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Good afternoon. We're here for oral argument on may world at all versus Toyota at all, our number

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CV-25-009, a couple things before we get started. Obviously we are in a different place than

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we normally are. So you guys are a lot closer to us than we're used to. And on the same level,

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usually, look at that. Very, very different. So the microphone is on for you the entire time,

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each site as 20 minutes as per normal, you may keep whatever time you wish for a

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rebuttal, but you have to keep your time yourself. And with that please

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begin.

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Good afternoon. May it please the Court? Wendy Lumish and Amanda Heitz from

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Bowman and Brock here on behalf of the Toyota Defendants. And I would like to

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reserve three minutes for a bottle I know I need to keep my own time here. This

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case presents a straightforward application of existing Arizona law on

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strict liability. Our position is that the Court of Appeals abandoned several settled

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principles. Toyota asks that this Court vacate the Court of Appeals decision and affirm

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the summary judgment based on essentially four points. In a strict liability case, plaintiff

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is required to first prove that there was a defect. After that, they look at whether or

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not the defect made the product of unreasonably dangerous and, of course, causation. Second,

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And in this case, plaintiff did not prove that the vehicle was defective as designed

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because plaintiff couldn't point to a characteristic of the vehicle that made it defective at all.

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The third point is assuming that there was evidence of a defect presented, properly applied

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the consumer expectation test would preclude liability.

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And finally, assuming a defect, there is no liability under the risk-benefit test.

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So, let me walk through each of those, if I may, as you walk through it, when you get

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to the consumer expectation test, that's a test that confuses me at least a bit in terms

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of it seems to duplicate a bit, the separate definition of is it a defect in the first place.

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So are those indeed, as you go through, the same thing that you're looking at twice, whether

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there's a defect, and then it's that I'm reasonably dangerous, and if so, why don't we just combine it into one?

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Well, and I would agree with you, it is a little bit confusing, but I do believe that there is guidance going back many, many years from the Supreme Court in this area. There is law, the dark case, the right-and-hour case, the burns case, the Rogers case. Each and every one of those cases very clearly say, first you prove a defect, and then you look at whether or not it's unreasonably dangerous. Now, why is that important? Because as your honors pointed out, it sounds like

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like these concepts are mixed together, the reason it's important is because if not,

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a manufacturer would become an insurer for any instance where there has been an injury.

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There's an injury.

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It would automatically mean liability if there wasn't some proof that there was a defect.

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And the Galonco case does anything different.

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That's probably one of the more recent cases that talked about this issue.

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And it says it as defective, unreasonably dangerous, which is a language of 402A, so that's probably

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where that comes from.

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I think we're, correct me if I'm wrong, Madam Chief Justice, but I think we're both having

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problem is even in terms of separating out the elements, the consumer's expectation seems

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to be an element in both proving that a defect exists and then in the consumer expectation.

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Actually, actually, I would say it's an element of defect, it's an element of the consumer

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expectation, and it's even an element of the risk benefit test.

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Already then then.

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It takes.

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Please separate it.

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It affects, it affects all of these.

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Let's look at the issue of proof of a defect.

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It's the definition there, it's a condition not contemplated by the ordinary user, which will

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make it unreasonably dangerous or unsafe for normal use, which is where the confusion comes

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in because you start talking about unreasonably dangerous.

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And in many cases, it's not a big deal that we don't talk about it.

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For example, in Galonka, it was a park to reverse case.

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It's not that difficult in a case like that to say, if the vehicle suddenly reversed

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when it wasn't supposed to, there's a defect.

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So now let's go to the next step.

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Very different here.

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Why do I say that?

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Because in this case, there is no evidence of a characteristic that made this vehicle unsafe.

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It wasn't a problem of, it veered off the road, it wasn't a problem as in some other

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cases of a propensity to roll or some other problem like that.

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The fact that the car is required for the driver to steer the vehicle doesn't make it

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defective.

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Everybody knows that.

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The law requires it.

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The statute is required.

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We all learn that when we get our driver's license and we go through driver's ed and high

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school.

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Everybody knows it.

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So, that doesn't make it defective.

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The vehicle complied with standards and I'm not suggesting that compliance with standards

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is that be all an end all, but it's an important point here because through all of these years,

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the lane departure warning is not a requirement of the government.

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They have still not passed any requirement that that happened.

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So if this vehicle is defective, then every vehicle that doesn't have a lane departure

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warning or let's go to any other new technology because in these emerging technologies is coming

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up a lot, every vehicle on the road that doesn't have these technologies would be defective.

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That clearly can't be the case and in fact the concurring opinion in the quarter of appeals

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I think is trying to make that point when it says something along the lines of you might get to a point

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We're having a driver operated vehicle makes it defective in and of itself

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So the defect the defect issue is really critical now what my opponent will say is it's defective because of the absence of a safety device

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That there was something else you could have done that's not the law in Arizona and it's not the law in most jurisdictions

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A vehicle that otherwise is safe is not defective because there's not some additional safety device.

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Where do we, you know, it sounds easy on the extreme edges of things, possibly.

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Like, yes, always. This is the gray area that we're dealing with.

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So, I think the restatement says that defective condition is one in which makes the product unsafe for normal handling and consumption.

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And you just said, and you said in your brief, well, you know, we made a car, we designed

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a car.

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It does exactly what a car does.

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It drives on the road and lets people drive and park and stop and all of that kind

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of thing.

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But there are also consumer expectations regarding safety.

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So we, I mean, certainly, we're getting that it's also now required by law.

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It's an expectation by a consumer that there'll be a seat belt in the car.

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That doesn't have anything to do with how the car drives.

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But there's an expectation I think that there will be it will be there to keep you safe if there's a collision

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Which unfortunately happens all too often. There's probably an expectation that

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For many most people who don't know the law out there, but there's an expectation whether they're going to be airbags

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Most likely if it's a newer model of a car in the last 15 20 years whatever

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So how how does that expectation regarding something that has nothing to do with how the vehicle actually moves?

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to figure into your definition of defect?

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Well, I think I would answer that in part by saying,

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if you look, for example, at the bread-hower case,

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which happens to be the case on seatbelt,

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and there there was an extensive discussion about

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what does it mean, and now I'm jumping to consumer expectation test,

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but I think it all fits together.

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What is that expectation that we're looking at?

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The ordinary consumer expectation is that you must drive your car.

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You must pay attention. The manual tells you

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The rules of the road, everything tells you you must operate your vehicle safely on the road.

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You can't just say somebody else is going to take care of it because there's a lane departure warning in there.

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And I think that's a little bit different than some of the other references you had to crashworth in this case,

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where you're talking about in the event of the collision being able to protect the occupant in that event.

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This is a straightforward case of what are you expecting when you get in your car and you drive your vehicle?

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The one thing I would say that the District or the Court of Appeal got right was the court said ordinary consumers right now have no expectation about lane departure warnings.

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They're not expecting it in their vehicle. They're not ubiquitous enough that it's out there for people to expect what we're going to go back to the test.

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And I know that you, of course, of course want to talk about the the forerunner and this case and resolving this case.

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But at the end of the day, we're going to write an opinion about this that's going to give guidance for future cases with all different kinds of scenarios in which that kind of line drawing is very important.

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So, taking what I said about, it's not just making the vehicle go, or there's a certain, I think you agree with me, wouldn't you?

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There's a certain level of legitimate consumer expectation about safety. Would you agree with that? I would agree with that.

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So generally, so even if your position is, but nobody knows about lane departure warning

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unless they've read this, this thick or not, many people have an expectation.

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And particularly if their car is not the A level trim or whatever that they've paid for,

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how do we give guidance to these future cases about what to look for for legitimate consumer

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or expectations. It's just things that are required by law to have or what is, how do we draw

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that line in that very gray area?

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I think that what you have to do is you have to look at the particular product and you have

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to say as designed was there something defective about it. And if you look at different cases,

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you can make that separation. I think you can do it on, for example, the park to reverse. You can

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and say, as designed, I don't expect it to go from park to reverse.

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You can do it on some other cases where the Gamolka, which is a case that the plaintiffs

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rely upon, it had to do with the fumes that were getting into a steam cleaner, and they

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were saying, you know, to use it properly, those fumes are going in there and they're lighting

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a fire.

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That's something that as it sits there, it is defective.

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It's not safe for normal use.

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This is not that type of case, and the line drawing there when you look at the cases are

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those cases where in its normal use, it is operating safely, and there's no problem

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with it.

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I'll compare that, for example, going all the way back to the Estabric case, which is

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a helmet case.

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And in that case, they found there's a jury issue on defect because a helmet is designed

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to protect your head in a collision during a football game, and they found that it violated

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some anti-standards that related to how that vehicle should perform or how that product

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should perform.

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And therefore, in that instance, you've got a characteristic of the product that is

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making it unsafe.

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You don't have that characteristic here.

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There's nothing about the vehicle itself that makes it unreasonably dangerous.

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And that's what, while obviously this court is looking to its own guidance, when you go

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outside of the state, there's been a few cases on it.

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the Borkoski case is one that I would urge the court to look at because the court was

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faced with the exact same questions and asked the same questions about how do we draw

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the line where do we figure it out and the answer is basically you have to look at whether

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as it's designed is there something wrong with it and there's nothing wrong with a vehicle

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that's safe as designed well okay then go back then kind of returning to what just the

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Bullock was asking, and I initially asked about, then, so you've got, so you pass that

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consumer expectation and maybe there's an expectation and it is a defect, not in this

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case, but in whatever case, there is a defect. So you go on to examine, is it unreasonably

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dangerous? And you employ the consumer expectation test to the extent it can be used. How is

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If that tests different than finding if there's a defect.

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I think in certain instances they are similar.

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I do understand that.

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There's some confusion there.

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But again, the first thing you look at is was it safe as designed?

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And if I draw the distinction, let's look at the vineyard case, which was the subject

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of much discussion in the Appellate Court and frankly, I think tells us a lot.

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But in Vineyard, they admitted that the lack of rollover protection was a defect.

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And then they went to the next step and said, but did it make it unreasonably dangerous?

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And the court said, no, because it's known that if the vehicle doesn't have this rollover

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protection, they use open and obvious, but they're really talking consumer expectation.

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The ordinary consumer has an expectation there.

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And so, you can separate these concepts and back in the early cases, that's exactly what the courts were doing with it.

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And I think that it's particularly appropriate here because the main argument that the plaintiff makes is that if you have a safety device that you could put on a vehicle, you should do it.

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And we know that's not the law. There's risks of anything. There's a risk of a ladder. Any product has a risk associated with it.

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So that can't be the test. We have to look for something more.

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And in this area and I do understand the law has to apply across the board, but I think

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the court has already drawn those lines and explained that you have to show a defect

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in the first instance, and the cases where there was something wrong with it, from the

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very beginning, again, the part to reverse, I think is one of the best examples of it.

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There's a defect.

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Other cases, there's the escalator case, again, I think that's an extra-brook.

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And escalator case, they said there was nothing wrong with it when it was designed.

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There's just simply nothing wrong.

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Plain if cannot point you to something that was wrong with this vehicle, all they say is

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you could make it better.

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And in this, in these times where these emerging technologies are out there, that's always

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going to be the case.

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There's always going to be something new better coming down the line.

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And if the law is every time there is something new, you need to put it on your vehicle.

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Then manufacturers are insurers, it creates problems for anyone in the industry to try to make changes and design and go forward.

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That's why the concept of phasing is so important because manufacturers need to be able to do that as they're moving forward.

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Council, does it make a difference that the LDW could have been installed in this

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Ford Runner? It was in a previous or maybe a subsequent addition of this vehicle. Does

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that make a difference in our calculus?

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It does it make a difference because that would simply be saying that because there's

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some alternative design, you have an obligation to include that design. It sounds better from

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the plaintiffs' perspective, of course, to say, well, you did it in some other model,

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or you should have done it in here, here by the way,

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it wasn't on a trim package.

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It was the entire, the forerunner lawn did not have it

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on any of their vehicles in any trim package.

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But it sounds good, but it doesn't change the legal analysis

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because the legal analysis is was there anything

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about this that was defective?

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And if all you're saying is you should have made it safer.

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The law, the Rogers case, there's many, many cases

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is in this jurisdiction that have said a few of them,

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Rogers, the Rashkee case, the Wilson case,

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the Morrow case going all the way back,

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that said you don't have a duty

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to make the safest possible product,

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but we look at is the product as designed.

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Is this a

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main day defect?

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And then under the risk-benefit analysis,

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at least a couple of factors seem to relate

216
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to the issue of safer alternatives

217
00:28:53,100 --> 00:28:55,700
and feasibility and cost-effectiveness?

218
00:28:55,700 --> 00:28:59,940
Well, yes, what I would say is first threshold question is their defect.

219
00:29:00,380 --> 00:29:02,840
If the court finds there's no defect, there's nothing else to do.

220
00:29:03,080 --> 00:29:05,460
At that point, the case has been decided.

221
00:29:05,620 --> 00:29:09,820
But if the court finds there's a defect, then you go to the next set of questions.

222
00:29:10,200 --> 00:29:16,500
We all understand there's two tests of unreasonably dangerous, consumer expectation, risk benefit.

223
00:29:16,780 --> 00:29:20,720
I think that the breath hour case controls on consumer expectation.

224
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I think it's very similar in terms of everybody understood what a seat belt is designed to do.

225
00:29:26,140 --> 00:29:30,220
The language of the opinion talks specifically about performance.

226
00:29:30,540 --> 00:29:32,860
It's about how did you expect it to perform?

227
00:29:33,500 --> 00:29:37,320
The ordinary consumer with a seat belt expects the belt to protect them.

228
00:29:37,640 --> 00:29:42,200
The ordinary consumer with regard to a vehicle expects they need to operate their vehicle.

229
00:29:42,540 --> 00:29:49,440
When you go to the risk benefit analysis, I don't want to miss the point that the risk benefit analysis that the court undertook was error.

230
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because the court said we're going to look at the LDW design and see the risks and benefits.

231
00:29:58,040 --> 00:29:59,200
The law is crystal clear.

232
00:29:59,380 --> 00:29:59,980
In fact, the opinion...

233
00:30:10,680 --> 00:30:29,980
I'm sorry, was it reasonable to continue to market the product in the condition it was sold with knowledge of the danger? And we would say the answer to that is no for a number of reasons that include the fact that it is reasonable to rely upon the public hearing.

234
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the driver, the system is not one that's going to eliminate, we know we can't eliminate

235
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the danger here because drivers are always going to do what drivers are going to do.

236
00:30:38,020 --> 00:30:39,540
Counsel, can I ask you a question there?

237
00:30:39,720 --> 00:30:39,800
Sure.

238
00:30:40,340 --> 00:30:43,960
If we're looking at then whether it was in reasonably dangerous or whether the manufacturer

239
00:30:43,960 --> 00:30:48,820
should have continued to produce and distribute the product, is it at that point though that

240
00:30:48,820 --> 00:30:54,000
we should take into account the number of accidents that occur, the nature of those accidents,

241
00:30:54,000 --> 00:31:01,040
in the availability for the technology as the manufacturer has otherwise deployed it on similar products.

242
00:31:01,540 --> 00:31:06,000
I think that when you look at on the risk benefit analysis, you do engage in some of that.

243
00:31:06,080 --> 00:31:09,220
But the important point there is the measure is not whether there's a risk.

244
00:31:09,520 --> 00:31:12,540
There's a risk in everything, every product out there.

245
00:31:12,880 --> 00:31:16,760
So it's not a question of let's see if there's a risk and if there's a lot of accidents,

246
00:31:16,760 --> 00:31:20,280
which I'm sure you're going to hear about all of the accidents, that that means automatically

247
00:31:20,280 --> 00:31:21,920
there's something that you need to do about it.

248
00:31:21,920 --> 00:31:25,440
It's part of the equation that you look at, but one of the most important parts that

249
00:31:25,440 --> 00:31:30,860
you look at is the consumer's expectations and what the obviousness of the danger and

250
00:31:30,860 --> 00:31:31,940
you go through all those factors.

251
00:31:32,260 --> 00:31:33,360
Can you eliminate the risk?

252
00:31:33,620 --> 00:31:34,380
No, you can't.

253
00:31:35,500 --> 00:31:37,800
With that I, if I may, I'd like to reserve the remaining time.

254
00:31:39,120 --> 00:31:39,720
Thank you.

255
00:31:40,380 --> 00:31:41,380
Hey, Mr. Guelphi.

256
00:31:45,740 --> 00:31:46,900
Thank you very much.

257
00:31:47,080 --> 00:31:51,100
We're in Guelphi on behalf of the plaintiff, Appellant, with me is Lynn Chumway.

258
00:31:51,300 --> 00:31:52,320
We're both 1987.

259
00:31:52,320 --> 00:31:56,280
37-year-of-a-law grads who are happy to be back here in this room where we spend a lot of time.

260
00:31:56,380 --> 00:31:56,800
For girls.

261
00:31:57,600 --> 00:31:58,040
Yeah.

262
00:31:58,720 --> 00:31:58,740
Okay.

263
00:31:59,800 --> 00:32:01,000
As you undergrads, that count.

264
00:32:01,960 --> 00:32:02,500
So why?

265
00:32:04,760 --> 00:32:07,260
I say this with all due respect to the court.

266
00:32:07,900 --> 00:32:09,700
That is not Arizona law.

267
00:32:10,040 --> 00:32:12,480
What you just heard is not Arizona law.

268
00:32:12,660 --> 00:32:14,620
It is not a two-part test.

269
00:32:14,740 --> 00:32:19,500
It is very clearly defined in the dark case by this court as the following,

270
00:32:19,500 --> 00:32:23,980
applying the hindsight test, which I think answers your question just as Timmer about

271
00:32:23,980 --> 00:32:28,660
what are some of the differences, but applying the hindsight test, the question singular,

272
00:32:29,380 --> 00:32:34,200
is whether given the risk of benefit factors outlined in burns and any other factors which

273
00:32:34,200 --> 00:32:40,300
may be applicable, it was unreasonable for the manufacturer with such knowledge to put the

274
00:32:40,300 --> 00:32:45,220
product on the market. If the single question is answered in the affirmative, the product

275
00:32:45,220 --> 00:32:48,740
is not only defective, but it is also unreasonably dangerous.

276
00:32:48,960 --> 00:32:50,340
It is a one-part test.

277
00:32:50,680 --> 00:32:56,120
It is a uniform, fused, unified, holistic test.

278
00:32:56,580 --> 00:32:57,160
The burp.

279
00:32:58,480 --> 00:32:59,200
You're right.

280
00:32:59,460 --> 00:33:01,200
What you quoted, obviously, it says that.

281
00:33:01,340 --> 00:33:04,780
But it also said earlier on, it's a defective separate.

282
00:33:05,000 --> 00:33:07,640
And Reddauer picked up on that and said defective second

283
00:33:07,640 --> 00:33:08,240
separate.

284
00:33:09,080 --> 00:33:11,540
Candidly, I find dark, inconsistent.

285
00:33:12,220 --> 00:33:13,380
Nobody here was on the court.

286
00:33:13,520 --> 00:33:14,280
Then I can say that.

287
00:33:14,280 --> 00:33:19,540
But it was inconsistent in that, and it's caused some confusion that has filtered down.

288
00:33:19,720 --> 00:33:25,860
So rather than addressing at least some of that confusion, how do you lead us out of

289
00:33:25,860 --> 00:33:26,540
that confusion?

290
00:33:26,740 --> 00:33:27,700
What should it be?

291
00:33:28,240 --> 00:33:32,980
And that's what I was getting at, too, of how are we going to have two separate things, separate

292
00:33:32,980 --> 00:33:33,320
tests?

293
00:33:33,520 --> 00:33:34,920
Are we going to have a single test?

294
00:33:35,680 --> 00:33:36,940
How should it proceed?

295
00:33:37,400 --> 00:33:38,000
Two things.

296
00:33:38,420 --> 00:33:41,940
If you look at the cases, there's about 15 cases that everybody has cited here.

297
00:33:42,320 --> 00:33:43,100
They are either.

298
00:33:43,100 --> 00:33:48,560
There's one that's pre-stapely where we adopted 402A in the risk-benefit factors.

299
00:33:49,080 --> 00:33:53,640
There's three or four others that are applying negligence principles or breach of implied

300
00:33:53,640 --> 00:33:54,480
warranty principles.

301
00:33:54,740 --> 00:33:56,320
That's the language they use.

302
00:33:56,620 --> 00:34:01,200
The product wasn't defective, it was made for this purpose and it served that purpose.

303
00:34:01,680 --> 00:34:04,860
That's not Frick Product Liability Design Defect Language.

304
00:34:05,240 --> 00:34:06,000
She cites Vineyard.

305
00:34:06,460 --> 00:34:12,500
Vineyard is a negligence case and a race-ips-a-case, not a whiff of Frick Product Liability

306
00:34:12,500 --> 00:34:17,360
in it. So here's the way I resolve it. If you, and I have, I've read every one of those

307
00:34:17,360 --> 00:34:21,340
cases, dark reading hour, you go through the list, him and his, look at what the court

308
00:34:21,340 --> 00:34:28,740
actually did. They used compound language, which follow 2A does not do. They use compound

309
00:34:28,740 --> 00:34:33,340
language defective and unreasonably dangerous, which is not the language for 2A. Language

310
00:34:33,340 --> 00:34:39,280
are for 2A is defective condition unreasonably dangerous to use. That's a one part test.

311
00:34:39,280 --> 00:34:41,300
But look at what courts did.

312
00:34:41,860 --> 00:34:44,320
They applied the risk benefit factors.

313
00:34:44,920 --> 00:34:50,000
And if the risk benefit factors, we've said that the risks outweigh the benefits, the

314
00:34:50,000 --> 00:34:51,000
product was defective.

315
00:34:51,260 --> 00:34:52,620
Here's language that they use.

316
00:34:52,760 --> 00:34:56,740
Defectiveness has proven through showing unreasonable, dangerous, not independently.

317
00:34:57,240 --> 00:35:00,680
The defect is the unreasonable risk.

318
00:35:01,160 --> 00:35:01,980
So let's do this.

319
00:35:02,200 --> 00:35:06,020
And here's, I think, some analysis that will help us through this ticket.

320
00:35:06,400 --> 00:35:06,800
Turner.

321
00:35:06,800 --> 00:35:09,580
That's the ice machine, can you remember this poor kid?

322
00:35:09,720 --> 00:35:10,740
I think it's his first day on a job.

323
00:35:11,240 --> 00:35:15,220
Ice machine, it's going to cut the ice in a little pieces, and he reaches his hand in

324
00:35:15,220 --> 00:35:19,140
there because he has to make sure that the pieces that aren't cut properly get rerun

325
00:35:19,140 --> 00:35:23,680
through the machine, he doesn't know if there's a gate closes, wax off three fingers.

326
00:35:24,720 --> 00:35:26,640
Let's apply Toyota's analysis.

327
00:35:27,300 --> 00:35:30,540
That machine did exactly what it was designed to do.

328
00:35:30,860 --> 00:35:36,400
It did not take into as an aspect of its design the idea that somebody is going to reach in

329
00:35:36,400 --> 00:35:43,580
there. So it didn't include a guard. But how did Turner rule? And Turner was cited favorably

330
00:35:43,580 --> 00:35:49,500
by dark. The Turner court went through the risk benefits analysis, based on the risks

331
00:35:49,980 --> 00:35:56,460
it then backed in and set the product is therefore defective. Turner uses language to effect

332
00:35:56,460 --> 00:36:02,020
and unreasonable danger. So does written hour so do some of the others. Even Russell uses some

333
00:36:02,020 --> 00:36:08,660
of that language, right? But the end is always followed by an analysis that's a one-part

334
00:36:08,660 --> 00:36:14,620
analysis. Let's apply these risk-benefit factors and see if they weigh in favor of defect

335
00:36:14,620 --> 00:36:16,420
to product is defective. It is uniform.

336
00:36:16,780 --> 00:36:21,420
Well, let me ask you this. I'm thinking of a lot of parts of this. I can understand conceptually

337
00:36:21,420 --> 00:36:27,400
that you can have a defect that's not dangerous or not unresomely dangerous. It's just, you

338
00:36:27,400 --> 00:36:34,180
You know, something doesn't work as it had a defective design, but it's not dangerous.

339
00:36:34,780 --> 00:36:41,580
Can you have something that is unreasonably dangerous under our law on this that is not

340
00:36:41,580 --> 00:36:42,020
a defect?

341
00:36:42,540 --> 00:36:42,720
No.

342
00:36:43,100 --> 00:36:43,620
And here's why.

343
00:36:43,780 --> 00:36:44,440
And can you get an answer?

344
00:36:44,440 --> 00:36:45,840
It burns this kind of factors.

345
00:36:46,520 --> 00:36:51,240
Factors into things like what one of the things sort of has are these products, knives and

346
00:36:51,240 --> 00:36:51,660
the like.

347
00:36:52,220 --> 00:36:57,160
So you've got two or three of the burns factors that say, what is this?

348
00:36:57,160 --> 00:36:58,820
a piece of equipment intended to do.

349
00:36:58,940 --> 00:37:00,840
Can we do it with any other piece of equipment?

350
00:37:01,000 --> 00:37:02,720
You can't cut lettuce for that, a knife kind of thing.

351
00:37:03,220 --> 00:37:05,980
So therefore, we accept those risks,

352
00:37:07,260 --> 00:37:10,400
and those factors are going to factor in the concern

353
00:37:10,400 --> 00:37:11,920
that you have, knives are dangerous,

354
00:37:12,140 --> 00:37:13,060
but they're not defective,

355
00:37:13,300 --> 00:37:14,940
and there are a lot of things like that.

356
00:37:15,220 --> 00:37:16,960
And if you look at the risk benefits factors,

357
00:37:17,160 --> 00:37:19,380
which are designed to protect defendants,

358
00:37:19,420 --> 00:37:20,980
you know, manufacturers, by the way,

359
00:37:21,080 --> 00:37:23,720
from lawsuits where they're really nothing they could do.

360
00:37:24,400 --> 00:37:26,180
Right, I put up this product,

361
00:37:26,180 --> 00:37:30,680
there's nothing I can do to prevent some person from not very bright doing something stupid with it,

362
00:37:30,880 --> 00:37:37,640
that's one thing, but where there is something that they can do, they must. And now let's talk

363
00:37:37,640 --> 00:37:43,480
specifically about this case. It is the most compelling case I've ever had as a plaintiff's attorney.

364
00:37:44,020 --> 00:37:48,180
And here's why. You talk about statistics just as Montgomery.

365
00:37:49,640 --> 00:37:54,180
Lane Department, unintended Lane Departures are horrific. Represent about 20, we cited all this

366
00:37:54,180 --> 00:37:56,940
and their factual support, 20% of all accident,

367
00:37:57,540 --> 00:37:58,660
but the majority of deaths,

368
00:37:58,840 --> 00:38:01,380
because all those physical forces come together, right?

369
00:38:01,560 --> 00:38:04,100
When cars collide, that sort of thing.

370
00:38:05,620 --> 00:38:09,020
Studies from his far back is 05 determined

371
00:38:09,020 --> 00:38:12,320
that 85% of those could be prevented

372
00:38:12,320 --> 00:38:14,220
by lane departure warning systems.

373
00:38:14,840 --> 00:38:17,800
The Insurance Institute of America has done those studies.

374
00:38:18,280 --> 00:38:19,760
Academics have done those studies,

375
00:38:20,200 --> 00:38:23,120
but more importantly, this defendant,

376
00:38:24,520 --> 00:38:31,040
knew before 2002 because it produced cars in 2002. So sometime in the design phase,

377
00:38:31,040 --> 00:38:36,060
did it want to land a departure warning on its vehicles? Why? Very candidly,

378
00:38:36,120 --> 00:38:41,020
in their 36th position, Toyota said because we knew of that risk and we had a system

379
00:38:41,020 --> 00:38:46,520
that would prevent or mitigate that risk. We began installing it in 2002.

380
00:38:46,520 --> 00:38:54,880
We continue to install it every year since, and we made it standard on every vehicle, except this one.

381
00:38:55,840 --> 00:39:00,240
By, I believe 2017, but it might have been 2018, the year before this vehicle was built.

382
00:39:00,600 --> 00:39:08,040
Council, you say in your briefs that in finding a duty of care toward third parties and you cite a

383
00:39:08,040 --> 00:39:13,560
California case, the Ortiz case, the court noted that foreseeability is the most important factor in

384
00:39:13,560 --> 00:39:15,860
determining whether such a duty exists.

385
00:39:16,800 --> 00:39:21,480
isn't the law in Arizona exactly the opposite that we don't look at

386
00:39:21,480 --> 00:39:25,600
foreseeability when determining duty of care? I don't believe that's right,

387
00:39:25,700 --> 00:39:30,840
Your Honor. If you look at State Farm, State Farm talks about the fact that the

388
00:39:31,380 --> 00:39:37,120
burden, if we fric liability places the burden on the manufacturer, to do the right

389
00:39:37,120 --> 00:39:41,740
thing because it has the knowledge, it has the information that tells it what's

390
00:39:41,740 --> 00:39:47,000
foreseeably likely to happen. Just as Toyota, 17 years before this vehicle was

391
00:39:47,000 --> 00:39:51,780
designed, knew of these risks. Forciability actually is a key element that

392
00:39:51,780 --> 00:39:57,760
runs through the strict liability, statute and Arizona, foreseeable misuse, and

393
00:39:57,760 --> 00:40:03,960
it runs through all of the case law. If a manufacturer can't foresee it, then I

394
00:40:03,960 --> 00:40:07,880
don't think the Burns factors are going to say they're not liable. If it's not a

395
00:40:07,880 --> 00:40:13,120
foreseeable, just as the manufacturer can't do anything about it, the burns factors are

396
00:40:13,120 --> 00:40:18,880
going to say they're not liable. Here, a foreseeable risk, one of the biggest risks in America.

397
00:40:19,700 --> 00:40:26,160
It kills six million accidents a year, 23% of them caused by land departures, a huge 328,000

398
00:40:26,160 --> 00:40:33,040
of them by drowsy driving, 6,000 deaths. They knew they had a system that would help drowsy drivers

399
00:40:33,040 --> 00:40:35,600
in this situation for 17 years.

400
00:40:35,740 --> 00:40:38,160
What is the limiting principle here?

401
00:40:38,680 --> 00:40:40,760
The limiting principle from, you know,

402
00:40:40,860 --> 00:40:42,300
as Opposing Council said,

403
00:40:42,440 --> 00:40:44,120
and as the concurrent said in the FOA appeals,

404
00:40:44,740 --> 00:40:46,700
there's something new all of the time.

405
00:40:47,080 --> 00:40:48,300
I could tell you, for example,

406
00:40:48,500 --> 00:40:50,040
we have known for years,

407
00:40:50,040 --> 00:40:53,760
and we put on probationers for DUI sometimes,

408
00:40:54,120 --> 00:40:58,180
that you have to blow into a breathalyzer type thing

409
00:40:58,180 --> 00:41:00,940
to show that you're not impaired before you can start your car.

410
00:41:00,940 --> 00:41:08,940
That would save a lot of people's lives if it was on every single car to make sure that didn't happen. That technology has been around for a long time.

411
00:41:10,360 --> 00:41:13,680
Why, you know, what is the limiting principle that it's going to prevent?

412
00:41:14,240 --> 00:41:20,380
I mean, it's from coming forward, saying, well, you could have done this, you could have done that. There's a lot more you could have put on it on a trim.

413
00:41:20,680 --> 00:41:23,160
Well, in your example, you're on it with all due respect. We have the Constitution.

414
00:41:24,080 --> 00:41:28,620
I mean, in other words, and maybe you say driving is a privilege and therefore you have to blow into this thing before you drive.

415
00:41:28,620 --> 00:41:33,700
But it's really not a privilege and think about put it in the context of the Burns factors people have to drive

416
00:41:33,700 --> 00:41:39,760
Especially in America, right? We don't have a lot of public transport people have to write so it's one of those overwhelming things that outweighs

417
00:41:40,780 --> 00:41:49,740
Other things in other words it's in here the first Burns factor the usefulness and desirability of the product in Toyota 4Runner is a very useful product

418
00:41:49,740 --> 00:41:55,060
Toyota didn't bother to address any of these issues, but I would say that one might lean in their favor

419
00:41:55,060 --> 00:41:56,380
It's the only one

420
00:41:56,380 --> 00:42:02,820
the only one. So let's take again back to Turner specific facts on which I

421
00:42:02,820 --> 00:42:05,800
think this court would say that was a- I'm sorry council I don't I don't

422
00:42:05,800 --> 00:42:09,680
think I understood your answer to the Chief Justice's question. So what is

423
00:42:09,680 --> 00:42:15,540
the limiting principle? Why would not why would we not then want all vehicles to

424
00:42:15,540 --> 00:42:20,360
have some way to ensure that people are not intoxicated when they're driving?

425
00:42:20,360 --> 00:42:25,660
I, I, she may have suggested a line of cases that make sense.

426
00:42:25,800 --> 00:42:30,120
I don't, for plaintiffs, I don't know, but the burns risk benefit factors take all

427
00:42:30,120 --> 00:42:31,180
of that into consideration.

428
00:42:31,420 --> 00:42:37,000
The fact that people need to drive is a huge, overwhelming factor in favor of saying

429
00:42:37,000 --> 00:42:40,460
we don't want to restrict driving too much or else people can't work.

430
00:42:40,640 --> 00:42:42,820
They can't take care of their families, that sort of thing.

431
00:42:43,500 --> 00:42:48,320
And it's foreseeable that it's foreseeable that a number of people, whether, whether they've

432
00:42:48,320 --> 00:42:55,680
been arrested and convicted of DUI or not, it's foreseeable that today, every day, people

433
00:42:55,680 --> 00:43:00,100
will get in the behind the wheel under the influence of alcohol.

434
00:43:00,360 --> 00:43:02,980
So then why would we not just make that a requirement?

435
00:43:03,840 --> 00:43:07,600
It's because there's a balancing and the burns factors, if you'll get them balanced out

436
00:43:07,600 --> 00:43:12,700
and so with vehicles, incredibly dangerous because six million accidents per year, but they

437
00:43:12,700 --> 00:43:14,680
are overwhelmingly valuable to society.

438
00:43:15,040 --> 00:43:15,820
We recognize that.

439
00:43:15,820 --> 00:43:17,560
building the bridge, they factor in.

440
00:43:17,800 --> 00:43:19,220
Let me interrupt you there for a moment.

441
00:43:19,400 --> 00:43:22,800
We've been talking a bit about the risk benefit test.

442
00:43:23,480 --> 00:43:25,900
What about the consumer expectation test here?

443
00:43:25,960 --> 00:43:29,620
It was a point that opposing council made very strongly

444
00:43:29,620 --> 00:43:33,520
that here, the vehicle performed as it was expected

445
00:43:33,520 --> 00:43:35,720
to perform, and it's in the briefing

446
00:43:35,720 --> 00:43:38,660
would necessarily laid out a argument,

447
00:43:39,000 --> 00:43:41,500
but for the fact of human error.

448
00:43:42,060 --> 00:43:44,720
Otherwise, the vehicle performed as it was supposed,

449
00:43:44,720 --> 00:43:49,000
as a consumer would expect. If you're alert, if you're driving, you can stay in your lane.

450
00:43:49,520 --> 00:43:56,440
If you're not alert, the vehicle can go off the road. So why wouldn't this consumer expectation

451
00:43:56,440 --> 00:44:03,060
test apply? Because by statute and by this court's prior rulings foreseeable misuse is something

452
00:44:03,060 --> 00:44:08,540
that manufacturers must protect against if they can reasonably do so under the factors. The statute

453
00:44:08,540 --> 00:44:13,300
defines it and says foreseeable misuse is something that manufacturers need to take into account.

454
00:44:13,300 --> 00:44:18,720
Now we know people drive for out of the ice, again, all they respect, everybody in this

455
00:44:18,720 --> 00:44:24,680
room has done this, to produce a video, a marketing video showing somebody going like

456
00:44:24,680 --> 00:44:28,880
this, showing the warning, sounding and showing them steering back into the lane, exactly

457
00:44:28,880 --> 00:44:29,520
our facts.

458
00:44:29,840 --> 00:44:34,040
So let me ask this question and I don't mean to be disingenuous in saying this either, but

459
00:44:34,040 --> 00:44:36,720
we know people will be in attendance too when they look at their phones, right?

460
00:44:36,880 --> 00:44:41,200
So why not line the inside of vehicles with technology that would interfere with the signals

461
00:44:41,200 --> 00:44:42,040
that the phone won't work?

462
00:44:42,040 --> 00:44:48,700
We have it there is there are is technology that looks back at the driver a camera and if they're not alert

463
00:44:48,700 --> 00:44:53,340
It won't some Toyota has not in all their vehicles, but Toyota has that so does that have to be on every vehicle now

464
00:44:53,340 --> 00:44:59,920
I'm sorry, so does that have to be on every vehicle? It depends on the fact so so again look at the factors the reason why this case

465
00:45:00,000 --> 00:45:29,980
This is so compelling, is because there was a reasonable alternative design that had been around 17 years, and Toyota marketed the fact that it put these safety systems on its vehicles. It wanted to be known as the safety company, which I want to get back to that on the consumer expectation test. So there's a reasonable alternative design that's been there for 17 years, and Toyota just made a choice. They said it. We chose not to do it. So they want to immunize that conduct.

466
00:45:29,980 --> 00:45:33,540
Do we really want to live in a world where manufacturers can say, I want to put an

467
00:45:33,540 --> 00:45:39,340
infotainment system in a vehicle at the expense of a safety system that we know.

468
00:45:39,940 --> 00:45:45,640
We'll say thousands of lives, thousands of injuries, however you want to quantify that massive risk.

469
00:45:46,460 --> 00:45:51,760
No, that's not Arizona's law. It's not Arizona's public policy. You have to take

470
00:45:51,760 --> 00:45:53,480
foreseeable misuse into consideration.

471
00:45:53,480 --> 00:46:01,720
It seems like I'm thinking through what you're saying, you're advocating for the single tests about the risk benefit and to go through that.

472
00:46:02,540 --> 00:46:10,340
But I'm not deeply separately, but I think you would agree with me, wouldn't you, that this was a 1969 rambler.

473
00:46:11,300 --> 00:46:15,360
Probably not a defective design because it didn't exist back at the time, correct?

474
00:46:15,660 --> 00:46:15,960
Absolutely.

475
00:46:16,220 --> 00:46:19,040
But if you went through the risk benefit, wouldn't you come through well as free?

476
00:46:19,040 --> 00:46:20,860
is still unreasonably dangerous.

477
00:46:20,980 --> 00:46:21,120
Yes.

478
00:46:21,700 --> 00:46:22,300
It is.

479
00:46:22,720 --> 00:46:26,180
But there's no alternative design.

480
00:46:26,420 --> 00:46:27,820
There's no other way to modify it.

481
00:46:27,880 --> 00:46:29,660
There's nothing you can do about it here.

482
00:46:30,060 --> 00:46:32,240
Toad admits the cost was inconsequential.

483
00:46:32,440 --> 00:46:33,680
In other words, you have a vehicle.

484
00:46:34,080 --> 00:46:37,680
That it costs you nothing to install a safety system

485
00:46:37,680 --> 00:46:40,260
that will prevent massive injuries and death

486
00:46:40,920 --> 00:46:42,160
and you choose not to do that.

487
00:46:42,820 --> 00:46:46,620
Arizona does not let that choice be the choice.

488
00:46:47,500 --> 00:46:51,620
In every case, again, I would ask you, look at him and look at Dart.

489
00:46:52,040 --> 00:46:57,580
They may use a bifurcated language, never has a court said and really applied it.

490
00:46:58,120 --> 00:47:04,960
Always, they apply the risk-benefit factors and they say the unreasonable danger defines

491
00:47:04,960 --> 00:47:07,880
whether there's a defect in the vehicle.

492
00:47:08,440 --> 00:47:10,520
Back to consumer affections in their brief.

493
00:47:10,800 --> 00:47:15,560
Before we're getting there, collapsing the defect prong.

494
00:47:15,560 --> 00:47:23,780
It may, I think, and probably all of those cases, there was a defect, and it was fairly acknowledged.

495
00:47:24,340 --> 00:47:30,660
Here, I don't see a defect unless you go to the second part of the analysis.

496
00:47:31,260 --> 00:47:35,080
There was nothing wrong with this card. It didn't have exploding tires.

497
00:47:36,320 --> 00:47:39,500
What was wrong with it was the driver.

498
00:47:39,500 --> 00:47:49,280
The driver violated the law and therefore operated the vehicle in an unsafe fashion.

499
00:47:49,740 --> 00:47:59,960
If I collapse those two things and say anything that causes an accident in an unreasonable,

500
00:48:00,680 --> 00:48:06,920
anything that is unreasonably dangerous is necessarily defective,

501
00:48:06,920 --> 00:48:13,780
It seems to me that basically you were asserting a rule that this state has not adopted.

502
00:48:14,020 --> 00:48:17,320
We typically do not follow California tour it well.

503
00:48:17,520 --> 00:48:20,660
By the way, California is a duty case, but let me be clear about something.

504
00:48:21,120 --> 00:48:22,460
You're worried about the extremes.

505
00:48:22,800 --> 00:48:24,120
The extremes don't happen.

506
00:48:25,120 --> 00:48:27,700
They don't, because burns protects against it.

507
00:48:27,840 --> 00:48:33,920
It's a manufacturer design test to make sure that frivolous lawsuits don't get brought because

508
00:48:33,920 --> 00:48:39,480
you have to plug all that in to these risk factors. And when you do that, it's not unreasonable.

509
00:48:39,540 --> 00:48:44,460
Again, back to Turner, the kid that stuck his hand in there clearly and unintended use,

510
00:48:44,640 --> 00:48:48,660
the machine was perfect. It did exactly what it was supposed to do when breaking up and chopping

511
00:48:48,660 --> 00:48:54,200
up ice, but it chopped off some fingers because there was no guard there. A minor risk compared to

512
00:48:54,200 --> 00:49:01,440
what we're dealing with here. But what we're dealing with here is, for our case, you know,

513
00:49:01,440 --> 00:49:11,460
So dealing with the hand and the ice machine, here with the whole thing technology, there

514
00:49:12,500 --> 00:49:16,900
is constantly new safety features that are coming up with the evolving technology.

515
00:49:17,420 --> 00:49:23,120
What do we make of the fact that lane departure warnings are not required under federal

516
00:49:23,120 --> 00:49:23,360
law?

517
00:49:23,960 --> 00:49:29,300
Like backup cameras are recently required and other technological features.

518
00:49:29,480 --> 00:49:30,220
So what do you make of?

519
00:49:30,220 --> 00:49:39,900
The safety act of 1966 doesn't, the requirements of federal law are half the equation, federal

520
00:49:39,900 --> 00:49:44,640
state law and state juries are the other half of the safety system in this country,

521
00:49:44,780 --> 00:49:46,200
and we dealt with that in Varelo era.

522
00:49:46,840 --> 00:49:50,580
We dealt with the idea of preemption and we dealt with the idea of these emerging technologies,

523
00:49:51,060 --> 00:49:51,940
burn steels with it.

524
00:49:52,020 --> 00:49:52,860
You know how it deals with it?

525
00:49:53,100 --> 00:49:55,060
Is there a reasonable alternative design?

526
00:49:55,060 --> 00:50:02,480
And the reason why this case is so compelling, it's designed this manufacturer has had for

527
00:50:02,480 --> 00:50:05,660
17 years before this vehicle was designed.

528
00:50:08,790 --> 00:50:13,490
So the restatement third, which I know we haven't adopted yet, it's purely a reasonable

529
00:50:13,490 --> 00:50:17,550
alternative design test, which is viewed as far more friendly to defend them.

530
00:50:18,230 --> 00:50:24,090
Here, so even under a less friendly analysis, the restatement third says, is can the plan

531
00:50:24,090 --> 00:50:29,610
sure a reasonable alternative design. Yeah, we have one Toyota admits it works. It was really

532
00:50:29,610 --> 00:50:33,470
effective. That's why they installed it for 17 years. They just chose not to do it on this

533
00:50:33,470 --> 00:50:39,110
one vehicle out of their whole fleet. That is design defect. They can't make those choices.

534
00:50:39,450 --> 00:50:44,210
And under your analysis, when when does liability attach for failure to include

535
00:50:44,210 --> 00:50:48,510
LDW and in the four-runner model here? At the time it was designed and built.

536
00:50:48,510 --> 00:50:55,190
So when it left Toyota's hands, based on Toyota's knowledge of the foreseeable risk,

537
00:50:55,530 --> 00:50:59,510
it had a defect because they had a solution that prevents all these injuries.

538
00:50:59,830 --> 00:51:02,170
They didn't implement it, and it cost them nothing to do it.

539
00:51:02,270 --> 00:51:10,210
So liability would attach to a four-runner win in 2004, 2003, how far back would liability?

540
00:51:10,370 --> 00:51:11,690
Again, apply the risk benefit test.

541
00:51:11,950 --> 00:51:16,970
And I think Toyota would say to that, we couldn't wick it all the way through our system in that

542
00:51:16,970 --> 00:51:17,890
amount of time.

543
00:51:17,890 --> 00:51:24,470
But they could hear and really quit consumer expectations then diagram consumer expectations risk benefit

544
00:51:24,470 --> 00:51:29,850
Toyota wants to conflate those and say that you if you don't have consumer expectations

545
00:51:29,850 --> 00:51:33,490
You can't have risk benefit. That's not errors on the law and Toyota

546
00:51:34,010 --> 00:51:40,470
Deliberally sold itself as the safety company put out the videos saying our cars will help you get back into your lane and

547
00:51:40,470 --> 00:51:50,510
And told consumers to expect that as did the federal government beginning in 2001, the federal government told Toyota in a letter and other manufacturers put this stuff into your vehicles now.

548
00:51:50,710 --> 00:51:55,990
Oh, one. And they didn't do it. Consumers should have expected that. Thank you very much. I appreciate it.

549
00:51:56,350 --> 00:52:05,910
Thank you, Mr. Calty. Hey, Lewis, I've got a lot in a minute and 49 seconds, so try not to talk too quickly.

550
00:52:05,910 --> 00:52:13,610
First of all, I think the courts recognized that there are a series of cases that have said

551
00:52:13,610 --> 00:52:14,970
you have to prove a defect first.

552
00:52:15,110 --> 00:52:19,250
But I want to talk about the Turner case because I think what Council said is a misreading

553
00:52:19,250 --> 00:52:19,590
of it.

554
00:52:19,910 --> 00:52:24,990
The court in Turner said we acknowledge they're talking about the defect.

555
00:52:25,410 --> 00:52:31,690
We find the parties tacitly, tacitly recognized the lack of a safety guard is a defect and

556
00:52:31,690 --> 00:52:35,330
past to the determination of whether that defect is unreasonably dangerous.

557
00:52:35,930 --> 00:52:40,110
Right there the case the plaintiff wants to rely on says first we do defect then we go

558
00:52:40,110 --> 00:52:41,030
to unreasonably dangerous.

559
00:52:41,270 --> 00:52:41,950
Why do we do that?

560
00:52:42,510 --> 00:52:46,570
Because there was a question about can you have something unreasonably dangerous without

561
00:52:46,570 --> 00:52:47,410
it being defective?

562
00:52:47,790 --> 00:52:52,490
Whiskey for example and I think that might be the example in the in the restatement.

563
00:52:52,850 --> 00:52:56,550
Whiskey somebody might say is unreasonably dangerous if somebody gets drunk and does something

564
00:52:56,550 --> 00:52:56,830
bad.

565
00:52:56,830 --> 00:52:58,150
Does that make it defective?

566
00:52:58,410 --> 00:52:58,750
No.

567
00:52:58,750 --> 00:53:03,910
But I think the most important point is this question about the limiting principle, and

568
00:53:03,910 --> 00:53:05,370
what would that limiting principle be?

569
00:53:06,010 --> 00:53:08,930
Planets council doesn't like the example of a breathalyzer.

570
00:53:09,290 --> 00:53:10,330
What about a speed limiter?

571
00:53:10,910 --> 00:53:12,690
Why don't we have speed limiters on all vehicles?

572
00:53:12,930 --> 00:53:16,810
Because a speed limiter would certainly prevent somebody from speeding, and the statistics

573
00:53:16,810 --> 00:53:19,750
are going to show you how dangerous that is.

574
00:53:20,070 --> 00:53:24,610
So really what you have here is a slippery slope that plaintiff wants to go down that says,

575
00:53:24,610 --> 00:53:28,870
Because every time I can find some new technology, I'm going to say that that makes it defective.

576
00:53:29,230 --> 00:53:30,210
How do we resolve that?

577
00:53:30,470 --> 00:53:32,850
The limiting principle is first there has to be a defect.

578
00:53:33,490 --> 00:53:39,070
And once you demonstrate, and a defect is defined, certainly in 402A, it's defined and I don't

579
00:53:39,070 --> 00:53:40,070
have time to read it now.

580
00:53:40,230 --> 00:53:45,790
The dark case uses comment G, the right narrow case uses comment H to define what the defect

581
00:53:45,790 --> 00:53:45,990
is.

582
00:53:46,310 --> 00:53:51,330
That's the limiting principle that addresses and resolves the question about when is it a

583
00:53:51,330 --> 00:53:53,150
yes answer and when is it a no answer.

584
00:53:53,150 --> 00:53:58,350
Thank you very much. We would ask that the court reverse vacate the Court of Appeals decision

585
00:53:58,350 --> 00:54:01,870
and reinstate the entry of summary judgment. Thank you.

586
00:54:02,130 --> 00:54:08,850
Thank you, Council. All right. I think both sides for excellent argument and briefing on

587
00:54:08,850 --> 00:54:14,550
this. It's interesting and difficult issues and one that we realize the ramifications for.

588
00:54:15,110 --> 00:54:19,710
We will discuss this and take it under advisement issue and opinion into course.

589
00:54:19,710 --> 00:54:24,430
Now, from here, what we're scheduled to do is answer questions from the law students

590
00:54:24,430 --> 00:54:25,530
for the next 20 minutes.

591
00:54:26,570 --> 00:54:31,770
Before we do that, what I want to do is thank the people that are responsible for putting

592
00:54:31,770 --> 00:54:32,230
this together.

593
00:54:32,430 --> 00:54:37,570
First and foremost, we're not putting it together, but being here is counsel that are willing

594
00:54:37,570 --> 00:54:38,430
to come here today.

595
00:54:38,590 --> 00:54:43,450
It's very important to have the students be able to see arguments and advocacy in real life

596
00:54:43,450 --> 00:54:48,110
and see the stakes, and you both did an excellent job

597
00:54:48,110 --> 00:54:49,410
and demonstrate that for them,

598
00:54:49,410 --> 00:54:52,410
and we're very appreciative for you coming down here.

599
00:54:52,950 --> 00:54:54,970
Also for people that put it together,

600
00:54:55,370 --> 00:54:58,870
the first argument, I think I did leave out,

601
00:54:58,990 --> 00:55:00,910
so I'll start with them, the clerk's office,

602
00:55:00,910 --> 00:55:04,270
who actually are here officially to make this a go.

603
00:55:04,470 --> 00:55:06,030
We appreciate, sorry, I left you out,

604
00:55:06,130 --> 00:55:07,950
so I'll say it twice, the clerk's office.

605
00:55:09,350 --> 00:55:11,370
And you need to tell your friends who are here,

606
00:55:11,510 --> 00:55:12,930
the first argument.

607
00:55:12,930 --> 00:55:20,170
So we appreciate the clerks, the communication team, the IT team, the security folks, and

608
00:55:20,170 --> 00:55:21,370
the folks that got us down here.

609
00:55:21,570 --> 00:55:26,790
It takes a lot to come down here, but it's very worthwhile to us to come to U of A every

610
00:55:26,790 --> 00:55:30,210
year and see the students and have the students see us.

611
00:55:30,490 --> 00:55:34,630
So you're always welcome, by the way, to come to Phoenix or even watch us online, as you

612
00:55:34,630 --> 00:55:35,010
can see.

613
00:55:35,410 --> 00:55:39,790
You can watch us live stream and even if you have a class, you can watch us after because

614
00:55:39,790 --> 00:55:44,610
It's there for your viewing pleasure at all days of the week.

615
00:55:46,170 --> 00:55:51,890
So with that, what we're going to do is go into a question and answer, you don't ask

616
00:55:51,890 --> 00:55:57,850
questions about this case or anything having to do with it because that's inappropriate.

617
00:55:58,290 --> 00:56:02,730
Or the first case, if you happen to be here for that, we don't discuss the cases, but we're

618
00:56:02,730 --> 00:56:04,190
happy to answer other questions.

619
00:56:04,190 --> 00:56:10,710
council you can leave or stay at your pleasure it is really up to you so don't

620
00:56:10,710 --> 00:56:14,450
feel bad about picking up and leaving so I understand you're busy but please

621
00:56:14,450 --> 00:56:19,890
we're happy to have you here as well to even answer questions if they ask you

622
00:56:19,890 --> 00:56:24,650
that so with that I think we have do we have microphones around or do we yes we

623
00:56:24,650 --> 00:56:32,930
do oh there is okay so questions and I warn you I had a time that if you don't

624
00:56:32,930 --> 00:56:35,970
have questions. We just start talking. So,

625
00:56:38,710 --> 00:56:42,070
yes, wave back there or call a block or touch the other

626
00:56:42,070 --> 00:56:43,990
thing. Who I also forgot to think.

627
00:56:47,860 --> 00:56:52,420
Thank you. I'm a Zach Kaufman E3L here. I just had a question,

628
00:56:52,700 --> 00:56:59,020
more meant for potential future of power litigation and court of appeals on front of you. And because

629
00:56:59,020 --> 00:57:04,380
I have been a work for an employer that does worry about setting a case and then it comes before you

630
00:57:04,380 --> 00:57:09,860
and now the, like, how the law would be applied to be different now. And so I was just curious

631
00:57:09,860 --> 00:57:15,420
was any guidance that would be appropriate for you to share on citing cases knowing that they're

632
00:57:15,420 --> 00:57:21,560
going to be challenged and be heard in a higher court soon. You mean cases that are kind of in process

633
00:57:21,560 --> 00:57:26,700
that might still be heard by us, but they've been recently decided to say like I cited the appellate

634
00:57:26,700 --> 00:57:31,060
version of the case that's knowing that you're going to hear it and probably change what the

635
00:57:31,060 --> 00:57:33,680
hoarding is, in that case, because it's going to affect

636
00:57:33,680 --> 00:57:35,080
our litigation, my employer.

637
00:57:36,240 --> 00:57:36,340
Yeah.

638
00:57:37,060 --> 00:57:39,700
OK, so you're the shill for your employer here asking

639
00:57:39,700 --> 00:57:40,200
this question.

640
00:57:41,940 --> 00:57:42,740
I got it.

641
00:57:43,040 --> 00:57:43,300
Great.

642
00:57:44,000 --> 00:57:45,640
The nice thing about being the Chief Justice,

643
00:57:45,740 --> 00:57:47,860
this is a lot of nice things about being the Chief Justice

644
00:57:47,860 --> 00:57:51,500
among them is that I get to delegate questions.

645
00:57:51,520 --> 00:57:55,380
And so I'm going to do that and also cleverly introduce each

646
00:57:55,380 --> 00:57:57,740
member of the court as I do so.

647
00:57:57,820 --> 00:58:00,460
So I'm going to turn this over to Vice Chief Justice John

648
00:58:00,460 --> 00:58:02,920
on Lopez to answer.

649
00:58:05,400 --> 00:58:13,000
All right, well, if you believe that an appellate case that you're relying upon to prevail

650
00:58:13,000 --> 00:58:21,180
in the case is on review, and you are leery about its prospects of survival, I would highly

651
00:58:21,180 --> 00:58:29,860
recommend that you find other authority as fallback, but beyond that, make sure that the citation

652
00:58:29,860 --> 00:58:36,920
to the case indicates to the court that is considering your argument that it is on review.

653
00:58:37,260 --> 00:58:41,220
I think as a matter of candor to the court, I think you'd want to signal that.

654
00:58:41,520 --> 00:58:50,800
But I think that the dilemma that your employer faces is self-evident as is my advice probably.

655
00:58:51,700 --> 00:58:52,360
So good luck.

656
00:58:55,080 --> 00:58:57,340
Well done, well done, Vice Chief Justice.

657
00:58:57,340 --> 00:59:00,020
And I should let you know that Arizona is one of the few states.

658
00:59:00,020 --> 00:59:04,320
I think the only one I know of that has a vice chief justice in our constitution.

659
00:59:04,940 --> 00:59:09,380
So both of our, my term is for five years, his term is for five years, and then unless

660
00:59:09,380 --> 00:59:14,660
he messes it up, we'll take a vote to see who will be the next chief justice, and it will

661
00:59:14,660 --> 00:59:18,320
likely be him unless you do something wrong.

662
00:59:19,640 --> 00:59:20,060
So.

663
00:59:21,480 --> 00:59:24,760
And he has been on the court since 2017, correct?

664
00:59:25,120 --> 00:59:25,240
Great.

665
00:59:25,240 --> 00:59:26,660
Another question right there.

666
00:59:41,400 --> 00:59:42,320
Oh, great question.

667
00:59:42,460 --> 00:59:43,460
Well, we had a fun weekend.

668
00:59:43,740 --> 00:59:44,500
Let me put it that way.

669
00:59:45,560 --> 00:59:48,540
So I will turn this over to Justice Clint Bullock,

670
00:59:48,680 --> 00:59:50,620
who has been on the, oh, I forgot to say.

671
00:59:51,140 --> 00:59:53,540
And Vice Chief Justice, it went to ASU.

672
00:59:53,800 --> 00:59:54,620
So I'm going to do that.

673
00:59:55,280 --> 00:59:56,640
I went to ASU as well.

674
00:59:56,760 --> 00:59:57,660
So it's two ASUs.

675
00:59:57,820 --> 00:59:59,700
And one University of California, Davis.

676
01:00:00,180 --> 01:00:07,500
And he's been on the court since 2016, so you could please answer that. Yeah, sometimes, you know, five or ten minutes.

677
01:00:10,220 --> 01:00:30,160
No, I can say that jokingly because you've just as Timmer is correct and heard me say today. In future calendars, can we try not to do two ways the day after a three-day weekend because that means there is no three-day weekend. There isn't, you know,

678
01:00:30,160 --> 01:00:35,860
one day we can, but it really, really varies according to the case.

679
01:00:38,500 --> 01:00:44,740
You know, for some of us, some subject matters are entirely new.

680
01:00:45,240 --> 01:00:48,420
I had to do, for example, we had a water law case.

681
01:00:48,920 --> 01:00:55,780
I had to do months of preparation just, you know, in terms of doing a primer on water law

682
01:00:55,780 --> 01:01:08,460
Before I could even look at the briefs intelligently, other times constitutional cases, you know, I teach constitutional law, and so looking at a first amendment issue oftentimes,

683
01:01:08,520 --> 01:01:17,420
I'll be so far up on the learning curve that reading the briefs, you know, I'll hardly see anything I didn't know.

684
01:01:18,260 --> 01:01:22,160
And there's a vast continuum between those two things.

685
01:01:22,160 --> 01:01:30,400
So, we first take a look at the cases when they are presented to us on petitions for review.

686
01:01:31,300 --> 01:01:38,420
And at that point, we have a summary and a recommendation from our staff attorneys

687
01:01:38,420 --> 01:01:41,540
and they are subject matter experts.

688
01:01:42,040 --> 01:01:47,920
I encourage you, a lot of people don't know the staff attorney's office even exists.

689
01:01:47,920 --> 01:01:52,480
it is a great internship opportunity.

690
01:01:52,680 --> 01:01:56,380
It's basically the same kind of work you do as a lock clerk.

691
01:01:56,600 --> 01:02:00,700
And my lock clerk Sam worked for the staff attorney

692
01:02:00,700 --> 01:02:04,420
before he started clerking for me.

693
01:02:05,260 --> 01:02:07,180
And so we've already looked at the case.

694
01:02:08,360 --> 01:02:10,980
And my numbers are probably way off,

695
01:02:11,020 --> 01:02:14,880
but we get about 1,200 or so petitions for review

696
01:02:14,880 --> 01:02:17,180
and grant review in about 50 cases.

697
01:02:17,180 --> 01:02:26,960
but we've looked at all of them. So we've taken a first cut, then we have a conference to review

698
01:02:26,960 --> 01:02:35,700
those petitions. And so we've looked at it again. And then finally, after all of the briefing,

699
01:02:36,320 --> 01:02:45,100
we get briefs from both sides. We often get amicus briefs as well. And our clerks then present

700
01:02:45,100 --> 01:02:56,640
memo's summarizing the law, making a recommendation. So even the easiest case takes many, many hours to

701
01:02:56,640 --> 01:03:07,100
prepare in. And sometimes I usually try to leave for two cases a solid seven-day week to prepare

702
01:03:07,100 --> 01:03:19,620
for two cases knowing there will be some interruptions every now and then, but it really does depend and a lot of work definitely goes into it.

703
01:03:20,600 --> 01:03:27,860
I would have to say that Justice Bullock was so taken with that water case that he's now has a love of water metaphors and allergies.

704
01:03:29,160 --> 01:03:33,360
And Brad, you can go through all of these cases, he's written it, you're probably going

705
01:03:33,360 --> 01:03:35,160
to find a water analogy there, right?

706
01:03:35,540 --> 01:03:38,140
And so, that is true.

707
01:03:38,260 --> 01:03:40,820
The question over here, I've been in, yes.

708
01:03:41,220 --> 01:03:41,360
Yeah,

709
01:03:50,080 --> 01:03:50,460
years.

710
01:03:52,940 --> 01:03:54,320
There's been a lot of

711
01:03:57,230 --> 01:03:59,130
obvious report down, what is your opinion?

712
01:03:59,490 --> 01:04:03,050
I mean, the question is, what is the view on nation-wide justice in junctions?

713
01:04:03,250 --> 01:04:04,870
In just, oh, got it.

714
01:04:04,890 --> 01:04:05,390
In junctions.

715
01:04:05,470 --> 01:04:06,290
In junctions, that's.

716
01:04:06,330 --> 01:04:07,070
You don't like nation-wide justice.

717
01:04:07,090 --> 01:04:07,950
That's very different.

718
01:04:07,950 --> 01:04:08,630
justice.

719
01:04:11,110 --> 01:04:16,570
I was going to say I'm for justice nationwide, that's an easier one, but okay, all right,

720
01:04:16,790 --> 01:04:31,630
then let's turn to justice and I have always wondered what justice being's opinion on nationwide

721
01:04:31,630 --> 01:04:38,430
injunctions. What? So this is a timely question. So Justice Bean was appointed in 2019 and

722
01:04:38,430 --> 01:04:42,190
is a graduate of University of Arizona's law school. Justice Bean.

723
01:04:45,910 --> 01:04:48,430
Now the expectations are stories.

724
01:04:52,380 --> 01:04:53,280
Very good question.

725
01:04:56,450 --> 01:04:58,650
And I spent a lot of time in

726
01:04:58,650 --> 01:05:02,670
And Trump versus Kasa, but that was the case, is that the case?

727
01:05:05,050 --> 01:05:08,170
And both sides had interesting takes on the issue.

728
01:05:09,910 --> 01:05:13,610
I mean, I don't know if I feel comfortable like opining on this though.

729
01:05:15,970 --> 01:05:17,490
That's not going to come before us, no?

730
01:05:17,690 --> 01:05:19,990
Well, I mean, we said, well, I won't go there.

731
01:05:20,730 --> 01:05:22,970
We said something else wouldn't come before, isn't it, it did.

732
01:05:28,030 --> 01:05:32,990
Yeah, you know, I'm going to take a pass on that and I took a pass on asking answering

733
01:05:32,990 --> 01:05:38,270
questions in this hall before as a student so I feel I can do, I think it's comfortable,

734
01:05:38,510 --> 01:05:45,670
I feel comfortable I have precedent in doing it here so I just don't feel comfortable

735
01:05:45,670 --> 01:05:50,750
answering that question given that it's such a hot topic issue even though it's not likely

736
01:05:50,750 --> 01:05:53,770
to come before us, I'd rather not answer.

737
01:05:54,470 --> 01:05:57,930
And I think we don't want you to feel like we're dodging the question.

738
01:05:58,090 --> 01:06:03,090
We are, but I don't know if you feel that appropriately dodging the question.

739
01:06:03,710 --> 01:06:08,330
I think what you've touched on is something that even though that issue won't come before

740
01:06:08,330 --> 01:06:14,390
us, we are very attuned to the perception of the court in Arizona when we want to nurture,

741
01:06:14,610 --> 01:06:17,450
which is that we are really not political.

742
01:06:17,450 --> 01:06:23,030
Now, the question you ask in a certain issue of nationwide injunctions is a political

743
01:06:23,030 --> 01:06:29,130
hot potato, and even by taking sides or expressing opinion, it's considered taking sides.

744
01:06:29,130 --> 01:06:29,990
It's amazing.

745
01:06:30,690 --> 01:06:31,510
It really is.

746
01:06:31,530 --> 01:06:32,610
You talk about free speech.

747
01:06:32,970 --> 01:06:36,430
I know you're going to be down here talking about it in a couple of weeks.

748
01:06:36,650 --> 01:06:44,390
You said, and we, though, are reluctant to publicly speak for uncertain things for that reason.

749
01:06:44,390 --> 01:06:57,050
because above all, we want to nurture not only the fact, but also the perception that we really are deciding cases that come before us fairly impartially and on the law as much as humanly, humanly possible.

750
01:06:57,410 --> 01:07:11,150
And when you start to opine on a lot of political questions, even though they have a perfect right to do it, with a lot of people that makes them wonder, oh, are they really just that interned to politics and deciding things on that?

751
01:07:11,150 --> 01:07:14,310
So I think that's what some of the reluctance is on that.

752
01:07:14,670 --> 01:07:15,850
So, but good question.

753
01:07:17,510 --> 01:07:19,570
Other question over here.

754
01:07:20,870 --> 01:07:21,310
Yes.

755
01:07:21,770 --> 01:07:28,680
A question about the Arizona's legal deserts that have been in the news.

756
01:07:30,320 --> 01:07:35,680
Recently, the one year criminal law education proposal was struck down.

757
01:07:36,820 --> 01:07:43,080
I was wondering if you are currently considering expanding these sites.

758
01:07:45,800 --> 01:07:55,920
Oh, I kind of thought about, you know, the civil system we operate on a tier system in Arizona.

759
01:07:56,540 --> 01:08:00,780
And I was wondering if there was maybe a way to do that on criminal side too.

760
01:08:01,140 --> 01:08:10,600
And as far as I'll be so testing for tier one might be the misdemeanor crimes that they are,

761
01:08:10,600 --> 01:08:17,680
it can be a list for now and maybe two or two to be more serious felonies and your three to be

762
01:08:18,540 --> 01:08:25,380
up to and including or maybe up to definitely cases like the proposal that there was.

763
01:08:26,060 --> 01:08:30,660
Yeah, is that something you thought about or I can feel just as being saying please don't

764
01:08:30,660 --> 01:08:37,000
put this back to me. I can handle that one okay. Or at least I hope I can. Great great question

765
01:08:37,000 --> 01:08:43,620
And we, about the, I think it was one or two year ability

766
01:08:43,620 --> 01:08:50,500
to take on criminal cases with a specified specific curricula.

767
01:08:51,660 --> 01:08:55,040
We're always, this court, what I love about serving with my colleagues,

768
01:08:55,180 --> 01:08:57,900
we're always open to out-of-the-box ideas.

769
01:08:58,520 --> 01:09:02,940
That's how we have the LP process and program,

770
01:09:02,940 --> 01:09:10,240
because we thought outside the box and I don't, I'll speak for myself, I'm not

771
01:09:10,240 --> 01:09:17,980
adverse to opening up the LP, the issue that I personally have, the possible

772
01:09:17,980 --> 01:09:23,400
rub that I have is in the criminal area because of the liberty interests that are

773
01:09:23,400 --> 01:09:28,660
involved. And if you don't go through a three-year, and this again just

774
01:09:28,660 --> 01:09:32,580
speaking for myself, three-year rigorous program,

775
01:09:32,860 --> 01:09:34,920
like law school is, and then study for the bar

776
01:09:34,920 --> 01:09:38,600
and pass the bar and show that basic minimum competency.

777
01:09:41,260 --> 01:09:44,480
Outside of that, I would have some, again,

778
01:09:44,560 --> 01:09:47,500
I'd have some reservations about opening up

779
01:09:47,500 --> 01:09:49,340
something that hasn't gone through that process

780
01:09:49,780 --> 01:09:52,680
to dealing with cases as serious as criminal cases

781
01:09:52,680 --> 01:09:55,700
where there is, again, the potential loss of liberty

782
01:09:55,700 --> 01:09:58,000
and if you're racking it up to being able

783
01:09:58,000 --> 01:10:00,840
to do death penalty cases possible loss of life.

784
01:10:01,820 --> 01:10:09,640
So I would personally again be okay with looking to see where you would like to maybe make

785
01:10:09,640 --> 01:10:14,600
some increments or if somebody wants to make a proposal for increments for LPs to get

786
01:10:14,600 --> 01:10:16,920
more involved in the criminal process.

787
01:10:17,340 --> 01:10:22,300
I would definitely welcome that as a 17 year prosecutor and former trial court judge that

788
01:10:22,300 --> 01:10:23,640
presided over criminal cases.

789
01:10:23,860 --> 01:10:25,440
I think it could work.

790
01:10:25,440 --> 01:10:31,880
work, but initially I have a little hesitancy about that just because of the subject matter

791
01:10:31,880 --> 01:10:32,180
involved.

792
01:10:34,420 --> 01:10:34,580
Okay.

793
01:10:35,620 --> 01:10:36,180
Oh.

794
01:10:36,780 --> 01:10:42,960
I want to touch on the other aspect of the question too about, you know, the way it was

795
01:10:42,960 --> 01:10:47,860
reported that we were considering authorizing people of one year of law school to then go

796
01:10:47,860 --> 01:10:49,000
out and handle capital cases.

797
01:10:49,720 --> 01:10:52,660
That was hyperbole at its finest.

798
01:10:54,040 --> 01:10:59,060
as Justice Dean mentioned, we're willing to hear all kinds of ideas and the fact that we were

799
01:10:59,060 --> 01:11:03,740
entertaining an idea didn't mean we were advocating for it. It's simply that we were asking for input

800
01:11:03,740 --> 01:11:09,500
and we were getting that input and then people decided to run to the extremes and say that we were

801
01:11:09,500 --> 01:11:16,960
preparing a proposal for a program that would authorize this. Again, speaking for myself, my experience,

802
01:11:17,540 --> 01:11:21,320
the members of this quarter willing to entertain all kinds of ideas to address issues of concern

803
01:11:21,320 --> 01:11:26,860
about access to justice, how well our system performs, and just because we've asked for input on

804
01:11:26,860 --> 01:11:32,800
something, should not be taken to mean that we are preparing a decision to then enact the very idea.

805
01:11:33,600 --> 01:11:35,320
So I encourage caution.

806
01:11:37,410 --> 01:11:45,710
And that was Justice Montgomery who's been on the court since 2019 as well. Yeah, I know it to

807
01:11:45,710 --> 01:11:48,530
issue law school. There you go. Okay.

808
01:11:51,230 --> 01:11:54,550
Okay, I was going to switch over to this. And by the way,

809
01:11:54,650 --> 01:11:59,230
I had also forgotten the fact that we have our law clerks. Each of us get two law clerks,

810
01:11:59,290 --> 01:12:02,830
and we also have externs as well, but we have brought the law clerks down with us, says,

811
01:12:02,950 --> 01:12:10,990
raise your hand law clerks. Yay. Yay. So, I think most of them, but not all of them,

812
01:12:10,990 --> 01:12:16,790
graduated this past year, but in some have been out for long, came back. Raise your hand

813
01:12:16,790 --> 01:12:23,490
if you want to, you were made in law school. Yeah, so quite a few. So, all right, question

814
01:12:23,490 --> 01:12:24,850
on this side. Yes.

815
01:13:27,260 --> 01:13:32,120
I understand. I'll just say briefly before I turn it over to I think we're up to Justice

816
01:13:32,120 --> 01:13:33,160
this king next.

817
01:13:35,260 --> 01:13:39,040
On those cases, you know, for the most part, we have a role. Our role is

818
01:13:39,040 --> 01:13:44,000
the judge, and it's not the attorney. It's something, frankly, that the most frustrating

819
01:13:44,000 --> 01:13:48,920
thing about the impeller judge, I've done it for 25 years now, and the most frustrating

820
01:13:48,920 --> 01:13:54,460
thing is seeing missed arguments or different arguments, different ways people have decided

821
01:13:54,460 --> 01:14:00,780
to proceed. But that also takes, it's not a very humble thing to say, because I see this

822
01:14:00,780 --> 01:14:06,060
little sliver of a case that how they've decided to present it to me. I don't know what's in the

823
01:14:06,060 --> 01:14:10,320
background of why they wouldn't make the argument which I think they should be making but it's they've

824
01:14:10,320 --> 01:14:17,060
made the choice and I trust the attorneys to TV's things up. So for the most part the scope of an

825
01:14:17,060 --> 01:14:23,040
issue we decide is what has been litigated to the trial court and it's made its way up to us. We

826
01:14:23,040 --> 01:14:29,700
resist the temptation to reach out and decide issues that aren't before us and haven't been briefed

827
01:14:29,700 --> 01:14:35,200
candidly, on the abortion cases, I recall, that wasn't an issue, the constitutionality.

828
01:14:35,680 --> 01:14:41,840
The issue was simply, if I recall, at this statute, I don't know, it's amazing how quickly

829
01:14:41,840 --> 01:14:42,240
you forget.

830
01:14:43,040 --> 01:14:48,760
But that wasn't the issue, but I think it was the statute that did it repeal the old 18,

831
01:14:49,120 --> 01:14:50,220
whatever it was, law.

832
01:14:50,500 --> 01:14:59,320
So really, despite the very hot, you know, greatly interest, obviously, issue, it was actually

833
01:14:59,320 --> 01:14:59,880
matter of status.

834
01:15:01,440 --> 01:15:29,760
And so we don't reach out and decide things that aren't given to us. If that issue, if the initiative hadn't been passed, and then it would come around again, what would happen? And I think there was a case of bubbling up, doing just that challenging the constitutionality of that. And then they can come up and make its way. But really, we try to be very, and that's actually one of the, my recent I felt strongly about answering instead of passing out completely, is that's really something I feel

835
01:15:29,760 --> 01:15:34,280
deeply about nothing worse than when I was an attorney and a judge starts taking over my case

836
01:15:34,280 --> 01:15:39,900
and deciding things that are not before that I never chance to weigh in on. And as one lawyer,

837
01:15:40,060 --> 01:15:43,380
famously said, you know, judge, if you're going to try my case for me, try not to lose it.

838
01:15:45,380 --> 01:15:50,300
So, Justice King, I hate to usurp you, but this is Justice K. King, who has been on the court since

839
01:15:50,300 --> 01:15:53,840
2021. Also proud to University of Arizona law school graduate.

840
01:15:56,220 --> 01:15:57,120
So why don't you answer?

841
01:15:57,120 --> 01:15:58,380
Yes, thank you for that question.

842
01:15:58,560 --> 01:16:00,420
And Chief Justice Timmery did a fantastic job.

843
01:16:00,600 --> 01:16:04,540
Yes, so the issue that was presented to us was a question

844
01:16:04,540 --> 01:16:05,900
of statutory interpretation.

845
01:16:06,660 --> 01:16:09,140
And there's a long convoluted procedural history

846
01:16:09,140 --> 01:16:14,000
that led up to the case that was before us

847
01:16:14,000 --> 01:16:15,880
and that was decided, I guess, two Aprils ago.

848
01:16:16,440 --> 01:16:18,360
But if you look at the end of the opinion,

849
01:16:18,580 --> 01:16:21,320
we know there were actually, in the original lawsuit,

850
01:16:21,660 --> 01:16:25,420
there were a variety of different constitutional claims

851
01:16:25,420 --> 01:16:28,680
that had been originally asserted, and if I recall, we

852
01:16:28,680 --> 01:16:32,560
remanded to the trial court for further consideration

853
01:16:33,160 --> 01:16:35,480
of those constitutional issues.

854
01:16:36,460 --> 01:16:40,560
But with the immediate legislative action that took place

855
01:16:40,560 --> 01:16:43,860
thereafter, it kind of mooted the case.

856
01:16:44,040 --> 01:16:47,080
So there were remaining constitutional claims

857
01:16:47,080 --> 01:16:50,640
that had been asserted, and we said, to the point,

858
01:16:50,820 --> 01:16:52,940
we don't reach out and grab issues that weren't presented

859
01:16:52,940 --> 01:16:57,860
to us that those constitutional issues need to be fleshed out in the trial court first

860
01:16:57,860 --> 01:16:59,240
and then they can come to us.

861
01:17:00,600 --> 01:17:01,480
Thank you.

862
01:17:02,000 --> 01:17:02,740
Of course you can.

863
01:17:03,120 --> 01:17:07,040
I wanted to, and I agree with everything that the Chief Justice and Justice King just said

864
01:17:07,040 --> 01:17:15,180
but I'm going to put a finer point on it in litigation, especially, and this is not a case

865
01:17:15,180 --> 01:17:20,720
where you have a pro-pur party who may have overlooked a dispositive argument, that's, that's

866
01:17:20,720 --> 01:17:26,060
a little different. That litigation and so much of our litigation involves very sophisticated

867
01:17:26,060 --> 01:17:33,900
lawyers and clients and often parties will very specifically, strategically, avoid raising

868
01:17:33,900 --> 01:17:43,400
particular issues for a number of reasons. And so the issue, as was explained by the chief

869
01:17:43,400 --> 01:17:48,980
and Justice King, was a very discreet statutory interpretation issue.

870
01:17:48,980 --> 01:17:54,400
So, for whatever reason, the issue was not presented to us and so we did not have the

871
01:17:54,400 --> 01:18:03,200
opportunity and had we injected the constitutional issue into the case that would have raised

872
01:18:03,200 --> 01:18:03,720
eyebrows.

873
01:18:03,840 --> 01:18:05,180
I think correctly so.

874
01:18:07,120 --> 01:18:10,960
And actually, interestingly enough, Arizona, if there's something that the constitutionality

875
01:18:10,960 --> 01:18:14,860
of a statute is challenged, you're supposed to give notice to the Attorney General to allow

876
01:18:14,860 --> 01:18:20,600
them to input because they're there on behalf of, you know, the people to be able to defend

877
01:18:20,600 --> 01:18:21,960
the constitutionally of statutes.

878
01:18:22,060 --> 01:18:26,940
That was a number of reasons you wouldn't bring things up, but just so that no one goes

879
01:18:26,940 --> 01:18:32,340
with the wrong impression, we're not so, you know, tied that we can't very abit.

880
01:18:32,440 --> 01:18:36,800
So in other words, if there are some occasions that we would vary, statutory interpretation

881
01:18:36,800 --> 01:18:41,700
is a good example, even though the party, if the party is myth and don't argue the right

882
01:18:41,700 --> 01:18:47,440
things for stature interpretation because it has a public impact we we're not bound by those arguments

883
01:18:47,440 --> 01:18:52,060
and of course we're never going to like oh sorry you got to go to prison for 20 minutes 20

884
01:18:52,060 --> 01:18:58,120
20 years 20 years or be put to death just because you're because your attorneys missed the argument

885
01:18:58,120 --> 01:19:03,660
so any kind of fundamental errors this so there are some exceptions to that but as a general matter

886
01:19:04,180 --> 01:19:10,260
we take what the attorneys give us and rely on them to make those decisions and I'm looking at you

887
01:19:10,260 --> 01:19:11,400
you guys and bring it up.

888
01:19:12,780 --> 01:19:13,580
Bring it up.

889
01:19:13,820 --> 01:19:15,720
Just one really quick thing.

890
01:19:16,020 --> 01:19:19,400
And having done a lot of cases from the trial

891
01:19:19,400 --> 01:19:22,400
all the way up the appellate ladder,

892
01:19:22,660 --> 01:19:25,200
you probably haven't made a record on that issue.

893
01:19:25,980 --> 01:19:29,240
And so we would be very, very reluctant

894
01:19:29,240 --> 01:19:34,560
to ask parties to brief an issue in which they have not

895
01:19:34,560 --> 01:19:36,560
had an opportunity to make a record.

896
01:19:38,280 --> 01:19:40,060
And I know we're a tad over time,

897
01:19:40,060 --> 01:19:42,060
but I want you to hear from all of the justices.

898
01:19:42,360 --> 01:19:45,380
So if you have to go to a class or have to go anywhere,

899
01:19:45,760 --> 01:19:48,340
please don't think of it as fine to get up and leave.

900
01:19:48,580 --> 01:19:50,200
So we have a question here right there.

901
01:19:52,150 --> 01:19:53,850
So I was in

902
01:19:59,160 --> 01:20:02,760
February, I came here and there was a talk

903
01:20:03,260 --> 01:20:06,700
and I complained that they were trying

904
01:20:06,700 --> 01:20:08,440
to push that bachelor of law.

905
01:20:08,980 --> 01:20:11,320
And I said, you know, I've been having a hard time

906
01:20:11,320 --> 01:20:14,420
to do this in people, but this is a lot of great

907
01:20:14,420 --> 01:20:19,100
and not through the School of Government and Public Policy that it's actually something

908
01:20:19,100 --> 01:20:21,520
that, you know, people were scratching their head.

909
01:20:22,100 --> 01:20:26,460
And a Superior Court judge said, come afterwards and we'll talk to you.

910
01:20:26,920 --> 01:20:30,560
And that's the first time I've ever heard of the Paraprofessional Program.

911
01:20:32,200 --> 01:20:35,560
And I'm taking classes currently at Pima.

912
01:20:36,040 --> 01:20:43,180
And I think there's quite a few people here that are probably at Pima because of that opportunity

913
01:20:43,180 --> 01:20:50,660
be for taking the paralegal classes and substituting, you know, and there's different ways to

914
01:20:50,660 --> 01:20:52,580
get to that per professional.

915
01:20:53,240 --> 01:20:56,680
But as far as say the criminal, you

916
01:20:59,850 --> 01:21:03,770
know, I look at the case let's say for DUIs, could that

917
01:21:03,770 --> 01:21:11,210
be something, or could there be a cutout for something criminal law that potentially,

918
01:21:16,330 --> 01:21:16,330
you

919
01:21:16,330 --> 01:21:22,710
Yeah, and I will, because she hasn't had chance to speak, it's just this Mary-Lena Cruz who is our most recent

920
01:21:22,710 --> 01:21:29,710
addition to the Corps and a welcome addition at that, and has also graduated the University of Arizona College of Law, so very nice.

921
01:21:34,000 --> 01:21:37,740
It's wonderful that this question came to me because I don't know if you know, but I'm

922
01:21:38,200 --> 01:21:41,640
proudly known as the godmother of the legal paraprofessional program.

923
01:21:42,640 --> 01:21:49,160
I'm very supportive of that program. I come from a rural community, one of those legal deserts in our state, and one of the

924
01:21:49,160 --> 01:21:55,200
the reasons why this program was instituted to help meet the need that is not being met.

925
01:21:55,480 --> 01:22:02,300
Your question asked to the potential expansion of the legal paraprofessional reach in the

926
01:22:02,300 --> 01:22:05,280
criminal area is interesting.

927
01:22:06,180 --> 01:22:11,660
As you know, legal paraprofessionals who practice in the criminal space may do so in cases where

928
01:22:11,660 --> 01:22:14,520
there is no prospect of jail time.

929
01:22:14,520 --> 01:22:19,280
Yes, that's a limitation that we thought would be appropriate to place

930
01:22:20,040 --> 01:22:25,040
That happens sometimes because the statutes don't allow it or because in some communities

931
01:22:25,040 --> 01:22:29,400
There's a decision made up front that the prosecutor will not seek jail time

932
01:22:29,400 --> 01:22:32,080
And there's at least in my community. I know at the city court

933
01:22:32,080 --> 01:22:36,980
There's a red stamp that goes on there and not only does that mean there is no jail time possible

934
01:22:36,980 --> 01:22:41,620
But it also means there's no right to counsel and so that's where the need to have some

935
01:22:42,200 --> 01:22:44,280
Access to representation came in

936
01:22:44,520 --> 01:22:50,600
DUIs are different and the possibility of jail time even a 24-hour period is there so that's not

937
01:22:50,600 --> 01:22:57,040
something that we have considered and as we said before in the context of the earlier question

938
01:22:57,040 --> 01:23:03,600
there we are open to entertaining any proposals that make that may come up we hear in the community

939
01:23:04,360 --> 01:23:11,280
a lot of different ideas probate but in terms of DUI that's not something that we're currently

940
01:23:11,960 --> 01:23:18,500
considering. We are we have and by way I don't mean we as a court it's not a formal proposal

941
01:23:18,500 --> 01:23:22,720
before us but I'm a member of the commission on victims in the courts we've looked at whether

942
01:23:22,720 --> 01:23:33,400
potentially there could be an LP request for victim advocacy most victims across the state

943
01:23:33,400 --> 01:23:40,520
do not have representation and they're not at risk right up losing their freedom so there's

944
01:23:40,520 --> 01:23:47,460
the potential for that. And there are many other areas that could eventually be covered

945
01:23:47,460 --> 01:23:53,140
by legal paraprofessionals. But at this point, DUI is not one of them.

946
01:23:54,760 --> 01:23:59,540
Okay. Well, I'm feeling a little badly that I didn't get his own question for Justice

947
01:23:59,540 --> 01:24:03,260
Montgomery. So does anybody have like a really difficult one for him?

948
01:24:05,360 --> 01:24:06,260
Right there.

949
01:24:09,880 --> 01:24:10,480
Oh,

950
01:24:12,900 --> 01:24:17,720
We had a case one time where I think Chief Justice Timber told an attorney, sometimes

951
01:24:17,720 --> 01:24:19,620
we have thrown a softball, it's okay to hit it.

952
01:24:20,980 --> 01:24:21,900
So come on.

953
01:24:41,250 --> 01:24:45,970
So the best thing about it is, I get to sit around and read right and think all day.

954
01:24:48,230 --> 01:24:53,030
And the frustrating aspect, yeah, that is a frustrating aspect because there are times

955
01:24:53,030 --> 01:24:56,330
where we'll look at a particular case and think, you know, if they just would have raised

956
01:24:56,330 --> 01:25:04,630
this issue we could have resolved much more in an area of law that we know maybe crying

957
01:25:04,630 --> 01:25:08,950
out for additional clarification. But the other thing that's great about this job

958
01:25:08,950 --> 01:25:14,830
too is I get to work with six other people who are incredibly smart and dedicated to

959
01:25:14,830 --> 01:25:19,070
when it uses the best for the people of Arizona. I've got great clerks who I get to work with,

960
01:25:19,510 --> 01:25:26,310
who I get to bounce off, ideas off of, and so really throughout each day it's the best

961
01:25:26,310 --> 01:25:31,630
environment to be able to serve the people of Arizona and fulfill what I guess has been

962
01:25:31,630 --> 01:25:36,850
a lifelong commitment to public service until that makes this job great and thank you for the softball.

963
01:25:38,430 --> 01:25:44,310
All right well again thank everybody for being here today and for your attention and frankly

964
01:25:44,310 --> 01:25:51,190
we really appreciate that you dress as you dress every day to school I know but we do appreciate you

965
01:25:51,190 --> 01:25:56,190
you showing that respect not for us but for the court because it is important to do so

966
01:25:56,190 --> 01:25:59,970
So thank you for that and with that we will stand adjourned for the day.