Ted Zayner ’78 appointed to Santa Clara County Superior Court

More than 30 years after graduating from Stanford, Ted Zayner ‘78, a Bay Area resident since he arrived on the Farm, has found his calling.

On Dec. 29, Gov. Schwarzenegger appointed Zayner to a six-year term on the bench of the Santa Clara County Superior Court, whose session begins Jan. 19, sending Zayner’s career in a direction he couldn’t imagine when he first settled at Stern Hall in 1974.

Zayner was drawn from his home on the south side of Chicago to the Farm in part because of memories of watching Jim Plunkett win the Rose Bowl.

He spent his childhood hanging out on the sidelines of the field where his father coached high school football in the public leagues — he was 4 years old when he went to his first game. While football was not the primary reason for attending Stanford, he said it “was one of the things in the back of my mind.”

After graduating from St. Ignatius College Prep, a Jesuit school in Chicago that he described as “almost a magnet school,” Zayner helped assemble an independent intramural sports league where he played football, volleyball, water polo and soccer. But academically, Zayner wasn’t sure what direction to take.

“Like perhaps a lot of 18-year-olds coming out of high school, I sort of had ideas what I wanted to do, but it’s not that I had thought out any kind of career path,” he said. “I kind of defaulted toward science, muddling around in pre-med for a little bit, and decided I wasn’t going to survive in that.”

In college, and even law school, Zayner never imagined being a judge. It wasn’t until fall quarter his senior year, after he had flirted with degrees in biology, physics, math, economics and engineering, that Zayner start thinking about going to law school.

“[At the start of my senior year,] I was an econ major with only a few classes left, and then wasn’t really excited about being an econ major,” he said.

“I wanted to go to law school because I was interested in that,” Zayner added. “I wasn’t certain I wanted to be a lawyer, but I thought law school would be an interesting thing to do.”

Zayner began litigating shortly after he graduated from the University of California Hastings College of the Law in 1983.

“I pretty much got thrown into it and started taking depositions [pretrial interrogation of witnesses] and preparing cases,” he said. “So, at the outset, it was a little nerve-wracking.”

For Zayner, the anxiety hasn’t disappeared, but it has changed character over time.

“The nervousness now, I liken to competitive nervousness — it’s not something that prevents you from doing the job and doing an effective job, but it enhances your awareness and your focus,” he said.

Zayner recalled a memorable bad-faith insurance case, which involved a yearlong series of trials concerning chemical cleanup liability. His firm was representing an insurance company slapped with a payment to cover cleanup costs for FMC Corporation’s chemical processing sites.

“It was probably the case that shaped my confidence in my skills as a trial lawyer more than anything else,” he said.

In stark contrast to his experience, Zayner believes today’s young lawyers aren’t being “thrown into it” fast enough or getting enough courtroom time. Part of the reason, he said, stems from a criminal case backlog that delays and drives up the cost of bringing civil cases to trial.

“The courts in general are fairly overwhelmed,” he said. “And they’re overwhelmed with criminal cases, which always have first priority, so it’s harder to get civil cases out to trial.”

Zayner attributes the rise in court fees, lawyers’ billable hour rates and other litigation expenses in the last three decades to a culture where a lot of clients, especially large companies, won’t pay for relatively inexperienced lawyers to try cases. Instead, young lawyers “tend to get a lot of experience working long hours and doing a lot of the grunt work that has to be done to prep a case.”

But working behind the scenes, they aren’t learning what it’s like in the courtroom. As Zayner put it, “they don’t get the reward at the end.”

When cases go to trial, Zayner believes new lawyers should sit “second chair” to their more practiced colleagues to gain courtroom experience.

“When you go to trial and learn to try a case in front of a jury, it’s a whole new world,” he said. “It’s a gradual learning curve like anything else — you grow more and more comfortable in your own skin.”

In addition to changing new lawyers’ roles, Zayner said the high expense of taking civil cases to trial makes it more likely the cases will be settled out of court.

“The courts have more strongly encouraged mediation and negotiation alternative disputed resolution (ADR), a more efficient and cost-effective method of trying to get cases resolved early,” Zayner said.

Since 1991, Zayner has involved himself in ADR both as a judge pro tem — a “temporary judge” — presiding over pretrial settlement conferences that sitting judges don’t have time for, and as private practice judicial arbitrator.

Zayner started applying for a full-time judgeship three years ago.

“It’s a pretty daunting process,” he admitted. The application is four pages, “but when you answer all the questions and add a detailed resume of your entire legal career, you end up submitting 50 or 60 pages to the governor’s office. And then they do their own investigation and vetting.

“If the governor’s office considers you a viable candidate, the state bar’s judicial commission interviews and reviews you, and then the governor’s office does its own investigation and brings you up for an interview,” Zayner added. “And then you wait and hope you get a phone call. They won’t ever call you again except to give you an appointment.”

Zayner got the call. He starts overseeing misdemeanor criminal cases at Palo Alto Courthouse on Jan 19.

“That seems to be a traditional first place for new judges to learn the ropes,” he said. “I’m really looking forward to it.”