by Justice William W. Bedsworth
My wife is a civil lawyer. I am a criminal lawyer. We are living proof that mixed marriages work.
Civil lawyers and criminal lawyers are as different as chipmunks and whales. Forget racial, ethnic, and religious differences, civil-criminal marriages are the great-dane-and-chihuahua of relationships.
I think our backgrounds have led us to totally different outlooks on life. I spent the first twenty-four years of my career dealing with robbers, rapists, and thieves. I developed a warped view of human nature of the type forensic psychiatrists talk about: when all you see are the dregs of humanity, you begin to regard them as the norm.
My level of expectation of my fellow man is summed up by Alexander Pope’s aphorism that “he who expects nothing shall not be disappointed.” When I read headlines announcing “Scumbag Defrauds Elderly of Millions” or “Gangster Bullet Kills Honor Student,” I shake my head and mutter, “another day at the office.”
Kelly, on the other hand, suffers on those days. It makes her angry and sick to her stomach. She’s not naïve enough to expect the best of her fellow man, but reminders of just how low he can go genuinely upset her.1
Sure, there are sharp practices in civil law. But at least you rarely have to encounter felonies.
Which is good, because Kelly couldn’t handle it. Kelly is less cut out for a life of crime than anyone I’ve ever known. She insists her lack of a criminal record is the result not of any great moral fiber but out of an unshakeable conviction that if she committed a crime, she would get caught. She’s not ethical so much as cowardly.
And if she somehow avoided detection, she would spend two of the most miserable weeks of her life holed up in a dark corner worrying about getting caught. Then she would march into a police station, extend her wrists for the handcuffs, and confess. “That car that drove onto the shoulder and knocked down a trash can on Elm Street last month? That was me.”
I, on the other hand, have a completely different approach. When I read about someone whose scam has collapsed after twelve years of selling non-existent vending machines to elderly investors in Sri Lanka, my first questions are, “How did he pull this off? How can you sell non-existent machinery for twelve years? How did he get caught? Could I have done this better than he did? Why Sri Lanka?”
Oh, I move on to moral outrage. You would not want me sentencing your guy if he’d defrauded a bunch of elderly investors.
But I don’t get there as fast as Kelly, and I don’t feel like humanity has let me down. Humanity in these cases has been as venal and unprincipled as I expected it to be. I express a short prayer that this guy2 will draw a judge whose nickname is “Maximum John” and then move on. Kelly suffers with it all day.
So help me, if I knew where to resign from this species and join up instead as a springbok or a cheetah, I’d do it. When the aliens land, my primary emotion is not going to be excitement or fear; it’s going to be embarrassment about having to admit that I belong to this group of animals.
I think all those years arguing about whether three of the thirty-six rape charges alleged against the defendant should be dismissed; whether his confession to shooting up those poor people at the church fell within Oregon v. Ellstad or not; whether anybody who had stabbed someone forty-six times and then dismembered the body could be considered sane . . . I think all those hearings made me not callous, but calloused. I developed a rough spot on whatever part of my brain reacts to such things, and that rough spot continues to protect me, even though now I only have to read about those victims, rather than see them in the courtroom.
That was one of the advantages of my one year as a civil trial judge. I spent that year without having to read about a single horrific crime. No police reports, no autopsy photos, no victim statements, no decisions about who goes to prison and who gets “one more chance.” It was probably the first year of my journey toward mental health.3
And, in fairness to my wife’s continued high expectations of human nature, that golden year came about as the result of an act of kindness.
Ted Millard was the newly-installed presiding judge of the superior court that year. He called me down to chambers and told me he was aware I was trying to get to the court of appeal. He said he and Judge Brown4 had discussed it and thought my lack of civil experience could be a hindrance.
So they had created a position for me. He was going to move me out of criminal trials and assign me to a civil trial court.
But this wasn’t going to be an ordinary civil trial court where your caseload outnumbered the citizenry of a medium-sized city. This wasn’t going to be a civil trial court where you had a law and motion calendar and therefore had to actually know some civil law.
No, this was going to be an overflow civil trial court, where all the judge did was try lawsuits. “Counsel answer ready and there’s no place to send them,” he explained, “we send them to you. All you do is try cases, five days a week. By August, you’ll be a highly experienced civil judge with more civil trial experience than people who’ve been doing it for years.”
Sounded great to me. The Evidence Code is the same for civil and criminal trials. Sounded like something I could do.
So we did it. I loved it.
What I didn’t understand, but Ted and Myron did, was that I unwittingly became the greatest settlement tool in the history of civil calendars. Here’s how I envision the calendar calls that year:
THE COURT: Gazorninplat Systems v. Maffufnik Micro.
COUNSEL: Both sides are ready for trial, Your Honor.
THE COURT: Time estimate?
COUNSEL: Six weeks, your honor.
OPPOSING COUNSEL: More like eight, Your Honor. This case was sent here from Dept. 21 because Judge Smith is already engaged in trial and had no place to put us.
THE COURT: Well, I do. It’s your lucky day, counsel. Judge Bedsworth is open for trial. Judge Bedsworth is an ex-prosecutor with no civil experience whatsoever and probably wouldn’t know a microprocessor from a Nash Rambler.
And, as an added bonus, he is open five days a week, so you won’t be taking Fridays off to prepare and handle other matters. You’ll just go in day after day and put on witnesses until you’re done. At that pace, I’m confident you can have it done in four weeks. Maybe five if you have to be hospitalized mid-trial.
COUNSEL: Your Honor, did you say NO civil experience?
THE COURT: Not a whit. The last time he dealt with civil procedure was 1969, in his first year of law school. And he was an English major, so you’ll have the opportunity to write on a blank slate with any technical issues.5
COUNSEL: Your Honor, could you please put us on second call? We’ve been unable to settle this case in the five years we’ve been working on it, but under the circumstances, I think there’s a chance we might yet be able to break through and reach a settlement if you’d give us another fifteen minutes.
THE COURT: Very well. You’ve got fifteen minutes.
Next on the calendar is Englespoofer v. Laguna Humeda Water District, et al. Ah, I see four, no five attorneys on this? Wonderful. As you’ve heard, I have Judge Bedsworth available for my new rocket docket; we’ll have your case tried in no time.
COUNSEL, COUNSEL, COUNSEL, COUNSEL, and COUNSEL (IN UNISON): Second call, Your Honor! PLEASE!! We think we might have a settlement if we can just have a few minutes.
THE COURT: Great news. Figowitz v. Stanapopulos, M. D., still a four-week time estimate on this counsel?
COUNSEL: Uhh . . .
I didn’t buy a lunch the whole time I was on that assignment. The other civil judges insisted I be their guest.
And the civil attorneys were wonderful. The few who bravely came to my court treated me like a hot-house orchid. They were as kind and helpful as they could be. They had briefs for everything. If I expressed uncertainty about what time we should reconvene the next day, they offered to brief it for me.
And they rarely objected. They’d been nursing these cases for five years. They knew what they could keep out and what was coming in, and they didn’t want to unduly highlight the bad stuff with a series of unsuccessful objections that would just pique the jury’s interest. I could have done sudokus on the bench.
Unlike the prosecutors, they had no sense of entitlement. And unlike the public defenders, they didn’t regard the bench as just another arm of their enemy, the state.
It was sometimes hard to get their egos into the courtroom; mine takes up a lot of the available space. But other than that, it was the most pleasant and low-key trial experience of my life.
I suspect those civil lawyers get up each morning and, like Kelly, are horrified by what they read in the paper. Me, I don’t pay close attention to the news. I’m too busy looking for ads promising species reassignment.
BEDS NOTES
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.