Episode 1: Christine Durham

Judge
Written By Third Boxcar LLC

Former Chief Justice, Utah Supreme Court

 01:04:00

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Show Notes

In this episode, we chronicle a woman's journey to the bench and beyond. Christine Durham retired from the Utah Supreme Court in 2017 after serving as a Justice for 35 years, including 10 years as Chief Justice and Chair of the Utah Judicial Council. As one of the first women judges in her state, she led the way for others to join the bench. She describes what it was like to be at the forefront of women's changing roles in the law, and what led her to choose a life of public service. Listen in as Justice Durham shares anecdotes that will continue to inspire the next generation of women, lawyers and judges.

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Chief Justice Christine Durham

Chief Justice Christine Durham

Christine Durham retired from the Utah Supreme Court in 2017, after serving as a Justice for 35 years and as Chief Justice and Chair of the Utah Judicial Council for 10 of those years. She currently co-chairs Utah’s Coordinating Committee on Access to Justice and the Utah Center for Legal Inclusion. Before joining the Utah Supreme Court, she served on the state trial court after a number of years in private practice. She received her A.B. with honors from Wellesley College and a J.D. from Duke University.

Ms. Durham is now an appellate attorney with Zimmerman Booher and serves as a private mediator and in the fall of 2020 was admitted to the roster of the American Arbitration Association.

Ms. Durham is past president of the Conference of Chief Justices of the United States and also past chair of the American Bar Association’s Council on Legal Education and Admissions to the Bar, the entity that accredits American law schools. She is an emeritus member of Duke University’s Board of Trustees, the Council of the American Law Institute, and is on the Board of Overseers for the Rand Corporation’s Institute for Civil Justice. She is a Fellow of the American Bar Foundation and served on the governing boards of the American Inns of Court Foundation, the Appellate Judges Conference of the ABA, the ABA’s Commission on Women in the Profession, the Federal Judicial Conference’s Advisory Committee on the Rules of Civil Procedure, and is past president of the National Association of Women Judges.

 

Transcript

We have Justice Durham, who previously served as a Justice and Chief Justice on the Utah Supreme Court and now is in private practice. Welcome, Justice Durham.

Thank you so much.

I wanted to start first with how did you decide to go into law. What attracted you to study Law and become a lawyer?

I'm not someone who grew up with any lawyers in my family or a circle of acquaintances but I went to college in the mid-‘60s. I did my high school years in France. I was coming back to this country in the '60s when there was a lot of activity in the arena of Civil Rights and war protests. I was drawn to the role that I saw lawyers playing in the fight for Civil Rights, which inspired me.

What dawned on me was that lawyers could be problem solvers and that they had skills that could be brought to big problems in the world. I picked it and startled my father. My father said, "I don't think you will like law school." I thought he was saying, "I don't think girls should go to law school." That made me even more determined. I found out years later when I relayed that conversation to him, he said, "No. I just didn't think you would like law school."

Sometimes people don't like law school but they like law practice.

I was one who loved law school. I loved everything about it. I loved everything I did in my private practice prior to going on the bench. I lucked into the best jobs in the world in terms of what I’ve got to do as a judge. I'm loving now as a retired Judge going back to appellate practice. It has been a wonderful experience.

Some people think or you have in mind that being in the judicial role is that's the ending role in your career, and there isn't a next chapter but in fact, there are quite a few judges now who go back into practice after that and appellate practice from the appellate bench. That's a good thing to know that it's not the end. You can carry on with other stages of your career afterward. Having been a judge gives you a very different perspective as an advocate.

It does, indeed. You learn a lot about what judges think about, how they make decisions, what they need to know. Those are all very useful things to be aware of when you are doing appellate advocacy.

I know that some people get that from their 1 or 2-year clerkships after law school. Did you happen to clerk or not?

No, I did not have an opportunity to do a clerkship, partly because when I went to law school, my husband was in medical school, and we had a couple of children. I was at Duke University. It wasn't as if I was in New York, Boston or Washington, where I could have easily done a clerkship without leaving home. It wasn't on my radar, nor would it have been feasible. My husband was behind me in his education. I had to be in Durham, North Carolina, for two years after I graduated.

Once you graduated from law school, then you are saying you had decisions because of where the family was at. What practice did you do?

I graduated from law school in 1971. At that point in time, there was not a single law firm in Raleigh, Durham or Chapel Hill that would even interview a woman. It was the times when law firms coming to Duke to interview would say, "Men on law review only." They were very blatant about it.

A lawyer's primary function is to help people solve a panoply of problems.


Would they write that down? Was that the criteria?

Yes. It was pretty amazing. That changed not long afterward but it was pretty restrictive. In fact, when I met Roberta Cooper Ramo at a dinner at the Supreme Court, we were getting acquainted. For anyone who doesn't recall, she was the first female President of the American Bar Association. Roberta was practicing law in Chicago when her husband came down to Duke to do a fellowship at the medical school there.

She sent out with the support of some impressive people and her impressive law firm all kinds of job applications. The only interview she got was from someone who thought her name was Robert. She finally secured a government job through her law dean's connection with the then governor of North Carolina. I wasn't the only one who was experiencing those events in North Carolina but I had the opportunity to work for a law professor doing work on the healthcare system.

I’ve got a job teaching Law and Medicine at the Department of Community Medicine at Duke Medical School. I worked with an agency that did legal issues for elder care and so on. I drafted one of the first legal manuals for elders in the United States because of that. I also worked on all kinds of interesting legislative issues. Duke's Medical School was then trying to establish a Physician's Assistant Program using the medics who were returning from the Vietnam War.

I helped do research and some drafting for that. I did anything that walked in the door. I hung up my shingle and took referrals from friends of mine who had landed at legal aid and other places. They were two very active and interesting years. I was a very young judge, and one of the things I was able to say, it was a little bit of puffing but when I applied for a judgeship later on in Utah, I was able to suggest, "I have done a little bit of criminal work, domestic work, personal injury, and taught Law and Medicine in Department of Community Medicine at Duke Medical School.” What was a fragmented career looked like a career of broad experience.

Which is valuable for the bench because people ask, "You have only done Civil. You don't know anything about criminal, you only done this kind or you are going to have a big learning curve for other kinds of things," but you demonstrated that you had experienced in a range of areas. How did you get from North Carolina to Utah?

My husband is a Utah native. He had a lot of family out here, and the University of Utah at the time had a rising Pediatrics program. He decided to do his three-year residency here. We came initially for his residency and also to see whether it was a place that would be good for our family, especially given the roots and the family he had here. After three years, he had a good job offer. I had a good job. Salt Lake at that time was smaller than it is now but it offered a great deal of convenience, and management issues could be solved. We thought we could make a two-career multi-child family work in this environment, which turned out to be right.

Tell me how you came to consider applying for the bench.

I had found work with a small firm that did primarily Securities Law, which in and of itself was ironic because I had never taken Securities Law in law school but my senior partner had worked for the SEC in Denver and had a good history in Securities Law. He took me on with the view of teaching me everything I needed to know to represent our clients. I have had ambitions to be a judge since law school. When I took trial practice, I always wanted to be the judge. I'm not sure why.

One of the things I always loved about the law was the problem-solving aspect of it. What I see as a lawyer's primary function is to help people solve a panoply of problems. I also saw being a judge as the ultimate opportunity to solve problems, to solve legal puzzles, to resolve disputes, to move the wheels of justice. My senior partner knew about those ambitions. It was an interesting time in the judiciary here where salaries had been very low historically, and the trial bench was not particularly strong.

My senior partner encouraged me to apply at a ridiculously young age because of my academic credentials, so I did. I’ve got interviewed by the nominating commission. We have a merit selection system, and my name went to the governor. The governor interviewed me and spent some time talking about my background. One of the keys was his daughter-in-law was then a student at Wellesley College, which was my undergraduate institution. That was a point in my favor in terms of his review. He gave me the job as the first woman General Jurisdiction Trial Judge in the State of Utah on our General Jurisdiction Court known as the District Court. That was in 1978.

If you do the math, you will realize I only graduated from law school in 1971. I was a very young judge. I spent four years there, and then a vacancy occurred on the Utah Supreme Court. The governor let me know that if I could get out of a nominating committee, he was prepared to put me on the Supreme Court. I applied for that. I did get out of the committee. He put me on the Utah Supreme Court again, the first woman in Utah's history in 1982.

Was it the same governor who appointed you to the Supreme Court?

Yes. Utah's last Democratic governor.

I was wondering about that. There was no requirement at the time in terms of experience. Sometimes there's a requirement like ten years in practice.

I don't believe we had one. I would admit it for the Supreme Court but not the trial court, but no. I made sure my car was the first one in the parking lot in the morning and the last one out in the evening when I was on the trial court. I demonstrated a degree of competence that gave people some confidence in me, and a number of people went to bat for me. Some were friends and colleagues of my former senior partner and other lawyers who had appeared before me, so I was very fortunate in that regard. Interestingly, there was so much attention paid to the fact that I was the first woman that nobody paid any attention to how old I was. I was lucky in that.

No one pointed that out. You mentioned a few people who helped you along the way, the governor, who liked you having appointed you first and appointing you again, and your senior partner. That's a story that I have heard a lot. Mentors sponsors people who helped you.

There were a number of prominent lawyers who worked on an informal committee with the governor. The governor was a lawyer, and he cared a lot about the bench and his appointments. He relied on the people on this committee. One of them had appeared in my court but he called and asked me to come in and chat with him and asked me with whom I had worked and other people who would know my work and so on. After he vetted me, I know he was supportive of the governor, for which I was appreciative.

Were you involved in other community things where people could get to know you?

Yes.

I assume that was from the beginning.

That's something I always tell young people that find something that you care about and get engaged with, making it better. For me, our youngest child was born with down syndrome. I became involved in the creation of the first legal center for people with disabilities. The other thing that worked out well was that I went on the board of an agency, a nonprofit that provided intervention services for young children with disabilities. The chair of that board ended up being on the nominating commission for the Supreme Court when I applied. We had worked very closely together and were friends. I didn't talk to her about it, but I'm quite sure she did me a lot of good with the commission.

I'm sure having worked with you and known all of your strengths and what you would bring to the bench. Your point of saying, doing things that you are passionate about, I feel like sometimes people say, "I need to get out to meet certain people."

 

Being a judge gives you the ultimate opportunity to solve problems, resolve disputes, and move the wheels of justice.  

 

It's not just collecting badges. It's doing work that you care about and doing a good job. My universal experience with that thing is that I make friends. Sometimes I encounter people I don't agree with, and maybe we don't end up friends but generally speaking, if I care about the work and the other people care about it, those are associations that last through your community and personal life.

Sometimes they are involved in other boards or activities that they may suggest to you that you might not have even known about. You were on the Utah Supreme Court for a very long time and were Chief Justice for a long time as well. Can you say how that was or how that evolved? Most people are not on Supreme Court as long as you were.

I was there for a total of 35 years. That was a great run. When I joined the court, however, it was emerging from a time through the '40s and '50s through the '60s and '70s with some exceptions during which the court had a number of members who were not interested in going deep into questions of law and who didn't have a lot of influence on the development of the law.

At the time I joined the court, that was changing and changed pretty dramatically throughout the '80s and the '90s. We had the opportunity to be deciding cases where there was no relevant law going back for decades. It was a creative and hardworking time. I had some wonderful colleagues. At the end of the '90s, I had become interested in a lot of issues having to do with court governance.

The opportunity to become chief that took twenty years. I didn't get the chiefship for twenty years. Our court chooses its own chief. Through 1986, we had a two-year rotation. After that, there was a huge revamping of the judicial article, and I’ve got to work on that. I was on the implementation task force that put that into effect. I’ve got interested in court governance because we had an extremely fragmented system in Utah. All the court levels were individual fiefdoms with no communication with each other and no central governance.

I remember when I was a trial court judge going to the appropriations committee on behalf of the trial court judges association of the state to ask for salary increases. They listened politely but as I walked out, a friend of mine that I had known from my college years in Boston, who was at the time President of Senate, walked me out and he said, "You need to understand that the Chief Justice of the Supreme Court was here telling us judges don't need salary increases."

What he said was, "Until the judges figure out that you've got to come to the legislature with a single voice, there's simply no impetus to give you what you need." That was when I started to dedicate myself to seeing what could be done. There were others also engaged in that effort but that's why being Chief Justice for ten years was gratifying. Being able to take the constitutional amendments and implement them in terms of centralizing our governance procedures and making the judiciary a real branch of government.

Without the funding, then the branches will not be able to operate at optimal capacity. That exemplifies one of the things that I have heard other judges talk about too, which is the leadership opportunities as a judge. There's external ones but the internal ones in terms of how the entire justice system operates are also interesting. That sounds like one of them.

Those have become available to women over the years. When I was a new judge, I remember a list of committees and appointments that came out, and all of my colleagues were appointed to committees and made the chairs of those committees, I was the only one who was appointed to a committee chaired by someone else. It was specific and deliberate.

The same Chief Justice once said to me that he didn't think that the Utah courts were ready for female leaders yet. We had no one. That changed over time. In the end, I felt grateful for the time because the time when I came in, we were no longer having those particular battles. I had time, energy, and focus on the substantive issues that I cared about. That was a good opportunity.

I was one of the founding members of the National Association of Women Judges. The first meeting took place in 1979 in Los Angeles. There were about 125 of us from all over the country. We were all agog of how many women judges they were in one place. I spent a lot of time with that organization, became president of it. That gave me leadership opportunities all the way up and down the organization.

The organization grew quite rapidly in those early years. I became convinced that one of the reasons was a lot of women in the judiciary who didn't have opportunities at home, found them in that organization, and acquired credentials that they could then take back home and use to fill other leadership positions.

In fact, I have noticed that a lot of women judges don't have time for the NAWJ but it's because they are the presiding judges and the chief judges, and the ones who are running their systems back home. It's a balance in terms of NAWJ's mission but it also means that the opportunities for leadership have opened up.

The organization was successful that now people are busy in those positions. You were in a lot of different currents of change in your own system, in women's role in the profession, on the bench, and able to lead some of that change and carry it forward. That's such a wonderful set of opportunities. I love that you were saying that the court itself within the state was carving out a new identity for itself to be more of a leader in judicial decision-making and lending guidance to the other courts in the state. You would have thought, "That's what it always did," and you joined it.

That is not what happened. Our courts were so fragmented. There wasn't even a judicial system to manage. The individual counties did all the funding of the trial courts. The trial courts had their own counsel, and the general jurisdiction trial judges looked down on the juvenile trial judges who had a separate line of funding and had been created by the legislature. There were the justice courts which were the wild West. It was a very fragmented system, and it wasn't until we amended the constitution and pulled everything together in a new judicial article.

We have a unique governance model where the Supreme Court doesn't run the judiciary, the Judicial Council does. The Judicial Council is a Senate-like body with representatives from all the court levels. The Chief Justice of the Supreme Court is automatically the Chair of the Council, so there's that. The court has the power over rules and regulations of the practice of law and so on. Governance is constitutionally placed in a representative council. It creates some interesting problems sometimes but it's also helped us to build a very strong system.

That's similar to California's system.

California's judicial council is appointed by the Supreme Court, whereas ours are completely independently selected. The court has no control over membership. We are a little bit more democratic.

Tell me about the Supreme Court in terms of opinion writing and oral argument. This is the time for those who are in practice to say, "What should we be doing that would make your life easier on the appellate court in our briefs and in an oral argument?"

 

Find something that you care about and get engaged with making it better. 

 

Every judge, I have a lot of preferences and a few pet peeves. One of the things that I care a lot about is the clarity, brevity, and usefulness of writing. That's the first thing we see about the cases. What's in the briefs? What has been selected to be referenced in the record? That should give an appellate judge an outline of what you are talking about, what you need from the court, why you deserve to get it from the court, and finally, how the court can give you what you need in the way of a result.

All of those are important because a lot of people get engaged in the theory or the factual background of their case that they forget to narrow it down and say, "Here's what the court needs to do. Here's why you can and should do it. Here's how you should do it," to enable us to go forward. That's a model that I still try to use as I'm working on appellate advocacy from the other side.

The other thing is that people often ask, "Is oral argument important?" I don't know about at the Court of Appeals level as much. I know they hear more cases without argument. We never heard cases without argument. If it were conducted by very well-versed counsel, who knew their cases well and who had thought about all the points I made, and who were willing to enter into a conversation and give you a chance to say, "I don't understand how this will work. Can you explain why this isn't a problem?" Have them put their notes down and say, "Here's why that isn't a problem. Here's the way you can solve that particular issue."

I always enjoyed the exchanges in oral argument. I found that there were a fair number of cases. You develop a feeling for a case as you are preparing it and having your law clerks do some research and talk with you about it. I always tried to reserve judgment until after oral argument. I know some judges prefer to even draft opinions before oral arguments. I don't think I ever did that, even though I would have outlines and ideas about where I was going but I wanted the benefit of that conversation. I also wanted the benefit of the conversation at a conference.

I worked with able and intelligent colleagues over the years, and I figured they had been doing all this work, too. It would be helpful to me. I should have kept track but there were too many years and cases but there were cases where I shifted my initial perspective as a result of what happened at oral argument and at a conference. People should never assume that there's a foregone conclusion or even if you think there is, try to find out what it is so that you can address it in your opportunity to talk with the court.

I always think as the advocate, the only opportunity to be in the room, to be able to answer questions and to see where the sticking points might be. Otherwise, you are guessing if you don't know what might be.

You can make mistakes. All of us who have been on the bench have recollections of occasions where you will have a softball to counsel because you want to help out a little bit because you think they need it or want them to have it, and they don't understand it's a softball. They assume that any question coming from the benches has got to have an ulterior motive.

Recognizing the friendly questions is an important thing. Also, there are a lot of discussions back and forth between the different justice systems.

A lot of questions from an appellate bench are directed to counsel but they are often meant to surface an issue that another colleague has or will have, and to give a lawyer a chance to address it. Even sometimes, it's fair to say that in the way you frame the question and provide the background for it, you, yourself, are doing a little bit of advocacy for a position you think has merit, so being attuned to those nuances. I have wondered, we have moved to Zoom arguments in many courts and is better at the appellate level. I do think that we have lost some of that interaction. If you can see the whole bench at the same time, that's very helpful.

I have noticed the same thing, and it concerned me. A few judges that told me as well, and the appellate bench that they miss that being in the same room and having that interaction with each other was what was missing. As an advocate that we have missed that too because we get a lot of cues, the softball or whatever, sometimes based on the whole panel. You can't tell and how they are thinking or whether there's a question that is directed in a way to another justice that might have a different view.

Utah Supreme Court: A lot of women in the judiciary who don't have opportunities at home, find them in an organization which allows them to acquire credentials that they could take back home and use to fill other leadership positions.

You can't see the side glance.

The body language and all that, it just isn't there. I do think that that's missing from the Zoom but at least we are able to continue on with work and with cases through Zoom. It's good. It's very important to keep the cases moving and get cases decided for people. I also think that at the Supreme Court level, in particular, you are deciding the case but as you mentioned, deciding Rules of Law for the state and jurisdiction. I would think you would have a lot more questions at argument because you are not assigning these facts, you are thinking about the application beyond the fact.

You've got to explore the impact of whatever principle you are being asked to articulate on sometimes generations of cases in the same field. That makes appellate work special, in the sense that you are solving problems but you've got to solve them in the big context very often as well as in the individual context. It's challenging and exhilarating.

That's what makes it special as well. As an advocate, if you have one case and you can change the law, instead of doing right by one person, you can do right for a lot of people in the future and it's gratifying.

The tests that you devised and the standards you articulate are going to affect lots of cases in the future. Sometimes you flat out get it wrong. It has been very interesting for the few years to be working here at the firm, which has an exclusively appellate practice. Often when we are mooting cases or preparing cases, we spend a lot of time on precedent. Having been there for many years, there are a few of my cases that come up from time to time. Sometimes they are not helpful to what we are doing here. They all turn and look at me. I have to say, "It seemed like a good idea at the time," which it did.

Sometimes, you do the best with what you can at the time, and what you know, especially if you are launching a new rule, it takes time to see how that pans out. Maybe after time you go, “I didn't work out the way I thought it would work out.”

We had an interesting case where we were filing a claim under one of the provisions of our state constitution, and the court had ruled on it during the period I was there. One of my colleagues here at the law firm, Michael Zimmerman, was on the court at the same time. We joined a ruling, neither of us wrote it, which was predicated on the absence of any cause of action in the Pre-Constitutional Common Law in our state.

When we were working on this case, one of our incredible researchers here at the firm discovered that there was not only a Common-Law cause of action but a statutory provision in Territorial Law that solved the problem in a different way, and nobody had found it. Nobody had cited it to us. We didn't know it existed. In fact, I'm not even sure that search facilities back then would have been adequate but it was wrongly decided based that on that piece of research we didn't know about at the time we decided it. The case settled before it went to court but my name was on a brief saying, “This case was wrongly decided, it needs to be overruled.”

You are with Utah's first appellate boutique.

That is true. The firm is only ten years old. The colleague that I mentioned, Michael Zimmerman, left the court after about 15, 16 years, went back into practice, and ended up wanting to do a lot of appellate work, finding that there were some constraints in the context of the big law firm. He and a younger partner, Troy Booher, decided they would take a chance. No one else had established any dedicated law firm dealing with appeals. Most people were very skeptical.

People thought that there wasn't a big enough niche or we are not a huge state and that there wouldn't be enough business. They have all been proved wrong. By the time I left the court, this law firm was arguing between 1/3 and 1/2 every month of cases before the court. It was doing well. There are now a couple more because people have seen it.

That creates the market, and then there was competition. I remember when Michael and Troy broke off because we were practicing at the same firm at the time. I kept saying, "I wished that I was a Utah lawyer," because I would love to practice with you all in the boutique.

 

When you solve problems, you often have to solve them in the big context but you have to consider the individual context as well.

 

You would have enjoyed it. I went on a court in 1982, and the court's rulemaking process was not well organized. The vast majority of trial lawyers did their own appeals. There was very little attention paid to the rules of the appellate procedure and to the development of things like standards of review and so on. It has been interesting to see appellate work evolve to a much more sophisticated level in our jurisdiction. Where this firm success comes from is because they have always known what they were doing and why they were doing it.

I always say, "When people see that the level at which you are operating when you are doing appellate, it changes everyone's view." Like, "I shouldn't be doing this. This is very specialized." You bring something different to the table. Once again, I see a change in the practice a lot, at least Appellate Law in Utah as well, you are cresting that way with the firm.

I have had a good knack for being at the right place at the right time on a number of occasions. That's one of the reasons I said at the beginning that I had loved everything I have ever done in the law, and that's probably why.

It's exciting. You are at the points of inflection in the practice, from women's role in the law in the practice to the substantive aspects of it. Did you have a challenge adjusting to being an advocate after being on the bench?

I don't think I did. I had a learning curve being at a law firm. I certainly had a learning curve in terms of being on the other side of the bench and working on persuasion rather than decision-making, although decision-making is always a part of any practice. I enjoyed the learning curve. It was fun to do something different. I was on the court for such a long time.

I went back and forth. "Is it time to retire? Everyone has to, in any event, at age 75," but there came a moment when I thought, "I have had a great run. I have loved this job but it's time for me to do something different. It's time for the court to have some new blood on it." I have been quite surprised. I thought I would miss the judicial calling more than I have ended up missing it. I treasure it. I loved it but I'm happy doing what I'm doing now.

It sounds like it was an intentional decision. "I have done what I'm meant to do in this particular role, and now it's time for this."

There's always unfinished work, I know that. At some point, as you age, you have to turn that work over to other people.

The person who took your position on the bench, did you have some role in encouraging the person to apply?

No, I didn't. We have this merit selection system, and I'm happy to talk to or mentor anybody who contacts me. In fact, I have over the years, and I did this time too to some people that I would have loved to see on the court. I made contact, encourage them, and so on. They didn't have a lot of luck. The woman who was chosen to replace me, which was good, was someone I hadn't known. She was a relatively new trial judge.

She had been a US attorney in New York, and she had worked at the Court of War Crimes at the Hague but she was very credentialed. I have gotten to know her since she took the appointment. I should observe that even after all this time, there have only ever been three women on the court. Now, there's only one. We have a vacancy that's come up. I'm keeping my fingers crossed that they will put a second woman on. There are plenty of candidates.

I hadn't realized that. I have noticed that across the country, there are some courts that have many women on them. There are state and Federal on the appellate level that may have one or have only had one.

I know it's so strange. Our court of appeals is majority females. It's not that we don't have a lot of talented judges.

I noticed that, too. It's not like women aren't becoming the appellate judges in their places. I wonder what is going on here that that's the case. It could be, like you said, timing or going the other way as opposed to in your favor as you have had. You have turned to be an appellate advocate. Have you engaged in any private judging, arbitration or anything like that?

Yes, I have. I have done a little bit of mediation, which I find very taxing. Mediation is difficult. I'm also a panelist with the American Arbitration Association, and I have been doing some commercial arbitrations. To be honest, I enjoy that work. It's like being a trial judge again. I liked being a trial judge, too. I liked the interaction with the lawyers and again, solving the problems, getting it done, and sending it out. The AAA emphasizes streamlining the litigation process. In fact, they don't even like to call it a litigation process. They are streamlining the process. That has been satisfying, too. That was something I had no experience with, and I thought I would try and see if I liked it. So far, I do.

It's nice to have a combination of experiences in that way. I was going to say it doesn't necessarily translate directly from your work as a Supreme Court justice. It is more like the trial judge. It draws on your whole experience in that way, doing all the work. You are still involved in a lot of boards and other things on a national level with regard to the law.

I have a hard time saying no. As I mentioned often, it's because the work is very worthy and important and the people involved in it are such wonderful people. The thing that has been taking up most of my time is that I Co-chair our Access to Justice Commission here in Utah. The Supreme Court has been doing regulatory reform. We have set up a sandbox for people who are working on projects, where you can use technology and trained legal helpers to do some of the work that lawyers have traditionally done. The idea is to monitor those and make sure they provide adequate consumer services and that they can operate ethically and effectively in the market.

The feeling is that there are huge shifts going on in the practice of law. The UK has been doing this for years. We have looked at them as a model, and I'm serving on The Innovation Office. I'm serving on their review board to manage the sandbox. I have enjoyed that a lot. I say yes to too many things. The thing that killed me was serving on our Independent Advisory Redistricting Commission. It's the first time I have ever had one. Nobody had any idea how much work it would be. We ended up doing some good work, drafting some good maps, which the legislature completely ignored.

I don't think they even looked at them, and they have passed some of the most gerrymandered, disturbing redistricting maps since then that we have ever had in the state. It was a positive for me in the sense that we created a model that had a lot of positive attention. We created a lot of public interest. Lots of people got engaged.

Everything we did was transparent and online. People would draw their own maps. In fact, one of the maps we sent to the legislature have been originally drawn by a citizen. It was a good process. The outcome was discouraging. For a few months, that was another job. It was very time-consuming. I'm learning how to draw maps with computers. It's not easy.

Also, the work on the innovation work in the sandbox is very important in terms of other states, in California, we were looking at some proposals. Arizona has it.

Florida is thinking about it. It's intertwined with access to justice issues as well. That's the one I care about.

I know you have a deep interest in that. Other jurisdictions that are considering it will want to see what happens with the sandbox. We want to know what happens, not only in what you are doing but the outcome of that.

 

You have to explore the impact of whatever principle you're being asked to articulate on.

 

A huge component of our project is the evaluation and collecting of the data.

It's important to others because it will inform policy decisions in other jurisdictions. It's important to Utah as well because of the impact it will have but we are all looking to that to see what happens since you are ahead of the curve on the other jurisdictions.

We are trying to keep our heads up. We have had wonderful assistance from the people who thought all this stuff up in the first place.

Many of the different things that you have done in law, and I don't want to say in your legal career because it's a life in the law. That's how I feel listening to you. There are so many ways to live that life and all in one lifetime too, all of the different ways that you have done. Hopefully, it will open people's eyes that there are many opportunities within your career.

One brief story. When I was first appointed to the bench as a trial judge, they handed me a robe, an in-court clerk, a courtroom, and a case. That was it. I remember thinking this is a hell of a way to run a railroad. I’ve got very interested in professional education for judges. I’ve got asked to serve on a commission that the state justice institute formed to look at that question.

Out of that grew a collaboration with some people who were working in adult education and adult learning, and we formed National Judicial Education Training Project. We worked with teams of judicial educators, judges, and administrators. Teams from many states and the state of judicial education have been transformed in those 30 years. It has been remarkable.

It means so much to me to see in my own state how valued the issues of judges being given opportunities to know what they need to know to be good judges and to work on developmental issues for people who stay on the bench a long time, and help them reach the best they can be in terms of what they know and how they function. That has been something that I have always loved. That meant a great deal to me.

I came back from the Appellate Judges Education Institute, which is the National Judicial College is involved in with the ABA, and there are a lot of values.

Back in the day, I was active in the Appellate Judges Conference. When I tried to bring some of these notions to the fore, it was not met with open arms, and I was always the only woman in the room. The fact that the whole country has decided that you have to pay attention to how people learn and grow. It's wonderful.

In that context that when you have the National Conference of Judges from all different jurisdictions, you are there, "This is how we do it. It always happens at anything. Here's how it's done. This is the way to do it." When you meet people from other places, "We don't do it that way. We do it this way." It opens your mind to different ways of doing things and has that dialogue back and forth.

You give everybody or at least we always tried to give people background on the way humans make decisions and learn new things, and how their stages of life affect those processes. That gets people's creative juices running.

I saw already the roster of training that the National Judicial College has. There's a lot going on now. I wanted to do a quick lightning round of a few questions. If you could wake up tomorrow having gained one quality or ability, what would it be?

Patience. I have always had a tendency to be too quick to judge, expect other people to make changes that might be difficult for them. I noticed that one of your questions was, “What's the best lesson in leadership you have learned?” For me, it was learning. I was privileged to participate in a session at the Kennedy School on courts as institutions. There was a whole piece of it that was leadership.

The thing I learned in that reading and that discussion was that one of the fundamental goals of leadership is to lead change. That change can be a very painful experience for a lot of people. You are asking people to give up what they know, what might be benefiting them, and systems that they have found great comfort in often to take risks, the outcome of which they don't know.

As a younger person, I was oblivious to those. I remember when I was young and lobbying for more women on the bar commission, women lawyers, and women judges. I remember a bar president at a breakfast with women lawyers saying, "What is it you women want?" The answer was change. We wanted change and seats on those decision-making bodies. I look back at it now. That was threatening to the people in those seats. I was oblivious to that. I knew what was right and what had to be done, and why didn't everyone else see that. Now that I'm older, a little wiser, and a little more patient, I have come to be more compassionate about what it takes for people to change.

You wouldn't have accomplished as much as you have if you weren't a little bit impatient about things.

You need the impetus.

There's a part where impatience equals persistence, and that's important, too.

Being compassionate doesn't mean you back off. You think about your communication style and try to accomplish buy-in if you can. There are a lot of ways to work with it.

Who are your favorite writers? They don't have to be legal writers.

Elizabeth Hardwick for her use of language. I love well-written mysteries. I'm a great fan of Ngaio Marsh. Some of the old ones, Georgette Heyer. I discovered those as a teenager living in France. I had a British friend introduce me to all of those. I enjoy biography a great deal. If they are well-written and they are interesting people, I enjoy them.

It's very interesting because, during COVID, I found it more difficult to concentrate on personal reading, which is at the core of my identity. I'm one of those kids who used to read a book, walk into elementary school and read books in the car and at family dinner. I can get away with it but it has been a little bit harder for me to do deep dives into important work. I'm trying to look at a lot of new authors. I love Toni Morrison. There's a list.

Each of them you enjoy for different reasons. Sometimes lyricism of the writing or even the apparent simplicity but not really, it takes a lot to get to simplicity. Good writing is good writing in all different genres. What in life do you feel most grateful for?

My husband and my family. I have had young women going into law ask me, "What's your secret? What's the most important decision?" I say, "If you choose to have a partner, your choice of partner is the most important decision you will make." We met when we were very young. We married when we were quite young but we were in total agreement on the way in which we would run our lives. He was as committed to my career development as I was to him.

We were both willing to make compromises and the sacrifices that would allow us to do that. There were a lot of those. We were remembering that he was recruited to do his residency instead of in pediatrics to do it in cardiovascular surgery at Duke. He had done very well in medical school in his specialty rotations but the training for that was 12 to 14 years. We had a friend who was doing that program, and we saw the way that family lived. We said, "This isn't going to work."

That will be a very different life for the family.

It would have been a very different life, and he loved pediatrics anyway. He loved that work, and it was a good decision for him but that was something he gave up. As I have mentioned, I didn't try to get a job with a big firm or take a clerkship because I wasn't free to travel. I worked part-time for a number of years in the beginning. He worked part-time. I only went full-time at my law firm a year before I went on the bench. When I have lawyers say, "Women always want to work part-time, you can't be a good lawyer and work part-time." I'm thinking, "You can. It's harder but it can be done."

That is special to have that. It's an important choice. If you could choose anyone in the world, who would you have as a dinner guest?

Maybe Eleanor Roosevelt. I would enjoy talking to Eleanor Roosevelt. She lived at a time when so much was denied to women, and she ignored many of those restrictions. She managed under extremely trying circumstances, war and her husband's illness, and the politics of the time, and so on. She managed nonetheless to develop her voice and to have a very significant impact in public and private ways. I would love to explore that with her.

Many different things to discuss with her. Do you have a hero in real life?

I have many heroes in real life. Other women who came before me. In some ways, she's not exactly a contemporary. Ruth Ginsburg has been one of my heroes for her dedication. I knew her for a long time. She came down to Duke. We’ve got some money from the administration, no women in the administration, for the Women's Law Caucus to do a seminar. We used the money to bring people to come in to speak, and we’ve got her to come down.

She was a young Law Professor at Rutgers working on her first sex discrimination in the law textbook. I followed her career, and then we ended up on the ALI council together. She was a hero to me because she was successfully navigating many of the same paths that I was trying to travel, including husband, children, very important work. I admired her and the way she carried out her duties on the court. I miss her terrifically.

What is your motto, if you have one?

We have a family motto, which is, "If there's a harder way to do it, we will find it." When you look at some of our decisions over the years, graduating from medical and law school with two children in tow, it was the harder way to do it. It's interesting because there's a little mantra. I have for years used in the shower when I'm getting ready and reviewing the day and so on, to say, "You can do this." We all need to remind ourselves that we are capable of doing what we have said we will do and what we have committed to doing.

All of us experienced imposter syndrome in many settings. Women, in particular, tend to downplay their capabilities and to have absorbed some of what the larger society has told them about their capabilities. It's pretty simple. It's not profound but the notion that you can do this is important to me. It's gotten me out of the shower and into my high heels on many occasions.

That's so funny because I have heard my mother say the same thing before she heads out to work. I was like, "I know that phrase." Even now, sometimes, you need that to move forward. Thank you so much for doing this. I enjoyed it.

I enjoyed it, too. It's going to exhaust you to undertake this whole project but you do it very well.

Thank you so much. I appreciate it. Thank you much again for joining the show and sharing all of your insights.

I look forward and hope to seeing you in person one of these days.

I hope so, too.

 
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