Commemorating a Courtroom Legend

One of the great professional experiences of my life was the year I spent working for a federal trial judge in Los Angeles. Fresh out of law school in 2005, I served as a law clerk to the Honorable Manuel Real, who was appointed by President Johnson in 1966 and has presided there in the district court since. He’s a walking, living legend of the law.

Judicial clerkships are sought-after jobs for good reason. You learn more about litigation in that year than you ever could by practicing law in any other capacity. It’s because you read and analyze a lot of briefs, and you watch and listen to a lot of lawyers. You see it all from good to run-of-the-mill to bad, and it’s not always what, or whom, you’d expect.

Last year, I was asked to write a piece to commemorate Judge Real’s fiftieth year on the bench, and recently, it was published in the newsletter of the Federal Bar Association in Orange County. Here’s a link to the newsletter if you’re interested, and you’ll find my profile of Judge Real on page ten. Or you can just keep reading below. You’ll hear about bank robberies, business litigation, and even a little gardening.

---

What do you say when someone celebrates fifty years on the bench?

Plenty in Judge Real’s case if you ask me, and since someone did, here’s my piece.

Who am I? Well, I was the Judge’s 62nd law clerk: one of two during the 2005-06 term, and one of 82 now overall. A lot of those clerks feel the way about him that I do, so I’m delighted to help commemorate this very special jubilee; it’s a deep and sentimental honor for me.

The Judge hired me when I was 26 years old, and he made a big impression on me from the beginning.

For one thing, he seemed like the strongest 82 year old in the world. I remember we flew to Arizona once to sit by designation, and at the airport, I found myself scampering ten or fifteen feet behind him because he was tearing along at a brisk pace with all of his luggage in tow. It was the gait of a man who knew where he was going. A lot of folks have marveled at his vitality over the years, and the Judge will often attribute it to his gardening, but I’m not sure you’d grasp what he means by that if you haven’t seen some of the gardening he’s done.

Here’s a story for you. A few years ago, I went to visit him at home, and when I got there, he was all by himself; no Mrs. Real, no family. He asked me to give him a hand with something, so we headed back toward the garden, and I saw that he was already in the middle of some heavy-duty project. Before I knew it, he brought over a ladder and power saw, and he said we were going to clear out some tree branches and foliage. That sounded good to me in the abstract, but then I found myself at the foot of a very tall ladder, staring up at my 86-year-old former boss, who happened to be a federal judge, perched on the penultimate rung. And above him, the tree branches loomed large and thick. It would’ve been a tough job for someone half his age.

Suddenly, I was pretty worried. And I didn’t like my options. I couldn’t ask him to come down from there any more than I could’ve told him not to go up in the first place. Not to someone like Judge Real, and not in his own house, anyway. But my mind was running and my adrenaline pumping. All I could think about — in addition to his falling and hurting himself — was how in the world I would account for that afterward to his family, or the world.

So I held onto that ladder as best I could and braced myself to break his fall or do whatever else.

But you know what? I didn’t need to worry. The Judge climbed that ladder to the top, stood firmly at its crest, and starting mowing down branches like nobody’s business. Before I knew it, I was getting covered down there with leaves and branches. At some point, he came down to take a break, and I offered to go a round. He didn’t go up again after that, and that was the end of it. But boy, what a moment that was.

And I have to tell you, I was astonished by that. I really couldn’t believe he did something like that at his age, and there was never a moment while he was up there that he seemed unsteady or precarious. The whole thing just blew me away.

But then the Judge is impressive in a lot of ways.

I remember a patent case we had that went to trial. It was a difficult, esoteric case, and the jurors had a hard time following along or even trying to. I found my own thoughts wandering, and I was supposed to be the apprentice law clerk. The Judge, however, actively presided over the trial and lobbed incisive questions from the bench. In the fog of a dry witness examination, he would get the testimony moving again with a series of short, focused questions. The longer I practice, the more I’m impressed by that case and how the Judge exerted the same energy and attention that one might summon in, say, a bank robbery.

Speaking of bank robberies, I remember one of those went to trial, too. The defendant was a middle-aged man who’d walked into a bank and passed a note. It was, like many bank robberies, a nonviolent act of turmoil and desperation. The guy had lost his job, his wife had left him, and his life was falling apart. So he went and robbed a bank. No gun or other alarming facts, just a guy with a note. It was sad and pitiable. He got caught, and now he was looking at a serious term of imprisonment under the federal sentencing guidelines.

There was no jury this time, and the case was tried to the court. I do recall the evidence was sufficient to convict the man, but then I wasn’t the trier of fact, though I’m not sure I would’ve come out differently if I was.

Well, the Judge acquitted him. I’m not saying the evidence was overwhelming, but there was plenty of room to convict if he wanted to. Although I’ve never asked the Judge about it, I believe it was a pure, unsung display of mercy and judgment by a judge whom no one would characterize as easy or soft. Mind you, the law of federal sentencing was in a state of upheaval at the time. The Supreme Court had just declared the guidelines to be advisory, not mandatory, but there was a lot of commotion about it, and the dust hadn’t settled like it has since.

Sometimes, the Judge disagreed with me, and those were the best lessons. One time, we got a motion for attorney’s fees after a disabled-access case had settled. The plaintiff’s lawyer was asking for $103,000, and the defendant, a restaurant, said it should be $13,000. I split the baby and recommended an award of $65,000. I argued that the lawyer’s hourly rate was reasonable and that the award, even if generous, would compensate him for the risk he took in bringing the case and his success in obtaining defendant’s compliance with the law. Or so I thought.

After the Judge reviewed my bench memo, he posed just one question: Could I research the court dockets for cases involving this plaintiff and lawyer? Sure thing, Judge. And so I did, and what I found was quite interesting. In the past three years, the plaintiff had filed at least 21 of these lawsuits in the California federal courts alone. In each case, his complaint made the same boilerplate claim that he’d fallen in a toilet at some restaurant. In two of these cases, he even alleged that it happened on the same day in two different restaurants — on opposite ends of the state. His lawyer in every case? You can take a wild guess.

The two had quite a racket going. They would file a lawsuit based on their boilerplate claims; bring in a consultant to identify every technical violation of disabled-access laws, few of which had anything to do with the plaintiff’s personal claim; settle the case for next to nothing but the defendant’s promise to bring itself into compliance; declare victory; and move for attorneys’ fees, which I suspect the two probably shared to some extent. But this wasn’t the Judge’s first rodeo, and needless to say, they didn’t get what they asked for.

There are a lot of things that you learn in a textbook, but when you learn by doing, and you peel back an onion that way, it tends to stay with you.

In that case, rather than acceding to the parties’ settlement, the Judge pursued a more just result, and he got it.

But that’s how he approaches work every day in my estimation. He’s a prototypical trial judge. During my clerkship, he would often remind us that, as a matter of fact, “we decide these cases.” He knows that it’s his job to decide them, and he understands that, while the court of appeals is there to review them, appellate review isn’t always an adequate remedy for injustice. He knows that, in nearly every case, the most important contest in the lives of those involved is the one decided in his court. And he knows that not everything that happens in a case or courtroom transfers to an appellate record, anyway. He wants to do justice.

Even generations of defendants whom he’s supervised on probation write to him, still — decades after he’s sentenced them or terminated their probation — to thank him for taking the time to judge them in a way that improved the balance of their lives.

That kind of stuff makes an impression on you, too.

In the end, everyone will have his or her critics — we all do — and fifty years of judging will earn you a few.

But I’ve learned that Judge Real cares only to do the best he can every day in law and in life. May we all do it so well.

His style may hark back to the brand of judge he used to appear before in his day, but his instincts are sound, his philosophy just, and his heart tucked securely in the right place. He is a good man in a preternatural sense, one of the very best I know, and I’m proud to call him a friend and mentor. Happy anniversary, Judge, and here’s to many more.