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. Thank you for joining us for this part two of our three part series with judge and Dean Jeffrey Brand as a judge. And here we’re fast forwarding to your superior court practice.

The world is far more digital. The world moves far faster. And people are so used to pulling their phones out to verify, check, see, inquire, post. Did that have an impact on your courtroom, your view of how people, jurors in particular, treat evidence?

Jeffrey Brand: That’s a very good question. I don’t think I’ve been asked that directly and I’m going to give a categorical answer.

No. And, uh, to support that answer, I’m going to rely on our COVID experience. Obviously the courts were closed down. Uh, the sacred space, as I’ve been calling it, and I. I hope my colleagues who are watching this aren’t laughing at maybe an overstatement because, but I, I think they would agree that, uh, with what I’m saying, but we, we were denied the physical space for almost three years.

And that concerned me for the reason, because I think when you gather people, when you get 12 people sitting together and the judge. Trying to exude some notion of fairness for everybody in the courtroom, um, that it has a calming effect and a, an effect of having the 12 folks who are going to hear this case, uh, get into a mood where they know what their responsibility is.

And I was very concerned about that when we went on Zoom. And Alameda County did something that was actually incredibly, uh, uh, I thought, uh, we had a wonderful presiding judge at the time, uh, Judge DeSotelis, and, uh, somehow she managed us through all of the COVID and the craziness. And, um, I was worried that when we started doing jury trials on Zoom, which we had to, or else, of course, in the criminal context, the trials remained.

It live and in person and there was social distancing and, uh, things move more slowly, but they moved in person, but on the civil side where I was, uh, we did it on zoom and I was worried about that and what impact that would have. On jurors and their sense of responsibility and the sanctity of fair decision making and only considering evidence that was admitted during the trial in making their decision.

And I was stunned. Uh, I can think of maybe one or two situations, and I tried a lot of long, complicated cases on Zoom. And to a juror, I found them attentive, caring, worried about the evidence, uh, worrying about whether they were being fair, asking questions where necessary. Um, so I, technology and truth don’t have to be deal breakers.

They really don’t, uh, the, the two can be compatible, but I think it takes people dedicated to fair decision making to bring that about. And I’m not putting myself on any pedestal here, believe me. But the ethos has to be that, uh, uh, regardless of the medium through which a trial is being And we’re just at the infancy of Zoom and all of that.

This just started. Um, but wherever it heads, uh, I like to think that the human element of sitting, uh, on the bench and conveying to people, however it’s gonna be done, the importance of what we’re trying to do. Uh, that that piece of it can never be lost. I think the courtroom, the physical courtroom helps.

Um, it’s a sanctuary in that sense. Uh, but the mere fact that we did it on zoom, I don’t think it detracted from that, and I could give you a chapter and verse of long trials, including deliberations, where 12 jurors were in a breakout room and, uh, by themselves. Reaching, uh, sometimes tormented, uh, of course, there’s no way to know it’s their, uh, privacy.

Uh, but I suspect doing precisely what they do in the jury room that’s just off of my chambers.

Miles Cooper: I find what you’re saying to be Heartwarming and reassuring and consistent with my experience with jurors who are selected and alternates. And one observation that I’ll, I’ll share with you is, I don’t know that it’s necessarily shared by the panel when they first start.

And here’s the evidence I have on that. Every trial we have had since I’ve started using analytics on our website, when we start a trial, We see a huge spike in visitors to my bio, um, and based on the geography where the, uh, case is being tried. Now that’s not doing any research on the case, but it is certainly doing some things.

And I think it’s different once they, um, People who are listening, can’t see me putting up my hand to take the oath. I think once they take the, the box oath, there may be a shift in, in people’s perceptions. But I think at the beginning they, they haven’t, the word Cynthia McGuinn and I used to use was jurified yet.

Yes. That’s always given me a little bit of a, what else might they be doing out there?

Jeffrey Brand: Yeah. And, uh, uh, the, what else might they be doing out there? Their notion. It’s something that, uh, we worry about, but that said, the first part of what you said, the jurification, for me, that’s about somebody presenting what we’re about.

This is really kind of simple. For all the rules and all the way lawyers don’t speak English, and we all know that, and Uh, uh, in the end, it’s a very simple process. There’s a problem and somebody feels they have been wronged. It did, and often the wrongs are incredible. Um, but whether it’s a criminal or civil case, you’re asking, 12 folks, or if it’s a court trial, which it can be in both contexts, the finders of fact to fairly apply the facts to the law in the context of the rules underlined bold.

And if they can do that, we’ve succeeded.

Miles Cooper: No, I presume that the position that you’ve described in terms of zoom trials is Uniformly adopted amongst the judiciary. And there are, there are zero disagreements between you or any of your colleagues in terms of, of the quality of, um, the zoom trial process.

Jeffrey Brand: Right. And I I’m laughing for the same reason you were smiling. Off camera, when we just took a short break, uh, uh, there is a huge, uh, difference of opinion about Zoom trials. And my answer to that is I’m not advocating in this necessarily, but I could tell you a lot of reasons and it’s not worth going into.

I don’t know the weeds about it, why I think, uh, for various aspects of the trial, it really does make a lot of sense. Um, but there are many judges who feel that the Zoom trial is not the best vehicle to do it. I prefer the courtroom myself. I love interacting with jurors. Um, and having them nearby is different.

But, uh, I still think that the Zoom trial can work. It can work well. You can judge credibility. You can start to understand a juror. You can read body language, even though that person is sitting in a two inch square in front of you on the Zoom screen. My view is not everybody’s view.

Miles Cooper: Understood.

Jeffrey Brand: Trust me on that.

Miles Cooper: Now, while we’ve returned to in person trials, I think with rare exception, one of the things that as a trial lawyer, I’ve found can be very beneficial, not for all witnesses, but for some witnesses is making a zoom appearance available for somebody who say, you know, wants to provide their testimony, but.

You know, now lives in Connecticut or an expert who’s exceedingly hard to schedule. How do you feel as a judge about that piece?

Jeffrey Brand: I’m fine with that. Um, first of all, I do, or I did have now that I’m retired, but I did. I did offer the opportunity for a Zoom trial, again, this is the civil context we’re talking about now.

Uh, I did offer the possibility of a Zoom trial to the litigants and sometimes, uh, they wanted that. What you’re describing now is the hybrid situation where it’s live and also there is Uh, it required technological upgrades to make that work properly, which again, uh, the Alameda courts are stretched for resources like every superior court in every county in California.

But again, to the credit of the court, they, uh, made the necessary upgrades and hybrid Trials are available as an option, and I think that, uh, it makes perfect sense to offer that opportunity, and it has been generally agreed to by the parties where we order something on zoom, even the trial itself.

Initially, when covert first started, we were challenged in the court of appeal, uh, for doing that, claiming that that denied due process and. Other arguments that, uh, were reasonable arguments, uh, but uniformly, the Court of Appeal seemed to back our desire to do the Zoom trial and to keep doing the work of the court, and I think that was absolutely the right decision, and as I said before, ten years from now, who knows what the technology is going to look like, um, I’m not sure we’re going to recognize this.

what a trial looks like 10, 20, 30 years from now. So it’s going to be, it’s an interesting and, uh, fascinating evolution that clearly is, uh, was jump started by COVID.

Miles Cooper: I feel that it’s probably essential that I insert some sort of joke about, uh, chat GPT, uh, AI jurors, uh, of various persuasions to be seated as opposed to humans.

But I, I don’t, I don’t foresee that happening anytime soon.

Jeffrey Brand: No, I don’t either. Um, but, uh, again, I’ll be categorical in this, about this. Let’s hope not. I mean, the human element is really critical. I think it’s critical in terms of the decision maker, the judge, the bench officer. Also, with the notion that our community decides when there is a jury trial.

It’s an extraordinary privilege. And once we get away from that, I think we’re going to be in trouble.

Miles Cooper: Sounds like you’re a fan of the 7th Amendment.

Jeffrey Brand: Major fan of the 7th Amendment. Now, again, I say that with caveats because the Seventh Amendment, despite its existence, uh, I don’t know how many trials we need to look at throughout history, uh, where blacks and minorities were systematically excluded and where, uh, injustice was done in cases too many to name.

Uh, but that said, when the, uh, jury system is working, uh, It, I think it’s a, it can be a thing of beauty.

Miles Cooper: So that then tees up. And this may or may not be an appropriate thing to talk about with you. The change in the use of peremptory challenges that, as I understand it, has already been applied in the criminal courts and it will take effect in 2025 in the civil courts.

And that is the requirement that one be able to explain one’s peremptory. As opposed to just being able to exercise it, this goes beyond about some Wheeler challenges. And I presume this is something that you’re aware of. Do you have any thoughts on, on this as, as a modification or

Jeffrey Brand: I have mixed thoughts.

The only real control we have over, uh, it’s misuse or Batson Wheeler objections. And those are tough to ferret out. Um, So maybe it’ll be a good change. I mean, I, I don’t know the answer to the question, to be honest with you. I feel like, uh, to the extent that I’ve granted Batson Wheeler objections, and it’s an area that I’ve, uh, Uh, I feel like sometimes I have gotten to the bottom of it.

Um, I would say more often than not, uh, I’m not clear that I got to the bottom of it when I perceived there might be some problem. So you can make arguments both ways. And we’ll have to see how it, how it shakes out.

Miles Cooper: Did you serve on the civil side the entire time?

Jeffrey Brand: No, no. I was also, when I first came to the bench, I was, uh, Uh, on the criminal side and then I, uh, served for two and a half years, uh, in what was clearly the most moving professional experience I’ve ever had, which was, uh, on the delinquency side in juvenile court.

Can you expand on that? Yeah, definitely. I can expand on that. Um, the only reason I’m hesitating is I don’t know where to begin. Uh, these are kids. They’re kids doing sometimes horrific things. They probably wouldn’t even be in the courtroom if they hadn’t done something. Uh, the odds of somebody ending up in the juvenile system for petty theft out of Safeway.

But on the other hand, the, uh, the The guns, the, um, violent crime, the intimidation that many kids get involved in, um, uh, can be quite very, very serious. And the truth is that there are underlying societal problems that, uh, the juvenile court can’t solve. They can’t solve the problems of Segregation in the schools de facto, even to this day, uh, they can’t solve poverty issues.

And, um, so you had a lot of situations where there were kids and young kids doing things that required some kind of remedial action. You couldn’t keep them in Juvenile Hall forever, that only and sometimes made things worse, despite wonderful people, uh, often in the Juvenile Hall trying to do the best they could.

So it was a situation where there were problems without solutions. And navigating all of that, uh, was difficult, and it was at times heart wrenching. Often the single parent in the back of the courtroom, uh, just shaking their head often in tears, looking at their 15 year old, 16 year old. And, um, there were times when I called the parties up, I mean, the parties, the public defender often in the TA and I’d say, I’d put my hands, I’m putting my hands out now, so what do we do about this?

Because this required a conversation. And I just found navigating all of that and being, having the privilege of talking to the parents and the victims who also came to the Corcoran, um, uh, incredibly moving. And I like to think we made some progress. One of the great experiences that I had. And the juvenile court was, I presided over the juvenile collaborative court for two years.

And that was a fascinating process where in certain cases we had certain criteria on which cases it would be. But I would sit at the head of the table in shirt sleeves, jacket off, and around me would be the public defender, the district attorney. The therapist, uh, other social workers, probation, and we talk about a case.

And it was a conversation. No opening statements, no closing arguments. It was an effort to say, here’s what happened. Here’s what I know about the kid. Here’s what I know about the family. And here’s what I think we ought to do about it. And we had a rule, and the rule was we do it by consensus. Now, we couldn’t always reach consensus, and sometimes I broke the tie, whatever it was.

But we’d go around, okay, is this what we want to do? And I just look around the table and you’d see heads nodding.

Miles Cooper: Is that a widespread tool throughout this, the state or the country?

Jeffrey Brand: Yes. I, well, let me say yes and no, uh, throughout the country. I don’t know. Uh, but I, you know, Governor Newsom now has, uh, started the care courts

Miles Cooper: familiar with that

Jeffrey Brand: and including Alameda County.

Uh, but again, I, I, I sound like a booster for the Alameda County bench, and I kind of am because I have so much respect for my colleagues. Um, but, uh, we have had alternative courts, and many counties have, uh, I, as a matter of fact, throughout California, I think most have had some. But ours was, I thought, particularly robust, whether it be a homeless court or courts like the juvenile court, uh, the collaborative court, the mental health court.

In some ways, we all kind of did the same thing, which was a way to talk about a case without getting it into a completely adversarial setting, which the feeling was would detract from the, uh, reaching a decision that would actually be helpful. Um, so, uh, I thought we had a pretty robust, uh, setup to begin with, uh, and the judges that ran the collaborative courts generally, that wasn’t me.

Uh, those were judges who, uh, were chosen by and large because of their compassion and their ability to relate to segments of society that were difficult, uh, Difficult to deal with, to control, whether a drug court, a homeless court. Um, so, I thought we had a good set of them. Now we are adding the care court as well, but we’re not eliminating any other courts, at least that I’m aware of.

So, this was just all part of the juvenile court package for me. Uh, and, uh, that was an amazing experience.

Miles Cooper: Thank you for saying that I’d like to go back to the transition from, uh, administrative law judge to civil rights practitioner and help us understand a little bit about how that came to pass and the type of cases you did there.

I have down as a title seven cases, which were. things to certain people, but would probably be helpful to explain to our listeners.

Jeffrey Brand: Great. Okay. Um, the way this happened was that, um, uh, my partner and I had known each other. Uh, this is, uh, my, the new law firm I went to. Um, we had known each other since we were kids and, uh, in law school and, uh, talked about going into practice together.

And it kept getting delayed for one reason or another. Um, the last delay was the Agricultural Labor Board stint. Um, but, uh, I joined a practice, uh, with him and, uh, one other, and then, uh, after that a few others that focused on employment discrimination cases, particularly under the Civil Rights Acts of 1964.

We did age cases, race cases. gender cases and, uh, they were large class action lawsuits. We also had a, uh, individual practice of, uh, wrongful termination, hiring, promotion, those kinds of cases. Uh, but that’s what we did. And, uh, again, Uh, I really enjoyed doing it and it was fun and had the privilege of trying cases in front of people who I consider icons, uh, and this is a name I will say, uh, Felton Henderson, uh, who was on the, uh, uh, district court, uh, and, uh, uh, the Northern District.

Uh, what a privilege to be in front of such a, uh, wonderful human being, uh, in long cases as I, as I was, um, but that practice again got interrupted by a passion for teaching because then I went to USF after having been at Lincoln Law School, uh, teaching as an adjunct here and finally went to USF full time.

In 1986,

Miles Cooper: before we get to that, I want to follow up on some of the, cause you described trial work. And I think for a lot of people of my generation, um, the phrase class action and trials. Typically are not used in, in the same sentence, while it happens on rare occasion, the stakes are so high that most of the time class cases these days seem to resolve.

And it sounds like you had the privilege of taking some of these to trial.

Jeffrey Brand: Yes, uh, indeed. And they, most of them settled then, most of them settle now, uh, but occasionally they do go to trial. And we had several trials, particularly with the insurance industry at the time. Um, and those trials are different though.

They’re, um, you have the representative case from which the class is certified. And those cases are actually the jury or the court. But generally the court, uh, will hear, uh, those cases as a trial. Um, but it’s, uh, uh, there’s a lot of statistical analysis and a lot of expert testimony that’s very different from the kind of cases that I tried on the Superior Court bench.

But you’re right, they’re expensive, they’re complicated, and they generally for those reasons alone. Uh, tend to settle

Miles Cooper: from my way of thinking is back at a period where a lot of these cases were. Not the cases now don’t make a big impact, but there was a lot more change that had to be impacted by the work that a firm like yours was doing.

Do you have any particular cases that stand out in your mind in terms of ones where you feel the work that you did really changed? You talked about the insurance industry, um, the work that you did either change an industry or change the way businesses did business in a way that. Served your what I’m going to describe through line of human rights.

Jeffrey Brand: Yes, they, that did happen and it’s more palpable than, um, you know, if, uh, uh, it’s an asbestos case with an individual. However, I don’t want to minimize the impact of individual cases and I say this to practitioners now because the work that they do, whether it’s in the product liability field or toxic Dorts, which I’ve had so much experience with, um, those kinds of cases also have a huge impact, but it is true that class action cases can change the face of an industry, uh, in, uh, based on a particular, uh, One particular case where it’s certified statewide or in rare cases, uh, nationally.

Miles Cooper: You mentioned having experience with toxic torts. Is that as a judge, as a practitioner? As a judge.

Jeffrey Brand: As a judge. Uh, again, another moving set of cases. What were those? Asbestos cases, primarily, um, also, uh, toxic tort cases, exposure to benzene and other kind of chemicals like that. Good lawyering on both sides.

Uh, fascinating historical looks at an industry, which the jury, uh, Uh, would then factor into a decision and, uh, those cases had a huge impact. Not my particular case, but, um, over time, the number of individual cases and certain kinds of verdicts would lead, perhaps, to, uh, a substance being banned or an industry Uh, recognizing that they maybe needed to do things differently.

I like to be a cheerleader for the legal profession. It’s a wonderful profession, capable of doing enormous good. And that’s whether you’re doing it in a, Uh, broad context, like the class action context, or you’re representing, uh, people, uh, in the, in one of the toughest jobs on the bench in the family law court.

Uh, the lawyers should know, and I hope folks know, I, I hope they believe this, that, uh, the work they’re doing really does impact people and can impact them for, for the good. Um. It’s a remarkable profession. I guess the one thing that I wish lawyers did more was understand that if the lawyers need judges who are fair, which they absolutely do.

The judges need good lawyers. We need to be educated sometimes. We need to feel confident that the lawyers are trying their case as best as possible. We’re not allowed to try the case if there is a deficiency in legal counsel on the other side of the bench. Uh, and so I don’t think that lawyers, Understand enough their role as educators in the courtroom.

Miles Cooper: A concern that I have in the seventies, California passed the, uh, the discovery act. And in large part, when you look at the civil trial lawyer world, there are kind of two categories of lawyers. Now there are the pre discovery act lawyers who are now. You know, hitting their late seventies, eighties, and they’re aging out.

There are some like me who fought like hell to get into the courtroom and took crappy cases and jumped on grenades and did everything we could. I’ll carry your bags if I can be there because I wanted to get that trial experience. But between the use of ADR and the Discovery Act, there are very few lawyers who actually go to trial anymore.

And and so the ones who should now go to trial are people like me who scrapped or people who came out of the public defender’s office or DA’s office and came over, but it’s a very small group of people. And then there are the folks who show up in the courtroom who have done maybe one, maybe two. It’s been a long time.

That’s the tip for my question. Has it been challenging being a judge in the civil department where you have practitioners coming in who may not have the experience to give you the tools necessary to feel like you are confidently making the right decisions?

Jeffrey Brand: Yeah, I think it’s a challenge. Um, but I also think that, uh, a, a lot of it is just hard work and preparation.

And if a young lawyer does that. They’re going to do fine. The by and large, we have very smart people coming into the courtrooms. And if those people apply their. skills that they’ve learned and work hard and, uh, can write clearly. They’re going to do a fine job. Now, along the way, they may not have the experience that later would have benefited them, but the judge has room to, you know, help lawyers on both sides and to raise questions and issues that should be, uh, Uh, a trigger to something that the judge is not understanding and pointing the lawyer, lawyers on either side to tell the court what the court needs to make the fairest decision possible.

So, yes, it would help if every lawyer was experienced and fantastic and knew the ins and outs and was willing to sit down and discuss it. That’s not what happens. But on the other hand, I do think that lawyers who care are capable of doing a good job and capable of becoming those kinds of lawyers.

Miles Cooper: Thank you for listening and tune in next week for part three of this three part series with Judge and Dean Jeffrey Brand.

Please email us at podcast at coopers. law with questions, comments, feedback, and suggestions. Like what you heard? Share this with a colleague and leave us a five star review on Apple Podcasts. To all of you doing justice out there, Happy Hunting.