What does it take to become a judge? No one starts their legal career as a jurist. First they work as a lawyer advocating for one side of a case over another. But transitioning from lawyer to judge means hearing both sides of a case objectively and then making decisions that carry the weight of the court. In a break from our usual feature format, this week Life of the Law’s Executive Producer, Nancy Mullane talks with James R. Lambden, an Associate Justice on the California Court of Appeal about living a life immersed in the law.
NANCY MULLANE: Why law?
LAMBDEN: For me? My second oldest brother claims that I told him I wanted to be a lawyer when I was 12, but I don’t remember that. I do remember…
MULLANE: And second oldest brothers? What do they know?
LAMBDEN: He’s not very reliable, actually. I was very interested in it. The more I studied history and politics because the law is integral to that. I mean, history and politics, no matter how you look at it, are about either law or the absence of law, justice or absence of justice, so it’s really kind of on top of the bubble in terms of society and the running of our civilization. It’s the glue that holds everything together in a lot of ways.
MULLANE: Even as a young man you saw that?
LAMBDEN: It was pretty clear to me pretty early on. I was always interested in politics. I had a great, great grandfather who was a judge as well.
LAMBDEN: He was a Justice of the Peace in west Texas. His name was General Dixon. He was an unusual character who appears to have been a little crazy. Justice of the Peace at that time was both a sheriff and a judge, so essentially someone who could arrest you and put you in jail. He spread a rumor that a Lizzie Borden-type murderer, a woman who had killed her parents, had escaped from the asylum which was located nearby in Texas, and [he] went around in a dress and a bonnet scaring his neighbors as a prank. That story, and the story of him killing a man in his front yard, was all I ever heard from my grandmother.
MULLANE: So when you first started law school, what was that like for you? I know your first year sounded was a little difficult.
LAMBDEN: The first year was hard. It was very difficult, but that’s true for everybody. Law school’s an experience that’s hard to describe. It’s like sailing: interspersed terror with boredom. Not a lot of boredom, but a lot of terror about your ability to do the work, because it’s an enormous amount of work.
MULLANE: What is the work?
LAMBDEN: Well, the way it’s taught with the Socratic Method, you have to read all the cases and discern from all the cases the important precedential points. None other than Bernie Witkin, the most published legal author of all time, said that he thought that was B.S. That it’s a silly way to teach the law, and his system of course resulted in books that are essentially outlines. So for me—I’m not saying for anybody else—the Socratic Method was not very useful. I don’t learn that way. So for me, learning the trick of actually how to learn the law was the most important lesson I learned in law school.
MULLANE: So in law school you learned how to digest this massive amount of information and turn it into something you could then apply to a specific case. That was a challenge and you learned how to do that. Then you went into private [practice]. But when you were selected by Governor [George] Deukmejian to go to the Superior Court, you had to change the way you approached law, or maybe expand. Because now you would be sitting on a bench. So how do you change? What is that metamorphosis like? How do you change from being a lawyer to being a judge?
LAMBDEN: The most notable thing about it is to change your role from being an advocate in an adversarial setting to being the one who makes the decision. An advocate in an adversarial setting, who is being paid, knows in advance the position that he’s supposed to take because the client has hired him to take that position. That may not be the right answer, and that’s the uncomfortable part of being a lawyer. When you know your clients case is really wrong and that does occur. That’s uncomfortable over the years. It’s not terrible, but at the same time, you’re free of that when you become a judge. Your job is to oversee the creation of justice at a trial, and you just want to get the right answer. That’s a real pleasure, as opposed to trying to find a way to make this thing the right answer when you’re a lawyer.
MULLANE: Was it a tough decision whether to take the appointment?
LAMBDEN: It had ramifications. It was a tremendous pay cut for me, which it [still] is today for most people.
MULLANE: Can you tell me what that differential was?
LAMBDEN: I think I took about a sixty percent pay cut.
MULLANE: So you had to discuss this with your family.
LAMBDEN: Yeah, I did, which is not unusual even today. I mean, to go from a successful civil practice today to the bench is a real hit because of the pay differential, if nothing else. On the other hand, at least in those days, the retirement was very good and the benefits were pretty good.
MULLANE: In the public service.
LAMBDEN: In the public service job. But it’s always been a hard decision to make.
MULLANE: You went to this judicial college and took a course in logic. Was that the only course you took?
LAMBDEN: No, there were several. That’s another thing the public is not aware of, probably. California has the Judicial Education and Research. It was originally independent, but it became part of the Administrative Office of the Courts in the 90s, and it is the premier judicial education organization in the world.
It produces videotapes and courses on all sorts of stuff, an amazing array of stuff. So when one is appointed judge, they have the judicial college every July. Every judge who has been appointed in the previous years goes to that. It’s two weeks. It’s got orientations on everything. Ethics. Sentencing and Criminal Law. If you’ve never been a criminal law practitioner, it will teach you substantive law. How to deal with pro pers; how to deal with bias issues. An extremely confident faculty teaches that stuff.
Back when I started, it was pretty much on-the-job training. I had been a civil lawyer for most of my career and went directly into a crowded felony department…. That is the most common experience for new people, because that is where they need new judges, and it’s relatively easier to move from civil to criminal…. Criminal [law] is a more compact set of information, and civil [law] is a much deeper pond: Criminal is wide but shallow, and civil is very deep. So it’s a lot harder for the DAs to move into the civil side. But that’s a real steep learning curve, and in the meantime, you have to rely on hotlines and the books you’ve saved up and your colleagues to answer some of those thorny questions: like what do you do when the juror doesn’t show up? Being a trial judge, people forget, is a lot like running a grammar school picnic: you have to get everybody in the room every day. You’ve got to make sure everybody has a seat. People with back problems have to have something behind their back. They all have to have something to drink. Lunch has been arranged.
MULLANE: You have to make sure all that happens, as the judge?
LAMBDEN: Well, the judge is in charge of the courtroom, and believe me, there are endless things that can go wrong. Everybody’s in the room, and I’m sitting on the bench, and we’ve got 11 jurors. Where is he? I don’t know.
I remember early on in my career, I just got up and went out in the hall and started walking around in my robe—which people thought was crazy—and I found the guy. He was at the drinking fountain, and I brought him back in.
MULLANE: What did you say to him?
LAMBDEN: I said, “We’re going to start, come on back in.” He was very chagrined. That’s the thing that you miss about trials when you come here [to the Court of Appeal]: the daily drama of people and all their problems, and all the stuff they say and do, and all the good work they do, and how hard they work. Juries work very hard. Every judge I know admires the way juries work. They take it very seriously, and that makes you optimistic about the system to see that citizens really care about doing a good job.
MULLANE: But as a judge with a jury, it’s not your decision.
LAMBDEN: No. That’s the thing. People imagine that judges in a jury trial have a lot of power, but really we’re just managing the information that comes and goes, and answering objections and making sure everybody gets what they need, providing the instructions. But we’re observers for the most part. The real decision is made by the jury.
MULLANE: You were appointed by two Republican governors.
MULLANE: So does that mean you’re a Republican?
LAMBDEN: Well, I’ve been a Democrat and a Republican, and I’ve been mostly an Independent. Early on and more recently, an Independent. This is a non-partisan job and I take very seriously keeping my own views out of it. So ultimately I decided the “decline to state” [party affiliation] was really the best way to go, because I think it’s unseemly for people to believe that we maintain our party affiliations. Other judges are free to do what they wish, but we give up some of our First Amendment rights taking this job.