Blunt Force

James Gray and attorneys agree the retired judge is unafraid to speak honestly to all parties.

IRVINE – “What’s the most important thing in life?” retired judge James P. Gray asked a week after receiving the Orange County Bar Association’s highest honor, the Franklin G. West lifetime achievements in justice and the law, on Jan. 16

“The answer is gratification. It’s not power, it’s not prestige, it’s not money. It’s because the world is a somewhat better place because you have been here. That is the best feeling in the world,” said Gray, a neutral with ADR Services Inc. since 2009. “And one of the worst feelings is to be on your death bed, and look back over your life and think, ‘I wish I would have or I wish I would not have.’ Don’t let that happen to you.”

His life philosophy is what led Gray to make what was considered in 1992 to be highly controversial statements about the nation’s drug laws – statements that might be more acceptable today.

But it was 28 years ago when Gray, a sitting Orange County Superior Court judge, held a news conference and declared the nation’s drug laws were broken and the war on drugs had been lost.

The Lost Angeles Times quoted him as saying he advocated legalizing drugs, so they could be sold without prescription at lower prices than sold illegally and that he suggested drugs be taxed to fund education and treatment programs. In response, Gray said while he may not have been misquoted back then, he has since clarified he doesn’t want to legalize any drug but rather have them heavily regulated, similar to the sale of alcohol.

“It’s a fight that we have been engaged in for a very long time, to explain that I do not believe in legalizing drugs,” Gray said. “I’ve done this numbers of times, “sir, would you want to legalize marijuana?” Not a chance. “Sir would you like to treat marijuana like wine?” Sure. And that’s what we would be doing keeping it strictly regulated and controlled .”
However, back then Gray unsurprisingly faced strong backlash.

According to news reports, Donald E. Smallwood, then-presiding judge of Orange County Superior Court, said Gray’s public announcement was “unfortunate” and his actions may “constitute a violation of our canons here,” and “he may have brought his impartiality into question.”

However, in the end, Gray – who did not handle a criminal calendar at that time – said the Commission on Judicial Performance sent him a letter assuring him he was not under investigation. Gray, said he cherishes that letter.

So what compelled him not only to criticize another branch of government but to voluntarily hold a news conference and air his criticism to the whole county?

In no uncertain terms, he said it is his Libertarian values that compelled him. It’s those values that inspired him to alter write a book called “Why Our Drug Laws Have Failed and What We Can Do About It.” One of those who publicly endorsed the book was then-New Mexico Gov. Gray Johnson. In 2012, Gray became Johnson’s vice presidential running mate on the Libertarian Party ticket.

Other than Libertarianism, Gray is vocal about the sanctity of the law itself. According to corporate counsel and past Orange County Bar Association President Michael Baroni who wrote an introduction to Gray’s life-time achievement award, Gray has long frowned upon the telling of lawyer jokes.

“Such verbal debasement by an attorney is contrary to Judge Gray’s view that the legal profession is based on honor, trust and integrity,” Baroni wrote.

It’s something complex business litigator Michael Fitzgerald of Fitzgerald Yap Kreditor LLP, who has used Gray as a mediator at least half a dozen times, attested to in a phone interview. He said it’s hard to put into words but that Gray “always reminds people what their role is in the grand scheme.”

“He makes you feel good about being a lawyer,” Fitzgerald said. “Through his services, he reminds you why you signed up for this job, and why you continue to work hard.”

Fitzgerald and other attorneys said Gray’s strong political beliefs have never interfered with his duties as a neutral.

Asked whether his politics have ever hindered his business, seemingly unconcerned Gray responded that he didn’t know. Business is good, he said, and more new clients come every year. He said he figured if clients truly thought his politics would be a problem, he wouldn’t know because they aren’t his clients.

“One thing I do know about my reputation is, I’m considered to be rather blunt,” Gray said.

“I’m here to help make a business decision. I will focus on your vulnerabilities. Why? Because these things are out there and are something you will have to face.” he continued.

“Cheer up,” he added. “With the other side, I will focus on their vulnerabilities. Probably put a smile on your face if you could hear me talk to them, but of course you won’t. So I’m literally in the dissatisfaction distribution business. I make everyone unhappy with me. But you’ll like me better tomorrow when the case is settled. And it works.”

If the parties reach an impasse by the end of a mediation session, Gray will use a mediator’s proposal, he said.

If all else fails, and the case doesn’t settle by the end of a session, Gray will make a series of what he called “pester calls” until a settlement is reached. He said he once persistently called parties in a matter that finally settled a year and half after the session ended.

Gray said besides attorneys setting expectations too high, his ability to help parties reach a settlement is greatly hindered when the decision maker is absent during negotiations.

Neutral doesn’t mince words

“When I was on the bench, the local rules were, you had to have the decision makers here,” he said. “If they weren’t there, I would say ‘OK, I’m going to set another settlement conference for two weeks from now and also in ordered to show cause, raise sanctions.'”

Gray said he highly recommends exchanging briefs with opposing counsel at the beginning of mediation. As an arbitrator, Gray said while they may be hard to sustain, he believes in motions for summary judgement.

“I was on the bench 25 years. I was appealed successfully 11 times. Six of those 11 I granted a motions for summary judgement, and the court of appeal found a triable issue of fact and sent it back to me,” Gray recalled. “Of those six, two I never heard of again. They must have settled. The other four went to trial, and all ended up in defense judgments. I had done the parties a favor, in my opinion, granting the motion of summary judgment.”

To maximize time and cost-efficiency, Gray said he will suggest parties voluntarily adopt Rule 26 of the federal rules of civil procedure during the first conference call in an arbitration.

“It means that within 30 days of filing of the answer, the plaintiff will provide to the defendant a list of witnesses, a short comment on what the witnesses will say, all of the exhibits proposed to be used at trial and comment about what’s not. All voluntarily. They provide it and then the defense has another 30 days to provide a list of witnesses.”

“You’re going to get the same information anyway, sending interrogatories,” he noted. “This gets the same stuff much faster at 20% of the cost.”

Business litigator Roger Buffington of Buffington Law Firm PC recently used Gray as a mediator in a complex inheritance dispute.

“One of the things I always feel I’m getting when I use Judge Gray as a mediator is an honest, experienced, retired judge’s perspective, which is a valuable thing in and of itself,” Buffington said. “I’ve never got the feeling that he’s trying to play me. Some mediators really try to hammer you about how weak your case is, so that you’ll settle. I don’t think Judge Gray does that. He’ll tell you what he thinks the weaknesses of your case are, but he’ll also admit it when you;ve got a strong point in your case.”

Fitzgerald, who appeared before Gray while he was still on the bench, and who now uses his services in mediation, said Gray is good at isolating issues in “a very academic way.”

Retired judge is blunt in his work and about his Libertarian views

Beyond that and more importantly, he is able to scrape off all the emotional scar tissue involved in cases, both from the party level and whatever the attorney may be bringing to the table,” Fitzgerald said. “Sometimes attorneys are as big a problem as the case and or the opposing party. He is able to do that in a very non-offensive way and is able to talk to people and almost counsel people, on a level beyond the four corners of the case.”

Speaking with reverence for the law, Gray recalled his recent 10 minute speech to the Orange County Bar Association, when he accepted the Franklin West lifetime achievement award.

“I said: ‘I’m proud of our profession. We furnish the lubrication for people in their social lives, their commercial lives, and we are able to give them foresee-ability, that if in fact you do this, that will likely be the outcome. If you do that, this is likely outcome. And the best way you can prevail in litigation, by far, is not be involved in it in the first place.'”

“Yes, we are involved in disputes, sometimes they are controversial and sometimes that rubs off on us,” he continued. “Yes, some lawyers are better than others, even some judges are better than others. I’ll accept all of that but by and large, we do a really good job of that and society should be more appreciative.”

Gray said his new mission in life is to dispel unfounded myths about what Libertarians stand for.

“If you put out the word ‘Libertarian,’ what’s the connotation most people have?” Gray asked. “Kooks, free drugs, no government at all, that sort of stuff, and it’s just not true. We are classic liberals. We are classic conservatives. We actually believe in responsibility, at all levels of society individuals, group, corporate and government of all things.”

Gray stressed that Libertarians are creative individuals who base the effectiveness of laws and programs on result rather than good intentions.

Shortly after being appointed to the bench in 1984, Gray, finding the criminalization of people with addictions and mental illnesses to be ineffective, established one of the nation’s first drug courts focused on certain alcohol-related offenses. Proud of the success of this novel approach, Gray said he received an outpouring of letters from family members attesting to the success of the program.

“I treasure these, I have a bout 2-inch stack of letters, ‘Dear Judge Gray’ for example, ‘I was going to divorce my husband, he hit me and would be irresponsible with my children but now he’s off alcohol because of your program. Thank you, you’ve given my husband back,'” Gray said.

“I did something highly unusual for a sitting court judge on April 8th 1992. I held a press conference. Judges do not do that I told anybody they would listens that our drug policy was not working, and we needed to put our heads together and do something else. That was my first foray into politics,” Gray said.

“The board of directors of the Orange County Bar Association passed a resolution, not agreeing with my position but agreeing I had every right to discuss it and that was not at all a commonly held thought,” Gray said.

Gray is the son of William P. Gray, who was a federal judge in Los Angeles. He received his law degree in 1971 from USC Gould School of Law and served in the U.S. Navy’s Judge Advocate General Corps. He spent three years as a federal prosecutor in Los Angeles and another five as a business litigator at Wyman, Bautzer, Rothman Kuchel & Silbert.

Here are some attorneys who have used Gray’s services: William Bruce Voss, Irvine; Michael Fitzgerald, Fitzgerald Yap Kreditor LLP; Roger Buffington, Buffington Law Firm PC; Robert Christopher Jackson, Shorebreak Law Group Clifford E. Frieden, Rutan & Tucker.

Daily Journal – Blunt Force

Author by:  Blaise Scemama
Daily Journal Staff Writer

Published Date: January 31, 2020