Antitrust and Unfair Competition Law

Competition: Spring 2016, Vol 25, No. 1


Panelists: Cheryl Lee Johnson and Kathleen J. Tuttle1

For the third year in a row it has been our good fortune to have a member of the California Supreme Court as our keynote speaker. At this GSI, we welcomed our Chief Justice, Tani Gorre Cantil-Sakauye. The questioners were two former chairs of the Antitrust Section, Cheryl Johnson and Kathleen Tuttle. Johnson and Tuttle began the presentation with a brief introduction followed by questions posed to Chief Justice Cantil-Sakauye. What follows is an edited transcript of that conversation.

Johnson: It is our great honor to have with us today Chief Justice of the California Supreme Court, Tani Gorre Cantil-Sakauye. When confirmed in 2011, she became the first Asian-Filipina American, and only the second woman Chief Justice of California’s Supreme Court.

We’d first like to say a few words about the Chief Justice’s background. She was born in Sacramento, the fourth child of first generation Asian-American farmworkers. She received both her undergraduate degree (with honors) in rhetoric and law degree at U.C. Davis, and during school, she supported herself by waitressing. Her first law job was as a deputy district attorney in Sacramento. She then served in two senior positions for Governor Deukmejian: first, as his deputy legal affairs secretary, and then as his deputy legislative secretary. In 1990, she was appointed to the Sacramento Municipal Court, and in 1997, was elevated to the Superior Court. There, Justice Cantil-Sakauye established the first Sacramento court dedicated to domestic violence issues.

In 2005, Governor Arnold Schwarzenegger appointed our honored guest to the California Court of Appeal, where she served for five years. During that time, Supreme Court Chief Justice Ron George appointed her to the Judicial Council of California, the Constitutional policy-making body of the judicial branch. In 2010, Governor Schwarzenegger appointed her to the California Supreme Court, as Chief Justice, to replace retiring Chief Justice Ron George.

Alongside the rather daunting job of running the largest court system in the nation, Chief Justice Cantil-Sakauye has continued to pursue her longtime interest in community and non-profit organizations, including a civics-learning project on the Constitution and the power of democracy. She and her husband, Mark Sakauye, a retired police lieutenant, have two wonderful daughters.

Tuttle: Madam Chief Justice, thanks so much for being here. There is a great vignette about you that no doubt some in this room have heard before. A very long time ago, your mother took you to see Gloria Ochoa, one of the first Filipino American lawyers in California. As the story goes, your mother threw you an elbow jab, and said "you could do that too." Was it that motherly encouragement or something more that compelled you to pursue a career in law?

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Chief Justice: Thank you Kathleen, and thank you Cheryl. First let me say it’s a pleasure to be here with all of you, and also with my former colleague, Justice Judge Rick, who is now retired. What a pleasure to see you again. And thank you for that question.

As the youngest of four children, it was rare that my mother even spoke directly to me. So the fact that she singled me out and dragged me to the Filipino community center to see a person whom I’d never seen, to use the word "lawyer" which I’d never heard and didn’t know the meaning of, I knew that was a big day. Later on, of course, I met Gloria Ochoa. She remains a good friend of mine and we served on several organizations together.

To return to your question, it wasn’t only that jab, it was my mother’s intensity on that day. I think she saw that meeting as important because of some of the experiences in the Filipino community. Also, later on, a professor of mine became a mentor, and encouraged me to go on to law school. The mentor, who wore yellow leisure suits with white shoes and a white belt, gave me some wise words about trying to further my education, and I joined the speech and debate team. I learned that many of the young men I was debating against, and that I was beating, went on to law school. That further piqued my interest in the law. There was always this undercurrent in the Filipino community where I grew up, about certain events that happened to me and I’ve always retained that feeling of urgency.

Tuttle: How did experiences in your childhood affect your perception of our legal system?

Chief Justice: One of the memories that I recall is from the age of nine years, when our house was taken from us by eminent domain. What I understand about that now is far different from what I knew at nine. At nine, I just knew the family home was being taken and we were moving. And of course, you can imagine the disruption that occurs when you live in a community that includes your grandmother and your siblings in the same home. I remember my mother going to court as a pro se, and coming back feeling very disrespected. I remember to this day the judge who ruled against her argument. His name has resonated in our house for years.

I also remember that uncles of mine who wanted to marry Caucasian women had to go out of state to marry at that time. I also remember that we lived near the Capitol; we would go to the Capitol park to have picnics. My mother warned us never to go into the Capitol itself, it had these big beautiful oak doors and a lot of pillars and marble. I never understood why I couldn’t go in there. So, there were all of these memories in my early childhood about authority and law, and who was in charge, and whether you could be part of it.

Tuttle: After law school, your application to the Sacramento Public Defender was rejected because you were considered too young. Instead, you took a job with the District Attorney’s Office. Do you think your career would have gone in a somewhat different direction had you started as a public defender?

Chief Justice: That’s a good question Kathleen. I think it may have only in the sense that you think about "location, location, location." So I applied here in San Francisco, and thereafter when I didn’t get the job, I went back to my home town of Sacramento and applied at the DA’s office, because a criminal defense attorney advised me that you can do more justice if you do it from the DA’s office. It was later my luck that the DA’s office was in Sacramento, the state capital, and maybe three or four blocks from the Governor’s Office.

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It’s not that I had any connection with the Governor’s Office except that I knew some of the staff. I also applied to the Governor’s Office and worked there at a time when George Deukmejian was looking for young prosecutors for the bench. I didn’t even know that because I didn’t yet have enough years to apply to the bench. Of course, had I been in San Francisco, there would have been different opportunities for young lawyers that would not necessarily have involved an invitation to interview the Governor’s Office. It’s really in the Governor’s Office that I first realized as a very young lawyer, that the governor appoints lawyers to be judges, that there were several levels of courts, and that the governor regularly makes a difference in the appointment process. That’s what I mean about "location"

Johnson: Following law school, when law jobs were scarce, you briefly worked as a black jack dealer. Did you learn anything from that experience that you are willing to share with us?

Chief Justice: Well let me clarify. In law school in my first year, Harrah’s came to the UC Davis campus to interview. I had a job in my first year after law school, but it didn’t pay well. I was working for a criminal defense lawyer, and was doing some research on a homicide that he was defending. I interviewed at Harrah’s and got a job working for the summer and periodic holidays. I learned a great deal. At this stage, I’d spent most of my life in school. I’d never really seen drunk people sitting at a table making decisions. I certainly observed humanity at its best and at its worst.

Black jack dealers are a lot like bartenders in the sense that you are anonymous; they will never see you again, so they tell you things that you probably wouldn’t otherwise share. Little did they know that I would soon be a lawyer, and they would fail to recognize me in the DA’s office.

I learned about controlled risk taking, and frankly, I learned about how to pick a jury from watching humanity at the black jack table—people who thought they knew third base, people who were confident, and people who came and split tens. I learned about human behavior just sitting there, quietly dealing for six hours a day. I also learned about the people around me, including the pit bosses and the hierarchy.

This helped me to know about people and body language when I became a prosecutor. To this day, I view it as valuable experiment, a place where you can observe taking risks in a controlled environment with limited knowledge and it served a purpose. So I’ve enjoyed it, I have learned from it, and I’m glad I had that opportunity. I would not do it again, it’s a different time and place, but it was invaluable at that time in the ’80s.

Johnson: I think that will make some think twice before they talk at a blackjack table again. So, to change topics, can you describe for us your path to becoming the Chief Justice in California, and was it a path that you knew you were on?

Chief Justice: Well, to that question I’m going to say, assume facts not in evidence. I had no path to Chief Justice. I will say that when I received the phone call, it stunned me. The truth is, to be selected for the Supreme Court historically with the last maybe 5 to 6 governors of California, you rarely apply. You are called to be put on a list to be interviewed. Of course, I didn’t expect to be on that list. When I went to the DA’s office, I thought I would be a career prosecutor. I enjoyed trial, I enjoyed witnesses, and I enjoyed the hubbub of the court room. When I applied to the court of appeals for a change of atmosphere, I enjoyed that work too, so I never really planned on becoming Chief Justice, and I enjoyed all the work I’d had up to that point.

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But I also would note that I joined organizations and committees. When people asked me to serve on something, I would say yes, even though I knew very little about the positions at the time. I thought, I’ll do my best. I joined activities, got to know people and that really put me four seats down from Chief Justice George on the Judicial Council, the constitutional policy- making body for the judicial branch. Up to that point, I had only seen Chief George across the room and I didn’t know him. But in time, while serving on the Council, I did a fair amount of work and got to know him and a great deal about judicial branch operations. I strongly suspect that Chief George gave Governor Schwarzenegger a short list of recommended candidates. That’s the only way I think I got in the pack. If I hadn’t served on those committees and been willing to be part of a greater team, I would not have made that list because I wouldn’t have been on anybody’s radar.

Johnson: The California Supreme Court is often lauded for its diversity. We have four women and five non-white members of the Supreme Court, but sometimes, we don’t see the same levels of diversity in the lower courts. What do you see is the value of diversity in the judiciary and do you think we can expect to see an increased percentage of diversity in the coming years?

Chief Justice: You are right, Cheryl, that our judiciary in California, the largest in the country, arguably the best-trained in the world, does not reflect anything near the diversity of the population in California or even of the state bar. The value of diversity cannot be understated or overvalued. Diversity brings different voices, ideas, perspectives, and ways of thinking about issues to the table. The Supreme Court, for example, is the most diverse Supreme Court in the country. We bring a variety of experiences and we come from many different disciplines. It’s so important to see the application of the rule of law, and any changes, clarifications and developments in the rule of law from the different lenses of experience.

I’m not just talking about ethnic diversity or gender diversity; I’m talking about professional diversity, geographic diversity and socioeconomic diversity. All of these different factors make us individuals, and they influence how we move forward, when we grant review of cases, and the decisions we make.

As California’s demographics change, and the majority becomes a minority, it is so important that our institutions reflect our population, our breadth of views, and our blended cultures. The laws apply to all people. This governor in particular, after all it’s his second time around for appointments, brings a broader prospective and that’s important. He also has a larger menu of options because law schools are now graduating more and more women, and we are 50 percent of the lawyers in this state. So, I think you’re going to see greater diversity as we have already begun to see, and elect governors who are attuned to making sure that the California judiciary keeps pace with its population.

Johnson: Turning to a related but different issue, that is, access to our courts. We’re all aware, especially those of us in this room, of California’s court-funding crisis. You’ve stated when we can no longer guarantee timely access to justice and when we can no longer provide a litigant a courtroom in his or her community of his or her peers, then we are denying the protections of democracy. Since 2010, 52 court houses and 202 courtrooms have been closed in our state, and these courts were ones used by something like over two million people. Have we reached a point where the judicial system is denying the protections of democracy, and if so, what can be done about it?

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Chief Justice: That’s a great question, and I appreciate that because when I took office as Chief Justice of California in 2011, we were into what was at least our second year of a downward spiral. The most frightening words I heard in 2011 from the economists and the department of finance near the Governor’s Office were, "we don’t believe we’ve hit bottom" And so the judicial branch certainly picked up speed in 2011-on my watch-in suffering the greatest revenue reductions in the history of the state. We were also the branch that suffered the greatest cuts nationally.

The reasons for that are varied, but you have to understand one basic factor about California’s budget—there is very little flexibility. So much of the California budget is constrained by Proposition 98 education finance as well as by federal restrictions on receiving matching grants. When it’s time to cut the state fund and state revenue, there is only a very small section of the entire pie that can actually be cut, and the judicial branch is smack right in the middle of that slice. We are only 1.4 percent of the state general fund so we receive only about one and one quarter cents of every dollar that you pay for taxes. One and one-quarter percent. And on that, we run the biggest judicial system in the country.

So yes, back in 2011, I’d say until about 2013, in my view, we were undermining democracy and we were reactive as a branch because we didn’t know how big the cuts would be and when they would be coming. Sometimes, the cuts came twice a year in mid-year. Courts could not close the spigot of cases being filed. We must take everything that comes or is filed, and all cases must be addressed sooner or later in some way, shape or form. During that time, we saw a spike in filings for domestic violence, a spike in foreclosure modifications, a spike in unlawful terminations, and a spike in conservatorships and dissolutions. All of these reflect the ills of the economy, and they were landing in our courts.

At the same time, we kept getting cuts and more cuts and we were reacting. So, in the throes of that time, I felt and strongly believed that we were not providing the level of enforcement of rights that people were entitled too. It was not timely, and if it’s not timely, it’s basically denied. We were closing courthouses because we were laying off people and staff. Even in some counties like San Bernardino and Riverside where the greatest growth population exists in the Inland Empire, we were closing courthouses. In Fresno, they closed five courthouses; in San Bernardino, three or four courthouses.

People had to drive two hours for access to court. All of you know too that your case is not resolved in one day in court. And many of these folks were pro se. There was no possible way their cases were going to be expedited for them. So it was a time when we seemed to be in a bit of a free-fall. And then along came Proposition 30, with some tax revenue coming back; since then, we have received a fair amount of reinvestment in the judicial branch. Not nearly as much as was taken, however. We are a branch that normally operates with about three billion dollars; we had over a billion dollars taken during that great recession, and had a billion and five taken from our construction fund used to repair court buildings. So, we have had reinvestment, but we have received nothing near what was taken.

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In addition, we’re talking about freezing the courts at the 2008 baseline. But in 2015, we know that the costs of doing business are not what they were in 2008. We still have trial courts that are on 21 days of furlough. These are courthouses in smaller, relatively impoverished counties, such as Madera and Kings, counties you probably don’t think a great deal about. But they are part of our court system and those people are entitled to equal access as well. There shouldn’t be greater access in San Diego than in Madera. But the truth of the matter is, there is.

And the Governor’s Office and the legislature are working with us on that, but this continues to be a challenge for the judicial branch, in part, because many people don’t understand the good work of lawyers and the good work of the courts that enforce the laws, or the hundreds of laws that are passed every year. Governor Brown just signed 800 bills. Where will those new laws all end up? Sooner or later they’re coming to us through you. That’s what happens, and that’s our dilemma and that’s what we try to keep pace with. I believe the courts have done some very efficient things, but there’s only so many efficiencies you can create when you are missing two billion dollars.

Johnson: I assume the crisis in judicial funding that you have spoken about isn’t unique to California, but you’ve indicated we were hit the hardest. As it happens, our state legislature is increasingly made up of government and business people, as opposed to lawyers or those with legal backgrounds. So can this state legislature, so constituted, adequately respond to judiciary issues?

Chief Justice: Well, I believe this legislature certainly has the bandwidth and talent to do so. What they don’t have, however, is time. If you’ve ever been in the Capitol, you see all the different groups that bombard the legislators’ offices with various important issues. I don’t discount any of the issues they bring to their representatives. However, as you just pointed out, fewer and fewer lawyers, probably due to term limits, are seeking elective office. They’re not in Sacramento. We have a few lawyers and we are friends and work with them. But, in the judicial branch, we feel that we have had to considerably increase our profile in the Capitol, joining with lawyers in the bench/bar coalitions to constantly talk about the important work that lawyers and judges do for the very same constituents who come urging that laws be passed.

I give a "state of the judiciary" speech every year in the legislature, and I explain to them the Jeffersonian quote that their laws are a dead letter without lawyers and courts to enforce and interpret them. And that is sometimes revelatory to members who come up to me and say "I never thought of that" I think to myself, I know you’re busy, but really, you’ve got to step back and look at this. So we have a lot of work cut out for us. We are diligently walking the halls, asking lawyers to join with us in the Capitol to talk to your members about the needs of the judiciary, and to understand that those needs need to be balanced with other important needs in the government of California.

Johnson: Now we know that funding our court system is a major public challenge, but the cost of litigating for private litigants is also greatly increasing. We have to hire our own court reporters, the delays in the courts increase the cost of litigating, and the costs of getting and reviewing electronically stored information is astronomical in many cases. Is the judiciary prepared to address those issues, and what can be done about them?

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Chief Justice: Let me say this. You are absolutely right that over the course of at least a decade if not longer, the public cost of funding a judiciary has been shifted to lawyers and users under a fee for service model. This is what I’ve called a "pay for play model." We’ve seen fines and fees increase. California has a higher filing fee than any other state for first papers and for additional papers. We know that there has been this shift, but the reason we’ve had higher fees, is in large part, because we saw the general fund wither.

And so when that stream of funding withers, we have gone to the state bar and lawyers asking if you will agree to a fee increase here or there, with a sunset date to help fund us through this general funding crisis. So the lawyers have gulped and bravely stepped up to the higher fees that they are willing to pay for a period of time to balance the reduced general fund. However, what we’ve seen over time, is when that happens, the reduced general fund never does get reimbursed. The money doesn’t come back.

And so we’ve had the situation that you have described concerning court reporters. Courts don’t have court reporters because they don’t have the funds to hire them as employees. When it comes time to lay court people off, they lay off people in the civil departments including court reporters, because you can’t lay off people in criminal areas due to the constitutionally guaranteed rights that are involved. You have described a dilemma that we are discussing with the Governor’s Office right now, about having sustainable, predictable funding, which allows us to plan for efficiencies and have a budget we can count on.

Are we ready to address those efficiencies? Yes, but not alone. Not alone, and by that I mean we need to hear from you about what you think we should be doing. We know we need to get California’s judiciary into the electronic age. We are working on that; we have a plan for which we’re seeking funding and that will hopefully expedite e-filing and searchable documents.

On the other hand we need to hear from you about other efficiencies. So I’ve appointed a Futures Commission that looks at what California’s judicial branch should look like in the future. And we’ve asked for public input and public proposals. We’re looking for big ideas-big ideas that can help us facilitate trials and hearings without sacrificing due process. The use of electronics, use of video recording, use of video interpreters and use of electronic hearings where they are not substantive evidentiary hearings should be considered. We are looking to change culture and to create a judicial branch that your children would expect to use, without waiting in lines, coming to court, coming back, and having to do everything in person. So, yes, we are ready, and excited about taking on efficiencies, with some already underway.

But we know we can’t do this alone. We know we need your input and advice about what you want your branch to look like in the future. Together, our voices will hopefully encourage the Governor and the legislature to give us what we need to effectuate that kind of change.

Tuttle: Well, our next question was going to be, "What is your vision for the court?" We talked about adequate funding and achieving efficiencies; are there other aspects of where you would like to see the courts go?

Chief Justice: Yes. Well, there are so many good ideas out there. My vision of the justice system is really what I call "access 3D," that is, access to the justice system and rule of law through three dimensions. My short hand version is that the judicial branch and rule of law would be accessed through three dimensions which are probably no surprise to anyone here.

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First, we have to have a physical access dimension. That is our courthouses, with courtrooms open and adequately staffed, and in counties that need and use them. We need to make sure we continue to build our courthouses, and systematically repair them so they are safe and ADA compliant. We have a plan and funding for that; we have built 22 courthouses and have 24 in different phases. These courthouses are deemed in immediate critical need, which means they are falling down. We thank you, the lawyers, for allowing us to build because you’ve agreed to an increased fee for a period of time that is used solely to build courthouses. Now, we are the only judiciary in the United States that builds our own courthouses, and frankly, if we didn’t, I am skeptical that we would get any funding to repair or rebuild them. So, again we thank the lawyers for this collaborative effort. That’s physical access.

The next 3D access has to be remote. I, for one, would like to conduct most of my meetings and hearings on my phone or my tablet. After all, most of my personal business is conducted on my phone or on my tablet, as, I suspect, is yours. And yet, when it’s critical, I expect to go in person to be able to put on my witnesses and to speak on my behalf or my client’s behalf. But access has to be available remotely.

We need to do so much more on the digital platform. We’re going to the Governor with our plan asking for one-time funding to start incentivizing courts to use computers and e-access. We will provide seed money for these courts to provide innovative ways to access non-evidentiary hearings on your phone or on your tablet.

We’re also looking at the third component of access which is equal access. I’ve talked about California’s diversity. Seven million people in California don’t speak enough English to have meaningful experiences in court. Yet, we make decisions in English about where their children go, where they live, whether they keep their jobs, and whether they go into conservatorships. Over 40 percent of Californians go home at night and speak a language other than English. We know we have to provide language access in the courts, because it’s frankly unjust, if you ask me, if someone doesn’t understand their rights and they are in court being spoken to in a language they don’t understand.

Also, equal access means assuring that pro bono services are available for people who want and need easier access to the law. That does not mean matching a lawyer to every pro se litigant, but it does mean furthering our civil union project to provide an attorney in certain kinds of civil cases where there is an attorney on the other side. Thank you to the lawyers who participate. It also means trying to electronically provide better services and more forms so people can go to a library and do some things themselves.

So Access 3D is the vision and the lens through which we will get programs to better access the court system for people who need it.

Tuttle: Let’s switch and talk about law students. The Sacramento Lawyer reported that you made more money waitressing and waiting tables in college than you did during your first year of law. Now law school is extremely expensive. Are you concerned about the level of debt that lawyers have and their ability to work in the public sector?

Chief Justice: Absolutely. Every lawyer who works at the Supreme Court, the Court of Appeal and the trial courts and the judicial council staff is a public sector lawyer. Those who do legal aid, provide pro bono services and volunteer their time are only able to do so, frankly, because they have been able to manage their debt. But, what we’re seeing is a reduced number coming into public sector work, and it is often because of the staggering cost of law school after college. This is why one of the things you’ll hear in the Capitol when we fight over budgets is that I fully recognize the need of the UC and the public K through 12 systems to have adequate funding. When I lobby for money, it is not about taking it from one of those educational entities, because that is a zero-sum game. There is a recognition that we’re all in this together, and there has to be a balance. Students should not have to graduate with limited or few choices because of something as intractable as school debt. We are trying to ensure that when students graduate with staggering debt, there are programs that permit them to do some kind of legal aid work in a way that works with their schedule and that can be done from home, on a tablet, advising, but not necessarily establishing an attorney-client relationship. We hope that may entice some of those folks to come into the public sector when they’re available and when it’s right for them and their family.

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Tuttle: Well, I’m a little bit speechless, as we came in armed with lots of prepared and broad-ranging questions and the Chief Justice has been expansively responding without any notes of any kind; I can see why you got high marks in debate and public speaking. So let me now ask you, once a petition for review has been granted, and we know that that is a rare event, what do you find makes the most effective merits brief? Are there approaches you find especially helpful or harmful, and what would be on your dos and don’ts list?

Chief Justice: Okay, so now you’ve cleared the first hurdle. You now have proven to us that your case is significant, because, after all, it’s gone through one to three judicial reviews, and you have cleared the largest hurdle, which is getting the petition for review granted. Once you begin your merits briefing, what we need to know is why you should win, stated clearly with examples drawn from case law and the facts in the record that apply. In short, what makes your case so much more persuasive than that of the other side.

Keep in mind, that in most instances, where the Supreme Court grants review, the question is really open to debate among reasonable minds. There’s very often a conflict in the Court of Appeal jurisprudence, and so there is no clear or right answer, generally speaking, by the time a case comes to the Supreme Court for review. If there was a clear answer, we would not be granting review and it could be found in the appellate jurisprudence. So when an issue comes to the Supreme Court, it is one that is really up for grabs in the sense that we realize there are two conflicting bodies of law with good reasons on both sides, and we need to clarify and provide one rule. Your job is to clearly, factually and honestly, represent why it is that your position should win.

Keep in mind that as you are arguing to us why it is you should win, the long-winded, hide-the-ball, relying-on-facts-not-in-the-record tactics, are not appreciated because we read the record. We read the record closely. We fight over the record. We fight over reasonable inferences and unreasonable inferences in the record. So be honest. Tell us what the record does and does not say. Explain why you read the record the way you read it.

Explain the policy behind the rule that you espouse and why we should adopt it. I guarantee you that in almost every oral argument before the California Supreme Court, when you are standing there at the podium, someone is going to ask you, "Well, what rule would you have us adopt?" Do not make it up right then and there-we can tell. You are coming to this court asking us to adopt your side, and in order to win, you have to have a sound reason for it. You need to have a rule and an analysis.

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In order to save yourself some time or to score points in oral argument, put your rule and analysis in your brief. Your brief is where you win. It’s not in the 30 minutes you get in front of us. It’s in your writing, and we read so much, that clarity, a road map, honesty and policy are all factors you should consider in the merits brief to persuade us how we should decide a case.

Johnson: I’d like to back up just a bit. The Court receives over four thousand petitions for review, yet issues only about 80 opinions each year. What can practitioners do to increase their chances that their petition might be accepted by the Supreme Court?

Chief Justice: A great question too. We receive many, many petitions. Many petitions for review are basically the end of the process after a black letter law decision by a court of appeal or lower court. So in order to actually have a petition granted, you need to know that we only grant review on certain occasions under several circumstances.

One, there is a conflict in the courts of appeal case law. Your petition for review has a greater chance of being granted when you point out the conflict or the tension in the cases that leads to mischievous results. Why should we intervene? That’s what you need to tell us—is there conflict, tension, or a concern that this law is going to be used the wrong way.

You also need to tell us that this issue happens with enough frequency that the Supreme Court needs to become involved. We see many meritorious issues, but we look at them, and we ask "Well how often does this happen?" And if it’s rare, then it’s unlikely that we will intervene unless, aside from the rarity, the issue is so significant to California that we need to step in.

You should also explain why this Court should hear the case. When I read petitions, mind you I worked in the Governor’s Office and in the legislature, I look at some and I may ask if this isn’t better resolved in the legislature? If there’s the language of the statutes, but differences about what the parties think the statutes should say, maybe you have a quicker fix through the legislature.

Those are questions we ask ourselves. Should we intervene? Why should we intervene? Is this the right vehicle? You may have a great issue, and it may even be one we’ve been searching for, because we do ask our staff to keep an eye out for certain issues. And so maybe your petition for review comes in, but it comes in on a demurrer, but we may think we’re going to need to get into facts and we’re limited by this record, so this isn’t a great vehicle to address that issue. Then you need to tell us why it is that we don’t have to be constrained by the procedural posture of the case and we should still get to the issue. Furthermore, there might be an interesting issue lurking, but you’ve already lost on another issue on the case. So, even if we could grant review, ultimately you are going to lose even if we write this new rule. We’re not really anxious to take on a case where the petitioner is going to lose anyway, so we’re not going to articulate a new rule unless the vehicle is otherwise perfect. So just put yourself in the shoes of a court of seven that sees four thousand petitions a year. Ask how do you convince someone at the petition conferences held every Wednesday in my chambers, to stand up and say to all his or her colleagues that we need to grant review on this.

Johnson: We’re often seeing scores of amicus briefs being filed on both sides of the cases that are up before our Supreme Court. Does anybody read them, and what in your opinion makes an effective amicus brief?

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Chief Justice: Yes we read the amicus briefs. I will say that I have seen outstanding amicus briefing at the Supreme Court, more so than I’ve ever seen at the court of appeal level. Here’s the beauty of amicus briefing from a justice’s point of view. As you know, we grant review based on the issue; we may rephrase the issue and we may pull one issue out of five issues. We work in very arcane areas. We work on worker’s comp law. We work in unfair competition. We work in billing. We work in many discrete areas.

An amicus brief tells us about the world in which we are operating. It tells us that if you rule a certain way, this is going to happen in the world you are tinkering with. Amicus briefs give us a more global perspective of the impact of our ruling or the impact of either side’s position because we won’t necessarily know the practice and procedure in that discrete area. So amicus briefing is really important. We read them and we rely on them. Some of the best arguments come out of amicus briefs that do not repeat the petitioner or respondent’s arguments. Briefs that repeat parties’ positions are not going to be useful.

We want you to tell us in amicus briefs what we would be doing, the impact of it, and give us a portrait of the universe. That’s what the briefs do and they’re helpful and we read them, we argue about them, we ask for supplemental briefing. And sometimes when we want briefing and we’re not sure we’re going to get it so, we actually say in our supplemental briefing request, oh and by the way would USDOJ please consider weighing in on this case.

Johnson: One last question. We’ve talked a little about oral argument, but does oral argument really influence the Court’s decisions very often, and what lessons can be drawn as to what oral argument is effective in influencing the Court? Are there certain styles that are a total turn-off?

Chief Justice: The United States Supreme Court has a different way of preparing for oral argument as you may know. There, oral argument is held and the justice is not assigned to write the opinion until after oral argument. But in California, at the California Supreme Court, we have an entirely different way of approaching oral argument and preparation of the case. We have what we call a front-loaded system. That means that after I’ve assigned the case to the Justice, and the briefing periods end and all briefs are in, the assigned justice will write a calendar memo. The calendar memo lays out the facts, the law, the procedural history, the attorneys, and the judge’s earlier rulings. The memo will also offer an "I conclude," or "I tentatively think we should do this" or "I tentatively think this should be the rule."

At that point, the calendar memo is circulated to the other six justices. We then all weigh in with our written views of the result and the analysis underlying the result. Once there are at least four votes in favor of the result, not necessarily the analysis, I will set the case for oral argument on the calendar for the next month. Now, at that point, when the justices are sitting on the bench during oral argument, we are very, very familiar with your case. We all bring different points of view, but what happens at oral argument is that the party has an opportunity to shape the analysis. Perhaps not often, but certainly I’ve seen dispositions of cases flip because of oral argument from the calendar memo’s conclusion. But always, almost universally, the case, as a result of oral argument, receives a better analysis to get to the result.

Oral argument allows us to refine the analysis and the ultimate disposition. It helps us to say "well we don’t want to go there now," "well we want to be narrow here," "we want to confine the result to the facts," or "we should not send it back to the court of appeal now because the parties told us it would do no good." But let me also say that oral argument is an opportunity, especially at this Court, to really hear what are the justices’ concerns. There is no bashful hiding of the ball; the justices come out and they will tell you what their problems with your positions are.

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If you were to take a step back, you might be able to determine a split in opinion, where the dissent is, and where the problems are in the analysis. So oral argument is valuable, and it does change outcomes. More often it changes the analysis. And I will say this, the ultimate rule that comes out of a case is always important. But it is the analysis that you brilliant attorneys take and apply in all its permutations. I think the analysis is as important as the result, and we fight more about the analysis than the result.

Johnson: Okay. I said that I was asking the last question, but I think we’d be remiss not to talk about juggling a family with a career. What are the lessons that you have learned on that topic?

Chief Justice: I’m still learning them, and they are the same issues you face. We have families and responsibilities; our children and our parents don’t care that we’re in meetings or on the bench, because they want to know right now, what’s for dinner. So I juggle the same as all of you, and do it with a sense of humor and a sense of privilege. But the truth is, Cheryl, I could not have accepted this job any earlier than I did in my career. I wouldn’t have left my kids in middle school with their father alone, not that that would not have been fine, but I have two girls and they are mommy’s girls and I had to wait until they got into high school. As a result of my spending half of each week between San Francisco and Los Angeles, they have become closer to their father. But it is always a learning experience. Every day is a learning experience, requiring a huge dose of humor while trying to eat well and stay healthy so you have the energy and the peace of mind to react appropriately. It’s a wild ride.

Tuttle: You’ve said of yourself, and I love this, you’re a "boots-on-the-ground-kind-of-girl." You were educated at publicly funded institutions from primary through law school. You’ve spent your entire working life in public service including nearly 20 years as a sitting judge. Does this background give a justice certain advantages and are there any disadvantages?

Chief Justice: Thank you, Kathleen. Well, I know that I call myself a boots-on-the-ground-person, and I say that in respect to our currently constituted Supreme Court. We have several people on the Supreme Court who are boots-on-the-ground like me–public lawyers, municipal court judges (when that level of court existed in California), superior court judges, and court of appeal justices. I feel I have sat in every chair in the courtroom; I’ve been a juror three times; I have sat through jury service to verdict twice. So I feel like I’ve been in every seat, though perhaps not the defense seat, but some of my closest friends are defense attorneys and I will say, I feel like I could sit in their seats. And yes, I think that makes me boots-on-the-ground as compared to some who, for instance, are very bright academicians. But together, we bring a blend that works in the correct way. So a boots-on-the-ground analysis always asks how well does this work in the real world. Both as a judge and a lawyer, when an issue arose, I, like you, run into the library, pull the Cal Reporter, flip to the headnotes, go to the page and then say this is my answer, this is what I’m going to argue. So I write for the practitioner and for the person who is going to use it. I consider that my advantage, as I think I’m very practical. We had some earlier discussions about why we are here in the Julia Morgan Ballroom, and I agreed with your conclusion because I am practical. It’s cheaper.

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(Laughter and Applause.)

EMCEE: Please join us in thanking our Chief Justice for a thoroughly enlightening and engaging conversation.

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1. Cheryl Lee Johnson is with the Antitrust Section of the Office of the California Attorney General and Editor-In-Chief of California Antitrust and Unfair Competition Law. Kathleen J. Tuttle is the Deputy-in-Charge of the Antitrust Section in the Los Angeles District Attorney’s Office. Both panelists are former Chairs of the California State Bar Antitrust and Unfair Competition Law Section.

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