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Court: Santa Clara Superior Court Appointed: January 1990 by Gov. Deukmejian Date of Birth: Oct. 10, 1997Previous Judicial Experience:Santa Clara Municipal Court, 1983-90; Santa Clara Municipal Court Commissioner, 1980-83 Law Degree:: Hastings College of the Law, 1974 Trial attorneys describe Judge John Herlihy as a judicial trifecta. Attorneys say the popular Santa Clara Superior judge is smart — he makes tough decisions and backs them up with practical legal analysis. He’s fair — he closely reads each side’s briefs and often takes the extra time to hear arguments on crucial points. And he’s nice — attorneys say he hasn’t forgotten what it’s like to stand on the other side of the bench. “He is, in my mind, a trial lawyer’s judge: even-tempered, engaging, accommodating when necessary. He has a very good command of the facts and issues but lets the trial lawyers do their job,” said John Winchester III, a partner at San Jose’s Robinson & Wood. A former deputy district attorney and civil litigator, Herlihy has handled civil trial and law and motion calendars for nearly a decade. And lawyers say he has grown into one of Santa Clara’s most competent civil trial judges. “I really found him to be a user-friendly judge,” said Arthur Casey, another Robinson & Wood partner. “He is a great trial judge. He is very strong on evidence. He is very knowledgeable. I think he’s fair. He listens to both sides.” Casey, who defended a premises liability claim in Herlihy’s courtroom in May, said the judge expertly handled crucial evidentiary questions, taking the time to hold hearings and closely consider the issues. “Some judges see it as taking too long. Once they’ve made up their minds, they won’t go back and rethink their decisions,” Casey said. “You always knew Herlihy went back and did his homework.” Casey said Herlihy was willing to put in the extra hours during the trial, having attorneys fax him briefs during the weekend and being ready to rule by Monday. “I think there is some perception in the plaintiffs bar he may be conservative, but I didn’t find that. I think he was fair,” Casey said. Morgan Hill solo practitioner Steven Levy said Herlihy takes a practical approach to the law. Herlihy often starts law and motion arguments with questions that cut right to the heart of the legal issues. Levy said that doesn’t mean the judge has made up his mind, but it gives lawyers some insight into his thinking on the matter. “He is one of these guys who can go right to the proverbial bottom line,” Levy said. “To me that’s practicality. Can you weed through all the crap, all the muck and boil it down to, ‘Here’s what I’m thinking. Here’s what I am concerned about. Here’s my question.’” Levy argued and then re-argued a case in Herlihy’s courtroom, representing homeowners who want to prevent logging trucks from using a road that paralleled their property. Herlihy initially ruled that recreational uses of the roadway by motorcycles implied the road was public and could be used by trucks. The Sixth District Court of Appeal sent the case back and Herlihy eventually ruled that truck traffic was not included in the roadway’s implied public uses. “We had enough confidence to do the second trial in front of him,” said Richard Van’t Rood, a South Bay solo who worked with Levy on the case. “He is one that tries to do the right thing.” Levy said Herlihy’s written ruling in the second bench trial was polished and well-reasoned. “I see him as someone who likes what he does and anxiously heads down there every day ready, willing and able to do the best job [he] possibly can,” Levy said. Herlihy said his judicial demeanor is no accident. He says being a thorough, knowledgeable judge isn’t incompatible with being a nice guy. “You can be friendly, down-to-earth,” Herlihy said. “You can have a warm, fuzzy side but you have to exert control over the court. You can blend the two together.” Herlihy made news in 1997 when he was removed from a high-profile insurance coverage dispute after attorneys alleged that his research attorney had a bias. Herlihy, who felt it was unjust to remove judges for their choice of research attorneys, pursued his case all the way to the California Supreme Court. He lost at the Sixth District Court of Appeal and the high court refused to hear the case. Herlihy dismisses the case as history but said he pursued the case on principle. “It suggested judges don’t make the decisions. Research attorneys do,” Herlihy said. Attorneys agree that Herlihy’s appeal wasn’t an ego trip, but rather him pursuing what he thought was right. Attorneys say that same philosophy shows in his court.

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