Transcript

Miles Cooper: Howdy and welcome to the show. Cooper’s code focuses on legal issues and noble practitioners distilling wisdom. So we all achieve the best results for our clients. I’m Miles Cooper, and I’m thrilled to sit down with today’s guest. The Honorable Jeffrey Brandt, recently retired from the Superior Court of California, County of Alameda.

There’s a lot to unpack with Judge Brandt. A preliminary one being, which honorific it outranks. Because in addition to being Judge Brandt, he’s also Dean Brandt. Having served as the University of San Francisco Law School’s Dean from 1999 to 2013. During this time, Then, Dean Brand oversaw the transformation of the law school’s facilities, including faculty expansion, a new library, and complete reconstruction of the main hall.

Simultaneous to this, he expanded clinical offerings, international courses, internships, and global justice programs, including efforts in Cambodia, Vietnam, Indonesia, China and East Timor. He’s twice been a judge, his prior stint being as an administrative law judge for the California agricultural labor relations board, been a title seven civil rights litigator, a criminal defense lawyer, public defender, and let’s not forget managing partner of Wait for it because it’s not a law firm.

The Reno Silver Sox, a class a minor league ball team in the California league. If you’re enjoying what we’re doing here with Cooper’s code, please help us extend our reach by giving us a five star review on Apple podcasts and consider sharing an episode with a friend. Welcome to the show, Judge Brand

Jeffrey Brand: Thanks a lot.

And Miles, it was good to reconnect with you. I was surprised to get the email and it’s great to see you again.

Miles Cooper: Well, it’s nice to see you too. So since we last interacted, I was an evidence student in your class, probably in 1999. And I will tell you. Part of this is to settle an old score. And that is that you suggested I delay taking remedies because you’d be teaching it again my third year.

And instead of teaching remedies, you became Dean. So I, one of my favorite classes throughout law school, uh, with my favorite professor, I was unable to take another class.

Jeffrey Brand: Well, I’m, uh, things did, events did intervene. So, uh, I’m sorry about that, Miles, but, uh, um, first of all, I appreciate your comments about the evidence class because I really do think, and we can talk about this maybe later, that Uh, the evidence code in some ways distills all the values we hold as a democracy.

And uh, that’s a separate topic, but I appreciate your comments about the class.

Miles Cooper: Well, I don’t know that I can hold on to a thread and come back to it in that same way. And, and I’d love to follow, follow that down where it goes.

Jeffrey Brand: Yeah, let me just say this. I’ve, I’ve thought a lot about this topic and that little volume, that’s the evidence code allows, uh, judges and lawyers, but judges to do an amazing thing to decide what evidence will be admitted at trial to not only determine liability.

But to determine whether or not somebody may go free or not. And if you look at those rules, they’re really based on the values that we have, trying to be fair, trying to be. impartial, trying not to let prejudicial evidence in, making sure that evidence is reliable. If something’s said by somebody else, and that somebody else isn’t subject to cross examination, we have a rule that eliminates it.

And it’s a good rule. And so I just think those notions of reliability and relevance are really what undermines or, uh, Underlies a fair trial and I always tell my students that this volume may sound really technical to you But really it’s quite simple and that’s what it’s about. So I always view teaching evidence as a privilege

Miles Cooper: I found it like doing crossword puzzles because it was a challenge to figure out how I have this piece I want to get it in front of a jury.

How am I going to get it there?

Jeffrey Brand: Absolutely. And of course, as judge and being the gatekeeper, it’s a much different role and it’s an awesome responsibility to decide, you know what, 12 folks aren’t going to hear this piece of evidence, but they may hear this piece of evidence. It’s a judgment call and it’s never a simple one.

Miles Cooper: Before we go down the path of your role with the judiciary, I’d, I’d like to take us back a little bit. Sure. And being, uh, a lawyer who was always trained to kind of go through my direct examinations in a chronologic fashion, I wanted to start by exploring what originally drew you to the law.

Jeffrey Brand: What drew me to the law, uh, is what drove me away from medical school.

In 1965, I was a junior at Cal and they had a program where you could go to medical school after three years. It was the middle of the 1960s. So much was going on on the campus. And all of a sudden I found myself having just turned 20, a first year medical student, and decided that I was just too young to do that.

I left UCSF, came back to Cal, and then really was attracted to, uh, the civil rights movement during the 60s. Uh, did work, uh, ultimately in Mississippi during my first year of law school. But I think it was a desire. To, uh, have an impact and to, uh, do something that might promote social change. Now, in retrospect, as an adult, this notion that somehow you couldn’t do that in medicine is ludicrous.

Um, medicine is an incredible profession. Uh, people give their lives to medicine and do so much good. But at the time, I was young and What really drove me to law school was staying involved and feeling like I could make a difference.

Miles Cooper: Am I remembering correctly that you ended up with a fellowship of some sort after law school in terms of making a difference?

Jeffrey Brand: I did. I had the privilege of being a research attorney for, uh, Uh, then Professor Frank Newman at, uh, BOLT at, uh, Berkley Law. And, uh, uh, after I, uh, graduated law school, I had a fellowship in New York. Uh, it was called the Reginald Heber Smith Fellowship and did, uh, Landlord tenant work in Hunts Point, which kind of looked at that time, like Dresden after the war burned out buildings, uh, horrific social conditions and, um, was in legal services for a year plus.

And my wife and I both from California, we’re going to go back to California. And I called Frank and said, you know, we’ll do anything that, you know, you need, but we’d like to travel. So if you have any ideas on things we could just do. I wasn’t looking for a job and, and, uh, Professor Newman was kind enough to say, well, uh, the law school just got a bequest for a canon law library.

And um, he was interested in how it could in some way focus somehow a little bit on On human rights issues. So we ended up traveling for a year and I was kind of Frank’s, uh, new research assistant on the ground. It was an incredible year. And we went around speaking with, uh, religions of all sorts. I met wonderful people and we talked a lot about, uh, what kind of, uh, human rights statutes or regulations or things dealing with the human condition.

That, uh, might be of interest, and ultimately, I’d help to draft an acquisitions policy for a small, very small portion of that, uh, the Robbins Collection, which remains one of the great canon law collections, as I understand it, in the world today, and, um, I didn’t play much of a part in that, but I like to think that, uh, what we did that year was helpful and helped to direct a bit of the money for, uh, materials that Frank was so interested in.

I will say this about, uh, Professor Newman, uh, and I don’t think he ever gets enough credit for this. Uh, of course he was at Bolton, he was then on the California Supreme Court, but he truly was one of the fathers of human rights law. When he started teaching his international human rights class at Berkeley, I think I took it in 1967.

Um, people didn’t know much about it. Uh, a small part of the world did. And Frank really helped to pioneer for that. Uh, and so I’ve always had huge respect and was deeply grateful that he gave me and also my wife the opportunity to do what we did.

Miles Cooper: As I look at your career. I see a theme between the civil rights work that you did with being involved in Mississippi and then with all of the missions that you established through USF in terms of outreach to countries that had been through trauma.

Is there something about your background? That or your upbringing that you feel influenced your, your drive in this direction?

Jeffrey Brand: I think that’s a good question. Um, first of all, I do see a through line through my work. Um, I’ve always wanted to do things. First of all, that I had a passion to do. And secondly, God forbid were fun to do.

And I’ve been blessed to have a life, a work life that has let me do Both of those things, and what made me leave UCSF, even though I was 19 or 20 at the time, uh, I like to think has driven my entire legal career, to try and be involved and to use the law in a way to help people, and, uh, particularly as I got more into the decision making end of it.

And that’s a whole separate topic because, uh, um, it’s very important to me that the courts be fair. Um, but yes, there, uh, there is that through line. And I again, uh, attribute my interest and my desire to engage in social justice related activities to my, uh, youth and, uh, Watching the horrors of McCarthyism, uh, knowing people, uh, whose families grew up and who were harmed by what happened in the 50s and being blacklisted and their careers denied.

Um, and then as a matter of fact, when I, uh, uh, applied to college, eventually, you know, I was a kid in the San Fernando Valley in Los Angeles. Uh, we really had no money. I didn’t understand what private schools were. There was only one place I wanted to go and that was Berkeley. And part of that was driven by a book I had read.

Uh, that described what happened with the House Un American Activities Committee and with HUAC and the, uh, and the horrors that that brought. And then, of course, became familiar with. What was going on in the South at the time and, uh, Berkeley seemed like a place where those kinds of desires to be engaged could be fulfilled.

And, of course, it turned out that that was, that was true.

Miles Cooper: Do you recall what that book was with the House of Americans?

Jeffrey Brand: I do. It was called The Student and it was about Berkeley students during the 19th century. I think, I still think that a great history of the 1950s remains to be written. There’s a lot written about the 1960s and all of that, but there were a lot of heroes in the 1950s that I think, uh, people don’t know about.

But The Student for me was a book that motivated me to want to, uh, go to Berkeley. Interesting. And of course a lot of kids that I went to high school with went to Berkeley. It seemed like we all went to Berkeley. It was a different time in terms of getting into Berkeley, uh, not like it is now.

Miles Cooper: Well, uh, my, my wife and I both went to Berkeley, so apparently they’re, they’re, they’re There, there are a few people who have gone to it, but I think our experience was probably different than life there in the sixties.

Jeffrey Brand: It was a wonderful experience. Um, and I, and I’m proud of, uh, the, the civil rights work that was done both, uh, in the Bay area and also, uh, in the South, that’s what drove me there. And I look, I’m happy that you perceived in my resume. What I think is true.

Miles Cooper: What are the piece that I think is, is important, particularly for our younger listeners is your comment about finding things that were both fulfilling and brought you joy or happiness in some fashion.

Can you expand on, on that at all in terms of wisdom that you would share with people who are early in their career as far as making right choices for themselves? Because I know people come out with a large law school loans, worries, um, Fear of people’s public opinion, um, and that sometimes motivates them more than doing the thing that’s best for themselves.

Jeffrey Brand: Yeah, and I, this is gonna sound, uh, to some extent like cheap talk, uh, and I understand the critique of what I’m about to say. Look, when, uh, I went to school, things were a lot different than our kids have it now. Berkeley was free. When I started, I may be making this up. But in 1962, the only charge that I remember aside from being in the dorms, which was.

Maybe 800 a year total was the activity card. The activity card was so you could use Harmon gym and work out to the extent we knew what working out was in those days and B. So you had a ticket to the football game. That was it. Um, so the notion of debt. Did not exist for most of us at that point, there were some that had to do some borrowing, but this is completely different now.

So to answer your question directly, my advice in looking back now, and I hope I tried to do this during my own career, uh, was to do things that. Uh, uh, did play to my passions and to not pursue choices that I think were not consistent with them. Now, that’s not to say. So for example, uh, many people went to large law firms.

Large law firms can do wonderful work, but it just wasn’t right for me. I didn’t feel I was, that was where I should be in it. So I acted on that instinct. My first job with the Reginald Ebersmith Fellowship Program was a, uh, an outgrowth of the Office of Economic Opportunity, uh, that Johnson had created.

And one of the things they created was for the first time a robust attempt to create legal services throughout the United States. So when that kind of opportunity came up, Uh, that’s what I wanted to do, that’s what I thought would be fun, that’s what I thought would, uh, light a fire under me, ignite me, and, uh, it turned out to be true.

Some of my best friends remain people that I met in Hunts Point, in the offices we shared. On an upstairs rundown but not burnt out building in Hunts Point, I want to come back to where I started with the answer, which is the debt now, the student debt now is backbreaking. Uh, we experienced it at the law school.

Every law school dean experiences it. Every law school dean worries about it. Uh, when students now are graduating with 200, 000, 300, 000 debt, and I’m talking about figures now that for me are a decade old, I assume it’s much, it’s worse even now. Uh, it’s easy for me to say, you know, follow your passions, follow your heart, follow your gut, uh, but it’s not so simple now.

And I understand that. And I’ve had a lot of talks with students about that. Some very angry at the debt they were graduating with, um, trying to talk through how they might be able to do what they really wanted to do, um, despite The adverse economic circumstances that they now find themselves in, many of them.

Uh, for some, uh, who want to go into bigger law firms that pay disparate salaries, uh, compared to the public sector, they have it a little bit easier. But even for them, Even with those salaries, given the cost of living now, particularly in towns like San Francisco, it’s not easy. So I would say across the board, I think my advice is great, and I also think that, uh, my advice, uh, deserves words of caution.

And, uh, humility from myself knowing that circumstances are extremely different. Now that makes sense. When I was in legal services, we were paid 9, 000 a year. I know I sound like my father saying that he and his sister went to the movies for two for a nickel if they sat in the same seat, you know, but my point is that those that went, for example, to Cravath, which was Cravath Swain at the time was probably Uh, the largest and most known law firm and, and on Wall Street at the time, there, the salary was 12, 000, 13, 000.

So the, the disparity, like everything else that’s happened in the country has just gotten. Bigger and bigger to the point where there’s, we’re trying to manage a lot of crises around at all.

Miles Cooper: Yeah, and, and my pause is to try and inject some sort of uplift in, uh, the, the notion that people can follow their heart and follow their passion.

I think it is a challenge at this point.

Jeffrey Brand: Absolutely. It is. But, but that’s why I think this generation deserves all the credit in the world. You know, in some ways for us in the 60s, 70s, um, it was easy. Uh, as I say, the economics were completely different and there were lots and lots of people, uh, doing kind of the same thing we had each other.

And now it, I think it’s a much more, uh, divided atmosphere. Um, it’s difficult, the public sector, and this is by Democrats and Republicans together have over the years, uh, maybe for some valid economic reasons. But have largely, uh, diminished, I don’t want to say destroyed, because there’s a lot of wonderful people working in the public sector and doing great things.

But the availability of public sector jobs was simple when I applied. And now it’s much more difficult. So I really credit. Uh, the last few generations of students that have been able to weather it and still do what they want to do and have been doing wonderful work along the way, have a lot of respect for them.

Miles Cooper: So as we talk about public sector, uh, wanted to segue into what I believe is your, your next step in your career path. And that was as a public defender. Can you tell us a little bit about what, what brought you to that role?

Jeffrey Brand: Well, I think it was kind of the same that I’ve, uh, motivation. I wanted to, uh, do something that I felt was helping people who were, uh, marginalized in one way or another.

And I also felt strongly that, um, to the extent that somebody is deprived of their liberty, uh, good lawyers for the defense, regardless of a defendant’s guilt or innocence, were critical to make sure that the state met their burden of proof. Which we all hold so dear. And, um, the, for me, the public defender position was one that was a natural.

Um, I had a lot of fun doing it. I was in Contra Costa County. I worked with, uh, many lawyers, many, uh, who, uh, Um, some went on to become wonderful judges, um, some went on to the Court of Appeal, and it was a very exciting time. And actually, we got along with the district attorneys, uh, wonderfully. They were also excellent lawyers who, by and large, you know, Provided the information that we were seeking, so it was, I thought it was a, uh, a good relationship, a productive relationship and one that was hard fought as well.

Miles Cooper: And I know it’s going to vary from county to county, but the, the friends I’ve had who have been public defenders or district attorneys. They seem to all kind of hang and quite honestly party together in terms of there’s a hard fought during the day and let’s go drink at night and

Jeffrey Brand: well that I will say that’s interesting you say that because then we didn’t do

Miles Cooper: interesting.

Jeffrey Brand: I didn’t like the idea of fraternizing in that sense. Obviously, I, we wanted constructive relationships and there were some incredible. The lawyers who were district attorneys in Contra Costa County at the time. Um, but we weren’t drawing our friendships based on what someone did, but in terms of the work relationship.

I preferred not to fraternize unless it was some natural friendship that had developed for some other reason outside of the courtroom context.

Miles Cooper: Did you remain in Berkeley while you were a Contra Costa

Jeffrey Brand: public defender? Yes. Um, I came to Berkeley in 1962. 1969, I went to New York to do the fellowship. 1970 and 71, I was working for Professor Newman.

1972, our families were in California, uh, both my wife and my family were in Los Angeles. Come to Berkeley, loved Berkeley and kind of stayed in Berkeley to this day and, uh, uh, still liked the town.

Miles Cooper: It’s a neat place from a, just from a weather perspective alone.

Jeffrey Brand: Yeah, no, it’s, uh, it’s fun.

Miles Cooper: Roughly how long were you with the public defender’s office?

Jeffrey Brand: Um, almost three years.

Miles Cooper: How did you find yourself moving on from there?

Jeffrey Brand: A friend asked if I’d like to, I’d like to go into practice. And, um, I don’t know, that sounded like fun too. If you look at my resume, it almost looks like I can’t hold a job. But this was again, uh, the idea of being in practice with a friend, continuing to do criminal defense, but also expanding The kind of work that I did, which I was looking forward to do.

Miles Cooper: We talked a little bit at the beginning of the program about evidence and the importance of evidence. Do you feel that you were experienced as a public defender? Gave you a step up in your understanding of the evidence code and trial work.

Jeffrey Brand: Well something very Interesting happened while I was a public defender There was a bar review course.

This is is a hundred years ago or damn close. I mean, it’s 50 there was something called the sack bar review course, and it was conceived by a wonderful wonderful legal educator by the name of Jerry sack who is Uh, and at the time, he was at Lincoln Law School, which was on Turk and Masonic. As near as I could tell, accredited by nobody.

However, some of the great lawyers in San Francisco went to Lincoln, and I got a call once from Jerry Sack while I was a public defender, would I be interested in teaching evidence? And I said, well, you know, I just, I, to be honest with you, I just started, you know, as a public defender, I’ve been here a year or so.

And he said to me, can you read? I said, I can read. He says, can you keep 10 pages ahead of the students? I said, okay, I think I can do that. And the next thing I knew I was teaching evidence and, and I loved it. And, uh, I don’t know that, well, being a public defender and being a trial lawyer, of course, helped my understanding of evidence.

Because I had judges who often criticized me or rebuked me for not understanding a particular concept, and they were right. And I learned from that. But, uh, the one thing that I am sure of is that teaching evidence made me a much better lawyer. Because I, and I told my evidence students this all the time, which was, uh, If you know the evidence code, and you can, uh, make appropriate objections and do it in a way that, uh, uh, is not, uh, disruptive in the courtroom, I mean, just apply the code as you see it, and, uh, if you really know the code, you can end up controlling it in the courtroom in ways that help you case dramatically.

Miles Cooper: How long do you teach evidence with Lincoln Law School?

Jeffrey Brand: I think I started in 73. My last class there may have been 1980 because I went to USF in 1979. 1980 as a visiting professor before I came back in 1986. And so I was at Lincoln for six or seven years.

All of this P. S. was as an adjunct. They didn’t even have a full time faculty. They may have had one or two professors that were more full time than others, but I just taught the evidence course. And, uh, that lasted six or seven years.

Miles Cooper: Did you move into teaching evidence at USF then? Yes, I did. So it would explain why my evidence experience back in 90.

Heat probably was such a good one.

Jeffrey Brand: I may have your seating chart. That’s one thing I did do. I saved all the seating charts. I’ve I’ve given them away over the years to actually Some of the judges that I worked with actually had been my students and at least two of them I gave them their seating chart as a gift

Miles Cooper: You mentioned when you were talking about your private practice that it allowed you to do criminal defense and expand a little bit And maybe you could fill us in a little bit on what you expanded on there.

Jeffrey Brand: First of all, we had a very small practice and, uh, when I say expanded, we did personal injury stuff. We did some business stuff. Um, But something else intervened that didn’t really allow me to develop or stay with that practice as long as I might have otherwise done. But we were just doing kind of a general practice where, you know, trying to make a decent living and it was hard because Uh, as a, uh, as a criminal defense lawyer, they were mainly court appointed cases that paid something, um, uh, but not a lot of money.

But so the expansion was sort of what came in the door.

Miles Cooper: I have a friend who is jokingly referred to certain lawyers as door lawyers. Anything that comes in the door. Yeah. At that point it was when you said that, um, something interfered with the expansion there. So I obviously. Looked at your your background before we we sat down.

Was that the appointment to being an administrative law judge?

Jeffrey Brand: It was And I had a friend still a friend who was a wonderful labor lawyer had worked with the NLRB and he had been asked by Rose Byrd and Jerry Brown if He would join the original group of agricultural labor board You Uh, judges, administrative law judges, and he asked me if I’d like to do what I first did, a training.

Uh, Other people who are gonna sit actually was all about evidence primarily. Um, and, uh, then I actually became an administrative law judge for a couple of years. I, I loved it. Uh, my first, uh, uh, uh, The second child was born at the, during that time, this is getting into the late seventies now, and all of the travel around the state, uh, became difficult and also, uh, another practice opportunity.

Um, came and also my teaching became more important to me, but, uh, for a few years, I also did the, uh, ALRB work and that was also fascinating. That was my first real exposure to being the decision maker and realizing how important it was to try and be as fair as possible in that role.

Miles Cooper: For those of us who have not had a lot of exposure to administrative law judging, can you help us understand a little bit of, of what you oversaw in that role?

Jeffrey Brand: Okay. It was, uh, first of all, it was, uh, this is again, something that grew out of the 1950s. Uh, there was a documentary made in the 1950s called Harvest of Shame. Which was about the, uh, conditions of, uh, farm workers in California’s valleys, uh, many of whom, uh, were undocumented, uh, but there was a program to bring them in to harvest, um, and Jerry Brown was, uh, not the first governor interested, uh, this is Jerry Brown in his first term, uh, he wasn’t the, the first governor that was interested in doing something, but the first governor That was able to accomplish an analog to the National Labor Relations Board, uh, which it, the National Labor Relations Act specifically exempts agricultural workers.

That’s a whole other story from the 1930s. But um, uh, Jerry Brown, uh, To his enormous credit, uh, was able to conceive and get past the Agricultural Labor Relations Act that was an attempt to resolve in an administrative law setting, just like the NLRB did, representation cases, in other words, union elections, and unfair labor practices.

And it was a time when. Um, uh, the growers and the Teamsters and the United Farm Workers and Cesar Chavez, uh, were, have loggerheads. And I like to think that the work done by the board, which still exists today, uh, have played a large role in helping to bring some peace and fairness and, uh, to, uh, the agricultural labor setting.

Miles Cooper: Thank you for listening and tune in next week for part two of this three part series with judge and Dean Jeffrey Brand. Please email us at podcast@coopers.law with questions, comments, feedback, and suggestions. Like what you heard, share us with a colleague and leave us a five star review on Apple podcasts.

Do all of you doing justice out there. Happy hunting.