November 2011 - Dear Friends and Gentle Hearts
by Justice William W. Bedsworth
Federal District Court Judge David O. Carter and I were rookies together in the Orange County District Attorney’s Office. Dave was a decorated war hero who ran marathons and I was an overweight ex-college ballplayer. Other than that, we had nothing in common.
But at the end of the day, we’d gather in the office library with the other fledglings and try to figure out how we were going to get through the next day’s testimony in the DUI or petty theft case over which we were sweating bullets and coughing up blood. One of the last things you develop as a young lawyer is perspective; we worked those cases like our citizenship was on the line.
Every night we’d gather in the library and try to help each other solve the problems that had come up during the day. Five baby prosecutors with no experience was almost the equivalent of one defense attorney who’d been around long enough to incur MCLE requirements.
Dave was the biggest talent in the group, so the brass chose him to handle a high-profile misdemeanor that came along one week. Opposing counsel was a famous—not to say, notorious—defense attorney who was intimate with every dark and nefarious loophole in the California codes. The guy had 40 years and three assistants on Dave, which I now recognize to be the equivalent of a boxer having 40 pounds and three inches of reach on an opponent.
But Dave had us—a half-dozen tyros with a lot of team spirit and one mortgage between us. We reduced the advantage to about 38 pounds and two inches.
Dave would come back from court every day and tell us about the brilliant and underhanded tricks opposing counsel had played on him. He’d regale us with stories about how the guy had bamboozled a key witness, dazzled the jury, finagled into evidence his client’s charitable donations, and strutted out at the end of the day—cigar in one hand, keys to the Mercedes in the other.
And Dave would climb up off the courtroom floor—flimflammed and flabbergasted—patch up his wounds, and come back to the office to eat his sack lunch five hours late and look to us for succor.
This went on for more than a week. Dave would limp in at the end of the day, and we would all sit in rapt attention as he described courtroom horror after forensic debacle after adversarial humiliation, always with a grin and a rueful chuckle. Then we’d either throw up our hands and announce, “You’re a dead man,” or we’d dive into the books and try to help him find a way to recover. Often both.
Finally, I could stand no more. Halfway through one of Dave’s tales of woe, I stopped him and demanded, “Dave, why are you smiling? Every day you come back here and describe scenes of carnage that would make a sane man leave the law and go into aluminum siding, but you never stop smiling. How can you smile through this?”
And he looked at me and said, “Because now I’ve seen it, Billy, and it’ll never happen to me again. Next time I’ll see it coming and I’ll stop it.”
I’ve thought of that exchange a lot this fall. Erwin Chemerinsky, who is impossible to say “No” to,2 has me teaching an appellate advocacy seminar at UCI Law. I spend three hours a week now trying to map the locations of appellate Scylla and Charybdis to 2L’s and 3L’s. Three hours a week trying to save them from having to live—personally or vicariously—Dave Carter’s two-week misdemeanor thrashing.
While I try to avoid war stories in this process, I’m essentially trying to distill 40 years of my own adversarial train wrecks and fender-benders into rules of the road that will help them keep their shiny side up as much as possible. It’s hard to do without recalling the gospel of St. Matthew: And if the blind lead the blind, both shall fall into a ditch.3 I’m working on the theory that if I tell them about the ditches, they might be able to walk carefully enough to avoid them.
I was frankly intimidated by the prospect of facing bright young minds who might challenge a lot of things I had come to accept long ago for reasons I have since forgotten. I was afraid when they asked me why, I’d have no better answer than “Because that’s the way Jack Ryan told me to do it, and he’s Jack Ryan, for crying out loud.”
Then it was pointed out to me that I’ve been a lawyer longer than most of them have been alive. This made me feel better.
Then it was pointed out to me that I’ve been a judge longer than most of them have been alive. That made me feel bad again.
But the students have been great. They really want to learn, and they soak up information like high-achieving sponges.4
I had them in chambers last week and was going through a file, identifying the documents for them. “This is a motion for extension of time. This is the proof of service for the motion for extension of time. This is an erratum. This is the proof of service for the erratum. You have to file a proof of service with everything; hell, you have to file a proof of service if you get your car lubed.”5
No one did that for me when I was in law school. So when Judge Frank Briseno, then a felony trial deputy in the DA’s Office, gave me my first felony to try, and asked me to take note of a quirk in the information,6 I couldn’t find it. Not the quirk, the information.
Frank watched me fumble through the file a couple times, then smiled gently and softly said, “You don’t know what an information looks like, do you?”
“No,” I stammered. I’d only tried misdemeanors.
Like my students, I was a bright kid, but I had no experience. I was so wet behind the ears you could have grown rice on my neck.
But . . . over time . . . I learned—largely because I was unconscionably lucky. My first supervisors in the District Attorney’s Office included Alicemarie Stotler, Tom Crosby, and Dick Luesebrink. If you can’t learn from people like that, you’re just uneducable.
I also had the benefit of appearing before kind judges like Celia Baker. In my first jury trial, she suggested I talk to my office about whether I really wanted to make a motion for a mistrial in response to defense counsel’s misconduct during closing argument.7
Judge Phil Schwab called me into chambers once after ruling in my favor and told me I’d done a great job, but I needed to delete words like “ludicrous,” and “risible” and “absurd” from my vocabulary. “The judge decides if your opponent’s arguments can be described in those terms,” he told me. “You don’t get to.”
Judge Kenny Williams taught me the value of proofreading by hectoring me for years about one of my briefs that was submitted with a description of a factual scenario as “a stinking example” of our laws pertaining to joint possession.8 From then on, whenever I argued in front of him, he’d say, “Tell me, Mr. Bedsworth, is this a stinking example of the law in this area, or just an ordinary example?” And I would rededicate myself to careful proofing.
I could write for weeks of the lessons kind judges and generous lawyers taught me—and are teaching me still—but then I’d have nothing left to teach, and Erwin would fire me.
Suffice it to say I’ve been pleased to find I have a lot to teach future lawyers. I hope I can save them some of the bruising and bloodshed Dave Carter and I went through as novices.
But I have also been humbled to realize how many people took the time and extended the kindness to teach me the things I’m now passing on. I’m sure if you think about it, you’ll come to the same conclusion about your career.
Keep that in mind the next time a young lawyer does something ignorant or arrogant or stupid in your case. Keep it in mind the next time one calls your argument “ludicrous” or makes a motion for relief he’s not entitled to, or fails to be as careful as he should have been.
We’ve all been there. And it made a big difference if we were met with kindness.
1. Note on a scrap of paper in the pocket of songwriter Stephen Foster (Camptown Races, Oh! Susanna, Old Kentucky Home, et alia) when his body was found in a New York hotel room in 1864.
2. Well, maybe not impossible. As Erwin points out, the U.S. Supreme Court seems to have figured out how to do it.
3. Matthew 15:13–14, King James version.
4. Although you need a pretty secure ego to speak to people who have laptops open in front of them and could all be playing Angry Birds for all I know.
5. You could hear crickets, but I was having a good time.
6. The Superior Court charging document in a felony is called the information.
7. Jeopardy had attached when the jury was impaneled; my motion would have barred retrial of the defendant, so essentially I was moving to dismiss my case. I was young and angry; she was compassionate and understanding.
8. It should have said “striking example.” But my handwriting was bad, my secretary’s competence had spoiled me, and I was too lazy to proof the finished product. So it went to Judge Williams as “stinking example.” Fortunately, I’d seen Judge Bob Banyard eviscerate an attorney who blamed a mistake on his secretary, so I knew better than to make that mistake in front of Judge Williams.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at email@example.com.