Judges

The first time that as a young lawyer I saw a judge make a bad ruling, I stood with my mouth open. Now, not so much. But I do like to see a gifted judge do his job well.

I recently observed a small-claims case in Los Angeles. The case dealt with contracting licenses and bonds. It was complicated. But this judge seemed familiar with the law and competent at getting the facts. Under his perceptive questioning, the case unfolded until his final ruling, which was just.

Good judges can be good in different ways, just like bad judges can be bad in different ways. To focus on the good, some judges are gracious. Some judges know the law, or they are brilliant at finding the law. Some judges are good at bringing parties together. Some judges are lively. Some judges are fair.

I remember a judge in Alhambra. He ruled on a difficult legal motion. He could have framed his ruling as a finding of fact. Findings of fact rarely are disturbed on appeal; appellate judges decide cases based on a cold written record, so they just don’t second-guess the judge who heard live witnesses in open court. Judges who worry about getting reversed on appeal emphasize factual findings for that reason.

But this judge, though he could have framed his ruling as a finding of fact, framed it as a decision of law. That way, if he was wrong, the losing party could get relief in a higher court. This judge was more concerned with justice than with his vanity about getting reversed by a higher court. Stating clearly the legal basis for his ruling was for him a matter of judicial integrity. This case happened many years ago, but I remember it because I admired the judge’s statement on the record inviting judicial reversal if he was wrong on the law.

I remember a judge in Ventura. He had an uncanny ability to know when a witness was lying, and when a witness was telling the truth. Some judges stare off into space when they listen to witnesses. But this judge with great concentration studied the witness as he or she testified.

Judges are (suspenseful pause) human. I once mentioned to a judge that some judges seem better suited to their occupation than others. He readily agreed. And he would know. Lawyers need to know this, because they will then be grateful to try their case before a good judge.

And they won’t necessarily take a bad ruling to heart. Sometimes, being in a courtroom with a weak judge is like driving a car with a loose steering wheel. You can do everything possible to direct it down the center of the lane, but it still might veer into the center divider.

Not all judges are well suited to their occupation, but a lawyer should assume that at the end of the day, far and away most judges want to do justice. True, their idea of justice might differ from yours. In extreme case, their confidence in one side or the other might dictate that all of their rulings go in one direction. That doesn’t mean that they don’t care about justice; only that their view of justice is quirky.

A judiciary that wants to do justice doesn’t exist everywhere. For example, Russia’s judges are notoriously deferential to the state. God save us from judges like Russia’s that see themselves as frictionless conduits for the government’s position. We should not take our judges for granted.

Police, Interrogation, and Trickery

Officers found marijuana our client’s car. And one-thousand dollars cash. And scales.

He has a medical-marijuana card, so he’s permitted to possess marijuana. The scales he says is a matter of personal caution. The money? Ten one-hundred dollar bills. He got them from his girlfriend’s brother; it was part of the brother’s tax refund. It was supposed to go toward a car for his girlfriend.

Of course, the officers want to prove possession-for-sales.

So they interrogated him.

Now, the smart thing to say when the officer starts to interrogate is: "Thank you for the opportunity to talk, officer, but I choose not to do so at this time." Because officers always tell you that they want to get your side of the story. But what they really want to do is build a case against you.

That’s why, in the taped interrogation, when our client started to say something that helped him, the officer cut him off and directed the discussion elsewhere. That’s why the officer repeatedly tried to bully our client to confess to possession-for-sales.

Officers always have a bag of interrogation tricks. They make a person feel hopeless, so he confesses. They make a person feel remorseful, so he confesses. (It is easy to feel remorseful when you’re in handcuffs, even if you haven’t done anything wrong.) They make a person think he’s helping himself when he really is hurting himself. ("Now, it wasn’t your idea to steal the rims, was it?") They just lie. ("We took DNA off the steering wheel, and it came back to you. How do you explain that?") They make a person feel desperate, to make him confess. ("You know, you’re going to get the death penalty for this. But if you confess, we’ll tell the judge you cooperated.") Or they combine these tactics.

And as up-ended as most people feel when handcuffed and in custody, they usually can’t think straight. So they are easy to lead into a confession or an admission. They stumble into the officers’ traps. That’s why false confessions and false admissions are common.

Under the circumstances, our client did relatively well. He steadfastly denied possession-for-sales – as much as he could before the officer cut him off.

But he admitted some sales in times past. I’m sure he did this against his better judgment, to mollify the aggressive officer. Officers can be very, very intimidating when you’re under arrest. It’s natural to want to get on their good side. Officers know that arrestees want to get on their good side, and they exploit this fact. They communicate that they want and expect an admission or a confession. And often, that’s what they get.

In admitting past sales, our client didn't help himself, so we have our work cut out for us. But it’s far from hopeless.

Kicking the Can Down the Road

Another client gets drunk and hits someone’s car. The client is off to prison (he had a prior felony DUI). Now we’re dealing with restitution.

Before the collision, the complaining party’s whole car was worth less than $2,000. It’s a 1993 Toyota Camry. Case law says that the most that the complaining party can get is replacement value. But for two dented fenders and a dented hood, the complaining party wants $3,500.

I suspect would-be theft-by-court-order.

I point out to the DA that the complaining party is seeking almost twice as much as he legally can get. The DA doesn’t care. He could investigate and save everybody a hearing. But it’s easier for him just to say "Set it for hearing". He can prepare for the hearing with virtually no effort. But now, the judge, the bailiff, the clerk, the court reporter, and I will have to devote time to this.

Some DA’s are conscientious. Others are pyromaniacs when it comes to tax dollars.

Hammer Falls

The Unfair Dept Collection Practices Act is a good law. It keeps bill collectors from hounding and harassing people. The kicker in it is that a prevailing plaintiff can get the other side to pay his attorney’s fees.

The downside of it is that UDCPA mills can churn out bad lawsuits and count on settling. Because a small debt-collection shop can’t afford to litigate the case, the payout is (usually) modest, and the prospect of paying for the other side’s attorney’s fees if you lose is daunting.

A friend of ours got sued in a UDCPA case. He’s a decent Joe. And the claim that his company made frequent, harassing phone calls is nonsense. His phone records show only two calls to the plaintiff.

But as strong as our defense is, our defense is going nowhere. Our friend left the company to his business partner and went to another company. And the partner left the state. We haven’t been able to contact him.

In the meantime, the attorneys for the other side have been calling us. We had to make a joint report with him about the case to give to the judge. But that’s been difficult because we have had no contact with our client. We lacked the helpful participation of our client.

To make matters worse, the other side submitted a document to the judge that said that we have shirked our responsibilities. That’s not true. This accusation is the kind of thing lawyers do – lie to the judge to try to make the other side look bad. This happens all the time now, unlike, say, 30 years ago.

So I went to court Monday not quite knowing if things were going to go to Hell.

They did.

For the other side.

Because the judge apparently knows the other side. And she doesn’t seem to have a high opinion of them.

The judge grilled the other lawyer about the merits of his case. And he couldn’t give satisfactory answers. He ended up looking like an unprepared boob.

The hearing was continued to another day to bring in the lead trial counsel, who might be able to give better answers. Local rules required him to be present at Monday’s hearing.  So the judge wants him to explain why she shouldn't punish him with a fine for not being there in the first place.

I try not to gloat when the other side get’s hammered. It’s bad to gloat. But, damn if it isn’t hard to restrain myself. Because what happened to the other side is what they intended to happen to us.

So it was a good day in court.

Don't Punch an Old Man if You Don't Want to End Up in Court

Based on client information, my petition for a restraining order said that a 17-year-old kid threatened to "kick" another kid’s "ass". Grandpa, my client, shuts the gate on him, to keep him from doing what he threatened to do.  So17-year-old smacks Grandpa on the bridge of the nose.

Today is the hearing on the petition for a restraining order. And, with Grandpa on the stand, I just can’t get him to say why 17-year-old smacked him on the bridge of the nose.

17-year-old testifies. He says that the two families – his and Grandpa’s – were confronting each other. Somebody shoved his mother, but he can’t say it was Grandpa. So he punches somebody, and he can’t say it wasn’t Grandpa.

Game over.

It bothers me a bit that Grandpa didn’t recall why the punch happened.  It makes me wonder if I got a skewed picture when I wrote the petition.

But justice was done. Because a 17-year-old just doesn’t punch an old man. Just doesn’t.

My client’s family doesn’t speak English all that well. His son thought that the judge had rejected the restraining order. He asked me to step out of the courtroom so he could complain. But with my broken Spanish and his broken English, I got him to understand that we had won. Then it was a smile and a handshake.

Calls Taken, Problems Solved

It was a little-happening day.  A DMV hearing.  An arraignment on a traffic warrant.  And legal research.

And interruptions.  Clients calling with problems.  And that’s actually the most important thing that happened today.

Because clients often have the option of getting a public defender.  Basically, anyone who asks for one gets one.  But we give our clients something that they rarely get from public lawyers: scrupulous care. We don’t blow off phone calls from clients because we’re busy.  When a client calls, that’s our chance to make him know that he was smart to hire a private lawyer.  We’re on it.

So I welcome interruptions.  Yes, sometimes I have to remind myself that the project that I was working on can wait.  And it almost always can.  I sometimes have to remind myself that whatever the client is calling about is important to him, or he wouldn’t call.  Very few clients abuse our open-door policy.

Our clients hire us so that they don’t have to wait.  Our clients hire us so that they don’t have to feel like an interruption. And we do our best to be available.  They aren't interruptions.  They're our livelihood.

So one client calls and has questions about his alcohol school.  I take time to understand his question (his English is not great), and I give him the best answer that I can.

Another client calls and wonders why he could not visit his son in jail last weekend.  We call the jail and find out that there was no barrier to his visit; he just needs to call this Friday and make an appointment for Saturday.  He concludes that his ex-wife gave him bum information.

Problems solved.

Grifter

My client gets drunk and rear-ends a woman’s car. The woman – let’s call her Janet – has her two young children with her. The collision causes slight damage to the cars. The airbags don't deploy.

My client is arrested for drunk driving.

Janet immediately – immediately – claims pain and suffering. She takes her kids to the hospital and wracks up $45,000 in medical bills. They are discharged a day later with no recommendation for further treatment except over-the-counter pain medication for Janet.

Medi-Cal pays the hospital bills. Medi-Cal is government-paid medical insurance for people who can’t afford health care.

My client has to pay restitution as part of his drunk-driving probation. Restitution is payment to victims of crime for their losses caused by the crime. Restitution is appropriate in a case like this one. But Janet is trying to steal, plain and simple. Here’s why:

• Janet claims that her child was so injured that she had to stay home from work for a month to care for him. She lost wages, she said, of $8,100. Those monthly wages add up to $97,200 a year. Mighty high for somebody with government-paid health insurance. 
• And it’s odd that Janet should have to stay home for a month to take care of her child. The doctors on the day of the accident did not say he needed any follow-up care. And Janet submitted no medical records for any post-day-of-the-accident treatment. 
• Janet claimed that she had to get $6,500 in treatment at the Serenity Day Spa. That’s a lot of hot-stone massages.
• Janet claimed that she had to get psychological counseling for her and her children because of the accident. That’s right: psychological counseling for a bumper-tap.
• Janet has no proof or receipts for any of this. No check-stubs from work. No receipts for any of the treatments.
• Janet claimed that she had to declare bankruptcy because of the medical bills. But I checked the bankruptcy-court records. She declared bankruptcy in 2004, and her bankruptcy was discharged that same year. That was long before the accident.

The prosecutor is a decent Joe. But he takes the position that Janet should get basically everything she wants. I think the world has gone crazy.

So I submit a brief to the judge. And I point out all of the issues that I point out here. The judge reads the brief and calls the lawyers back into her office. She tells the prosecutor bluntly that his "victim" is out of line. Bless the judge.

 

The judge makes it clear that she will not order restitution for any expenses that the "victim" does not prove up with substantial evidence. In particular, the judge agrees that it’s odd that somebody with government-paid insurance claims to earn $8,100 per month.

 

I argue that the judge shouldn’t order any restitution, based on the "victims" fraud. But the judge won’t go that far.

 

So the judge says she’ll order restitution for the medical expenses. Because there is proof of that. I have case authority showing that the "victim" does not get restitution for the amount of the medical bills; only for what the insurance paid on her behalf. (I know, why shouldn’t the money go to the insurance company instead of the "victim"? It’s a quirk of the law.)

 

But that’s OK. Because on $46,000 billed by the hospital, Medi-Cal paid $1,800. My client easily can afford that.

 

All in all, this was a lot of work.  It took effort to discover that this was a Medi-Cal case.  It took effort to find out how little Medi-Cal paid on the substantial hospital bill.  It took effort to research the law.  It took effort to comb through the facts to discover discrepancies in the "victim's" claims.

 

But things turned out alright.

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This case was part of our criminal-law practice at Schlueter & Schlueter. Our website is http://criminal-civilrights-attorney.com/