May 22, 2014

MEMBER SPOTLIGHT: Interview with the Honorable Gail A. Andler

Judge Gail A. Andler has been a California state trial judge since 1994. She currently sits on the Complex Civil Litigation Panel of the Superior Court, Orange County, and is the immediate past President of the American College of Business Court Judges. She served two terms as the Presiding Judge of the Superior Court's Appellate Division. Prior to her judgeship, Andler was a deputy district attorney for Ventura County and a business lawyer in Los Angeles. She graduated from UCLA and Loyola Law School. 

Judge Andler is very active with the American Bar Association, a member of the Business and Corporate Litigation Committee of the Business Law Section, and of the Executive Committee for the National Conference of State Trial Judges for the ABA Judicial Division. "People think of the ABA and they think of the House of Delegates," says Judge Andler," and they don’t think about the important opportunities there are for substantive education and for improving our system of law." 

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What inspired you to become a lawyer? 

I have early memories as a young child of watching Perry Mason and being drawn to the drama in the courtroom and having a sense that that was where I wanted to be. I had a funny conversation with a friend about this, because my friend said the prosecutor always lost in that show. But what I remember is that there was always a search for justice, and even if the prosecutor lost, somehow in the context of that drama it was the right result. 

You did become a deputy district attorney. What did you enjoy most about that position? 

I loved trying cases and I loved thinking on my feet. When I was a young prosecutor, my colleagues and I looked at each other with eyes wide open and said, "They’re paying us to do this job?" We were employing what we learned in law school; we were actively involved with the evidence code and putting on trials and trying to do the right thing. 

Did it feel like a search for justice? 

Absolutely. I was privileged to work under District Attorney Michael Bradbury who had a tremendous amount of integrity. The message he gave to us was that if we did not believe in the case we were prosecuting, then we should not be prosecuting it. Prosecutorial discretion carries with it a very heavy responsibility. 

How did your prosecutorial experience prepare you to become a judge? 

The trial experience was invaluable. I became very comfortable in the courtroom, with juries, and well versed in the application of the evidence code. Being a prosecutor sometimes meant you were taking another prosecutor's handoff case, and you had to quickly get up to speed and be able to present it in court. Those are skills that are important as a judge, because you are not always trying cases which have been assigned to you for an extended period of time. 

You then went to work at a law firm. Can you talk about that experience and how it prepared for judge? 

I worked for a small Los Angeles firm. The civil practice gave me important exposure to the realities of the business world, the business needs of clients, and the need to be mindful of the resources that are spent in litigation. Every lawsuit is also a business decision. Even though there might be important principles behind the lawsuit for the client, it was important to keep an eye on the business realities of engaging in litigation. I think that was a very important perspective for me to have. It also helped to further hone my writing skills, because as a prosecutor there was not much brief writing. The experience I obtained in researching, briefing, and arguing motions was important preparation for my work as a civil judge. 

Is there a typical day in the life of being a judge? 

My typical day is always an extension of the day before because of the workload. So, I don’t have a 9 to 5 day. I routinely work well after the court doors are closed and I routinely start in the morning pretty early. The first task in the morning is reviewing the files for that day to take one last look for late filings. I am able to do this electronically. 

I start most morning calendars with case management conferences, which I consider to be problem-solving conferences. The business and commercial cases as well as the other types of matters on the calendar are called, and I have a conversation with the lawyers about where the case is going and what I can do to help to streamline it and move it toward a resolution or, if necessary, expedite it toward a trial. 

After we have those conferences, then I resume hearing a pending trial, or if my trial has concluded, then I check to see if I can take a trial for a colleague, as most of my trials do settle. Of course, I also spend time in chambers working on rulings and crafting opinions. 

How does your day change if you're in trial? 

I typically begin my trials after my morning conferences about 9:30 or 10 a.m. and conclude by 4:30 because of the budget cuts. We cannot keep the jurors or parties in the courtroom later than that. This also applies to bench trials, because staff needs to leave. While I cannot incur overtime costs for staff, however, sometimes I will stay with the attorneys for an informal conference. We will talk about what we are going to do the next day and see what I can do to promote resolution. 

You devised a new pilot project called Early Legal Assessment. How was it inspired? 

Presently most courts have a menu of ADR services that are available to the parties: arbitration, mediation, and early neutral evaluation (ENE). I noticed nobody was using ENE and could not figure out why. 

I talked to some of the lawyers and they said their business clients were often unwilling to engage in an early neutral evaluation because they felt they were being pushed to try and settle a case before they had conducted enough discovery to put a dollar value on the case. It occurred to me that there was a need for a hybrid program which would be like a confidential legal mediation. 

Early Legal Assessment (ELA) is ideally designed to be employed in the beginning of the case, although there have been cases where we have used it after the case is further along in the litigation process. The parties, through their attorneys, are expected to identify a pivotal legal issue and then jointly agree on a retired judge or justice whom they believe is scholarly and could provide a valuable assessment. 

The next step is for counsel to do a letter brief of three to five pages where they separately discuss, in an abbreviated or perhaps bullet fashion, what the key cases and statutes are that support their position. The letter briefs are given only to the neutral. The parties schedule separate sessions in front of the neutral, where the attorneys sit down with their clients or key decision maker present, and try to persuade the retired judge or justice that they are right on the law. The judge or justice, without telling them what the other side wrote or what the other side said, gives them a confidential assessment of whether the party is likely to prevail on their legal issue. At the end of the session, the judge or justice can recommend that the parties consider settling the case. 

So what this does is it takes the pressure off the lawyers, in the eyes of the client, from having to initiate a settlement discussion, because some clients view that as a sign of weakness or a signal of a lack of confidence in the case. Importantly, it can ultimately be a bit of reality therapy for a client or an inexperienced attorney who is unrealistic about the likelihood of success on the legal issue. I find that the beginning of cases, before parties get entrenched in expensive discovery and become more adversarial, is often the best time to have a candid discussion about whether they are on the right track legally. 

How has the project been received? 

I have heard from the judges involved who say they think the program is great. I have also had suggestions for improvements. One judge thought it would be important for the parties to execute a written confidentiality agreement, since ELA does not have the word “mediation” in it, and at least in California, communications during mediation have broader protections than communications during settlement conferences. 

You've been a judge for 20 years. Has the job significantly changed? 

I have seen more multi-jurisdiction cases. I have seen an increase in the number of class action and derivative cases. This is coupled with, unfortunately, fewer court resources. Our court has done a pretty good job of continuing to provide the litigants with open courtrooms where they can try cases and complex courtrooms that can help manage the cases to a resolution. Unfortunately, around the state of California, other courts are having to close courtrooms and divert resources. I hear from my colleagues in Los Angeles and San Diego and other parts of this state that there are fewer courtrooms available to try civil cases. Some judges have had to limit the number of motions they hear on a given day, which impacts how quickly a party can get a ruling on a challenge to the pleadings or discovery dispute. 

Some courts no longer provide the civil litigants with court reporters, and some of them are moving away from direct calendar management to master calendars so that the litigants are getting judges with heavier caseloads who might not be as familiar with their case when it goes to trial. 

All of this leads potentially to less predictability, which is extremely important for the business and commercial cases. Markets, attorneys, and clients want predictability, and there seems to be a move away from that because of the diminishing resources for civil litigants. Those who represent civil litigants have to be concerned about whether our civil justice system is at risk due to inadequate court funding. 

Has e-Discovery or social media evidence changed things? 

E-discovery makes it more expensive for the parties to prepare and present a case in court. I am involved in the Sedona Conference, which studies issues such as proportionality in e-Discovery and tries to come up with best practices. Businesses are legitimately concerned about their preservation obligations and related costs. We know that probably 90 percent of mergers result in some form of litigation or claims. So it begs the question: at what point do you have to start putting a preservation hold on all electronically stored information? And how are you going to preserve it? And how are going to produce it? The potential costs can be quite high. 

That is why I have been increasingly focusing on whether there is a legal issue that can be determined that can change the landscape of the case, so that the parties do not have to expend a lot of resources on fact-based discovery when it is all going to come down to whether there is a statute of limitations issue, or a Choice of Law issue, or a standing issue. 

What advice would you give to a lawyer interested in becoming a judge? 

Become an excellent writer. Focus on your scholarship. Gain as broad exposure as possible to the various areas of the law, because as a judge, especially in these economic times, you never know what your assignments will be. Become involved in your community as a whole and the legal community. 

What is a commonality among the most successful business lawyers who appear in your courtroom? 

Everybody would agree that a successful lawyer should be articulate, scholarly, prepared, and courteous. Fortunately in the Complex Courts, I get a caliber of lawyer who, for the most part, fits these criteria. These lawyers enhance the court's and client's confidence by being exceptionally well prepared. By being unfailing polite, courteous, and civil to the other side, these lawyers show me they are picking their issues. So when they bring an issue to me, it is really one that needs a judicial determination. They are able to reach more settlements than those that take a different tactic toward the litigation. A lawyer who goes in like a bulldog is going to reward a client with a much more expensive fight and a much more uncertain outcome. 

How has involvement in the Business Law Section helped you in your work as a judge? 

I have benefitted from the substantive education and the exposure to some of the best and brightest business lawyers in this country. The national perspective has been very helpful, especially as we increasingly see cases that are played out in multiple jurisdictions around the country. I wish that more judges and more lawyers knew that it is not just a group of people that get together and talk about ABA resolutions. 

You’ve been very active as a member of the Business and Corporate Litigation Committee. What have you most enjoyed about this Committee? 

The leadership is tremendous. They’re some of the finest lawyers I have ever had a privilege of meeting. We have a great bench/bar dialogue within the Committee. 

It has also been a lot of fun to meet international lawyers who are members of the Committee. They will likely never appear in front of me, but they are some of the most delightful and interesting people I have ever met. There is much to learn from one another. 

I have also enjoyed how much of an emphasis we place on reaching out to young lawyers and to law students. Also, the Section and Committee take on some really great projects to improve our justice system. 

You’ve been described as a great mentor to law students and young lawyers. Have you also been a mentor to other potential mentors? Why do you believe mentoring is so important? 

I have never thought about myself as a mentor to other mentors, but if I have been, perhaps it is through my discussions with new judges who become involved in the Section through our Business Court Representative program. I tell them about networking events, and I have encouraged them to take law students from the Diversity Clerkship Program. 

I would not be where I am today without my mentors. I am sure I have learned more from those who may have considered me a mentor. 

You participate as a key member of the Section’s working group that develops model business and supplier principles directed to the eradication of labor trafficking and child labor. Why did you choose to participate in that project? 

I was immediately intrigued by the project. I thought it would be an opportunity to learn more about an unfamiliar and critically important area. Human trafficking and forced labor in the supply chain is a human rights issue impacting every one of us. 

I also thought it would be a good opportunity to try to harmonize in some way the web of regulations that the business community has to face. 

I wanted to lend my voice to the creation of a project that I hoped would be helpful and welcomed by the business community, while addressing a very important social issue. I think most of us have been moved by the stories we have seen about the factory fires in Bangladesh and the other horrendous working conditions that children and others have been subjected to through the forced labor that exists in some supply chains. 

You served as President of the American College of Business Court Judges. What do you find most impressive about the work of the College and its members? What challenges does the college face? 

The College is a group of judges from around the country who handle business and commercial cases or complex cases either exclusively, or as a mix in their caseloads. Because not all jurisdictions have a dedicated business or complex court, it is important to exchange best practices with those judges who might one day be doing a family law case, and the next day a DUI, then the next day have a commercial dispute on their docket. 

Also, at the American College of Business Court Judges, we have been privileged to receive education from leading economists and professors on areas that are important to an understanding of the complex business matters which come before us. This education is a unique aspect of the College, in addition to the valuable education which comes from our judges teaching judges and sharing best practices. We keep up-to-date on trends in the law from Delaware and other jurisdictions regarding corporate governance among other key areas. Importantly, the College also supports the development of the business court movement and assists judges who are in the process of establishing complex or business courts in their jurisdictions.