(Jason Doiy/ The Recorder)
San Francisco Superior Court Judge Curtis Karnow has an autographed picture of Raymond Burr, the actor who portrayed Perry Mason, sitting on a shelf in his chambers. Growing up, Karnow watched the eponymous television show with his mother and he says that Mason still stands as a model in his mind for the kind of trial lawyer who is at home in the courtroom.
Karnow’s new book, “Litigation in Practice,” features an image of Burr as Mason on the cover. But when recently discussing the book, Karnow was quick to admit that he was anything but comfortable as a new lawyer fresh out of University of Pennsylvania Law School. Karnow says he graduated with virtually zero practical experience. When his first boss at the Philadelphia U.S. Attorney’s Office handed him a file and asked him to go indict a case, Karnow says he turned to his secretary and asked, “ What’s an indictment?”
After years of watching from the bench as young lawyers struggled as he did, Karnow says he wanted pass along some practical tips about what’s expected of lawyers who come into his courtroom and give readers “an insight into how judges think.” Karnow recently sat down with The Recorder to discuss the new book, his thoughts on the state of legal education, and life on the bench.
A full version of the conversation is available via podcast.
Q: You point out very early [in the book] the quandary of legal training: No one is willing to pay first- and second-year associates in the large law firm context—and it’s difficult for DAs and public defenders to entrust cases to new lawyers. You write that “the stakes of liberty are high and no one wants to be anyone’s first client.” What can be done about that?
Karnow: It is a problem. I ran into this myself. I was on the hiring committee of a large law firm. There were a number of years where we simply would not hire someone out of law school. We had a lot of clients who said I never want to see a first- or second-year associate on the bill. I think the only thing we can do is … and further what I think is actually happening in California, is to have people who graduate law school to already have had experience in court. They’ve argued cases. They’ve counseled clients. They’ve been watching a variety of lawyers in court while they’ve externed at a law firm or at a DAs office or PDs office. There’s no reason that you have to wait until you’re out of law school to, for example, conduct a suppression hearing.
I can often tell the difference between lawyers who have clerked for a judge and lawyers who have not. The lawyers who have clerked for a judge just get it at sort of a visceral level—what things look like from the other side of the bench—and would never make certain arguments that a lot of lawyers do make for their own reasons but which are never going to be persuasive. So, increasing the number of people who are [working for] judges would be a wonderful way to introduce them to litigation.
We don’t have the funding in the state court system to have this on a broad scale. … But if things could be done on a volunteer basis, I know hundreds of judges at the state-court level who have no assistance whatsoever in terms of their research. They have no one who helps them go through the papers and think through the issues and do some of the basic research. … A year with a judge is worth a lot in terms of the experience of what does and doesn’t work in court and how to conduct yourself.
Q: The book is full of courtroom tips: Use “your honor” when addressing a judge, keep it formal when you’re in the courtroom, judges know what the phrase “with all due respect” really means …
Karnow: We do.
Q: But one line jumped out at me: “Lawyers may gossip about judges sometimes, but I tell you, judges gossip about lawyers all the time.” What form does that take and what impact can it have?
Karnow: It has an enormous impact. And I should say that as a lawyer I spent a lot of time gossiping about judges and complaining and I think that’s just part of the job description. By the same token, judges talk about lawyers all the time.
When you’re a judge there’s actually nobody you can talk to about your work except for other judges. It’s a rule. I can’t talk to you, for instance, about the cases that are going on or sort of get your take on an issue. The only people I can talk to are my colleagues on the bench. And when a lawyer does something in a courtroom which is outrageous or hilarious or incredibly stupid, the word gets around in the courthouse within about 25 minutes. We might call each other up. We might email each other, although probably not. What we do have, is we have lunches. And so judges get together, sometimes once a week, to talk about things in sort of a private way. We run into each other in the halls. We run into each other down at the coffee room and judges do talk to each other.
We like the human side of things just as much as anything else. And although we spend most of our time together perhaps talking about the legal issues that we’re struggling with or dealing with, we also talk about the lawyers. So, your reputation in one courtroom generally becomes your reputation court-wide and sometimes state-wide, if it’s a big enough issue. And so if you’re in one judge’s courtroom, you should probably imagine that all the other judges in the courthouse are watching through one-way mirrors or something like that.
Q: I’ve already been guilty of this but you point out that any question longer than 15 words is a bad one. Why are shorter questions better?
Karnow: For a lot of different reasons. Number one: When you get an answer, you’ll know what it was an answer to and so will the court of appeal. So, you’re making a record for the court of appeal and you’re making a record for the trial court. If you have a long-winded question and if there are a lot of different parts of it that could be answered either yes or no, you won’t have a record in the trial court and the court of appeal may or may not agree that certain facts were established in the trial court. More importantly the witness may not understand what you’re talking about.
One of the things that happens in this profession, and I’m sure this is true of all professions, is that we get wound up in our words and in our language and we think that everyone understands the lingo that we use. And lawyers can be very bad at translating legalese into English. Most of the times, that doesn’t matter, because most of the time all the way up to trial you’re just in front of a judge, who’s part of the same group and went to the same kinds of law schools you did and so on and so forth and we all understand each other and that’s all wonderful. You say “res judicata” and everybody will nod wisely. But when you get to a jury, this is a very different group of people. We all recognized that intellectually. But it’s remarkable how often the lawyers are unable to shift into English when they get in front of a jury and when they have a lay witness who is on the stand.
We’ve got the same problem sometimes with expert witnesses, where the expert who may not be a professional witness wants to talk about a specific issue and has not worked sufficiently with the lawyer to translate that technical opinion into English. And I’ve seen an hour, two hours go by of expert testimony and I’m wondering whether anybody on the jury actually understood a word of what was said. The lawyer is comfortable. The witness is comfortable, but they’ve forgotten who they’re preforming for.
Q: Do you miss being in the litigator’s chair on the other side of the bench at this point?
Karnow: Not on balance. I miss it in the sense that I, like every other judge … we see a question being asked and we’re not under the stress of being a litigator, so we can come up with a better way of phrasing it or we think a certain point should have been raised in closing argument. And we’re right, of course, because we’ve got the luxury of sitting there and watching it unfold. And we’re not going through what the lawyers are going through. And I remember vividly the adrenaline and the surge and the excitement of putting a case together—sort of creating something out of nothing as it were—and actually having a result at the end. Hopefully a good result.
So, I remember those times fondly. But I also know that being a lawyer, I know is one of the toughest jobs in the world. And when I took this job on the bench the one promise I made to myself is that I would never forget how hard it is to be a lawyer—the stresses of dealing with partners and clients, business-getting, regulations, not to mention what your obligations are to the court—are all just enormous. And it’s an extremely stressful job. And the job I have now is really, I think, the best job in the world. I have a trial court job where I’m handling a complex litigation department with some of the best lawyers in the country appearing in front of me. Some of the most interesting, cutting-edge issues that are very frequently taken up by the court of appeal across the street because they are brand new.
So I wouldn’t give this up for anything.
Listen to the full conversation: What Every Young Lawyer Really Needs to Know: A Podcast With Judge Curtis Karnow