Gersten v. Gersten (CA1 11/17/09)

The Court of Appeals publishes a very small percentage of its opinions in domestic cases. This one addresses community-property and child-support issues that are apparently thought important but its interest to the rest of us is as an example of the successor-judge problem and, more importantly, as a lesson in what the record is worth nowadays.

Judge A heard some discovery disputes in this dissolution action, tried the case for five days, received and considered written closing arguments, and took the matter under advisement. He then advised himself to resign, which he did without ruling on the case. Judge B watched the movie (the trial had been videotaped) and ruled on the case in a way that inspired both parties to appeal.

There is a rule for this situation. Rule 88 of the Family Law rules is taken from ARCP Rule 63; it allows the successor judge to proceed after “certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.” It also allows the parties to recall witnesses, though the newer Rule 88 conditions this on the unavailability of an “adequate electronic record.”

Husband argued that Judge B didn’t follow the rule.

He claimed that Judge B didn’t review – and therefore couldn’t certify familiarity with – the entire record. The court held that she had to review only what was relevant to her ruling. And how can a judge who hasn’t reviewed the whole record know what’s relevant to review? Well, that turned out to be a problem in this very case – but not enough of one, apparently, to cause the court any disquiet about its holding. Judge B awarded wife some fees, which required consideration of “the reasonableness of the positions each party has taken throughout the proceedings,” A.R.S. § 25-324(A). But Judge B didn’t review anything about the discovery disputes, including a videotaped discovery-motion hearing. The court reversed the fee award and remanded with instructions to review “that portion of the record necessary” to determine the parties’ reasonableness throughout the case.

So, the law is that the successor judge need not review the whole record. Instead, the parties review the whole record and decide what parts are relevant, they argue that to the judge, the judge makes a decision about what to review, reviews it, then after judgment the parties appeal because the judge allegedly didn’t review the right parts. This contentious, time-consuming, and expensive procedure is consistent with the principle of judicial economy, which is that all law shall be construed so as to lessen judicial workload.

Husband next argued that Judge B erred in failing to recall witnesses. The problem was that he hadn’t asked her to. The court didn’t accept his excuse, which is that Judge B hung up the phone (telephonic status conference) before he could ask. Now you now why judges ask at the end “Is there anything else?”

Finally, Husband argued that the video wasn’t good enough to let the judge make credibility determinations. He said it was jumpy, had gaps, and that there were problems with the audio. He pointed to several places where the written transcript said “indiscernible.” Husband, a pro se, clearly wasn’t aware that indiscernibles and gaps are now a fact of legal life and that to get a court reporter who can actually record what the witnesses really say you need either the knowledge of how to jump through hoops designed to prevent you from getting one or else the good sense to commit a serious crime. In any event, Judge B said that she could follow the recording just fine, thank you, and that was good enough for the Court of Appeals. The video is not the record, of course, as the opinion admits in a footnote; under ARCAP 11, the record is the transcript. What happened, then, is that the record was full of indiscernibles but the successor judge decided what the the record said by reviewing matters not in the record. In other words, the record of a videotaped trial says whatever the trial judge – including one who wasn’t even there when it was made – says it says. Those of you who think this a giant step backward will rest assured, no doubt, to know that the Court of Appeals watched the movie, too — “only to assess the accuracy” of Judge B’s description of it. What the court thinks that means as a legal and evidentiary matter is beyond us.