Monday, July 15, 2013

Welcome to the Jungle ...

I spent three years clerking for various judges in federal district court in Los Angeles before starting as a law firm associate in the LA office of Kirkland & Ellis. By the time I started my practice, I was really comfortable with federal court.  I knew the rules, the general orders, and, to some degree, the procedural peccadilloes of many of the individual judges on our rather large (by federal standards) court.

I knew next to nothing, however, about state court trial practice.  My only state court experience was a two week stint of jury service in a fender bender case during my clerkship.  From that, all I knew about state court was that, compared to federal court: (1) the lighting was bad; (2) the hallways crowded; (3) the courtrooms tiny; and (4) the attorneys far less deferential to the judges.  (They did, however, have a better cafeteria.)

It was only after about a year with the firm, in a practice that was, back then, mostly devoted to federal white collar criminal defense, that I was put on my first civil case in California state court.  The first order I received in that case was an opinion on a demurrer.  The order chastised me for not including "a demurrer" in my filing, although the court stated it "was able to puzzle out" the grounds from the brief and mostly granted the motion anyway.

"What is this?" I asked my soon-to-be-state-courts mentor Jeff, a reluctant but wizened hand at state court practice. "So under Rule of Court 3.1320(a), I'm apparently not only supposed to file a notice of motion and a memorandum, but also a separate document called a 'demurrer,' which just lists the causes of action and says I'm demurring to them?  What is the point of that?  Why require such a worthless piece of paper?"

Jeff smiled a little and leaned back in his chair. "Welcome to the jungle . . . ," he said. 

In the years that have passed since, I have had many many more cases in California state court, dealing with every step along the way from filing the complaint through review by the Supreme Court.  I have, in my own time, had the pleasure of giving a welcome to the jungle speech to more than a few young associates who have been trained to think of a world with only 86 rules.  Somewhere along the line, the firm had a lapse in judgment and decided to make me a partner.  I have had countless conversations with colleagues from around the country to the effect of "you can't do that in state court in California."  And, for better or worsemostly by sheer accidentI somehow have managed to become a go-to guy on the finer points of California Civil Procedure.

So what's with the blog?

California's Civil procedure is daunting.  Many peculiarities make California procedure different, and more difficult, than most anywhere else. Between the sheer number of overlapping and often contradictory rules, the uneven enforcement of those rules in the superior courts, and the paucity of case law on many key issues of procedure, California procedure is very much, as Jeff described it, a junglewhether you favor Upton Sinclair (where the sausage is made and the participants sometimes end up in the product) or Axl (where you can be brought down to your na-na-na-na na-na-na-na knees, knees).  It is full of traps for the wary and unwary alike.

So in this blog, I intend to provide coverage of recent decisions of the California Supreme Court and Court of Appeal that address state court procedure. I'll do my best also to discuss revisions to the Code of Civil Procedure and the Rules of Court. If I'm lucky, I can get some help and maybe some interesting guests.

And along the way, we'll hope to have all the fun we can.

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