[12:32] Good afternoon. We're here for oral argument on may world at all versus Toyota at all, our number

[12:38] CV-25-009, a couple things before we get started. Obviously we are in a different place than

[12:47] we normally are. So you guys are a lot closer to us than we're used to. And on the same level,

[12:52] usually, look at that. Very, very different. So the microphone is on for you the entire time,

[13:01] each site as 20 minutes as per normal, you may keep whatever time you wish for a

[13:06] rebuttal, but you have to keep your time yourself. And with that please

[13:10] begin.

[13:16] Good afternoon. May it please the Court? Wendy Lumish and Amanda Heitz from

[13:22] Bowman and Brock here on behalf of the Toyota Defendants. And I would like to

[13:26] reserve three minutes for a bottle I know I need to keep my own time here. This

[13:29] case presents a straightforward application of existing Arizona law on

[13:34] strict liability. Our position is that the Court of Appeals abandoned several settled

[13:39] principles. Toyota asks that this Court vacate the Court of Appeals decision and affirm

[13:44] the summary judgment based on essentially four points. In a strict liability case, plaintiff

[13:50] is required to first prove that there was a defect. After that, they look at whether or

[13:56] not the defect made the product of unreasonably dangerous and, of course, causation. Second,

[14:02] And in this case, plaintiff did not prove that the vehicle was defective as designed

[14:06] because plaintiff couldn't point to a characteristic of the vehicle that made it defective at all.

[14:12] The third point is assuming that there was evidence of a defect presented, properly applied

[14:18] the consumer expectation test would preclude liability.

[14:22] And finally, assuming a defect, there is no liability under the risk-benefit test.

[14:30] So, let me walk through each of those, if I may, as you walk through it, when you get

[14:35] to the consumer expectation test, that's a test that confuses me at least a bit in terms

[14:41] of it seems to duplicate a bit, the separate definition of is it a defect in the first place.

[14:49] So are those indeed, as you go through, the same thing that you're looking at twice, whether

[14:55] 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?

[15:00] 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

[15:29] like these concepts are mixed together, the reason it's important is because if not,

[15:34] a manufacturer would become an insurer for any instance where there has been an injury.

[15:40] There's an injury.

[15:41] It would automatically mean liability if there wasn't some proof that there was a defect.

[15:45] And the Galonco case does anything different.

[15:48] That's probably one of the more recent cases that talked about this issue.

[15:51] And it says it as defective, unreasonably dangerous, which is a language of 402A, so that's probably

[15:58] where that comes from.

[15:59] I think we're, correct me if I'm wrong, Madam Chief Justice, but I think we're both having

[16:08] problem is even in terms of separating out the elements, the consumer's expectation seems

[16:16] to be an element in both proving that a defect exists and then in the consumer expectation.

[16:23] Actually, actually, I would say it's an element of defect, it's an element of the consumer

[16:28] expectation, and it's even an element of the risk benefit test.

[16:31] Already then then.

[16:32] It takes.

[16:32] Please separate it.

[16:33] It affects, it affects all of these.

[16:35] Let's look at the issue of proof of a defect.

[16:38] It's the definition there, it's a condition not contemplated by the ordinary user, which will

[16:44] make it unreasonably dangerous or unsafe for normal use, which is where the confusion comes

[16:48] in because you start talking about unreasonably dangerous.

[16:50] And in many cases, it's not a big deal that we don't talk about it.

[16:56] For example, in Galonka, it was a park to reverse case.

[16:59] It's not that difficult in a case like that to say, if the vehicle suddenly reversed

[17:03] when it wasn't supposed to, there's a defect.

[17:05] So now let's go to the next step.

[17:07] Very different here.

[17:09] Why do I say that?

[17:10] Because in this case, there is no evidence of a characteristic that made this vehicle unsafe.

[17:16] It wasn't a problem of, it veered off the road, it wasn't a problem as in some other

[17:20] cases of a propensity to roll or some other problem like that.

[17:25] The fact that the car is required for the driver to steer the vehicle doesn't make it

[17:31] defective.

[17:32] Everybody knows that.

[17:34] The law requires it.

[17:35] The statute is required.

[17:36] We all learn that when we get our driver's license and we go through driver's ed and high

[17:39] school.

[17:40] Everybody knows it.

[17:41] So, that doesn't make it defective.

[17:44] The vehicle complied with standards and I'm not suggesting that compliance with standards

[17:47] is that be all an end all, but it's an important point here because through all of these years,

[17:53] the lane departure warning is not a requirement of the government.

[17:56] They have still not passed any requirement that that happened.

[18:02] So if this vehicle is defective, then every vehicle that doesn't have a lane departure

[18:07] warning or let's go to any other new technology because in these emerging technologies is coming

[18:13] up a lot, every vehicle on the road that doesn't have these technologies would be defective.

[18:17] That clearly can't be the case and in fact the concurring opinion in the quarter of appeals

[18:22] I think is trying to make that point when it says something along the lines of you might get to a point

[18:28] We're having a driver operated vehicle makes it defective in and of itself

[18:31] 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

[18:40] 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

[18:47] A vehicle that otherwise is safe is not defective because there's not some additional safety device.

[18:54] Where do we, you know, it sounds easy on the extreme edges of things, possibly.

[19:01] Like, yes, always. This is the gray area that we're dealing with.

[19:05] So, I think the restatement says that defective condition is one in which makes the product unsafe for normal handling and consumption.

[19:12] And you just said, and you said in your brief, well, you know, we made a car, we designed

[19:18] a car.

[19:19] It does exactly what a car does.

[19:20] It drives on the road and lets people drive and park and stop and all of that kind

[19:24] of thing.

[19:25] But there are also consumer expectations regarding safety.

[19:29] So we, I mean, certainly, we're getting that it's also now required by law.

[19:33] It's an expectation by a consumer that there'll be a seat belt in the car.

[19:38] That doesn't have anything to do with how the car drives.

[19:40] But there's an expectation I think that there will be it will be there to keep you safe if there's a collision

[19:45] Which unfortunately happens all too often. There's probably an expectation that

[19:50] For many most people who don't know the law out there, but there's an expectation whether they're going to be airbags

[19:55] Most likely if it's a newer model of a car in the last 15 20 years whatever

[20:01] So how how does that expectation regarding something that has nothing to do with how the vehicle actually moves?

[20:10] to figure into your definition of defect?

[20:14] Well, I think I would answer that in part by saying,

[20:17] if you look, for example, at the bread-hower case,

[20:19] which happens to be the case on seatbelt,

[20:21] and there there was an extensive discussion about

[20:24] what does it mean, and now I'm jumping to consumer expectation test,

[20:28] but I think it all fits together.

[20:29] What is that expectation that we're looking at?

[20:32] The ordinary consumer expectation is that you must drive your car.

[20:36] You must pay attention. The manual tells you

[20:39] The rules of the road, everything tells you you must operate your vehicle safely on the road.

[20:45] You can't just say somebody else is going to take care of it because there's a lane departure warning in there.

[20:50] And I think that's a little bit different than some of the other references you had to crashworth in this case,

[20:56] where you're talking about in the event of the collision being able to protect the occupant in that event.

[21:02] This is a straightforward case of what are you expecting when you get in your car and you drive your vehicle?

[21:09] 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.

[21:19] 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.

[21:26] And I know that you, of course, of course want to talk about the the forerunner and this case and resolving this case.

[21:32] 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.

[21:44] 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?

[21:51] There's a certain level of legitimate consumer expectation about safety. Would you agree with that? I would agree with that.

[21:58] So generally, so even if your position is, but nobody knows about lane departure warning

[22:05] unless they've read this, this thick or not, many people have an expectation.

[22:08] And particularly if their car is not the A level trim or whatever that they've paid for,

[22:14] how do we give guidance to these future cases about what to look for for legitimate consumer

[22:22] or expectations. It's just things that are required by law to have or what is, how do we draw

[22:28] that line in that very gray area?

[22:30] I think that what you have to do is you have to look at the particular product and you have

[22:33] to say as designed was there something defective about it. And if you look at different cases,

[22:39] you can make that separation. I think you can do it on, for example, the park to reverse. You can

[22:45] and say, as designed, I don't expect it to go from park to reverse.

[22:50] You can do it on some other cases where the Gamolka, which is a case that the plaintiffs

[22:56] rely upon, it had to do with the fumes that were getting into a steam cleaner, and they

[23:01] were saying, you know, to use it properly, those fumes are going in there and they're lighting

[23:06] a fire.

[23:07] That's something that as it sits there, it is defective.

[23:10] It's not safe for normal use.

[23:12] This is not that type of case, and the line drawing there when you look at the cases are

[23:18] those cases where in its normal use, it is operating safely, and there's no problem

[23:24] with it.

[23:25] I'll compare that, for example, going all the way back to the Estabric case, which is

[23:29] a helmet case.

[23:31] And in that case, they found there's a jury issue on defect because a helmet is designed

[23:35] to protect your head in a collision during a football game, and they found that it violated

[23:40] some anti-standards that related to how that vehicle should perform or how that product

[23:46] should perform.

[23:47] And therefore, in that instance, you've got a characteristic of the product that is

[23:52] making it unsafe.

[23:54] You don't have that characteristic here.

[23:56] There's nothing about the vehicle itself that makes it unreasonably dangerous.

[24:01] And that's what, while obviously this court is looking to its own guidance, when you go

[24:06] outside of the state, there's been a few cases on it.

[24:09] the Borkoski case is one that I would urge the court to look at because the court was

[24:13] faced with the exact same questions and asked the same questions about how do we draw

[24:17] the line where do we figure it out and the answer is basically you have to look at whether

[24:21] as it's designed is there something wrong with it and there's nothing wrong with a vehicle

[24:26] that's safe as designed well okay then go back then kind of returning to what just the

[24:31] Bullock was asking, and I initially asked about, then, so you've got, so you pass that

[24:37] consumer expectation and maybe there's an expectation and it is a defect, not in this

[24:42] case, but in whatever case, there is a defect. So you go on to examine, is it unreasonably

[24:47] dangerous? And you employ the consumer expectation test to the extent it can be used. How is

[24:57] If that tests different than finding if there's a defect.

[25:01] I think in certain instances they are similar.

[25:06] I do understand that.

[25:07] There's some confusion there.

[25:09] But again, the first thing you look at is was it safe as designed?

[25:13] And if I draw the distinction, let's look at the vineyard case, which was the subject

[25:18] of much discussion in the Appellate Court and frankly, I think tells us a lot.

[25:23] But in Vineyard, they admitted that the lack of rollover protection was a defect.

[25:29] And then they went to the next step and said, but did it make it unreasonably dangerous?

[25:33] And the court said, no, because it's known that if the vehicle doesn't have this rollover

[25:39] protection, they use open and obvious, but they're really talking consumer expectation.

[25:43] The ordinary consumer has an expectation there.

[25:46] And so, you can separate these concepts and back in the early cases, that's exactly what the courts were doing with it.

[25:56] 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.

[26:06] 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.

[26:13] So that can't be the test. We have to look for something more.

[26:17] And in this area and I do understand the law has to apply across the board, but I think

[26:23] the court has already drawn those lines and explained that you have to show a defect

[26:28] in the first instance, and the cases where there was something wrong with it, from the

[26:35] very beginning, again, the part to reverse, I think is one of the best examples of it.

[26:39] There's a defect.

[26:40] Other cases, there's the escalator case, again, I think that's an extra-brook.

[26:45] And escalator case, they said there was nothing wrong with it when it was designed.

[26:49] There's just simply nothing wrong.

[26:51] Plain if cannot point you to something that was wrong with this vehicle, all they say is

[26:57] you could make it better.

[26:59] And in this, in these times where these emerging technologies are out there, that's always

[27:03] going to be the case.

[27:05] There's always going to be something new better coming down the line.

[27:07] And if the law is every time there is something new, you need to put it on your vehicle.

[27:14] Then manufacturers are insurers, it creates problems for anyone in the industry to try to make changes and design and go forward.

[27:23] That's why the concept of phasing is so important because manufacturers need to be able to do that as they're moving forward.

[27:30] Council, does it make a difference that the LDW could have been installed in this

[27:36] Ford Runner? It was in a previous or maybe a subsequent addition of this vehicle. Does

[27:44] that make a difference in our calculus?

[27:45] It does it make a difference because that would simply be saying that because there's

[27:49] some alternative design, you have an obligation to include that design. It sounds better from

[27:55] the plaintiffs' perspective, of course, to say, well, you did it in some other model,

[27:59] or you should have done it in here, here by the way,

[28:01] it wasn't on a trim package.

[28:02] It was the entire, the forerunner lawn did not have it

[28:05] on any of their vehicles in any trim package.

[28:09] But it sounds good, but it doesn't change the legal analysis

[28:12] because the legal analysis is was there anything

[28:16] about this that was defective?

[28:18] And if all you're saying is you should have made it safer.

[28:22] The law, the Rogers case, there's many, many cases

[28:25] is in this jurisdiction that have said a few of them,

[28:29] Rogers, the Rashkee case, the Wilson case,

[28:32] the Morrow case going all the way back,

[28:34] that said you don't have a duty

[28:36] to make the safest possible product,

[28:38] but we look at is the product as designed.

[28:41] Is this a

[28:44] main day defect?

[28:46] And then under the risk-benefit analysis,

[28:48] at least a couple of factors seem to relate

[28:51] to the issue of safer alternatives

[28:53] and feasibility and cost-effectiveness?

[28:55] Well, yes, what I would say is first threshold question is their defect.

[29:00] If the court finds there's no defect, there's nothing else to do.

[29:03] At that point, the case has been decided.

[29:05] But if the court finds there's a defect, then you go to the next set of questions.

[29:10] We all understand there's two tests of unreasonably dangerous, consumer expectation, risk benefit.

[29:16] I think that the breath hour case controls on consumer expectation.

[29:20] I think it's very similar in terms of everybody understood what a seat belt is designed to do.

[29:26] The language of the opinion talks specifically about performance.

[29:30] It's about how did you expect it to perform?

[29:33] The ordinary consumer with a seat belt expects the belt to protect them.

[29:37] The ordinary consumer with regard to a vehicle expects they need to operate their vehicle.

[29:42] 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.

[29:49] because the court said we're going to look at the LDW design and see the risks and benefits.

[29:58] The law is crystal clear.

[29:59] In fact, the opinion...

[30:10] 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.

[30:29] the driver, the system is not one that's going to eliminate, we know we can't eliminate

[30:34] the danger here because drivers are always going to do what drivers are going to do.

[30:38] Counsel, can I ask you a question there?

[30:39] Sure.

[30:40] If we're looking at then whether it was in reasonably dangerous or whether the manufacturer

[30:43] should have continued to produce and distribute the product, is it at that point though that

[30:48] we should take into account the number of accidents that occur, the nature of those accidents,

[30:54] in the availability for the technology as the manufacturer has otherwise deployed it on similar products.

[31:01] I think that when you look at on the risk benefit analysis, you do engage in some of that.

[31:06] But the important point there is the measure is not whether there's a risk.

[31:09] There's a risk in everything, every product out there.

[31:12] So it's not a question of let's see if there's a risk and if there's a lot of accidents,

[31:16] which I'm sure you're going to hear about all of the accidents, that that means automatically

[31:20] there's something that you need to do about it.

[31:21] It's part of the equation that you look at, but one of the most important parts that

[31:25] you look at is the consumer's expectations and what the obviousness of the danger and

[31:30] you go through all those factors.

[31:32] Can you eliminate the risk?

[31:33] No, you can't.

[31:35] With that I, if I may, I'd like to reserve the remaining time.

[31:39] Thank you.

[31:40] Hey, Mr. Guelphi.

[31:45] Thank you very much.

[31:47] We're in Guelphi on behalf of the plaintiff, Appellant, with me is Lynn Chumway.

[31:51] We're both 1987.

[31:52] 37-year-of-a-law grads who are happy to be back here in this room where we spend a lot of time.

[31:56] For girls.

[31:57] Yeah.

[31:58] Okay.

[31:59] As you undergrads, that count.

[32:01] So why?

[32:04] I say this with all due respect to the court.

[32:07] That is not Arizona law.

[32:10] What you just heard is not Arizona law.

[32:12] It is not a two-part test.

[32:14] It is very clearly defined in the dark case by this court as the following,

[32:19] applying the hindsight test, which I think answers your question just as Timmer about

[32:23] what are some of the differences, but applying the hindsight test, the question singular,

[32:29] is whether given the risk of benefit factors outlined in burns and any other factors which

[32:34] may be applicable, it was unreasonable for the manufacturer with such knowledge to put the

[32:40] product on the market. If the single question is answered in the affirmative, the product

[32:45] is not only defective, but it is also unreasonably dangerous.

[32:48] It is a one-part test.

[32:50] It is a uniform, fused, unified, holistic test.

[32:56] The burp.

[32:58] You're right.

[32:59] What you quoted, obviously, it says that.

[33:01] But it also said earlier on, it's a defective separate.

[33:05] And Reddauer picked up on that and said defective second

[33:07] separate.

[33:09] Candidly, I find dark, inconsistent.

[33:12] Nobody here was on the court.

[33:13] Then I can say that.

[33:14] But it was inconsistent in that, and it's caused some confusion that has filtered down.

[33:19] So rather than addressing at least some of that confusion, how do you lead us out of

[33:25] that confusion?

[33:26] What should it be?

[33:28] And that's what I was getting at, too, of how are we going to have two separate things, separate

[33:32] tests?

[33:33] Are we going to have a single test?

[33:35] How should it proceed?

[33:37] Two things.

[33:38] If you look at the cases, there's about 15 cases that everybody has cited here.

[33:42] They are either.

[33:43] There's one that's pre-stapely where we adopted 402A in the risk-benefit factors.

[33:49] There's three or four others that are applying negligence principles or breach of implied

[33:53] warranty principles.

[33:54] That's the language they use.

[33:56] The product wasn't defective, it was made for this purpose and it served that purpose.

[34:01] That's not Frick Product Liability Design Defect Language.

[34:05] She cites Vineyard.

[34:06] Vineyard is a negligence case and a race-ips-a-case, not a whiff of Frick Product Liability

[34:12] in it. So here's the way I resolve it. If you, and I have, I've read every one of those

[34:17] cases, dark reading hour, you go through the list, him and his, look at what the court

[34:21] actually did. They used compound language, which follow 2A does not do. They use compound

[34:28] language defective and unreasonably dangerous, which is not the language for 2A. Language

[34:33] are for 2A is defective condition unreasonably dangerous to use. That's a one part test.

[34:39] But look at what courts did.

[34:41] They applied the risk benefit factors.

[34:44] And if the risk benefit factors, we've said that the risks outweigh the benefits, the

[34:50] product was defective.

[34:51] Here's language that they use.

[34:52] Defectiveness has proven through showing unreasonable, dangerous, not independently.

[34:57] The defect is the unreasonable risk.

[35:01] So let's do this.

[35:02] And here's, I think, some analysis that will help us through this ticket.

[35:06] Turner.

[35:06] That's the ice machine, can you remember this poor kid?

[35:09] I think it's his first day on a job.

[35:11] Ice machine, it's going to cut the ice in a little pieces, and he reaches his hand in

[35:15] there because he has to make sure that the pieces that aren't cut properly get rerun

[35:19] through the machine, he doesn't know if there's a gate closes, wax off three fingers.

[35:24] Let's apply Toyota's analysis.

[35:27] That machine did exactly what it was designed to do.

[35:30] It did not take into as an aspect of its design the idea that somebody is going to reach in

[35:36] there. So it didn't include a guard. But how did Turner rule? And Turner was cited favorably

[35:43] by dark. The Turner court went through the risk benefits analysis, based on the risks

[35:49] it then backed in and set the product is therefore defective. Turner uses language to effect

[35:56] and unreasonable danger. So does written hour so do some of the others. Even Russell uses some

[36:02] of that language, right? But the end is always followed by an analysis that's a one-part

[36:08] analysis. Let's apply these risk-benefit factors and see if they weigh in favor of defect

[36:14] to product is defective. It is uniform.

[36:16] Well, let me ask you this. I'm thinking of a lot of parts of this. I can understand conceptually

[36:21] that you can have a defect that's not dangerous or not unresomely dangerous. It's just, you

[36:27] You know, something doesn't work as it had a defective design, but it's not dangerous.

[36:34] Can you have something that is unreasonably dangerous under our law on this that is not

[36:41] a defect?

[36:42] No.

[36:43] And here's why.

[36:43] And can you get an answer?

[36:44] It burns this kind of factors.

[36:46] Factors into things like what one of the things sort of has are these products, knives and

[36:51] the like.

[36:52] So you've got two or three of the burns factors that say, what is this?

[36:57] a piece of equipment intended to do.

[36:58] Can we do it with any other piece of equipment?

[37:01] You can't cut lettuce for that, a knife kind of thing.

[37:03] So therefore, we accept those risks,

[37:07] and those factors are going to factor in the concern

[37:10] that you have, knives are dangerous,

[37:12] but they're not defective,

[37:13] and there are a lot of things like that.

[37:15] And if you look at the risk benefits factors,

[37:17] which are designed to protect defendants,

[37:19] you know, manufacturers, by the way,

[37:21] from lawsuits where they're really nothing they could do.

[37:24] Right, I put up this product,

[37:26] there's nothing I can do to prevent some person from not very bright doing something stupid with it,

[37:30] that's one thing, but where there is something that they can do, they must. And now let's talk

[37:37] specifically about this case. It is the most compelling case I've ever had as a plaintiff's attorney.

[37:44] And here's why. You talk about statistics just as Montgomery.

[37:49] Lane Department, unintended Lane Departures are horrific. Represent about 20, we cited all this

[37:54] and their factual support, 20% of all accident,

[37:57] but the majority of deaths,

[37:58] because all those physical forces come together, right?

[38:01] When cars collide, that sort of thing.

[38:05] Studies from his far back is 05 determined

[38:09] that 85% of those could be prevented

[38:12] by lane departure warning systems.

[38:14] The Insurance Institute of America has done those studies.

[38:18] Academics have done those studies,

[38:20] but more importantly, this defendant,

[38:24] knew before 2002 because it produced cars in 2002. So sometime in the design phase,

[38:31] did it want to land a departure warning on its vehicles? Why? Very candidly,

[38:36] in their 36th position, Toyota said because we knew of that risk and we had a system

[38:41] that would prevent or mitigate that risk. We began installing it in 2002.

[38:46] We continue to install it every year since, and we made it standard on every vehicle, except this one.

[38:55] By, I believe 2017, but it might have been 2018, the year before this vehicle was built.

[39:00] Council, you say in your briefs that in finding a duty of care toward third parties and you cite a

[39:08] California case, the Ortiz case, the court noted that foreseeability is the most important factor in

[39:13] determining whether such a duty exists.

[39:16] isn't the law in Arizona exactly the opposite that we don't look at

[39:21] foreseeability when determining duty of care? I don't believe that's right,

[39:25] Your Honor. If you look at State Farm, State Farm talks about the fact that the

[39:31] burden, if we fric liability places the burden on the manufacturer, to do the right

[39:37] thing because it has the knowledge, it has the information that tells it what's

[39:41] foreseeably likely to happen. Just as Toyota, 17 years before this vehicle was

[39:47] designed, knew of these risks. Forciability actually is a key element that

[39:51] runs through the strict liability, statute and Arizona, foreseeable misuse, and

[39:57] it runs through all of the case law. If a manufacturer can't foresee it, then I

[40:03] don't think the Burns factors are going to say they're not liable. If it's not a

[40:07] foreseeable, just as the manufacturer can't do anything about it, the burns factors are

[40:13] going to say they're not liable. Here, a foreseeable risk, one of the biggest risks in America.

[40:19] It kills six million accidents a year, 23% of them caused by land departures, a huge 328,000

[40:26] of them by drowsy driving, 6,000 deaths. They knew they had a system that would help drowsy drivers

[40:33] in this situation for 17 years.

[40:35] What is the limiting principle here?

[40:38] The limiting principle from, you know,

[40:40] as Opposing Council said,

[40:42] and as the concurrent said in the FOA appeals,

[40:44] there's something new all of the time.

[40:47] I could tell you, for example,

[40:48] we have known for years,

[40:50] and we put on probationers for DUI sometimes,

[40:54] that you have to blow into a breathalyzer type thing

[40:58] to show that you're not impaired before you can start your car.

[41:00] 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.

[41:10] Why, you know, what is the limiting principle that it's going to prevent?

[41:14] 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.

[41:20] Well, in your example, you're on it with all due respect. We have the Constitution.

[41:24] 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.

[41:28] But it's really not a privilege and think about put it in the context of the Burns factors people have to drive

[41:33] 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

[41:40] 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

[41:49] Toyota didn't bother to address any of these issues, but I would say that one might lean in their favor

[41:55] It's the only one

[41:56] the only one. So let's take again back to Turner specific facts on which I

[42:02] think this court would say that was a- I'm sorry council I don't I don't

[42:05] think I understood your answer to the Chief Justice's question. So what is

[42:09] the limiting principle? Why would not why would we not then want all vehicles to

[42:15] have some way to ensure that people are not intoxicated when they're driving?

[42:20] I, I, she may have suggested a line of cases that make sense.

[42:25] I don't, for plaintiffs, I don't know, but the burns risk benefit factors take all

[42:30] of that into consideration.

[42:31] The fact that people need to drive is a huge, overwhelming factor in favor of saying

[42:37] we don't want to restrict driving too much or else people can't work.

[42:40] They can't take care of their families, that sort of thing.

[42:43] And it's foreseeable that it's foreseeable that a number of people, whether, whether they've

[42:48] been arrested and convicted of DUI or not, it's foreseeable that today, every day, people

[42:55] will get in the behind the wheel under the influence of alcohol.

[43:00] So then why would we not just make that a requirement?

[43:03] It's because there's a balancing and the burns factors, if you'll get them balanced out

[43:07] and so with vehicles, incredibly dangerous because six million accidents per year, but they

[43:12] are overwhelmingly valuable to society.

[43:15] We recognize that.

[43:15] building the bridge, they factor in.

[43:17] Let me interrupt you there for a moment.

[43:19] We've been talking a bit about the risk benefit test.

[43:23] What about the consumer expectation test here?

[43:25] It was a point that opposing council made very strongly

[43:29] that here, the vehicle performed as it was expected

[43:33] to perform, and it's in the briefing

[43:35] would necessarily laid out a argument,

[43:39] but for the fact of human error.

[43:42] Otherwise, the vehicle performed as it was supposed,

[43:44] as a consumer would expect. If you're alert, if you're driving, you can stay in your lane.

[43:49] If you're not alert, the vehicle can go off the road. So why wouldn't this consumer expectation

[43:56] test apply? Because by statute and by this court's prior rulings foreseeable misuse is something

[44:03] that manufacturers must protect against if they can reasonably do so under the factors. The statute

[44:08] defines it and says foreseeable misuse is something that manufacturers need to take into account.

[44:13] Now we know people drive for out of the ice, again, all they respect, everybody in this

[44:18] room has done this, to produce a video, a marketing video showing somebody going like

[44:24] this, showing the warning, sounding and showing them steering back into the lane, exactly

[44:28] our facts.

[44:29] So let me ask this question and I don't mean to be disingenuous in saying this either, but

[44:34] we know people will be in attendance too when they look at their phones, right?

[44:36] So why not line the inside of vehicles with technology that would interfere with the signals

[44:41] that the phone won't work?

[44:42] We have it there is there are is technology that looks back at the driver a camera and if they're not alert

[44:48] 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

[44:53] 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

[45:00] 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.

[45:29] Do we really want to live in a world where manufacturers can say, I want to put an

[45:33] infotainment system in a vehicle at the expense of a safety system that we know.

[45:39] We'll say thousands of lives, thousands of injuries, however you want to quantify that massive risk.

[45:46] No, that's not Arizona's law. It's not Arizona's public policy. You have to take

[45:51] foreseeable misuse into consideration.

[45:53] 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.

[46:02] But I'm not deeply separately, but I think you would agree with me, wouldn't you, that this was a 1969 rambler.

[46:11] Probably not a defective design because it didn't exist back at the time, correct?

[46:15] Absolutely.

[46:16] But if you went through the risk benefit, wouldn't you come through well as free?

[46:19] is still unreasonably dangerous.

[46:20] Yes.

[46:21] It is.

[46:22] But there's no alternative design.

[46:26] There's no other way to modify it.

[46:27] There's nothing you can do about it here.

[46:30] Toad admits the cost was inconsequential.

[46:32] In other words, you have a vehicle.

[46:34] That it costs you nothing to install a safety system

[46:37] that will prevent massive injuries and death

[46:40] and you choose not to do that.

[46:42] Arizona does not let that choice be the choice.

[46:47] In every case, again, I would ask you, look at him and look at Dart.

[46:52] They may use a bifurcated language, never has a court said and really applied it.

[46:58] Always, they apply the risk-benefit factors and they say the unreasonable danger defines

[47:04] whether there's a defect in the vehicle.

[47:08] Back to consumer affections in their brief.

[47:10] Before we're getting there, collapsing the defect prong.

[47:15] It may, I think, and probably all of those cases, there was a defect, and it was fairly acknowledged.

[47:24] Here, I don't see a defect unless you go to the second part of the analysis.

[47:31] There was nothing wrong with this card. It didn't have exploding tires.

[47:36] What was wrong with it was the driver.

[47:39] The driver violated the law and therefore operated the vehicle in an unsafe fashion.

[47:49] If I collapse those two things and say anything that causes an accident in an unreasonable,

[48:00] anything that is unreasonably dangerous is necessarily defective,

[48:06] It seems to me that basically you were asserting a rule that this state has not adopted.

[48:14] We typically do not follow California tour it well.

[48:17] By the way, California is a duty case, but let me be clear about something.

[48:21] You're worried about the extremes.

[48:22] The extremes don't happen.

[48:25] They don't, because burns protects against it.

[48:27] It's a manufacturer design test to make sure that frivolous lawsuits don't get brought because

[48:33] you have to plug all that in to these risk factors. And when you do that, it's not unreasonable.

[48:39] Again, back to Turner, the kid that stuck his hand in there clearly and unintended use,

[48:44] the machine was perfect. It did exactly what it was supposed to do when breaking up and chopping

[48:48] up ice, but it chopped off some fingers because there was no guard there. A minor risk compared to

[48:54] what we're dealing with here. But what we're dealing with here is, for our case, you know,

[49:01] So dealing with the hand and the ice machine, here with the whole thing technology, there

[49:12] is constantly new safety features that are coming up with the evolving technology.

[49:17] What do we make of the fact that lane departure warnings are not required under federal

[49:23] law?

[49:23] Like backup cameras are recently required and other technological features.

[49:29] So what do you make of?

[49:30] The safety act of 1966 doesn't, the requirements of federal law are half the equation, federal

[49:39] state law and state juries are the other half of the safety system in this country,

[49:44] and we dealt with that in Varelo era.

[49:46] We dealt with the idea of preemption and we dealt with the idea of these emerging technologies,

[49:51] burn steels with it.

[49:52] You know how it deals with it?

[49:53] Is there a reasonable alternative design?

[49:55] And the reason why this case is so compelling, it's designed this manufacturer has had for

[50:02] 17 years before this vehicle was designed.

[50:08] So the restatement third, which I know we haven't adopted yet, it's purely a reasonable

[50:13] alternative design test, which is viewed as far more friendly to defend them.

[50:18] Here, so even under a less friendly analysis, the restatement third says, is can the plan

[50:24] sure a reasonable alternative design. Yeah, we have one Toyota admits it works. It was really

[50:29] effective. That's why they installed it for 17 years. They just chose not to do it on this

[50:33] one vehicle out of their whole fleet. That is design defect. They can't make those choices.

[50:39] And under your analysis, when when does liability attach for failure to include

[50:44] LDW and in the four-runner model here? At the time it was designed and built.

[50:48] So when it left Toyota's hands, based on Toyota's knowledge of the foreseeable risk,

[50:55] it had a defect because they had a solution that prevents all these injuries.

[50:59] They didn't implement it, and it cost them nothing to do it.

[51:02] So liability would attach to a four-runner win in 2004, 2003, how far back would liability?

[51:10] Again, apply the risk benefit test.

[51:11] And I think Toyota would say to that, we couldn't wick it all the way through our system in that

[51:16] amount of time.

[51:17] But they could hear and really quit consumer expectations then diagram consumer expectations risk benefit

[51:24] Toyota wants to conflate those and say that you if you don't have consumer expectations

[51:29] You can't have risk benefit. That's not errors on the law and Toyota

[51:34] Deliberally sold itself as the safety company put out the videos saying our cars will help you get back into your lane and

[51:40] 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.

[51:50] Oh, one. And they didn't do it. Consumers should have expected that. Thank you very much. I appreciate it.

[51:56] Thank you, Mr. Calty. Hey, Lewis, I've got a lot in a minute and 49 seconds, so try not to talk too quickly.

[52:05] First of all, I think the courts recognized that there are a series of cases that have said

[52:13] you have to prove a defect first.

[52:15] But I want to talk about the Turner case because I think what Council said is a misreading

[52:19] of it.

[52:19] The court in Turner said we acknowledge they're talking about the defect.

[52:25] We find the parties tacitly, tacitly recognized the lack of a safety guard is a defect and

[52:31] past to the determination of whether that defect is unreasonably dangerous.

[52:35] Right there the case the plaintiff wants to rely on says first we do defect then we go

[52:40] to unreasonably dangerous.

[52:41] Why do we do that?

[52:42] Because there was a question about can you have something unreasonably dangerous without

[52:46] it being defective?

[52:47] Whiskey for example and I think that might be the example in the in the restatement.

[52:52] Whiskey somebody might say is unreasonably dangerous if somebody gets drunk and does something

[52:56] bad.

[52:56] Does that make it defective?

[52:58] No.

[52:58] But I think the most important point is this question about the limiting principle, and

[53:03] what would that limiting principle be?

[53:06] Planets council doesn't like the example of a breathalyzer.

[53:09] What about a speed limiter?

[53:10] Why don't we have speed limiters on all vehicles?

[53:12] Because a speed limiter would certainly prevent somebody from speeding, and the statistics

[53:16] are going to show you how dangerous that is.

[53:20] So really what you have here is a slippery slope that plaintiff wants to go down that says,

[53:24] Because every time I can find some new technology, I'm going to say that that makes it defective.

[53:29] How do we resolve that?

[53:30] The limiting principle is first there has to be a defect.

[53:33] And once you demonstrate, and a defect is defined, certainly in 402A, it's defined and I don't

[53:39] have time to read it now.

[53:40] The dark case uses comment G, the right narrow case uses comment H to define what the defect

[53:45] is.

[53:46] That's the limiting principle that addresses and resolves the question about when is it a

[53:51] yes answer and when is it a no answer.

[53:53] Thank you very much. We would ask that the court reverse vacate the Court of Appeals decision

[53:58] and reinstate the entry of summary judgment. Thank you.

[54:02] Thank you, Council. All right. I think both sides for excellent argument and briefing on

[54:08] this. It's interesting and difficult issues and one that we realize the ramifications for.

[54:15] We will discuss this and take it under advisement issue and opinion into course.

[54:19] Now, from here, what we're scheduled to do is answer questions from the law students

[54:24] for the next 20 minutes.

[54:26] Before we do that, what I want to do is thank the people that are responsible for putting

[54:31] this together.

[54:32] First and foremost, we're not putting it together, but being here is counsel that are willing

[54:37] to come here today.

[54:38] It's very important to have the students be able to see arguments and advocacy in real life

[54:43] and see the stakes, and you both did an excellent job

[54:48] and demonstrate that for them,

[54:49] and we're very appreciative for you coming down here.

[54:52] Also for people that put it together,

[54:55] the first argument, I think I did leave out,

[54:58] so I'll start with them, the clerk's office,

[55:00] who actually are here officially to make this a go.

[55:04] We appreciate, sorry, I left you out,

[55:06] so I'll say it twice, the clerk's office.

[55:09] And you need to tell your friends who are here,

[55:11] the first argument.

[55:12] So we appreciate the clerks, the communication team, the IT team, the security folks, and

[55:20] the folks that got us down here.

[55:21] It takes a lot to come down here, but it's very worthwhile to us to come to U of A every

[55:26] year and see the students and have the students see us.

[55:30] So you're always welcome, by the way, to come to Phoenix or even watch us online, as you

[55:34] can see.

[55:35] You can watch us live stream and even if you have a class, you can watch us after because

[55:39] It's there for your viewing pleasure at all days of the week.

[55:46] So with that, what we're going to do is go into a question and answer, you don't ask

[55:51] questions about this case or anything having to do with it because that's inappropriate.

[55:58] Or the first case, if you happen to be here for that, we don't discuss the cases, but we're

[56:02] happy to answer other questions.

[56:04] council you can leave or stay at your pleasure it is really up to you so don't

[56:10] feel bad about picking up and leaving so I understand you're busy but please

[56:14] we're happy to have you here as well to even answer questions if they ask you

[56:19] that so with that I think we have do we have microphones around or do we yes we

[56:24] do oh there is okay so questions and I warn you I had a time that if you don't

[56:32] have questions. We just start talking. So,

[56:38] yes, wave back there or call a block or touch the other

[56:42] thing. Who I also forgot to think.

[56:47] Thank you. I'm a Zach Kaufman E3L here. I just had a question,

[56:52] more meant for potential future of power litigation and court of appeals on front of you. And because

[56:59] I have been a work for an employer that does worry about setting a case and then it comes before you

[57:04] and now the, like, how the law would be applied to be different now. And so I was just curious

[57:09] was any guidance that would be appropriate for you to share on citing cases knowing that they're

[57:15] going to be challenged and be heard in a higher court soon. You mean cases that are kind of in process

[57:21] that might still be heard by us, but they've been recently decided to say like I cited the appellate

[57:26] version of the case that's knowing that you're going to hear it and probably change what the

[57:31] hoarding is, in that case, because it's going to affect

[57:33] our litigation, my employer.

[57:36] Yeah.

[57:37] OK, so you're the shill for your employer here asking

[57:39] this question.

[57:41] I got it.

[57:43] Great.

[57:44] The nice thing about being the Chief Justice,

[57:45] this is a lot of nice things about being the Chief Justice

[57:47] among them is that I get to delegate questions.

[57:51] And so I'm going to do that and also cleverly introduce each

[57:55] member of the court as I do so.

[57:57] So I'm going to turn this over to Vice Chief Justice John

[58:00] on Lopez to answer.

[58:05] All right, well, if you believe that an appellate case that you're relying upon to prevail

[58:13] in the case is on review, and you are leery about its prospects of survival, I would highly

[58:21] recommend that you find other authority as fallback, but beyond that, make sure that the citation

[58:29] to the case indicates to the court that is considering your argument that it is on review.

[58:37] I think as a matter of candor to the court, I think you'd want to signal that.

[58:41] But I think that the dilemma that your employer faces is self-evident as is my advice probably.

[58:51] So good luck.

[58:55] Well done, well done, Vice Chief Justice.

[58:57] And I should let you know that Arizona is one of the few states.

[59:00] I think the only one I know of that has a vice chief justice in our constitution.

[59:04] So both of our, my term is for five years, his term is for five years, and then unless

[59:09] he messes it up, we'll take a vote to see who will be the next chief justice, and it will

[59:14] likely be him unless you do something wrong.

[59:19] So.

[59:21] And he has been on the court since 2017, correct?

[59:25] Great.

[59:25] Another question right there.

[59:41] Oh, great question.

[59:42] Well, we had a fun weekend.

[59:43] Let me put it that way.

[59:45] So I will turn this over to Justice Clint Bullock,

[59:48] who has been on the, oh, I forgot to say.

[59:51] And Vice Chief Justice, it went to ASU.

[59:53] So I'm going to do that.

[59:55] I went to ASU as well.

[59:56] So it's two ASUs.

[59:57] And one University of California, Davis.

[1:00:00] And he's been on the court since 2016, so you could please answer that. Yeah, sometimes, you know, five or ten minutes.

[1:00:10] 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,

[1:00:30] one day we can, but it really, really varies according to the case.

[1:00:38] You know, for some of us, some subject matters are entirely new.

[1:00:45] I had to do, for example, we had a water law case.

[1:00:48] I had to do months of preparation just, you know, in terms of doing a primer on water law

[1:00:55] 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,

[1:01:08] 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.

[1:01:18] And there's a vast continuum between those two things.

[1:01:22] So, we first take a look at the cases when they are presented to us on petitions for review.

[1:01:31] And at that point, we have a summary and a recommendation from our staff attorneys

[1:01:38] and they are subject matter experts.

[1:01:42] I encourage you, a lot of people don't know the staff attorney's office even exists.

[1:01:47] it is a great internship opportunity.

[1:01:52] It's basically the same kind of work you do as a lock clerk.

[1:01:56] And my lock clerk Sam worked for the staff attorney

[1:02:00] before he started clerking for me.

[1:02:05] And so we've already looked at the case.

[1:02:08] And my numbers are probably way off,

[1:02:11] but we get about 1,200 or so petitions for review

[1:02:14] and grant review in about 50 cases.

[1:02:17] but we've looked at all of them. So we've taken a first cut, then we have a conference to review

[1:02:26] those petitions. And so we've looked at it again. And then finally, after all of the briefing,

[1:02:36] we get briefs from both sides. We often get amicus briefs as well. And our clerks then present

[1:02:45] memo's summarizing the law, making a recommendation. So even the easiest case takes many, many hours to

[1:02:56] prepare in. And sometimes I usually try to leave for two cases a solid seven-day week to prepare

[1:03:07] 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.

[1:03:20] 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.

[1:03:29] And Brad, you can go through all of these cases, he's written it, you're probably going

[1:03:33] to find a water analogy there, right?

[1:03:35] And so, that is true.

[1:03:38] The question over here, I've been in, yes.

[1:03:41] Yeah,

[1:03:50] years.

[1:03:52] There's been a lot of

[1:03:57] obvious report down, what is your opinion?

[1:03:59] I mean, the question is, what is the view on nation-wide justice in junctions?

[1:04:03] In just, oh, got it.

[1:04:04] In junctions.

[1:04:05] In junctions, that's.

[1:04:06] You don't like nation-wide justice.

[1:04:07] That's very different.

[1:04:07] justice.

[1:04:11] I was going to say I'm for justice nationwide, that's an easier one, but okay, all right,

[1:04:16] then let's turn to justice and I have always wondered what justice being's opinion on nationwide

[1:04:31] injunctions. What? So this is a timely question. So Justice Bean was appointed in 2019 and

[1:04:38] is a graduate of University of Arizona's law school. Justice Bean.

[1:04:45] Now the expectations are stories.

[1:04:52] Very good question.

[1:04:56] And I spent a lot of time in

[1:04:58] And Trump versus Kasa, but that was the case, is that the case?

[1:05:05] And both sides had interesting takes on the issue.

[1:05:09] I mean, I don't know if I feel comfortable like opining on this though.

[1:05:15] That's not going to come before us, no?

[1:05:17] Well, I mean, we said, well, I won't go there.

[1:05:20] We said something else wouldn't come before, isn't it, it did.

[1:05:28] Yeah, you know, I'm going to take a pass on that and I took a pass on asking answering

[1:05:32] questions in this hall before as a student so I feel I can do, I think it's comfortable,

[1:05:38] I feel comfortable I have precedent in doing it here so I just don't feel comfortable

[1:05:45] answering that question given that it's such a hot topic issue even though it's not likely

[1:05:50] to come before us, I'd rather not answer.

[1:05:54] And I think we don't want you to feel like we're dodging the question.

[1:05:58] We are, but I don't know if you feel that appropriately dodging the question.

[1:06:03] I think what you've touched on is something that even though that issue won't come before

[1:06:08] us, we are very attuned to the perception of the court in Arizona when we want to nurture,

[1:06:14] which is that we are really not political.

[1:06:17] Now, the question you ask in a certain issue of nationwide injunctions is a political

[1:06:23] hot potato, and even by taking sides or expressing opinion, it's considered taking sides.

[1:06:29] It's amazing.

[1:06:30] It really is.

[1:06:31] You talk about free speech.

[1:06:32] I know you're going to be down here talking about it in a couple of weeks.

[1:06:36] You said, and we, though, are reluctant to publicly speak for uncertain things for that reason.

[1:06:44] 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.

[1:06:57] 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?

[1:07:11] So I think that's what some of the reluctance is on that.

[1:07:14] So, but good question.

[1:07:17] Other question over here.

[1:07:20] Yes.

[1:07:21] A question about the Arizona's legal deserts that have been in the news.

[1:07:30] Recently, the one year criminal law education proposal was struck down.

[1:07:36] I was wondering if you are currently considering expanding these sites.

[1:07:45] Oh, I kind of thought about, you know, the civil system we operate on a tier system in Arizona.

[1:07:56] And I was wondering if there was maybe a way to do that on criminal side too.

[1:08:01] And as far as I'll be so testing for tier one might be the misdemeanor crimes that they are,

[1:08:10] it can be a list for now and maybe two or two to be more serious felonies and your three to be

[1:08:18] up to and including or maybe up to definitely cases like the proposal that there was.

[1:08:26] Yeah, is that something you thought about or I can feel just as being saying please don't

[1:08:30] put this back to me. I can handle that one okay. Or at least I hope I can. Great great question

[1:08:37] And we, about the, I think it was one or two year ability

[1:08:43] to take on criminal cases with a specified specific curricula.

[1:08:51] We're always, this court, what I love about serving with my colleagues,

[1:08:55] we're always open to out-of-the-box ideas.

[1:08:58] That's how we have the LP process and program,

[1:09:02] because we thought outside the box and I don't, I'll speak for myself, I'm not

[1:09:10] adverse to opening up the LP, the issue that I personally have, the possible

[1:09:17] rub that I have is in the criminal area because of the liberty interests that are

[1:09:23] involved. And if you don't go through a three-year, and this again just

[1:09:28] speaking for myself, three-year rigorous program,

[1:09:32] like law school is, and then study for the bar

[1:09:34] and pass the bar and show that basic minimum competency.

[1:09:41] Outside of that, I would have some, again,

[1:09:44] I'd have some reservations about opening up

[1:09:47] something that hasn't gone through that process

[1:09:49] to dealing with cases as serious as criminal cases

[1:09:52] where there is, again, the potential loss of liberty

[1:09:55] and if you're racking it up to being able

[1:09:58] to do death penalty cases possible loss of life.

[1:10:01] So I would personally again be okay with looking to see where you would like to maybe make

[1:10:09] some increments or if somebody wants to make a proposal for increments for LPs to get

[1:10:14] more involved in the criminal process.

[1:10:17] I would definitely welcome that as a 17 year prosecutor and former trial court judge that

[1:10:22] presided over criminal cases.

[1:10:23] I think it could work.

[1:10:25] work, but initially I have a little hesitancy about that just because of the subject matter

[1:10:31] involved.

[1:10:34] Okay.

[1:10:35] Oh.

[1:10:36] I want to touch on the other aspect of the question too about, you know, the way it was

[1:10:42] reported that we were considering authorizing people of one year of law school to then go

[1:10:47] out and handle capital cases.

[1:10:49] That was hyperbole at its finest.

[1:10:54] as Justice Dean mentioned, we're willing to hear all kinds of ideas and the fact that we were

[1:10:59] entertaining an idea didn't mean we were advocating for it. It's simply that we were asking for input

[1:11:03] and we were getting that input and then people decided to run to the extremes and say that we were

[1:11:09] preparing a proposal for a program that would authorize this. Again, speaking for myself, my experience,

[1:11:17] the members of this quarter willing to entertain all kinds of ideas to address issues of concern

[1:11:21] about access to justice, how well our system performs, and just because we've asked for input on

[1:11:26] something, should not be taken to mean that we are preparing a decision to then enact the very idea.

[1:11:33] So I encourage caution.

[1:11:37] And that was Justice Montgomery who's been on the court since 2019 as well. Yeah, I know it to

[1:11:45] issue law school. There you go. Okay.

[1:11:51] Okay, I was going to switch over to this. And by the way,

[1:11:54] I had also forgotten the fact that we have our law clerks. Each of us get two law clerks,

[1:11:59] and we also have externs as well, but we have brought the law clerks down with us, says,

[1:12:02] raise your hand law clerks. Yay. Yay. So, I think most of them, but not all of them,

[1:12:10] graduated this past year, but in some have been out for long, came back. Raise your hand

[1:12:16] if you want to, you were made in law school. Yeah, so quite a few. So, all right, question

[1:12:23] on this side. Yes.

[1:13:27] I understand. I'll just say briefly before I turn it over to I think we're up to Justice

[1:13:32] this king next.

[1:13:35] On those cases, you know, for the most part, we have a role. Our role is

[1:13:39] the judge, and it's not the attorney. It's something, frankly, that the most frustrating

[1:13:44] thing about the impeller judge, I've done it for 25 years now, and the most frustrating

[1:13:48] thing is seeing missed arguments or different arguments, different ways people have decided

[1:13:54] to proceed. But that also takes, it's not a very humble thing to say, because I see this

[1:14:00] little sliver of a case that how they've decided to present it to me. I don't know what's in the

[1:14:06] background of why they wouldn't make the argument which I think they should be making but it's they've

[1:14:10] made the choice and I trust the attorneys to TV's things up. So for the most part the scope of an

[1:14:17] issue we decide is what has been litigated to the trial court and it's made its way up to us. We

[1:14:23] resist the temptation to reach out and decide issues that aren't before us and haven't been briefed

[1:14:29] candidly, on the abortion cases, I recall, that wasn't an issue, the constitutionality.

[1:14:35] The issue was simply, if I recall, at this statute, I don't know, it's amazing how quickly

[1:14:41] you forget.

[1:14:43] But that wasn't the issue, but I think it was the statute that did it repeal the old 18,

[1:14:49] whatever it was, law.

[1:14:50] So really, despite the very hot, you know, greatly interest, obviously, issue, it was actually

[1:14:59] matter of status.

[1:15:01] 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

[1:15:29] deeply about nothing worse than when I was an attorney and a judge starts taking over my case

[1:15:34] and deciding things that are not before that I never chance to weigh in on. And as one lawyer,

[1:15:40] famously said, you know, judge, if you're going to try my case for me, try not to lose it.

[1:15:45] So, Justice King, I hate to usurp you, but this is Justice K. King, who has been on the court since

[1:15:50] 2021. Also proud to University of Arizona law school graduate.

[1:15:56] So why don't you answer?

[1:15:57] Yes, thank you for that question.

[1:15:58] And Chief Justice Timmery did a fantastic job.

[1:16:00] Yes, so the issue that was presented to us was a question

[1:16:04] of statutory interpretation.

[1:16:06] And there's a long convoluted procedural history

[1:16:09] that led up to the case that was before us

[1:16:14] and that was decided, I guess, two Aprils ago.

[1:16:16] But if you look at the end of the opinion,

[1:16:18] we know there were actually, in the original lawsuit,

[1:16:21] there were a variety of different constitutional claims

[1:16:25] that had been originally asserted, and if I recall, we

[1:16:28] remanded to the trial court for further consideration

[1:16:33] of those constitutional issues.

[1:16:36] But with the immediate legislative action that took place

[1:16:40] thereafter, it kind of mooted the case.

[1:16:44] So there were remaining constitutional claims

[1:16:47] that had been asserted, and we said, to the point,

[1:16:50] we don't reach out and grab issues that weren't presented

[1:16:52] to us that those constitutional issues need to be fleshed out in the trial court first

[1:16:57] and then they can come to us.

[1:17:00] Thank you.

[1:17:02] Of course you can.

[1:17:03] I wanted to, and I agree with everything that the Chief Justice and Justice King just said

[1:17:07] but I'm going to put a finer point on it in litigation, especially, and this is not a case

[1:17:15] where you have a pro-pur party who may have overlooked a dispositive argument, that's, that's

[1:17:20] a little different. That litigation and so much of our litigation involves very sophisticated

[1:17:26] lawyers and clients and often parties will very specifically, strategically, avoid raising

[1:17:33] particular issues for a number of reasons. And so the issue, as was explained by the chief

[1:17:43] and Justice King, was a very discreet statutory interpretation issue.

[1:17:48] So, for whatever reason, the issue was not presented to us and so we did not have the

[1:17:54] opportunity and had we injected the constitutional issue into the case that would have raised

[1:18:03] eyebrows.

[1:18:03] I think correctly so.

[1:18:07] And actually, interestingly enough, Arizona, if there's something that the constitutionality

[1:18:10] of a statute is challenged, you're supposed to give notice to the Attorney General to allow

[1:18:14] them to input because they're there on behalf of, you know, the people to be able to defend

[1:18:20] the constitutionally of statutes.

[1:18:22] That was a number of reasons you wouldn't bring things up, but just so that no one goes

[1:18:26] with the wrong impression, we're not so, you know, tied that we can't very abit.

[1:18:32] So in other words, if there are some occasions that we would vary, statutory interpretation

[1:18:36] is a good example, even though the party, if the party is myth and don't argue the right

[1:18:41] things for stature interpretation because it has a public impact we we're not bound by those arguments

[1:18:47] and of course we're never going to like oh sorry you got to go to prison for 20 minutes 20

[1:18:52] 20 years 20 years or be put to death just because you're because your attorneys missed the argument

[1:18:58] so any kind of fundamental errors this so there are some exceptions to that but as a general matter

[1:19:04] we take what the attorneys give us and rely on them to make those decisions and I'm looking at you

[1:19:10] you guys and bring it up.

[1:19:12] Bring it up.

[1:19:13] Just one really quick thing.

[1:19:16] And having done a lot of cases from the trial

[1:19:19] all the way up the appellate ladder,

[1:19:22] you probably haven't made a record on that issue.

[1:19:25] And so we would be very, very reluctant

[1:19:29] to ask parties to brief an issue in which they have not

[1:19:34] had an opportunity to make a record.

[1:19:38] And I know we're a tad over time,

[1:19:40] but I want you to hear from all of the justices.

[1:19:42] So if you have to go to a class or have to go anywhere,

[1:19:45] please don't think of it as fine to get up and leave.

[1:19:48] So we have a question here right there.

[1:19:52] So I was in

[1:19:59] February, I came here and there was a talk

[1:20:03] and I complained that they were trying

[1:20:06] to push that bachelor of law.

[1:20:08] And I said, you know, I've been having a hard time

[1:20:11] to do this in people, but this is a lot of great

[1:20:14] and not through the School of Government and Public Policy that it's actually something

[1:20:19] that, you know, people were scratching their head.

[1:20:22] And a Superior Court judge said, come afterwards and we'll talk to you.

[1:20:26] And that's the first time I've ever heard of the Paraprofessional Program.

[1:20:32] And I'm taking classes currently at Pima.

[1:20:36] And I think there's quite a few people here that are probably at Pima because of that opportunity

[1:20:43] be for taking the paralegal classes and substituting, you know, and there's different ways to

[1:20:50] get to that per professional.

[1:20:53] But as far as say the criminal, you

[1:20:59] know, I look at the case let's say for DUIs, could that

[1:21:03] be something, or could there be a cutout for something criminal law that potentially,

[1:21:16] you

[1:21:16] Yeah, and I will, because she hasn't had chance to speak, it's just this Mary-Lena Cruz who is our most recent

[1:21:22] addition to the Corps and a welcome addition at that, and has also graduated the University of Arizona College of Law, so very nice.

[1:21:34] It's wonderful that this question came to me because I don't know if you know, but I'm

[1:21:38] proudly known as the godmother of the legal paraprofessional program.

[1:21:42] 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

[1:21:49] the reasons why this program was instituted to help meet the need that is not being met.

[1:21:55] Your question asked to the potential expansion of the legal paraprofessional reach in the

[1:22:02] criminal area is interesting.

[1:22:06] As you know, legal paraprofessionals who practice in the criminal space may do so in cases where

[1:22:11] there is no prospect of jail time.

[1:22:14] Yes, that's a limitation that we thought would be appropriate to place

[1:22:20] That happens sometimes because the statutes don't allow it or because in some communities

[1:22:25] There's a decision made up front that the prosecutor will not seek jail time

[1:22:29] And there's at least in my community. I know at the city court

[1:22:32] There's a red stamp that goes on there and not only does that mean there is no jail time possible

[1:22:36] But it also means there's no right to counsel and so that's where the need to have some

[1:22:42] Access to representation came in

[1:22:44] DUIs are different and the possibility of jail time even a 24-hour period is there so that's not

[1:22:50] something that we have considered and as we said before in the context of the earlier question

[1:22:57] there we are open to entertaining any proposals that make that may come up we hear in the community

[1:23:04] a lot of different ideas probate but in terms of DUI that's not something that we're currently

[1:23:11] considering. We are we have and by way I don't mean we as a court it's not a formal proposal

[1:23:18] before us but I'm a member of the commission on victims in the courts we've looked at whether

[1:23:22] potentially there could be an LP request for victim advocacy most victims across the state

[1:23:33] do not have representation and they're not at risk right up losing their freedom so there's

[1:23:40] the potential for that. And there are many other areas that could eventually be covered

[1:23:47] by legal paraprofessionals. But at this point, DUI is not one of them.

[1:23:54] Okay. Well, I'm feeling a little badly that I didn't get his own question for Justice

[1:23:59] Montgomery. So does anybody have like a really difficult one for him?

[1:24:05] Right there.

[1:24:09] Oh,

[1:24:12] We had a case one time where I think Chief Justice Timber told an attorney, sometimes

[1:24:17] we have thrown a softball, it's okay to hit it.

[1:24:20] So come on.

[1:24:41] So the best thing about it is, I get to sit around and read right and think all day.

[1:24:48] And the frustrating aspect, yeah, that is a frustrating aspect because there are times

[1:24:53] where we'll look at a particular case and think, you know, if they just would have raised

[1:24:56] this issue we could have resolved much more in an area of law that we know maybe crying

[1:25:04] out for additional clarification. But the other thing that's great about this job

[1:25:08] too is I get to work with six other people who are incredibly smart and dedicated to

[1:25:14] when it uses the best for the people of Arizona. I've got great clerks who I get to work with,

[1:25:19] who I get to bounce off, ideas off of, and so really throughout each day it's the best

[1:25:26] environment to be able to serve the people of Arizona and fulfill what I guess has been

[1:25:31] a lifelong commitment to public service until that makes this job great and thank you for the softball.

[1:25:38] All right well again thank everybody for being here today and for your attention and frankly

[1:25:44] we really appreciate that you dress as you dress every day to school I know but we do appreciate you

[1:25:51] you showing that respect not for us but for the court because it is important to do so

[1:25:56] So thank you for that and with that we will stand adjourned for the day.

Maywald v. Toyota

Agenda

Transcript