by Justice William W. Bedsworth
Justice Tom Crosby, who graced our court from its inception in 1981 to his retirement in 2001, used to say the primary requirement for appointment to the court of appeal was owning at least four pairs of Dockers.
When I first came to the court on assignment in 1994, he came into my office one day and announced, “You’ve worn a tie three days in a row; if you wear one again tomorrow, we’ll cut it off.”
As a joke, I came in the next day in a Hawaiian shirt.1 Crosby stuck his head in, laughed “Much better!” and disappeared. A few hours later, Justice Ed Wallin complimented me on my shirt.
Hey, I was there on assignment; I was temporary help. I figured, “Hell, if that’s what they want . . . .”
I went out and bought three more Hawaiian shirts. So I’ve been wearing Dockers and Sig Zanes since I first got here.
The sartorial tradition of our court has always been one of informality.2 We are on public display for only one week a month, during oral arguments. The rest of the time we are in our offices researching and writing.
We never have clients come in, never meet with counsel, never get called to unexpected meetings or court appearances, so our dress code—except for oral argument week—is more relaxed than that of our colleagues on the trial bench or in practice.
Dockers and equivalent attire are pretty much standard operating procedure for us.3 But they are most assuredly not the primary requirement for the job.
The primary requirement for the job is a willingness every month to go through the physical and intellectual steel-cage mud run that is oral argument. I do not yet have plans for retirement,4 but when I finally throw in the towel, it will probably be on the Friday before oral argument week.
That probably surprises you. To you, we look like seagulls on a pier, differentiating ourselves from the birds only by occasionally looking down at our notes or asking disappointing questions about something you covered completely and convincingly in your irrefutable brief. How tough can that be?
Well . . . tougher than sitting on a pier.
What you don’t see is our little seagull brains churning away as we try desperately to follow your argument.
I hear about seventeen oral arguments a month. Sometimes as many as nine in a day. So a big part of the job is just keeping the cases straight in my mind.
Last month I had five anti-SLAPP motion appeals for oral argument. At the same time, my staff and I were working up two more. So I was trying to keep the facts straight on seven anti-SLAPP cases at a time. That’s a lot of similar-looking balls in the air.
And anti-SLAPP motions are a trainwreck in a blizzard, anyway. I’ve never had a case involving an anti-SLAPP motion that I haven’t had to diagram. And unlike the attorneys, I have no faces to attach to the names in my diagram. All the horses are brown in this race, and all the jockeys are wearing blue.
So regardless of how well I know the law pertaining to anti-SLAPP motions, no matter how assiduously I’ve reviewed the briefs and the cases,5 I won’t be able to get through oral arguments on just those five cases—less than a third of my calendar—unless I can remember the roles of Fox, Isaac, Markkanen, Ntilikina, Smith, Collins, Monk, Kennard, Mitchell, Jackson, Adebayo, Patton, Wilson, and Leaf in their respective matters.
When I can do that, I’m ready for those five cases. Now let’s move on to the other twelve.
The other twelve will include several criminal cases. I used to know criminal law really well. Then they gave me this job. “You’ve done such a marvelous job as a pediatrician that we’re going to have you take over obstetrics, surgery, ophthalmology, oncology, podiatry, acupuncture, architecture, klezmer, and all the hospital’s janitorial services.”
Now I have to study for finals in all those disciplines every month. The transition from being a specialist to being a generalist is hard on both the ego and the sleep schedule. When I was a prosecutor, I was a hell-on-wheels 4th, 5th, and 6th Amendment gunslinger. Now I have to spend half the night looking up Miranda cases I used to be able to recite as easily as Eagles lyrics.
And I have to hear anti-SLAPP cases without yelling at anybody.
I have to know a lot more stuff than I used to. The other cases on my calendar will include a trust war the family members have been fighting since Eisenhower signed his enlistment papers, two divorce cases the parties will continue fighting over until Jared Kushner signs his, and a case involving a tort that didn’t exist until a law review article analyzing a footnote in a decision filed by the Seventh Circuit six months ago.6
There will also be a case involving obscure but critical regulations in an industry I did not even know existed. “Really? We have regulations that limit the amount of fish oil that can be combined with avocados in skateboard lighting grease?”7
And there will be a case in which both sides were granted leave to file over-long briefs and now estimate thirty minutes each for oral argument. They will use every minute of the time arguing the appellate issues generated by a case for which there is no statement of decision because it only took one day to try.
Don’t misunderstand me; I bear no ill will toward those who bring anti-SLAPP actions—or, for that matter, those who defend them. My beef is with the legislators who devised this cruelly Byzantine collection of legislative vagaries.
Nor do I begrudge the trust and divorce parties or any of the others their day in court. Heck, I must love this stuff or I wouldn’t still be here. What I resent is that they keep coming up with harder and harder issues.
I don’t know, maybe it’s just that my mind was nimbler twenty years ago. But so help me—and I have confirmed this with several appellate colleagues—the lawyers’ ability to conjure up opacity from mere turbidity has begun to outstrip our feeble efforts at clarification. The number of cases that are mind-bendingly difficult seems to be growing geometrically while my brain cells are multiplying only arithmetically.8
I’m willing to accept the evolutionary fact that each generation is smarter than the one before, but it bugs me to have it demonstrated by an increasing number of briefs every month. Folks, the case load may not be growing, but the difficulty of the case load most definitely is.
And when I take the bench for oral argument, I know I am the last line of defense for these parties. The Supreme Court grants a hearing on less than 2% of our cases. So I have to fully understand the briefing and the law.
I have to understand what happened, what each party thinks is the significance of what happened, what the trial court thought and said about the significance of what happened, what the law says about the significance of what happened, and why the party about to lose is wrong about one of those things.
And if they say anything to undermine my confidence in that understanding—to even the slightest degree—I have to come up with a question whose answer will either reassure me or drive me back into the books.
I remember vividly, as a little boy, asking my father one day if we could go to the movies. “No, Billy,” he replied, “I’m too tired.” I was mystified by that. I spent a long time asking myself, “How can you be too tired to go to the movies? All you do is sit there and watch.”
Now I understand. I do not go to the movies during oral argument week.
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 firstname.lastname@example.org. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.