August 2022 A Criminal Waste of Space - The Instant Replay Booth

by Justice William W. Bedsworth

I believe I am the only judge in California who has a piñata in their chambers. Certainly, I’m the only one who has a piñata of me in their chambers.

Years ago, there was a guy at the county fair who would make a piñata of anything for fifty bucks. My wife bought one. Of me.

It cannot surprise you that a woman who would marry me might also think having a piñata made of me would be a good idea. Both require a special kind of imagination.

I like my piñata. It’s a pretty good replica, right down to the silver-framed glasses I wore then and the cowboy boots I’ve worn most of my adult life as an homage to my dad. It’s about an inch shorter than I am, but then again it used to be two inches shorter; a few more years and the aging process will make it perfectly accurate.

I was thrilled to get it. I’ve received some great presents from Kelly during our quarter-century together, but this one I was particularly excited about. I thought I was gonna revolutionize the justice system with this one.

My plan was to have forty more made1 A modest expense. $2,000. Less if there was a volume discount, and I figured if I was selling piñatas at the swap meet I’d be happy to make a deal that involved a volume discount. So probably less than $2,000.

We’d have five piñatas made of every justice in my court.2 We’d hang one of each of us up outside the courtroom during oral arguments. Next to a row of Louisville Sluggers.

We’d put up a sign, “$50 per swing; Five swings, $200.”3 Attorneys leaving the courtroom would be given a chance to vent their frustrations on the appropriate justi.

We’d have made a fortune. The initial order of forty would disappear in a trice.

We would have spent awhile being the only court in the system that operated in the black. But not long. Soon every court in the state would have adopted my plan.

Attorneys would go home smiling. The state’s balance sheet would look better than Disneyland’s. The piñata industry would BOOM. Batting coaches would live in Shady Canyon. The only people who would lose in this deal would be the psychotherapists treating disgruntled lawyers.

But I couldn’t get another vote. To my amazement, none of my colleagues thought this was a great idea.

This is a not-entirely-unfamiliar experience for me. I’ve written a few dissents because I couldn’t get another vote.4 But this one seemed like such an obvious win/win.


And because my skills as an advocate were inadequate in this case, unsuccessful attorneys walk out of my court without their gruntles5 and with no satisfyingly violent psychological recourse. I feel like I’ve failed them.6

And there’s apparently a lot of disgruntlement going around. An attorney today began his argument by saying, “I know appellate courts try very hard to affirm the trial courts.”

That’s not entirely true. The system tries hard to affirm the trial courts. The appellate system has a heavy bias in favor of affirmance.

What I mean by this is that there are only three standards of review in the California appellate courts: abuse of discretion, substantial evidence, and de novo.

The first of these, abuse of discretion, requires that you convince us the trial judge inexplicably began knitting with only one needle when he/she reached this issue.

To rule in appellant’s favor on an abuse of discretion issue, we have to be convinced that no reasonable judge could have come to this conclusion. Honest. That’s the standard: no reasonable judge could have done this. As the great Glendale legal philosopher and manager of the New York Yankees Casey Stengel would say, “You could look it up.”

There have been many occasions in my twenty-five years on this court when I’ve said, “That’s not how I would have done it. I don’t like it, but it wasn’t my call, and I can’t say it’s unreasonable. I can’t say NO reasonable judge could have done this.” The law requires me to vote for affirmance under those circumstances.

The second standard of review is substantial evidence. Under this standard, appellant has to convince us there is NO substantial evidence in support of the judge’s ruling. None. Nada. Zilch, zip, zero. NO substantial evidence.

What evidence is “substantial” is sometimes in the eye of the beholder. But to get an idea of the problem the appellant has under this standard, match it up with CACI No. 107: “If you believe it is true, the testimony of a single witness is enough to prove a fact.” That one witness, that one piece of evidence, that one test result, can be substantial evidence. That one thing can be substantial evidence against you even if your case seems to you orders of magnitude stronger.

To win under this standard the appellant must make that piece of evidence somehow pale into insignificance. Often, this requires not appellate advocacy so much as transmogrification.7

The third standard is de novo review. This is the standard of review we get to apply least often. It’s the most favorable one for appellant because all counsel has to do is convince us he/she/it is right.

But even that is worse than a coin flip. You already failed to convince the trial judge you were right. That trial judge wasn’t picked out of a phone book; these are smart people. We DCA types spend a lot of time marveling at their ability to make a correct call in thirty seconds that we then struggle with for days.

You lost there, and now you need a best two out of three in the instant replay booth.

Ohio State had a legendary football coach named Woody Hayes. Woody’s teams rarely threw the ball. They succeeded year after year on the strength of their running game. It was derided as “three yards and a cloud of dust,” but it won.

When asked why his teams never threw the ball, Woody said, “Only three things can happen when you pass, and two of them are bad.”8

Well, there are three appellate standards of review in California, and two of them are bad for the appellant.

So it’s not that “appellate courts try very hard to affirm the trial courts,” it’s that the system set up by California law tries very hard to affirm the trial courts. We need to end these disputes somewhere, and the system is set up to assure that most of the time that somewhere is the trial court.

The old adage is true: The best way to win on appeal is to win in the trial court.

Don’t get me wrong. I’m not disparaging the decision to appeal.

Heck, I made a career of appellate practice. Of my fifteen years of practice, only three or four were spent in trial courts. And I’ve spent half my legal career here in the court of appeal.

We reverse decisions every month, and we approach each one with the understanding it could very well be one of those. But the majority of cases are affirmed, and it’s important that you evaluate your decision to appeal accordingly. Understanding the standards of review is vital to that evaluation.

I always told my appellate advocacy students, “There is no greater engine for doing good on the planet than the American legal system. And most of that good is done in the trial courts. But change . . . change lives in the appellate courts. If you want change, that’s where you have to go.”

Just understand that our ability to effectuate that change has limits.

If you don’t, you end up thinking we’re just “trying very hard to affirm the trial courts,” and you walk out without your gruntles, looking for a piñata to bash.


  1. I’ll pause here so you can make up your own Chinese terra cotta warriors joke and picture forty judicial piñatas lined up in a museum somewhere.
  2. Long-term planning with piñatas, though rarely done, almost always involves back-ups.
  3. Volume discounts. I didn’t want us to look less savvy than the piñata guy.
  4. Justice Wallin used to say all you needed to know to succeed on the Court of Appeal was how to count to two. Justice Crosby disagreed; he said all you needed was four pairs of Dockers (now it would be jeans).
  5. I haven’t actually looked this up, but it’s pretty obviously the end result of being disgruntled.
  6. So do they, but they feel I’ve failed them on the merits.
  7. Okay, a little hyperbolic, but I think it’s important to make this point. We don’t get to re-weigh the evidence on these. If the respondent has any substantial evidence, we have to affirm even if the appellant seems to us to have more substantial evidence.
  8. Completion, incompletion, interception.

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.