Appellate Practice
Jun. 25, 2002
Less Banging and Clanging, Please
SAN FRANCISCO -Venerable appellate attorney Elliot L. Bien was elected earlier this month as the 30th president of the California Academy of Appellate Lawyers.
"I'm honored and delighted because I've looked up to the people in this group for a long time," Bien said in a interview last week of the 113-member collection of appellate lawyers and former appellate judges.
"There are some very fine lawyers and human beings in the group."
Even so, during his 20-year career Bien has noticed that he and his colleagues have a tendency to forget the rules of common decency when they're arguing in court. In his year at the helm of the academy, Bien wants to spread the message that appellate lawyers up and down the state need to act more professionally.
"We hear constant complaints from judges," Bien said. "Not only do they wish briefs and oral arguments were better, but they say lawyers are just much too hostile to each other and lose [the judges] in the process."
Bien has been interested in courtroom decorum for some time. In 2000, he traveled to England to study the traditions of the barristers and explore how courts can promote professionalism among lawyers.
What he learned is that the close ties among the barristers, most of whom are based in London, lead them to treat each other better in court.
In contrast, Bien said, California appellate courts are often full of uncooperative attorneys who engage is name-calling and aggressive rhetoric, overstate authorities and make knee-jerk sanctions motions. He hopes that if appellate lawyers socialize with one another, they'll be much more agreeable in court.
"The English barristers have a system that we can't hope or want to emulate because of different social class issues, but they do have a tremendous sense of community," Bien said. "But with a greater sense of collegiality, peer pressure might develop in support of greater professionalism."
Bien's theories will be tested with a pilot program in San Diego that he hopes to kick off in the fall. There, justices of the 4th District Court of Appeal will host appellate lawyers in a series of informal bar-bench lunches.
He doesn't expect California lawyers will assume polite British personalities on account of a few lunches, but he thinks the program will at least help.
"I'm sure the sense of community will be much weaker than in England but a hell of a lot stronger than we have now," he said. "The economic and other cultural factors driving the profession toward its very aggressive and unprofessional style of advocacy are so strong, we need counterbalancing forces. Sanctions are harmful. All they do is increase the banging and clanging of hostile litigation."
Bien, 56, has run his own civil appellate firm since 1990. He works out of his Novato home.
Before striking out on his own, Bien worked for large firms in Chicago and San Francisco. He was with Friedman & Cloven from 1975 to 1979 and, after moving West, with Bronson Bronson & McKinnon.
Bien enjoyed the large-firm atmosphere but said he realized he needed to go out on his own to attract more clients.
"I left because my ability to attract referrals was diminished out of a fear of cross-selling," he said. "Other lawyers wouldn't refer potential clients to me because they were worried that lawyers in our other departments would swoop down and try to steal all of their business. My rate of referrals shot up significantly once I was doing only appellate work."
Bien calls himself "lucky" to be doing what he does. He says it's the best job for a lawyer interested in the academic and literary aspects of the law. He hopes his all his colleagues will soon share his view.
"I believe that if all lawyers saw themselves as not only advocates, but also as trying to help the court reach the correct decision, the advocacy would be more helpful and less hyperbolic and aggressive. And more accurate," he said.
Matthew King
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