Employment litigation: A judicial perspective

A former employment lawyer who recently served on the Los Angeles Superior Court offers practical guidance for employment lawyers

2016 June

I recently stepped down as a judge on the Los Angeles Superior Court. Prior to my appointment to the bench, I worked as an employment lawyer. I started my career on the defense side, but for more than twenty years, I ran a solo practice exclusively focused on plaintiff-side employment law. I was a lifetime-sustaining member of this organization. I was one of you.

I was asked to share some of my perspectives on employment litigation, especially with respect to the Los Angeles Superior Court. And I’m willing to do so, although I do have some filters. I will not discuss personalities; I will not discuss individual judges; I will not denigrate the court. If I offer criticism, it’s only to give lawyers a realistic perspective of the obstacles they face. My goals in writing this article are to address some of the more typical complaints lawyers have about the courts and to offer some practical guidance based upon my judicial experience.

Employment cases: Yet another “fender-bender?”

Employment lawyers, as a bar, need to do a better job of changing how judges view employment cases. Currently, the judges handling single-plaintiff employment cases, which are primarily those with Individual Calendar courts at the Mosk Courthouse in downtown Los Angeles, have approximately 400 cases each, with employment cases comprising nearly forty percent of their docket. Employment cases tend to increase a judge’s workload given the law and motion activity, especially with regards to demurrers and motions for summary judgment. Judges may recognize the importance that the case has to the parties involved, but the volume sometimes gets so heavy that employment cases are often greeted with a sigh rather than enthusiasm. The refrain, “this is yet another employment case,” echoes throughout the hallways.

The court truly values its relationships with the bar, but, generally speaking, the institutional bench-bar relationships within civil are forged primarily through representatives from four groups: CAALA, the Association of Southern California Defense Counsel (“ASCDC”), the Los Angeles County Bar Association’s Litigation Section and the Association of Business Trial Lawyers (“ABTL”). While some of these groups may have members that handle employment cases, when it comes to institutional meetings with the court, members of the employment bar – either through the California Employment Lawyers Association (“CELA”), the Employers Group or the Los Angeles County Bar Association’s Labor & Employment Section – are not invited to these meetings.

The court does not necessarily appreciate what most employment lawyers know: employment cases have unique rhythm and needs which distinguish them from the proverbial fender-bender. Judges handling employment cases tend to view them as troubling nuisances that clog their docket; they do not necessarily appreciate the fact that the cases often have more to do with civil-rights enforcement than personnel micromanagement.

It is one thing to complain about judicial attitudes towards employment cases; it is another thing to do something about it. My best advice to employment lawyers is to get involved with CAALA and other organizations. Judges are not hostile towards employment cases; judges simply don’t appreciate why there are so many cases, and why the cases have the volume of law and motion activity that they do. If you, as a community, don’t work towards changing judicial attitudes, no one will.

Exposing a jerk: Use informal discovery conferences

Employment disputes often involve asymmetrical access to information. Employers have a wealth of background information about the decision-making process and about other workers; plaintiffs generally do not. As a result, employment cases involve a fair number of discovery disputes.

Discovery disputes go both ways. I’ve seen plaintiff’s counsel being jerks about discovery, and I’ve seen defense counsel being jerks about discovery. But I don’t think I’ve ever really been able to identify the jerk by reading through law and motion papers.

The best advice I could give lawyers is to set up Informal Discovery Conferences (“IDC”) with the trial judge. First of all, the judge will appreciate that you are looking to resolve a dispute collegially. But it’s not just an attempt to take a professional highroad: judges can get a much better sense of who is being the jerk at an IDC than through your papers.

Lawyers need to appreciate that their colorful words and well-turned phrases often fall flat. For one, the judge may not review your actual papers; the judge might just review the research attorney’s synopsis of the issues in dispute. More importantly, to the judge, discovery briefing and argument often resembles Charlie Brown’s teacher in terms of sound and tone: actual language fades into unintelligible ambient background noise.

The difficulties with securing law and motion hearing dates will likely improve, but not dramatically. Hearings three months out can still be problematic. Be proactive about your discovery, and seek informal judicial intervention at the earliest possible opportunity. Serve discovery prior to your initial Case Management Conference (“CMC”), and if you foresee discovery issues, bring them to the judge’s attention there so you can discuss the judge’s IDC practices at the CMC.

Law and motion: It’s all about your papers

Judges talk about lawyers. For me, the Judges’ Lounge at Mosk is akin to Fight Club: one does not talk about what happens in the lounge. I will not talk about comments that other judges have made about specific lawyers. At the same time, though, I think it’s important for lawyers to know that judges are not immune to gossip and that lawyers’ reputations matter.

A lawyer’s reputation plays a bigger role at the time of trial than it might for purposes of law and motion. Judges differ wildly in their law and motion practices. Some judges do nothing more than rubber stamp their research attorneys’ write-ups while other judges independently research and write many of their own rulings. Reputations, good or bad, do not necessarily funnel down to the research attorneys. Most of them are far too overworked to pay attention to the names on the pleadings. Each research attorney has to cover two courtrooms.

Your success in law and motion will have more to do with your papers than with your name and reputation, although a well regarded lawyer or a well focused argument could truly trigger a judge taking a matter under submission. (As an aside, it should come as no surprise that often when a judge says that he or she will take a matter under submission it is really nothing more than a thinly veiled way of managing the calendar and getting on to the next case.)

Reputation building: The third trial is the charm

Trial is often a different ballgame from law and motion. Lawyers have very little control over which trial judge gets assigned to their case, but lawyers have tremendous control over which cases they choose to take to trial. Judges tend to remember lawyers that have tried cases in front of them differently from lawyers that simply appear regularly on law and motion matters. If your goal is to have the type of practice where you cherry-pick certain cases for trial, but hope to leverage trial success into large settlements down the road, you should focus on a small handful of trial judges with whom you believe you can develop a strong relationship…and take matters to trial in front of those specific judges.

Assuming that one acts professionally, by the time you have had two trials with the same judge, you will likely notice that the judge treats you differently at your court appearances and in the courthouse hallway. You are on their radar screen, which sets you apart from the lion’s share of litigators. While this shift may not alter the judge’s rulings on law and motion – especially if it is the type of judge that is merely deferring to their research attorney – it will undoubtedly help when it comes to your third trial with that judge. You may find close calls go your way in terms of evidentiary objections and special jury instructions. Lawyers should cherry-pick specific judges for trial more often than they do.

Using peremptory challenges strategically

Aside from questions about how one gets out of jury duty, one of the most common questions lawyers ask me is about judicial attitudes towards peremptory challenges under Code of Civil Procedure section 170.6. The truth is that most judges don’t care. A peremptory challenge is a strategic tool: use it.

Some lawyers mistakenly believe that a Code of Civil Procedure section 170.6 challenge would only result in a transfer to a small pool of judges that also receive disproportionate numbers of challenges. This might have been the case at one point, but is no longer the practice in the Los Angeles Superior Court. If one files papers against a judge, he or she will be randomly assigned to another judge.

When it comes to Code of Civil Procedure section 170.6, most judges believe that it is a license to commit perjury. Lawyers clearly want to shop for what they perceive as more favorable judges, but the Legislature did not offer lawyers a chance to simply engage in strategic decision-making: a peremptory challenge requires a lawyer or client to attest under penalty of perjury that a particular judge harbors actual bias. It may be troubling that judges do not seem to be bothered by this type of perjury to the extent they believe the peremptory challenge is rooted in litigation gamesmanship rather than bias, but – practically speaking – most judges will not harbor any animosity towards you for filing the affidavit.

There are a very small number of judges, however, who do seem to keep logs of people and firms who file affidavits against them. And every now and then a particular affidavit might become a subject of lunchroom conversation. My general impression, though, was that when judges speculate about why they are drawing particular peremptory challenges, it is just out of idle curiosity. I honestly do not believe that any judge would retaliate against you or your client for filing a peremptory challenge.

The bigger question lawyers face is rooted in why they would file a specific Section 170.6 challenge, not whether they should engage in the practice. With employment defense lawyers the litmus test seems to be myopically focused on summary judgment. With plaintiff-side employment lawyers, the peremptory challenge analysis should be more complex.

In Los Angeles, most employment cases are filed in the downtown Mosk Courthouse. I have zero desire to disparage any of my former colleagues – and I will not – but suffice it to note that there are some excellent judges hearing employment cases, and there are some not-so-excellent judges. Employment lawyers often try to discern whether a judge is pro-plaintiff or pro-defendant, but from my own personal “Inside Baseball” perspective, I never felt that any Mosk judge harbored a partisan agenda. While some judges may be more likely to deny summary judgment than others, this does not make them an excellent judge from a plaintiff’s perspective.

Fear in the judiciary

One of the things that I did not appreciate as a lawyer is how much fear there is within certain segments of the judiciary. Fear manifests itself in different ways. Some judges are afraid to voice their opinions about internal operations; some judges are afraid to take on particularly vocal or influential parties or lawyers; and, some judges are afraid of being reversed. Lawyers should not mistake a judge’s summary judgment record for a proxy on how they will be at trial. With some judges, denying a motion for summary judgment has more to do with a fear of reversal than anything else.

If you are looking to try employment cases, you must look beyond summary judgment when deciding whether to exercise a peremptory challenge against a judge. To me, the best judges were the ones who became intellectually invested in their decisions. As a private mediator, I have seen one sitting Superior Court Judge issue inconsistent rulings in the same case: on one day, the judge reasoned that the continuing violation doctrine applies to claims brought under the Unruh Act, and on another day, the judge reasoned that it did not. Judges can, and do, change their minds…but this was something different. These two rulings, on behalf of two different co-defendants, was a sign that the judge likely had different research attorneys work up the motions on different days, and the judge signed off on both of them. If you fear that a judge is not going to even change a comma from their research attorney’s recommendation, you might want to consider exercising a peremptory challenge.

Proactively using the settlement courts

There are significant differences between a settlement judge and a private mediator. As a former Mosk settlement judge, I always felt as if I had three clients in every settlement conference: plaintiff, defendant…and the trial judge. I viewed myself as something akin to a plumber: my role was to unclog the pipes so the trial court judge could focus on his or her law and motion calendar without also having to deal with the burdens of trial. As a private mediator, though, I’m no longer concerned about the court’s plumbing: I work for the parties.

There are times when a judge may be able to push for settlement in different ways from a private mediator. Indeed, there are times when defense counsel will tell a neutral that they cannot issue a mediator’s proposal. Sometimes mediator’s proposals can make life a little more difficult on the defense side, especially when the proposal triggers another insurance adjuster roundtable on authority or when the proposal must be brought to the governing board of a public entity. A private mediator may be more likely to defer to this type of defense edict than a sitting judge. If a mediator issues a proposal over defense counsel’s specific objections, the mediator has little chance of being hired again. The settlement judge, on the other hand, just wants to resolve the case and unclog the trial court’s pipes. Defense objections to a mediator’s proposal may mean little or nothing to a settlement judge.

Many times lawyers think of private mediation as an alternative to a Mandatory Settlement Conference (“MSC”), but the two processes can work together. Many cases resolve after going through both private mediation and an MSC. There are times when a private mediator narrowed the gap between the parties, and I – as a settlement judge – was able to close the deal at an MSC. And, as a private mediator, I’ve been able to close a deal after an MSC initially narrowed the gap. The settlement judges are committed to helping the parties resolve their cases and to lighten the load of the courts. Use them as a way of initiating discussions; use them to close a deal if your private mediator isn’t sufficiently engaged in post-mediation follow-through.

Considering filing cases in branch courts

Under the Los Angeles Superior Court’s venue rules, one can file most employment cases at the downtown Mosk Courthouse. The bigger question, however, is whether you should do so in a knee-jerk fashion.

Perhaps there was a point in time when the best and brightest civil judges in Los Angeles ended up at Mosk. If so, that is a relic of the past. Judicial assignments reflect many factors, and can seem arbitrary and unpredictable even to the judges. Seniority matters in getting a Mosk assignment. Politics matters in getting a Mosk assignment. Moreover, many judges want to stay as far away from Mosk as possible because of workplace politics and quality of life. As a result, there are excellent civil judges in the branch courts, and a well-litigated employment case might be a nice change of pace for those judges. If nothing else, you wouldn’t experience a glare from the bench at your first CMC, with the judge irked that yet another employment case has taken up space on their docket.

One also has somewhat more control over judicial selection in a branch because there are fewer judges in the Individual Calendar courts, where employment cases are assigned. In a two-judge branch, a strategically filed Section 170.6 challenge allows one to pick which one of the two handles the case (unless the defense decides to challenge the remaining judge). Of course, some branch courts have stereotypically conservative jury pools, so I do not necessarily recommend filing in those venues. My point is not that one needs to file in the branch courts, but that one should at least consider doing so in the appropriate circumstance.

Pursuing small claims cases for unpaid wages

Individuals may recover up to $10,000 in a small claims action. Compared to civil litigation, the forum is both inexpensive and quick. Matters are set for trial within 70 days; appeals are generally heard within another 60 days. One can have a final judgment, exhausting all avenues of appeal, within four months.

In California, small claims judges receive a Benchbook on frequently recurring substantive and procedural issues. There is a specific chapter dedicated to wage and hour law.

Many employment cases require extensive discovery; most wage and hour matters – short of retaliation claims – do not. While lawyers may not appear in the initial small claim trial, lawyers may appear on any appeal. And lawyers may ghostwrite briefs for their clients to present to the court, either at the small claims trial or beforehand.

Having sat in a small claims court, I am aware that several personal injury lawyers send clients to small claims for soft-tissue auto accidents. I am not sure how the lawyers get paid, but I’m reasonably confident that the lawyers receive some type of fee for their services even if the lawyer did not advocate on the client’s behalf. I saw a couple of dozen wage and hour cases, but none where lawyers were involved.

As a settlement judge, I handled several MSCs where I thought parties were much better off filing in small claims court than filing unlimited civil cases. With relatively small wage and hour claims, attorneys’ fees frequently became the single biggest obstacle to settlement. The claims were often filed as unlimited civil cases because the “soaking wet” value of the claim may have approached $50,000, but it was clear that the employer, many times a small family business, was not able to pay anything close to that amount. Often, the client received less than $10,000 as a net recovery from the settlement. Both the client and the lawyer may have been better served by pursuing a small claims case.

Writing articles for the Daily Journal

Most of the civil judges read the Los Angeles Daily Journal newspaper. If you want to advance a particular perspective on legal issues, write an article. If you want to start forging an identity with the court and become better known to the judges, write an article. But I would urge lawyers to resist the temptation to use the press to complain about the courts or about particularly troubling trial court or appellate rulings.

For the most part, the judges hearing employment cases lack a professional background in employment litigation. Indeed, many were not civil litigators prior to their appointment to the bench. The court takes judicial education seriously, and there are many opportunities for judges to learn the law, but a judge might be sitting in an Individual Calendar court for years before taking an advanced class in employment law. In Los Angeles, there are annual courses on arbitration or on the Private Attorney General Act (“PAGA”), but not necessarily on the nuts and bolts of employment litigation. And if there is a class, in all likelihood it operates on a basic 101 level.

As noted above, employment law is nearly forty percent of a civil judge’s docket; yet, there is not a single employment class at the two-week Judicial College every new judge must attend within their first two years on the bench. Most judges simply learn employment law as they go, which is why it is critical for plaintiff-side lawyers to submit articles to the Daily Journal if the CAALA community wants to take an active role in judicial education.

Conclusion

I feel incredibly fortunate to have had the opportunity to serve as a judge on the Los Angeles Superior Court. While there were aspects of working for a large bureaucracy that did not appeal to me, the experience provided incredible insight into both the criminal and civil justice system. But my professional focus has always been on the workplace, and I wanted this article to address the needs and interests of a specific constituency within CAALA: the employment lawyers.