April 2016 - A Most Dangerous Game

by Justice William W. Bedsworth

This is a great job. If your nightly prayers have included my retirement, you might want to scrap that one and make room on your agenda for snow in the Sierras. Or Angels wins. ’Cause I’m not going anywhere soon.

I tell people I have the best job in the system. And I don’t mean the legal system; I mean the solar system.

They pay me for my opinions, for crying out loud. Every month the State of California asks me to give them my opinion about thirty cases. I tell them what I think, I write up ten or twelve of them, concur or dissent in the other twenty, and they give me a paycheck.1

It’s been suggested they would be better off asking my opinion about what color the drapes ought to be or who was the best left-handed pitcher of all time, but this is what they ask for, so this is what they get. It’s a great gig.

And it was my dream job. I was an appellate lawyer in the District Attorney’s Office. I first tried trial work for four years and decided the key word in the phrase “trial work” was “work.” Appellate practice—reading and writing—was a lot more like what I did for fun.2

So here I am on the Court of Appeal. In California, there are about 110 judges who do this job,3 and if you gathered all the former appellate lawyers in the group together, you could not field an ocarina octet.4

That means I got a dream job against significant odds. I was unconscionably lucky, and I am grateful to be here. The job suits me.

But it’s not perfect.

For one thing, there’s enough reading to blind an owl.

And it’s not like reading Michener, where once he starts description, you can just turn pages until quotation marks start showing up again. You gotta read—and understand—all of it.

It simply can’t be done in daylight weekday hours. Especially in winter.

Unless you’re Evelyn Wood,5 you’re doing some of it at night and on weekends. And you’re reading long after you reach the point where you find yourself having trouble concentrating because the Eighth Amendment keeps intruding upon your thought processes.

You don’t have a choice. If you don’t keep reading, you’re gonna have one of those moments at oral argument when you ask a question and the attorney looks at you like you just admitted having once been a member of the Aryan Youth, “Your Honor, as we explained on pages 54-62 of our reply brief (unspoken subtext: “which you obviously did not bother to read”) that issue was resolved by Gazorninplat v. Felsbarger.”

In fact, as I sometimes get to explain to counsel, I may be asking the question now because I did read pages 54-62 of the reply brief, and I found them spectacularly unconvincing—especially since I wrote Gazorninplat and know what a stretch it is to apply it to this issue. I’m asking because I want to see if you have the nerve to make that cockamamie argument out loud.

But sometimes I just forgot the discussion at pages 54-62, or I read it at a point when—unbeknownst to me—my gray matter was saturated and no longer accepting input. On those occasions, I just have to suck it up and feel bad.

So feeling bad is part of the job. And it’s an even bigger part of the job when the wrong party wins.

Yeah, that happens. Of course it happens. You know that whole “nation of laws, not of men” riff? That means the jerks win sometimes.

Unlike Julian Fellowes and Aaron Sorkin, I don’t get to choose winners; I only get to announce them.

Another problem with the job is that it’s isolative. I’m locked in Rapunzel’s tower with a professional universe of seven colleagues and a couple dozen of our handlers.6

In the DA’s Office, I worked with hundreds of colleagues and I rode the thermals of a firmament populated by huge flocks of witnesses and attorneys. On the Superior Court bench, I had a Friday law and motion calendar that guaranteed me dozens of lawyers filling my chambers with tales of children and vacations and what “some crazy judge in Indio” did to them.

Here, I’m stuck with people who (a) actually know me, (b) have long-since heard all my stories, (c) are not obligated to laugh at my jokes, and (d) remember the dissent I wrote on their case last week.

They’re great people and terrific to work with, but I’m sure they sometimes share my feeling that we’re all trapped in some kind of bizarre version of Swiss Family Robinson Meets The Odd Couple.

But the aspect of the job people don’t think about much is its dangerousness. Consider the case of Ginsberg v. Northwest Inc.

Binyomin Ginsberg sued an airline because they kicked him out of their frequent flyer program for complaining too much.7 After losing in the federal district court, he appealed to the Ninth Circuit. Here is what it says under the caption of that opinion about which judges heard the case:

“Before: Mary M. Schroeder, (footnote 1), Robert R. Beezer (footnote 2) and Stephen S. Trott.”

What are the footnotes? Glad you asked.

Footnote 1 explains that, “Following the death of Judge Rymer, Judge Schroeder has been drawn to replace her on the panel.”

Footnote 2 says, “Judge Beezer authored and approved the amended opinion before his death.”

So just this one case took out two members of the Ninth Circuit.

And those people are tough! Have you ever appeared before a federal judge? I was once assigned to the courtroom of Andrew Hauk in Los Angeles. I bought stock in Kevlar©.

Federal judges are legendarily tough. If a single appellate case can take out two Ninth Circuit gunslingers, imagine what they could do to us statie sodbusters.

Our court decides about 1,500 cases a year. If you do the math, you’ll see that, statistically speaking, the odds are that I will be killed by one of my cases every six hours and twenty-six minutes.8

You had no idea the job was that risky, did you? You thought junior high substitute teachers were the bravest people you knew.

Nope. It’s us. We intermediate appellate types are the legal equivalent of chainsaw jugglers and Pentecostalist snake handlers. We take our lives in our hands every time we pick up a reply brief.

Death and the Supreme Court. That’s what we face every day. In the immortal words of the great legal philosopher, Tennessee Ernie Ford, “If the left one don’t get you, then the right one will.”

But, as I say, I plan to soldier on. I’ve been here for nineteen years and I think I’m starting to get the hang of it.

The job does not involve heavy lifting, and I am not required to handle snakes. With my skill set, that’s about as choosy as I can get. So unless God votes me off this island, I’ll see you next month.


  1. They also give me three terrific lawyers to help me with this stuff.
  2. You may not yet be able to explain why you read this column, but after all these years it must be clear to you that I have a helluva good time writing it.
  3. That’s including the Supreme Court, and my experience has been that they like to be included in stuff.
  4. Even if you were so inclined.
  5. Look it up; she’s been gone for twenty years, but her business lives on.
  6. Denominated “staff attorneys” by the state.
  7. Honest. He says they called him and told him he complained too much so they were terminating his membership. A word to the wise.
  8. Actually, if you do the math, you get a completely different number. But if you just read what I say and skip the footnotes, you get every six hours and twenty-six minutes. Another word to the wise.

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 william.bedsworth@jud.ca.gov. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.