By Nate Bernstein, Esq.- Managing Counsel of LA Real Estate Law Group
If your case or law and motion matter in Superior Court does not settle, you run the gauntlet and risk of having a judge decide the issue before the court.
It is important to understand that judges are overworked, and by some standards under paid for their long hours. Judges are human beings, and are not paper pushing robots. Because they see issues over and over again, they bored with the mundane, and like to hear interesting issues- such as a products liability case where the air bags failed to deploy. Judges rely on their staff research attorneys a great deal to complete research and decide legal issues. The research attorneys will do extensive research, will work up the matter, and make recommendations to the judge. The judge may not have time and resources to read all or some of the papers that you file in court for a hearing- it may not be humanly possible to ready 15 motions in limine before trial starts.
This is an interesting phenomenon- you retain counsel, spend money on attorney’s fees and costs, and you come to court and the judge has not some read or read all of your papers !! Some judges may be good actors, or may admit “ this matter will have to be continued so I can provide further review of the briefs- I will continue the hearing and take it under submission.” Some judges are honest about not having the time to read the papers, but other judges may fudge it. Other judges have read the papers thoroughly, discussed the issues with their staff attorneys, and may have certain additional questions about the evidence or the law. Other judges are concerned about new case authority that has just come out that may impact the result in the case because the authority is on point.
In addition, judges rely a great deal on the attorneys before them for presentation of legal authorities and factual information. Attorneys are both officers of the court and advocates for their clients. When a judge asks for information or legal briefing from the attorneys, this is a great opportunity for a skilled attorney for persuade the judge on an important issue in the case. Judges may ask for a “letter brief” on a particular issue. For example, a judge once asked me for a short brief on whether a trustee of a private trust can appear in court without an attorney- I researched the issue and provided the judge with an answer- she appreciated my efforts.
Here are some guidelines for how judges will decide an issue before them:
- Judges and their staff like things to be brief, material- highly relevant, and to the point. That is why for bread and butter law and motion matters- briefs should be no more than 10 pages double spaced. It is helpful for attorneys to have a ready reference summary of arguments section at the beginning of the brief. Get to the point !!
- Judges also may rely on the opinions of expert witnesses that have appeared before them in the past, and that have a great reputation in the legal and professional community. An expert witness is a “hired gun” that can testify about a specialized issue- for example, if there was a forgery- you can call an expert witness to testify about whether a signature on a grant deed appears to be forged or not based on other samples. If the attorney can lay a foundation that the expert witness, is qualified to be an expert in his or her field, and the expert will testify about a relevant subject in the case before the court, the court will allow testimony from the expert and court may rely on the expert’s opinion a great deal.
- Judges and their staff attorneys use several books and texts for their research, and they also may use high powered computer legal search data programs such as Lexis Nexis or Westlaw. Some books are designed and written just for judges to rule on the admissibility of evidence. Judges use and follow the treatise Rutter Group- Civil Procedure Before Trial for most pre-trial procedural issues. This handbook is the bible for pre-trial issues. For real estate issues, judges also use Miller and Starr on Real Estate– this is a very detailed treatise on virtually every aspect of California real estate law.
- Courts tend to follow California Rules of Court very closely. The rules in the California Rules of Court are adopted by the Judicial Council of California under the authority of article VI, section 6, of the Constitution of the State of California, unless otherwise indicated. The rules in division 5 of title 8 and in title 9 were adopted by the California Supreme Court. These are rules that govern how attorneys and parties are to present and file pleadings, motions, declarations, and documents in Court. A party’s strict compliance with these rules can make or break a law and motion matter.
- Judges consider a few important preliminary issues prior to making a decision on the merits of a civil matter. They are interested in whether they have proper jurisdiction, the parties have been served, and whether parties have “legal capacity” to sue (also known as “standing”).
- When judges decide a law and motion matter, they also consider whether the evidence is “admissible” into the record. If the evidence presented in the form of declarations or exhibits is not admissible- it will not be considered in the judge’s final ruling. Judges consider the detailed rules of admissibility of evidence- which for state court cases- the rules are located in the California Evidence Code. Attorneys can use evidentiary objections to try to block evidence from coming into the record.
- The role and function of oral argument in law and motion matters by attorneys in Court at the Superior Court, trial level is frequently misunderstood by parties to a case and young attorneys. Some parties believe that if they hire an attorney to come into a court hearing screaming and yelling and banging her fist on the desk- this will change or impact the result- this is usually not the case. The bottom line is this- most judges have already worked up the case several days before the matter is called on the court calendar that morning. This work up is based on the sets of papers and pleadings filed by the attorneys in court at least 21 court days in advance. The quality, depth, and persuasiveness of the paperwork is key in law and motion matters.
- The court’s “tentative ruling,” for a particular motion may be in writing, or the tentative ruling may be orally stated by the judge. A written tentative ruling is generally available to the attorneys, parties, and the general public prior to the hearing. The tentative ruling is extremely important because the tentative ruling is the end product and result of the judge’s work up and analysis of the issue. It provides the judge’s analysis and reasoning on a particular issue. It will contain key facts and summaries of the positions, and it will contain citations to important statutes and legal authorities. The tentative ruling may be posted on the court’s website several days before the hearing, or handed out on a sheet of paper at the hearing. The term “tentative ruling,” is exactly what it purports to be- it is “tentative” and is not the final or actual ruling of the Court. The Court will generally allow some oral argument by the attorneys prior to the Court’s recitation and decision of the actual final ruling in the Court room. The judge wants to hear from the attorneys who stand to lose on the issue when the tentative ruling is against them. The important thing to know is that usually judges may state that the “tentative ruling” is and becomes the “actual final ruling” of the Court. The trend and probabilities in the Courts is for judges to not waiver or flinch from their “tentative ruling.”
- Most cases do settle. Some judges may take an active role in trying to settle a case that will be tried in their courtroom. Others may take a more hands off approach, and refer the case to another judge for a settlement conference. Judges that take an active role can bring attorneys and parties into the back chambers to explain the risks, and read them the “riot act” about the risk of trial. It all depends on the judge’s approach to settlement and how busy their calendar is at a particular moment. If a judge understands the issue, the judge can help facilitate settlement if the parties are reasonable and in a close bracket on the settlement numbers.
CONCLUSION- GOING TO COURT IS NOT THAT BAD OR IS IT !!
I hope this white paper provides transparent insight and unlocks the mystery of how judges actually decide pre-trial issues in downtown Los Angeles Superior Court- which is a rough and tumble environment. Most judges perform a thorough analysis, want to get it right the first time, and want to do justice. Judges don’t want to get reversed on appeal, or be subject of a written complaint of a party or an attorney to the Judicial Council of California or the Presiding Judge.
Judges are human beings and may be persuaded or charmed by attractive attorneys or celebrity parties and their attorneys, and may curry favor to institutional parties such as banks, insurance companies, and large law firms whose clients can afford to appeal. This is especially true in Los Angeles- where celebrities are frequently in court fighting over business issues or divorce issues.
Judges want the parties and their attorneys to walk out of the courtroom with a core belief that all sides had the time and space to present their cause in the motion papers and in oral argument, that the papers were read and considered carefully, that the latest law was applied to the facts of the case, that the law was followed, public policy concerns were addressed, that the attorneys were dealt with respect and courtesy, and nobody was railroaded through the system. Alternatively, if the Stanley Mosk Building is not the right forum for your case, you can always do arbitration if your opponent agrees, and if you can afford to rent a judge.
The author of this article, Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy matters. The contact number is (818) 383-5759, and email is firstname.lastname@example.org. Nate Bernstein is a 30 year veteran Los Angeles real estate and business attorney and trial lawyer. Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, and creditor’s rights. He previously served as Vice President and In House trial counsel at Fidelity Title Insurance Company, a Fortune 500 company, and in house counsel at Denley Investment Management Company. Nate Bernstein created www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation. Nate Bernstein is a local expert on real estate law and economic trends in the real estate and leasing market, business law, bankruptcy law. Nate has personally litigated more than 40 major real estate trials, and has settled more than 200 complex real estate and business cases.