dissuade the federal society from having future open panels with different viewpoints like this, because it's really valuable service to if we can't have these conversations, we're toast. That's my hot take.

Tim Kowal  5:11  
Oh, I completely agree with that. And I think even federal society, one of the leadership of federal society, Dean ruder, said just that after the conference, that they that the federal society highly values the liberal, you know, the left leaning and liberal judges and academics and other attorneys and professionals who come and participate on the panels. Because if there is not a lively exchange of views, then the purpose and effect of of a group like the federal society is greatly diminished. And so I think there was that that was one of my concerns, is that Professor Vladik has done it, a lot of scholarly, important work on this subject. And he and he came to came to this conference, sat on a panel that was not peopled, with a lot of other friendlies, so to speak, and and then to to have a sitting appellate, federal appellate judge sitting next to him, and hold up a minute manila folder of of his tweets and start reading them off. I think he felt a little he expressed, in fact that he felt disappointed that that the discussion had had gone that way, rather than talk with the ideas specifically, and rather just focus on, on what and and now to come to the defense a bit of Judge Jones, she is, she's taking the position as on the end of the institution. She's supporting the institution and explaining why it is. It is unfair at some level, to to talk about Judge shopping if it's not done in an even handed way. And so I recall reading or watching back the video and listening to her remarks you started with how it's it's not been done even handed. And there's when, when there were a lot of lot of Judge shopping by the ACLU, for example, and other liberal or left leaning groups, that practice was, was not decried by journalists and academics. But now that it's, it's, it's seemingly being done more often for right of center cause and conservative causes. It, it does. It has become the cause du jour. And so that was, there was kind of a of, a of a lack of even handedness in criticism of the problem that yeah, Jones started with her remarks, yeah,

Jeff Lewis  7:21 
Tim, you know, I know you've got kids. I've got kids when they were in the back seat of the car, and one, you know, hit the other. And he said, Well, he looked at me first, and, you know, he started it. That was never a valid defense in my car pool for striking another child. And let me just say, the fact that maybe people on the left were using this to pick judges, I don't think, is a is a proper defense of the judge shopping that's going on in Texas, but that's just my two cents.

Tim Kowal  7:45  
Well, I didn't, I didn't finish, and I think we're Judge Jones moved after that point was to talk about her her dislike for what she perceived as the as personal attacks. Yeah. So, so judge shopping as as a general matter can be talked about. But I think she was upset you mentioned, Jeff that the judge, Kas Merrick in Texas, had had been put under, under personal security, and he's got, I think, several young children, and now he is his family is, is threatened with, with violence because of or well, so it's hard to trace the causal connection, but, but it looks like, you know, there, there have been lots of criticism, specifically, you know, calling out names of judges who are supposedly part of the of the judge shopping problem. And I think she took umbrage at that, yeah, at the level that it gets personal, and we start naming judges by name, because when you look at it the that when you go back to the philosophy of judges and why they wear black robes, it's because they're all supposed to be the same. They're not supposed to be people with different views. They're all supposed to have the same view, which is that they're, they're all just stand ins for Lady Justice, right? And there's, they're not supposed to they're not supposed to be any one in the other but of course, we all know that that's that's that it's a farce. You know, even at the presidential level, we voters go to the ballot box to elect the president who's going for at some level, you know, in some part, because they're going to appoint the judges that we like that hold the views that we want to see expressed in law. And then senators hold their judicial confirmation hearings for the same purpose, because they want to see the right judges appointed and not the wrong judges with the wrong views. And so what we lawyers, standing alone among the whole nation, nation, are supposed to be the only ones who are blind to this reality that judges, even though they wear the black robes, are very different from one to the next. And when we represent our clients to try to get the best result, we're we need to, we want to get that, we want to bring that factor into consideration. But, you know, naming, naming judges, I think, was what, yeah, what got Judge Jones hackles

Jeff Lewis  9:50 
up? Yeah, no, I Yeah. I think that's fair. I think that's

Tim Kowal  9:53 
fair. And does Judge Jones have, have a right to to express that view, you know, certainly not from the bench. Which? Never done, but coming to a conference is probably the only place that where she can express that view, especially on a conference where this was directly at issue, sure, but was it going to chill the more fruitful exchange of ideas on this important point? Yes, so is it regrettable that it got so heated? Yeah, I think so.

Jeff Lewis  10:21  
Too bad she didn't take him up. You know, Steve offered to take her out for a beer and have a chat with yours. And I bet that would have been a wonderful conversation to listen to.

Tim Kowal  10:29 
Agreed, agreed. But yeah, you could, you could sense even, even just from the body language with even though they're sitting next to each other. You know, Steve was angled away from Judge Jones. And again, Judge Jones was holding up a manila folder with Steve's writings and tweets in it, yeah, just not conducive to to a warm a warm embrace and clinking beer glasses together afterward. Maybe

Jeff Lewis  10:55  
we could put links in the show notes to the video so people can watch that video of the exchange and Steve's response and breaking news as we're recording, Mitch McConnell, Senate Majority Leader, issued a press release describing Steve as a Field Marshal of the academic project to undermine the judiciary, and Mitch McConnell shares his thoughts on the exchange. Maybe we could post links to that in the show notes, yeah,

Tim Kowal  11:23  
yeah. And I, I don't agree with that. Yeah, Field Marshal and the academic project to undermine the judiciary. I think that's unfortunately overheated. Again. It's an important problem, and we do have to be, you know, I see myself Jeff as half Institutionalists and half, half, you know, independent, and some, you know, someone who makes his job out of challenging the institution, at least, at least the trial court form of the institution. Yeah, yeah. Of

Jeff Lewis  11:53  
course. You know, we're all, we're all changing it just a bit of time putting pressure on the justice system to change just a little bit at a time,

Tim Kowal  12:00 
yeah. And then when you have, you know, I think we want, we want, we want academics to to challenge, but maybe, but maybe not to call out names. Maybe you, you know, are judges immune from criticism, no, but I think we maybe there's a spectrum where we would hope that academics would maybe not call them out by name, but maybe, maybe other nonprofits or other other advocate groups or packs might do so. But maybe, maybe those who are in the in the higher echelons of of academic organs or journalistic organs, they have to more carefully wield the the weight they hold. Well,

Jeff Lewis  12:43  
yeah, look, Steve's a professor, so he could say things that you and I can't say, because we practice and we appear for these judges, and you know, look, you should always attack arguments, not people. That's how I was always trained. But let me ask you this, if there is a district down there in Texas that only has one judge, how do you criticize the stats and outcome of that particular district without naming names and getting personal?

Tim Kowal  13:08 
Yeah, that's, that's, that's a fair point. I remember Steve was he specifically mentioned the one district judge, and was that because kesmara, the DIS the district court in Waco, that is a one one judge District, which is, I think Dickie said, the 23rd largest city in Texas, yet gets about a quarter of all of the nation's IP cases. On a totally

Jeff Lewis  13:32  
not unrelated point, There's recently been a flurry of activity or migration of little birds moving away from Twitter or x, as the kids call it today, to blue sky. And one of the reasons some people are moving is, you know, there's some election Fallout and all that. But another reason is, Elon Musk has had x or Twitter change its terms of service so that litigation arising from antics on x is now resolved in Texas instead of California. And you know, California has a very robust anti slap law. Not so much Texas, and that was one reason some people have cited for for going over to blue sky. Well,

Tim Kowal  14:11  
although Isn't it common for companies to have venue clauses for where their headquarters is

Jeff Lewis  14:16  
sure, or, let's say Delaware, if you happen to like the laws of Delaware, their interest provisions in Delaware more friendly to business in California. But if you're, if you're in the business of speech, and you're interested in free speech or not being sued for things that you said, I'd be more interested in litigating California than Texas. How about

Tim Kowal  14:38  
that? Fair enough. All right, well, Jeff, I think this is about the closest we've come to a political episode, and we survived. We survived. Yeah, it was less heated than the panel with the with with Professor Vladik and Judge Jones

Jeff Lewis  14:51 
exactly before we conclude. I do want to remind because we're recording this in mid November, I want to remind our listeners and groupie. And Fran that on Tuesday, December 10, noonish, we're going to be meeting at the Grand Central Market downtown LA for kind of a a CALP meetup groupie fest. So reach out to me or Tim by email. We'll give you more details if you're interested in in hanging out with us. Yeah, if

Tim Kowal  15:17  
you're an appellate attorney in in the LA, Orange County, Southland region or beyond, and just want to make the track. We hope to see you there. Yeah,

Jeff Lewis  15:25  
I think, I think that wraps it up for this episode, this mini episode, this mini update. Yeah.

Tim Kowal  15:29  
If you have suggestions for future episodes, guests, topics, whatnot, please email us at info, at Cal podcast.com, and we'll see you next time you

Announcer  15:37  
have just listened to the California appellate 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. For more information about the cases discussed in today's episode, our hosts and other episodes visit the California appellate law podcast website at c a l podcast.com that's c, a, l podcast.com thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again. You