Demystifying the Superior Court

This latest article in my series of legal columns is written to demystify our local Superior Court, which is where our significant Santa Barbara lawsuits will be filed.

Judicial Disqualifications

Q: Can you disqualify the judge that was assigned to your case for any reason or no reason?

A. The surprising answer in California is yes. Each party to a lawsuit has the right to disqualify the judge assigned to the case with or without cause. That really is not much of an issue here in Santa Barbara where we have excellent Superior Court judges who hear civil cases and we usually have no reason to recommend to clients that they exercise this option. But, if for any reason a party wishes to have its case heard by a different judge, they have the absolute right to make that request. That can be a problem here in Santa Barbara if there are more parties to a case than available judges, and each party exercises its disqualification privilege. In that case, a judge would have to be brought in from another courthouse to hear the case. That is much less of a problem in Los Angeles with its vast number of Superior Court judges.

“Tentative Opinions”

Are Tentative opinions really tentative?

My experience is no. Many years ago, when I was an attorney in New York City, one of my partners had flown to California to argue a case in a California court and, much to his chagrin, was handed a copy of the court’s opinion prior to the argument that he flew to California to present. That, though, is the normal practice in California when we file a motion with the court seeking rulings on procedural or substantive issues. We typically receive the Court’s opinion a day or two prior to the hearing scheduled to rule on the issues presented to the court for decision. We then have the choice to accept the opinion or request an opportunity to challenge the result in court. While the pre-argument opinion is referred to as “Tentative,” I can recall very few instances when the Tentative opinion did not become the final opinion in every respect. That practice puts a high premium on making sure that the written legal briefs are clear, precise and persuasive because they will almost always provide the only opportunity that we have to argue motions presented to the court for decision. These might include motions to dismiss, motion to compel discovery, motions for summary judgment, or motions to limit trial testimony (motions in limine).

Unpublished Opinions

Does unpublished have the same meaning in 2020 as it did in 1820?

Apparently in California the answer is yes. An important issue is whether we can cite unpublished judicial opinions to establish the principles of law that we intend to rely upon in subsequent cases. Unless the opinion would be binding on the subsequent case, it cannot be cited if it is not published in a book with a hard cover. I recall arguing a case and citing to a well-known weekly soft covered journal containing up to date judicial decisions, but the judge said that he could only consider decisions published in a hard-covered book. That requirement frankly makes no sense especially when we receive by email the Tentative opinions that I referred to in the prior section of this article. Similarly, Law360, a legal research and reporting tool, presents us daily with important new decisions and a helpful summary of the issues decided in the opinion. I receive Law360 reports in every area of law which I practice. There are other helpful online services as well. The local Santa Barbara court has issued many thoughtful decisions in my firm’s cases in the 17 years that we have lived in Santa Barbara. Those decisions cover the gamut from insurance coverage issues for antitrust cases, or for cyber liability, directors and officers insurance, the interplay between federal and state courts, the scope of the attorney client privilege and many other issues. Yet, most if not all of the decisions are not published in books with hard covers in the traditional sense. Thus, their value as legal precedent is lost if they cannot be cited.

Blackstone’s Commentaries

Does anyone in the modern era still rely upon Blackstone’s Commentaries?

I know one judge who did so. I was arguing a case in Nashville, Tennessee and had properly cited in my legal brief many published opinions in books with hard covers. Nevertheless, my local Nashville counsel informed me that our trial judge only relied upon Blackstone’s Commentaries, a multi-volume legal treatise named after Judge Blackstone who initially prepared this treatise in the 18th century around the time of the American Revolution. Sure enough, we were invited into the judge’s chambers for a conference and on his shelf behind his desk were Blackstone’s Commentaries and no other legal books.

Prior to the next hearing, I studied up on Blackstone’s Commentaries and became an expert for a day in English Jurisprudence in the 18th Century! The moral of this story is “When in Rome (or Tennessee), do as the Romans do.”

Conclusion

Judicial disqualification, Tentative opinions and unpublished opinions are just a few of the many issues that attorneys confront every day in order to properly represent their clients in California state courts.