A surreal trial: highlights of the proceedings  

 

A surreal trial - San Francisco Superior Court - cotin.org
The San Francisco Superior Court is on the right

( Every point listed here was put to the trial court, or offered to California’s First District Court of Appeal, or made in my appellate briefs )

• An untrained judge with none of the necessary experience

The San Francisco County Superior Court assigned the trial of a civil law case with a judicial officer for a defendant to a colleague of his, a judge in her late sixties — a former prosecutor and criminal law specialist with almost no experience of civil litigation. The list of all the civil cases ever heard by Cynthia Ming-Mei Lee, before the trial, could hardly have been shorter. Except for two probate cases, none of them were in, or related to, family law.

A case in a category that demands specialised judicial expertise

The trial court’s selection of this judge was even more surprising because determining the rights of ‘nonmarital’ partners is unusually demanding, even for members of the bench well-versed in civil law. Cases involving unmarried ex-partners require a judge with deep expertise — as in any category of litigation in which judicial officers are granted wide discretion, which they are supposed to exercise by drawing on trained instincts. ( See the Treatment of Law section.)

• ŸA judge who took no steps to compensate for her lack of expertise

In this area of law, there is a wide range of approaches to identifying and calculating economic damages — the monetary value of a claim. None of them are simple. But a trial judge with the essential background can help to clarify and narrow the options that apply to a particular case — or request testimony from expert witnesses. In this trial, the requests for such assistance by the lawyer representing me — after the judge openly acknowledged her inexperience — were repeatedly turned down. Yet she ruled against me confidently, and decided that I was owed nothing in damages.

A judge who substituted her private note-taking for court transcripts

The trial judge refused point blank to read the court reporter’s transcript — the objective, word-for-word record of everything said during the trial, not just testimony and the arguments of the lawyers, but her own statements and interim rulings. I had to file formal objections to this improper substitution and ask her to reconsider her insistence that relying on her own — private – note-taking during the proceedings would be adequate.

Litigants have the right to vet transcripts by court reporters for accuracy, but the judge did not offer her notes for inspection. My objections pointed to critical discrepancies between versions of trial testimony in her tentative statement of decision and the court reporter’s record. (See Treatment of Facts.)

A judge who communicated privately and unlawfully with the defendant

The trial judge requested certain portions of the transcript in unlawful ‘ex-parte’ or private communications with the defendant, my former partner. I heard about these in casual remarks he made about the ‘bizarre’ trial, after it was over, although he did not tell me precisely what testimony she had asked for, or which sections he sent her. A judge is required to disclose any ex-parte communication to all parties. Judges have been removed from the bench for violating this rule. (See Petition for Review, p.27.)

A judge whose abrupt and unannounced change of schedule hurt only one party

The trial set to conclude in a single day was unexpectedly extended — without notice in any form, posted anywhere — on the day chosen by the judge to announce her tentative statement of decision. This posed a particular handicap for the lawyer still representing me at the time. He had come to court without any of his notes or files, and was unprepared for argument.

But the defendant, a lawyer representing himself, was at no such disadvantage. As a part-time colleague of the judge, he could have known in advance about the unannounced extension. (See Petition for Review, p.24.) Giving notice of hearings and changes of trial dates is recognised as a fundamental requirement for fairness in California’s Rules of Court. For example, a judge must consider ‘the prejudice that parties or witnesses will suffer’ before granting the postponement of a trial, and if a court decides to dismiss a case, it must give all parties 20 days of notice for the dismissal hearing.

Ÿ• A judge who requested testimony at the trial’s end, then rejected it for that reason

At the end of the unscheduled continuation of the trial – and to make up for that lack of notice — the trial judge invited both sides to make new written submissions. Some of these were meant to answer questions she posed on legal points. Others related to trial testimony about the history of the relationship. My answers were rejected repeatedly on grounds that kept changing. The first time, her objection was that they were not on legal forms, even though she knew that I had only begun to represent myself less than two weeks before her deadline for the filing — for which I had to hunt for documents 15-20 years old. She also knew that I had no alternative to representing myself because the extended proceedings would entail new bills for representation.

After that, she supported my former partner’s demand that my laboriously assembled submissions be struck from the record on grounds strongly reminiscent of the trial in Alice in Wonderland: that the trial was over. This judge well past the usual retirement age certainly knew that the deadline she imposed for answering her questions had made that unavoidable.

Making all this even more mystifying was that my brief titled ‘Post-Trial Request for Information by the Court’ had been accepted without demur by the Clerk’s office, which screens filings for strict procedural correctness.

Ÿ• A judge who ruled in favour of a fellow-judge who supplied no proof or witnesses

The trial court’s eventual decision was based exclusively on the testimony of my former partner — none of it supported by either documents or witnesses. To be perfectly clear: he filed no documentary evidence and called no witnesses. Neither the trial court nor the appellate court addressed this remarkable lack of any substantiation whatsoever for his arguments. Nor did either court make any reply to my attempts in one pleading after another to draw attention to this fact.

A judge who ignored the rules for fair treatment of a self-represented litigant

The trial judge repeatedly refused to make any allowance for my abrupt shift in status to a litigant with no legal training or work experience, after I could no longer afford to pay for a lawyer. The American Bar Association’s Model Code of Judicial Conduct asks for ‘reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.’ The trial judge stated, instead: ‘There is no exception made for lay people with regard to the process.’

In my appellant’s opening brief (see p.38) , I drew the attention of the First District Court of Appeal to this inflexibility — particularly harsh for someone opposing a defendant with nearly four decades as a lawyer to his credit. The appellate court, playing deaf, made no comment on the acute imbalance of power.

( The First District Court of Appeal, in its opinion, said: ‘Barron … urges that the court did not act impartially but instead supported or deflected Meredith’s attempts to suppress or deflect the evidence because he was a judicial officer. … Barron fails to demonstrate that the court’s rulings were due to any partiality towards Meredith, or that she was prejudiced by the continuation of the trial beyond the initial one-day setting.’

A lay reader could make the mistake of believing that this settled the matter in spite of such overwhelming evidence to the contrary as I have outlined above. That is, anyone as naïve as I was before my disillusionment. But of course these panels of justices are also subject to overruling by appellate judges above them. Veteran appellate lawyers such as William Robinson of the Sixth District Appellate Program speak of a case being ‘slimed’ by a court of appeal when — as he explains in an essay published online — its opinion ‘distorts the facts, miscasts the legal arguments presented, ignores federal constitutional claims, and generally obfuscates the issues on the way to affirming [the judgment of the trial court].’ )