Implicit arguments do not explain ‘Justice Delayed’

The conceit of a regular columnist is to be published even when one has nothing to say. For this, I cite Myron Moskovitz's "On Justice Delayed," published March 1. Oh, the reader can tell the author does not like Jon Eisenberg's judicial performance complaint about three members of the 3rd District Court of Appeal. But why?

The column's arguments are implicit, at best. They consist of war stories scrambled into an implied threat that making appellate judges work harder will impair the quality of their decisions. Indeed, the author adopts the personae of judges in a panel to threaten coin-toss, unexplained decisions. Among the column's flaws, there's no evidence of actual judges making such threats, and the imagined process would violate the California Constitution's requirement to produce reasoned opinions.

Let's state the column's proposition fairly and see if it stands up. The rule for which the column argues is that long delay is the price the people of California pay for careful and accurate appellate justice. The column impairs its own argument with two war stories, one hearsay, claiming many appellate judges don't do their work in today's environment. Setting this distraction aside, the people are entitled to the full package of prompt, careful and accurate appellate justice. The column does not explain why all these goals cannot be achieved together. Ifthe data analytics in Eisenberg's complaint are correct, a few outliers can't or don't do their work timely. This proves nothing about whether budget and docket conditions create an environment in which reasonable speed can be achieved only by impairing the substance of justice.

Having failed to prove its argument, the column nevertheless finds a cause to blame. That cause is the court's use of "law clerks." That term generally refers to recent law school graduates who serve a year or two apprenticed to judges. The California Court of Appeal employs few law clerks. The lawyers who support the court are long-term professional staff attorneys, distributed into central staffs and chambers attorneys. When these jobs open, competition to fill them is strong. In my experience, the staff attorneys are able, ethical public servants who work hard and, specifically, who read the records of their assigned cases. The column's defamation of staff attorneys is enough to justify calling it out here.

How to strive for the best appellate justice is a complex inquiry. Implicit arguments derived from war stories add no wisdom. Sadly, they can impugn reputations undeservedly. "Justice Delayed" did that. 

-- Charles A. Bird

Retired Partner

Dentons