What Judges Actually Notice: 20 Years on the LASC Bench with Hon. Stuart Rice

Jeff Lewis Welcome everyone. I am Jeff Lewis.

Tim Kowal And I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis Yeah, if you don't find it helpful, send it to your opposing counsel. Tim, today we are honored and privileged to bring Judge Stuart Rice to the podcast. Judge Rice retired from the LA Superior Court where he served as a judge for more than two decades after an appointment in 2005, including service on the Complex Civil Litigation Panel. He also worked at what I consider my hometown court, the Torrance Courthouse—a small community court where the lawyers and judges have great relationships with each other. From the bench, Judge Rice presided over an extraordinary range of matters: class actions, mass torts, complex commercial litigation, insurance coverage disputes, employment cases, and probate. And along the way, he handled high-profile proceedings ranging from claims arising out of the January 2025 Palisades fire to mass tort sexual assault litigation against a major university. Before joining the bench, Judge Rice was a senior partner at Rice and Rothenburg, where he handled civil tort and probate litigation and juvenile defense. His service to the profession is hard to summarize in a sentence. He served on the State Board of Governors, the Judicial Nominees Evaluation Committee, the Legal Services Trust Fund, and as president of the California Young Lawyers Association. As a judicial officer, he was elected president of the California Judges Association for 2017 and 2018, and served on the Judicial Council of California during that same period. He is currently entering his fourth consecutive year as president of the California Judges Foundation. He's also a member of the statewide task force on civility in the legal profession—one of the things we want to talk to Judge Rice about today. He served as chair of the LA Superior Court's Temporary Judge Committee for 15 years, as a three-time member of that court's executive committee, and as president of the Benjamin Aranda III Chapter of the American Inns of Court. That's where I had the pleasure of meeting Judge Rice for the first time. In fact, Tim, I have a perfect unblemished record of litigation in front of Judge Rice—I've never lost in front of him. I also have never actually had a case in front of him. But I know him by reputation and he had a great reputation on the bench. Thank you so much, Your Honor, for joining us on today's podcast.

Judge Stuart Rice It's my pleasure to be with both of you, Jeff and Tim. Thank you.

Jeff Lewis Your Honor, let's start with the Inns of Court. We met there just before the pandemic. For listeners who aren't Inn members and aren't familiar, what is the American Inns of Court?

Judge Stuart Rice The American Inns of Court grew out of the society in the UK—they've had it for hundreds of years. Quite a while ago, one of our chief justices of the US Supreme Court imported it to America, and there are branches all over the country. When I came to Torrance from downtown, I wanted to immediately get involved with the community, and I knew about the robust Inns of Court chapter in the South Bay—the Aranda Inns of Court, named after a deceased judge who was well thought of in the South Bay community. I found it to be a really important part of my integration into the South Bay legal community. I met amazing people, including one guy named Jeff Lewis—really, really smart guy. It gave an opportunity for judges who chose to participate—a handful of us did—and as you alluded to, I eventually served as its president. And a lot of lawyers from different aspects of the profession joined as well. What I found when I joined, however, was that I thought it was a bit top heavy. People had been in the Inns for a long time. It was a great source of collegiality and civility—when your opposing counsel was somebody from the Inns, there was never any acrimony. And when I was president, one of the things I introduced was these pupillage groups, which are essentially seminar groups that each put on an educational program once a year. I required that every pupillage group add two new members who were either law students or lawyers five years or less out. That really began changing the Inn's demographic so that we had a lot more young attorneys. I used to bring all my judicial externs, and it actually added a networking function to the Inns. One of my externs ended up getting his job as a lawyer through somebody I introduced him to at the Inn. But the most important part is that when you are with people in a legal environment but not in the courtroom—not as adversaries—you treat each other with respect and dignity and courtesy, as we really should do for everyone. That helps foster an aspect of our profession that is in many instances sorely lacking.

Tim Kowal You mentioned those pupillage groups—that's the first time I've heard that word. It's basically a kind of mentor-mentee relationship between more elder and experienced lawyers and newer lawyers?

Judge Stuart Rice That is part of it. The pupillage group mostly meets separately from the larger Inn meetings because every group is going to put on an educational seminar at some point during the year. As a judge, I was the head of my particular pupillage group, as were other judges and other senior attorneys. I always wanted to make sure my pupillage group had a couple of young people—one, because of the mentor-mentee relationship, but more practically, I wanted to make sure I had somebody who was good at tech to handle the PowerPoint. It was a really great mix of the young, the older, and people from the bench. I always had judicial externs. That was very important to me as a judge—to help young people feel comfortable in the courtroom. I felt the same way in the Inns and really gravitated toward the younger attorneys, making sure they had a chance to interact with somebody from the bench.

Jeff Lewis Yeah. To interact with a judge outside the courtroom setting is so invaluable. Tim, imagine having lunch or dinner at a judge's house or at a restaurant with a mix of a judge, some older lawyers, some mid-level lawyers, and some brand new baby lawyers. And being able to ask the judge or the older lawyers: I have this ethical issue come up, I don't know how to handle it—how would the bench perceive this, or how would you think we should resolve it? And because there's no court reporter—nothing in these meetings is ever repeated—you get really candid advice from the veteran lawyers and the judges. It's a fantastic program.

Judge Stuart Rice It is. As I was telling Tim before we began, I'm no longer a sitting judge, so I'm much freer to talk. I can talk about cases, I can give legal advice. It was tricky at times in the Inns when somebody would ask me for straightout legal advice, and you just really can't do it—I would have to decline in that instance. But if you could word it in an academic way, then I could participate in those discussions. Every once in a while one of the lawyers who had a case in front of me would cross a line, and I'd say, stop right there. But for the most part, it was just a great way for everyone to interact within the South Bay legal community, which has a reputation for collegiality, and the Inns is part of that.

Jeff Lewis Yeah, absolutely. And one last thing I'll add is that I had a very contentious matter—and Your Honor probably had a bunch of these when you were in Torrance—involving tree and view disputes up in Palos Verdes. I had both the bench officer presiding and my opposing counsel in the Inn, and we were able to maintain—even during trial—a collegial environment where once a month we'd see each other, have drinks, and discharge a little of the tension that sometimes builds up during trial. It's fantastic.

Judge Stuart Rice Well, Jeff, I could take up the rest of the hour talking about my view dispute cases, but I'll just tell you about one. If I ever wrote an autobiography, this one's going in there. Basically it was a fight over a view where somebody had a big olive tree. I came in for round two—they'd already kind of settled the case years earlier, but it didn't go away and ended up back in front of me. I actually hired an arborist under Evidence Code 700, made them pay for it, and sent him out to evaluate whether the tree could be trimmed and how the view was being blocked. What I did not realize when he wrote his first draft of the report is that he was a total environmentalist regarding trees—his whole report was about: don't touch the tree. I just wanted to know whether there was anything that could legally be done to potentially accommodate both sides. We did resolve it for a time. But the reason I wanted to tell this story is that about two months ago I was doing a mediation and I didn't know the lawyer, but she said she knew me. When the mediation was over, she said the reason she knows me is that she's now involved in that same view dispute in Palos Verdes—she's doing an appeal—and I had been involved in it a couple of rounds ago. So they're still fighting over that olive tree, fifteen years later, after I thought we had resolved it. Neighbor disputes sometimes never end. As soon as that tree grows a little more, another round of fighting.

Jeff Lewis Your Honor, that case is the oldest active case in Los Angeles Superior Court, and it is about thirty-one years old—it's been going longer than I've been practicing law. I'm familiar with that case. You were just one of like seven or eight judges who touched it. There's Judge Kaufman, retired arbitrator, Judge Gregory O'Brien—a bunch. Anyway. Let me just add one other thing about the Inns of Court. It's not just the South Bay—there's an appellate Inns of Court, subject matter Inns of Court, one in Long Beach. So there are geographic chapters, but also practice area chapters.

Judge Stuart Rice Absolutely. When I sat downtown in criminal, I joined the larger LA community Inns of Court. When I moved to civil, I was in the civil Inns of Court downtown, but was never quite as involved as I was in the South Bay Inns. They're all over the country. Anyone listening who has an interest in getting involved in an Inns of Court, there's a Western Regional Office that I went to a couple of their conferences, and I think anyone in any community could find an Inn if they tried hard enough.

Tim Kowal Yeah, and we were going to talk about civility later on—Jeff has some questions about that—but I wonder if I could ask now whether you see any link between the Inns of Court and the decline in social cohesion. I'm thinking of Robert Putnam's Bowling Alone thesis about how all the Elks Lodges and Moose Lodges and various organizations over the last 50 years have been in decline. That has caused a lack of social cohesion and lots of other social problems. I wonder if that relates to the lack of civility, and whether younger attorneys are being siphoned off from the elder attorneys. I thought it was such a great example that you brought up about the pupillage groups—that they can help younger attorneys get brought into the ways of practice that elder attorneys have been raised in, rather than just being siphoned off into an Instagram generation of attorneys who develop their own ways of doing things and we end up with kind of isolated, bowling-alone type practices between generations.

Judge Stuart Rice Well, I think anecdotally, at a minimum, a generation raised differently than us—with a device to communicate through—has far less talking between attorneys. The desire to join a bar association, which I did immediately when I moved here from Massachusetts—I didn't know anyone, I was an associate at a three-partner firm in Long Beach and I was their only associate—I immediately joined the Long Beach Bar, the Long Beach Barristers Club, and a few other organizations so I could meet people. I don't know if that's automatically the instinct of young lawyers today. But I can only really speak to our Inn in the South Bay. I've rejoined the Inn now that I've retired—when I was in complex downtown LA, it was too difficult to get to the meetings. But now I've rejoined and it is flourishing: forty to sixty people come to every meeting and everybody knows one another. The Long Beach Inn, which I used to go to when I was in practice, is still going strong. Bar Association memberships have fallen off in some ways, and that's really unfortunate. I try to go to the South Bay Bar installation and judge and lawyer of the year event every year—there's such great energy there. I do the same in Long Beach, and I always attended a lot of bar events as a judge. I felt that was part of my job—to be out there in the community. Now that I'm in the private neutral world, I'm still attending and I enjoy that. I enjoy being in person with people as much as possible. But I think with the younger generation, a lot of them were appearing in front of me remotely toward the latter years, and I think they became very comfortable with that. I'm hearing from colleagues at older generations at big law firms who are having trouble getting their young lawyers to come to the office. There are certain comforts and efficiencies in working from home. But as I was telling Tim before we began—in terms of being a judge—I always told the lawyers: if you have something before me where you could win or lose, not just a status conference, you will do your best work if you are in the room. And certainly for trials. When I was in Torrance pre-COVID, every seat in my courtroom was filled every morning with motions and status conferences. Listening to other cases being heard is educational for everyone, especially younger lawyers.

Jeff Lewis You could take the temperature of how the court is feeling that day—in terms of patience for long argument or short argument. You can say hello to the staff, who are the most important people in the room. There's no substitute for personal appearance. Your Honor, you're with JAMS now doing arbitrations and mediations. I wonder how you've adapted to remote Zoom mediations, and whether you find them effective.

Judge Stuart Rice It was very difficult for me to leave the bench. I really loved being a judge. As mentioned in my intro, I was in the complex courts handling some very important cases that would have an impact not just on the particular group of people involved, but potentially on society as a whole. But it was my time. I'd spent two years as a commissioner and twenty years as a judge, and the opportunity to go into what we call private judging or being a neutral was wonderful—one I wanted to take advantage of because I really wasn't ready to stop being involved in the law. The transition was a little tough—not wearing the robe. But joining JAMS has been just wonderful for me. I'm doing a variety of things: I have a great number of arbitrations, I've done a great many mediations in a variety of subject areas, and I've also been hired on a few cases as a neutral evaluator—essentially a consultant where the lawyers know what they're doing but want a judicial perspective. I don't meet the client, I'm not on the papers, but I'm providing a perspective that only my experience can give. I've also been hired on a couple of mock trials where there's a jury hired to hear the case, but they also want to know what the judge thinks about what the jury did and how they did it. But your specific question is about remote mediations. I prefer to do them live, but I'll do them either way. Now that I've learned how to put people in their own Zoom rooms, I'm much more comfortable doing that. I still believe we're at our best in person. But I've had many remote mediations that have resolved. There's just more of a barrier between people when you're not together. For example, when I would do settlement conferences in court, I'd take the bench for a couple of minutes to give the lay of the land, then step down from the bench and say to counsel: please introduce me to your client, shake their hand, and then say to the client right out of the gate: there are going to be times during the afternoon when I'm going to want to meet with your attorney on his or her own, and they'll keep you posted—we want to make sure you feel involved in the process. Sometimes you just want to talk to the lawyer, get a sense of the relationship between lawyer and client, whether there are any client control issues. It's harder to do that when they're on the screen in the same virtual room. So I do pre-meetings, which are very helpful, and I discuss that very issue with them: what's your relationship with your client, is there any conflict making it harder to settle the case, is it okay if I meet with them alone, how should I go about that, and I'm going to give you my cell phone number if you want to call me while I'm in the other room. There are ways to make it as personal as possible. But if I had my way, even though I have to drive downtown, I would do them live. I find that's a better energy for everyone, including me.

Jeff Lewis And to be able to meet at the coffee machine at the JAMS office with the lawyers and the mediators—you have small talk and you learn certain things that can help resolve the case. I'm a big fan of in-person mediations. Your Honor, a few weeks back we had a former associate justice of the California Supreme Court on, and he told us that in the first thirteen days of his retirement, he played thirteen days of golf straight. What were the first few weeks like for you when you left the bench and entered the world of JAMS? What did you do?

Judge Stuart Rice Well, thinking about the people on the California Supreme Court, you must be talking about Justice Chin. I've played golf with him at conferences. He's the person who swore me in when I was president of the California Judges Association. I think of him very fondly and I know how much he loves golf. I also play golf—similarly to him, not very well, but I enjoy it. And I did not play thirteen days in a row. I did play a few times over the first month and was not getting any better, which was frustrating. So I began to take lessons and got even worse. Although golf is still part of my life, I don't want it to be the main part. The intellectual stimulation and contributing to our legal profession as I am able is really my first priority in retirement—such as it is. It's not really retirement, just the next chapter. I did not meet with any of the providers in the world of private mediation, arbitration, and neutral evaluations until after I was off the books. I had left the bench but still had vacation accruing, so I began my process thereafter. It took a couple of months before I finally made my decision and got on board with JAMS. I started in early October. My last day as a judge was July 28th. So for those first couple of months it was just adjusting to the transition. Now I feel very much at home in my new world. I can have lunch with people on a day when I'm not working all day and we don't have to stop at 1:10 to make sure we're back in the courtroom at 1:30. When I meet with people who are still sitting judges, I make sure we start early enough so they can get back to their court in a timely manner. But I'm free to be at a more relaxed pace with much more flexibility in my schedule. Like today—I had a couple of arbitration conferences this morning, I'm very happy to meet with you and participate on your podcast this afternoon, and we'll be playing nine holes at Recreation Park Golf Course at 5:30 with some lawyer friends from my time as a lawyer in Long Beach. What we call a Stuart Rice Day, where I get to do a little bit of everything.

Tim Kowal That's right. In addition to flexibility in schedule, I assume you're enjoying a little more flexibility in which cases you take. As a superior court judge, you more or less had to take whatever came to you. Now I assume you're enjoying something like one hundred percent discretion over which cases you take.

Judge Stuart Rice That's absolutely true, Tim. There's a canon in the Judicial Code of Ethics: you have to take every case assigned to you unless you are recused from it. You can't say, I don't want this case because this lawyer behaved inappropriately in my courtroom, or I'm not interested in this subject matter. In this world I can say yes or no to anything based upon timing and subject matter. I'm relatively new, so I am saying yes to most things. With all respect to lawyers who practice in this area, I did make it quite clear right at the beginning that I don't want any Lemon Law cases. When I transferred from Torrance to Los Angeles before I went to the complex courts, we had so many Lemon Law cases on our docket, and I'd had enough of them. They're important to the people involved, but I don't need to be doing them in my retired life. I like variety. I do have a lot of arbitrations in the employment arena—and that's not just because of me, that's because society has changed. Most companies have their employees sign a contract with an arbitration agreement as part of it, and if the arbitration agreement is upheld, those cases have to go to arbitration. It's interesting being on the other end of that. I heard probably 200 motions to compel arbitration, most of which I granted—but not all. And now I'm the one getting those arbitrations. Many of the lawyers I have in arbitration, I know them from appearing in front of me. It's so interesting to be in this less formal world. I call them by their first name, and many of them want to tell me stories about cases they had in front of me—now that those cases are completely over, I can hear those things and participate. Every once in a while though they want to complain about some of my colleagues, and I don't really want them to do that. But it's very different when you're not on the bench, because there is certainly a barrier between a judge and the lawyers in terms of how you have to interact.

Tim Kowal Since you are in a more informal environment in mediations and arbitrations, do you deliberately do things to establish rapport with the litigants and attorneys that you wouldn't have done while you were on the bench?

Judge Stuart Rice I think in a very general way I'm the same, Tim. I always thought it was essential—especially in a settlement conference and now a mediation—to establish rapport with both sides, so that both sides feel a trust in you, that you're looking out for their best interests, and then when you say something it has resonance. I do find, however, that in this new world I'm a little less formal. The rapport remains equally important, if not more so, because I'm no longer the person who's going to be ruling on their case. Many civil judges did not do settlement conferences on their own cases, but I did it routinely when asked—or when I suggested it and they were willing to sign a stipulation that nothing I did would be cause to recuse me, since you do meet ex parte in settlement conferences. And now when a lawyer wants to talk to me about a case we had together while we're caucusing separately, I enjoy that. I'll comment back. I had one lawyer say to me, Judge Rice, do you remember that case where you called the defendant the A-word? I said, I did not do that. I do remember telling the lawyer there was no way I was going to be able to grant summary judgment. But he said, Well, you didn't call him that, but for all practical purposes, that's what you said. So now we could interact and banter back and forth about this story, which would never have happened while I was still on the bench. And I think we laughed and it really established a good rapport. It was an interesting case—a wrongful death case involving a police shooting, a very serious matter. A person was at a concert sitting on a blanket with his family, things got out of hand, he was shot and killed by a police officer, and the police claimed that he had a gun. The family said he did not. And then the police entity brought a summary judgment motion, and my comment—which the plaintiff lawyer interpreted the way he described—I just said to him: Counsel, material issue of disputed fact. What could be more disputed than whether there was a gun or not in a police shooting? How can I possibly grant this motion? So those were my true words. Having the opportunity to have that kind of conversation now that I'm not on the bench would never have occurred while I was still on it, even if I had another case with that attorney.

Tim Kowal We want to give you the opportunity to broadcast now: if there are cases out there looking for arbitrators and mediators, what kind of cases is Judge Rice looking for? What most gets all your cylinders firing? Is it meaty legal issues, certain subject matter, interesting players and facts and stories, excellent attorneys—all of the above, I guess, probably.

Judge Stuart Rice Certainly all of the above. But for me personally, having spent the last four years in the complex courts in Los Angeles—there are nine of us, probably the largest group of complex judges in state court in the country—I had all the Palisades Fire cases. I also had all the cases in California involving allegations against Johnson and Johnson for allegedly causing ovarian cancer in women. And other cases of that magnitude: huge class actions involving employment issues and a variety of companies. I actually wrote an article not long ago for the Daily Journal about how to be successful in complex mediations, touching on a wide variety of complex cases—all complex, but across many subject areas. I have been involved in a few so far, but I would like to do more complex mediations—helping to try to solve cases of great magnitude in terms of number of plaintiffs and complexity of the issues. Some cases you're not going to resolve in four hours or even a full day. They really need a whole strategy laid out and require a lot of collaboration with all parties, who all have to be open-minded. I also recognize there are many cases I'm handling—tort cases, probate cases, employment cases, breach of contract—and I'm open to all of that. All I ask is that if you're paying good money to have me help you mediate, everybody comes with an open mind, a good spirit, and a willingness to be civil and fully participate in the process. And it's really a good feeling to help facilitate resolution. A case I'd been working on for a few months—I got a text while I was in Greece last week saying, Judge Rice, we got it done. We'll send you a copy of the release when we get back. In that instance, it really doesn't matter what the subject area was. Just the fact that I was able to participate with excellent lawyers—top of the profession lawyers—and we all worked together toward the goal that everybody sought. That was very rewarding.

Tim Kowal And I think Jeff wants to take us into our next topic about civility.

Jeff Lewis Yeah, Your Honor, we bumped into each other a couple of weeks apart—jury duty, and then I saw this fantastic presentation you gave the South Bay Bar Association on civility. That's what really caused me to pick up the phone and ask if you'd come on the podcast. So let's talk about civility. You sit on the statewide task force on civility in the legal profession. How did you end up on the task force, what's it trying to do, and is this about rule changes, cultural change, or both?

Judge Stuart Rice That was a collaboration between the California Lawyers Association, the California Judges Association, and other groups interested in promoting civility in the legal profession. I was asked by the then-president of the California Judges Association to be one of the CJA's representatives to the Civility Commission. There were many judges, appellate justices, and a great many lawyers from different aspects of the profession. We met by Zoom and had a great number of people involved. We did make some rule change proposals, some of which have been adopted. We also suggested—and this has been adopted—that lawyers who became lawyers in 2014 going forward have a sentence in the oath they take about treating each other with dignity, respect, and courtesy. It doesn't use the actual word civility because people concluded that word is too amorphous. But now even I had to do it this year when I rejoined the bar—you have to attest to the State Bar that you have taken the new oath. So what does that do? Do people behave differently because they now have to recite a sentence with those goals in mind? I suppose. Disciplining a lawyer for being a jerk on the phone is not going to happen, but there are things that do rise to the level of discipline. There's still a big debate about whether you can discipline an attorney for a lack of civility—civility is an umbrella for bad behavior, and it's a hard word to define. But there are things going on that could lead to discipline. More importantly—and this is what I talked about when I spoke to the South Bay Bar about civility—the whole idea that to be an effective litigator, you need to behave in a way that reflects a lack of civility, that you need to be so aggressive that that's how you're going to be effective for your client's outcome. Being a zealous advocate is the number one duty of an attorney. I never lost sight of that as a judge. I love zealous advocacy. But zealous advocacy does not mean interrupting your opposing counsel while he or she is talking. Zealous advocacy doesn't mean refusing to provide discovery responses and telling opposing counsel to pound sand or bring a motion, while claiming everything is over broad and nothing will be produced. That leads to a lack of ability to make progress in the case. At my seminar I cited many recent appellate decisions—there are way more of them than there used to be—in which lawyers are either sanctioned or penalized, get a reduced fee award, or a bigger fee award goes to their opponent, all because of a lack of civility. So a lack of civility is not only ineffective, it is actually a detriment to your skills and your ability to be the best lawyer you can be on behalf of your client. And the appellate courts are starting to reflect that in their opinions. There was one opinion where, though the decision was in favor of the lawyer who was then reprimanded in the decision for lacking civility, the court went out of its way to comment upon the inappropriateness of that lawyer's conduct—and it was a case in which his client's position was not ruled adversely. And in Lemon Law cases, which are really attorney-fee driven, there have been a couple of published appellate decisions where a trial level judge reduced an attorney's fee request from around $250,000 to $30,000, and those decisions were affirmed on appeal because of obvious over-litigation and lack of cooperation in discovery, which gave rise to much higher fees than would have occurred had the people been willing to work together.

Tim Kowal Is that an underused tool, in your view, Judge Rice—reducing fee requests based on lack of cooperation, lack of civility, and over-litigating minor points?

Judge Stuart Rice Well, in my conversations with my colleagues in complex—we met every week and talked about our cases—we made sure, for example: I had this lawyer appear in front of me today, have you had that law firm in front of you, have you found them to be this or that? And also when I was in an independent calendar court, many of my colleagues agreed: it's perfectly appropriate to reduce fees when the fees have to be fair and reasonable. If there's an attorney's fee provision in a contract or in the code—like the Lemon Law statutes or employment statutes—the prevailing plaintiff gets fees. So you have to entertain it, but they have to be fair and reasonable. And one of the reasons they would not be fair and reasonable is if simple discovery was propounded, you didn't agree, you went to the informal discovery conference with the court—which I required and which almost always resolved the issue—but it's not an order, it's a recommendation from me, and I'm the one who's going to rule on your motion. If that then results in a motion and then another motion and maybe a motion for terminating sanctions, that's at least five figures in attorneys' fees, maybe six, that would not have occurred had there been cooperation as I believe we're all required to provide. So I think that's a common ruling for judges when faced with that situation. I also think—and I mentioned this in the session that Jeff attended—when I was in practice I had a case in Orange County and I almost never brought discovery motions, but I was getting absolutely no cooperation from the other side. So I brought one. The case before mine was also a discovery motion, and the judge yelled at both lawyers in a way that I felt was inappropriate. He ruled in favor of the moving party but sanctioned both sides. I think that's a completely inappropriate ruling by a judge, as opposed to a reduction in fees. I found—and this is important to me—that if there's a bully in the case, somebody who's really making it difficult for the other side, the court has a responsibility not to paint both of them with the same brush when really one side is clearly the wrongdoer. Often they're both at fault, but many times not. I always made sure I was very careful not to just automatically assume that both attorneys are failing in their duties when judges get annoyed by discovery motions.

Jeff Lewis That's interesting to know, Your Honor. I always have this image of judges like parents when kids are arguing in the backseat—he looked at me, he touched me—where judges don't really care so much about who started it, but just: cut to the chase. But I guess you're saying sometimes there's a need for the court to take a look and see who's the instigator, who's the bully.

Judge Stuart Rice I think that's very important because it happens more and more. The court has a duty to protect the sanctity of the case and make sure that everybody is being treated fairly. If you have a case where one side is getting away with inappropriate tactics and—like you said with children—you don't try to distinguish which of your kids is the instigator, then you aren't really treating fairly the person who has done nothing wrong and really doesn't want to be in your courtroom fighting about this, but the other side won't pick up the phone or has written really inappropriate emails, which of course they want to attach as an exhibit. I have an example that comes to mind. When I was in Torrance, there was a deposition. The transcript was attached to the motion. A transcript by itself doesn't give you anything—it doesn't show the decibel level of the voices going back and forth. But very quickly what happened was: the attorney whose client was being deposed said to the other attorney, You're in my client's space. Please move back and give my client some room. And the other attorney said, Don't tell me how to behave or where to sit in my own conference room. I will sit as I wish. So you've got two people squabbling unnecessarily right out of the gate. But it ultimately turned out to be the person who made the first comment about get out of my client's space who just wouldn't stop. He just kept saying it. And then he said, I've given you your last warning. And he called 911 and reported an assault—and a deputy sheriff came to that deposition. There had been no assault. I was never a big sanctioner, but sometimes the code requires sanctions when there's no substantial justification. That was an easy case for major sanctions. You've got to pay for the court reporter, you've got to pay for that attorney's time, and that is a terrible example of a complete misuse of resources by somebody who is authorized to practice law in our community.

Tim Kowal We interviewed court reporters on the program, and that profession is always trying to recruit new members to alleviate that crisis. I'm not sure if that's a good example of a very interesting exchange—or maybe it's a bad example of a room that you do not want to be in.

Judge Stuart Rice Well, I've been involved with issues involving court reporters because they're such an essential part of the court system. Years ago during the recession, as Jeff knows and I assume you know as well, Tim, in LA we stopped providing court reporters in civil courts. If you wanted a court reporter, you had to bring your own. It wasn't something we wanted to do, and there are still some issues in the legislature about court reporters. We want to protect court reporters, but very few people are going into that profession. And why is that? It's not that it's not a great profession—you can make good money, you're involved in the law. But it's obviously a profession heading toward obsolescence at some point. So as people retire, the courts are scrambling to have court reporters available even for criminal felony cases and misdemeanors. We got a law passed so you can do electronic recording for misdemeanors. It's become more and more of a problem, and something's going to have to be done. We're at a sort of crisis point right now.

Jeff Lewis Your Honor, other than not calling 911 at a deposition, what are some concrete things that lawyers can do tomorrow to be more civil, lower the temperature, and serve their clients better?

Judge Stuart Rice Well, depositions are a specific example because you have no referee. Being an aggressive questioner in a deposition can help you be effective, but it's really important that we remember we're all colleagues, all part of a learned and honored profession, and we need to treat each other as such. Now it is an adversary system, so there is going to be conflict. I don't expect everybody to always get along beautifully. I have many examples from my career as an attorney. I'll give you one: I ultimately had to say to one attorney, don't talk to me again. Anytime you want to communicate with me, you have to put it in writing—because she would misquote me to the judge. There was one time we rode downstairs in an elevator together after a long hearing and I said, Let's talk tomorrow. She said, No, we need to talk right now—basically in my face. When I got to work in the morning, I had a five-page letter about all the things I had conceded, and I hadn't said one word. So I said: do not ever talk to me again. You have to protect yourself, and sometimes you have to seek relief from the court. There are people in every walk of life—and a lot of them are litigants because they're drawn to litigation. I taught a class on this and did some research called High Conflict Personalities, who have diagnosable conditions that we see in all parts of our lives. When your opposing counsel falls into one of these categories, there's really no reasoning with that person. You're going to live with that case for as long as you have to, but you need to protect yourself and your client. As a judge, it's a little easier—I know so-and-so is coming into my courtroom tomorrow. I'm still the judge. I have the last word. But I did not allow them to take control of the courtroom or push me around, and I would take appropriate action when required. So some of it just goes with the territory. But things like the Inns of Court—ABOTA is another group. I wasn't part of ABOTA when I was a lawyer, but as a judge I went to many of their events. ABOTA is a membership organization for people who have tried a certain number of jury trials, and their whole mantra is collegiality and civility. I spoke at one of their events and they gave me a hat that said 'Civility in the Legal Profession,' and I had to say—hmm, is this an inappropriate gift? But since I had spoken on a panel, I think I could take the hat. And I'll tell you, especially in the complex courts, the higher the value of the cases, for the most part, the better the attorneys get along. They argue about what matters. When I'd say, Counsel, you should have been able to resolve this—what's the problem, what's the underlying issue here?—they'd each state their position, and then inevitably they'd look at each other, look at me, and say, we'll have a stipulation to you by end of business tomorrow. Not every time, but the civility in the complex courts was at a much higher level than when I was in a regular civil court.

Tim Kowal Isn't there an expression to the effect that the amount of vitriol is sometimes inversely proportionate to the stakes? The lower the stakes, the more petty and vindictive people get to claim that prize.

Judge Stuart Rice I think there's some truth to that. When the stakes are really high and if you're lead counsel in major mass tort litigation on either side—whether plaintiff or defense—you've been around for a while. You've seen it all. You and your opposing counsel are probably both in ABOTA together. They fight tirelessly on the issues that matter, but they don't interrupt each other, and when I ask them to meet and confer, they do. There's something to be said for that. And now and then, though, I remember having a case in MOSK where the lead partner from the defense firm and the lead partner from the plaintiff's firm both came to court on a discovery motion. As I said, I had very few—I could count them on both hands over several years. But they both came in and both said, I don't do discovery motions. Both of them. I apologize for being here. But it was just one of those situations. That isn't a normal thing for those lawyers. But they both felt like the other side had crossed the line. I ended up meeting with them in chambers and did what I could to resolve it, but that case required a ruling. They were so far past the point of reason. And that is going to happen from time to time—but that should be the exception in the way you practice. How enjoyable is the practice when you're constantly at war with your opponent?

Jeff Lewis One of the reasons Tim and I gravitated toward appellate work—we don't work together, but we're both appellate lawyers—is that the bar is so small and collegial and there's no discovery. Maybe once or twice in my career I've seen a request for sanctions on appeal. It's a different practice of law.

Judge Stuart Rice It certainly is. It's much more esoteric and put in writing. As you know, I'm sure you haven't been accused of this, but if you write things in your brief that the appellate justices feel is intemperate, they're going to call you on it. It's never effective. I mentioned that in the seminar Jeff participated in: the Court of Appeal is going to call you on it when you criticize the trial judge by calling them names. More so when you accuse the trial judge of something outrageous—I gave the example of a lawyer who accused the judge of being 'succubistic,' which is essentially a female demon. This lawyer wanted to show how smart he was by knowing a word that nobody else knew. And did he really think the Court of Appeal was going to say, hey, good use of language?

Jeff Lewis Well, he was right—it got the court's attention. The word did get the court's attention.

Jeff Lewis Your Honor, Justice Chin told us when he was on the podcast that one of his pet peeves when people come to mediation is not sharing briefs—they want the brief to be confidential and don't share it with the other side. Do you have any pet peeves or best practices you want to share in terms of lawyers coming to you for mediation to ensure a successful mediation?

Judge Stuart Rice Well, next month I'm on a panel for the Beverly Hills Bar on civility in mediation—so combining all those things together. Yes, I find that very point that Justice Chin mentioned to be one of my pet peeves as well. When I have my pre-meetings, the briefs always say 'Confidential.' This is what I've done, and I wrote about it in my Daily Journal article: sometimes lawyers with good reason do not want to share their brief with the other side because they're sharing strategies with me—why they think they're really strong in a certain arena—that they don't necessarily want to share with their opponent, especially if the case doesn't resolve. So this is what I've suggested: write a second version of your brief. I'm not going to require you to disclose things to the other side that are really valuable for me to know. But you should be able to provide the other side with a brief. And that has been working—so far nobody has turned me down on that. Even if they don't get that second brief, it's better than no brief. They get it on the morning of the mediation and it's still valuable. That's one thing I've done to convince lawyers not to keep their brief secret. It's really important that both sides have a sense of where the other side stands before the mediation. Another one of my pet peeves—which I'll mention at this upcoming seminar—is that I usually ask the plaintiff to make their demand first. And one of the problems in mediation is that nobody wants to appear weak. So if you want the plaintiff to go first, they're almost never going to make a reasonable demand, despite my entreaties to do so. If I warn them that making an outrageous demand is going to get a nuisance value offer in response and we're not going to be off to a good start, still—they feel they have to go first. So I did one mediation where the number was in the eight figures, on a case that was probably going to settle in six figures. And I'm in a room with six defense attorneys, one of whom was a very experienced lawyer who mostly worked for insurance carriers. When I came in with that number, he went like this—and I'm sure he's been in a hundred settlement conferences and mediations—he basically telegraphed: it's going to be a short day. So I said, Counsel, how is that helpful? You've never had a plaintiff make an unreasonable demand? I'm not asking you to pay it, and I expect you to make a nuisance value response. I told the plaintiff to make a lower demand, but he didn't. That is not helpful.

Tim Kowal There's a whole psychology to settlement and negotiation, and I've never claimed to have it mastered—because you're trying to play the psychology of the other side and the psychology of your client and your relationship with your client. You want to make sure you're able to tell the client at the end of the day that you got them a good deal.

Judge Stuart Rice Right. Sometimes that's why these pre-meetings are helpful. I've met with many a plaintiff's counsel who said, Look, they've never made me a reasonable offer—because my client won't let me go below X, and until I get my client to go below X, they're not going to make me a reasonable offer either. I said, Well, thank you for sharing that with me. That's helpful for me to know. And I thought the lawyer had written a great brief, so the first thing I did at the actual mediation was sing the praises of that lawyer in front of her client—what a great job she was doing, how effective her brief was. By the end of the day, the client was saying—I asked her, do you mind if I talk alone with your attorney, which I had kind of rehearsed with the attorney—and the client said, If it's okay with my attorney, it's okay with me. Changed the whole dynamic. And we got the case resolved. But I also had a case where the day was coming to an end and nobody had been willing to make that move despite all of my attempts. We were still over a million dollars apart. I said, Counsel, I just don't feel as though either side has been willing—I talk to them separately, I don't usually meet with them together—I just feel as though the day's coming to an end. I'm willing to do a second session with you, but it wouldn't hurt if I did a mediator's proposal. And for your listeners, that basically means I give the same number to both sides. Sometimes I explain my reasoning as to how I got to that number. They either say yes or no to me in writing within a week. It's yes or no—not 'that's too much, but we'll do this.' One says yes and the other says no, there's no settlement. The number I picked was not the midpoint—I don't necessarily go to the midpoint, because lawyers are scared to death of the midpoint. That's why they don't want to go up or down. I picked a number I thought was fair for both sides based on what I knew of the case. It required over a $300,000 move by both sides after a whole day of mediation—and they both said yes. Coming from me as the mediator, they weren't the one looking weak somehow. I feel—I used to do free settlement conferences when I was a lawyer for the court, and that's very different than now. You're hiring me, you're paying me money, you don't have to be there. So your goal is resolution. If your goal is resolution, then let's work at getting there. Sometimes it does take a mediator's proposal to get it done.

Jeff Lewis Your Honor, I want to circle back on something I heard a few sentences ago. I've seen incivility at depositions, at trial, and in discovery. Did I hear you say you're speaking about incivility at mediation?

Judge Stuart Rice We're wording it in a positive way: civility in mediation. So not incivility, but of course we'll talk about incivility too. The incivility is not as obvious in mediation because you're not in the room together—and I've talked to many lawyers who don't want to be in the room together. But in mediation the lack of civility shows itself in the example I just gave you: the defense attorney rolling his eyes when I came in with the plaintiff's number. The plaintiff didn't hear him say that, so there isn't going to be a fight. But that's still a lack of civility. And it's also unproductive for the success of the day.

Jeff Lewis Lawyers like that are doing a little bit of theater for their client, I suppose. I'm not excusing it, but I'm just trying to imagine why somebody would do that.

Judge Stuart Rice There was no client there—there were six lawyers in the room, the client was an insurance company, and there was one adjuster there. Maybe it was for their benefit. But also, when you start badmouthing the other lawyer to me when we're alone—what is that for? That's a lack of civility. Sometimes they're trying to show me how unreasonable the other side is being. That could be effective advocacy, but there's a way to do that without name calling. So there's that.

Jeff Lewis Your Honor, we're approaching the end of the hour. I didn't want to end without touching upon the scholarship in your son's name. Do you want to share with our audience a little bit about what that scholarship is?

Judge Stuart Rice Thank you, Jeff, for asking about that. It's very important to me and to my wife. When I was outgoing president of the California Judges Association making my final address at our annual meeting, the basic point I made was that there are two things I love most in my life: one is my family, and the second is being a judge and what this organization has given me. So I would like to combine those two things and start a scholarship in memory of my son, who unfortunately died in a traffic accident while studying abroad when he was 21, between his junior and senior year at Cal. Just today my wife and I were having lunch and talking about Adam. It's been eleven years, but he's with us every day. So we have the Adam Z. Rice Memorial Scholarship, administered through the California Judges Foundation—of which, as you mentioned in the intro, I am now the president. At the time I was not on the board, but it just so happened that I was chosen to join the foundation board several years ago, and now I'm in my fourth one-year term as president. The Adam Rice Scholarship is part of what we do. We also give money to different courts doing outreach programs to teach civics, leadership, and a lot of other things. The Adam Scholarship is designed for incoming or existing law students who demonstrate financial need. Financial need is the number one criterion. You also have to be a good student, but academic achievement is secondary. We let every ABA law school know that you can apply. We have a social media presence to reach all the schools. The applicants have to prepare a two-minute video introducing themselves, describing their financial need, and responding to an academic prompt—this year's is about artificial intelligence and its impact on the legal field. We've been doing this for about eight years now. I wish we had more money to give. My wife and I initially seeded the scholarship and then a lot of judges donated to it. I could not fundraise outside of sitting judges when I was on the bench—couldn't even reach retired judges or commissioners, never mind lawyers. A lot of people wanted to donate but I couldn't ask them. But now I'm a retired judge, so I actually can ask for money. That's not what I'm doing here—you asked me about it, and I'm very proud of it. We have given scholarships to so many wonderful students. I have one of my former externs on the selection committee—he comes from very humble beginnings. He sometimes straightens me out because not all the two-minute videos are as sophisticated as some of the others. He'll say to me, Yeah, but did you hear what he said? Did you hear about what he's done? He's basically raising his eight-year-old brother by himself. And he also told me—because I'd like to give the kids more money, it's frustrating that we're really not changing their lives, we're giving them enough money to buy books for that year—he said, You don't know how important it is to a kid who comes from nothing to get a scholarship from the California Judges Foundation. How that helps their self-esteem and their real sense of possibility. And I've been mentoring a bunch of the kids now that I've retired. This year's winner received a letter that didn't just say, Congratulations, here's your check. It said, You also have free mentoring until you have your first job as a lawyer. You can write to me or call me anytime. If you're having trouble with a subject in law school, I can put you in touch with one of my former externs. I have a whole community of externs who help them with academic issues. I help them with job searches and externships and just when they need a pep talk. It has been so rewarding. Of course I'd much rather have my son back—but my wife and I are trying to do some things in his name, and this is one that has given us so much joy. Some of these kids—I don't know how they've gotten themselves to law school. Like this young woman who's in her mid-twenties now. I'll never forget her video. She said, In terms of my financial need—I never knew my father and my mother died of lung cancer when I was fifteen, and I've been on my own ever since. There are so many examples of kids with nothing, who grew up in the foster system or came from another country holding the hands of their younger siblings. And here they are on the verge of becoming attorneys. The fact that we're doing something to assist them in that regard is very rewarding to us—and thank you for asking about it.

Jeff Lewis What a mitzvah, Your Honor. Please send us a link and we'll include it in our show notes so people can learn more about the foundation if they want to.

Judge Stuart Rice I would appreciate that. That would be wonderful.

Tim Kowal Yeah, it comes right up on Google if you search for the Adam Rice Scholarship. It's hosted at the Caljudges.org website, but it'll come right up on a Google search for Adam Rice Memorial Scholarship.

Judge Stuart Rice You found that so quickly, Tim. Very impressive. Well, I appreciate you asking me about it, Jeff. It's very close to my heart. It combines all the things that matter to me. Adam would have been a great lawyer, but he was much more interested in being a filmmaker. I don't think he would mind that we have this scholarship in his name to help kids that come from poverty. He was always interested in and concerned about homeless issues and how people live who didn't grow up the way he did. We're proud to have this in his name.

Jeff Lewis Well, Your Honor, you've been more than gracious with your time and patient with my technological challenges. I think we're going to wrap up this episode here. Tim, was there anything you wanted to add?

Tim Kowal No—and if you have suggestions for future episodes, topics, and guests, please email us at info@calpodcast.com. I want to thank Judge Stuart Rice for joining us. You obviously have a wealth of knowledge on all things judiciary, and I feel like we only just barely tapped the surface on the subjects we covered today. We look forward to having you back again sometime if you're willing.

Judge Stuart Rice I would love that. This was a real pleasure. You're both so eloquent and well prepared, and the questions you asked me were all of great interest to me. I hope I was able to contribute something to you and your listeners. It's been a blast to be with you this afternoon. Thank you.