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Monday, June 21, 2004

20 Questions for Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three: "How Appealing" is so very pleased that Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three, has agreed to participate in this Web log's monthly feature, "20 Questions for the Appellate Judge."

Justice Bedsworth was born in Long Beach, California in November 1947. He earned his bachelor's degree cum laude from Loyola University of Los Angeles in 1968 and his law degree from the University of California at Berkeley (Boalt Hall) in 1971. Following law school, Bedsworth joined the Orange County District Attorney's Office, where he served as a line deputy, felony trial deputy, appellate attorney, and finally as managing attorney in charge of the office's appellate division. While serving as a prosecutor, he was twice chosen as president of the Association of Orange County Deputy District Attorneys and twice elected to the Board of Directors of the Orange County Bar Association.

In 1986, Bedsworth was elected to fill an open seat as a trial judge on the Orange County Superior Court. He was reelected in 1992. In February 1997, Governor Pete Wilson appointed Bedsworth to the California Court of Appeal. Voters retained Justice Bedsworth in 1998 for a term that will expire in 2010.

Justice Bedsworth's always very funny monthly column, "A Criminal Waste of Space," appears in over a dozen publications. American Lawyer Media has just published a collection of those essays in a book titled "A Criminal Waste of Time," making Bedsworth the author of two books. And if all that were not enough to keep one person fully occupied, Justice Bedsworth also serves as a National Hockey League goal judge at all Mighty Ducks home games and at selected road playoff games.

Questions appear below in italics, and Justice Bedsworth's responses follow in plain text.

1. You first came to my attention as a result of your wonderfully entertaining monthly column, "A Criminal Waste of Space," published in the Orange County Lawyer Magazine and now syndicated nationwide via American Lawyer Media. When did you begin the column, and, beyond your tagline of "He writes this column to get it out of his system," perhaps you can explain more fully why you began the column and have continued to write it? Has the success of your column come as a surprise to you? Do you feel any pressure to make your opinions as entertaining as your columns (or vice versa)? Finally, does it cause you any concern that you may be better known nationwide due to your hobby as a columnist than because of your day job as an appellate judge?

Thank you for the kind words. I really do write the column to "get it out of my system." I've always enjoyed making people laugh, and it's become a big part of my ego support system, but I've chosen professions that don't allow for much laughter, so the column serves as a safety valve. It keeps me from writing, "Your $3 million judgment is reversed, but did you hear the one about the nun and the rabbi and the parrot?" If you keep that in mind, it's less surprising that my opinions are rarely intentionally funny, something I hear remarked upon often.

I've been writing the column since 1981. It helped get me elected to the bench after I turned out to be way too conservative for an appointment by democrat governor Jerry Brown and then way too liberal for appointment by republican governor George Deukmejian. A lot of local lawyers I'd never met told me they supported my election because they were willing to take their chances with me after reading the column.

Governor Pete Wilson's appointments secretary asked for a copy of my first book while I was under consideration for this job, and later told me he enjoyed it. And I've met a lot of very nice people through the column. So, while it sometimes bothers me, it would be churlish to gripe that people think of me more as the guy who writes the column than the guy who wrote the gay jurors opinion or the lawyer malpractice opinion or any of the others I�m proudest of.

And yes, its success surprises me. Every month.

2. What qualifications must someone possess to serve as an NHL goal judge, when did you first become involved in the sport of hockey and begin serving as an NHL goal judge, and how many games do you typically work during the NHL regular and post seasons? In what ways do you wish your work as an appellate judge was more like your work as a goal judge, and in what ways do you wish that your work as a goal judge was more like your work as an appellate judge?

The goal judge job is a lot like my day job: You're expected to start out perfect and then improve with experience.

Judging is judging. Both jobs require me to show up, pay attention, and give my opinion. The main difference is that if I make a mistake in an opinion, the Supreme Court lets me know about it a couple of years later, and only a small number of colleagues and practitioners know about it (Supreme Court reversals do not include the names of the appellate panel); if I make a mistake at a hockey game, videotape replay determines it immediately and it is announced via loudspeaker to 16,000 beer-drinking fans.

3. Would hockey fans be correct in thinking -- in an age of four on-ice officials, instant replay, a replay official, and cameras in the goal -- that technology already has or is about to make the position of goal judge obsolete? And on a related note, in your letter opposing proposed Federal Rule of Appellate Procedure 32.1, you were critical of lawyers who would substitute technological skill for good, old-fashioned legal reasoning. Do you foresee a time when technology might likewise threaten to make appellate judges obsolete, and what are your concerns and/or predictions in that regard?

Wow, that's a lot of ground to cover in one answer. The goal judge's job is already obsolete. The on-ice officials and videotape replay can do it 99% of the time. The only reason it still exists is political: America has already hijacked the NHL from the Canadians (Winnipeg and Quebec City lost franchises they supported handsomely to Denver and Phoenix, and the western Canadian teams are hanging on by their financial fingernails), and they're understandably touchy about any changes made in "their game." Tradition includes goal judges, so the NHL includes goal judges. But probably not for long.

The second half of your question defies segue, so let me just say my position on FRAP 32.1 was not a Luddite one. I am very much in favor of technological skill in advocacy and technological advancements have made my research much easier and -- I hope -- much more complete.

What I am opposed to is a system in which there are literally hundreds of citable opinions on any issue, and attorneys and judges are reduced to searching all of them -- and presumably billing their clients for that search -- for the one that is "on all fours," rather than finding the best-reasoned opinions from a much smaller sample, and explaining to a judge why they're the best reasoned, why the differences between them and the instant case should not be determinative, and why the result of their application is wise and just. I feel the system is better served if there are five citable opinions and all the parties have time to analyze and consider them, than if there are 105 and all we argue about is which ones are closest to being exactly the same.

Reasonable minds will differ.

4. There was a time when California's state courts were perceived throughout the Nation as a source for wacky legal rulings, in the same way that some today perceive the U.S. Court of Appeals for the Ninth Circuit. Based on your more recent experiences traveling outside of California, have you found that California's state appellate courts are today perceived more favorably than they once were, and if so to what do you attribute that change in perception?

Plaintiff's "wacky" is often defendant's "visionary." That hasn't changed. It's largely a matter of whose ox is being gored. But when I spoke in Alabama a few years ago, I told them I recognized it as an historic occasion. It was, I am reasonably sure, the first time anyone from Alabama had ever asked anyone from California for his opinion about anything.

5. Division Three of the Fourth Appellate District has been called the most liberal Court of Appeal in California. What was it like for you, a former prosecutor appointed to that court by a Republican governor, to join an appellate court that had been dominated by appointees of Governor Jerry Brown? And do you think that the press and the public have an inaccurate understanding of the role that politics plays in the decisionmaking process of an appellate court, and if so what role does politics play, and what role should it play?

The more I try to deal with these questions, the more impressed I am that your earlier interviewees were able to be so concise. I'm not.

I guess the best way to answer your question is to tell you that my two best friends on this court in my first five years were Dave Sills (a moderate Republican once married to Maureen Reagan) and Tom Crosby (a fire-breathing liberal whose depth of commitment made Bill Douglas look wishy-washy). We sat on at least a dozen cases a month together and in five years I ended up on the opposite side from Crosby ten times and on the opposite side from Sills eleven times. And my most recent reversal by the state Supreme Court was a premises liability case in which I wrote an opinion in which a democrat sided with me enthusiastically and Sills wrote what the pundits like to call a "stinging dissent." Regardless of personal politics, our job is to determine what the law is, not what we want it to be.

While we have a long history in this country of making fun of legislators, they have access to a lot of expert opinion, they generally try hard, and most of what they do makes sense -- regardless of your politics. So the political makeup of a panel at the intermediate appellate level is seldom critical. The reason that seems counter-intuitive is that the occasions when it is critical tend to be spectacular.

6. Division Two of the Fourth District has received nearly uniform raves for its practice of issuing tentative opinions before cases are argued. What are the pros and cons of this practice as you see them, why has Division Three, on which you serve, not adopted the practice yet, and do you think that Division Three should or will adopt the practice?

It would be inappropriate for me to comment on the administrative procedures of another court. They have developed a unique system. Having never appeared in or sat on their court, I would be among those least qualified to comment on it.

7. Under California law, parties on appeal are entitled to oral argument as a matter of right. As an original matter, would you prefer a system in which the litigants determine their own entitlement to oral argument or in which the decision whether to argue a case resides with the judges assigned to decide the case, and why? Also, in what percentage of cases do you find oral argument helpful to the decisionmaking process, and in what percentage of cases has oral argument caused you to change your vote on the outcome of an appeal?

Oral argument is the hardest and least productive part of my month, and if I were left to apportion it out, I'd likely deny it to some parties who should have it. "The spirit is willing, but the flesh is weak." So the parties should decide whether they want argument. (See, People v. Pena (2004) 32 Cal.4th 389 [right of appellate litigants to argue].)

And, at the risk of being branded a quisling by my colleagues, I strongly advise against waiver of oral argument unless you're just flat out no good at it. I can't give you a percentage, but I know there are a lot of cases (keep in mind, I hear 30 a month) in which oral argument changes the outcome. It may not be a reversal-to-affirmance change. It may be something less significant. But after all the work you've put into getting to the Court of Appeal, even a small victory is better than none at all.

8. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Benjamin Curtis has been lost in the history of the United States Supreme Court because he was there only a short time (1851-1857) and wrote nothing historic. But I can't think of any jurist whose record I consider more admirable. He not only dissented from the Dred Scott opinion, but felt so strongly about the injustice of the opinion that he resigned from the court. That redefines "strength of character" in my book. A decade after leaving the Court, he served as defense counsel at Andrew Johnson's impeachment trial, another job ill suited to the faint of heart.

This is a guy who clearly did what he thought was right and let the devil take the hindmost. I'd be prouder of either of those actions than anything I could write.

9. How would you describe the typical quality of the appellate briefs that you receive, and what advice do you have for lawyers on how to improve their briefs and make them more useful to the court?

The "typical" quality of the briefs I receive is good. I put "typical" in quotation marks because the quality varies so much in civil cases that it's hard to generalize. In criminal cases, both sides are represented by appellate lawyers: the Attorney General's staff and -- usually -- our appointed appellate panel, so the quality is pretty uniform. But in civil cases, we get work that runs the gamut from brilliant to wholly inadequate. And since my civil background has been developed entirely as a bench officer, those latter are very hard for me to deal with effectively.

10. The California Board of Legal Specialization is authorized to certify lawyers as "appellate specialists." In your experience, is the appellate work of lawyers who have qualified as certified appellate specialists superior to the work of lawyers who have not so qualified? And, more broadly, what is the purpose of allowing such a specialization, and do you believe the purpose is being achieved?

Our state's certification process for appellate specialists is meant to address the concerns voiced above. Any lawyer should be able to write an adequate brief. But just as you would expect an antitrust specialist to handle antitrust issues better than a probate lawyer, you expect appellate specialists to write generally better briefs than non-specialists. And, they tend not to misstate the standard of review or miss deadlines. I'm generally in favor of specialization for professionals, although I've seen brilliant briefing and advocacy by non-specialists.

11. How would you describe your own judicial philosophy? And would it trouble you more to apply a rule that you believe is generally just but that in the case before you produces an unjust result or to apply a rule that you believe is generally unjust but that produces a result in the case before you that you believe to be correct?

I wasn't elected to make laws and I wasn't elected to pass on their wisdom. My job is just to figure out what they say and decide whether that violates a constitution. If I had wanted to change the laws or make the world a better place, I could have run for the legislature. Having not done so, my ability to change what they do is limited to lobbying and grousing. If I forget that, I violate the trust reposed in me and I make myself and everyone else very unhappy.

I believe the law rarely leads to an unjust result if properly applied. If my analysis of the law leads me to an unjust result, I go back to square one and try to make sure I didn't do something wrong in interpreting or applying it. If it's still unjust, I have a responsibility to say so in my opinion, but I cannot change the holding. I don't get to change the law just to arrive at what I perceive to be a good result in an individual case. I hate it when that happens, but I'm paid well to swallow hard and follow the law.

12. What opinion or opinions that you have written as an appellate judge do you find most memorable? And what is your track record in cases where you have written an opinion and the Supreme Court of California has granted review, and what if anything does that track record reveal?

I'm not sure what my track record is in our Supreme Court and would consider it a waste of time to find out. Offhand, I can think of two I won and three I lost, but those only come to mind because they were cases I cared a lot about; I'm sure there have been others I'm not recalling.

I'm in an intermediate court of appeal. I take my best shot at getting it right and move on. If I start worrying about whether our Supreme Court will agree with me, I not only complicate my work, I pollute it. Wilt Chamberlain was quite proud of never having fouled out of a game. Having watched -- and rooted for -- Wilt, I can tell you that once he got five fouls, he was useless defensively because he was less interested in winning than he was in not fouling out. Like Wilt, if I worry too much about being whistled down, I fail to do my job.

While I hate to make mistakes that cost the state and the parties time, money, and energy, I'm paid for my opinion. And if I don't give it -- if I start worrying about whether the Supreme Court will agree or disagree -- I short-change the people who entrusted this job to me.

Besides, as Tom Crosby used to say, "All my best work gets reversed." I'm especially proud of a case I wrote five years ago, defending the right of the court to control the grand jury. But the prevailing party imprudently argued it to the California Supreme Court as a case extending the right of the press to access to grand jury information and it was reversed. If you try to anticipate and prevent that kind of thing, you'll lose your mind.

In addition to that opinion and the recent premises liability reversal mentioned above, I am probably proudest of my opinions in People v. Garcia (2000) 77 Cal.App.4th 1269 [gay or lesbian jurors constitute a cognizable class whose exclusion from the jury venire resulted in a jury which failed to represent a cross section of the community] which prompted a change in California law (See Code of Civil Procedure � 204; "It is the intent of the legislature to codify the decision in People v. Garcia") and People v. Perez (1998) 30 Cal.App.4th 900, which included a footnote I'm told has kept a lot of people with Hispanic surnames from being unjustly incarcerated.

I'm not in the job to leave a legacy; I just want to get as many as possible right. I don't publish much because I believe we already have so many cases on the books as to make the law unwieldy. But every so often you turn out something requiring publication that you're particularly fond of for one reason or another. "A small thing, but mine own."

13. What qualities do you look for in deciding whom to hire as a law clerk, and what qualities or traits other than a strong academic background are important to you?

Our research attorneys are not newly minted lawyers, but career employees. That's one of the strengths of California's system. When I have a question about the real world consequences of an opinion I've written in an area of the law I did not practice in, I can usually find a staff lawyer with the background to help me. The lawyers primarily responsible for educating me include one who was a successful civil litigator for a dozen years, one who taught law at Wake Forest and USF, and a former law review editor who was a criminal practitioner for seven years. My hope is that I won't have to hire any others because these three are dynamite.

We bring aboard volunteer externs from law schools year-round. The primary criteria are good grades and an impressive writing sample.

14. Notwithstanding your opposition and the opposition of many other judges and lawyers based within the geographical boundaries of the U.S. Court of Appeals for the Ninth Circuit, the Advisory Committee on Appellate Rules of the U.S. Courts voted 7�2 in favor of a proposal that would allow citation of non�precedential rulings to all U.S. Courts of Appeals. Did the committee's action, or the margin of the outcome, surprise you, and if so why? Don't the uniformly positive experiences of those federal appellate courts that have already been following the proposed rule demonstrate that concerns about the rule are overblown? And what role if any did Ninth Circuit Judge Alex Kozinski play in recruiting you to write in opposition to the proposed rule?

I was not surprised by the vote on Proposed FRAP 32.1. I don't have enough information about what's going on in the federal courts to be surprised. As for Alex Kozinski's role in my involvement, if you see your neighbor trying to put out a fire, your instinct is to reach for a hose. I reached for a hose.

15. On a somewhat related note, how did you achieve the good fortune of having Judge Kozinski write the introduction to your new book, how are sales of the book going, and is the book available for purchase at bookstores or is it only offered for sale online via law.com?

The book -- thank you for asking -- is going well, at least by my standards, which pretty much boil down to having someone who does not share my surname read it. It can be purchased at Amazon, though they swallow up a lot of the profits, or online at law.com. We should be getting it into some law school bookstores in the near future.

Alex Kozinski wrote the foreword because I asked him to. Although I've never met him, he seems to be a very nice man.

16. You have served as both a trial court and an appellate court judge. What aspects of each judgeship did you find preferable? And if the President of the United States were to call and offer you the choice between being nominated to serve on the federal district court or the U.S. Court of Appeals for the Ninth Circuit, which job would you prefer, and why?

I loved being a trial court judge. In exchange for calling "safe" and "out" occasionally, I got to watch some great ballgames for free. I got to associate with lawyers on a regular basis and I got to do work I thought was important. That's a good deal. And I thought I was good at it, which is critical to job satisfaction.

But the job of an intermediate appellate court officer is absolutely the best one in the system -- especially if you like to write. You have time to wrestle with the really difficult issues and staff to help you. You don't have a jury waiting in the hallway while you try to pull legal rabbits out of factual hats in twenty minutes or less. And you have two colleagues working with you on every case and a state Supreme Court acting as your backstop so you don't have to chase down every ball you miss.

You're apparently the only person interested in me for federal court. Which is just as well. At my age, I couldn't hack the learning curve.

So I'm here for the duration; they'll have to hire someone to haul me away.

17. Speaking of the Ninth Circuit, what is your view on whether that federal appellate court is too large and therefore should be divided into two or more smaller circuits? And what are your views on a proposed division of the Ninth Circuit that would put northern California under the jurisdiction of a different federal appellate court from southern California?

As a general rule, northern Californians are in favor of anything that will separate them -- physically, emotionally, procedurally, substantively, or metaphysically -- from southern Californians. Those of us down here in socal don't feel that way. I'm no exception. I don't see a need for breaking up the Ninth Circuit, but -- inexplicably -- you're the only person who seems to care how I feel about it.

18. Prosecutors often remark that sometimes their worst enemy on the appellate bench is an ex-prosecutor. (The "we never did it like that when I was a D.A. syndrome.") What do you think of this adage?

I was a prosecutor for 15 years. I turned down offers to go into criminal defense work because prosecution was all I wanted to do. For one thing, the job description was miraculously simple: Give the guy a fair trial. That's it. That's the whole job. Not conviction, not maximum sentence, not re-writing the Penal Code. Just giving people fair trials.

Prosecutors who remember that greatly enjoy their jobs. They never have to argue anything they don't believe in, they get to work with great people and do important work, and they have time to spend with their families. Prosecutors who forget it, who don't trust the system and feel the need to "bend" the rules for the "greater good" find out that the adage you quote is absolutely correct: ex-prosecutors are their worst enemies. We know cheating when we see it, we see through the excuses for it, and we know how great is its potential to pollute the system. Nothing in my job disturbs me more than a well-founded prosecutorial misconduct argument. I'm fortunate to work in a jurisdiction where I don't see many of them.

19. You may be the very first, and still the only, federal or state appellate judge to have his or her own Web log. How did you decide to become a blogger, and what is your relationship with the law firm that hosts the site? Do you anticipate that someday you might use the site as something other than merely a place to post your monthly column? Finally, do you regularly read any blogs, and if so which ones?

My relationship with J. Craig Williams, who hosts his own web log (www.mayitpleasethecourt.net), is that he is a very good friend who now hosts my blog, and is featured prominently on my conflicts list. Craig introduced me to blogging, and, though I can't spend as much time as I'd like on blogs other than his and yours, it's absolutely staggering how many people do. I get more response from any mention of me in blogs than I do from my paper-published material. If I win the lottery and can retire, I plan to do a lot more blogging.

20. What do you do for enjoyment and/or relaxation in your spare time (assuming you indeed have any)?

Spare time? Not a concept I'm familiar with.

I've been an NHL goal judge for 11 years. That�s about 160 hours a year (Imagine what you'd do with an extra four work-weeks). The column and the production of training videotapes for police officers (essentially, "How NOT to Violate the Law") require a great deal of time. I love golf, softball, and country music and don't have the discipline to cut down on any of them.

I have a sixteen-year-old daughter who is more fun than anybody should be allowed, and two grown children who, like the youngest, cause me to use up a lot of time thinking proud thoughts. And I have a nonpareil wife who shares virtually all my enthusiasms (except fantasy baseball, which she refers to as "baseball porn") including the law. She's an excellent attorney and a better friend.

----------------------------------------------------

1. With the possible exception of Cooley v. Board of Wardens (1852) 53 US 299.

2. Under California�s system, after I was appointed, I stood for election.

3. Think about that. They NEVER have to argue anything they don't believe in. How many other lawyers can say that?

"20 Questions" for:

Fifth Circuit Judge Jerry E. Smith

Ninth Circuit Judge Diarmuid F. O'Scannlain

Mississippi Supreme Court Justice Kay B. Cobb

Ninth Circuit Judge Andrew J. Kleinfeld

Ninth Circuit Judge Michael Daly Hawkins

Third Circuit Judge Ruggero J. Aldisert

Eleventh Circuit Judge Gerald Bard Tjoflat

Federal Circuit Judge William Curtis Bryson

Eleventh Circuit Judge Stanley F. Birch, Jr.

Eighth Circuit Judge Richard S. Arnold

Seventh Circuit Judge Richard A. Posner

Tenth Circuit Chief Judge Deanell Reece Tacha

Ninth Circuit Judge Stephen Reinhardt

First Circuit Judge Bruce M. Selya

U.S. District Judge Milton I. Shadur
(N.D. Ill.)

Missouri Supreme Court Judge Richard B. Teitelman

California Court of Appeal Justice William W. Bedsworth (4th Dist., Div. 3)

Tenth Circuit Judge Paul J. Kelly, Jr.

Seventh Circuit Judge Frank H. Easterbrook

Wisconsin Chief Justice Shirley S. Abrahamson

Seventh Circuit Judge Diane S. Sykes





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