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Litigators Getting in Step With S.F.'s New Complex JudgeReplacing a popular long-serving judge, Curtis Karnow has done things a little differently.
2013-07-03 02:01:17 PM
Judge Richard Kramer sat atop one of San Francisco's two complex litigation departments for a decade. So the decision to replace him with Judge Curtis Karnow, announced in an email to the judges the Friday before last Christmas, was a bit of a bombshell — for Kramer, for the other judges and perhaps most of all, for the business litigators who'd grown accustomed to Kramer's way of handling the specialized docket.
More than a dozen trial attorneys — many of whom requested anonymity because they have pending litigation there — described Kramer's ouster by Presiding Judge Cynthia Ming-mei Lee as surprising, and unwelcome. They worried it would undermine a key feature of the complex department: one judge assigned to one case from beginning to end. When the shock wore off, they were left to wonder: What's the new judge like?
Six months into his new assignment, Karnow's private-practice background, prolific legal scholarship and in-court efficiency have restored calm among civil litigators rattled by Kramer's removal.
"It was a very big surprise to see Kramer moved out of complex because he was doing a great job, and he was well-liked," said Richard Seabolt, a partner at Duane Morris and the president of the Northern California chapter of the Association of Business Trial Lawyers. "But Karnow was a good pick. His background is impressive and he is a well-regarded judge."
James Wagstaffe, a partner at Kerr & Wagstaffe who teaches civil procedure at UC-Hastings College of the Law, said it takes lawyers time to adjust. "It's like getting on the dance floor for the first time. You have to learn each other's steps."
With Karnow, lawyers have learned to expect methodical oral arguments, creative thinking around dispositive motions, and orders that come out quickly — a trait sometimes missing in Kramer's court.
On a recent Thursday morning in his courtroom, Judge Karnow, 60, mulled aloud the value of a tweet as he slow-walked counselors through his reasoning ahead of ruling on a demurrer in a case filed by an anonymous plaintiff against Twitter. The following day was not atypical: He'd weigh whether to certify a class of 5,000 plaintiffs in a wage-and-hour case.
Karnow's demeanor in court is unmistakably authoritative — and frank.
"What the parties have given me isn't good enough," Karnow told lawyers one recent morning. "There's work to be done here. I'm not going to do it for you."
The deep-voiced, mustachioed jurist has already established a reputation among those with experience in his court for running a tight ship. That's a bit of a shift from Kramer's court, lawyers say.
"The workload in that department is crushing," Kramer, 65, told The Recorder. "No complaints whatsoever. I loved it. But I was on the bench all day, every day."
It could be overwhelming, he added. "It's like being inside a popcorn machine. There's stuff flying all over the place."
In an interview last month, Lee said she wasn't unhappy with Kramer's performance. "Judge Kramer did a good job while he was there, but I wanted to give other judges the opportunity."
Karnow arrived on the bench in 2005 as an appointee of Governor Arnold Schwarzenegger and first began working criminal assignments in the Hall of Justice before moving to a general civil assignment in 2007 at the Civic Center Courthouse.
Karnow's work there didn't go unnoticed.
"It struck me in both places that he's extremely thoughtful and a very smart guy — and he's very practical," said Lee. "He's willing to think about things outside the box. He doesn't just think of the obvious answer."
And in San Francisco's complex courts, novel and creative approaches to case management couldn't be needed more, especially with recent budget cuts. Technically, Judges Karnow and John Munter, 70, who has presided over the other complex department since 2007, have smaller caseloads — a promise of the state's complex program. On a $945,000 budget and with one staff attorney and one term-clerk assigned to each of them, Karnow and Munter manage about 100 cases each, or about one-sixth the average caseload for a San Francisco civil assignment.
But fewer cases doesn't mean less work. Court personnel spend about 242 hours per complex case, or about 18 times more than they spend on a typical unlimited civil case in San Francisco, according to court records.
In an interview last month, Karnow explained his approach to managing large, complex lawsuits in a court specially designed to control them.
"What I do in complex is tailor the procedures to the case, not the other way around," he said. "I think my job is to try to get to the merits as efficiently as I can."
For Karnow, that means meeting early — and often — with counsel in less-than-formal case management conferences, reducing and streamlining motions and exploring settlement strategically throughout the pretrial process.
Karnow says he rarely rules from the bench: "Writing is a way for me to think," said the judge, a licensed pilot who has authored and edited books on everything from Internet law to science fiction as well as plays and dozens of law articles, including many on civil procedure. "Sometimes, you write something and it doesn't scan. It doesn't hold up."
Karnow is a voracious reader, and attorneys who've appeared before him advise being prepared for oral arguments — because he will be. "I use argument to probe people's positions," he said. "I like to have very vigorous oral arguments and interrupt them."
There's some confusion among lawyers about the role of summary judgment in complex courts generally, and Karnow's in particular. Some insist it's discouraged. Others say just the opposite.
Karnow is eager to clarify: "I'm a big believer in summary judgment," he said. "As a lawyer, I brought a lot of them — won some and lost some. I'm also acutely aware of how expensive it is" and how hard it can be to win.
So he encourages the use of streamlined alternatives that allow parties to "peel out any issue, legal or factual, to allow the court to resolve." He likes to suggest early motions in limine, stipulated bench trials, expedited jury trials and stipulations to reduce the notice period for a motion.
"You have other options in a complex department," agreed Judge Munter, who presides over S.F.'s other complex department. "You should consider the benefits of taking advantage of them."
In the 15 years before he became a judge, Karnow was a partner at Sonnenschein Nath & Rosenthal, where he worked on high-profile intellectual property and antitrust litigation, including representing Sun Microsystems Inc. in winning a multibillion-dollar settlement from Microsoft Corp. in 2004.
But Karnow's biography and background make it hard to pigeonhole him along the usual liberal/conservative, plaintiff/defense lines: He's a French-speaking American who grew up in Vietnam, France, North Africa and Hong Kong before making his way to Harvard and then law school at the University of Pennsylvania. He's a Democrat appointed by a Republican governor; his first job in private practice was at a plaintiff-side class action firm; and his last, at a corporate defense firm.
"I've heard defense lawyers say he sides for plaintiffs," said an attorney who asked not to be named. "I've heard plaintiffs attorneys say he's biased for the defense. I guess he's doing something right."
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