Recently at an MCLE seminar, a sitting judge forewarned the audience that because of all the new judges coming from a variety of backgrounds, often they don’t have the necessary background on law and procedures for their department. His advice:
come to your hearings with copies of all the important cases and statutes, no matter how basic the concept is.
This sitting judge was subtly saying: Plan on educating the court!!
Before you file your motion, do your research on the Judge
What is the judge’s reputation? Check with members of your firm as well as members of the legal community as to their experiences with the Judge.
Are there any appellate decisions that review the Judge’s previous rulings? In what area(s) of law was reviewed, upheld or overruled?
Find out the Judge’s background prior to taking the bench. Did they practice in state court or federal court? What type of practice did they have –criminal, civil, family, probate, etc. Has this Judge had enough exposure to civil litigation to understand that the philosophy of discovery is a liberal exchange of information as well as its limitations set forth in the Code of Civil Procedure and current case law?
Watch the tentative rulings weeks prior to your hearing. It may provide insight on how the Judge handles discovery motions and sanctions.
Determine whether you want to file a challenge to the judge pursuant to C.C.P. section 170.6. Remember that “if the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date.” C.C.P. section 170.6(a)(2)
Determine whether you want to request a discovery referee to be appointed pursuant to C.C.P. section 638 or C.C.P. section 639(a)(5)
When you receive the tentative ruling
Don’t assume that your papers were read in depth and the court understands the nuances of why you need the discovery you are requesting. Discovery motions can be voluminous and the courts don’t really have the time to do a deep dive on your papers.
Make copies of relevant case law and statutes to give to the court and opposing counsel. Highlight the relevant portions.
Make copies of relevant discussions from CEB’s California Civil Discovery Practice, the Rutter Group’s California Practice Guide: Civil Procedure Before Trial or other relevant treatise discussions to give to the court and opposing counsel. Again, highlight the relevant portions.
Hire a court reporter to report the hearing. Then you will have the transcript for evidence for future discovery hearings if necessary as well as for a writ or appeal.
Be prepared to educate the court (1) the specific facts of the case, (2) why the Discovery is needed to prosecute or defend your client, (3) why you are entitled to a code compliant response, (4) why you are entitled to a detailed privilege log, and (5) why the documents requested should be produced.
The Judge has a past: learn it. You may need to show the Judge not just what the law is, but why it is and will be grateful if you help them out.