Episode 30

Read the transcript below:
Stephanie Southwick:
Hello, and thank you for tuning in to the Beyond Hourly podcast, hosted by Omni Bridgeway, one of the world's most experienced disputes funders and judgment enforcement specialists. Our podcast focuses on advancements in legal services that drive economic value for law firms and the clients they serve. Episodes of this podcast can be found on our website, www.omnibridgeway.com, iTunes, Spotify, and other podcast networks. We welcome you to subscribe to the podcast and leave us reviews.

I'm your host, Stephanie Southwick. I'm an investment manager based in Omni Bridgeway’s San Francisco office. Prior to joining Omni, I was the managing partner at a business and IP litigation boutique in Silicon Valley. My role at Omni involves assessing litigation investment opportunities generally, and more specifically, in the trade secret space. 

Our guest today is Judge Carlos Bea. Judge Bea serves on the U.S. Court of Appeals for the Ninth Circuit. He was appointed by George W. Bush in 2003. Before his appointment to the Ninth Circuit, he was a trial judge on the San Francisco Superior Court. I will let him tell us about his practice before his years on the bench.

Judge Bea, welcome to the Beyond Hourly podcast. I'm absolutely thrilled to be speaking with you today, thank you for joining us. I wanted to start at the beginning of your legal career, because I'm always so interested in hearing how people ended up where they are in their careers. Some people choose very deliberate paths and others seize opportunities as they arise. Would you please share with us your path to where you are now and what initially attracted you to the law?

Judge Carlos Bea:
Well, I remember when I was 14 years old, I was involved in some litigations involving a claim against a custodian for her having taken money that she shouldn't have taken from the family. We had a lawyer named John Frolich in Los Angeles, and I had to go and talk to him because I was going to be a witness. He said, "You know, you really have to think about becoming a lawyer." And I said, "Why is that?" He said, "Well, every time the door opens, a new life walks in, and you get paid to solve people's problems." So, I thought that's a wonderful idea because it shows variety and it shows that I can use whatever skills I have and it's something that attracted me. I decided quite early that I wanted to become a lawyer. There was a time I thought maybe I wanted to become a psychiatrist because I heard that psychiatrists, especially in Beverly Hills, were paid more by the hour. But I finally decided to become a lawyer. So then, I tailored my studies to that.

Stephanie Southwick:
Did you ever testify at 14?

Judge Carlos Bea:
No, I didn't have to testify at 14. I testified before that, but that's a chapter I'd rather not go into.

Stephanie Southwick:
All right. So, you knew you wanted to be a lawyer. Where did you go to law school?

Judge Carlos Bea:
Stanford.

Stephanie Southwick:
How did you end up there?

Judge Carlos Bea:
In those days, I was an undergraduate at Stanford and I was playing on the basketball team for Stanford of my sophomore and junior years. But in those days, you could go to the first year of law school in your senior year of undergraduate (studies), and you could do both at the same time for one tuition. I decided to take advantage of that and do my senior year in undergraduate as my first year in law school and I was able to continue playing on the basketball team during my first year of law school.

Stephanie Southwick:
After you graduated from law school, what did you do?

Judge Carlos Bea:
When I graduated from law school, the first thing I had to do was take a trip back to Spain with my brother, because we had matters in Spain that had to be taken care of. Then I came back to California and I didn't know whether I wanted to go to San Francisco or to Los Angeles to practice law. My brother lived in San Marino, close to Los Angeles, but one of my professors at Stanford, Mr. Packer, who was a wonderful man. He recommended I go to San Francisco, which I did. I called up the Stanford placement office and asked them if they knew of any vacancies among firms in San Francisco, and they gave me the name of one, called Dunne, Dunne and Phelps on Montgomery Street. I went and I interviewed, they offered me a job, and I took it. I became an associate at Dunne, Dunne and Phelps in 1959.

I had thought about going into tax practice, and Dunne, Dunne and Phelps didn't do tax at all. What they did principally was defend injury cases, personal injury cases, for the Southern Pacific Company, the Western Pacific Railway, and other railway companies. They said, "Well, if you come here, you're going to be a trial attorney." I said, "Well, that sounds like fun." So, I said, "Great." And I became an associate and I started learning about trying cases. Within a year, I was trying cases in the Superior Court in San Francisco and in the Federal Court as first chair.

Stephanie Southwick:
Within your first year of practice, you first chaired a trial?

Judge Carlos Bea:
Right. I tried a case in 1960. I went to work in 1959 and I tried a case in 1960.

Stephanie Southwick:
Pretty uncommon today, wouldn't you say? Wow. How many trials do you think you tried over your career? Best guess?

Judge Carlos Bea:
I've probably started 100 trials. A lot of personal injury cases settled shortly after the case was assigned, mainly because in those days, the percentage which the plaintiffs took out of the settlement went up from 25% before the case went to trial to 33% when the case went to trial.

Stephanie Southwick:
You mean the plaintiff's attorney's contingency fee.

Judge Carlos Bea:
Right. Somehow, (they) always settled, but not before the case was called for trial. Isn't that amazing? I probably started 80 or 100 cases. I probably tried to conclusion 40 or50, but that started in 1960. I tried cases until 1989—actually, 1990. So, 30 years of trial. I tried mostly in Superior Court in San Francisco, Los Angeles, San Bernardino, Humboldt, Sacramento, lot of places, and District Court was not as likely because in the District Court, you had a unanimous jury and the plaintiff's attorneys wanted a 9-3 jury. I tried a case in this courthouse in 1962 when the District Court was in this courthouse. 

Stephanie Southwick:
You were a trial attorney for almost 30 years, so you must have enjoyed it.

Judge Carlos Bea:
I loved trying cases.

Stephanie Southwick:
What do you love about trying cases?

Judge Carlos Bea:
It's a little bit like a theatrical production where the attorney is the script writer, an actor, a critic, and a producer. You have various roles to fulfill when you're trying a case. I always felt that it was very interesting, if not amusing, to try cases and prepare them for trial. I like preparing cases for trial as much as actually trying, preparing strategies with witnesses emphasized. I found it very interesting work. Long hours, hard work, early mornings, late nights, but it was fun.

Stephanie Southwick:
Why the change? Why did you move?

Judge Carlos Bea:
I'll tell you what happened. In 1989, I'd left Dunne, Phelps & Mills (Dunne, Dunne and Phelps became Dunne, Phelps & Mills) and I left it in 1975 and started my own practice. For the last, say, 15 years, I was a solo practitioner, but I had employees. I had associate attorneys—I had maybe two or three at a time. I was trying cases, doing my work, and then one of my friends, who was a friend of the Governor of California—Deukmejian--asked me to lunch and showed me a list of people who had put their names forward to be Superior Court judges. He wanted to see if I had any comments about any of them, about their reputations and about their abilities.

So, we were having lunch. He showed me the list and I went through the list and I said, "Well, Richard, undoubtedly, each one of these people when they arrive home after work in evening are recognized by the dog but nobody else has ever heard (of them). Who are these bozos? I've been trying cases for over 20 years, and I've never heard of any of these folks. Who are these guys?" He said, "Okay, wise guy, what about you? Do you want to be a judge?" 

At that time I was married—we had two children—and I called my wife. I said to her, "The proposition's been made to me, do I want to be a Superior Court judge?" She said, "Do Superior Court judges work on Saturdays and Sundays like you do?" I said, "No, they don't." She said, "Take the job. We've got a lot of Little League games to go to and it'd be better for the family."

That convinced me. So I became a Superior Court judge. Within eight days of becoming a Superior Court judge, I got a call from the County Clerk that I was being opposed in the upcoming election, the ratification election. I had been appointed by a Republican governor. I had been a member of the Republican State Central Committee. I was fairly cognizant of Republican politics, and I was being run against by a woman who sat on the Democratic Central Committee in San Francisco and was a self-proclaimed lesbian. That was a campaign I was faced with eight days after becoming a judge and having closed my law office.

Stephanie Southwick:
Right.

Judge Carlos Bea:
And there I was-

Stephanie Southwick:
Eight days later, oh my.

Judge Carlos Bea:
Running a campaign for four months. We wouldn't be talking about this if I hadn't won the campaign.

Stephanie Southwick:
Right.

Judge Carlos Bea:
I had support from persons who were not Republicans in San Francisco, principally people like John Burton] and Willie Brown supported me. I got labor unions to support me, and I won the election 59 to 41. Nobody ever ran against me after that election

Stephanie Southwick:
Well, I'm sure you didn't think you were signing up for a campaign at the time.

Judge Carlos Bea:
As a matter of fact, when they offered me the job in Sacramento, the Governor's Appointments Secretary said, "We're offering you the job. Will you accept it?" I said, "Do I have to defend myself in an election next year?" He looked at the calendar. He said, "Yes, that's a possibility." Then I said, "I can't give you an answer until I talk to somebody else." He said, "You don't have to talk to anybody else. I'm authorized to offer you the job. You don't have to talk to the governor. I'm authorized to give you the job." I said, "That's not the point. I need to talk to Willie Brown to see if he will be in my corner if I'm run against." 

I went upstairs to the Office of the Speaker, which was Willie—who I'd known for some years—and I said, "Would you support me against the field if somebody runs against me? Against anybody who runs against me." He said, "Sure." Then I went back downstairs, and I told the Governor's department secretary I'd take the job.

Stephanie Southwick:
Well, that was very smart of you. You know, what's impressive to me is to hear that you were a Republican or are a Republican, but you have friends across the aisle. I think that is rare these days. Do you think it was less rare back then or was that just something that you cultivated or just happened?

Judge Carlos Bea:
Well, when I first got to San Francisco, I met lawyers on both sides, both plaintiffs and defense lawyers. I always got along well with plaintiff lawyers. I was doing defense in those days, and I joined groups such as the American Board of Trial Advocates. I got along with all of them and that sort of continued over the years. If you take a look outside, there's a wall hanging of the Senate vote when my name came up for the Senate confirmation, 86 to zero. I've always gotten along well with Democrats and Republicans.

Stephanie Southwick:
And plaintiff's attorneys. Well, they keep the defense attorneys in business. 

When you went out on your own, did you suddenly have to become a businessperson as well? That's one thing that's always interesting to me when lawyers open their own firms, they're suddenly running a business and a law practice, right?

Judge Carlos Bea:
Yes. It was a different way of practicing law than doing it in a law firm. On the other hand, it had the advantage of not having to go to partners' meetings.

Stephanie Southwick:
Right. You can make all the decisions yourself. Nothing is by committee anymore. Interesting. 

One of the things I find so fascinating about your career is that it's just so varied. You were an associate at a firm. Were you a partner at Dunne, Dunne and Phelps?

Judge Carlos Bea:
I made partner about six years after I went to work.

Stephanie Southwick:
Wow. So, you were a partner at a firm, you went to the partnership meetings, you started your own firm. Then you were a trial judge and now you're on the Ninth Circuit. You've seen so many different facets of our industry and I think that's really interesting. 

I'm wondering, from that perspective, do you have any kind of overarching thoughts about the legal profession? I imagine you're going to say you love it, because it sounds like you loved all the different parts of your career, but any other kind of thoughts about it or advice you would give to people considering going to law school these days?

Judge Carlos Bea:
First of all, law school is not easy. It's difficult. It's long hours. It's hard work. And the idea of going to law school because you don't know what else to do, I don't recommend it. Working as a lawyer, especially what I know as a trial lawyer, can be intensive, hard, exact precise work. I don't recommend it to just anybody. These days, I think lawyers probably earn much more money than they did when I first started. So, they live better. The idea of lawyers earning two or three million dollars a year, as some partners do in large law firms, that would never happen in 1960.

The thing that I find dispiriting is how expensive litigation has become. It's perfectly clear that our litigation system, state and federal, is in a certain sense of market failure because what has happened is that the arbitration industry has caught up. Arbitration advertises itself as being much cheaper, much faster, and much easier to navigate than the civil litigation system. I think the big reason why that is so is because in the late 1940s and early '50s, the people who make the Federal Rules of Civil Procedure were, I think, naively taken by the idea of open discovery. Discovery has become a devouring beast that makes civil litigation very difficult for anybody but very financially heavyweight contenders. That is something that I think is a problem.

I mean, I think it's marvelous to be able to take depositions of adverse witnesses, and I don't mean to crimp down on that aspect of it, but the document production has become I would say a paper industry, except they don't use paper anymore. But it just takes ungodly amounts of time and causes young, bright lawyers who've left from being clerks in my chambers and gone into big firms and worked 10 to 12 hours a day in document review and get handsomely paid call me up in two or three years and say, "Judge, can you get me a job with the public defender's office or the district attorney's office or the U.S. attorney's office? Because I can't take this anymore." 

It's a dispiriting landscape in Big Law futures. I'd still become a lawyer if I were getting out of law school. I'd still want to become a trial lawyer, but I think I'd probably choose someplace other than a big city, such as San Francisco or L.A. I might choose Boise, Idaho, Laramie, Wyoming, or Billings, Montana to practice law because the type of law that's practiced is at a very high level, but it's exhausting and it's not made for the ordinary business entity.

Stephanie Southwick:
At Omni Bridgeway we fund claimants who could not otherwise afford to litigate if they're going up against a big company and they just don't have the resources to do it. We understand that completely. And discovery—and we're looking at budgets all the time. Coming from a smaller firm—my firm (we were about 13 attorneys)—to look at some of the budgets we see, it's really amazing how expensive some of this litigation is. A big chunk of it is discovery, of course, and fights over discovery. Right?

Judge Carlos Bea:
Now, of course, when I started practice firms such as yours would be criminally prosecuted under champerty and maintenance and rules that that were in effect in those days. The idea of somebody financing a claim and taking a percentage of the claim was anathema. Of course, in those days, lawyers didn't advertise either.

Stephanie Southwick:
Right.

Judge Carlos Bea:
The whole panorama of the practice of law has changed. It was much more quiet, maybe genteel. You had to go to the right clubs and the right meetings and the right evening sessions of the Bar Association to make yourself known and get clients. There wasn't an internet. You couldn't advertise, couldn't take out full page ads like I've seen. So, it's become more of a business now and less of a profession. 

Stephanie Southwick:
Do you have any strong opinions about litigation finance if I may ask?

Judge Carlos Bea:
I come from a free market background. To me, the idea of litigation finance is basically a rational investment tool. It may promote more litigation than otherwise would occur, but on the other hand, it may vindicate some claims that otherwise wouldn't be brought. I'm totally neutral on the issue.

Stephanie Southwick:
So, I said I was going to ask you about basketball. I did not play team sports. I was a classically trained ballet dancer. I have no team sport perspective, but I've heard many lawyers say that they learned fundamental aspects of lawyering playing team sports. I've seen a lot of lawyers looking for that in resumes, especially for litigators, because there is this impression that there is a toughness, a strength that comes with playing team sports. Do you subscribe to that or did you learn anything?

Judge Carlos Bea:
I started playing team sports when I was 11, 12. Played tackle football at the military school I was in. In those days, we had leather helmets and didn't have face masks. It was an entry into conflict.

Stephanie Southwick:
An entry into conflict. I like it.

Judge Carlos Bea:
Then, I started playing basketball and I played  for teams that shouldn't win, but do win. It gives you the idea that you can go up against anyone. And that's been my attitude ever since. I mean, at Stanford, we didn't have the ability to recruit the people that went to USC and UCLA. But if we beat them, I felt pretty good about it.

Stephanie Southwick:
I'm sure. Now, if I'm correct, you played for a few other teams. Your high school team and Stanford, but I think you played for a few other teams as well.

Judge Carlos Bea:
Before I played for Stanford, after high school, I played at University High School—home to three Ninth Circuit Court judges—Judge Reinhardt, Judge Fisher, and me. We weren’t all (there) at the same time—the other two have died. 

After high school. I played at Menlo JC for one year. Then, because I was a Cuban citizen—my father was a Cuban born in Cuba, and although I was born in Spain I had Cuban citizenship through him—my brother, who traveled on to Cuba to see an uncle who was there, said, "Why don't you go out for the Cuban Olympic basketball team?"

Stephanie Southwick:
What year is this?

Judge Carlos Bea:
This is 1951, just before the '52 Olympics. I said, "Well, I had a pretty good year as a freshman at Menlo JC." I was chosen for the all-league team, set a scoring record and all sort of stuff. I wrote a letter with some press clippings and sent it down to the basketball coach of the Olympic team in Havana. I got a letter back saying, "You don't have to worry about trying out. You're on the team." I said, "All right," and I was a sophomore at Stanford by this time. I was a red shirt, and I wasn't playing with Stanford varsity. I was 17 so, I was a sophomore. I skipped a couple of grades. Then, I went down to Havana to join the team.

Stephanie Southwick:
Had you been to Cuba before?

Judge Carlos Bea:
I'd been in Havana before that. I went to school in Havana for two years in the early '40s and then I visited my uncle down there a couple times. I'd been around Havana quite a bit. Then we finally procured the funding to go to Helsinki. We got the money. The team went to Helsinki to play in the 1952 games, and I was a starting center on the team. We got in the final round of 16 teams. We won two and lost one and ended up getting in the final round. But I have to say that after we got in the final round, the next four games, we lost. We actually went two and five. I don't consider myself very much of an Olympic athlete. I consider myself more of an Olympic tourist.

Our son, Sebastian, our first-born son, is a real Olympic athlete. He rowed for the USA in the Sydney Games in 2000 and won the silver medal. He was the stroke on the men's pair. 

After Helsinki, I went down to spend the summer with my uncle who had come over from Cuba, and he said, "Why don't we go down to Madrid and see some of your relatives?" I said, "Fine." I had no recollection of anything about Spain because I left there when I was five. We drove down to Madrid, and Madrid was a beautiful place. I was very impressed. It was sort of a small Paris, and Paris is marvelous. Then I asked around—and by this time I was 18, but I was going back to Stanford—and I asked around and they said, "Why don't you talk with the  Madrid futbol club soccer team? Because they have a basketball team and are the national champions and you might want to talk to them."

So, I did, and they said they wanted me to play for them for a year. Instead of going back to Stanford, I spent a year in Madrid in 1952, '53—now (I’m) 18, 19—and had a simply marvelous time. Basketball in Spain in those days was very rudimentary. There was only one wood floor in all of Spain and that was in the bullring in Barcelona. You had to play at night because it was too hot during the day. Every place else, if you were lucky, you got to play on concrete. And concrete in part, because we used to play in jai alai frontones. 

Stephanie Southwick:
Oh, sure. The Basque handball game.

Judge Carlos Bea:
The edge of the basketball court would be cork. You'd be dribbling the ball on concrete and then you'd start dribbling the ball on cork, which bounced differently. Then we played outdoors, we played on gravel, and we played in snow. It was sort of the heroic era of playing basketball in Spain and it was a great deal of fun. Then, I went back to Stanford and joined the Stanford team Varsity and played there for three years.

Stephanie Southwick:
I happen to know that you still make it back to Spain on occasion.

Judge Carlos Bea:
Yes. Last couple years no, because of COVID.

Stephanie Southwick:
Okay.

Judge Carlos Bea:
The house I was born in is still in the family, and my brother and I used to go there. My brother died, but he has five boys—or he had five boys—and we have four boys. We go there in the summertime and have family reunions.

Stephanie Southwick:
Lovely. Is your first son Sebastian named after San Sebastián?

Judge Carlos Bea:
Yes.

Stephanie Southwick:
Yes.

Judge Carlos Bea:
It's also a family name.

Stephanie Southwick:
Right. So, what do you think makes a good trial attorney?

Judge Carlos Bea:
One must have a sense of what is credible, what can one sell the jury. When he gets that, then he has to do some imaginative work in figuring out how to shape the witnesses and the documents and the other evidence to fulfill the story he wants to tell the jury—a credible story regarding the incident or situation that's involved. 

I think what makes a good trial attorney is somebody who is willing to think originally about means of production of evidence but keeping in mind that the ultimate audience for the evidence is going to be the jury, and the jury may not be as adept at understanding all the  interstices of the case. He's got to, as I said earlier, script writer, producer, director, and player. He has to put it all together. So that's, I think, what makes a good trial attorney.

And the ability to think afresh about issues and sort of invent ways to bring something new into the case. Let me give you an example. When I was starting—and for some years when I was trying cases for the defense in railroad cases—normally if we had a plaintiff who had an injured leg or an arm, we'd send them to have a medical examination. We'd have them sent to an orthopod or a neurological doctor, he'd be seen, and we'd get a medical report and say what his condition was. The doctor saw the injured plaintiff for an hour and maybe talked to him a bit and that would be about all the exposure we'd get. That would be what we'd use as a defense to the claim for the plaintiff.

It struck me that this was really not enough because we'd get people who'd had a broken ankle and couldn't return to being conductors on the railroad because they couldn't walk on uneven ground. They could do a lot of other things, but the railroad was structured with a union structure and they couldn't get them from one job to another easily, right? You would end up having to pay a lot of money when you knew that the man had residual functional capacity and could do other work, but we just couldn't get him another job. We didn't know what that functional capacity was. We couldn't assess it by one hour with an orthopedic surgeon, right?

I got the idea that if I could get the plaintiff to go to a rehabilitation clinic and be seen for three days—not one hour, three days—and be given all sorts of intelligence tests and other tests regarding his personality and give him a physical test to see how he did different things, we could get a rehabilitation expert. Some people think that, along with Mark Twain, that an expert witness is a prevaricator, a long way from home, but that's not necessarily true. I decided to make a motion in San Francisco Supreme Court for a medical examination, and the plaintiff attorney said, "I'll give you a medical examination. Where do you want me to send him?" I said, "No, no. I want a three-day medical examination in a place—it happened to be a case in Fresno—in Fresno. He said, "No, I'm not going to do that." I said, "Well, then I'm going to bring a motion."

I went and made a motion and convinced Judge Ira Brown—who was the law and motion judge and was famous for answering a question about what was the proper judicial demeanor by saying proper judicial demeanor, “the meaner, the better”—I said, "Judge, I want to get a real assessment of this plaintiff's residual functional capacity because he's going to be able to prove that he can't be a conductor anymore and that he can't do any other work for the rest of his 40 years of  work life." Right? I think he can, and I don't know what that is, but I've got experts who will test him and come back and tell us what he can do. I convinced the judge and he ordered it. I started doing that over and over again, and other people started doing it and we got a much more rounded picture of the man's possibility as far as work life expectancy and what jobs he could do.

Stephanie Southwick:
That's a very practical approach, right?

Judge Carlos Bea:
Well, it was.

Stephanie Southwick:
And creative.

Judge Carlos Bea:
Yes, it worked out fine, but sometimes the plaintiff's attorneys didn't like it. They would oppose the motion and I would tell Judge Brown, "I understand perfectly why they're opposing it. The plaintiff's attorney is on a contingency contract and can share in the plaintiff's newfound wealth, but he can't share in his health."

Stephanie Southwick:
Or his job for the next 40 years, right.

Judge Carlos Bea:
We had some good rehabilitation experts. Some of them were people who had suffered injuries themselves and had overcome those injuries and gone into a profession, which was a rehabilitation expert, and made marvelous witnesses because they'd come to court and they'd be more injured than the plaintiff.

Stephanie Southwick:
Right. What about appellate attorneys? What do you think makes a good appellate attorney? Very different skills, obviously.

Judge Carlos Bea:
The best appellate argument that you can possibly give is to stand up and say to the court, "Are there any questions?" It shows confidence and it shows that you're ready to talk about any aspect of the case that might be in the back of any question that the judge might have. That's done very seldom because it takes a great deal of expertise to know the case inside and out and know the judges inside and out and be able to, with confidence, have a conversation with them and say, "Do you have any problems with awarding judgment in my favor? And if you do, tell me what they are. Let's have them out right now." That's what I used to do when I did appellate argument. I did very seldom appellate argument, but that's my view. There aren't many lawyers who spend that much time knowing the record backwards and forward, and the cases that they're citing, so that they have the confidence and the skill and the wit to make such an argument. But that's the best argument I can think of.

Stephanie Southwick:
Right. And what if there are no questions, then the confidence to sit down?

Judge Carlos Bea:
Well, yes. Say, "No questions? Thank you very much for having me here. Good afternoon."

Stephanie Southwick:
I agree there are probably not many attorneys that can do that.

Judge Carlos Bea:
Oh, I could name ... they're really top flight and exude that sort of confidence in their case. Sometimes one can zero in on an appellate case on one issue, and the confident and able appellate counsel will say, "There are many issues in this case, but most of them can be taken care of in the briefs. But there's this one issue here that is really somewhat unsettled, and I'd like to discuss that issue with you." Then you engage the mind of the judges on that one issue and you show that you're ready to discuss all the aspects of the issue and you court questions. Always court questions. A good appellate attorney will court questions all the time and never give a set speech.

Stephanie Southwick:
Not a fan of the set speech?

Judge Carlos Bea:
No. Sometimes it's useful to say, "I'd like to talk about three issues here, but I won't talk about the two if you tell me that one is the one that's interesting to you. These are the three issues I think that have to be discussed, but please guide me by your questions as to what you consider still in issue here." That is my idea of the good appellate argument.

Stephanie Southwick:
I think that's great for the practitioner too because you know, sometimes when you're arguing motions, for example in trial court, and you just have no idea what the judge is thinking about the briefs, it's really hard to present a targeted argument.

Judge Carlos Bea:
There is nothing in evidence that he's actually thinking about the brief.

Stephanie Southwick:
Yes, right.

Judge Carlos Bea:
Because you're not sure that he's read the brief, right?

Stephanie Southwick:
That is very true.

Judge Carlos Bea:
The clerk may have read it and passed him a memorandum and he may have seen the first two paragraphs, but you can't be sure. Especially in motion and trial practice, you've got to be very practical about what you're asking and immediately point out whatever weak spots you have and say, "The other side was pointing to these and I'm ready to discuss them. They have to say something, so I'll tell you why they're wrong, but I'm here to discuss it."

Stephanie Southwick:
Yes. Right. So, I have a question. If you had not become a lawyer, what do you think your career would have been?

Judge Carlos Bea:
Well, some sort of business, I suppose. I have engaged in business while being a lawyer. I've engaged in stock market investments. My brother and I founded, put together, and ran a company which manufactured reinforced concrete pipe for the Los Angeles County Flood Control and other agencies. My brother and I put together a mini-storage, which is still in business. I probably would have gone into one of those of things because I like business.

Stephanie Southwick:
The law turned out well for you after all, right? I've taken up a lot of your time. Thank you very much.

Judge Carlos Bea:
Any other questions? We've got plenty of time today.

Stephanie Southwick:
Did you ever do any criminal work? I was wondering.

Judge Carlos Bea:
Yes. I tried two cases, two [criminal cases. Both of them misdemeanors, they weren't felonies. One I got acquitted and the other was a hung jury. So, I did some criminal work. Then of course the first case I ever argued in the Ninth Circuit—that was a criminal case in 1959. Senior partner at Dunne, Dunne and Phelps called me and said, "I've had a call from the clerk of the Ninth Circuit. They are looking for pro bono attorneys and you'll volunteer." 

I came down here and I had a case involving a man who had shot up a bar in Anchorage, Alaska, which was then a territory—it wasn't a State. I had his appeal. I knew nothing about criminal law and I knew nothing about how to get a record together. I came to the Ninth Circuit, and the clerk in those days down on the bottom on the first floor—it was a nice area with a fireplace and the fireplaces used to work—and he'd say, "Well, you've come to the right place. You want to find out how to get a record pro bono?" I had to figure out how to do that. So I did and I got a record. When I did that, the clerk came and saw me and said, "You know, that worked pretty well. You mind if we copy what you've done and hand it out to the other folks?"

Stephanie Southwick:
There you go. How did the appeal turn out?

Judge Carlos Bea:
My appeal did not work out. He was convicted of assault with a deadly weapon for shooting up a bar because he was miffed with his former partner—who  told him to leave the bar. He came back and shot up the bar. I didn't have much to talk about.

Stephanie Southwick:
Not the most sympathetic.

Judge Carlos Bea:
Not at all. I thought that the only thing I could figure out was that the instructions didn't say that a criminal assault required the element of specific intent to harm. Those days, you didn't have the internet. I went over to City Hall and they had a library with all the state reports. I started going through the state reports and finding states which required the element of specific intent to injure as a requirement of the crime of assault with a deadly weapon—criminal assault of the specific intent to harm, not just general intent to cause an assault—so I put together a brief and I argued the case and I lost it. The Ninth Circuit published an opinion. Then I wrote to my client (and) said, "Look, I could make a motion for it en banc hearing and petition for certiorari” He'd gotten five years and he said, "No, no, you've done enough work for me. I'll do the five years."

Stephanie Southwick:
I'm sure you had to hear criminal cases as a trial judge.

Judge Carlos Bea:
Yes. I was in City Hall and I got a call from the presiding judge, Ed Stern. He said, “I'm sending you down to the Hall of Justice at 850 Bryant Street.” I said, "Well, that's fine, but I don't have very much experience in criminal law, so why are you sending me down there?" He said, "Well, your pal Jack Bermare needs someone to have lunch with." I went down to the Hall of Justice for a couple years and tried all sorts of cases, murders, and assault and all that sort of stuff. It was quite different from civil practice. Quite different.

Stephanie Southwick:
That was what I was going to ask.

Judge Carlos Bea:
First of all, the trials were shorter. It was almost unconstitutional to try a case for more than four days. Every case went boom, boom, boom, boom and I enjoyed it. I was down there about two years. I remember one time I remarked to—we used to have motions to revoke before court started, motions were heard at 8:45 am and court started at 9 am—and we'd had these motions to revoke out of the …

Stephanie Southwick:
Excuse me, what's a motion to revoke?

Judge Carlos Bea:
A motion to revoke probation.

Stephanie Southwick:
Okay.

Judge Carlos Bea:
The man was on probation. They caught him doing something prohibited to him by his parole conditions and so that violated the term of probation. The question was, do we send him back to prison or do we continue probation? So, they'd have the motions to revoke at 8:45 am, and the defendants would come out of the holding cell in their orange outfits. I commented to the bailiff, "These men who come out of motions to revoke, most of them seem to be Catholics because they're always wearing a rosary over their yellow jumpsuits." And he said to me, "Come with me, Judge." He took me down to the holding cell and there was a little hook with a rosary on it, and whoever was going out to see Judge Bea—who was Spanish and a Catholic—would wear a rosary over his head.

Stephanie Southwick:
They were onto you. It was their costume, I see.

Judge Carlos Bea:
The next time I saw one of these lads with a rosary with a public defender, I said, "I'm impressed. I think it's a good idea for people who are trying to reform their lives to have contact with religion. I notice that the defendant is wearing a rosary and I think that that is a sign of on the way to reform and getting right with society. But on the other hand, if I were to learn that this was simply a facade and they were playing what they might think I like, I would consider that to be sacrilegious, and if somebody was doing something sacrilegious, I'd probably come down harder on them than I would otherwise. So, the next time I see someone wearing a rosary, I'm going to ask them to recite for me the Sorrowful and Joyful mysteries of the Rosary and if they don't know them, then I'll think that he's just trying to put me on."

Stephanie Southwick:
Oh boy.

Judge Carlos Bea:
I stopped seeing the rosary.

Stephanie Southwick:
Wow. That's fascinating. What about civility in the profession? I have heard many lawyers from generations before mine say that lawyers used to be much nicer to each other and to their opposing counsel I’m in the Inn of Court. I mean, that's the whole mission of the Inn. I'm wondering if you have any perspective on that.

Judge Carlos Bea:
Civility is very important. It raises the tone of the conflict and it allows you to deal with opponents over and over again without getting angry. In the judicial area, we call civility, “collegiality”, and a newspaper reporter once asked me, "There seemed to be a great deal of collegiality in the Ninth Circuit, as opposed to other circuits where some of the judges don't even meet with each other, because they can't stand each other." I told the newspaper reporter, "Don't make the mistake confusing collegiality with the necessary lubricant in society, which is good manners." 

I think civility and good manners are very important, and the British are very good at this. They always refer to opposing counsel as "my learned friend". It allows you to work with people with whom you are in conflict over and over again and get to the real issues or the real determinants of the case, rather than move off in a huff. So, I think it's very important.

Stephanie Southwick:
Have you observed—and maybe you don't observe this because all the attorneys you see are probably on their very best behavior—but have you seen a breakdown of that or not so much?

Judge Carlos Bea:
I think attorneys are pretty well-behaved and deal with each other respectfully, much more so at the appellate level than at the trial level. The trial level, they sometimes get out of hand, calling each other names and epithets and things like that. But normally attorneys are well-spoken and well-behaved, especially in front of juries, because juries don't appreciate attorneys calling each other terrible things. I mean, they might think it's funny, but they won't put much value in a person who is constantly upbraiding his motivations of his opponent.

Stephanie Southwick:
How has COVID affected things at the Ninth Circuit?

Judge Carlos Bea:
Well, last year's clerks—because we just had new clerks come in last week—last year's clerks, I had four of them and two of them couldn't come to San Francisco in time. They were stuck, one in Washington D.C. and one in Florida. We have weekly status meetings. We go through the inventory of cases and we've been doing that by Zoom. I haven't noticed any slowdown in the handling of cases. Most of my contact with clerks is in writing because I'm a great believer in precision and some judges like to have clerks in and discuss cases. I seldom do that. I do things by writing back and forth. And the computer is wonderful because I can get something from a clerk and then I can answer in a different color print exactly what I think about each thing as we go along. The hearings of the cases have been done by Zoom. The attorneys appear by zoom. I don't think we've had any sort of breakdown in the way we've determined cases.
We've had some very interesting cases that have been handled by Zoom as they would've been if we heard them in courtroom One. I don't think the product of the Ninth Circuit has been affected by COVID. Although, from another angle, you can say, "Well, then how do you explain that of 16 cases seen by the Supreme Court in the 2020 term, (out of) 16 Ninth Circuit court cases, 15 of them were reversed?" I don't think that that has to do with Zoom and I don't think it has to do with COVID. It might have to do with something else, especially if it's eight of them had votes of nine to nothing. I think we had a hand spanked.

Stephanie Southwick:
Probably had nothing to do with COVID. Do you find the hearings just as effective over Zoom as if they were in-person?

Judge Carlos Bea:
Yes, and the fact of the matter is in a circuit as big as ours, I think we may find that the travel is cut down. I mean, why should attorneys fly out to Honolulu or up to Anchorage or to Seattle if they're in Arizona? I think we're going to see more and more cases even when we go back to sitting in hearings where the attorneys request to be heard on Zoom. It hasn't happened much in the past and there's only one judge I know who, because of physical disabilities, can't travel and always appears by television or by Zoom. It has introduced a different way of hearing cases, and a much cheaper way.

Stephanie Southwick:
I was just going to say going back to our earlier conversation about the cost of litigation.

Judge Carlos Bea:
Now, the strange thing is ... some judges have asked for permission to travel to the courthouse to have a Zoom hearing. Now, let that sink in just a minute.

Stephanie Southwick:
Travel to the courthouse.

Judge Carlos Bea:
With their clerks.

Stephanie Southwick:
To have a Zoom hearing?

Judge Carlos Bea:
To have a Zoom hearing with the attorneys. That to me seems injudicious with money.

Stephanie Southwick:
I don't know if I said this earlier, but the Daily Journal named you the most interesting man on the Ninth Circuit, and I understand why. You've had a really fascinating life and lots of adventures. We haven't even talked about all of them, but are there a few things in particular that you think really shaped you as a lawyer or a judge, some of your experiences?

Judge Carlos Bea:
As a trial lawyer, the partners at Dunne, Dunne and Phelps who were terrific people shaped me a great deal because in those days, there was no such thing as trial advocacy courses in law school. I later taught trial advocacy at Hastings and Stanford, but in those days, there wasn't any of that. You passed the bar and you'd never been in a courtroom in your life, and you were supposed to be a trial lawyer. Right? Well, those men would school me by going over carefully the pleadings and the investigative file. Then I would sit in on their preparation for depositions of our witnesses and their preparation for adverse witnesses, and so I got a lot of schooling. I don't know if that's done anymore, because the hourly rates of attorneys are so high that it's hard to justify to a client that this attorney which they're charging $350 for, we're teaching them how to take a deposition. The client will say, "Teach them on your own time, pal."

Stephanie Southwick:
Absolutely. 

Judge Carlos Bea:
I benefited a great deal from that type of teaching when I started out. Then, when I went down to the Hall of Justice and I was a rookie judge, I benefited tremendously by going to lunch with the judges at the Garden Cafe and telling them about the cases that I had and the sentences. Sentencing was so complex in California, and still is. It takes a very seasoned judge to tell you what are the penalties for each crime, what are the enhancements how there's an interplay, and how there's a cutoff for too many years. Those things are very valuable. That experience that comes from people who've been there before is very valuable. I've always been interested in advocacy. 
At Stanford, my partner and I were on the Stanford moot court team who went all over the country arguing cases in the intercollegiate competitions. That helps too, because you have to—in those competitions very often you're the appellant one week and you're the appellee the next—think fast on your feet and change your tune. But we're paid to change our tunes.

Stephanie Southwick:
Right. To think through your opponent’s arguments, even if you're not changing your tune. 

I did have some notes. Was going to ask you what makes a good trial judge and a good appellate judge, but I don't know if you want to talk about that. If you do, I'd love to ask that.

Judge Carlos Bea:
I think what makes a good trial judge is having been a good trial attorney. I'm very much in favor of the British system of choosing judges from barristers, people who've been there. That goes also for appellate judges. That isn't always true because of the way that judges are picked. Some of our colleagues here on the Ninth Circuit, before they became judges, perhaps visited a courthouse on a docent tour, but otherwise didn't know where the plaintiff sat or where the defendant sat in a trial courtroom. I think you should choose judges from people who've tried cases.

Now, on the appellate court, maybe that is not as important as on the trial court because you're dealing mostly with issues of law and not regulating the proof of facts, but in the trial court, it is very important. But on the appellate court, it is also important to have some experience in trial. 

Let me give you an example. One of the cases that I think I did good work on was a case called Hinkson vs. USA. Hinkson probably is the case in the Ninth Circuit that's most cited, maybe 800, 900 times since I wrote it in 2005 or 2009. What it is, it's a case that holds what is the clear error test is on appellate review. With respect to issues of law, it can be clear error, review de novo, to see where the trial judge got the law wrong, but on questions of fact, the scope of review is reduced to allow clear error to be found only when the decision is illogical, implausible, or has no basis in fact in the record. Which requires the court finding an error to point out what the error is and show it in the record.

The prior rule was that it was clear error if we have a firm and definite conviction that an error was made, which is totally subjective. I was in favor of an appellate fact-finding scope of review, which recognized that as to the proof of facts happened, the trial judge was in a much better situation than we were, because they'd seen the witnesses, right? And saw the attorneys’ presentation. We had a cold record. If it wasn't jumping off the page as being illogical and implausible or without a factual basis from which to infer, then we defer to the trial judge. It was really an exercise in the allocation of power between the trial judge and the appellate judge. What I was trying to do was to readjust the subjective standard, which allowed Ninth Circuit court judges to say, "I have a firm and a definite conviction that an error was made," without saying what the error was. 

Stephanie Southwick:
Wow.

Judge Carlos Bea:
So, we now have an objective test saying illogical, implausible, impossible to infer from the record, and point out what that was or defer to the trial judge’s finding of fact.

Stephanie Southwick:
Right.

Judge Carlos Bea:
Therefore, it makes the appellate court work a little harder, because it gives more power to the trial judge. But that's where I think the power should be from my experience as a trial attorney and an appellate judge.

Stephanie Southwick:
Right. Although trial judges do get it wrong sometimes, right?

Judge Carlos Bea:
They do.

Stephanie Southwick:
But I think that standards allows for …

Judge Carlos Bea:
All judges get it wrong. The Ninth Circuit court was found wrong 15 out of 16 times by the Supreme Court in the October 2020 term.

Stephanie Southwick:
Right. Exactly. That's really interesting to think about. Do you think that there was a reduction in appeals after that decision?

Judge Carlos Bea:
There hasn't been a decrease in appeals, but there's been a lot of decrease in reversals of the trial court. I think. I haven't run any numbers on it, but the idea of deferring to the trial judge on issues of fact—unless you can point out something illogical, implausible, impossible to infer from the record—has stopped a lot of cases being reversed where the case may be sympathetic to the appellate judges reading a cold record. But we're not in the business of dispensing sympathy.

Stephanie Southwick:
Judge Bea, I want to thank you again for appearing on Omni Bridgeway's Beyond Hourly podcast and sharing your knowledge. As I mentioned at the outset, episodes of the Beyond Hourly podcast can be found on our website, www.omnibridgeway.com,  iTunes, Spotify, and other podcast networks. 

We'll be back soon with another episode. Until then, I'd like to thank our audience for listening in, and invite you to subscribe to the podcast and leave us reviews. Please feel free to follow up with me, Stephanie Southwick, at [email protected] for any feedback, ideas or insights you have on topics we should cover on the podcast. Thank you all and be well.