Discretion and Order

So I already discussed my trip to Yuba City; a drive which, as you read, allows my mind to wander a bit. I went there to oppose a motion to compel discovery.

The case is a wrongful death matter arising from a grisly head-on collision that took place in Butte County (where the case was originally filed, but due to factors too complicated and not interesting enough to go into here it was moved to Sutter County). The collision involved several vehicles and four people died with two more seriously injured. Sutter County has some intricate local rules and this judge in particular wants them and all rules followed to the letter. The Humboldt and Mendo courts tend to be more forgiving, focused on the content rather than the form of the papers, and even the more conservative judges will use their discretion to make life easier in the interests of substantial justice. The Sutter County judge takes the view that such exercises of discretion will only cause problems in the long run particularly if attorneys get into the habit of loose practices.

There’s a formality to his courtroom that is also absent in any of the coastal courtrooms I’ve been in. Most of the local judges have their bailiffs announce “please remain seated and come to order,” and the judge slips in quickly and calls the first case. The Yuba City court, at least this particular judge, has his bailiff announce a detailed list of protocols, including where we sit when our case is called and which way we are to leave the courtroom. He is a stickler when it comes to the proper procedure and paperwork. And he loves to drag out of county attorneys into the courtroom to set them straight.

This sets up a bad combination with me. I am not good with details, and I’m a creature of habit. What works for one judge I’ll repeat with another without even thinking about it. I have a bad habit of not keeping up with the new judicial council forms (the update disc usually makes the rounds in the office and then sits on my desk for months until I get around to it). And because the local courts default to the state rules for the most part, I am very familiar with the local quirks but don’t always think to check those in other courts. It’s rarely a problem. Not so rarely in Sutter. I’ve been ordered to drive over highway 20 on two occasions, and we’ve had some interesting exchanges. Of course, I’m very respectful, but think My Cousin Vinnie and you’ll probably have a good idea of the culture contrast involved. In neither situation was I sanctioned – probably the drive was sanction enough. And I have to say, it’s worked. I check everything I do very carefully now, more so than anywhere else.

Now there are numerous plaintiffs in a case which has been consolidated for the purposes of discovery and trial. Why they weren’t completely consolidated, I don’t understand (my assumption that they had been led to my first run-in because I had used what I believed to be the lead case number where the consolidation and transfer motion had been made by other counsel. I was called in to be told to put the right number on my court filings.). But for discovery, they are consolidated. Most of the plaintiffs have associated in a truck negligence specialist from out-of-state. One of the selling points for me was that I don’t have to drive over for all the depositions.

Well, during the course of expert witness depositions, one of those attorneys gave to the expert a disk of an animation being prepared to use at trial. The expert was consulted in that instance for advice onto what should be put onto it as evidence, and not as information upon which to base his opinion. So when the deposition was taken, the defense attorney demanded the disk to examine on the basis that it was in his file, and reviewed by the him, and so it might have had a visceral impact on his opinion and thus they were entitled to it. We objected of course on the basis that it is privileged as work product. The defense moved to compel, citing federal case law because California case law is silent on the particular issue thus far. I spent a great deal of time preparing to explain the specifics of the Federal Rules of Civil Procedure and the fact that the cases were based on specific wording and legislative history completely absent from California law which does in fact hold the work product privilege to a higher standard of value. I had planned for a very detailed comparison and contrast. My outline was ready. I had the cases marked up for quick reference. Unfortunately, the out-of-state counsel had prepared the written opposition and I was out of the loop because originally she was going to make the appearance. So I had prepared to make up for it, though unfortunately your limited in oral argument to what was cited in the briefs. So I was ready.

This time the judge’s demand for precision worked in my favor. I never even got to say a word, other than “Eric Kirk present for plaintiff Sharon Templeton your honor.”

David Ashby, one of my fellow plaintiff attorneys, came in swinging. Apparently, my office was the only one timely served. We had been personally served (rather than by mail which extends the time frame) on the last possible day, at 5:15 p.m. Everybody else was served the next morning, something I had been unaware of. The defense counsel argued that because it was my expert, and I was in fact representing one of the plaintiffs, the motion should be maintained as to me even if it didn’t it wasn’t binding on the other parties. This argument got the judge seriously annoyed with him – probably because of the thought that crossed my mind – had they picked on me because I was so far away from the courthouse? More likely, the difference was in our local process server and they had procrastinated. But still the judge dressed him down and told him that all of the plaintiffs who hired this expert had an interest in the motion, and that all of them should have been timely served.

Counsel: “I believe service is adequate.”

Judge: “Well, I believe in the tooth fairy, but I don’t think that will impress the gentlemen here (indicating us) any more than your belief. I also believe in statutory law. Do you have any?”

Counsel: “No your honor.”

Judge: “Motion denied without prejudice.”

So that was it. 8 or 9 hours on the road and it was over in less than 5 minutes, most of the time taken up by the judge tearing defense counsel a new hole. I should say that Ashby’s opposition would probably not have worked here. The local judges would have granted an oral request for shortening of time upon a quick showing of no prejudice. One trial in front of Judge Brown I objected to a late served motion in limine, and he rolled his eyes and overruled me. I don’t think the Sutter county judge would roll his eyes. Double-edged swords all the way around.

Some unsolicited advice to a young opinion piece writer

A robust critique of local conservative politics from Tim Crlenjack in today’s ER that trails off into all sorts of issues beginning with a response to Jerry Partain’s previous op-ed about the Gallegos/Bowman controversy. Tim reveals that he’s young, but he needn’t have devoted space to that revelation – it’s pretty obvious. However, sorting through the rhetoric he raises some very good points.

It was also addressed in the Oct. 1 Times-Standard, page A4: “Judge Timothy Cissna presided over the proceeding and had the ultimate say on the matter, according to the California District Attorneys’ Association.”

This should be a salient point in the whole controversy that deserves more discussion than it’s received. Despite my previous comments defending the reporting on the case, Judge Cissna’s involvement in the case certainly negates any doubt in my mind that Gallegos was innocent of any wrongdoing. Cissna is probably our most conservative judge locally, and he isn’t easily snowed. And I know from personal experience in one of my first cases in front of him, he doesn’t allow a plea bargain if he believes that the punisment is inadequate. In fact, in my 10 years of practice, I have had only one plea bargain rejected – by Cissna. Incidently, that plea bargain had been negotiated with a veteran prosecutor under Terry Farmer.

But the young Mr. Cylenjak loses a little bit of reason when he goes after Dikeman.

In response to Gallegos’ tolerance and generosity, Dikeman made a back-handed, low-life comment about being fired for expressing his opinion! Talk about hubris.

Certainly, Dikeman’s assumption is undermined by the fact that he wasn’t fired after the recall election run where he did in fact slam Gallegos late in the campaign after having professed his neutrality early on. But it’s pretty apparent that the two never really had much to say to each other after the first run, and Dikeman’s comments in the post-firing ER interview seemed subdued if anything. Besides, anybody who is fired for any reason is entitled to at least one parting shot.

Mr. Partain took a swing at Bonnie Neely and John Kerry. Considering the record of a mere 12 years of extremist Republican control at the national level, I had to chuckle. Neely is offering a kinder, more rational version of conservatism. I remember the professor on TV talking about candidate Arnold as an “electable” Republican. In Nebraska he would be a centrist Democrat.

The editor probably should have stepped in here. Tim’s trying to do too much with this paragraph, and I don’t know if the “he” is Arnold or the professor Tim saw on TV.

The very next paragraph jumps onto Fleming.

Flemming was rude and disdainful to the young, barely 21 Chris Kerrigan in his first few days on City Council when she was mayor. Kerrigan had the temerity to defeat her pal in a fair election. Aren’t we sick of Flemming’s attitude?

Flemming doesn’t have a good bedside manner, which is one of the reasons she’s probably going to lose the election to her fellow Republican in a Democrat-heavy district. But while Kerrigan is young, he’s a big boy. He can take it. He took much worse from Rex Bohn.

The silver lining in John Kerry’s defeat is that George W. Bush must take full responsibility, along with his sycophants in Congress, for Iraq and Afghanistan. Sadly, all my predictions about Bush’s incompetence have been surpassed. But Jerry is still proud. And I am still waiting for 100,000 college Republicans to voluntarily enlist for only two years to save their feckless president. Sixty thousand for Iraq and 40,000 to Afghanistan. Oh, ha, ha, ha. That’ll be the day.

Don’t put “oh, ha, ha, ha” in a serious political opinion piece Tim! And your point isn’t enhanced by “that’ll be the day” either.

Jerry hates unions. He loves Wal-Mart. I have previously documented the predatory capitalism, Houston-style, of MAXXAM and Charles Hurwitz. Some may remember a few years ago when several workers, including the foreman, died in the de-barker out at PALCO. They had all signed the paper that said that nobody went in unless the machine was locked out. But that took extra time, and time was money, and MAXXAM was in debt due to willful mismanagement. The union was weak, so when someone complained, he got transferred. So they went in and died.

One last lesson. If you’re going to go into something like this, devote more than a paragraph and provide some detail. It’s not very persuasive to anybody who doesn’t know what the Hell you’re talking about.

But hey, it’s a spirited letter and a more interesting read than most of what you’ll find on any opinion page. And I’m always encouraged when I see young folk show some passion in political affairs.

Hmmmm. When did I start referring to anybody as “young folk?” The letter brings back memories…

You’ve got sleazoids. You’ve got idealogues. And then you’ve got just plain jerks.

You’ve got them in every party and ideology. This one just happens to be a conservative Republican somehow elected somewhere in Colorado. From the Greely Tribune:

Chairwoman Pat Waak said an e-mail from State Rep. Dave Schultheis, R-Colorado Springs, sent to the Tribune last week was heartless. She said Sen. Dave Owen, who is running for House District 50, should ask Schultheis to apologize to the Bustillos family.

In the e-mail last week, Schultheis asked about the citizenship status of the family, three of whose children died after a car wreck Oct. 2. The Tribune put the e-mail online, where hundreds of readers continue to discuss it.

Schultheis said later he regretted the timing of the e-mail and said he did not intend to appear insensitive.

Brian Mason, communications director for the state Democrats, said the e-mail was just that.

“The question by itself was inappropriate, but the timing was just reprehensible,” Mason said.<

And the kicker.

Schultheis had said someone asked him about the family’s legal status, and that inquiry prompted him to contact the Tribune. He later said he should have waited. He also said the Tribune should not have posted the e-mail to its Web site so quickly.

Yeah, it was all the paper’s fault for printing his lame-ass letter. And no, he shouldn’t have “waited.” It shouldn’t have even crossed his mind to bring it up – at any time.