Is anyone else freaking out about the fact that half of the year is over? While we would all like to see 2020 in our rearview mirrors, we are only halfway there. The legal world still spins.
The Washington State Supreme Court has decided to ditch its pilot program of limited license legal technicians. Although the program was initiated in 2013 to provide access to justice in family law matters, this noble experiment has bit the dust. The court found that the juice was not worth the squeeze, given the program costs and the small number of “interested individuals.” The program will sunset next year.
The court’s decision was not unanimous. Justice Barbara Madsen wrote a scathing dissent, stating that the court’s decision ended a “completely viable licensing category that the public can draw on.” Not done, she made it clear that courts have an obligation to end racial disparity and that the court’s sua sponte decision to end the project, an effort to address access to justice in race and income, was a step backward.
Is the court’s decision an example of not walking the walk? What about the fate of other, similar projects across the country? What does this decision mean for California, which is taking its first tentative baby steps toward a similar project? To be determined.
Remember the furor several years ago when a judge in Northern California sentenced a young male defendant to a six-month sentence for sexual assault? Outraged county voters recalled Judge Aaron Persky in June 2018. Judges should be free to decide without fear or favor, which was what he did and with which the citizenry disagreed.
The Canon of Judicial Ethics precluded Persky from defending his sentencing as judges have long been prohibited from speaking publicly about pending cases. After Persky’s recall, the California Supreme Court solicited public comment as to whether judges should be able to comment upon pending cases if they are criticized about their decision in a case and they are up for re-election or recall. Given the proliferation of social media and the increasing level of vitriol in public forums, incumbent judges have had no way to defend themselves, and bar associations, which have tried to play a part in defending judges, have had little to no impact. Who cares what bar associations think? Precisely.
So, effective today, the California Code of Judicial Ethics has been amended to provide, among other things, that judges can speak publicly about a pending case if they are criticized for a ruling during a recall or re-election campaign but only if the public comment would not reasonably be expected to affect the outcome or impair the proceeding’s fairness. Would that have made a difference in the outcome of Persky’s recall? Your thoughts?
To appear or not to appear? That is the question (sorry, Hamlet). It’s the question troubling lawyers these days as they decide whether to go to court to argue a motion of one sort or another. The Italian American Bar Association here in Los Angeles recently had a Zoom presentation with both the presiding judge and assistant presiding judge of the Los Angeles Superior Court.
While neither of them would come right out and say so, my sense is that they would much prefer that attorneys appear remotely.
We all grew up as lawyers being told that appearing in person was critical. The court would see you; you would see the court and whether the judge was frowning, smiling, smirking, or eyes glazing over while you argued. If you decide to go to court these days, the only thing to be seen will be the eyes, as being masked in court is mandated, at least here in Los Angeles County. So, how much body language do you glean from eyes only? What if the court doesn’t make eye contact and is reading a file (not necessarily yours)? What’s the message?
We were also told that if we didn’t physically appear and just submit it on the pleadings filed in the case that showed we didn’t really care about the outcome (au contraire), and thus we forfeited our chance to make the compelling argument that wins the motion. How many times have we all heard “Counsel, do you have anything to add that is not in the papers?” Gulp.
Times sure have changed from those days. The angst that lawyers feel about what to do is perfectly understandable: what will the client think if you don’t appear in person? What will the court think? Will opposing counsel think that she has you on the ropes? Both the presiding judge and the assistant presiding judge made it clear that the number of times in which they changed their tentatives was negligible compared to the number of motions that they have heard on the bench. Do you pick up any clues here?
How about this clue? In its most recent news release, the court said its “remote technology options promote social distancing by reducing the number of people appearing in person.”
Consider how high the stakes are in looking at making the physical courtroom appearance: the ruling on the issue as it affects the case, your health, your client’s health, and the safety and well-being of the court and staff. High-stakes decision or low? Not an easy call.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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