Photo by Flickr user Chris Martin.

Gavels, Benchslaps and Stupid Patents: Surprises From The Judicial System

I’ve logged a “People’s Court” (the original series!) worth of hours sitting in courtrooms over the past three years, mostly federal and state appeals courts in the San Francisco Bay Area. You probably don’t need me to tell you that actual court isn’t at all like television court, but let me do it anyway.

Real-life courts — civil courts, at least — have a lot less yelling, defendant-shaming and gavel-banging (in fact, gavels are rare; more on that later), but they’re not without their drama. It’s just that the theatrics are more complicated and more subtle. Less Donald Trump, more Barack Obama. They’re also full of surprises. Here are a few:

Many judges don’t use gavels.

Courtrooms still have their ceremonies: everyone stands when the judge or jury comes into the courtroom, and most judges wear black robes, though powdered wigs are no longer part of the scene. These days, at least in Northern California, court is called to order not by a judge pounding a gavel, but by a courtroom deputy who tells observers when to stand up, sit down and be quiet, and often tells the lawyers when it’s time to argue.

The only times I’ve seen a gavel used was in the Ninth Circuit, where the deputy bangs one before calling the courtroom to order. Some of the Ninth Circuit deputies also deliver an old-timey speech that goes something like: “Hear ye, hear ye, hear ye! All persons having any business before the court, now draw near. Give your attendance and you shall be heard.” It’s adapted from something the Massachusetts Supreme Judicial Court started doing in 1894.

Many judges have great senses of humor

It’s natural to assume that since justice is SRS BSNS, judges never crack a smile or make jokes. But judges have all kinds of personalities and approaches to their jobs, just like any other workplace. There are those who are straightforward and sincere, those who lash out at attorneys every chance they get (sometimes called “benchslaps”), and those who use levity to get their points across or to make a courtroom more welcoming.

Federal magistrate judge Paul Grewal, for example — who once wheeled four stacked banker’s boxes full of files into a courtroom on a dolly to shame a group of attorneys into not filing so many briefs — peppers his hearings and rulings with pop-culture references. He once wrote that a cluster of patent infringement lawsuits filed by nonpracticing entity (AKA “patent troll”) Acacia Research Group reminded him of the film “Groundhog Day.”

Federal judge Charles Breyer — the brother of Supreme Court Justice Stephen Breyer — often jokes from the bench. His humor is more subtle and wry; he suggested at one point that if Federal Express excels at getting packages delivered overnight, it should have no trouble getting its witnesses to court for a trial. He’s also used humor to make a point about excessive briefing in a case accusing Wal-Mart of sexist employment practices, comparing a set of filings to Tolstoy’s “War and Peace.”

Trials, even murder trials, can be really boring.

It’s actually a relief when judges or others use humor in court, because even the most interesting-sounding case can be really tedious, particularly when they’re put before a jury. The recent trial against Raymond “Shrimp Boy” Chow had all the makings of a gripping drama. He was accused of arranging the murder of the leader of a Chinatown secret society — rumored to be a front for an organized crime ring — and then taking over as the society’s “dragonhead.” He was also charged with money laundering and transporting stolen cigarettes and liquor, including Johnny Walker Blue and Henessy XO.

Shrimp Boy allegedly surrounded himself with shady people, including a corrupt political consultant who orchestrated bribes of elected officials, such as ex-state senator Leland Yee, who in turn was accused of offering to procure guns and a rocket launcher from the Philippines. You could hardly ask for a better criminal yarn.

Although the story has plenty of juicy, made-for-the-silver-screen details, a jury has to be given the facts of the case, which can include phone records, bank statements, emails, and other minutiae. In Shrimp Boy’s case, prosecutors spent hours showing the jury various photos and asking witnesses for their interpretations of the subjects’ clothing and facial expressions. It’s not exactly riveting stuff. Even Ellen Pao’s trial against Kleiner Perkins Caufield and Byers, which included an X-rated Leonard Cohen book, an all-male dinner at Al Gore’s house and a business trip discussion of Victoria’s Secret models and the Playboy Mansion, had its dull hours. Intellectual property trials can be even worse — going through the highly technical language in a patent line by line, for example, or spending a day on emails between inventors.

There’s a reason courtroom dramas offer edited, condensed, fictionalized versions of the action — not only would the real thing be too long for most viewers’ attention spans, but much of it is about as riveting as an IRS audit.

The patent system is really messed up.

No, seriously. Patents are a decent idea, in theory, that encourage people to invent new things and give them the protections they need to bring a successful product to market without competitors stealing their thunder. But the US Patent Office frequently grants patents to ideas that shouldn’t be patented. Either they’re not actually a new idea, or they take something humans already do and apply it to computer software (this isn’t patentable). But that’s only the beginning.

People and companies no longer take out patents just to develop, produce and sell new inventions. The system is so broken that buying and litigating patents is a viable business strategy. If someone else is making something that’s remotely close to a patent you own, you can sue them for infringement. Most of these cases settle before they get very far, which makes it easy for patent owners to extract money from defendants like some kind of grotesque vending machine.

This practice wastes the courts’ time and money, but that’s not the half of it. The courts are also tasked with invalidating badly-assigned patents. I’ve sat in more than one courtroom with a judge who was obviously frustrated with a case involving a patent troll, a bogus patent or both. The EFF is trying to help by naming a different stupid patent each month, but it’s going to be a long while before all the bad patents are cleared from the system.

The class action system isn’t so great, either.

Before I started working as a legal affairs reporter, I had this idea of the class action process as one in which consumers and laborers could fight for fair treatment and transparency — a way for the little guy to fight back against sneaky, corner-cutting corporations. While that’s not entirely untrue, what surprised me was learning just how attorney-driven the process really is. One day, a prominent San Francisco attorney came into the press room where I worked to let local reporters know he’d just filed a lawsuit on behalf of beer drinkers protesting the merger of two major alcoholic beverage companies. Although this is pure imagination on my part, I pictured him outside corner liquor stores in the city, watching customers buy beer and then asking them if they wanted to lead a class action.

Lawyers have plenty of incentive to represent plaintiffs in class actions, given that they stand to receive about 25% of the pot if the case settles. Top law firms compete to lead major consumer and labor lawsuits, such as the ones over the Volkswagen diesel emissions scandal and the data breach at Anthem. They go where the money is. As companies get big — Google or Uber, for example — you can watch the class-action suits follow closely behind.

I’m not blaming lawyers for doing this. It is a business, after all, and they have to get paid somehow. But it’s not as though some Random Jane decides to change the system by taking some major company to court. Not always, anyway. Fortunately, plenty of judges are willing to make sure that companies pay non-trivial amounts if they do settle out of class actions. They also frequently cut back the piece of the pie that goes to the attorneys.

The law is constantly changing.

A lot of people think of the law as something static, printed in books and rarely updated, but it actually shifts so often that it can be difficult to keep up.

I recently covered a hearing in a case accusing Uber of calling its drivers independent contractors instead of employees. The hearing focused on a contract in which the drivers had agreed to resolve any quibbles with Uber in private arbitration rather than in a public court of law. There are obvious reasons Uber and other companies ask workers to sign these things: it keeps their names out of court. But courts can declare such agreements unenforceable if they largely protect the employer while leaving the worker vulnerable.

A year earlier, the judge overseeing the case decided that some of Uber’s arbitration agreements were unfair. More recently, though, he said that several recent court decisions were making him think twice. A year’s worth of rulings had changed the ways in which the agreements could be deemed unfair. Ultimately, he sided with the drivers, but for different reasons than before. His ruling will be added to the pile of recent case law, so that the next judge asked to determine whether an arbitration agreement is unfair may have to keep it in mind.

Courts are public and you can watch almost anything.

Courts are public entities, largely funded by taxpayer dollars. The judicial process is something we pay for and something we’re pretty much always welcome to sit in on. Occasionally, judges will lock their courtrooms to discuss sensitive details, like a company’s intellectual property or a crime victim’s personal information, but it’s rare.

That means you can get a front-row seat for just about anything: murder trials, the sentencing of shady politicians, tech titans’ patent battles, or employees accusing major corporations of violating labor laws. Some of it’s obscure, tedious or unnecessarily procedural (seriously, the courts could do a lot to make their proceedings more approachable to the public), but within all that is the messy, imperfect practice of the law being applied.

Journalist, editor, author, opinionator. Bylines: Guardian, New Yorker, Vice, Mother Jones, Wired. Much more at

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