Jeff Lewis
Welcome everyone, I am Jeff Lewis.

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

Jeff Lewis
Yeah. Give us a positive review on Apple Podcasts or wherever you listen to our program.

Tim Kowal
We are uniquely privileged and honored today to bring former Justice Ming Chin to the podcast. Justice Chin served as Associate Justice of the California Supreme Court for 24 years, retiring in 2020 as the court's first Chinese American justice — a landmark appointment made by Governor Pete Wilson in 1996. Before joining the state's high court, Justice Chin served as presiding justice on the California Court of Appeal, First District, and prior to that as a judge on the Alameda County Superior Court following appointment in 1988. His career began in law enforcement as a deputy district attorney in the Alameda County District Attorney's Office before he spent 15 years as a business litigator and partner at Aiken, Kramer and Cummings. On the Supreme Court, Justice Chin authored over 350 majority opinions and more than 100 separate opinions — and Justice Chin just told us that, if you're watching this video, you can see over his shoulder the 13 volumes of all of his decisions while on the Supreme Court. He earned recognition as California Jurist of the Year in 2009, recipient of the Bernie Witkin Medal from the California Judicial Council in 2020, and the Learned Hand Award in 1997. He also made history as the first Asian American president of the Alameda County Bar Association and is a fellow of the American College of Trial Lawyers. Since retiring from the bench, Justice Chin continues his public service as a neutral with ADR Services Inc. and, as we've learned, as an avid golfer. Justice Chin, thank you so much for honoring us with your presence on the podcast today.

Hon. Ming Chin
It's my pleasure to be here.

Tim Kowal
Well, we're very eager to dive into some of your past decisions and your reflections on the court. I wondered if you could first tell us — before we get into your philosophy of jurisprudence — about your philosophy of retirement. Private judging was not your first occupation after retirement. We mentioned that you've become an avid golfer, or presumably you were an avid golfer before retirement, but you reportedly played golf for 13 straight days after retirement before deciding that you needed something more productive to fill the gap. So how has private judging fit the bill in filling that gap?

Hon. Ming Chin
Well, it's not as good as golf. It does keep my fingers in the law, and that is something that I really enjoy. My ADR practice is really divided into thirds. I spend a third of the time on appellate consultations and moot courts. I talk to lawyers about cases pending before the California Supreme Court and the Courts of Appeal. I've even consulted on cases that made it to the Supreme Court by way of the request for certification from federal courts. And while we're talking about getting to the Supreme Court, I recommend to your listeners that they think carefully about having cases in the federal court and then having the federal court certify the question to the California Supreme Court. While I was on the court, I cannot think of any that we denied, whereas every week we deny hundreds of petitions for review.

Tim Kowal
As Jeff and I painfully know.

Hon. Ming Chin
Thank Your Honor. Thank you so much. And by the way, that is my least favorite thing to work on with attorneys, because the results are usually never granted. I've had some granted, but as you know, most of them are bypassed — and we can talk some today about how you might frame your papers.

Tim Kowal
Frame.

Hon. Ming Chin
I'm sure both of you, as appellate experts, know better than anyone how those documents ought to be drafted.

Tim Kowal
We've become expert in how to write a denied petition for review.

Hon. Ming Chin
But you're not alone. I mean, you're in good company. You can write a perfect petition for review and have it denied. But I will continue to work on them because it takes me back to my days on the court. The second area of work that I do a lot of is arbitrations. So the consultations and arbitrations are very similar to the work that I was doing while I was on the court. Of course, the third area is the problematic one for someone who's been a judge for 32 years. I asked one of my experienced mediation colleagues what my biggest problem would be, and he said, "Justice Chin, you have been telling people what to do for 32 years. You can't do that in mediation. You have to bring people together and reach consensus." But I have found, frankly, that mediations take me back to my work on the trial court. And I don't know if you knew, but I spent the first year on the trial court in family law. And mediations are very similar to being a family law court judge. You are really getting people together, trying to find solutions to their problems. And that's what we do in mediation. We try to get people in the middle, or at least reach a consensus. And that's really what mediators are doing. We're trying to find the middle ground that will settle the case. I have finally done that successfully, in that I've settled the last 12 mediations that I've done. So I really try to figure out what's going to settle the case and determine how I can get the parties together. So I'm enjoying it. It's not as much fun as golf, but it keeps the mind working a lot more than golf does.

Tim Kowal
As a Supreme Court justice turned neutral, you mentioned that your experience as a trial judge, including as a family court judge, is experience that you can draw from, especially in mediating cases. We talked about, in your work assisting with petitions for review, your having a unique experience as a former Supreme Court justice that can inform your advice in that regard. What about your tenure as an appellate justice? Does that provide a different body of experience that informs your work as an ADR neutral? I ask just because you mentioned your trial court experience and your Supreme Court experience, and I wonder how it is different from your intermediate appellate court experience.

Hon. Ming Chin
Well, whenever you're dealing with a mediation, you have to look at the facts and try to predict how a jury or a judge might view those facts. So the trial court result is important — being able to tell the parties what is likely to happen when it goes to the trial court. The next step is, of course, the Court of Appeal. I think it's just as important for the parties to understand that even if they win in the trial court, they still have to go to the Court of Appeal. And they might have to face a petition for review, even if they win in the Court of Appeal. So having the vantage point of the entire spectrum of the judiciary, I think, is helpful in bringing realism to the parties in mediations.

Tim Kowal
What phase of the case are you typically brought in? Is it at the trial court level, or is it only after it reaches the Court of Appeal, or after the Court of Appeal has handed down an unfavorable decision?

Hon. Ming Chin
All different stages. It's when people wake up.

Tim Kowal
What is that realization? Is it usually a bad ruling, or when they realize that there's a lot of hair on this case, or that there's a significant doctrinal problem in the law that we have to navigate?

Hon. Ming Chin
It usually comes to me when people are tired of paying attorney's fees. So they sometimes have been around the block several times before all the parties in the litigation say, "Wait a minute, what are we doing here? Is this really productive? Why don't we give it a shot and see if we can't settle the case?" But it's shocking how little settlement discussion people have had before they get to me. And sometimes the people are so irate that they just can't talk to each other. And one question I always get is, "Do you bring the parties together in mediation?" Why would I do that?

Jeff Lewis
Yeah.

Hon. Ming Chin
All they want to do is roll hand grenades across the floor at each other. So sometimes in the middle of a mediation, it helps to bring them together so that they can realize that they're still both human and they're not monsters, and maybe they can start talking to each other. But by the time I've brought the parties together, the cases have usually gone so far down the road that they really can't talk to each other.

Tim Kowal
Do you face issues often where the client might win at the Court of Appeal, but in the process create an unfavorable precedent that might come back to haunt them in future cases? Meaning, are these cases just about resolving the case at hand, or do you deal with institutional clients who are concerned about creating problematic precedent in the future and need someone with a 30,000-foot view — like a former Supreme Court justice — who can help navigate those downstream effects from whatever way the ruling comes out?

Hon. Ming Chin
That certainly has happened, and I'm happy to provide a bird's-eye view of how I think the case will come out and whether or not it would be good or bad for the client. So that perspective is certainly an important one. But most mediations do not look at 30,000 feet. They look at two feet, and it really is a battle of the wills in most cases. And you really have to calm people down. So I've been working on that ability. I've found that if you just look people in the eye and tell them frankly your view of their litigation, they usually appreciate it. Sometimes it takes a while, but after eight hours of talking, they realize that maybe they should think about settling the case. So you get all sorts of people, all sorts of problems. It's challenging, but I like the challenge. I like the complexity of cases. The more complex, as far as I'm concerned, the more interesting it becomes. And I try to break it down into simpler terms for the individuals.

Tim Kowal
Your Honor, what are the best things or the worst things — your pet peeves — in terms of what lawyers can do to prepare their clients for successful mediation? Are there any patterns you're starting to see in terms of cases that come to you that are harder to settle because lawyers fail to do something, or easier to settle because lawyers have done something?

Hon. Ming Chin
I think my pet peeve is attorneys who will not share their briefs with the other side. I mean, come on. How can you expect to settle the case if you don't state frankly what your position is? Put it out on the table — good, bad, or indifferent. I always urge attorneys to share their briefs. If they have things that they don't want to put in their briefs, they can certainly talk to me outside the written documents. But there ought to be a certain ground level of information that is exchanged so that people have a realistic idea of where the other side is coming from and how they can respond. So I think that's my number one pet peeve — when attorneys file their briefs and don't want to share them. If you want to settle a case, why not share the good, bad, and ugly of your case so that you have a realistic idea of what it might be worth, and you present the good and the bad to the other side? It just opens up a more fruitful conversation than people hiding in their corners and hiding information and not sharing it.

Tim Kowal
That's great advice. Your Honor, when you were on the High Court, you had a role in reinvigorating the trial court's role as a gatekeeper for expert opinion in terms of the Sargon decision. I was wondering, are you ever called upon in your role now to consult on complex Sargon expert issues, or is that not something you consult on these days?

Hon. Ming Chin
I have consulted on science cases, and it's really interesting to me, because I got involved in the science cases because I wrote a couple of the first DNA opinions in California. And apparently I did a decent job on laying out the basis of DNA evidence — so much so that, well, the DA in Alameda County did not like my opinion because it went against the People. But he told his deputies, and it reported back to me, that "you ought to read Justice Chin's opinion in Barney because it is a good primer on the use of DNA evidence." Now, keep in mind, when I wrote that opinion, it was the dawn of DNA. It was really the beginning of the discussion about whether or not it was admissible in the trial courts. But apparently, I did a decent job of laying it out, because people started asking me to teach DNA. So I first taught it to California judges, and then judges from other states needed a background in the admissibility of this new evidence. And then I started getting invitations internationally. Princess Chulabhorn of Thailand asked me to come to Bangkok for two weeks to teach Thai judges. Princess Chulabhorn is the youngest daughter of the King and Queen. She doesn't have to do anything, but she came into the United States, got a PhD in genetics, and then went back to Thailand to form a genetics institute. And this genetics institute was trying to bring the Thai judges to be more informed about this new science. So I have enjoyed working in the area of DNA, and even authored the forensic DNA book. It's a fascinating field. My publisher, Rutter, asked me to do a science program. And I said, "Of course." And they said, "What would it be on?" I said, "Well, let's pick the current hot topic of the day." So I picked CRISPR. And I don't know if you know about CRISPR, but it's a natural response in the body that makes a copy of a virus and is able to attack the virus if it enters again. I don't know why it didn't work during the pandemic, but at any rate, I did the program on CRISPR. And I'll give you just one example. I called Dr. Jennifer Doudna, who, right before we did the program, won the Nobel Prize in genetics — actually, it was for chemistry, but her expertise is in genetics. And her CRISPR scientist said that she just found a way to program CRISPR so that it can be used as a vector in gene therapy. Sickle cell anemia, for instance, is caused by one mistake in the genetic alphabet. CRISPR is able to go in, excise that mistaken letter, and insert the correct letter. A year later, the patient is cured of sickle cell anemia. I mean, this is remarkable. And that's what CRISPR is able to do. And my publisher said, "Justice Chin, that is the best continuing education program we have ever done." So I'm glad we did it, and I'm glad people understood it. And I'm glad that CRISPR is still the hot topic in genetics.

Tim Kowal
You mentioned anecdotally that the Alameda County District Attorney was not happy with your decision on DNA, because it was going to make it more difficult to get convictions, I guess, based on DNA evidence. I wondered if, when you were drafting that opinion, you had some misgivings or sympathies to your former office. You had worked at the district attorney's office as well. You understand the institutional interest there, but you also obviously have a deep passion for science and how it can help humanity, and a deep understanding and passion for the law. And I wonder how you synthesize or braid all of those different interests and passions and insights that sometimes work against each other — fighting crime and putting the bad guys away, but on the other hand, using science to do that, or to make sure that science is used responsibly so that we're not putting away innocent people. How do you weave all those interests and sometimes competing factors together?

Hon. Ming Chin
The answer is, in writing my opinions, I never take into account whether my friends like it or not. I try to get it right. And sometimes getting it right means disappointing people who are your friends. I must tell you that at the time, my son was in that office.

Tim Kowal
Very interesting.

Hon. Ming Chin
So that made it even harder. But he was eventually put in charge of the DNA cold hit unit in that office. So we had a lot of discussions. But the job of being an appellate judge is not to favor one side or another. It's to look at the facts, look at the law, and make a decision based upon those facts and that law and nothing else. It was sometimes difficult, but I have always stood in that position clearly, regardless of the outcome and who might like it or not like it. I was even asked to go back and teach at the FBI Academy. As you can imagine, they did not like my opinion, but I went back and I told them what my position was and what needs to be done to solve it. And I said, "You've got to get the two scientists in a room and have them tell you everything that they agree upon and everything that they disagree upon. And you will be very surprised how little they disagree." And that's exactly what happened. The National Research Council came out with a report and both scientists agreed with it. So I accomplished something, even though I brought a lot of heartache to people that I care about.

Tim Kowal
Well, let's talk about some more inside baseball when it comes to opinion writing — and especially in your especially prolific first 10 years on the court, when you authored more majority opinions than any other justice. Is that primarily a function, do you think, of how the chief justice assigns opinions, or are there other factors like writing speed or subject matter expertise, relationships with colleagues, or just how the preliminary votes are coming down? Could you give us some inside track on how writing gets assigned, and how you came to write such a large volume of opinions during your tenure?

Hon. Ming Chin
Well, I'll give you some inside baseball observations on this. The Supreme Court — I worked under three chief justices: Malcolm Lucas, Ron George, and Tani Cantil-Sakauye. They were all superb chief justices. And I think they assigned cases objectively. They did not favor any particular justice. But I will tell you that it is a system where the more work you put out, the more work you get. So I worked hard at getting opinions out. So naturally, I got more opinions to write. So it's kind of a circular process, but I was there to work, so I didn't mind it. And I always tried to write opinions that were clear and concise. I still remember the first brief I wrote for my senior partner. It came back with blood all over it. I mean, this red ink just spilled, but it taught me a good lesson — edit, edit, and edit. And I asked Bauer Kramer, "How do you do that?" And he said, "Ming, it's really easy. Just take out all the excess words." It stuck with me. I kept that draft in my desk the entire time I practiced in that firm. I took that to the Court of Appeal and to the Supreme Court. And of course, I had people like Bernie Witkin and Bill Rutter to remind me to write clear, concise opinions, without legalese, without run-on words. So I had a couple of good legal writing mentors that meant a great deal to me in my tenure on the appellate court and the Supreme Court.

Tim Kowal
And of course, there's got to be enough explication of the rationale to give sufficient guidance to litigators going forward, because of course, on the Court of Appeal, and especially on the Supreme Court, the decisions are going to govern a lot of future cases. I guess if you were going to be extraordinarily parsimonious in opinion writing, you could skip almost right down to the disposition, because that's the only part that the lower court really needs to read, in some sense. And the rest of the decision is explaining how the court arrived at the disposition. So what is the sweet spot between being economical and eliminating all unnecessary language, while giving enough direction so that litigants understand what the court really intended by its decision?

Hon. Ming Chin
Well, that's an excellent question. The thing that judges have to keep in mind is that we are the only branch of government that explains in detail the reason for our decision. I think that is important. You can't just say yes or no. You have to say why, and you have to give the analysis to support why you've come to that conclusion. I think that's a very important part of being an appellate judge. So we don't just say yes or no — we say why these facts and the law lead us to this conclusion. Does that have to be 150 pages? No. I think it can be done in a way that is readable to anyone who picks up that opinion, not just the nerdy lawyer that picks up that opinion. So I tried to write opinions in that vein, so that not the eighth grader, but maybe the 12th grader, could pick it up and read it and understand what I'm trying to say. So I think opinion crafting is important. Where is the balance between too much? I mean, you have all read opinions that go into agonizing detail — unnecessary detail. I tried not to do that. I tried to give enough to give a clear picture of the analysis we were using. So I don't know if it worked, but at least that was the objective.

Tim Kowal
Sometimes you read opinions that go into, as you say, agonizing detail on the facts, and whenever you see one of those, it's almost like having the police yellow tape — "don't even try using this one in the future." It's so tethered to the facts that it can't possibly apply to your case. You have to generalize enough to make it applicable.

Hon. Ming Chin
That's true.

Tim Kowal
How does a justice write a majority opinion when your colleagues might agree on the outcome but diverge on the governing rule or rationale? Is there horse trading going on, or are there agreements, consensus, or compromise on how clear or how hard to draw the edges on the doctrinal questions? Do the opinions get rounded off at the edges to keep hesitant votes in the majority? Or is it deemed to be okay to let a few people, a few dissenters, hang out there because we want to keep a clear core opinion without muddying the waters?

Hon. Ming Chin
Tim, I can tell you that I have written opinions that I thought were stellar, and I thought, "This is going to go sailing through." Boy, was I rudely awakened. I was sometimes shocked at the colleagues who disagreed. I thought, "I've got that one nailed." And they came up with some interesting changes that should be made in the approach, in their opinion. And frankly, as I look back on it, that process makes for better opinions, not worse. I would rather have that kind of process than putting out an opinion and everybody just rubber-stamping it and saying, "That's perfect." Well, it hardly ever is. And I would rather have that process occur internally in the court, rather than have it occur after the case is published and all the critics come out of the woodwork and say the same things that should have been said by my colleagues on the court. So even though it was agonizing to go through that process while on the court, I think the court is better for having that kind of process. You don't want seven people saying, "Yes, I agree" when there are problems. You have seven very bright people. So if you're among those seven people, you ought to appreciate the — what sometimes feel like — piddly requests. When you think about it, and you think about it from afar, some of those piddly requests are pretty important. So I'd rather have that discussion among my colleagues than to have it on review in the law review articles. So I welcomed the criticism while I was on the court.

Tim Kowal
Did you always welcome the criticism immediately as the criticism was coming, or did it sometimes feel contemporaneously that this is a piddly criticism, and only in hindsight did you realize that it was beneficial?

Hon. Ming Chin
Sometimes, Tim, my first reaction was, "Are you kidding me?" Or, "Are you serious?" Although sometimes I would go down the hall and say that in person. But the disagreements that we had were always based on the actual construct of the problem we were looking at. And it was almost never personal on any of my colleagues on the court. I mean, I probably disagreed philosophically with Stanley Mosk more than most of the justices, but we got along really well because we were able to talk through issues. I don't know if you remember the Bechtel decision — I think it was Marvin Baxter who wrote it. And I wrote a concurring opinion about summary judgment. And apparently Stanley liked it, because in his last opinion, which was, I think, Atlantic Richfield, Stanley said, "Chin got it right in the concurring opinion in Bechtel." I mean, that was three years later. So you never know when people are going to agree or disagree. It was a wonderful court to serve on, and I got to serve with some of the most remarkable people. I will always treasure working with them.

Tim Kowal
Do you have a sense generally where the disagreements come from? In the sense that, are they doctrinal or philosophical? Are they based on lived experience? Are they based on something else, maybe education or level of — your background was more in the trenches. You worked as a business litigator. You worked in the DA's office. You worked as a trial judge. And other justices had more academic experience. Are those a factor in driving some of the difference of opinion when it comes to decision writing?

Hon. Ming Chin
I think there definitely are differences in background, and that brings a different view. And I think the arbitration decisions, many of which I had to dissent in, are typical of that, because I was probably the only one on the court that actually tried many, many arbitrations. And I really appreciated that approach in resolving cases. I once handled a construction arbitration in Los Angeles. Every panel member on the panel was a construction expert. There were no attorneys, but it was a superb panel because I had the facts on the construction of the building in my favor, and I don't think the owner did. Obviously, it came out well, because the owner asked for $1.2 million in damages, I cross-claimed for $1.2 million, the plaintiff got nothing, and my client, the defendant, got $1.2 million. I'm a real fan of arbitrations, particularly when you have arbitrators that know what they're doing and know the field. So if any of those who are listening can get those cases, get the experts on the arbitration panel, and don't worry about whether or not they're lawyers. You're not worried about getting evidence in. You're worried about convincing construction people that this building was constructed properly. I am a big fan of arbitrations. I actually love doing arbitrations now. And I think that — go ahead.

Jeff Lewis
Yeah, I was just going to say, you know, as appellate lawyers, [we] have a little bit of a hostility to final binding arbitration that can't be appealed. I was talking to the wrong audience. But I was going to ask if you've heard about the American Arbitration Association rolling out an AI-assisted resolution of construction law disputes. If you had any thoughts about the role of AI in arbitrations.

Hon. Ming Chin
I haven't given much thought to that, but why not? I'd be interested in seeing what they feed into this algorithm. What body of information? And that's always the key whenever you use AI. Are you going on the internet, or are you giving it a certain body of information? If you give it a certain body of information, I'm all for it, because you're not going to get some hallucination thing. If you go on the internet, who knows what you're going to get?

Jeff Lewis
Yeah. I have to tell you, from my perspective, on the mediation level, to help with a mediator's proposal or a neutral analysis of what an outcome might be, I could see the value. For me, AI is such a black box in terms of what goes inside of it. I'm really uneasy, especially in consumer or unequal-playing-field arbitrations. I'm really uneasy with AI having any role in the decision-making process of arbitrations. But that's just me.

Hon. Ming Chin
Well, I think that whatever you use AI for, it can't be a replacement. It's got to be only used as an enhancement of your abilities. So if you're just saying, "Turn it over to AI and let it decide," bad idea. I don't think judges ought to be doing that. Although Kurt Jenkins told me, before I left the court — I did a program with him for the Academy of Appellate Lawyers — and he was saying that he is able to predict with some certainty how opinions are going to come out. I think that's scary. I intentionally made different decisions just to foul him up. I didn't.

Tim Kowal
That's interesting. Is his data set California cases, or does it span into federal cases?

Hon. Ming Chin
He does do federal cases. As a matter of fact, he did the U.S. Supreme Court first. And I asked him if he had studied my cases. And he said, "I've studied your death penalty cases, and I can tell how you're coming out." Well, in my last death penalty case, I intentionally voted not guilty. No, I'm kidding.

Jeff Lewis
Mm-hmm.

Tim Kowal
Well, yeah, there are a lot of people who make a good living predicting U.S. Supreme Court cases. So that might be shooting ducks.

Hon. Ming Chin
Kurt doesn't even use AI. He may do it now, but this was five years ago. So I doubt that AI was used much, but I bet he's using it now.

Tim Kowal
We talked a little bit before about petitions for review. I wonder if we could jump back into that a little bit. Petitions for review arising out of losses, especially, feel uniquely demoralizing — because if you've lost on a writ petition in the Court of Appeal where you get no decision, you get a summary denial of a writ petition, and then you go asking for a petition for review and you get a summary denial of that as well. It feels like you're just speaking into the void. And I wondered, what makes a writ-based petition for review more likely to catch the court's attention? How do you know that you're maybe not just speaking into the void when you're filing a petition for review on an order that doesn't have any rationale from the Court of Appeal to go off of?

Hon. Ming Chin
I'll start my discussion of it by reporting a discussion I had once with Alan Broussard, who was one of my predecessors and a good friend on the court. Alan once approached me and said, "If I get one more piece of paper, I'm going to scream." When you're writing a petition for review, think about that. Think about the stack of briefs that each Supreme Court justice has on his or her desk. Think about the time they have to consume to read all of those. And as you're writing, how are you going to get their attention? I say pay a lot of attention to your first paragraph. Are you going to draw them in, or are they going to say, "Oh no, not another one of these. Oh no, not the same issue I read yesterday." So Justice Kennedy used to talk about the first paragraph in his opinions. And if you read any of his opinions, you will know that he spent a lot of time on that first paragraph. But I think attorneys ought to spend a lot of time thinking about how this document is going to be read by somebody who's buried in paperwork. Are they going to want to pick it up? Are they going to want to absorb it? Are they going to want to read more? Or are they going to want to say, "I think I've had enough"? So when you write petitions, I always tell people — when you want a writ — think of the line of people at a theater, and you want a crowd in front. Take the place of somebody who's been waiting in line for three hours. You've got to have a good reason for cutting in line. So think about that as you're writing those writs. Think of Alan Broussard and the stack of paper, and think about the movie line. And how are you going to convince whoever is letting people in that you ought to be able to cut in line? It's a tall order, but I think it can be done and ought to be done. I always appreciate good appellate lawyers who can write documents that will draw the reader in and make us want to understand what you want us to do. There really is no magic. It's just hard work. It's taking out all the unnecessary issues and the unnecessary information, winnowing it down to its basic essentials. And is it an important issue that the court ought to pay attention to? Getting back to that first memo with all the red ink that you wrote at the law firm — getting rid of all the extraneous information.

Tim Kowal
Your Honor, let me ask you on the other end: what makes for a terrible petition that the court just doesn't want to look at? Are there any pet peeves or thoughts you had on techniques that you've seen that are ineffective?

Hon. Ming Chin
The kitchen sink — throw in everything, something might get their attention. No, don't do it. I think those kinds of petitions are a waste of time. And whenever I review somebody else's work, and it does that, they will get my version of the blood all over it. The issue of concise, pinpointed writing is so important. You're not going to get the court's attention unless you are able to write in a way that puts your issue at the top of the list. Is it an issue of statewide importance? Is there a conflict now? Many times, lawyers will say, "Well, there was a conflict. Why didn't they take my case?" Well, many times we said to each other during the petition conference, "Let's let it percolate. We really are not sold on what the two courts have said about this issue. Let's see if we can get someone to write something more enlightening." The other thing that we often pay attention to is how the petition is written. What are we going to get from these attorneys? Is it going to be like this petition, or is it going to be helpful? So sometimes we'll look for an amicus that may be able to help us. Lots of things that the courts do. We will let it percolate even though there's a conflict. It's not the right vehicle. They want a better vehicle. Sometimes we'll tell central staff, "We want this issue, but this vehicle is terrible. If you will find a better vehicle, we're interested in this issue." Now, by some of your questions, you probably wanted some of this information to be given to you by the court.

Tim Kowal
Yeah.

Hon. Ming Chin
The court's not going to do that. Well, some of them might. I think Justice Liu writes on a lot of issues. So he might give you some hints about what the court is thinking about. But I caution you that if you have something written by him, the rest of the court may not be interested. So he is a very intelligent justice, diligent, works hard, but he writes on a lot of issues even at the petition conference. So pay attention. I mean, it may be enlightening, but I think he gives you more insight to his thinking, and it may not be the thinking of the rest of the court. So keep that in mind.

Tim Kowal
The U.S. Supreme Court sometimes, certain justices will issue dissents from denial of certiorari, and that can at least signal to practitioners that, well, maybe there is some appetite for this issue. This just wasn't the right time, or not the right vehicle, but we'll make sure to try again when the right case comes up. Do you see any value to something like that? Any reason why the California Supreme Court doesn't adopt a similar practice?

Hon. Ming Chin
Goodwin has done it. I didn't agree with it, but I find it difficult to write authoritatively on particular topics without having reviewed the details that you usually get in a briefing. So some justices feel more comfortable in stating opinions without that sort of information. I did not. So even though it might be helpful to you in your particular case to know what I might be thinking, I did not like expressing opinions that were not well-researched. So it's just a different approach. The court seems to be writing more and more along the lines that you suggest. I must admit to you that I don't read their every-week docket and see what anybody writes. But I know that while I was on the court, Goodwin was more expressive along the lines that you suggest. Maybe it will change.

Tim Kowal
Yeah, there are certainly court watchers of the U.S. Supreme Court who are watching every petition for certiorari that's being filed — or maybe not every, but all the higher-profile ones — and commenting or speculating, based on even the ones that are denied, why they were denied and whether those issues might have traction in the future. It's a little bit harder to get that data set in California petitions for review, because the petitions themselves are not as readily available. I can imagine being able to pump those into AI and try to get some speculations on what the High Court is interested in and what it's not interested in, and maybe what it might be interested in but it's not the right vehicle, or they're waiting for it to percolate, and making some prognostications about what the appetite might be for my client's next petition for review and whether I can tell that client, "Don't waste your money," or, "Yeah, maybe let's take a run on this." So I wonder if you have any thoughts about whether the court — whether it's possible that the court could make the petitions for review submitted to it publicly available.

Hon. Ming Chin
I don't know what their position on that would be. If I were there, it wouldn't bother me. I think they're all filed electronically now, right?

Tim Kowal
They're all filed electronically.

Hon. Ming Chin
I might suggest it and see whether or not it would take. But do you really want to review them all?

Tim Kowal
I don't want to review them, but ChatGPT might review them.

Hon. Ming Chin
That's true. That's true.

Tim Kowal
Yeah, so —

Hon. Ming Chin
You might approach the court and see whether or not they could be made available. And I think using AI to analyze them would be helpful. And you would have a clearer picture of the processes the court is using to make decisions. That would be interesting.

Tim Kowal
I think it would be interesting. Different justices have different lists — and I say "lists" loosely. It doesn't have to be an actual written-down list, but maybe a mental list of the issues that are burning on your mind. As you mentioned, sometimes you're looking through the stack of petitions for review: "Is this issue in there that I've been itching to write about and itching to resolve?" And do you have — do each of you have different lists, and are you advocating to one another, "This is the one we've really got to take. This one I need to get the votes to take up"?

Hon. Ming Chin
I can tell you that I had no list. Did I look at the 300 petitions for review every week and jump at one that I thought needed to be taken? No. I had a hard enough time deciding which ones to grant. I understand that there's more activity on the — you know, there's an A list and a B list. I understand that there's more activity on the B list. So I can tell you that I moved one case from the B list to the A list, and it was granted. And that case came roaring into my chambers. I never did it again.

Tim Kowal
It just means more work.

Hon. Ming Chin
Well, I wrote a three-page opinion saying we meant what we said. And it's really not what the court is supposed to be doing.

Tim Kowal
Well — is that what they call a "rescue mission," when the court may deviate from that practice of "it's not a court of error," but every now and then the facts are so egregious that there's the temptation to step in and it's overwhelming?

Hon. Ming Chin
That's exactly what I told the court. I said, "We meant what we said. They should be following this." They said, "Okay." Anyway.

Tim Kowal
Is there a — well, when that urge to swoop in on a so-called rescue mission exists, is that when you might see more grant-and-transfers, just so it doesn't make more work on your court's docket, but it can still —

Hon. Ming Chin
That's right. Make the Court of Appeal work on it. That is one way to get it done. And we certainly did that. I always get questions, though, on depublication, and that's an important topic. You really don't want to be formulating the law in California by depublication — taking cases off because there is clear error. But I must admit that while I was on the court, we really tapered down. I don't know what's — I haven't followed what the current court is doing, but there were very few depublications. So I don't think that we were abusing the establishment of law by depublication. But I must admit that I haven't followed what the current court is doing or whether or not they're using depublication more frequently than they should.

Tim Kowal
Do you feel there was a collective intention to taper down the depublication?

Hon. Ming Chin
Yes, I can tell you frankly that we did not want to develop California law in that manner.

Tim Kowal
Well, I appreciate that. That's been one of my hobby horses. I'm not a fan of unpublished decisions, because of the reason you said — it's important that decisions be supported by reasons. And when the reasons are not to be published, it tends to undermine them, I think. So I appreciate it when more decisions are published. And of course, I know that it takes more effort to write a published decision, because it's going to be read as precedent. Do you have any sense of whether there is a difference — a meaningful difference — between cert petitions in the U.S. Supreme Court and a petition for review? Obviously, they serve the same effect. They are the first shot, the first and only shot, of getting a review in the high court. But I wondered if an experienced U.S. Supreme Court litigator is writing a petition for review in the California Supreme Court and came to you for advice — would you have any advice on how to write it differently, or a different approach, different nuances in writing a petition for review as opposed to a petition for certiorari?

Hon. Ming Chin
I don't think so, but I must admit that I haven't given it a lot of detailed thought. I was actually very close to several of the U.S. Supreme Court justices. When I was invited to teach at the FBI Academy, I wrote to Justice O'Connor, Justice Kennedy, and Justice Scalia. And I said, "I'm going to be in town. If you have a few minutes, I'd love to visit with you." All three of them said yes. I went to Justice Kennedy at 8:30 on the day of oral argument. He said, "We can talk for about a half hour before I have to go to court." I talked to him for half an hour. Justice Kennedy never looked at his watch. I was always looking at my watch, because I didn't want him to be late. So it gets to be close to nine o'clock, and Justice Kennedy says, "By the way, we're hearing argument on Daubert versus Merrell Dow Pharmaceutical today. Would you like to attend the oral argument?" I leaped out of my chair and said, "Of course." So he said, "I'll be happy to have my chief law clerk escort you down to the courtroom." I knew I was in an important chair, because there was a nameplate on the back of the chair that said "Mrs. Kennedy." I was so close to the podium that I could read the attorney's notes. But I remember the one question that Justice Blackmun asked all of the attorneys. Who is the author of Frye? Do you know? Do you know that it's not a Supreme Court opinion?

Tim Kowal
No, I didn't. I assumed it was.

Hon. Ming Chin
It's not. The author is Josiah Van Orsdel, and it's a D.C. Circuit opinion, and it's three pages. So when I wrote Sargon, it was based on — or wait, before, it used to be called Kelly — the Kelly-Frye test.

Hon. Ming Chin
I went back and read Kelly, and we didn't make up this gatekeeper. We didn't use that language, but we said that it's important for the trial judge to determine whether or not there's general acceptance of the scientific principles that are being proposed. And this is a little far afield from the direct question that you asked, but I think that — before I got on the court, the court said we have a well-reasoned opinion in Kelly, so we don't need to go to Daubert. I tried to hang some substantial fruit on the tree so that lawyers would know what they need to do in the area of expert witnesses and what it means to determine whether or not it's generally accepted. You don't just count the number of noses on each side. You have to analyze what those noses are saying about this scientific concept. In the Sargon case, it was evident that the expert witnesses did not have a substantial background in statistics. How do you tell lawyers to view differently a cert petition as opposed to a petition for review? I think they're very similar. And from talking to the U.S. Supreme Court justices, I think — well, for instance, we had lunch with Justice Breyer. And we explained to him our process of petitions for review and the PR process on handling the cases. And Justice Breyer was very interested in the process that we had, because we talked about the case in detail before it ever got to oral argument. We ironed out in the PRs everyone's problems with this particular opinion, so that by the time we got to oral argument, everyone on the court knew what the positions were of each member of the court. The U.S. Supreme Court is just the opposite. They go into oral argument not knowing what any of their colleagues think about the case. So I don't think that the petitions for review or the petitions for cert are different. I think that the U.S. Supreme Court has the same monumental workload that the California Supreme Court has. So you ought to write those massive documents in summary, concise form as possible, so that you can get the attention of the Supreme Court to grant cert. I would not tell attorneys that you should do something different than you do before the U.S. Supreme Court. But you ought to keep in mind that the processes in handling the case are quite different internally for each court. And frankly, I like the way the California court does it better than the way the U.S. Supreme Court — the way I'm told the U.S. Supreme Court does it. So I frankly like to know what my colleagues are thinking before we have oral argument. I can't imagine going into oral argument and being on the U.S. Supreme Court and not knowing where anyone is coming from. Anyway.

Tim Kowal
Well, Justice Chin, you've been very gracious with your time. We've just got, I think, one or two follow-up finalizing questions here. Looking forward, what virtues of your court are you most proud of and most hope continue on into the future?

Hon. Ming Chin
Well, I'll lead with the comments I just made. I think the internal processes of the court produce the best opinions, because each justice's opinion is known by the time we get to oral argument. All the PRs are in. Many times there are subsequent PRs, so that by the time we get to oral argument, we kind of know where — I mean, anyone can change their mind, but we know what the various positions are. I think that's an important piece of the way California operates. And I certainly hope it continues. Now, I know that there is some discussion about the productivity level of the current court. I hope the court is able to solve that, because I think getting down to — I don't know if it's in the sixties, but whatever it is, it's well below the 120 that we were putting out when I was on the court. I'm not criticizing the work habits. I just think it's something the court ought to pay attention to.

Tim Kowal
Is number of opinions the primary or the only metric? Is there a "quantity is not the same thing as quality" type of consideration that goes in there? Are they longer or more complex opinions that are being produced in the smaller number that's being produced these days?

Hon. Ming Chin
I'm not going to quibble on quality or make any statements about quality, but I think there has to be a basic minimum. And I don't even know what that figure is, but I don't think it's 60, in order to develop the law in California. So I was asked by a reporter whether or not I had any comments on it. My answer was no comment. But I'm talking to you. You both are appellate specialists. I think you ought to be interested in the output of the court. So I hope somebody pays attention to it.

Tim Kowal
Well, I've got two theories. One is that you produced such a volume of opinions that you left too little work for the current court to do. The other is that the court is keeping their docket clear for Jeff's and my upcoming petitions for review.

Hon. Ming Chin
Good luck. I hope it works out for you.

Tim Kowal
Yeah. Well, I'll pitch that to my clients anyway. All right. Justice Chin, thank you so much for spending so much time with us today. You've been so gracious. I really appreciate it. And Jeff, I think that'll wrap us up. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. Thank you again, Justice Ming Chin.

Hon. Ming Chin
Thank you very much. It's been a pleasure.