Judge on the United States Court of Appeals for the District of Columbia Circuit

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Renowned Supreme Court and appellate advocate Patricia Millett, now Judge on the United States Court of Appeals for the District of Columbia Circuit, joins MC Sungaila to share her journey to the bench and how her experience in appellate advocacy impacts her work on the court. She provides valuable insights on brief writing and oral argument, highlighting the perspective of a member of the bench and the importance of taking the court's perspective in crafting oral argument. Judge Millet offers refreshing insights for aspiring lawyers and judges.

Relevant episode link:

United States Court of Appeals to the District of Columbia Circuit , Model United Nations 

About Patricia Millett:

Judge Millett was appointed to the United States Court of Appeals for the District of Columbia Circuit on December 10, 2013. She graduated from the University of Illinois at Urbana-Champaign, summa cum laude, in 1985 and from Harvard Law School, magna cum laude, in 1988. After working in a private law firm (Miller & Chevalier) for two years, she clerked for Judge Thomas Tang of the United States Court of Appeals for the Ninth Circuit. Following her clerkship, she worked for four years on the Appellate Staff of the Civil Division in the United States Department of Justice and for eleven years as an Assistant in the Office of the Solicitor General. In September 2007, she became a leading partner in the Supreme Court and appellate practices at Akin Gump Strauss Hauer & Feld LLP. She has argued 32 cases before the U.S. Supreme Court.

In this episode, I'm very pleased to have joined the show, a judge on the United States Court of Appeals of the District of Columbia Circuit, Patricia Millett, welcome. 

Thank you. It’s a great privilege to be here. 

I'm so pleased that you're participating in the show and because I have particularly warm feelings towards you and your experience as a noted Us Supreme Court and Appellate Practitioner prior to joining the Appellate bench. I'm excited to hear about that part of your career journey as well. I wanted to start first with law school and the law. How did you decide that you wanted to go to law school and become a lawyer? 

For a long time growing up, I thought I was going to become a doctor then I met some worms in high school biology and it didn't go so well. I thought, “Maybe medicine isn't right for me.” I went to a small high school in the middle of the cornfield in Illinois. We didn't have a lot of debate programs or things like that but we did have a Model United Nations. I loved the writing, the debating, and the presentations. I became interested in politics and government. I went to college and majored in Political Science. It's the law that if you major in Political Science, you'd have to go to law school. 

There seems to be a high percentage that goes that way. I remember Model UN from high school as well, a lot of great advocacy and as you noted, also the international component, the policy-making. The statecraft part of it is interesting too. 

I thought for the longest time that I would be an international lawyer because of that. When I was in college, I had the opportunity to go intern for a member of the British Parliament. It was amazing. I didn't have enough language school skills. It was a small high school to go decided I had to go to a country that spoke roughly the language that we do. It was an incredible opportunity. 

What was amazing is while I was there, while I was interested in the policy and foreign policy issues, I found myself fascinated by the similarities and differences in our government, the written constitution, the division and separation of powers, the role of prime minister versus a president, the role of the head of state combining church and state. I found myself something interested in these structural questions and I came back to college and took, as an undergrad, Civil Rights, and Civil Liberties class. That was no more international law. It was sold on constitutional law and procedural issues and all the things that people go into litigation life. 

That's interesting. I was thinking you were going to say, “I discovered what was involved in international law and it wasn't as sexy and interesting as I thought it would be.” That could be part of it but that was my experience. I was going to go be an international layer when I went to Louisville too. I was like, “It's not a lot of international law.” We're talking about treaties and contracts. That's not what I had in mind. 

I thought I was going to be running the United Nations. 

It's not quite like that. Going in one direction thinking that's where you might want to go then getting this new experience that you said, “I like this. This is interesting.” That opened the door to having the opportunity to examine that comparison of the systems and what's special about ours and being part of that. Everything leads to another thing, even if it isn't what you thought. 

Law is a learning and growth profit process, especially for pre-law and law students. They always go in with an open mind to find what you fall in love with. 

Law is a learning and growth process. Always go in with an open mind to find what you fall in love with.  

If you go in with some purpose, even if it ends up changing in the end, that's still good because you’re driven to be there because law school is not easy. You have to have a good reason for being there. You thought about then going into litigation and where did you go when you graduated law school? I know you had some clerkships as well. 

There were no lawyers in my family and I didn't know much about any lawyers. One friend’s father was a lawyer but wasn't someone I'd talked to a whole lot. I was a bit at sea and I probably wouldn't have even known that litigation was a thing to do. I knew what I liked, constitutional law and these process questions. I liked Civil Procedure the first year. I know I'm a Nerd. Even within the law school realm of nerds, I am a chief nerd but then discovered litigation opportunities.  

I was on a summer associate position here in DC and someone from the Solicitor General’s Office came to talk. I thought, “Wow. That sounds great.” You can't do that right out of law school but it got me on this track of appellate litigation. I worked for two years right out of law school at a law firm then went to clerk on the Ninth Circuit for a few years for Judge Thomas Tang, which was an incredible opportunity. 

I learned so much. I got to see so much about the law, different areas of the law, and different practices that people engage in. I pretty much knew I wanted to be doing appellate litigation at that point. When I was in the law firm, I worked with someone who had been in the Solicitor General’s Office and knew about the appellate divisions of the justice department. I was feeling quite certain about what I wanted to do at the end of the clerkship and why it was one reason I wanted to get the appellate clerkship too. You got to know how the other side thinks. You got your audience. 

It's so important. 

“How does your audience think? They're the ones that have the votes. We need to get them. We got to know how they think.” I applied for different positions in the justice department and was lucky beyond measure that a position opened up at the Justice Department's Civil Division Appellate staff. I went there and I was a hog and slob. I was happy as could be. If you sit there and appeals fall in your inbox, you get a lot of responsibility in the government. 

It's not as highly tiered as you are in a law firm. I was out. It was like, “I'm going off to do this argument.” Fortunate things like that happen and my instincts had been right. I loved what I was doing. I had done a trial workshop in law school. I liked aspects of it. It was pretty clear that trial work was not where I wanted to go. I feel very lucky. 

I had that experience too. I didn't like cross-examining witnesses which made me feel bad to do that. I thought, “This trial isn't my thing.” 

All the facts. “Give me the facts and I'll work with the law.” 

Give me the package and I'll work with it. 

I know trial attorneys who do their trial and there'd be an appeal. It was like garbage. They were having like, “Go to the library for this appeal.” They're busy getting the facts and it's exciting. They come up with theories and everything. They’re sitting in a library, reading cases, and writing was not their thing. 

It's still that way. Some like to do both but a lot say, “That's not my thing.” Also, it was remarkable that you were able to find out about the Solicitor General’s Office so early and then build your skills and experience in that regard both to make sure that was what you wanted to do and also to lead to doing appellate work. There's good teaching in there and being intentional about where you go to get certain skills and experience. 

Luckily, there are people around you that you can learn from, who are willing to share information and talk to you about opportunities and make reference phone calls. It takes a village to have a career. It takes a village to have a great career. You have to know that you have to do your part, work hard, and work well with people but you can't do it on your own. 

That leads to the question of mentors and sponsors too in terms of the role that they play. Also, there are folks who are not necessarily mentors and sponsors but it might give you a leg up or give you some information that's helpful at a certain point in time, whether it's about an opening in the department of justice, which comes out very rarely or something else. 

What we call mentorship or sponsorship is close human relationships and caring relationships, which we as humans should have. We forget, especially in the pandemic and everything but in the technology age, humans are social creatures. That's as true in your career as it is in your non-work life. The fact that the goodness of other people who are willing to first teach you as a young lawyer, lets you observe and watch them and take the time to talk to you, take the time to edit your work. 

What we call mentorship or sponsorship is really just close human relationships and caring relationships, which is what we as humans should have.

I don’t know if they fit what the definition of a mentor is. That has so many different meanings. To talk to you about options and when something comes up, they're willing to make a phone call for a reference or write a letter and take the time out of their busy days. There were a number of people who were so generously doing that throughout my whole career. That's a huge life lesson too. I try to do the best I can to do that for other people as well. Helping people by giving them a hand up is incredibly rewarding and joyous. 

You're not that far along in your career before you can start helping other people. You don't have to wait until you've been practicing law for fifteen years to do that. You build relationships and care about people. Spend all your time to self-focus on your next steps and your accomplishments. Who's going to get me there? Who can I climb over to get there? You're going to be quite unhappy honestly, in your career. It usually doesn't work that well. People can identify. 

People figure that out. 

You're missing one of the richest parts of your career and that is warm, healthy relationships with other people. They become mutual and reinforcing. It's one of the best things about being a lawyer. I'm sure it's true in other professions too. To be clear, I can always speak to one. 

That's what you know. 

It takes a village to have a career and to race. 

There are two things in there. It’s rewarding to help people. I think that people don't recognize that you can be afraid to ask for help. I am sometimes too. I'm like, “I don't want to impose on someone.” It's not imposing, especially if they like you and want to see that you do well. It's rewarding to them to see that happen. Also, you can pay it forward to others early in your career. If you're a few years ahead of someone, even getting them involved in certain bar opportunities or writing articles or other things where you can help them get out there and help each other. 

It's incredible. Friendship is a good thing. 

You joined the bench though. That was a loss to the appellate practitioner bar but we're also glad to have you there as a judge on the bench. Seeing you argue and how good you were as an advocate, that part, I'm sad not to be able to see anymore. 

You’re generous to say that. There were a lot of steps between civil appellate and coming to the bench. It's been an extraordinary privilege to be here. I still advocate. It’s just in a different client and a different way to tell my clerks, “Getting the law as right as humanly possible in a group decision-making process.” Learn from your colleagues and listen to them. 

What a privilege to have, normally two other people bring their brains to the bench with you to help wrestle through hard problems, make those decisions together, and be able to discuss and dialogue about them. You spend the time thinking about issues, researching and having wonderful law clerks who could be getting paid a lot more but are willing to give you a year of their time to help you through the process. It's a wonderful opportunity. 

That's one of the things about the appellate bench too. As the appellate bar, we like to roundtable and brainstorm things as well. There's some familiarity with that being on the bench but you'll be writing a lot of dissents unless you have another vote in a three-person panel. That's a dynamic that some people who go on the bench haven't thought about or if they were on the trial court bench before, they say, “That was the biggest difference between from the trial bench to appellate.” 

Yes, because you are the sole decision-maker. Our trial court judges, whether federal or state, do not get enough credit for what they do because they get the case in the first instance. They have to go through everything, the facts, the law, and every procedural issue. Jurisdictions use a process, and steps in the content and they have to often go very fast. They have law clerks but they don't have another colleague to brainstorm or it comes up on appeal. We take our time. We collaborate and we have more time to focus and think about the legal issues than they perhaps had. 

I'm sure it feels unfair to them. I hope they realize it's the iterative process that we have here. My head is off after the district court judges here because they do so much hard work, so much great work, and do not get enough credit. That's one of my big regrets. I never clicked on a district court and I wish I had. I would've been a better appellate lawyer and better appellate judge if I had that experience. In fact, shortly after I got here, I went and I can't even say I second-chaired a trial with one of our district court judges. He let me sit there, watch, listen, and observe. Again, I was at a mentor sponsor and that was someone who was kind and willing to help educate me. 

Did you ask to do that? Did you ask for that? 

It was even one little trial that I learned so much. I feel like I should be doing it every year but then you get so busy and don't have the time. Part of your career is always to know what you don't know. Be humble. 

Going back and forth, I know some judges who were in the trial court and on the court of appeal. They said, “I wanted to then go back to the trial court. Knowing what I knew from the appellate court, I would've tried cases differently.” There is this constant learning back and forth like you said. 

The processes are different. District courts have to do so much in short periods of time. Their job is to turn it out and get it done to the best of their ability and what the appellate process does is different. It's the way we've designed it. You add more brains to the mix at each level, even though you got superpower or judge brains. We bring collaborative heads together at the appellate level and bring even more at the Supreme Court level. The issues narrow and narrow focusing on the law. The appellate process is different, which is why appellate litigation is different from trial litigation. It’s understanding the process. Supreme Court litigation is different from appellate court litigation. 

We bring collaborative heads together at the appellate level and bring even more at the Supreme Court level.

I was wondering about your experience advocating in the US Supreme court prior to joining the court of appeals. Do you think that impacts how you view what you're doing on your court or where the case might go next? 

The training was invaluable in part because, in Solicitor General’s Office, you learn to think because it's a big client and you're representing the US government. What works for one agency might not work for another agency. In that office, you do appeal recommendations. Every affirmative appeal has to be authorized by the Solicitor General in the whole government. A few independent agency exceptions. 

Thinking about the consequences of arguments, and the consequences of physicians have trained me. You have Supreme Court and Supreme Court justices pushing you on issues and refining what the legal rule is. It should be adopted here and why and what the consequences of it are. It has helped me. At least I tried. I don't know if I leave it to others to grade whether I'm doing it or executing but at least from my end, it has given me a lot of perspectives and thinking about when arguments come to me. 

We have to write an opinion on what rule of decision we're going to adopt, how we articulate it, how we lay it out, and how we explain it to the lawyers but also their clients in the non-lawyer world so they will understand what we're doing. In the federal system, our judges' job is to show our work and explain ourselves. The other branches don't always have to do it.  

Often, they may because they consider it advantageous but we genuinely have to explain ourselves. That's all we have to give our decisions credibility. It's all we have to offer. I'm grateful for what I was able to learn from so many great colleagues and supervisors in Solicitor General’s Office and in Civil Appellate and from justices teaching me through argument, rough arguments, and good arguments and opinions that came back, how to think better. 

I wonder now that you're on the appellate bench, do you look at oral argument differently? We have our perspective as advocates and you have a lot of experience arguing but when you came on the bench, did it surprise you that there were certain things that you recognize, “This would be helpful. I should have done that when I was an advocate?”  

A lot of it bore out to be true, which is good. It’s something that's reassuring for you and other lawyers. That is at least the people who are appellate specialists like you. That is that you have to go into arguments, understanding your audience and it's a multi-member audience like it is for an appellate court or Supreme Court. You have to understand the dynamics of their relationship. 

We have a very active questioning court and it's a three-dimensional conversation. Oral argument is not just you answering that judge's question. If you answer one person's question but the answer is being heard by either 2 or 8, if you're on an en banc court, whatever number, and all of them are processing it. For me, it's very much, “How am I going to write an opinion? We have to make an opinion. We have to write one. It has to be coherent and work within the law.” 

It's going to have to govern not your case but all the other cases because that's what decisions with integrity are meant to do. You may like it on the facts of this case but it's going to be the same rule of law and facts we don't like. That's the integrity you have to bring to the law because that's how we're supposed to decide things. I had learned a lot of that over time in that process. When I was a lawyer, I got to count to 2 or 5 or whatever it was to win. It's factually accurate at some level but it glosses over the group decision-making dynamic that we are dealing with looking for common ground. 

What I hadn't appreciated enough is that we take an oath to make independent judgments but we're supposed to be collectively independent, oxymoronic. The theory is that you bring that information to bear. You bring your experience and knowledge and abilities to bear. Together, it will come to where the Venn diagrams overlap or something. You'll be able to come to a decision and reason together to grow organically. 

From the bench side of that, I found that to be something that I hadn't appreciated that deep a level at the time. I remember early on one of my arguments when I was a judge. I thought about a caseworker through, “This is probably where it should go,” in my mind. My colleagues were asking some questions and this was all about the trial court process. This was a former trial court judge. I'm like, “I'm aware of what I don't know.” 

All of a sudden, I remember thinking, “I can change my mind. I get to learn,” because when you're the advocate, you don't get to go, “Great question. Never mind.” You're dropping the whole case. You're right, they should win. You don't get it right. You have to react. Whereas, it was this liberation in my mind that what I thought gets to keep growing organically through this process and what a privilege to be able to learn from the people on whatever sides of me while I'm here, as well as from the attorneys. Appreciating that the judges are learning from their colleagues as well as from you, as an advocate is so important. 

That is interesting. You know that and you've seen that as a clerk but it's different being in that and recognizing, “I get to change my mind because I'm not advocating in particular.” Even more so is that, I've seen the a-ha moments from questions of colleagues on the bench where you see it go, “I hadn’t looked at it that way. That's an interesting perspective. I need to incorporate that,” but hadn't thought of it in the way you're saying. 

It’s part of your preparation. It has got to be for that dynamic to understand. That's as a lawyer, it's three-dimensional chess. You've got to be aware of the dynamics between the questioning by the judges, the dynamics amongst the judges, as well as the interaction between you and them and the growing process that can happen. Combine that with you're coming, looking for an outcome. We're looking for an opinion. That's right and it is integrity. Is not going to screw up the world. It’s going to be workable as a rule of decision within the framework of precedent and tax, whatever it is that we're interpreting. 

When I was teaching, even when I was still in practice teaching advocacy, I would say one good way to prepare for an argument is, in addition to the thousands of things I'm sure other people have talked about, you have to do fair. In your mind, write the opinion against yourself and understand everything you can push on to make why that isn't the right opinion. Write it for you and don't go, “That sounds great. That sounds like my brief.” 

Go, “As an opinion, how am I going to explain this step? How am I going to take it? What is the rule of decision?” What is the Fourth Amendment test for this particular context that you want us to use in evaluating privacy or governmental objectives? What is the test? Most people can't answer that because they haven't thought of that level. Here are my good facts. We have to articulate. We have to put into words and into writing a rule of decision. 

You need to know why your rule of decision is better than the other side's rule of decision or better than all the other options that are out there. Be able to explain that in an argument. The argument is not rehashing your brief. I'm sure you've had a lot of people come in here and say that. It's not regurgitating. It is now, you are talking to people and you want to be in the same zone that they're in. The art of persuasion is understanding your audience, and meeting them where they are. It's harder with 3, 9, or 11 different people, depending on how which court you're arguing in but that's your job. 

The art of persuasion is understanding your audience and meeting them where they are. 

One of the issues during the pandemic from the remote arguments was that each of the judges would be in different locations very often. I found that challenging because you couldn't get an idea of the dynamic between the panel. I found I was missing information when I was doing the argument. The judges felt that too. 

I can't speak for all of them. For me, when it first hit and we were scrambling within a matter of a week or so, to try to figure out how to do arguments. We were doing the telephonic ones. Those were the worst because you couldn't see anybody and their body language. For our en bancs, just because you couldn't see anybody, nobody would know when to talk. We did the seriatim questioning as the Supreme court did. 

I found that to be the worst possible form of oral argument. It worked for the Supreme Court Justices. They figured out how to do it. I thought that was dreadful. You couldn't react at the moment. Three people would go by before you get to ask your question. It's like they passed you by and you couldn't get that interchange. That's so important. Again, we did the best we could and we kept the courts going, which is important to do but Zoom became better. Thank the Lord for technology. Thank goodness it wasn’t 1919. 

Maybe we all got more used to doing everything on Zoom that I felt at least then we could see people. Although, it was one thing they tell you at or eye contact. You can't do that. I'm like, “You're not looking at me.” It's because maybe on their screen I'm down in the bottom box but on my screen, I'm in the top box. You still didn't have all the human elements that you like but the Zoom platform was better than telephonic. I felt so bad for you all. 

I agree with you that the telephonic was horrible. I think a lot of judges felt the same way. “Please at least get us videos.” They tend to ask fewer questions because they don't want to interrupt each other. On the other hand, if you have the sequence, that completely changes the cadence and dynamic and everything of the oral argument. You don't have much choice when you have the telephonic. 

It's hard or at least, we're back to in-person now and it's much better. 

We’re starting back. You answered the question I usually have, which is what do you think would, as an advocate, how can you help the court? Focusing on the rule and the disposition and how would you write the opinion because we're not just deciding your case. We're deciding a rule that's going to apply to a lot of other people. We want to make sure that the rule we're announcing is one that works. 

That's why the answer to the hypothetical question is, “Never. That's not this case.” Meet your audience where they are. For us, we have to think about the other cases. People throw all different variations on that. Those aren't the facts on record. That's no different from saying, “That's not this case. Now, answer the darn question already.” Another thing on this court that I've learned, I knew this before too, but you do need to know the court you're arguing in and its practices and predilections of the court itself, as well as the judges. 

In our court in the DC circuit, time limits are there but we will go past them as long as the judges have questions and we're getting help from the lawyers. If you've been assigned ten minutes aside in your case, do not assume you're walking out of our courtroom in twenty minutes. Whereas, in a lot of other courts, that's true. They have a higher volume. We have very dense administrative agency cases or a lot of constitutional cases that are very dense and require a lot of probate and thinking. 

We have the portion to have the time to drill down as much as we can at argument. You got to know that. How you prepare in a court because the volume is more rigidly enforced, you're going to have to prepare in a way of a real efficiency for getting your points out. Using other judgment questions to get your points out. Whereas here, we're going to have the time and you're not going to be able to escape questions. I've had people try. I've asked a question, and they go, “My red light is on.” I'm like, “No, answer the questions.” 

As long as there are still questions, that's how it goes. Know the presiding judge for your particular panel too, because some are much more magnanimous about the questions. If anybody else in the panel has questions, they recognize this is the opportunity for people to ask them and to get their burning questions answered. They'll go over the limit for that. As long as there are questions and there's something to engage, they'll do it. 

I'm sure you've told a lot of people, you want questions. As long as they're asking questions, you have the opportunity to persuade. It's about these questions that you need to worry about. I know that young law students are like, “I'm so scared. I want to stand up and talk and sit down,” but you have a job. This is your job, your profession. It's not about you. It's about your client. It's about their legal needs, the outcome they need, and how you're going to make the best decision for the court to make. You welcome those questions. 

I'd much rather have engagement and questions, even if they are challenging because at least you have that. You're like, “I'm in a dialogue. At least I'm there. I can say, “Oh, no,” either persuade or dissuade with regard to certain things. If you're not getting the questions, there's no feedback. It's hard. 

I'm sure. I remember one court where it was a beautiful big cavernous courtroom and almost no questions. I could start hearing my voice echo around the room. You're talking and you're listening to your echo around the room. It was so dreadful. Please ask me a question so I can stop listening to my echo. 

It's like making what you feel that argument is, audible. You're like, “I'm talking to myself. Here it is. It's coming back at me.” That's true. What about brief writing? What do you think is helpful in brief writing? 

One thing that I learned from practice is that I like an introduction to a brief. Remember that capital N, Nerd? When I was in practice, this was starting, whether you should do one or not. There's always some worry because some clerk's offices have these checklists. If they see a heading that doesn't fit the checklist, they're like, “We're going to bounce your brief.” You got the summary of the arguments. What is the introduction? Being able to go there to page one and someone go look, “Here's what's going on,” in simple plain language, short, brief, “Here's what's going on. Here are the issues.” It's done from an advocacy perspective. 

You want it right out of the bag, “Here's what's going. Here's the problem.” Those are hard to write. I cannot tell you how important it is, how much it helps me to have that before. Otherwise, you're like, you're waiting in and I'm reading all this stuff. I'm like, “Which of the statutory background? Do I need to know? These facts are nice but which ones do I need to know?” 

You don't get like the, “Here's what's going on,” until the summary of argument. It's hard to get a summary of the argument without knowing the facts on the law. Introductions are in dispense. I highly recommend those. The second thing that I will say is, remember when you're writing, every word counts. I don't mean that they do count like in your word. We need to think about every word you're using in your brief.  

You are accountable for every word and every word should be operational. If I don't need that word, get rid of it. I am not looking to read more. I have plenty to read. I'm not looking to read. I think it's Chief Justice John Roberts, who said he's never gotten to the end of the brief and said I wish I had more to read because they're not novels but give me the words I do need. I'm not telling people we need to keep making briefs shorter. We need to make briefs better, more effective, and more efficient. 

Part of that is knowing what word is there because is that word your test? When this happens, this should be the outcome all the time. That's why you need to play for yourself, hypothetical for yourself. What if these facts change? Do I need to modify my rules? What verbs are you using? Are you using passive voice or active voice? If you're the prosecutor describing the crime, active voice. 

Defendant did X and nines and slashing and bad things. If you're the criminal defense attorney, it’s like, “This person was found dead. The jury convicted him. This is the person who did it.” You have to get the bad stuff out. You have to be candid. It’s how you phrase it. Think about it. You are telling a legal story and how you lead them through a statutory background, the right background. You're teaching them about the relevant parts of the statute and the facts.  

What facts do I need to know? Do not make it like some tall story or a novel where there are 95 names. As I'm reading them, I don't need to know the name of every officer unless I need to know them. Do I need to know the name of that officer? If not, it can be the second officer, the detective, or something. When I read it, I think, “This must be important. Somebody put it in here.” 

Three pages and I'm like, “Why do I need to know all these people and all these dates and here on or about? Do I need to know that?” If you don't know the exact day, then go for the month. It’s just about everything you do and most importantly, the argument in your analysis section. Think about an audience reading a lot of briefs, what do I want them to know? What do they need to know? What do I need to tell them? Even if it's not the best for my client, you need to tell them. How is this going to build towards what the right legal outcome is? What is that legal test? What is the decision-making? What is the straw here that turns the case one way or the other? 

I always tell people too, that this isn't so much the breeze but preparing them. Everyone has their own way to be sure. For me, at least, I'd like to read cases in chronological order, from oldest to most recent. You start seeing the path that the law has taken. What has caused it to turn one way or the other? Your case is the next one in that step. You need to know how that path has evolved and what has caused them to go in one direction and then come back in the other direction. 

You'll see a lot of curving and evolution in how the law and rules of decision are growing and how they get modified and refined over time. Understanding your place and that progress is incredibly important. It can help you know what you need, want to emphasize for your case and highlight just the problems of the other side. 

That's how I operate 100%. Not everyone does it that way but I see it the same way. Sometimes you'll read cases saying why the law changed or how it moved. When you read the cases, you'll say, “That's not what happened.” You're like, “That's a nice story,” but when you read all of them in order, that's not how I see it. 

Sometimes if you rely on some other court's assessment of it, it's not as rich as you can see when you read it yourself and you go, “That's so interesting but I don't think that's the only factor that went into this.” If you don't read them in that order, you don't know. You accept what the court is saying. What about the table of contents? Do you read that first at all? 

Especially if there's not an introduction, I get, “What is what's going on here?” A good table of contents is important. At least when I was a practicing lawyer, it is disciplining. 

It's helpful for you as the brief writer. 

The last thing I would always agree with is the table of contents and you'll see two subheadings that are saying the same thing. I'm like, “Did I say the same thing in both of those sections or are they different?” It's the path of your case. Always, not lasting but the day before the brief is due, go through those headings and make sure it goes 1, 2, 3, 4. Not 1, 2, 4, through the editing process. Make sure it's a logical decisional path. If you're writing, you've got five pages, and you don't have a heading, you've got to go back and see. Are you still talking about the same thing? Do you need some subheadings? It disciplines how you're thinking. Which arguments go in which section?  

Otherwise, people will have a dump truck of ideas. They back up, wrote it down on the thing and they dumped down a bunch of, “Here's a case that did this. Here's a case that did that and we should win.” You got to do the work. That's what you're advocating. You have to lead us horses to water. You want us to drink instead of throwing a bunch of stuff at us and hoping that we pick it up in the same way you did. 

You have to take someone along that path, not just say, “Here's a few things I found and you figure out how it should all fit together.” 

We're not like cars where you pull up to the gas station and throw a bunch of stuff into us. You are building a house brick and mortar, layer by layer, brick by brick to have a finished product. Cases are tools. They are what you use to make your argument. Your argument should be spoken in the language of the cases. Not giving us a bunch of long quotes but interspersed your own natural language with key quoted language short quotes. That's another thing in pretty short quotes. Rarely should you ever want to do a black quote and some judges won't even read them. 

Cases are tools. They are what you use to make your argument. Your argument should be spoken in the language of the cases.

Every time I have that in my Ninth Circuit clinic class. I'm like, “Are you inviting me not to read that?” 

I'm like, “I'll read that case.” It doesn't progress through your argument. It doesn't lead me through your argument. I'm like, “I'm going to read that case later. I don't need to read a block of it now.” A lot of times, they'll do the block. In the middle of it, they'll have something bold or italic. Which is the part you needed to quote? 

The part you're highlighting is apparently, in your mind, the important part. 

You get rid of the rest. Use your own language for the rest. Quotes should be like flashing arrows. “Look at this language,” and this is a great way of saying it or understanding it. You don't have to do the entire sentence. You can paraphrase as long as you're quoting, sighting, and giving authority for the part you're quoting but if you quote too much, then your quotations are meaningless to me. You're jumping a bunch of languages and you don't have a purpose to it. You're not using it as an affirmative tool for argument. You're expecting me to do all the heavy lifting. To be clear, we will always do our best to get it right but advocacy is a profession. 

Advocacy is a profession.

Sometimes people might do that out of a concern that, “I don't want to misrepresent something, so I'm going to put the whole thing,” but that's not necessary. If you pull out the core meaning of the case and you don't misrepresent what it said, then you're good. 

I don't think the black quote helps because they still will leave out the key thing they shouldn't. Ask yourself when you're doing an ellipsis. What am I out and why is it truly safe? You can do the quote in one sentence key. In my mind, the next sentence goes, “To be sure that was in the context of,” and add it in there in a narrative rather than quote because you don't want arrows pointing at it. Visually explain it. Deal with it because we're going to find it. We're going to find it so you want to be able to have the first word on how we think about it. 

This is fun. Thanks for the discussion. I have a little nerd hat on too. I enjoy that discussion. I knew it would be interesting talking to you, especially with your appellate advocacy experience and being on the bench. You have a little different perspective and experience that you bring to the court and diversify. That's important. You have trial judges and appellate advocates, and all of the different experiences that judges bring to the court and to the panel. Usually, I close with a few lightning-round questions. I'll ask you a couple of those. We covered some of them in terms of brief writing and argument but which talent would you most like to have but don't? 

Sing. I can't sing. I cannot carry a tune in a bucket. My husband sings. My kids sing. I probably shouldn't. Someone has to be the audience and that's my job. 

That's how I like that. 

I'm good at clapping. 

That's how I look at it with art and painting. Somebody has to be the art appreciator. 

I can't. I do enjoy music and I wish I could. I can only sing when I'm the only one in the car. I put the windows up so I don't bother the car beside me. 

That's so cute. For what in life do you feel most grateful? 

I’m Christian. The grace of God is the most important thing in my life but also my husband and children. They put up being around a nerdy lawyer and a bit of a workaholic mom. They've been so patient, supportive, forgiving, and generous. My husband is so supportive. Having a great partner is one of the most important decisions you'll make in a career and it goes two ways. Supporting them as well and children make your heartbeat. My kids are such a great joy. Those are my greatest blessings, undeserved but so deeply valued. 

That's beautiful. Given the choice of anyone in the world, who would you invite as a dinner guest? 

Anyone living? 

It could be living or not living. 

I always think I should say Jesus Christ is my first one because what a fascinating thing but I'd be too paralyzed to eat or even talk with Him. I'm going to be very boring and say there's no one I like having dinner more than with my husband and kids. There's such a long list of amazing people. I would love to talk to other people but there's nobody I'd rather spend time with them than them. 

That's a great thing to be able to say, isn't it? You made a good decision. You made a good choice with your partner. 

Yes, he's incredible. 

Last question, what is your motto if you have one? 

I have a couple. One is, “No stone unturned.” As an advocate and as a judge, you have to be willing to roll up your sleeves and do the hard work. Put in the hours and time to get it as right because mine was getting it right as humanly possible with everything I've got. I have shortfalls like everybody but I get it as right as I can. I'm a big fan of the Apollo 13 movie. “Failure is not an option.” It’s another one of my favorite mottos. The one that is maybe better for your audience to read is this, and I can't remember who said this, but it’s someone much wiser than me. It sums up my career and that is, “There is no path. The path is made by walking.” 

Too many law students feel like they have to check boxes and do these particular things to have this particular opportunity. If I don't do it, then I guess I can’t try. I didn't check boxes but I tried anyhow. Not everything worked out but a lot of things did. Serendipity happens, the graciousness of other people helping you but you also have to be willing to try and take some risks and put yourself out there in uncomfortable positions.  

Going through a nomination process, you have to contact people to say nice things about you. That's horrible. “Would you be willing to write a letter and say something nice about me?” People are busy. You said, “I don't want to bother them. They're busy.” People are happy to do it but you have to be willing to take healthy risks. Nobody should do things every day and don't be unreasonable.  

Right out of law school, you probably shouldn't apply to be a Supreme Court Justice. You need to get a little practice in there but know what your limitations are. I could never be the singing lawyer because I can't sing. Don't self-veto. Let someone else veto you and that's fine. If someone says no, they say no. They're not going to shoot you, so go for it and try and make your own path. That was too many sayings, sorry. 

No. The don't self-veto is incredible. One of the reasons I started the show is because I want people to see there are so many paths, so many different ways to go to achieve things and contribute through the law. It may not have been something you thought of. That's okay because things evolve and you get there. Don't take yourself out of the running too soon. Especially in law school, you're told, “There's only a certain way to go. If you don't go that way, that's it.” It's not true. 

There's so little in life you can control about what happens, good or bad. Taking advantage of what's in front of you, living it to the best, working to the best of your ability, making great relationships, and building and being in a position for serendipity to happen is critical. 

That is a terrific way to end and conclude our show together. Thank you so very much once again, for taking the time to chat with me. Our readers will get a lot, particularly about being a good advocate but also in the very end, what you said is beautifully put. I hope that a lot of people will take that to heart so that they can contribute the most, do their best, and make the world a better place in a whole bunch of different ways they may not have thought about. 

Amen. Thank you for having me and for putting all the work that you do into this show. I'm sure it's helpful for so many people. You make the world and the law a better place, so thank you. 

Thank you so much. I appreciate it, Judge.