Jeff Lewis
Good afternoon, 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 insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis
And please give us a positive rating on Apple Podcasts or wherever you listen to our show.

Tim Kowal
Well, Jeff, we are honored today to be joined by the Honorable Tani Cantil-Sakauye, the 28th Chief Justice of California. She served on the California Supreme Court from 2011 through 2022, capping a career on the bench that included the Sacramento Superior Court and the Third District Court of Appeal. Her tenure as Chief Justice is identified with bail reform, language access in the courts, court funding advocacy, civic education through the Power of Democracy initiative that she founded, and leading the California judiciary through the COVID pandemic.

Since stepping down, she has taken on three substantial roles. She is the president and CEO of the Public Policy Institute of California, California’s leading nonpartisan policy research organization. She is a neutral at ADR Services, and she is one of the public voices of the Alliance of Former Chief Justices, launched on Constitution Day 2025 to defend judicial independence. Chief Justice, welcome to the California Appellate Law Podcast.

Tani G. Cantil-Sakauye
Thank you, Tim, and thank you, Jeffrey, for doing this and for doing appellate work.

Tim Kowal
Well, we appreciate you being here. Chief Justice, you went from a Sacramento public school education and farm-worker parents to deputy DA, the trial bench, the Third District, and the 28th Chief Justice of the California Supreme Court. Now you’re president and CEO of PPIC, a neutral at ADR Services, and a public voice of the Alliance of Former Chief Justices. What does daily life actually look like for you these days?

Tani G. Cantil-Sakauye
Thank you, Tim. Daily life means I operate out of three very different laptops and websites. Also, I teach on Monday evenings at the University of Virginia, so make that yet another website and another email that I keep track of. It’s a lovely adventure every day, with different challenging issues, meeting interesting people, and continuing to be a lifelong student of California and the law.

Tim Kowal
What drew you to private mediation specifically, with the Public Policy Institute of California and the Alliance already substantial? When did you decide, and why did you decide, to start taking on neutral assignments?

Tani G. Cantil-Sakauye
I started to think about mediation when I was the Chief Justice of California, but I was thinking about it primarily to use retired judges to provide a free service of mediation to the trial courts. I had had a very positive experience with free mediation at the Third District Court of Appeal when I was a justice there.

So I was always seeking to find extra resources and funding in order to train retired judges and also to have them do a program beyond trials and beyond assignments to courts, to be able to mediate and resolve cases and help access to justice. Right before I left, I was finally able to get that program on its feet.

As I was doing that, my research indicated to me that people in some cases can be very, very well served by staying out of the court and being able to have their issues handled off-record and more immediately. Mediation also offers, for many, an emotional outlet that you cannot and will not have in court, let alone on appeal. So I thought it provided a service.

Mediation is not for every case. A lot of cases, I believe, should go through the appellate process because we still need to clarify and establish the rule of law. Not every case lends itself to mediation, but a fair amount of cases do, particularly involving individuals and consumers.

Tim Kowal
It sounds like your take on mediation is maybe a little bit different. You mentioned having an emotional component to it, an outlet that you don’t always get in the courts. Although sometimes in the court system, you feel like it is like family court, even though you’re not in family court. Business litigation disputes can feel a lot that way sometimes, and so can many others. There is an emotional component to it.

Do you see mediation a little bit differently from your colleagues, and are you trying to bring a different version of mediation to appellate and other litigation matters?

Tani G. Cantil-Sakauye
Well, yes and no. I think that the appellate courts all are now aware of their opportunity to set up a unit that does mediation. There was a time when many of the appellate courts did have a mediation program, and it was different in the First District, different in the Third, different in the Second. They may have used the federal model, or they used attorneys from the community. That’s one way you can save money, stall the record, and create a number of opportunities.

But I also found out that a lot of those fell by the wayside during the Great Recession, when I took office after Chief George. I believe mediation is most valuable at the trial court level, in the sense that it can prevent a lot of litigation that might be unnecessary for what people really want and seek. So my approach to mediation is probably different from my colleagues because I think that there should be an active involvement of the client.

Tim Kowal
What does a former Chief Justice of the California Supreme Court bring to private mediation that maybe a former trial judge or even an intermediate appellate justice doesn’t? Where does your chief experience matter when you sit down with the parties? Does it bring an institutional perspective, or do you have different tools to bear?

Tani G. Cantil-Sakauye
Well, yes, I think so. I’ll give you an example. I was in a mediation, and the attorney said, “Well, I think the trial judge is leaning our way, so I’m not really all that inclined to do something.” And I said, “Well, trial judge aside, I’m trying to help you win on appeal.” So I bring a different perspective. I bring the appellate perspective, and I bring the standard-of-review perspective. I bring the perspective of whether you made your record in the first place.

As both of you well know, if you didn’t make the record, this argument to me and to everyone else is dead. As Chief Justice, I bring the perspective of eyes that have seen petitions for review. When people tell me they’re going to fight this to the top, and they say that quite a bit in mediation, I think, “Your chances of that are not good.” I give them some real, down-to-earth explanation as to why they will not likely see anything beyond the Court of Appeal.

So I bring a perspective, I think, of having worked in the trial courts, trying to resolve cases and trying to understand the legal arguments and the emotions. Then I also understand the length and time and risk of appellate review, and the risk at the California Supreme Court.

Tim Kowal
Now, when you were a trial judge and a Court of Appeal justice, you had to take all the cases that came to you. You didn’t have any discretion to turn any away. Then when you were on the California Supreme Court, you suddenly got a lot of discretion, along with your colleagues, in deciding which cases to grant review on. Now in private mediation, you get to still pick and choose, but I take it that it’s a committee of one. You have the sole discretion on which ones to take.

Tani G. Cantil-Sakauye
Yeah.

Tim Kowal
What kinds of cases excite you? Which kinds of cases are you more likely to take?

Tani G. Cantil-Sakauye
I’m excited by civil employment law cases. I’m excited about insurance interpretation cases. There isn’t a case that I’m not excited about in mediation, because my view is that there’s a portion of our discussion in mediation that has nothing to do with the law. At some point in the mediation, we’re not really talking about the law and its applicability, because at that point what we’re talking about is risk.

What I like is when I’m hearing what people really want out of this and whether there’s a way to get there, especially in cases where it’s not a breaking issue and there is case law on both sides. At that point, trying to understand what your odds are at trial or on appeal are anyone’s guess.

So I enjoy opening up the brief, or sometimes the letter, reading it, trying to imagine and chart it out, and understand why certain motions were filed, or in many instances not filed. I like the puzzle of it. I like putting it together. I like standing in both sides’ shoes and thinking, “What is really at risk here? Who’s in charge? Who’s running this show? Is it the adjuster? Is it the client?” I like the puzzle of it.

Jeff Lewis
Your Honor, just pivoting a little bit, you helped birth a new era of Zoom appearances for lawyers during COVID. Fast-forwarding to mediation, is there anything lawyers and parties can do to make a Zoom mediation successful, or things they can avoid in terms of not being in person but trying to make the most out of a Zoom mediation?

Tani G. Cantil-Sakauye
That’s a really good question. Honestly, for appellate practitioners, your specialists, I feel that for appellate justices and Supreme Court justices, Zoom versus in-person appearances are distinctions without a difference for us. We’re not looking at the emotion. We’re not looking at the persuasion. We’re looking at the law. We’ve read the arguments. We’ve read the cases. We’re having a dialogue. We are trying to get to the right answer under the rule of law.

But in a mediation at the trial court level with people, the gold standard is to be in person. The gold standard is to be able to have those meaningful exchanges of facial expressions and eyes, and asking people to step out, and that whole process.

At least 50 percent of my mediations have been by Zoom. The way to improve that is to be oneself and to be natural, to avoid the legalese, to speak easily, and to speak freely. We have the mediation privilege. I really think it is about being authentic and being yourself, and putting people at ease at the beginning.

It only gets better in a Zoom meeting, actually. We get warmer with each other. Oftentimes things do not resolve at the first Zoom meeting in mediation. So we then get on phone calls and start texting each other, and we have a familiarity at that point that we never had starting in the Zoom call.

Tim Kowal
Are there any telltale signs of stumbling blocks that you foresee in some of your mediations, where you see either a personality or a strategy deployed by one side or the other that you spot as something that is going to be a real stumbling block and something you need to address with one of the parties before the mediation really begins in earnest?

Tani G. Cantil-Sakauye
Yes. I would say that in many instances, there’s a real attitude in the room. My mediations, except for one or two, have always involved shuttle diplomacy, room to room or Zoom room to Zoom room. At the same time, in a mediation, it has been my experience that there’s a good period of time at the beginning that is basically not all that useful because counsel is engaging in a performative appearance for his or her client.

To tell me how many cases you’ve won, or to tell me your success, is not relevant to what we’re doing here for this one case. But we spend a lot of time on that. If the attorneys can never get off of that, and I’ve had that instance, I’ve had to say, “Do you mind if we have a conversation away from your client?”

Then I’m asked, “What are we doing here? We’re wasting time. Why are we even here? Are you here to actually discuss and mediate the case? Because if not, let me know now.” So I’ve had to have those kinds of conversations.

I’ve also found that when there has been an appellate mediation, I know that it’s probably good for the client to have the trial attorney present and the potential appellate attorney present. But I have found that those can become one-upmanship and a full-on defense of the case at trial. This full-press defense of the case at trial, and the vilification of the trial judge and the rulings, makes me think, “Why are we here?” The plaintiff’s lawyer or the trial lawyer is defending the record. The appellate lawyer that they’ve hired is defending the record. It’s hard to really get people to put aside some of those firmly held convictions about the record.

Tim Kowal
So when you mentioned a minute ago trying to assemble the puzzle pieces together, it sounds like it’s not just the intellectual or legal puzzle pieces. It’s sometimes the strategic pieces. You’ve got the trial counsel, as you say, and sometimes the appellate counsel brought in, and they’re all loaded for bear to attack the trial judge’s rulings. Maybe those are puzzle pieces that need to be taken off the board, so to speak. We need to get this down to the essence of how we get to a result that is going to make everyone equally happy and unhappy.

Tani G. Cantil-Sakauye
Yes, yes, because that’s what mediation is, right? It is about a negotiation, a negotiated disposition.

Tim Kowal
And if you’re trying to litigate who is right and who is wrong, you’re probably never going to get there.

Tani G. Cantil-Sakauye
Yes. It’s almost too personal. It almost is better to have two different attorneys at the trial level and the appellate level to look at this record objectively, rather than, “This is my strategy and the trial judge was wrong.” We could agree on that, but that doesn’t resolve this.

Tim Kowal
It reminds me, sometimes Jeff and I know as appellate attorneys, obviously the trial counsel can be very useful in understanding what happened. But then when you’ve got that perspective, you kind of would like to politely encourage the trial attorney to bow out. I wonder if you have that same perspective, that once you get the perspective from the attorneys about what happened, you might almost like them to say, “Okay, now stand down a little bit and let me do my work.”

Tani G. Cantil-Sakauye
That is spot on. It is spot on because I don’t fault the attorney for the strategy. I wasn’t in the courtroom. I don’t know the judge. I don’t know the local culture. I think that’s the value of the trial attorney at the mediation. But if it’s too sensitive, if it was too huge a loss or whatever it might be, it makes it more difficult to try to get beyond that.

Tim Kowal
Let’s pivot a little bit to the Public Policy Institute of California. For listeners who don’t know much about PPIC, would you tell us a little bit about what it is and what it does, and what makes it different from other think tanks working on California policy? You’re the current president and CEO of PPIC, so give us a little bit of introduction.

Tani G. Cantil-Sakauye
Thank you. PPIC has been around for about 33 years, and it was created by William Hewlett of Hewlett-Packard, as well as the then-chancellor of Cal, Roger Heyns, and Arjay Miller, who was then the dean of Stanford Business School. Those three men, some 34 years ago, thought California needed an independent, nonpartisan think tank. We can’t rely only on academia. The legislature and our constitutional officers need an independent, reliable think tank that is based on data. Hence, 34 years ago, PPIC was born. That’s what we are today.

We’re the leading think tank because we are nonpartisan and independent. The reason we’re independent is that we don’t rely on government funding, state or federal. We have an endowment that permits us to choose what we research. We do seek grants for certain projects, but we come with the requirement that there be no strings attached, no overview, no editing authority, just the policy question that we will share. The point is, we are the authors of that report.

But we are more than just a research institute. We also do lots of convenings that we do for the public for free, thanks to our endowment. We bring relevant issues. We study economic policy. We study water policy. We study K-12. We study higher education. We study trends in California. We study the safety net, about eight areas.

Probably our premier product is our survey. We’re one of the few institutions that do a statewide nonpartisan survey. We do about eight a year. It gets a lot of press. The legislature is very interested in that. We take our work to the legislature. We work closely with legislative staff and leaders. We have lunch. We work together. We’re at their offices. They want our material. So we try to influence policy at the statewide level so that policy is based on data and is aimed at improving that policy.

Tim Kowal
Your predecessor at PPIC, Mark Baldassare, ran PPIC for two decades or more. Is there a through line that Mark established that you wanted to continue? And did you have any initiatives that you brought with you that you wanted to bring to PPIC?

Tani G. Cantil-Sakauye
Yes. When Mark Baldassare had essentially retired from PPIC to write a book on policy, I asked him to stay on part-time, not only as our premier survey director, which is Mark’s first love above everything, but also because of his work and chops. So he continues to be at PPIC, and Mark established the PPIC subject areas of research in Jerry Brown 2.0 in 2011.

Currently, I’m bringing a strategic refresh to PPIC, saying, “The state has changed since 2011. We still have the same similar priorities and policy issues, but some are more important and critical now.” So we’re currently going through a refresh, looking at what we study and whether we should study something else or take a different path within the areas that we already study.

We’re doing this overhaul, this assessment of ourselves, going to our external stakeholders, our supporters, our readers, and the legislature. In addition to that, when I came to PPIC, I did a process overhaul. I believe culture is based on process, and it’s an 85-member institute. After COVID, it had been a little bit untethered. So I came in and set up policies like a hybrid work policy, more touches with our staff, and brought them together for more educational opportunities and social opportunities.

I introduced a civics program to PPIC. We call it CalCivics, teaching young people about California’s policies, similar to what I did in the judiciary. And I am the chair and director of Understanding California’s Future. I like to pick trends and elevate them.

Just last year, we did a half-day conference on California’s fuel and energy issues. We brought in Chevron, the EPA, and the California Energy Commission, and we had a discussion. It was eye-opening and really revealed a lot of policy problems in the energy transition that we’re going through in California.

Tim Kowal
There must be some kind of trick to keeping an institute like that nonpartisan, especially these days. Everything is partisan and politically charged. Is there any secret sauce to keeping PPIC nonpartisan? Is there any policing that you have to do to ensure that continues?

Tani G. Cantil-Sakauye
That’s an astute observation, and I will say that every day, that is something I think about. I review every report, every blog, every policy brief that comes out of PPIC. I’m happy to recommend board members to PPIC who I believe believe in good government and believe in policy for all.

Our board is Republican and Democrat. We try to seek a balance. We try to seek people who believe in good government, not about party. We have a group of folks on our board who are also committed to making sure that PPIC’s reports are based on data, not thumb on the scale, not reactive. We don’t chase shiny bright objects. We really do the work that the legislature, the policy wonks, and the LAO can rely on for purposes of recommending policy and acting on improving that policy.

Jeff Lewis
If I could, Tim, by the way, this is very surreal, a couple of appellate lawyers asking questions of an appellate justice. We’re very grateful for you coming on the podcast. Thank you. In terms of trends, do you see a role today or in the future for AI, and using the power of AI to help you generate more products, reports, et cetera, by the think tank?

Tani G. Cantil-Sakauye
Yes, absolutely, Jeff. What we’re doing at PPIC is first establishing the ground rules for where our researchers can use AI and how they use AI. We had to first insert our own internal guardrails that are built on accountability, integrity, honesty, and trust. We pride ourselves on our data, and we pride ourselves on how we analyze that data.

Also, we present the appendices so you can check our homework. We’re also peer reviewed. Any report that comes out of PPIC has already been seen at UCLA, UC Davis, and different other expert organizations that are looking for the integrity and accuracy of our report. So we’re really concerned that whatever we do, and however we integrate AI into PPIC, our researchers know that AI is only one step. We are still very much human, hands-on in how we interpret it, how we write it, and how we account for it.

We’re working now on explaining on our website to our external stakeholders how we use AI to ensure that they can still trust us. But I will say, just this week, we put in some of our own PPIC data that is publicly available, so there were no privacy concerns with it. One of our PhDs, using an AI app, put it in and asked it to create an independent and internal, but external-facing, interactive website on labor force trends in California.

When someone would ask us about labor, we’d say, “Well, we know these things, and here are our reports.” But now we can just export the little intensive interactive piece, maybe call it a dashboard. The person can plug in their own numbers and their own ethnicities and their own years and find out what the labor force was for female Latinas in 2022.

So we recognize its power. We’re finding out more and more about it. We won’t get ahead of it because data is always backward-looking. We’re not in any hurry. We still need to use that data, but we want to be really careful so we continue to maintain our integrity.

Tim Kowal
That’s very exciting. I can imagine it might be something like Claude Code or something that your colleague used to create that kind of dashboard. I’ve got a colleague who showed me something similar about his own law firm data, and you can create something that probably a year ago you had to buy or subscribe to in a very expensive service. Now you can create these apps on your own. So it’s about democratizing that information.

Tani G. Cantil-Sakauye
Yes. Right. Forty minutes. Forty minutes is all it took to put it in and create.

Tim Kowal
You mentioned that PPIC reports and data are consumed by the legislature and various agencies. I wonder if you have any suggestions or opinions about whether PPIC studies might be used by lawyers in court, in something like a Brandeis brief that cites social science information, or to what extent policy arguments have a place in a lawsuit. Do you have any perspective on that? Or if you had a client hiring you about whether to put that in their appellate brief, what might you tell them?

Tani G. Cantil-Sakauye
I would tell them that it probably is frowned upon at the Supreme Court level, because while we can recognize those sources and find them of interest, if they are not somehow in the record as a relevant piece, relevance would be the key. It’s a report. It’s data on the past. It would have to somehow be relevant to the issue. We typically don’t see anonymized data come into the trial court on a policy. It’s almost too broad. It’s not particular to the case.

But as Chief, I have read PPIC reports on certain issues that helped me affirm my position on policy issues. When I first tackled bail reform, for example, I knew that PPIC had a piece on bail reform. Since they are nonpartisan and independent, I trusted them. I can’t recall what it was, but I remember one of my staff coming up to tell me about that. I took a look at it, just to see, “Am I on track?” It wouldn’t ever have been in an opinion, of course, but the judiciary runs policy, and sometimes it’s really good to get a third-party analysis of a policy we’re thinking about.

Tim Kowal
Maybe that’s a good piece of advice for attorneys, especially who are going to be practicing at the higher levels, especially at the state Supreme Court, to know and to consume the same information that the Supreme Court justices are consuming so that they can be on the same wavelength.

Now, if you could tell us a little bit about the Alliance of Former Chief Justices, what is the Alliance and what is it actually trying to do?

Tani G. Cantil-Sakauye
Thank you. The Alliance of Former Chief Justices is made up of retired chiefs, and we’re still relatively new, having really only come into being in 2025. We are part of the larger organization Keep Our Republic, KOR, that has been around for, I think, five or six years. Again, it’s a nonpartisan group of elected leaders and officials across the country who came together to talk about good government.

First, there were federal court judges who had formed under Keep Our Republic, the Article III judges, and then now the retired chiefs. We’re a group of approximately 53 retired chiefs from all across the nation. There are multiple folks from different states, chiefs who are still involved.

We are interested in ensuring that the judiciary remains independent and that the rule of law is respected. We speak in a voice that makes sure that we speak up for the independence of the judiciary, how judicial decisions are rendered, and our commitment to the rule of law.

I think we formed most recently because of all of our collective concern about this narrative and these recent attacks on the judiciary, which have been in a different tone and have been threatening. We believe it reflects poorly on the judiciary and the rule of law, and we’re also concerned about personal judicial security.

Tim Kowal
Is that the line then? Judges are public servants, and they need to be kept accountable. But you mentioned when it crosses a certain line, and certainly when it creates threats to the judge’s security, then we know it’s crossed a line. Where else can we determine whether criticism of a judge is on the right side of the line versus it has crossed the line?

Tani G. Cantil-Sakauye
I agree that sometimes it’s a difficult determination. I firmly believe that judicial decisions are open, fair warfare for disagreement and attack. I think it crosses the line, for me at least, when the challenge or the attack becomes ad hominem to the judge, and when judges are painted with titles like they’re a criminal or stupid, or this opinion is outrageous.

Most people, and I don’t blame them, won’t read a 60-page opinion. All they get from it is hearing it from a leader or an elected official. They hear that it’s venomous, and “Who are these judges?” and “How dare they?” So it creates an environment that I’ve never seen before, because I’ve not seen elected officials, the executive branch, or the legislative branch go after the judicial branch in the way that it seems to happen more and more often today.

Jeff Lewis
Your Honor, is there anything lawyers can do to help bring down the temperature in terms of this environment and these personal attacks?

Tani G. Cantil-Sakauye
Thank you, Jeff. I think absolutely. Lawyers are the best people and the best advocates to do so because you’re able to describe the process. You’re able to describe that while reasonable minds can disagree about the outcome or conclusion of this case, this is the process, each side had a fair opportunity, and briefs were filed. The process is fair, and there has to be, for lack of a better term, a winner. But the public doesn’t always understand that.

I think lawyers can be instrumental. They were instrumental to me when the judiciary was losing funding during the Great Recession. I went to the lawyers and said, “Here’s our budget. I’m just asking you to look at this, because if you can’t speak up for having a courtroom that’s open, if you can’t speak up with me to do that, then this is going to be a losing proposition for you too.” They did rally and come forward.

In fact, the same set of lawyers who helped speak up for the courts are now doing a Speak Up for Justice effort, which is very similar to the work of the Alliance of Former Chief Justices. It is nonpartisan, speaking about the rule of law and maintaining the independence of the judiciary, and trying to combat the narrative that these are basically scofflaws and criminals making these decisions.

Tim Kowal
Certainly, I think something that helps is the fact that the rulings and decisions of our Courts of Appeal and of the Supreme Court are in reasoned decisions, which is mandated by the Constitution. We’ve spoken with colleagues from the state of Florida, which is a little bit unique because they don’t have such a requirement. Their affirmances are abbreviated as PCAs, per curiam affirmances, and they are summary affirmances. It is affirmed, period. Have a nice day.

I think that could lead to a lot of consternation, discontent, and malcontent about the outcomes. But when they are in reasoned decisions, you might disagree, but at least you know that the justices labored over them. That counts for something.

Tani G. Cantil-Sakauye
I agree. I agree. I agree.

Tim Kowal
I wanted to ask you a couple of questions about the role of a Chief Justice. Past California Chiefs are, just as you are, remembered for signature issues. Ronald George for trial court unification, Roger Traynor for the tort revolution, and your tenure has its own list of bail reform, language access, court funding advocacy, civics education, and access to the courts generally.

I wondered, did you walk into the office in 2011 with an agenda, or a rough agenda already in mind? Or does the job mean just responding to the needs of the time, and you’re more or less in a responsive mode?

Tani G. Cantil-Sakauye
You are in responsive mode. You are thrown into the deep end of water. I came in with some ideas and was not really able to get to them until the end of the 12 years, because you’re faced, like every chief, with immediate issues depending on the state budget, current events, and the status of the trial courts and the Courts of Appeal.

So the chief catches. That’s what the chief does. And when the chief gets a breath, the chief gets to lead. But mostly the chief catches, because if the chief does not have leadership, peace, plan, and strategy with the trial courts and the Courts of Appeal, then it would just be anarchy. So no, you take what comes. Every chief has a different set of circumstances.

Tim Kowal
What were the issues that you came in wanting to do that didn’t make it until the end?

Tani G. Cantil-Sakauye
I wanted to do a little bit more on juvenile justice reform. I’m a firm believer that if we can meet people where they are when they’re younger and find avenues and ways to help them put their energy in different ways, that they can be taught not to see the justice system as a hostile enemy, a hostile partner, or a hostile intervener. We would be able to save money on the back end, and we could help families and children in foster care, dependency, and delinquency.

I came in believing that. I think my experience as a trial judge was that the hardest cases were cases where young people were charged with serious crimes. Young people are so naive and misled, and they find themselves deep underwater and don’t know how they got there. Then the answer was laws that charged them as adults. So I came in before the juvenile justice revolution that came through the legislature, really looking and hoping to do something in juvenile justice reform.

Tim Kowal
Obviously, one of the issues that fell on your plate that no one could have expected was the COVID pandemic. Was there anything in your experience that prepared you for that kind of situation? Obviously, you led with trying to make sure that the courts stayed open and making sure that everyone still had access to justice. What experiences prepared you, if at all, for that kind of experience? With the vantage of hindsight, would you have done anything differently?

Tani G. Cantil-Sakauye
Thank you, Tim. I love that question because what prepared me for COVID was several things. When I first came in as Chief, there was a group of judges who were unhappy with the George administration. They were very vocal and very angry. They were trying to pass legislation to curtail and restrict the power of the Judicial Council, which is a constitutional authority in and of itself, and they were trying to restrict the authority and power of the Chief Justice.

At the same time, there was a Great Recession. When I came in, I was closing courthouses and courtrooms and laying people off. I used to say that Chief George, through trial unification, built the judiciary, and then they brought me in for the remodel. It was a time of really harsh feelings and pointing fingers. I had to navigate a group of unhappy, angry, suspicious jurists.

It took years to do that, but eventually we were all on the same team. At the same time, we learned to do more with less, and we knew who to come to, and we had sharpened our lines of communication. I had also built a team, I think by then, of people who I knew could do statewide change in their counties. So when COVID came, we knew each other. There were no longer angry judges necessarily. There were no longer hostile counties. We were able to communicate, and I could ask, “What do you need? What are your challenges?”

The other thing that helped me through COVID is that the Chief Justice gets sued on a regular basis. I was used to making sure to keep my record, to ensure that all of my actions were published, that I gave notice, that I went through the right authority, and that I checked my authority. By the time COVID came, I knew what I could do legally, and I knew where I would be sued based on the action I was taking. Nevertheless, I still had to act in a way that was unprecedented, like every other chief.

The first thing I did was issue an order across the state that closed every jury trial immediately. If you were in trial, shut down. I knew that would be an eventual lawsuit. Through COVID, whenever any court wanted or needed some extraneous, allegedly unconstitutional, outside-the-statute emergency order from the Chief Justice as the head of the Judicial Council, I made them write a legislative history for me before I would grant the request.

I’d say, “You need to tell me the percentage of sick people who have COVID, the percentage of places closed, the percentage of court employees who are sick, your county orders,” because they would conflict with state orders. “You need to paint the picture of what’s happening in Stanislaus before I grant you an emergency order to continue jury trials. I need to have this because I’m going to be sued, and I won’t remember what Stanislaus looked like in 2021. So every time you want something from me as an emergency order, you need to give me your legislative history so I have a record of the emergency situation, when you asked for this, and when I granted it.”

What helped more than anything was when Governor Newsom gave me the power as the chair of the Judicial Council, and gave the Judicial Council the power, to suspend statutes. His office called and said, “What do you need?” I said, “We need this.” He said, “Well, why don’t you work with my legal team?” Eventually, we got that order, and I promised him I would use it carefully and judiciously.

I suspended all of the statutes that prohibited us from acting electronically or remotely. It was unprecedented times, and I knew I would be sued. I just knew that was going to happen later. We had to keep people alive. That’s what it was.

Jeff Lewis
And you transformed the practice of law and access to justice. With electronic filing and Zoom, people can afford lawyers in a way that they couldn’t before. So it was more than just keeping people from getting sick. You really changed our industry.

Tani G. Cantil-Sakauye
Well, Jeff, what is it they say? Never let a good crisis go to waste. We had been trying for reform in the judiciary for some time. We were stymied. But as soon as I knew that I could suspend statutes and run essentially COVID pilot projects, I did it. As you just implicitly point out, there was no reason we couldn’t operate remotely at people’s choice.

Jeff Lewis
It’s too bad you didn’t have an opportunity to solve the court reporter crisis. Tim and I are in Southern California with L.A. and Orange County courts, and not having court reporters available is a real problem with the records we get as appellate lawyers. I wish that was a problem that could have been solved during COVID, but I guess we’ll wait for the next crisis.

Tani G. Cantil-Sakauye
Me too. That is an access-to-justice issue. I have been saying for a long, long time, if you don’t have an appellate record, you lose. That’s how it works for the standards of review. I think a lot of people don’t understand that, particularly members of the legislature who may be new. The union problem with that whole issue, I won’t get into it, but you’re right. It’s a huge challenge to justice.

Tim Kowal
One thing Jeff and I have pointed out on this podcast when talking about that issue is that it points to an interesting difference in California versus other states. In many other states, the rules of civil procedure are governed by their state Supreme Courts. In California, the Code of Civil Procedure is promulgated by the legislature.

Back in the early days of the court reporter issue, well, it wasn’t a crisis back in the ’90s, but when there was that effort by the Judicial Council to make electronic recordings available to turn into transcripts for the appellate record, that turned into a lawsuit and it was struck down. Now we know that the Judicial Council cannot overrule what the Code of Civil Procedure says. Probably because of some strong lobbying forces of the court reporter lobby, we still have the rule that prevents us from using electronic recordings in most types of proceedings.

But I wonder if you have any thoughts on that, or if that’s maybe something PPIC might write about, the pros and cons of having the rules of civil procedure and how our court systems work defined by the legislature versus the Supreme Court.

Tani G. Cantil-Sakauye
That is absolutely true. We have this odd configuration, unlike other states where the Supreme Court is typically the tip of the spear for all things judicial and legal. But we have this strange relationship with the legislature, not only with civil procedure but with all of our codes. We also have a strange relationship with the legislature when it comes to oversight of lawyers in California.

So we are constantly in the Capitol on issues that really seem to me, under the separation of powers, to be more lawfully within the judiciary, where there is experience, a commitment to fairness, and a commitment to due process, and not as the legislature or certain advocates there may think that we are what we actually pursue. It’s a difficult relationship, which puts the Chief and the Judicial Council in this strange relationship with the legislature. We lobby, we carry policy, we argue against a lot of legislative proposals like any other special interest group, but yet we are a third branch. So it requires the Judicial Council and the Chief Justice to be very diplomatic.

Tim Kowal
Okay, I think Jeff and I now have a few lightning-round questions about not just your role as a Chief Justice, but your role as a justice. For example, on petitions for review, what makes a good petition for review? What’s a wrong idea for a petition for review? If you were consulting with a client who was fixing to prepare a petition for review, what would you advise that client?

Tani G. Cantil-Sakauye
I think I would first advise the client that a petition for review that is granted is not common. The Supreme Court is not an error-correction court, unlike the Court of Appeal. Therefore, the Supreme Court only takes, per the rule, certain kinds of cases.

I would say to the appellate attorney that what the Supreme Court is looking for is not that the Court of Appeal was wrong. They’re looking for a situation, as you already know, where there might be conflict, there could be mischief, or this presents an unusual case or a case that the Supreme Court would want to weigh in on before it causes all of these other concerns.

The Supreme Court is looking for a reason why it should take this case, because we realize that there are errors at the Court of Appeal. We don’t correct that. So for a petition for review, you have to convince the court why it should take it, why this case should not stand, the mischief, the conflict, or that we’re an outlier in some way to other states, to get the Supreme Court to focus its attention on the case.

It’s not that the Supreme Court won’t take what we called rescue missions, but in my experience, rescue missions almost always turn out the same way the Court of Appeal decided it. We dig in and realize, “We weren’t really apprised at the time when we granted review to know all the facts and circumstances.”

But a petition for review is rare. How many petition conferences go by in a month where there are zero, zero, zero grants? But the justices all have pet interests, of course, in the law. You can find that if you read their concurrences and dissents. If you can capture the attention of one justice, they will go to bat around the table.

And of course, the justices collectively have this running list of issues we’d like to see on review. The staff, central and criminal staffs, are on the lookout for those issues because the justices are waiting for the right case to take it.

Tim Kowal
Now if a client were to hire you, would you give them some insight into what might be on that current list of issues that the current court is looking for?

Tani G. Cantil-Sakauye
I don’t know what they are, but I can tell you this. What grabs attention is whether or not there are amici who are signed on for the petition for review. We look at the amici. Who else thinks this is a problem? Even better if you can get a government entity as amicus.

Tim Kowal
Does PPIC do any amicus work?

Tani G. Cantil-Sakauye
No. I’ve traded in lawyers for PhDs. We don’t have any active JDs at PPIC, except me maybe.

Tim Kowal
Got it. You mentioned rescue missions as the exception, or maybe so-called exception, to the rule that the Supreme Court is not an error-correction court. I wondered if there were, and maybe part of your answer answered this question, the remedy or mechanism of a grant and transfer.

If the Supreme Court were to look at a petition as, “Yeah, this does seem like an error was made. It doesn’t really align with an issue that we really need to take up. It might not be warranted under rule 8.500, but gosh, this really deserves to be reversed or to have another look taken at it. So why don’t we do a grant and transfer?” That way you don’t put any further burden on the Supreme Court’s docket, but you get to have the same effect as a rescue mission. But you had mentioned that often those cases that look like they’re in need of a rescue mission wind up coming out the same way. So is that part of the answer why not to do more grant and transfers in those rescue-mission situations?

Tani G. Cantil-Sakauye
That’s part of it. Part of it is that a grant and transfer at the Supreme Court can feel heavy-handed. We’re telling our colleagues who are just one floor below, “By the way, do this over.” So what we like to do as a grant and transfer is, if we see that they did not consider a case, if there was some citation that they omitted that we think could be key, or a phrase in a case that we think they omitted, or they somehow did not pay enough attention to a standard of review or to a certain case, we will grant and transfer for that reason.

But we will give them something new for them to consider, not a “tsk, Mommy says you’re wrong.” We’re pretty aware of how it’s received. I am, as an appellate justice who has gotten some of those. We’re pretty careful about that, because otherwise we might as well just grant.

Tim Kowal
Understood. Finally, on depublication. When we spoke with Justice Chin, he commented that he took a little bit of a dim view of using depublication as a tool to shape the law. Maybe it would be similar to a grant and transfer if the Supreme Court doesn’t like the way this case came out, but doesn’t feel that it warrants review nor a grant and transfer. But we also don’t want it setting bad precedent, so let’s just go ahead and hide this in the couch cushions and depublish it.

He said that your court, at least as evidenced by the number of depublications that occurred during your court, took a dim view of using depublication as a tool to shape the law. Do you share that characterization?

Tani G. Cantil-Sakauye
He’s right. We had a separate conference-table discussion about whether or not we should be depubbing. We were of the view that it was heavy-handed, and we should grant review because depublication doesn’t explain or give our legal world any explanation for this.

Now there’s even less reason, it seems, to depub, because a grant doesn’t depublish the case. We’ve changed our rules a little bit so that even when we grant review, we still allow the parties in the lower courts to cite either case as they’re making their decision. When we grant review, we’re not saying what the right decision is. We don’t want to telegraph what we think the right decision is by granting review of one case and depubbing the other cases that are contrary to it.

I think during my time, we were of the view that the more cases and the more consideration, the better for an issue we have granted review on. So we chose to use depublication in the rarest of circumstances, and the jurist who wanted the case to be depubbed had to make a case for it with all the other justices.

Tim Kowal
I like that approach. Last question or topic: do you have any advice for young lawyers or law students who are looking forward to a career in the law, or maybe appellate law? What advice or insights would you impart to those of our listeners who are law students or young lawyers?

Tani G. Cantil-Sakauye
I would say for your audience that’s thinking about the law, or happens to be in law school, that there’s never a dull moment, never a dull day when you study the law. The intricacies, your colleagues’ arguments, and the court decisions are really rich and robust. It’s a lifetime of learning.

I look back on my years, and there was never a day that I didn’t want to come in, didn’t want to open a brief, and didn’t want to talk to my folks about it. I can’t imagine another career like that. You only get better the longer you do it, presumably in the vast majority of cases. So I would say it’s lifelong learning and it’s never dull. You grow professionally, and I also grew personally in understanding the law, understanding advocacy, and understanding advocates.

Tim Kowal
We talked a little bit about the hyper-partisanship of our time, and we talked a little bit about AI. Are you an optimist when it comes to our newer generation of attorneys, or next generation of attorneys, and how they’re going to adapt to this hyper-partisan age and be able to find civility and collegiality in the law, and overcome the challenges and opportunities that AI presents to our profession?

Tani G. Cantil-Sakauye
I am optimistic because I think that we in the law have a nice and healthy mix of different generations. We have Gen Z, and we still have the silent generation involved in the law, and the boomers. That’s the beauty of law. You can practice it for as long as you wish. You can stay on the bench. We don’t have the whole constitutional senility at 70 that Florida has.

I think there is enough balance and temperament in the law that I don’t worry about its future with younger lawyers coming through. I believe younger lawyers, as I’ve seen with the internet and with technology, will teach older judges to learn it and become better at it. I think we will help each other. That’s the beauty of the law: age is wide and ranging.

Tim Kowal
I suspect that the generations will have to work together a little bit. Maybe the older generations will say, “Slow down a little bit,” as the new generations kind of push us into the future.

Tani G. Cantil-Sakauye
I think so too, and I’ve experienced that. I started out as always the youngest person in the room, and now I find myself the oldest person in the room. I’ve learned a lot in that span and have learned to respect opinions of all ages. So I think that’s in store for folks.

Tim Kowal
Chief Justice Cantil-Sakauye, thank you so much for joining us. This has been such an enjoyable conversation. We really appreciate you taking the time.

Tani G. Cantil-Sakauye
Thank you, Tim. Thank you, Jeff. Thank you for your work and your interest in this podcast.

Tim Kowal
Okay, well, Jeff, that’s going to wrap us up this episode. If you have suggestions for future episodes, please email us at info@CalPodcast.com. 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.