The biggest problem facing the administration of justice in the Ninth Circuit (at least, according to a pool of lawyers surveyed)? Delay. Another one: judicial temperament. A corollary to that one: judges who stay on the bench way, way past their prime.
At the Ninth Circuit’s annual conference in Monterey this morning, panelists offered a common thread of advice for lawyers faced with these issues: reach out and tell the chief judge, whose job it is to field complaints (anonymously) that a lawyer can’t raise comfortably with the jurist on the case.
Chief Judge Alex Kozinski, who wasn’t on the panel, made it a point to come to the microphone and encourage tips about any judge who should be put out on disability -- emphasizing that the circuit’s Judicial Council has the power to remove someone on those grounds (Legal Pad was a bit distracted at this point, due to snoring emanating from the circuit judge sitting next to us, who likely hasn't run the hundred meter dash in under a minute for quite a while).
When it came to judicial temperament, Oakland Magistrate Judge Wayne Brazil generated a cascade of applause by admitting that yes, he has a problem. “I have an uneven temperament,” he said, adding that a complaint eight years ago from a probation officer was a blessing, because it made him aware of his issues.
If a lawyer feels unfairly ripped by a judge, Chief Bankruptcy Judge Peter Bowie of San Diego suggested ordering the transcript before making a complaint. That creates a cooling off period for the lawyer, giving the advocate a chance to examine whether they themselves shared part of the blame for instigating the judicial outburst. Then, if the judge still looks bad on paper, the lawyer has damning documentary evidence, Bowie said.
And delay? If a case starts getting moldy and a mild query to court staff goes nowhere, Arizona District Judge Neil Wake suggested enlisting opposing counsel to craft a joint request for action. If that’s not possible, do it unilaterally, he said.
Though he endorsed this tactic, Circuit Judge Sidney Thomas acknowledged the fears a lawyer might have. “Folks might be concerned to ask ‘What happened to my case,’ and then the next thing they get is the dismissal of the case,” he said.