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COURT: Santa Clara County Superior APPOINTED: Nov. 28, 2000, by Gov. Gray Davis BORN: Nov. 11, 1947 LAW SCHOOL: Boalt Hall School of Law, 1972 PREVIOUS JUDICIAL EXPERIENCE: None The Santa Clara County Superior Court might want to think of a new description for Brian Walsh, because the civil trial judge sure doesn’t see many trials. Since he arrived at San Jose’s historic Old Courthouse in January, following a stint doing felony trials, lawyers have settled nine out of every 10 cases sent his way for jury trials, Walsh said. One Monday in April, the 59-year-old judge picked up an invasion of privacy suit (sub. req.) that a former Heller Ehrman associate had brought against the Stanford University hospital. The dispute surfaced after the plaintiff’s psychotherapy records made their way to an insurance company, leading the insurer to deny long-term disability coverage after she was injured in a car accident. Her lawyer, Linda Ross, who worked the case with San Francisco attorney Ann Draper, said, “There is no way, no way, we thought this case would ever settle.” By the time everyone went home on Wednesday, it had. Terms of the agreement are confidential, said Ross, whose law office is also in San Francisco. In almost seven years on the bench, Walsh has had plenty of practice getting warring parties to lay down their swords. Those who’ve seen him do it say he uses a dash of diplomacy and an endless supply of patience to push opposing sides toward a deal. Pillsbury Winthrop Shaw Pittman’s Sarah Flanagan, who represented Stanford’s hospital in the medical privacy suit, said she was impressed by the energy Walsh brought forth. “He recognized it was a case worth resolving before trial,” Flanagan said. Walsh brings the same intensity to cases that go to a jury. During a lengthy medical malpractice trial that concluded last month, attorney D. Stuart Candland said, the judge would meet counsel early in the morning before the jury arrived, and he would sometimes have them reconvene in chambers at the end of the day. Candland, a partner at Danville’s Craddick, Candland & Conti, said Walsh kept copious notes on their discussions in chambers. Then he would bring the lawyers back in front of the court reporter to record what was hashed out in private. Asked if that was an efficient use of the lawyers’ time, Candland said, “I guess it really depends on one’s perspective. Certainly, if I were an appellate lawyer, I would think so.” A Gray Davis appointee to the superior court, Walsh had served for a little more than three years, mostly handling misdemeanors and civil trials, when he was tapped to fill in temporarily on the Sixth District Court of Appeal in 2004. There, Walsh found himself in the admittedly “awkward” position of reviewing decisions by his superior court colleagues. Walsh wrote for the majority in at least 16 published opinions during his time on the Sixth District bench. In F. Hoffman-La Roche v. Superior Court, 130 Cal.App.4th 782, he found that Santa Clara County Superior Court Judge Kevin McKenney’s decision to exercise jurisdiction over Swiss pharmaceutical companies, in a product liability case, was an error that “offends constitutional due process considerations.” On other occasions, he reversed a string of convictions that led to a six-year prison sentence in People v. Lopez, 129 Cal.App.4th 1508, a case handled by now-retired Santa Clara County Superior Court Judge Hugh Mullin III; and he found that Judge James Emerson, of the same court, “exceeded [his] authority” by limiting the state parole board’s review in a Morgan Hill murder case, in In re DeLuna, 126 Cal.App.4th 585. Walsh � who used to be managing partner of a small San Jose firm then known as McTernan, Stender, Walsh, Weingus & Tondreau � said his experience in the Sixth District court drove home the importance of creating a thorough trial court record. “As judges,” Walsh said, “we’re not supposed to care what happens when our cases go up to the court of appeal. But we do � and we’re not going to be able to argue it. “Our only opportunity to tell the court of appeal what our reasons were, and why we got it right, and why we think they ought to realize we got it right, is in making a record.” Walsh’s time in the Sixth District influenced him in other ways, too. “Our district court of appeal consists of active questioners, and I became one,” he said. By vigorously questioning attorneys, Walsh said he gains understanding of each case in front of him, and can show respect for the lawyers and parties involved. When Walsh speaks up, lawyers should pay careful attention to his choice of words. One morning last month, as Walsh was filling in for Judge Neal Cabrinha in law and motion, he dropped a big hint for two lawyers squaring off over the eviction of a horse from a barn in Los Altos Hills. Sensing that both sides were pleading the case like a landlord-tenant dispute, Walsh urged them to keep in mind that horses aren’t covered under California’s housing laws. “Horses are great. They’re certainly high up there on the evolutionary chain. Still, I’m not sure they’re persons,” he said. Neither of the lawyers took the hint. “Our positions [were] very clear. The factual stuff that we rambled on a little about is not particularly relevant,” the horse owner’s attorney, Adam Ferguson, an associate at a San Jose law firm called WealthPLAN, later said. In a ruling issued Wednesday, Walsh threw out a wrongful eviction claim in the case, noting that the plaintiff, Ferguson’s client, “cannot state a cause of action for wrongful eviction because [she] was never a tenant.” “Rather, she is a licensee.” For a complete list of available profiles, go to http://www.law.com/jsp/ca/judicialprofiles.jsp

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