ON CRITICIZING JUDGES

Lawyers often find judges’ quirks annoying.  And losing is no fun.  Plus, it’s human nature to talk yourself into the justice of your cause, and bristle when someone donning a robe doesn’t buy it.  

So we all get frustrated at the bench once in a while.  How should we vent this steam?  Mostly we just suffer through it, have a drink or two, and unload our gripes and whines on the nearest bar-mate, lawyer-friend, or spouse.  

But that wasn’t enough for the plaintiff’s lawyer in Poe v. Pioneer Medical Group (2023) 2023 WL 7204940, a recent decision from the Second District Court of Appeal.  (He’s gotten some bad press on this, so I’ll spare him any more by just calling him “Bob”).  

Bob represented Henry, a plaintiff in a medical malpractice suit. The trial court granted summary judgment against Henry, and Bob appealed.  

Bob presented two arguments for reversal: (1) there was a triable issue of fact on his malpractice claim, and (2) he was denied due process of law, because there was something wrong with every judge involved in the case (including several judges who ruled on discovery disputes).

His charges against the judges were not general attacks.  Bob named the targets of his ire (though I won’t).  

• Bob had moved to disqualify Judge R. “on the ground that her erroneous discovery rulings demonstrated she was unqualified to hold the office.”

• Bob had asserted that Judge R.’s rulings “were inconsistent with the controlling legal authorities,’ thereby demonstrating her ‘whimsical disregard’ of the law and lack of ‘the qualifications to continue to render judicial decisions in this litigation.’”

• Bob had moved to disqualify Judge S. “arguing his ‘attack’ on plaintiff for making ‘vague and uncertain’ requests demonstrated animus.”

• Bob had moved to disqualify Judge B. on the ground that “she demonstrated malice and bias by assigning the case to Judge S., even though he had made ‘highly anomalous rulings’ in the litigation, demonstrating a ‘stupefying level of bias’”.

• And the capper: Bob had said that Judge S. “’resorted to falsification of facts,’ ‘chose to disregard documents if they would impede his goal of ruling against Plaintiff,’ and appeared to have been ‘successfully bribed’ by defendants’ counsel.” 

For good measure, Bob threw in: “The current motion was necessary to prevent Judges R. and S. from suddenly emerging from her apparent status ‘in hiding’ to issue some malevolent or overtly biased ruling.”

Enough?  Not quite.  Bob also launched the following broadside at the entire trial court bench: 

The Southeast District of the Los Angeles Superior Court routinely violates the due process rights of Plaintiff by suddenly changing, without any reasonable Notice, the identity of the judge who will adjudicate a particular motion.

And attack dog Bob did not spare the Court of Appeal itself.  According to the opinion, Bob “informally invites us to recuse ourselves due to the several instances over many years in which we ‘disregarded published law or well-settled law,’ specifically in two cases involving his current attorney. If we do so, he requests that we refrain from assigning the matter to Division Four of this District, which also, according to [Bob], has a penchant for disregarding the law.”

In addition to arguing that there was a triable issue of fact (thereby making summary judgment wrong), Bob “contends summary judgment was improper because his due process rights were violated when he was ‘was forced to contend with three overtly corrupt judges’ who ‘whimsically disregarded’ the published law, ‘fabricated legal rules,” and ‘fabricating facts when necessary to support their corrupt conduct.’” 

Unruffled by Bob’s jabs, the appellate court issued an opinion that sits as a model of judicial sobriety.  No clever retorts, and no nasty personal comments about Bob.   And no sanctions, no report to the State Bar, and not even a published opinion.

On the merits, the court took Bob’s contentions seriously, citing cases that hold: “Erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice.” After reviewing the trial court record, the court rejected Bob’s arguments, because they amount to “nothing more than a disagreement with the trial court’s rulings. They disclose no bias and no due process violations.”  It goes without saying that Bob also lost his claim that summary judgment was improper because there was a triable issue of fact.

But the opinion doesn’t let Bob totally off the hook: 

We regret we must admonish Plaintiff’s counsel about the inappropriate personal attacks in his briefs on the trial judges. When briefing an appeal, an ad hominem attack on the trial judge is not only unpersuasive, but also unseemly. We remind counsel he is an officer of the court, and has a duty to “maintain the respect due to the courts of justice and judicial officers.  Business & Professions Code sec. 6068, subdivision (b). We do not condone Plaintiff’s counsel’s lack of professionalism.

I’ve never pulled the sort of stunts that Bob pulled.  And I’m sure you haven’t either.  But I’m also sure that both you and I felt like doing it – many times.

So how should you deal with a judge you believe acted injudiciously?  

I’ll address this question as an appellate attorney, because that’s what I do these days.

In that capacity, I do “attack” trial judges.   Let me modify that: I attack what trial judges do, not who they are.  

The distinction is important.  When I represent an appellant, my job is to win a reversal – by persuading the appellate court that the trial judge got it wrong (granting summary judgment when there was an issue that should have gone to a jury, keeping out my client’s material evidence, applying the wrong rule of law, etc.)  

I do that without saying that the trial judge was stupid, lazy, or bribed.  I just show – with the record and the law – that the judge got it wrong.  If the appellate judges choose to draw broader conclusions about the trial judge’s intelligence, work habits, or honesty, that’s up to them.  

But I never expressly discuss the trial judge’s character.  I will, however, include in my briefs facts that might tend to shed some light on that.  If the record shows that judge granted a motion without reading trial counsel’s brief, or the record shows that the judge said something at a hearing demonstrating a misunderstanding of a key case or statute, I’ll say so – citing the part of the record that shows this.  But I leave out my own take on what this says about the judge’s intelligence, etc.  

Why am I so careful about this?  Because I want to win.  To win, I don’t want to anything that might alienate an appellate judge.  Attacking the character of another judge is guaranteed to alienate the appellate judge.  

Why?  First, such attacks might bring the entire judiciary into disrepute.  The authority of the judiciary turns on the respect of the public.  Second, the appellate judges already know the trial court judges in their district, or at least know of them.  They might be friends, having worked together when the appellate judge sat on the trial court bench.  

In any event, the appellate Justices usually already know the reputation of each trial court judge in their district – without my help.  If the trial court judge you’re appealing from has a habit of weak legal research, the appellate judge probably knows this.  So there’s no need for you to say it.  

But the appellate judges don’t know what the trial judge did wrong in this case.  So I show them, with the record and the law.  I hit the trial judge’s sloppy reasoning hard.  That’s my job.  The appellate judge knows this, and won’t hold it against me.

Nevertheless, I’m always careful with my adjectives.  I don’t call the trial court’s ruling “outrageous”, “ridiculous”, or a “whimsical disregard of the law” (as Bob did).  My favored adjective is “mistaken”.  If he was badly mistaken, I might go so far as to say the ruling was “wrong”.  But there’s rarely any call to use anything stronger than “mistaken”.   That’s just as likely to get me my reversal as “outrageous” or “ridiculous” – so long as I show the trial court’s error with the record and the law. 

And (unlike Bob), I never attack the appellate Justices themselves – even though, in about 40% of my appeals, I sincerely believe they get it wrong.  (My win rate for appellants is about 60%, but that has nothing to do with it.)  But like a good soldier, I just suck it up.

But sucking it up is not so easy when I see a Justice playing fast and loose with the appellate process itself.  A few months ago, I wrote a series of columns on the “Bad Guy” phenomenon, where judges tilt their interpretation of the law in order to stick it to litigants they see as Bad Guys.  An extensive study confirmed this, and appellate Justices are not immune to it.  I see it in many of my appeals, and so have my appellate colleagues.  Not good.  I’ve begun addressing it in cases where I’m concerned it might happen – carefully, without directly accusing the Justices of harboring such an attitude.  

Recently, I’ve run into another problem, where a few Justices seem overly fond of claiming that an argument was “waived” (or “forfeited”).  One opinion asserted that an argument raised in a reply brief was forfeited because it was “new” – even though it was in reply to an argument raised by the respondent in her brief!  And during an oral argument, when an appellate lawyer cited a case, a Justice asked, “But that case wasn’t mentioned in the trial court, was it?”  No, Your Honor, it wasn’t.  But there’s no rule barring appellate counsel from mentioning a precedent case for the first time in the appellate court.  (Such a rule would pretty much put me out of business.)  The appellate process is meant to achieve justice, not reduced to a game of “gotcha!”

Of course, I can’t say these things in print.  But wait!  I just did!

Note, however, that I did not name the Justices or even their District.  To do so would run afoul of my severest critic – my business manager, wife, and censor.  She regularly intones, “If you lose appeals, you’ll lose the clients who pay our bills.  So don’t annoy the Justices with your columns!”  I appeal to her better nature: “But an appellate Justice needs a tough skin.  They should be able to take healthy, respectful criticism.  And I have a First Amendment right. . . .”  Her verdict: “Overruled.  You have a right to feed you family, counsel.”  She pulls out her heavy-duty, black felt pen and starts redacting.

Maybe she’ll ease up if and when I retire. . . .

Myron Moskovitz is author of Strategies On Appeal (CEB, 2021; digital: ceb.com; print: https://store.ceb.com/strategies-on-appeal-2) and Winning An Appeal (5th ed., Carolina Academic Press). He is Director of Moskovitz Appellate Team, a group of former appellate judges and appellate research attorneys who handle and consult on appeals and writs. See MoskovitzAppellateTeam.com. The Daily Journal designated Moskovitz Appellate Team as one of California’s top boutique law firms.  Myron can be contacted at myronmoskovitz@gmail.com or (510) 384-0354.  Prior “Moskovitz On Appeal” columns can be found at http://moskovitzappellateteam.com/blog.