This article was posted on Tuesday, Aug 01, 2017

Here are some guidelines for how judges will decide an issue before them:

  • Judges and their staff like things to be brief, material, highly relevant, and to the point.  That is why for bread and butter law and motion matters briefs should be no more than 10 pages double spaced.  It is helpful for attorneys to have a ready reference summary of arguments section at the beginning of the brief. If the issue is not before the Court, the Court will not decide it that day; judges generally decide what is at issue in the case, and what presented to them on that calendar day – no more and no less.
  • Judges also may rely on the opinions of expert witnesses that have appeared before them in the past, and that have a great reputation in the legal and professional community.  An expert witness is a “hired gun” that can testify about a specialized issue. For example, if there was a forgery, you can call an expert witness to testify about whether a signature on a grant deed appears to be forged or not based on other samples. If the attorney can lay a foundation that the expert witness is qualified to be an expert in his or her field, and the expert will testify about a relevant subject in the case before the court, the court will allow testimony from the expert and court may rely on the expert’s opinion a great deal.
  • Believe it or not, judges are required and bound to follow several sets of rules and laws. Of crucial importance is recent state case law as furnished by the attorneys and the court research attorneys – the more recent and the more “on point,” the better.  Also of crucial importance are recent versions of statutes and recent changes to statutes that are written and enacted by the legislature. The law can change every year, and can change quickly on a day to day basis when new appellate case law decisions comes down.  Judges want to use the latest cutting edge case law to decide their cases.
  • Judges and their staff attorneys use several books and texts for their research, and they also may use high powered computer legal search data programs such as Lexis Nexis or Westlaw.     Some books are designed and written just for judges to rule on the admissibility of evidence.   Judges use and follow the treatise Rutter Group – Civil Procedure  Before Trial for most pre-trial procedural issues.  This handbook is the bible for pre-trial issues such as service of process, pleadings, discovery rules and procedures, expert witness procedure, pre-trial motions such as motions for summary judgment, and the like, and contain most nuances.    The importance of this book cannot be understated.  The book also may contain forms and checklists from different departments of Los Angeles Superior Court- these checklists and grids are formulated by court research attorneys and judges to make sure that filed papers are in order.   For real estate issues, judges also use Miller and Starr on Real Estate. This is a very detailed treatise on virtually every aspect of California real estate law.
  • Courts tend to follow California Rules of Court very closely.  The rules in the California Rules of Court are adopted by the Judicial Council of California under the authority of article VI, Section 6, of the Constitution of the State of California, unless otherwise indicated. The rules in Division 5 of Title 8 and 9 were adopted by the California Supreme Court.  These are rules that govern how attorneys and parties are to present and file pleadings, motions, declarations and documents in Court. A party’s strict compliance with these rules can make or break a law and motion matter.
  • There are three important preliminary considerations that a judge may consider prior to making a decision on a civil matter.   First, the court is interested to confirm that it has “subject matter jurisdiction” over the claim or the issue.  For example, a family law matter such as a determination of child support should be decided by a family law judge, and not a court of general civil jurisdiction. Another important issue is whether a state court judge should decide claims under federal law in addition to state law – should the case be removed and transferred to federal court or remain in the local superior court?  Second, the court is concerned that it has personal jurisdiction over all defendants. Have all parties been properly served with the lawsuit and is the case at issue?  Judges want all the parties to be served, and to have all the parties responding or defaulted if they have not timely responded.  Judges don’t like files sitting around with parties not put on notice of the proceedings. Third, does the party asserting the claim have “legal standing” to present the claim in court? For example, has the party asserting the claim suffered actual injury?  In personal injury, products liability, and similar torts cases, a plaintiff who has been physically injured almost always has standing to sue the person or company the plaintiff believes is responsible for her injuries. There are entire treatises written about jurisdiction and standing. It is important to be aware that courts are always concerned with these preliminary questions, and want to sort these questions out even before a discussion of the merits of the case can begin.
  • In most pre-trial litigation there is no “Perry Mason” type, high-drama live witness testimony. Instead of live witnesses, judges use sworn declarations and exhibits to hear and consider  evidence filed in court.  For certain motions, like summary judgment motions, the Courts can consider testimony from deposition transcripts.  Declarations are signed under penalty of perjury and are based on the personal knowledge of witnesses.   Declarations are the stock in trade for law and motion matters, and are prepared by attorneys and are signed by the parties, witnesses, or attorneys that are supposed to have direct personal knowledge.   There are some limited exceptions such as default prove-up hearings. It depends on the judge – some judges want live witnesses and others may not.  In trials, judges hear live witness testimony, and there can be interesting high “Perry Mason” type drama if you are a spectator.
  • When judges decide a law and motion matter, they also consider whether the evidence is “admissible” into the record.  If the evidence presented in the form of declarations or exhibits is not admissible, it will not be considered in the judge’s final ruling.  Judges consider the detailed rules of admissibility of evidence which for state court cases, the rules are located in the California Evidence Code.  One of the most powerful tools that parties have at their disposal is the use of “evidentiary objections,” to attack the admissibility of portions of a declaration.  Attorneys will sometimes prepare evidentiary objections to attack and attempt to block the admissibility of evidence in the form of a declaration or exhibits. There are many formal rules of evidence and exceptions, and I will not delve into all of them here.
  • The role and function of oral argument in law and motion matters by attorneys in Court  at the Superior Court, trial level is frequently misunderstood by parties to a case and young attorneys. Some parties believe that if they hire an attorney to come into a court hearing   screaming and yelling and banging her fist on the desk,  this will change or impact the result- this is usually not the case.  The bottom line is this: most judges have already worked up the case several days before the matter is called on the court calendar that morning.  This work up is based on the sets of papers and pleadings filed by the attorneys in court at least 21 court days in advance. The quality, depth, and persuasiveness of the paperwork is key in law and motion matters. This “work up” of the case by the judge’s research staff attorney is a very important component of the Court’s analysis. Very often, based on this work up, the Judge enters the court room on the morning of the hearing with a “tentative ruling.” A judge has no reason to hear oral argument from counsel that just repeats the arguments presented in the papers.   The judge may say, “Counsel, do you have anything to add that is not in your papers?”   Oftentimes, new developments occur since the motion was filed, and the Court will want to be informed of the latest disposition.
  • The court’s “tentative ruling,” may be in writing, or the tentative ruling may be orally stated by the judge.  A written tentative ruling is available to the attorneys, parties, and the general public prior to the hearing.  The tentative ruling is extremely important because the tentative ruling is the end product and result of the judge’s work up and analysis of the issue.  It provides the judge’s analysis and reasoning on a particular issue. It will contain key facts and summaries of the positions, and it will contain citations to important statutes and legal authorities. The tentative ruling may be posted on the court’s website several days before the hearing, or handed out on a sheet of paper at the hearing. The term “tentative ruling,” is exactly what it purports to be – it is “tentative” and is not the final or actual ruling of the Court.  The Court will generally allow some oral argument by the attorneys prior to the Court’s recitation and decision of the actual final ruling in the Court room.  The judge wants to hear from the attorneys who stand to lose on the issue when the tentative ruling is against them.  The important thing to know is that usually judges may state that the “tentative ruling” is and becomes the “actual final ruling” of the Court.   The trend and probabilities in the Courts is for judges to not waiver or flinch from their “tentative ruling.” So, absent a dramatic change in factual circumstances or procedural posture of the case, one should expect that the general rule is that 95 % of the time the tentative ruling becomes the actual ruling of the Court.
  • Sometimes, the Court may steer oral argument in a particular direction to asking the attorneys for facts or legal arguments that have not been presented in papers.   If the issue is hotly contested and parties are watching the hearing and at each other’s throats or if the judge wants to do further analysis, the judge may say “I will take the matter under submission.”   This is courtroom jargon for “I will let you know my final ruling by mail and not today so there is no shooting in the court parking lot between opposing parties.” To avoid a huge emotional outcry or sigh in the courtroom- the judge bypasses all that by “taking the matter under submission.” The attorneys and the parties leave the courtroom with the tentative ruling but not the final ruling.  The final ruling will arrive by mail.
  • In law school, attorneys and judges take a course on the law of evidence. The rules of evidence are tested on the bar examination. One of the important rules and concepts of the law of evidence that judges and their staff attorneys use to decide factual and legal issues are the rules surrounding “burden of proof.”  Can the parties support their legal claims and the elements that make up the legal claims with admissible evidence?   I have always believed that the most important words in the courthouse are “prove it.”  If you are a plaintiff and you cannot prove your claim with admissible evidence, then you should not have filed your case.    For a plaintiff’s claim, the plaintiff carries the “burden of proof.”  For a defendant’s defenses, the defendant carries the “burden of proof.”  The burden of proof is initially on the person who brings a claim in a dispute. It is often associated with the Latin phrase, “maxim semper necessitas probandi incumbit ei qui agit” – a translation of which in this context is: “the necessity of proof always lies with the person who lays charges.”

In law, there are different types and levels of “burdens of proof.”  In a criminal case, the threshold is high – “beyond a reasonable doubt.”  In a civil case, the threshold is much lower- “preponderance of the evidence,” One percent of quantum proof more than 50 % is a preponderance of the evidence for most civil law issues and tip the scale oh so slightly. The standard is met if the proposition is more likely to be true than not true, and the scales of justice are tipped ever so slightly. The standard is satisfied if there is greater than a fifty percent chance that the proposition and the element is true.

Conclusion: Going to Court is Not That Bad, Or is it?

I hope this white paper provides transparent insight and unlocks the mystery of how judges actually decide pre-trial issues in downtown Los Angeles Superior Court which is a rough and tumble environment.  Most judges perform a thorough analysis, want to get it right the first time, and want to do justice. Judges don’t want to get reversed on appeal, or be subject of a written complaint of a party or an attorney to the Judicial Council of California or the Presiding Judge.   Most judges will not sanction parties or attorneys for a first time violation of rules, and will encourage and enforce compliance of rules with an air of compassion.  Judges are human beings and may be persuaded or charmed by attractive attorneys or celebrity parties and their attorneys, and may curry favor to institutional parties such as banks, insurance companies, and large law firms whose clients can afford to appeal.  This is especially true in Los Angeles where celebrities are frequently in court fighting over business issues or divorce issues.   

Judges want the parties and their attorneys to walk out of the courtroom with a core belief that all sides had the time and space to present their cause in the motion papers and in oral argument, that the papers were read and considered carefully, that the latest law was applied to the facts of the case, that the law was followed, public policy concerns were addressed, the attorneys were dealt with respect and courtesy and nobody was railroaded through the system. Alternatively, if the Stanley Mosk Building is not the right forum for your case, you can always do arbitration if your opponent agrees and if you can afford to rent a judge.

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Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy matters.  He is a 22 year veteran Los Angeles real estate and business attorney and trial lawyer.   Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights and debtor’s bankruptcy options and created  a leading educational resource on quiet title real estate litigation.   For more information, call (818) 383-5759, or email [email protected].