Antitrust and Unfair Competition Law

Competition: Spring 2017, Vol 26, No. 1

KEYNOTE ADDRESS: A CONVERSATION WITH CALIFORNIA SUPREME COURT JUSTICE CAROL A. CORRIGAN

Panelists: Cheryl Lee Johnson and Kathleen Tuttle1

For the fourth 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 Associate Justice Carol A. Corrigan. 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 Justice Corrigan. What follows is an edited transcript of that conversation.

MS. JOHNSON: It is our great honor to have with us today California Supreme Court Justice Carol Ann Corrigan. A few words about the Justice’s background. She was born in Stockton, the only child of a librarian and a Stockton Record newspaper reporter. The first in her family to receive a college degree, she graduated magna cum laude from the all-girls Holy Names College (now, University) in Oakland, where she was the Student Body President and received the Founders Medal. She briefly pursued a doctoral program in clinical psychology at St. Louis University, before the law called. She attended U.C. Hastings Law School where she was the Notes and Comments Editor of the Hastings Law Journal. After receiving her JD in 1975, she worked twelve years as a deputy district attorney for Alameda County, the last two as a Senior Deputy.

In 1987, she was appointed to the Alameda County Municipal Court bench and in 1991, was elevated to the Alameda Superior Court. Three years later, in 1994, Governor Pete Wilson nominated our honored guest to the California Court of Appeal, where she served for twelve years. During that time, she also served on a number of judicial administrative bodies, including the California Judicial Council, which determines policies for the entire state court system. Then-ChiefJustice Ron George selected her to lead the Judicial Council Task Force on Jury Instructions, and she devoted ten years to rewriting the state’s jury instructions into plain English. She received the 2003 California Judicial Council Jurist of the Year award, in part, for her relentless efforts reforming the state’s jury instructions.

MS. TUTTLE: In 2005, Governor Schwarzenegger nominated our guest to the California Supreme Court. That made Justice Corrigan the fifth woman in history to serve on our highest court. In 2014, Chief Justice Tani G. Cantil-Sakauye tapped Justice Corrigan to lead the Commission on the Future of California’s Court System.

When not serving as a "beacon on the bench," Justice Corrigan has taught law at several law schools and is very active in civic affairs. She is a long-time board member of the Holy Names University, Saint Vincent Day Home, and Goodwill Industries. She has taught at the National Institute of Trial Advocacy, receiving its Robert E. Keeton Distinguished Faculty Award, and for many years taught at the California Judicial College. Last year, she received the Judicial Counsel’s Excellence in Judicial Education Award. She has served on the President’s Commission on Organized Crime, and was a Special Consultant to the President’s Task Force on Victims of Violent Crime.

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We are fairly certain Justice Corrigan gets little sleep.

MS. TUTTLE: You actually went to school for clinical psychology, but then switched to law. How did this change come about?

JUSTICE CORRIGAN: When I graduated in 1970, there just weren’t a lot of women rushing off to law school, nor were there schools letting them rush in. I knew I wanted an advanced degree, and I said to my parents I was going into clinical psychology, which my parents both thought was voodoo, but they were supportive. So I went off to study for a doctorate and after a year and a half, it occurred to me all the people in the psychology department were nutty. I was really getting along quite famously with the law students, a couple of whom were women, and I thought I could do this. I called my parents and said what if I come home to California and went to law school? My mom said "Terrific!" Now, if I would have said "Mom and dad, I’m going to come home and became a hooker," my mother would have said "Terrific!" But I had always been interested in the law, I read fairly broadly in the law. When I finally figured out somebody like me could pursue such a degree, that was it for me, and I got to come home to California.

MS. TUTTLE: You are probably using some of your psychological insights in your legal career.

JUSTICE CORRIGAN: Occasionally. I worked as a psychometrist when I was in the graduate department. So in dealing with psychiatric defenses, it was helpful to speak the lingo.

MS. TUTTLE: During your law school days, far fewer women were in the legal profession. What career opportunities did women have when you graduated and what inspired you to become a prosecutor instead of, say, going into private practice?

JUSTICE CORRIGAN: Well, it is a multifaceted answer. I knew I wanted to do trial work, and there weren’t a huge number of big firms reaching out to hire girls to go into their litigation department. I was lucky enough to score an interview with the Alameda County PD’s Office. I was very interested in criminal law, and I was trying to figure out which side I wanted to be on. A friend of mine in college introduced me to a neighbor of hers, who was a judge, and a very wise woman. She said you know, that’s perfectly fine to go to the PD’s Office, that’s fine and you’ll be great there, but think about the fact that if you become a prosecutor you’re the one that gets to make the decisions instead of being the supplicant all the time, and you may find that you have more discretion. I was very, very lucky to have landed in the Alameda County DA’s Office. It was then and is now a great place to start your career.

MS. JOHNSON: You devoted a decade to rewriting California jury instructions. Thus, "innocent misrecollection is not uncommon" became "people sometimes honestly forget things". Do you think these changes made a difference and why do you think these reforms were valuable?

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JUSTICE CORRIGAN: I hope they made a difference; I spent ten years doing it. It seemed so intuitive to me. We ask civilians to come to court to apply the law. And if you’ve ever been a trial lawyer, you know the judge begins by saying, "ladies and gentlemen, you have to figure out what the facts are, and I will explain what the law is, and then you’ll take that law as I explain it to you and you apply the facts." That’s great. Jurors think "this is unusual for me, I am not exactly comfy here, but that’s okay because the judge is going to explain it to me." Then the judge launches into these instructions that sound like they were originally written in Serbo-Croatian, translated via Greek, to something that sounds like it’s from the Middle Ages, which is an awfully gimpy system, when you think about it. If you’re going to ask people to decide great big important things, and you tell them they have to do it according to a certain set of rules, it would be ever so entertaining if they actually understood what the rules meant. That was Chief Justice George’s vision when he brought together the task force, and we tried very hard to live up to that charge. It was not easy.

The law lives in its language. We don’t know anything about the law except what we say about it in words. You can’t look at it under a microscope, can’t taste it or weigh it. All we know about the law is what we say about it in the language that’s given to us. So we knew we were going to have to be taking precedent and translating it into more understandable language. If you change the words, there’s a pretty reasonable risk you may change the meaning. So that’s why it took us ten years to figure it all out. It was daunting, but well received. They are using them around the state still. So I guess that’s a good thing.

MS. JOHNSON: I know a lot of the lawyers are unclear on how the instructions are updated, especially in areas where the law is uncertain and quickly developing. Can you enlighten us?

JUSTICE CORRIGAN: There is a standing committee under the Judicial Council, and that is staffed by the original working lawyers. Part of their job, now that they have this body of extensive instructions, is to constantly monitor the changes in the appellate decisions and modify the instructions accordingly.

It certainly happens that from time to timeā€”you know how those judges areā€”they change the rules, and the instructions have to be updated or the law has been changed. If you find that there is either an instruction which is not completely accurate or if you are experiencing the application of some new law and you find the standard instructions don’t cover that principle, by all means, you should write to those committees because they meet several times a year, and they generally put out drafts of their recommended changes for public comment so that we can make sure that we don’t overlook something. So it is an ongoing effort. Once we got the two big books done, the updating continues just as happens with your research materials, I’m sure.

MS. JOHNSON: Let’s talk about the process that got you to the Supreme Court. Governor Schwarzenegger cited your pure brilliance and unimpeachable integrity. Those are good things to have and it is high praise from The Terminator. Are there other factors that helped propel your nomination to the Supreme Court?

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JUSTICE CORRIGAN: Other than sheer luck? You know, I really couldn’t answer that question with any degree of accuracy, but I will tell you two stories about my nomination.

So we went to be interviewed by the Governor, and in the room were the Governor and his appointment secretary and his chief of staff, now Justice Peter Siggins, who was his legal affairs advisor. So I am ushered into the conference room with this great big table and the Governor pulls out my chair for me, and across from me is Justice Siggins. And I had never met the Governor before, but my mother didn’t raise a stupid daughter. So I tried to be reasonably ready to meet the man. And everybody who did know him said a couple of things, that he is humorous and has a very intuitive sense about people.

I was being considered with two other candidates who were very cerebral, very formal gentlemen. And I don’t tend to be all that formal, so I was kind of planning this as I was driving up and thinking okay, you could try to be more scholarly and more cerebral and more formal and you’ll come across as a complete doofus, and you will not be giving the Governor an opportunity to really evaluate the candidate. So I thought I should just be me, as crazy a concept as that is. So I sit down and say "Governor, let me ask you, is this the seat with the ejector button on it?" And he said, "Oh, yes, I have the controls right here." I said, "Oh, that’s good, if I said something foolish, I wouldn’t want you to send Mr. Siggins out the window." I thought he is either going to love that or I am going back to the Court of Appeal and I am going to die there.

Time goes by and he has to evaluate who he is going to appoint. I have been known for staying late at work. There’s a message on my home answering machine at 5:15 p.m., "this is so and so from the Governor’s office and the Governor would appreciate it if you called us back." Now I am yelling at the telephone. So now it is like 7:00 p.m. or later. So I call. And the phone rings and the janitor answers the phone. It is all very secret. Everything is kind of under wraps and you’re not supposed to give away any of the Governor’s secrets. So I am trying to speak in code to this gentleman and trying to return a call. He says, "lady, I don’t know what to tell you, they are all gone."

Fortunately the aid who called gave me a cell phone number, and I called that number and there’s a message. So I have talked to the janitor and I have left a message on some nameless, faceless fellow’s cell phone. I am pretty sure that the Governor doesn’t call you to say you are not getting the job. So, now I am walking in my kitchen talking to the cat. Finally the phone rings and it’s the aide and he says, "Oh, thanks so much for calling. The Governor’s at a dinner and he asked whether or not it would be convenient for him to call you later when the dinner is over." I did not say "No, if he can’t talk to me now, forget it." So I said "Of course, and please tell the Governor that obviously he’s having a long day and if it would be more convenient tomorrow morning, that would be fine, too." So now I hang up again and there’s more pacing in the kitchen talking to the cat. About 10:15 p.m. the Governor was kind enough to call, and it wasn’t with bad news and it was very well received. As many of you may well know, when you are contacted by the Governor’s office, they usually say you can’t tell anybody this. We are going to release this, there will be a press conference in three days, so please don’t tell anybody. So I swore the cat to secrecy, and why he made this decision, you’d have to ask him.

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MS. TUTTLE: You are certainly the voice of experience in this room about all things judicial. Do you have any advice for people here who may be interested in, or who aspire to the Bench, about specific things they may do to enhance their chances of appointment?

JUSTICE CORRIGAN: It doesn’t hurt if you get a good reputation as being a smart and honest lawyer.

MS. TUTTLE: Should they get a cat?

JUSTICE CORRIGAN: It would help. Or a small dog. But I think generally speaking, appointing authorities from all sides of the aisle are looking at people who they really can repose confidence in. They don’t know you, so they are going to be talking to other people that know you. So, it is the degree to which you can be out in your communities, letting people get to know you as a professional and as someone more broadly interested in the community and in the way law operates to make our communities better.

So I was so lucky to be able to be involved in teaching and publishing and serving on boards. The advantage of that is not just building up your resume but letting people from all walks of life to get to know you and see what kind of judgment you have and whether or not you can sit in a ballroom and get through a luncheon and have your shoes on the right feet. All those things that people want to get a sense of before people want to give you one of these jobs.

MS. TUTTLE: You have said regarding your Supreme Court appointment, "It is a chance to be squarely on the firing line because we see some of the most challenging and pressing legal questions of our day." Has it lived up to your expectation?

JUSTICE CORRIGAN: Oh, yeah. People ask: Do you like your job? And I always say: If you can’t be happy doing this job, there’s just no hope for you. It is a fascinating job on the cutting-edge of the evolution of the law, and we are all law nerds, so it doesn’t get any better than that. To be able to help guide the future of California jurisprudence by writing these opinions in words, the only weapon available to us, is not only a fascinating job but a tremendous honor. And there are days when I think, wow, no one would have predicted this.

MS. JOHNSON: Now, historically the Court spends about 25 percent of its time dealing with habeas petitions and death penalty appeals. And then you have thousands of civil cases vying for review. What qualities make a case most likely to be reviewed by the California Supreme Court? And is there something a practitioner can do to enhance their chances of getting a review?

JUSTICE CORRIGAN: The whole Court meets every Wednesday usually for a morning, and we talk and we look at the cases where we have received petitions for review. There may be anywhere from 50 to 200 in number, and the list is divided into the A list and the B list, the B list being the snowball’s-chance-in-hell-list.

Here’s how you get on the A list: You write a good brief. That helps. And all the briefing is initially reviewed by a member of the central staff who writes a memo for the members of the Court. We are looking for a number of things. Is there a conflict in the law? Is this a question of policy that has to be resolved? Does this case raise an issue that is likely to recur? Is this a good vehicle procedurally to take on that question or is there some little wrinkle in the way the case was tried that is going to make it tough for us to get to the legal issue? Has the case been published? Because if it hasn’t been published, whether it is right or wrong, it is not going to create any broader mischief. Was there a dissent below? The difference between the Court of Appeal and the Supreme Court is that when you are on the Court of Appeal, you are functioning as a Court of error correction. So you are looking backwards to see what happened in the trial court. Did something terrible go wrong there and do you need to intervene in order to restrike the balance?

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On the Supreme Court, for our discretionary review, we are generally not operating as a court of error correction. We are operating as a court of policy. So we are not looking backwards so much as much as we are looking forward. Obviously there’s overlap always, but we take cases where we feel as though it is important for us to either clarify the law or make a policy statement about what the law is or should be. Often it happens that there’s a new initiative or there’s new legislation or there has to be clarity brought.

So to the degree you can keep those criteria in mind in petitioning for a review is helpfulā€”because we only grant review in about three percent of cases for which review is sought. Your whole goal at the outset is simply to get us to pay attention to see that there’s some good reason to take this one.

MS. TUTTLE: You say you need to write a good brief. What, in your mind, makes for a good brief and what approaches are effective and what is a total turnoff?

JUSTICE CORRIGAN: As with most things, there are very few ways to do what we do well, and there are lots of ways to do it badly. A good brief is one that answers those questions and tees up the policy question for the Court. We are not looking at your case in terms of whether you or your client should win. We are looking at it in terms of what kind of rules should we write that will help guide everybody going forward.

As to oral argument, it is always interesting to me because we will look out and say what’s the rule we should write? It is amazing the frequency with which the advocate will look back and across his forehead goes "what a great question. Never thought of that." That’s a question at the forefront for us. How should we use these weapons called words and articulate a rule that everybody can apply with some measure of accuracy and predictability?

So there’s that. Focus, focus, focus. It is important to have good record citations so that when you say this happened in the trial court, we can actually confirm it did happen in the trial court. Don’t lie. Don’t overreach. I think it’s important strategically to determine whether or not you want to settle for a narrow victory that may serve the interest of your client or may resolve the aspect of the question that’s involved in your case, or whether or not you want to swing for the fences. It’s important to know which before you write the brief and show up for argument.

And then there are all the things you know. Don’t yell in the brief, which means don’t put things in capital letters and bold and multiple exclamation points. It’s hardly ever a good idea to attack the trial court or the lawyer on the other side. You never know whether the trial court judge might have stood up with one of us at our weddings or we went to grade school together.

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But the degree to which you can articulate the question to be answered with specificity and then focus all of your briefing and argument to the resolution of that question. That’s the way we are approaching the case, and we are counting on you for help. So if we are both shooting at the same target, it is advancing the ball.

MS. JOHNSON: As you’re advancing the ball, is it helpful to have amicus briefs? Do you read them and what value do they have?

JUSTICE CORRIGAN: I think one of the things that we are all mindful of is that we are not experts in your field often, but we are going to be writing a case that may have to do with banking or the trucking industry or healthcare and the law of unintended consequences is always playing in the background. So when we articulate one of these really splendid rules that we come up with, it is reassuring to know we don’t have to shut down all of banking in America because we come up with a rule that has some fallout that was not anticipated.

I think that is one service that the amicus briefs perform. It gives the Court a broader understanding of the field in which we are writing. It also gives the advocates an opportunity to share the effort. When you’re the lawyer for the client, you have a certain approach that you need to take or that you want to take and you may find that your friends who write the amicus briefs can articulate things that perhaps your client wouldn’t be thrilled to articulate or they may be able to recast the argument in a different way than you, as the primary advocate, are prepared to embrace.

MS. JOHNSON: If your opponent comes with five or ten amicus briefs, aren’t you at a disadvantage if you don’t muster a lot of amicus briefs to counter such a fulsome presentation??

JUSTICE CORRIGAN: We are not quite that stupid. If you have written a good brief and you have made your case effectively and if you have told us what we need to know, if we get ten amici on the other side that say if we go your way it will be the end of Western civilization as we know it, sometimes that really doesn’t help. It is an overreach by an advocate.

You should be prepared to address those briefs or what may be telling arguments or what may have some surface appeal. Sometimes that happens, too. Sometimes, someone comes in and argues, of course, all right thinking people think this and it seems to track and make some level of logical sense. So you need to be prepared to say it is not exactly quite like that. I think the amici can be very helpful, but they seldom turn the tide either way.

MS. TUTTLE: I sometimes think that most of us lawyers became lawyers because we love to talk. What helps you the most when people appear before you for oral argument?

JUSTICE CORRIGAN: Write this down. Here’s the most important tip for oral argument. Just like your mother told you, eat a good breakfast. Since I have been on the courts of review, I have had two lawyers pass out at oral argument, and they didn’t eat a good breakfast. One was flying up from Los Angeles, and I forget what the story was with the other guy. We know that occasionally appearing in a court of review can be a little nerve-producing. So you might want to go light on nutrition because then you won’t be queasy. Think about it this way: If you eat a good breakfast, you might throw up, but if you don’t eat a good breakfast, you might pass out. If you pass out you’re done. If you throw up, you can keep arguing. You don’t have to have huevos rancheros, but have enough nutrition to advance your argument.

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Once you have a good breakfast, be clear on what it is you want to accomplish at oral argument. We have read all your briefs and the record and we have a draft opinion that everybody has reviewed and responded to in writing. So you are right down at the point of the pencil now. The way we approach oral argument is in part to test-drive the draft. We want to make sure that we don’t hit the speed bump of unintended consequences. We want to be prepared to ask you what you would think if we were to write this or that kind of a rule. Be prepared to say you can’t write it that way because it will shut down the trucking industry. I know you have heard this a thousand times, here are two answers not to give: "I will get to that in a minute." No, now would be a good time. Or, "that’s really not a very good question." Stupid. Occasionally you may be sorely tempted to give that latter answer, and you might even be right. But a good advocate is prepared to say, "Well, your Honor, if I could address that in this way…..," or "I could change the question just slightly." Sometimes when a politician is asked a tough question they answer a different question. That’s a high-risk strategy because we notice that.

First of all, answer the question directly. Don’t give us a 20-minute peroration on the question. If it can be answered yes or no, that would be great, and then explain. Or, if it can’t be answered yes or no, explain why it can’t be, or some variation on the theme. But you do want to be responsive to the question, because that’s the primary value of oral argument from our perspective. We come to oral argument with those issues in play, and this is your last best chance to grab us back from the brink of oblivion. Being responsive to the question is second to eating a good breakfast.

MS. TUTTLE: Can you think of an instance or two where you remember oral argument really turning the tide or making a difference?

JUSTICE CORRIGAN: I think often oral argument doesn’t necessarily turn the case around, but it can influence the way the opinion is drafted and how the rule is articulated, and the breadth with which we embrace the question. So you may not be able to completely lead us in a different direction, but you can nibble around the edges, and the edges may be important to you and your client.

You have all heard that you seldom win your case at oral argument, but you can lose it. My very first oral argument on the Court had to do with whether or not the City of Berkeley could allow the Boy Scouts to operate their Sea Scout program at the Berkeley Marina, I think that was the issue, it was Berkeley, the Boy Scouts and money. And the lawyer who was representing the Scouts was a Scout father lawyer, very capable fellow but constitutional and public interest law weren’t necessarily in his wheelhouse. Part of the issue was whether or not this was showing favoritism to a private group; whether as a public policy, the City of Berkeley should be able to make public spaces available to a private group. They were going on and on about the Boy Scouts and saying how wonderful they were, which was fine. And one of my colleagues said "what if it wasn’t the Boy Scouts? Suppose it was the Hitler Youth, would you say Berkeley should make that space available to them as well?" And he said "Absolutely, it is the same principle." Okay. It might be, but that doesn’t go down very easily. Now you are embracing the Hitler Youth, and you didn’t have to go there.

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You have to be mindful of that. In part, we are trying to look over the horizon to see if we write the rule this way, how far will it go, and how much latitude are we building into the rule? So those are the cases in which the mask comes off and you begin to become more concerned about the long-term consequences of not just deciding this case with a slip at the Berkeley Marina and the Boy Scouts, but how much more broadly might this go.

MS. JOHNSON: I will pivot to ideology. In a Daily Journal article you said you wanted to be a judge that is known as not being necessarily predictable but not wildly unpredictable. Elsewhere people have described you as a moderate and having an ideology and being a "beacon on the bench". Do you think you have an ideology and what role do you think it has in decision-making?

JUSTICE CORRIGAN: The term "ideology" is one of those Rorschach card terms. It means many things to many people and there are all kinds of ideologies. My belief is that we didn’t get these jobs just because we are smart and good-looking. We were given these jobs with a huge amount of authority to apply the law as it’s enacted by the people or their elected representatives and to foster the policies that underpin those laws.

We are not "Ambassadors without portfolio" emboldened to do good by our own likes. We have a wonderfully diverse state and political system, and judges, I think, need to be mindful of that. We are not there just to call the balls and strikes along the way that we like the case to come out. So if I have any ideology, I would say that that is it. I try to go where the law takes me, not necessarily where I’d like to take the law.

MS. JOHNSON: Over the last three years we have seen the Court welcome three new justices, all from heavily academic backgrounds, all under 47, and all from Yale Law School. How have these judges changed the Court’s culture and decision-making?

JUSTICE CORRIGAN: The Court’s like a little family of seven people, and any time you change somebody in the family, you are going to change the dynamic of the family. These three new colleagues are wonderful, blindingly smart, dedicated people. Because they have come to the Court from a different route than some of us others did, they bring a different perspective. They enrich the Court in ways that go beyond just having been a trial lawyer and trial judge. So that part has been wonderful. We try not to hold it against them that they went to Yale, and that goes for anyone. They are so accomplished in their own right.

Particularly with Justice Kruger, who was an oral advocate before the Supreme Court on a number of occasions, she brings that measure of insight into appellate advocacy that many of the rest of us don’t have at the forefront of our experience. They have brought a wonderful intellectual rigor. They have brought wonderful new ideas. They are looking at the diamond through a lot of different facets, and that’s all to the good.

MS. JOHNSON: Chief Justice Tani Gorre Cantil-Sakauye chose you to lead the commission on the future of California’s court system. We know this is an extremely important commission. What is its mandate and mission, and what do you hope it will accomplish?

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JUSTICE CORRIGAN: It has a very broad mandate, and it is essentially to say here we are in the first quarter of the 21st Century, look at the way we do what we do in our courtrooms and see what we can do differently, and more effectively to make justice more efficient, but more accessible to people.

When you think about it, what you encounter in a courtroom today is very similar to what you would see if you watched any of the great courtroom dramas going back to the beginning of the 20th Century. Remember that great Spencer Tracy film, "Inherit the Wind" where they were doing the Scopes Monkey Trial? We do things pretty much the same. We don’t have the fellow with the big handlebar mustache taking it down in shorthand, but you would recognize what we do every day going back 100 years or more in court proceedings.

We live in one of the most expansive forward-looking places on the planet. There might be things we can learn in the last couple hundred years and from all of our technology. A lot of what we are looking at is trial court efficiencies and accessibility issues. A couple of examples. In every county in California, every morning in the dark, thousands of prisoners are awakened, given a sack lunch, put on a bus, driven in traffic to a courthouse where they sit in a holding cell for a 90-second arraignment at usually about 4:30, and then driven back. That is blindingly inefficient. There is no reason we can’t do video arraignments and appearances, not only in criminal but in civil courts.

The ability of people to access the courthouse and the justice that reposes there in ways that don’t require them to drive 50 miles each way or that don’t require that they take an entire day off are aspects of what we are looking at.

If you are doing an arraignment in Redding and the defendant speaks Hmong, well, what we do now is we put the case over, we find somebody who speaks that language. We pay them to drive to Redding for a 90-second arraignment, and then pay them to go back again at the next appearance and the next one. There’s no reason why we can’t do a much better job of making translation services available for those defendants and civil litigants as well by using technology.

We are looking at the way we prepare court records, the way we store them and the way we all have access to them that takes advantage of not just a court reporter sitting in that room doing whatever it is they do on those little machines.

So we are looking at those issues along with lots of others.

MS. TUTTLE: We are so grateful to have you here with us today. You have said at least once that you view yourself as an old-fashioned book freak who enjoys sitting in her Oakland home reading philosophy, history and mystery books. If marooned on an island, what books would you want with you?

JUSTICE CORRIGAN: Shakespeare. Because if I didn’t say Shakespeare, you’d all think I was a Neanderthal.

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MS. JOHNSON: Since you are an Oakland resident, do you have any favorite team that you support?

JUSTICE CORRIGAN: It is hard to be an Oakland team supporter these days because they keep leaving, or trying to. I am a fairly big sports fan. I have to confess, and I know this will alienate half of your audience, I am not a huge baseball fall, although I was very happy to see the Cubbies win. I am a big football fan, but more college, so Notre Dame football.

MS. JOHNSON: She has a Notre Dame cover for her iPhone.

MS. TUTTLE: Because you teach there.

JUSTICE CORRIGAN: I do. I am an adjunct professor there.

MS. JOHNSON: I will ask one final question. Could you could share a memorable experience from your time as a prosecutor.

JUSTICE CORRIGAN: I see Sam Miller in the back of the room. And his wife, Maude, was a public defender when I was in the District Attorney’s office. We had a murder case together. She came to meā€”and this was in the era when the prosecution, quite rightly so, had to give complete discovery, but the defense had to give none. That was a pretty exciting ride if you were a prosecutor, because you rested, and then all kinds of exciting things happened. That was a very closely held strategic advantage that defense counsel loathed to give up.

But in those days, Maude came to me and said you really should think about this case because you need to give this guy a break. She sat in my office. I had a big stack of paper in which maybe I could find the right document. Maude’s preparation materials were color coordinated and tabbed and very organized. She laid out her defense for why this defendant had acted in self-defense. It was a risky move because she didn’t have to give me any of that. As a result of that presentation, my investigator and I went out and talked to a lot of people in the community, and we said, you know, some people have told us that Fred acted in self-defense and the witness said oh, yeah, everybody in town knows that the other guy was a bully and poor Fred had to act in defense. Having done that investigation, I was in a position to dismiss the case.

To me, that is as important a part of being a good prosecutor as winning the cases that you should win. I was schooled in the Alameda DA’s office to believe that every time you walk into a courtroom, you never ask a judge or jury to do something you wouldn’t do if the roles were reversed. They said, when you go to court, you should have the mindset that justice is a conviction not because justice is always a conviction, but because you have made a judgment that here in this case justice is a conviction. And if it isn’t, you shouldn’t pursue one.

So if you have the latitude as a lawyer to be able to operate in that kind of environment where you are getting paid to do the right thing by your own lights, it doesn’t get much better than that. That’s why I often say that was the best job I ever had, including the job I have now. So that’s not so bad.

MS. JOHNSON: Again, Justice Corrigan, we thank you so much for being here today.

[Page 128]

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Notes:

1. Cheryl Lee Johnson is Deputy Attorney General, Antitrust Law Section, Office of the California Attorney General; Kathleen J. Tuttle is the Deputy-in-Charge, Antitrust Section, Los Angeles District Attorney’s Office.

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