Appellate Practice

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A California appeals court added a “note on civility, sexism and persuasive brief writing” to the end of an opinion to address what it described as a lawyer’s “highly inappropriate” description of a trial judge’s appearance and personal characteristics.

The lawyer, Jan Stanley Mason, referred to the judge as “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or federal bench,” the Recorder reports.

He repeated the reference again when he wrote, “With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”

The California Court of Appeal’s Second Appellate District said in a Nov. 22 opinion that the reference “is inappropriate because it is both irrelevant and sexist.” Such comments likely would not have been made about a male judge, according to the opinion by Justice Brian Currey.

Mason was referring to Justice Gail Ruderman Feuer, now an appeals court judge. Feuer was a Los Angeles superior court judge when she rejected a motion to dismiss a defamation suit against Mason’s client but agreed to toss a second claim. Feuer was not a member of the appeals court panel, which upheld her decision.

The appeal court noted that Mason said he intended the reference to be a compliment. “Nevertheless, we conclude the brief’s opening paragraph reflects gender bias and disrespect for the judicial system,” the opinion said.

The court said it was addressing the reference “not to punish or embarrass but to take advantage of a teachable moment.”

The court referred to an article by two judges who said women in the legal profession, including judges, continue to encounter discrimination despite graduating from law school in record numbers.

“As [the authors] observed in their article, gender discrimination is a subcategory of the larger scourge of incivility afflicting law practice,” the appeals court said.

“Objectifying or demeaning a member of the profession, especially when based on gender, race, sexual preference, gender identity or other such characteristics, is uncivil and unacceptable,” the court said. “Moreover, the comments in the brief demean the serious business of this court. We review judgments and judicial rulings, not physical or other supposed personal characteristics of superior court judges.”

The court added that it welcomes creativity in briefs and does not require perfection. “We simply did not find the peculiar style and content of this brief’s opening paragraph appropriate, helpful or persuasive.”