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Justice Elena J. Duarte is an Associate Justice on the California Court of Appeal, Third Appellate District, in Sacramento. She shares her journey from the U.S. Attorney's office to two separate trial court appointments in Los Angeles and Sacramento, and then to the Court of Appeal. She also provides tips on oral arguments, brief writing, and applying to the bench.

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Justice Elena Duarte, Falter

About Justice Elena Duarte:

Justice Elena Duarte was confirmed as an Associate Justice on the California Court of Appeal, Third Appellate District, in December 2010, and currently sits on that court in Sacramento. Prior to her elevation to the Court of Appeal, Justice Duarte was a Judge of the Sacramento Superior Court; her first judicial appointment was as a Judge of the Los Angeles Superior Court. She has been on the bench for 15 years--more than half of her legal career. She is active in her community and a member of various bar associations and boards, as well as community service organizations and mentoring and pipeline programs. She has spoken and taught at various law schools and other venues, including judicial and attorney education programs.

Before her appointment to the Los Angeles Superior Court, she was an Assistant U.S. Attorney in the Los Angeles Office of the United States Attorney, where she worked first in the Major Frauds Section and later in the Cyber and Intellectual Property Crimes Section, becoming Section Chief in 2005. Prior to her move to Los Angeles, she was an Assistant U.S. Attorney in Sacramento and, before that, worked at the Criminal Division of the U.S. Department of Justice in Washington, D.C., as an Honor Graduate in the Attorney General’s Honor Program. She received her B.A. (in Italian) from the University of Southern California, where she also studied music, and her J.D. from Stanford Law School.

She was born and raised in San Jose, California, and currently lives in El Dorado County, one of the 23 counties within the Court of Appeal, Third Appellate District.

In this episode, I'm very pleased to have to join us justice on the California Court of Appeal Third Appellate District, Justice Elena Duarte. Welcome.

Thank you.

Thank you so much for joining us and sharing your career journey and journey to the bench. I know you have an interesting history of having superior trial court appointments both in Los Angeles and then in Sacramento. That's an interesting twist that we haven't discussed yet. Before we get to all of that and your experience as a Federal Prosecutor, I wanted to first ask this. What first made you think you wanted to go to law school and be a lawyer? Was there something in particular that inspired you? Was it a lightning moment or a more slow burn?

It's going to sound bad, but it's good for people to know this. I suppose it was a third option where the first two is no longer looked viable.

That happens too.

It's good to tell people that because they realize that even if what they thought was their lifelong dream doesn't necessarily work out, there are other things too. I like to hope that I can demonstrate that they can work out quite well even though they're not your first option.

What were your first two options that you didn't end up pursuing?

When I first went to college, I wanted to be a singer. I was singing. At that time, I was winning little awards and things doing solos. I went to a public school that didn't have a big program down in San Jose in the Bay Area. They were actually in the process of abolishing all the music programs. I did what I could, and I ended up being a Voice Performance major first at the Conservatory of Music at the University of Pacific, and then I was able to transfer on a scholarship to USC for their music program. That was my first love.

What caused you not to continue to pursue that?

I had a series of experiences that caused me to realize, together with maturity, that it wasn't as practical as it happens with most things when the training gets more rigorous. It wasn't as much fun as I had thought and hoped if I wanted to get that college degree in the program. I probably wasn't going to set the world on fire. That's a hard realization to come to, but you have to be practical. Also, at least my perception at that time was that I did well academically. That wasn't necessarily encouraged in the type of performance career only because anything that took away from your performance was, "Are you serious?"

I understand that especially looking back. At that time, I felt that aspect was under criticism. I also worked in a bar later after I turned 21. Before that, I was a waitress in a regular restaurant. I worked where I thought I could make the most money and have the most flexible hours. Back in the old days, people could smoke in bars, and all those things were a constant source of friction, so it got to be an unpleasant environment.

I was very good at languages, so I thought that I would switch my major at the last minute because that's who you're talking to. I switched my major to Italian. I had spoken Spanish at home, and I had emphasized Italian when I was singing. I went to Italy and didn't fall in love with it like I thought I would. What ended up my fifth year in college because of the major switch, I needed some more credits. I was in college and decided at the last minute to take the LSAT. I had a run as a high school mock trial superstar in my own mind, and I enjoyed it. I thought, "If I do well, then maybe I will go to law school and get back to the more academic side." Sorry for the long answer. It's a strange path.

It's interesting because those are pragmatic considerations of, "What is it like to do this in the singing thinking that I'm not sure the environment is very conducive to things? What does it mean to engage in what might be my career?" That's an important consideration because what might be up here in your mind, theoretically, can be different whether you like that or if that is a good fit for you.

Especially if you're someone who's like, "I like to be excellent at everything that I do." I've had that experience, too, where I'm a good writer, and I enjoy writing, but there are some people who are super gifted at certain types of writing. They come out naturally a certain way, and it's so much easier for them to reach a certain level. That's not my genre or something like that. I'd like to do something where I know I could hit it well. All of that resonates.

You don't want to stay safe and necessarily stay in your lane. Now I can talk about it without any regrets or problems. It was very disappointing. I don't want to say traumatic in comparison to other people's issues, but it was quite a letdown for me at that time that it wasn't going to work out. Looking back, I'm so glad I did it because I was able to do it and come to my own realization that it wasn't going to work out, and I'm not spending my time with iffing.

You don't want to stay safe. You don't want to stay in your lane necessarily.

It was good. The thing, too, is they don't let you sing. They make you do all these other things. Some of which I was better at than others, so it's not easy at all. It's difficult, and you find yourself taking things and trying to have to take piano and play piano. I'm a terrible piano player. I always wanted to be a good one, but I'm terrible. I get nervous, and my hand shakes. There was this constant also being made to do things that reinforce the fact that you might not be in the area where you want to go forward. It's okay to try and then say, "I've come to the realization that I'm glad I did this, but it's time to move on."

As you said, that's so important. That's easier to move forward when it's your decision. You've seen and experienced it and said, "Nope, not that. This is a better path for me." Rather than wishing that you'd pursued it and wondered what would happen or having someone tell you that you shouldn't pursue it, that's different to you than coming to your own decision. You took the LSAT and went to law school. Did you have some idea of what law you wanted to do or practice?

I knew that I wanted to do Criminal Law. However, I didn't think I was necessarily going to get to do that because I didn't have much money. I was fortunate enough to keep doing well academically while having other struggles. I was able to get financial help going to law school and go to a good school and all that. I had some very good opportunities in that regard. I thought I was going to have to get out and make money. Back then, and maybe even now, I don't know, but I assume that meant going to a firm.

When I got into the culture of law school, I figured out that I would probably do a couple of summer associate jobs and go to a firm. I had my eyes open for other things until it was last minute. In my third year, I hadn't had the best experience in terms of the fit at the summer associate job I was in. I also had a life-changing event. I was in an accident and had some injuries. That changed my mindset a little bit. I had much more of a seize-the-moment. That's toward the very end, I decided, "Let me try to do what I like and get out there into practice." By practice, I don't mean to insult firms. They practice a lot, but I mean get into court.

The best opportunities to do that are often in government positions. That makes a lot of sense. It's not common to go straight to the US Attorney's Office, but you did go to at least honors.

It does take a small number of students straight from law school. I was there two years before I went to the USAO. It wasn't that common, but it wasn't unheard of because I did have experience with DOJ.

How was US Attorney's Office then? Was it what you had hoped to get into the courtroom and that experience?

It was great. When I was in honors, I had done SAUSA. They detailed you to different sections. I was fortunate enough to have a detail at the USAO in Washington, DC. It was at the superior court level that they were all federal. They have two levels of practice. One in the equivalent of the Superior Court and one in the Federal Court. They would detail their SAUSAs to the superior court. It was like a DA's Office. I was in the serious misdemeanor unit. They were jury trials because they were one-year USAOs.

They were trying case after case and losing a lot of them because they weren't the top priority for anybody to put together or get witnesses in. It was a great experience and very boots on the ground. I got a trial experience. That's one of the reasons I was told at least that I was able to get the job in the field when I decided it was time to come back.

It's an actual court experience.

I had 25 jury trials at age 28, but, remember, they were little. You select a jury and talk to 3 or 4 witnesses. You throw a little evidence, help the judge, instruct the jury a little bit, then take the verdicts. We did not handle at that office our own appeals. Later, when I went to the real AUSA, my other two offices always handled their own appeals, so that came later. I was in the thick of grabbing a file and running off to court.

That's a lot in such a short period of time.

It was a very tough job. I was up for it. I didn't have any other obligations. I had moved out there with a couple of friends, and that was it. I had friends from California schools who had also gotten into the honors program. I had a couple of people I knew out there, but I was working a lot.

What kinds of cases did you do in the US Attorney's Office? Was it here in Los Angeles? Is that the office you were in?

I came back to Sacramento first. A lot of people don't know that. I ping-ponged back and forth. I always joke. Even through the trial courts you mentioned earlier, I do those appointments that I always had trouble holding down a job because I did move around a little bit. I came to Sacramento first. I had never lived there. Frankly, it was all about money at that time. I needed a job that would pay me money.

Of the districts, I knew I wanted to at least try first to stay at a USAO, so I put in applications to all four districts. I never did make it down to San Diego because I'd already accepted a job. Sacramento offered me the most money, and I liked it but not by much. This was also in 1995. Salaries were a little lower then, but every bit counts when you're starting out. I also enjoyed the interview and liked the people when I came up.

As I always got teased about later, it was a lovely Sacramento September day. It was about 75 degrees with a gentle wind. I remember people laughing. I didn't understand until later why. I looked around and said, "This is so great. It's like the Bay Area." Later, when it hit 100 degrees, it was a little hotter, but the weather wouldn't have kept me away. After two years in DC, I learned what humidity and snow were. I liked a lot of things when I came to the interview. I got a good offer from them, so I ended up coming here, and I enjoyed it.

When you were first appointed to the bench, you were appointed in Los Angeles and went back to Sacramento. How did you get back down to Los Angeles?

If it's not for money, it's for love. My husband and I, now my ex-husband, but we're still good friends, we met when I was working in Sacramento. He had the ability to transfer for a job that he wanted in LA. I was comfortable in LA. I had gone to college down there. I liked LA. It was a bigger environment that I was willing to tackle. I had been at the USAO for almost five years. I thought at first that it would be a good time to give a firm a try. I interviewed at a couple of firms, and I remember getting one offer and then at the last minute thinking, "I'm not sure if I'm ready to leave the practice. I might as well try to get a job at the USAO down there."

Sometimes things are easier when you don't realize how hard they are. I didn't think about it. I emailed the US attorney because we were all on the same network. I said, "I'm going to be down there for another interview. I'm currently here. I would love to talk to you while I'm down there." It was the newly appointed at that time, Alejandro Mayorkas, who was now in the cabinet. He returned the email himself and said, "Come on by." I ended up getting hired down there. I made the decision to go and stay at the USAO. That's why I changed locations.

Sometimes, things are easier when you don't realize how hard they are.

That's interesting because, as you said, you felt like it was time to mix it up a little bit. Maybe not firms, but that's neat that it worked out. You were able to mix it up by going to different US attorneys' office.

I mixed it up a lot. I had started working some white collar in Sacramento, but my primary experience was in the drugs and guns unit. I'd be a narcotics firearm. When I got to the USAO, I was involved in major fraud right away, so I got some good fraud experience. It was a year later that they established the cyber section. The soon-to-be chief of it and I had met as a fellow AUSA. He asked me if I would join it when it was established.

In retrospect, you realize what a nice compliment that was because he had his pick of 220 AUSA. He hand-chose about five of us. Until I became chief, I was the only female in the section. It was a great group. We established that. DC was also establishing a mothership. They had it already moving, but it was then liaisoning with some of the bigger USAOs. This was in the early 2000s, and cyber was becoming a big area. I was able to step into that and do something completely different and then move up the leadership chain in a bigger office.

That's interesting because you've got a different feel to the office, a different size office, and then a different subject matter too. That's one of the things people think about if you're in the prosecutor's office, state or federal, it's all of a piece, but it isn't, especially in the US attorney's offices. You can be dealing with different subject matter depending on which particular division you're in. If a new one is developed, it's a different experience.

It's a huge difference. If you're helpful, you show you do your work, and you're willing to do extra, these places aren't easy to work at, but you can get recruited into other sections and have a chance to do something different. I wanted to stay with cyber because as soon as they established a deputy chief position, it got big enough. My friend who was chief asked me to do that. When he left, it was Debra Yang at that time who appointed me to be chief. I was interested in staying in cyber and continuing to learn and promote. If I had wanted to do something else, I'm sure it would've been an option.

That sounds great, and you were doing your own appeal. The LA office is like that too.

Sacramento did as well, so I had already started appellate work. I'd forgotten about that. That's very important. I had done my own briefing in Sacramento and then also LA because even though they have an appellate section, it's so big. That's mostly for people who have left handling the appeals. If you're still there and prosecuted the case, it had some good cause when you do your own appellate work. That was a good experience. It got me in large part to where I am because I didn't have a lot of civil experience, and the fact that I was able to show that I'd written so extensively.

That's a good point because you wouldn't necessarily have a writing experience to the same degree.

A lot of folks on the criminal side don't. You don't get the same opportunities, especially state. You get far fewer. You put a lot more in writing on the federal side, so we tend to have a little bit more experience. I know state-side, you don't brief things for the judges the way you do on the federal side, but the appellate writing helped.

That's always the question in terms of subject matter that you're familiar with prior to being on the bench. The perfect thing is to know everything, like criminal, civil, and all things, but you can't be all things to all people. You specialize. There are certain things you know. That's an interesting crossover between the criminal and then having done the appellate. Even if there wasn't civil experience in there, it's like, "I have different aspects of experience that dovetail nicely for your court of appeal appointment down the line there."

It even helped my first judicial appointment because when I went through my first JNE, Judicial Nominees Evaluation, I had to go through and get rated under state law. It was probably enacted to stop. They call it when the person is appointing their friends. That doesn't happen here because everybody has to be rated by the commission. It's very stressful. They give you your negatives, and you have to respond in an interview. That was for your audience. I know you know that.

The negatives and some of the milder ones are the experiences you don't have. They're like, "You were a prosecutor, but you don't have experience doing that," and you're like, "Yes, because I was a prosecutor."

Don't hold me to this, but the only one on my first appointment was lack of civil experience. I remember being in my interview with the governor's office and his appointment secretary because they always ask you, and you get ready to respond to this, "What's your biggest weakness? How would you overcome it if you were to become a judge?"

He asked me that, and I said, "My negative in JNE was that I lack civil experience. That's a fair criticism. I'll tell you how I would overcome it." I'm nervous as heck. I sound all self-assured now, but it's scary. I still remember because he was looking at my resume. He looked at me over it and said, "Anybody who's written over 50 appellate briefs doesn't have to explain how they can get by without civil experience." I thought that was from a guy who's doing these interviews all day. I thought that was very interesting because they want somebody who can write and figure you can learn.

That would be my assumption, at least. I know that I've talked to people since that say, "Subject matter is important, but once they're going to appoint you, they've probably decided that you can learn new areas. Have you had to write and do what it takes to organize in writing all this stuff before?" I remember that, and that was my LA appointment. I remember being asked that and him commenting on the briefs. It helped. I tell people now who ask me, and I'll say, "Any writing experience that you can get that you can put on a resume or in your app."

The subject matter is important, but once they appoint you, they've probably decided that you can learn new areas.

That's how you're communicating, "As a judge, here's my order. It needs to be understood. Here's my opinion." Clarity in writing and being a good writer is important.

You're reading stuff. You got to be able to read a record and figure things out.

What made you decide that you wanted to apply for the bench when you were in Los Angeles?

There were two motivating factors. I'd started to think about it because a couple of immediate supervisors of mine were older, and they happened to be female. They had received state appointments one year and then one the next year. I didn't even realize it was a thing. When I thought of becoming a judge, I thought the president had to appoint you. I never tried to be a magistrate judge. I knew that probably wasn't for me because I wanted to do trials and things.

I didn't want to write, and I made that decision, especially not at 30, 39, or 38, which is how old I was when I applied. I wasn't thinking, "I'll apply to be a federal judge." I thought, "Maybe in a few more years, this state thing would be so fun and interesting. It looks doable." I knew that women could be judges and all, but until you know somebody and you see them do it, sometimes, it's hard to imagine yourself doing it.

That was an impetus. The next thing that happened within the year was I had a trial in front of a federal judge who ended up being quite helpful. After the trial was over, I heard that he was very impressed by my performance and preparation. I was talking with him sometime after the trial, and he mentioned that. I thanked him, and he said, "I was wondering what you might be thinking of doing in the future." I started thinking, and I said, "I was thinking I might want to be a state judge." He looked at me, and I thought, "This is ridiculous. He knows how ridiculous it is." It's the Imposter syndrome. He said, "Is that what you want to do? You'd be a good defense attorney." I said, "That's so nice of you to say." He said, "You're good with juries." That would be the firm route. This is LA, so he's talking about going to a firm first.

He said, "If you want to look at this, I have some people you should talk to if you want to talk to them about the possibilities." He ended up setting up a lunch with his former partners and acquaintances who were on the governor's committee and talked to me about some things. They encouraged me to do it, and then I ended up doing it. Those were motivators. I can't say that without the one or the other, but those got me going at that point and thinking about it.

That's certainly something that I've heard from other guests on the show. Until somebody shows you the way in some way, whether they decide they come to you and say, "Have you considered applying? Maybe you should look into it," or as this judge did, put you in touch with people who are involved in selecting people so they could see you and help you on the application path. That's so common. It helps to have a nudge. 1 or 2 nudges are nice. It's so different to see people you know or who were in positions like yours to see them appointed to the bench. It is more like, "That's possible. That's somebody I know."

It feels attainable. Not because they're in any way diminished compared to these, but because you have these relationships with them. It's a few more years in practice, and they were hardworking and smart women, but they had the same basics with a little more development, skillset, and background. They were doing it. I thought, "At least it's worth a try as the next step. If that doesn't work, I'll look at the firm again or have other options." Having been a public servant appearing in Sacramento, people sometimes forget what the pay differential is in the bigger markets. It's huge. The difference between going to a firm and going into public service can be a big difference.

It is here too, but it's more there. Especially if you're coming from a fairly prominent position at the USAO, you could look attractive potentially to firms. Always having been a public servant, I was already making the most money I've ever made because that's the way public service works. I was dropping some salary to apply for a judgeship, which I know a lot of people have to make that tough decision. For me, I was cluelessly going through my progression. I did take a salary hit when I went from the trial bench in LA to the trial bench in Sacramento because there's no stipend, or it's very limited. With that said, it wasn't that much of a difference that it would affect the decision-making.

You went from LA to Sacramento. Was that because of your husband's job?

He had the opportunity to come back here for a better job. My stepson was up here, so it did make a lot of sense. I supported that. I was pending. You never know when you're pending, but all my information was probably not the best time to make a move. I stayed, and we had to commute for a couple of years. I figured the time was right to ask the governor's folks, and I had to reapply and everything. I went through JNE 3 times in 4 years. I was a lot of friendly jokes about holding down jobs. In the old days, they used to send by mail the rating sheets. They were keeping a copy on the copier so they could hit print. I was fortunate enough that he saw fit to bring me up here. I did end up coming back up here, so it all worked out.

Was there any difference between serving on the trial court in LA as opposed to Sacramento in terms of how the courts operate or which court assignments you had?

There are huge differences. The size difference alone. It's like going from the USAO from one to the other. As a matter of fact, there are a lot more judges. I was going to say the numbers are close, but they're not even close. If you go from the biggest court in the country, how many judges do they have?

I don't remember, but LA County is the largest.

Sacramento was not a small county, but at that time, it might have had 55. Now it has 60. It's a whole different environment. There are only three courthouses versus at that time, about 58. I had already served in two by the time I came up. It was great. I liked having different services too because it enables you to see that there are different ways of doing things in different counties.

There are different ways of doing things in different counties.

It's interesting when you get up and practice with folks who think you can only do it one way because they've been a DA, and then they've gone to the bench. People will listen, and most of them do. I learned new things, too, so I enjoyed it. I did trials and went into dependency. That was an assignment change. That wasn't my choice. I didn't know much about it. I burned the midnight oil to try to get up to speed. That was a tough time in terms of transitioning, but it was good, and I was learning a whole new area. I had never practiced in the Welfare and Institutions Code, so that was a good experience. That also put me in a very good position for this court because we do a lot of dependency.

Serving on the trial bench, which is the corresponding court to the particular court of appeal you're in, is great because you're familiar with that. You're also bringing trial court experience from another court system. It's good to have that broad experience when you're on the bench. You never know what's going to come.

It's good on our court, too, because we cover 23 counties. A lot of people don't realize that. Sacramento is one of our main feeders. We cover a lot of very diverse territory, and a lot of them do things differently. Understanding how the county system works and being a little bit more flexible has also been of assistance.

What made you decide to apply to the Court of Appeal?

I was encouraged to do it. Governor Schwarzenegger was going to be leaving office, so we had a number of slots open. The thought was, "It probably won't work out, but strike all when the iron is hot and see what happens." At this point, that had worked for me enough times. I would love to do this. I enjoyed the trial court a lot, and I probably could have spent a number of years there and enjoyed myself. I had written and done a lot of appellate work. I enjoyed my oral arguments in front of the 9th Circuit. I had a number of them.

After being on the trial bench for 3 or 4 years, I was also missing a little bit more academic or writing aspects. If I'd gone to civil law in motion later, I would've gotten some of that, but I wasn't at that point in my career yet. After being encouraged, I'm fortunate enough to be encouraged to do it. It makes you think, "I should do it." No what if's. If I don't get it, I don't get it. At least that way, I'm not sad if somebody gets it that wasn't a front runner and like, "Maybe I should have gone for it."

I was fortunate enough that they had 4 slots to fill in 6 months. If they'd have had only three, I have had a different conversation. It depends on who they're looking for. This would've been my last shot with the same governor who had appointed me. That was Governor Schwarzenegger. I'm a lifelong Democrat, but he was very good about looking beyond that.

He arranged, and you did not have to have his political party next to your name to be appointed at all.

I've heard it said in somewhat of a joking way, but it's a little bit true that if there's a Republican governor who only is going to appoint Republicans, he might not be able to fill all the seats because this is California. We're in a little bit of a blue state for your out-of-state readers. In California, it's not unusual for a Republican. Newsom has appointed Republicans. They do cross-over, and they do that. I, at least, knew I had a shot.

That's a good point with the governor who appointed you to the superior court. That seems like, "There are several openings, and the governor who originally appointed me thought I was good for this position. I'd be in a good position at least to be considered seriously for that slot."

It worked out. I was fortunate in that.

You are so intellectually curious about things. I remember that from the Jury Instructions Committee and all that too. You pursue things, so it seems it's a good fit.

I enjoy it. I like the ability to look at so many different issues. I should note that I also have good help, or I would not be able to do it. I have wonderful lawyers that can do the majority of the research and the record probe. At any given month, my court files about ten author opinions per justice per month. At least, that's been my output. That's filing what you get assigned down the line. That's keeping up. That's a lot. In order to do that, you need great folks working with you. That's been very helpful. I roll up my sleeves and get into it a bit myself because I love it.

It takes a village and teamwork to get out to work on the cases and produce all of the opinions, as you mentioned. One of the big differences between the trial court and the Court Of Appeal is that, in the trial court, one of you is making the decisions, and in the Court Of Appeal, you need at least one other vote if you're in the panel of three in order to have a majority opinion. That's different. Some people have trouble adjusting to that, and other people recognize it's an adjustment but welcome it.

I'm part of a program that mentors judges with an eye toward applying for the appellate bench. One of the main things I tell them about the differences is you have to be okay with not being the guy who makes the decisions on the bench because when you come in as a junior member of the court, you don't even run your own courtroom. That's for a senior guy or gal. It's the person in the middle. You lose a lot of that control over your courtroom, and it's a different experience. It can be great working with all three of you, but it's very different. You have to be mentally prepared for that and make sure that's something you're willing to do. There are always dissents.

Some people do struggle with that more than others. They haven't thought about it. It's good that you mentioned that to people to think about it and be conscious of this. You know it when you see it, but you don't think about it or how it impacts. There's a whole decision-making process and back and forth and all of that, but that isn't there at the trial court level.

It's not collegiality, although that's important. It's also the willingness to give up that control. Even if it's in your courtroom, you go up for oral argument. There were some things I saw happen that if I were a trial judge, I would've said something. That doesn't mean I was the one that was right, but that's the way I would've controlled my courtroom. Three judges can't be equal. That's the way it should be. It has to go by seniority, or it would be chaos. I'm not bucking that, but if that's the way it is. You have to be ready to give that up for a large part of your career until you become the number 1, 2, or 3 in the pecking order where you're not the decision-making but the actual.

That's case managing the hearings and things like that.

It will be a big deal. Now we're a little more uniform, but in the beginning, there are senior people, the ones in charge, who would handle the prospect of somebody trying to file something at oral argument differently. In my courtroom, that would be a no-go, but there would be people allowing it, so I'm stuck reading something on the bench.

That's an example that probably conflates a few different things that happened at different times, but you get the drift. We're not in court as much, so it's not this huge difference every day, especially becoming a judge. When I became a judge, I was 40, and I looked 35 because this was before things got hard. I was 40, but I looked 15 years younger. I had to learn to control my courtroom because I was up there eight hours a day dealing with people.

Many of whom did not necessarily want to control me. You have to figure out whether you're a female or male or whatever. In my case, I had to figure out how to do it as a female on the side. This was a couple of years ago. Things were markedly different. It's amazing how much it's changed in fifteen years, but there were far fewer of us. It's a different dynamic, but I love it. I like doing different things. You have to be prepared and get used to it.

Thinking about argument presentations and tips and things like that, what is the most helpful to you for lawyers to do at oral argument that helps you in your decision-making?

At oral argument, my number one tip whenever I talk to appellate practitioners or finances, and this is going to sound super easy, but it's not, is that you simply have to listen if you're a practitioner to what the court's asking you and respond. I know it sounds easy, but people are nervous. They're so steeped in their argument that they're thinking about what they want to say and not necessarily listening.

I find the best, most helpful oral arguments are where it's a conversation. The example I use when I talk to moot court students and law schools, which I do quite a bit, is if I ask you, "What are you having for dinner tonight?" You wouldn't say, "For lunch, I had broccoli." It's an interesting point, but you're not listening or responding.

If you had a terrible dinner that you don't want to talk to me about, and I equate that with having a point that's bad for your side, you still listen and answer, but you can shift. You can say, "My dinner wasn't so good, but let me tell you about my fabulous lunch." That's the way you can still listen and shift. Listening and responding are the most helpful. They're difficult. There is practice skill, but they're very helpful.

Those are great analogies. That goes in the category of, "That case is not great, but it's not fatal."

Let me tell you why we are still quite on point. It shows that you heard the question and are responding, and you can shift. If it doesn't work, the judge will ask it again. I was surprised when I got to my position about how often and how easy it was for people to do their own thing and they would be respectful. They would stop and wait while you asked a question. They clearly weren't quite tracking. Especially with younger folks or less experienced folks, I do a lot of student competitions. It's a skill you have to practice, knowing you're going to be very nervous.

You're right. It sounds a lot easier than it is to do. Part of that is because you're waiting for something where it's like, "Where's the catch? This could be difficult for me. Should I say yes to that question or not?" The second thing is because, in your mind, it's going pretty fast. You're thinking already about what you want to say. Being able to pull out of that and listen to the question can be hard to do when you're under stress and things like that.

It's very hard. That's why I make sure to tell people, "I'm not being cute here. I'm not trying to state the obvious. This is a tough skill, but if you can master it, you will probably be one of the best oral arguments that the judge has seen in the last few months, if not longer." I guarantee it because a lot of people aren't thinking, even good lawyers. They also might talk to us like they do the jury, and they're great skillsets in front of the jury, but the jury's not asking you questions and connecting with you. It's a difficult skill, but if you can do it, you will stand out immediately.

What about brief writing in terms of what's helpful in that?

With brief writing, everybody says to keep it short, but short isn't necessarily great. It's trying similarly to answering the questions orally, trying to be focused on your case and what you want to say about it. One thing I used to do toward the end that I found helpful when I wrote my own briefs was to write the argument first and then find the facts I needed.

Every once in a while, I wouldn't be able to find what I needed, and I'd have to alter a little bit about the argument. That kept me on track with the facts where I'm not putting in extra or anything I need to then make this argument. It also keeps your argument from being boilerplate because you're thinking about each argument. You're not trying to throw in a bunch of arguments based on what you've said about the facts. In 1, 2, or 3 words, it would be tailored to your case.

Doing it that way, you can tell what's extra that's not necessary as opposed to putting it all out there which part of the story is essential to the legal arguments that I'm raising here in this appeal.

If you notice the opponent picks on a big fact that's maybe a red herring, then you add it back in and footnote that it's a red herring or whatever. You're thinking about, "What am I trying to convey? What am I trying to counter? What do I need in here to do it?" You're not thinking, "Now I have the facts section, I'm going to do it." It would save a lot of editing in the end, too, because otherwise, if you do it the long way is fine too but get in there and edit.

Take that stuff out you don't need. That's hard for a lot of people, especially since they're used to word processing these days. I have to do it. It's hard to take out once you've written it. I'm fortunate because most of the time, I'm doing it to stuff I didn't write. It's much easier to slash and burn, but it hurts if it's yours. It's a lot of work that goes into it. My advice would be don't do the work. Think first about, "What do I need for these four arguments I want to make or counter?"

There is another important point which is to own your position and argument. For a lot of people, if you're a respondent or whatever, you're reacting or responding to the opening brief. You got to have your own affirmative path as you need to respond to it. Don't buy into the way that the other council is organizing things because those might be helpful to that position, but it's not something you want to embrace necessarily.

Don't buy into it unless it's good for you to use. Explain why you're not, "I'm going to address this in a different order because arguments 1, 2, and 3 don't pertain to this case. Here's why." If you're the appellant, I will pay attention to that reply brief. I'll tell you I read them first, and I'm not the only one of my colleagues that does. If they're a rehash of the opening brief, I do more than this, but it's an early signal that the responsive brief probably made some very good points.

I see what you're saying. It's avoiding or shying away from responding to points made in the other brief. That's a good point.

If it says, "Respondent focuses on X, but I focus on Y, here's why," it can be a helpful counter. I always say that I look at the ARB first to see how serious the dispute is.

Exactly. Where are they at odds? Where have people agreed? Where are the key points of disagreement that need to be ironed out?

I've been wrong before, so it's not that that's the only thing I read. Maybe the person was tired, or they didn't put enough into it. With that said, it's very indicative. I should clarify because we were talking earlier offline. I know you have an out-of-state audience, and you have Supreme Court justices. We're also an intermediate appellate court and the biggest court system. We have a lot of appeals that are fairly routine.

I don't mean to characterize them. I'm always very careful, especially with civil cases. Every appeal is somebody's life, and it's important to them, but we don't choose what we review. Some of the cases are clearer in one direction or the other than others. We're combing through all that as well. Unlike a State Supreme Court, which chooses what they take, there won't be that much to separate out.

We have a whole class of appeals in my court that we call routine disposition, not because they're not going to get reverse necessarily or they're not important but because they're on the type of issue that we see a constant influx of, and the law is fairly clear. It's a matter of sorting out where the facts go. The law is fairly clear. That's a good part of my job. That's why little tricks of which brief to look at first and sort through these things can matter more in this type of practice than perhaps in a more selective practice.

That's a good point too. It's not a court of discretionary review. You file a timely appeal, and you have a right to appeal. It could be a range of complexity in those appeals also.

That was well said as well. The appeals where they get the right to a free transcript and a free lawyer, and there's a reason for that are there appeals where you're losing your livelihood or child, termination of people, or a couple of other categories. These are very important issues, and we should hear them all. It does make for a high number coming in because the cost is not a factor for the person bringing the claim. The civil tends to weed itself out a little more the civil work because when I talk to students who come in, I ask them why they think civil cases appeal less often. Especially the younger ones, I always have to give them this hint. They say it costs money. You got to think about whether you want to pay that new set of lawyers.

At another level, you want to decide whether this is the case you want to appeal to. If you have similar cases or issues, is that the right one to appeal to? Do you wait to do something else? There are a lot of considerations that I suppose would put in the category of more discretionary from the appealing party's perspective in the civil realm that would cause people not to file. Whereas the incentive on the criminal's side is file. You never know.

My client got twenty years in prison, and he wants to appeal. He was like, "We're going to appeal." I get that. Sometimes, that appeal is successful. It's not always something you need to look at the issues as carefully as the civil one when you're the person making that decision. I look at them carefully. When I did the criminal overview teaching gig, I noticed that there had been so many changes in Criminal Law that some of the "smaller" issues are now huge for these folks who are appealing. With these cases, I always want to be careful because I want to be clear that I don't, in any way, minimize their importance. They tend to have smaller records and clearer issues with more settled law, but that's not always the case, so I'm always very careful.

There's also a wide variety of subject matter. That's the other thing. I don't know that you know it, but I don't know that you recognize it when you're a practitioner. You're like, "There are all different kinds of cases." When you're there and are like, "Now I have this case. It's a probate case. This one is a Family Law case, and this one is a criminal case," there's so much variety in one month of sitting for the court.

It's a lot. As I said, without good help, it would be impossible. It's super fun, but it's a lot of stuff. You get excited when you have an issue that you've had before.

It's rare these days to have that generalist aspect as a judge because you have so many different subject matter areas. To me, as an appellate lawyer, that's what keeps it fresh. I love that it's in different areas, and I'm doing different kinds of cases every day. It keeps it interesting. What advice would you have for those who might be thinking about applying to the bench or someday thinking they might want to be a judge?

My number one advice is always do good work. This is one of those things that sounds easy, but it's not, especially if you're in a job that maybe isn't your favorite or the one you want to end up in. Wherever you are, do good work and if you can do great work because that's what's going to get you noticed and get you referrals. Even that judge we talked about earlier who helped me out, it all started when I did a very good job in trial. That was the trial that made me two days late for my honeymoon. We were still in trial. My husband left for Australia without me. Being a lawyer is work, so if you're a lawyer who wants to be a judge, do it well.

If you're in a job where you can't do great work, start finding a job where you can do great work. That's always my number one. My number two, especially for women, is to try to keep your sense of humor. It has served me well. Also, if you want to be a judge, you have to be aware that everyone will be asked their opinion of you down the line. It's important to do your best with colleagues, especially opposing counsel. Treat people well, especially if you're in a more powerful position than they are. Make sure they understand that you would never use that and lord over them. Those are probably my three biggest, but the number one is always to find a way to do good work because that will distinguish you.

That fits with what I know about you, yet you're hardworking and creative too.

Thank you. That's so nice.

You embody that. You're not just giving advice. You do that.

One of the most pleasant experiences for me, and they weren't all pleasant, about applying for the judgeships was, every once in a while, somebody will comment, and you'll get word of that. I had a couple of people, and it had been years. I didn't even barely think they remembered me. They'd cc me with letters or their comments, and it was so nice. It pays off to be good to people and to keep a sense of humor. I always try to assume the best. If somebody wants to be a jerk to you, you're going to figure it out, so don't assume it. It's things like that. People are stressed, tired, and have clients. It's about hearing from somebody five years later that after the trial, your client said, "That was a great prosecutor," or something like that. That lawyer remembered that. It will come back to reward you.

That's good to hear. We like to think that if we're putting good into the world, it will come back to us. It doesn't always, and that's not why you do it, but it's nice to hear good stories about that. Sometimes, when it's a tough day, it's nice to have unexpected kindness, however small it might be, including people saying nice things about things you did that you may not even remember from many years before.

If it made a difference to them or their clients, they'd remember. If you think about it, you will do the same if you had something you remembered that made the person a first-rate opponent, and five years later, you were asked about it. Not everybody is always nice. Don't get me wrong. I'm not one of those. You'll figure it out, and you'll figure out a way to deal with it. It has been my philosophy. That's a solid thing. You can't be a doormat. You got to take care of yourself and have to do all those things. Generally, what goes around comes around. If you have an eye toward being a judge, you have to run your practice thinking, "What is this person going to say about me ten years later?"

That's good to keep in mind. I don't know that you always know what they'll say, and sometimes it's a lot nicer than you might have thought.

I've had it go the other way. I had somebody consistently for all three of my judgeships say I was unfair. I feel bad about it that the person got that impression. I'm old and mature enough to know that I probably tried my best, yet it happened anyway. It does happen. People get it in their minds that you're out to get them, and nothing is going to change their minds. It's not all sunshine and roses, but to the extent that you have any control.

My thought is to make it as pleasant as possible. Even if you're an introvert and don't want to smile at people, do good work because that's a huge part of the way there. I tell people, "I can meet you at a party and have great things to say about you, but if I don't know your work, I'm not going to write you a letter of recommendation." It's knowing your work. It isn't attending receptions. That's good too if that's what you want to do. It's doing the work and getting it in front of people who can and will say good things about you if asked.

It's doing the work and getting it in front of people who can and will say good things about you if asked. 

Those are good practical points I don't know that people always think about. Sometimes, people think, "It's not in my control. The governor is looking for certain things at a certain point in time, and I can't control that." There are a lot of things you can't control, but you can with the things that are in your power to do. You should do those to the extent you can. Those are all within your power and all good things in general to do professional life a little more pleasant.

If the judge thing doesn't work out, you've made good contacts and impressions, and you're working. All those things come in handy later.

In some ways, you may never know until something comes up. Thank you so much for talking about your path, advice, and all of that. I appreciate your joining the show to do that.

It was my pleasure. Thank you for listening and asking such great questions.

I usually end with a couple of lightning-round questions. The first thing is, is there a skill that you don't have but wish you did?

I wish I were a better piano player, and I wish I were more patient. I try. I self-monitor constantly, but I do tend toward impatience. I like things to move fast and be efficient, so I try to calm that side down, but I want to play the piano. I'm terrible with that.

With impatience, is it that your mind is moving quickly?

You're very sweet to say that. That's what I like to think because it used to sound like I'm a better person. My mom says she stopped reading out loud to me when I was about five or something because I kept telling her to read faster. I don't remember that. I do remember thinking when she was trying to read to me. I love to read, and I was reading by then myself. I do hope that it's wanting a lot of input. I admit that it's something that I'm always working on.

For me, it's always like my brain is moved a few steps ahead, and I'm like, "I'm there already."

I'm not necessarily the best, but I've gotten better at it, and I worked at it. I don't necessarily mean patience as intolerance. I tolerate folks well as a judge. Be compassionate, tolerant, and all that. As you said, it's more when it's somebody who's a colleague or an equal, and it's trying to pull information out. It's like with my mother. A lot of us probably have it.

Who is your hero in real life?

That one is tough. I wouldn't say I have a hero, but the closest would probably be my dad. I'll say briefly because he had a very adverse background. He overcame it. He kept his sense of humor, and he's a compassionate, practical person on top of all of it. I like to try to model myself after that. He does tell a lot of bad jokes. I do too, but I'm trying not to do that.

Given the choice of anyone in the world, it could be more than one person, who would you invite to a dinner party?

If it were us talking, I would like Fareed Zakaria to have dinner with me. I don't know if you know who that is. He's the most fascinating, insightful person that I watch on a daily basis that I don't have the current ability to have dinner with. He might be my number-one choice.

He's so wide-ranging in what he covers and talks about. It seems like it would be interesting to hear a lot of different areas that he's dealt with.

Also, Bill McKibben who wrote Falter. He's an environmentalist writer. Falter is the scariest and the best book ever. It's mankind losing its edge. It's interesting. I paraphrased it. Maybe those two.

That sounds like a good combination. Last question. What is your motto, if you have one?

It's a sign on my desk. It's a quote from Yoda, "Do or do not, there is no try." I have to tell you. I was going through a rough time a few years ago when I was saying that I had failed at something I wanted to do. I was saying, "I tried," and then I said, "I can't say that. My motto is do or do not. There is no try." My friend said, "You didn't just try. You did. When you're doing something that takes more than one person, that's the best you can do." I thought that was very well said. I kept my motto. It might sound harsh, but it doesn't mean that sometimes the ultimate doesn't get done. It means that you need to give it your all.

That is a good statement. That's something my mom used to say to me on time.

It's the weird grammatical syntax. The way Yoda talks makes it sound less like my mother. It's more like some wise person imputing this motto. I also have a sign that says, "If you can't run with the big dogs, stay on the porch," which is my close second. It reminds me of when you're out there running and get run over, that's what you get for leaving the porch. You got to take your chances. As you can tell, I'm not easy on myself in that regard.

That's how you accomplish more. You have your own standards for yourself, which are quite high. Keep going with that. You do more when you have that attitude and approach. Thank you so much for joining and being part of this project. I appreciate it.

It was my pleasure. Thank you again.