June 2022 A Criminal Waste of Space - Been There, Done That

by Justice William W. Bedsworth

I am old.

That is not a lament, it’s a statement of fact. I offer it not as a complaint about the myriad petty indignities of the aging process with which I deal every day, but as a foundational fact for what I am about to say.

After seventy-four years, eight surgeries, three cancelled retirements, and sixty-one years of rooting for a baseball team that has rewarded me exactly once, I am having the time of my life. My life is so good, it’s starting to undermine my faith in a just God.

But it has not always been that way. And since the unhappiest time of my life was my first few years of the practice of law, I thought this would be a good forum in which to discuss that fact.

My target audience is new lawyers. The rest of you—including those of you who’ve been around this block often enough to know where the cracks in the sidewalk are—may already be familiar with what I’m going to say. You may not need to hear this. But it will still provide you an excuse to put off starting that Separate Statement of Undisputed Facts for a few minutes more, and that’s really all you ever expect from me, right?

I was sworn in as a member of the California Bar on a Tuesday morning and began my job as a deputy district attorney that afternoon. My job was to try misdemeanors.1

I lost my first jury trial. I hung my second. I lost my third. I hung my fourth.

In my own mind, I was 0-2-2. But in the eyes of the office, I was 0-4 and they’d never seen anybody go 0-4.

It was Orange County. Prosecutors wore white hats and rode Palominos. We had pearl-handled six-guns on each hip. The jury venire stood and applauded when we were introduced.

And yet I was 0-4.

My problem was I had somehow missed the class on jury selection. I had learned a lot about interstate commerce and conflict of laws and International Shoe, but no one had taught me how to pick a jury.

I’d just left three years in Berkeley. I was picking people I found interesting. People I thought I could make conversation with. “No kidding, you have shoulder-length hair, you work as a sous chef, your favorite author is Marcel Proust, and you’re 400 pages into writing an epic poem. Yeah, I’ll keep you.”

This strategy gets me to 0-4. Three days after I reach that milestone, one of the guys grabs me for our weekly Friday lunch at Shakey’s.2 We get there, and he picks a small table. I’m bewildered; Friday lunch is typically six to nine guys. “Oh,” he explains, “it’s kind of a funny day . . . everybody’s busy . . . trials, prelims . . . Long’s at the dentist . . . Gagnon’s getting a haircut . . . .” So the two of us eat lunch, and I never give it a second thought.

Until about a decade later. I’m at an office holiday party. I happen to overhear a conversation on the other side of a pillar from me. I listen in amazement for a few minutes and then stick my head around the pillar. “You’re talking about me, aren’t you?”

The guy turns white as rink ice. “Aw man, you weren’t supposed to hear that. You were never supposed to hear that.”

Here’s what I wasn’t supposed to hear. Here’s the secret my office-mates had vowed to carry to their graves.

While Gary Randall and I were wolfing down pizza at Shakey’s on that day when everybody was “busy,” our office mates, the other nine misdemeanor trial deputies, were “busy” in the office library, going through the following week’s Tuesday trial calendar picking out five cases NO ONE COULD LOSE.

They were applying fine-toothed combs to every police report, sifting through evidence, discussing the relative strengths and weaknesses of the 100 cases on calendar, calling police departments and victims to make sure all the witnesses were ready to go . . . picking the absolute five best prosecution cases out of those 100.

And on the following Tuesday, five of the most confused criminal defense attorneys you’ve ever seen showed up in my court, thoroughly confused and a little angry. All of them knew they had no case and had come in expecting to plead their client guilty and take the standard disposition for pre-trial admissions of guilt.

But that’s not what happened. As one of them told me, “I don’t know what the [blank]’s going on. Your calendar deputy refused to give me the standard deal and said I have to go to trial to get it.”

To which I responded, “Counsel, I’ve only been a lawyer for five weeks. I don’t know much, but I know I can’t undercut the calendar deputy. If you don’t take his offer, you come here for trial. I don’t have any discretion to deviate from that unless I have a problem with the case. Do I have a problem with the case?”

The upshot was I tried four consecutive dead-bang winners,3 evened my trial record at 4-4, and never looked back.

In hindsight, I can certainly see ethical questions in all this, but the legal world in 1972 was very different ethically, and those ten young lawyers—none of whom had been practicing more than eighteen months—did not see those issues. There was a tremendous battlefield camaraderie in the office, and they were determined to help out their teammate. End of story.

And after somebody clued me in on how to pick juries,4 I started winning tougher cases. I only lost one case after that.

That left just one problem: I didn’t like trial work.

I’m uncomfortable—in fact, I’m almost phobic—about meeting new people. I don’t like going to parties, weddings, conferences, etc. unless I know there will be people there I already know and can talk to. I refused to go on a cruise until they promised me I could eat meals at a table for two.

Well, jury trials are all about meeting new people. New witnesses, new attorneys, new judges, sixty strangers in the jury venire. It was a nightmare to me.

I sat around every Sunday keening over my weekend slipping away and forcing me to face a new week of trial work. I know the Lakers won their first L.A. championship in ’72 because I watched and listened to their Sunday night games while sinking deeper and deeper into the Sunday night blues. Those nights are seared into my memory.

I suffered through four years of that before they created an appellate section and moved me into it. There I began to thrive. “Horses for courses” is what they say, and appellate work was my course.

So what’s my point?5 Just this. If there are fifty ways to leave your lover, there must be a thousand and fifty ways to order your life after a law degree. And you don’t have to find the right one right away.

I know, your two best friends in law school had jobs when they walked onto the stage at graduation. You have six friends making huge salaries, and all they seem to do is carry a briefcase. You had a classmate who’s now writing screenplays and a half-dozen in academia. They’ve all found their niche, and you’re still Sisyphus pushing the rock.

Well, I would have been one of those people you envy my first four years of practice. I was a God’s-honest-truth trial lawyer. I was winning trials. I was making decisions about people’s lives. I had a house and a family. I was the American Dream: Casket-maker’s Kid Makes Good.

And I was miserable. I was desperately trying to be a surgeon when I was cut out to be a diagnostician. I was trying to be John Philip Sousa when my skills made me Franz Liszt. And I didn’t know it. All I knew was that I was not doing what I wanted to do, and I was unhappy.

I wasn’t Richard Cory.6 But my internal life was not as shiny as its external raiment. And I really wanted shiny inside.

Life takes a long time, folks. A helluva long time if you’re lucky. And there’s no reason to expect it to be all standing ovations and champagne.

If you sit at the table as long as you hope to, you’re gonna get dealt some bad hands. And you’re gonna misplay some good ones. You won’t be raking in chips the whole time.

Don’t expect to get the best hands early in the game. Hell, you don’t want them early in the game. You’ve got plenty of chips then; you can afford to be cold for a while. You want that hot streak to come later, when your stake is getting low, but you’ve matured and learned to play better. That’s when you want the good cards.

And they’ll come. Just like they did for me. If you work hard, treat people right, and trust in the powers of honesty and kindness, you’ll eventually start getting the cards. And you’ll know how to play ’em.

Nobody told me this. Nobody told me my childhood dream of living in Palos Verdes with the rich people was not going to be a yellow brick road. Because of this, I made some bad decisions.

Well, now somebody has told you. You’ll still make some bad decisions, but maybe not as many. Because now you’ve heard the happiest guy in the legal profession tell you the keys to your success will not be an encyclopedic knowledge of the law or a quick wit or the business card you were so pleased to get.

They’ll be kindness, honest introspection, and patience. Lots of patience.

You’ll get there. As long as you act like a grownup doing important work rather than a character in an L.A. Law episode, you’ll get there.

And you’ll have decades . . . decades . . . to enjoy it. Trust me on this one.


  1. Al Wells, a legendary prosecutor, once told me the key to being a good prosecutor wasn’t being smart or articulate but having good judgment. I asked him, “How do you get good judgment, Al?” He responded with a paraphrase of Disraeli, “By exercising bad judgment, Billy. That’s why God made misdemeanors.”
  2. We were males in our mid-twenties. Friday lunch wasn’t as much about food as about beer and bonding.
  3. One got a continuance because there were four trials ahead of him.
  4. “You’re a prosecutor. You want engineers and scientists and retired people. You don’t want psychology majors, you don’t want teachers, and you certainly don’t want people writing epic poetry.”
  5. Really? You expected me to have a point? How long have you been reading my stuff?
  6. I could explain this, but we’ve all got the internet, and the poem does a better job at making the point than I could. Richard Cory, by Edwin Arlington Robinson. Simon and Garfunkel turned it into a song.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.