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Judicial Profile: Everett Hewlett

Discovery Commissioner Everett Hewlett has to listen daily as lawyers accuse opposing counsel of foot-dragging, filing incomplete responses to requests for documents, failing to schedule depositions, or improperly adding expert witnesses. It is a position that can be contentious -- but many appreciate the way the former defense attorney runs his court.

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Name: Everett Hewlett Court: San Francisco Superior Appointed: March 17, 1986 Date of Birth: March 27, 1943 Law School: Golden Gate University School of Law, 1975 Prior Judicial Experience: None Discovery Commissioner Everett Hewlett leaned forward in his chair and told attorney Loren Hopkins her motion to add an expert witness was late. “You knew who he was, but you didn’t notice him,” Hewlett said. “It’s not timely now.” It was just the kind of call Hewlett makes daily as a discovery commissioner. Hewlett listens as lawyers accuse opposing counsel of foot-dragging, or of filing incomplete responses to requests for documents, or of failing to schedule depositions, or of improperly adding expert witnesses. “I expect people to be reasonable,” Hewlett said in an interview. “Part of what happens in discovery disputes is there are legal issues, but not every motion really invokes great legal issues. “What you see from too many discovery motions is people taking unreasonable positions and resulting in unreasonable responses and resulting in more motions,” he added. He said if his orders are not followed, he can impose evidentiary or monetary sanctions and even “terminate” a case for the failures of attorneys. Yet some lawyers are concerned about whether Hewlett uses his judicial powers strongly enough to avoid abuses of the discovery process. Solo Anthony David said the commissioner too often allows attorneys to return to court to argue the same matter over and over again. “He’s very tough on parties who ignore discovery rules or his orders,” David said. “But he’s surprisingly lenient on those who abuse the discovery process.” David said it becomes expensive for attorneys who must continue to file papers responding to issues that they thought had been settled. “You have people doing the same thing over and over again,” he said. “He warns them, but he won’t hit them in the pocketbook — and people know that.” Hewlett disputes the notion that he is too lenient but acknowledges that lawyers sometimes walk a thin line. “Doing discovery sometimes is all about taking control of things and making sure that these folks . . . understand that the court is not going to tolerate some of the behavior that’s being exhibited,” Hewlett said. “I think there are a lot of disputes that really could have been resolved by the attorneys before it had to come to court,” he added. “There are abuses, but are they a pervasive problem in civil practice? I just don’t think so.” Attorney Gregory Evans commends Hewlett for having a sharp eye for detecting lawyers who abuse the discovery procedures. “He’s able to spot … when lawyers are fooling around,” the Orrick, Herrington & Sutcliffe partner said. “Commissioner Hewlett has a sixth sense and sees game playing and gets parties on the right track.” Evans said if Hewlett determines an attorney is wasting another’s time and money, “he’s not afraid to impose remedies to pay the other lawyer.” A former criminal defense attorney, Hewlett has become one of the court’s senior commissioners with 16 years on the bench. He earns $118,555 a year — or 85 percent of a judge’s salary. He said lawyers appreciate the way he runs his court, especially by giving tentative rulings that enable counsel to decide whether to argue or accept them. Seldom, he said, does oral argument change his mind, since well-written motions filled with facts and good law almost always win him over. “Put it this way,” he said, “what are the odds that you’re going to come up with something that all of a sudden gives me an epiphany that I’d totally change my mind? “So, no, I really don’t change my mind a lot because the work really has been done before a tentative ruling is put out.” Solo Sidney Sheray gives Hewlett good marks for quick decisions and knowledge of discovery procedures. But demeanor is another matter. “Sometimes he’s a bit short-tempered and impatient,” Sheray said. Hewlett doesn’t disagree that lawyers can upset him but says that for the most part he’s learned to control his temper. “I will say this about the job I have: It can be contentious,” he said. “I’m not always the most patient person with contentious lawyers. There are probably improvements I could make in that area.” You can order past judicial profiles of more than 100 Bay Area judges at www.therecorder.com/profiles.html or by calling 415-749-5523.

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