Episode 148: Diana Hagen
Utah Supreme Court Justice
00:59:28
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Show Notes
Utah Supreme Court Justice Diana Hagen sits down with M.C. Sungaila to share her career journey from clerking for a federal judge to serving in the appellate division of the U.S. Attorney's Office and now on the appellate bench. She shares how her acting training helped her gain confidence early in her career, the importance of mentors, and the role a flexible work arrangement played in her remaining in, and rising in, the legal profession.
Relevant episode links:
Diana Hagen – LinkedIn, Christine Durham – Past Episode, Just Mercy, Project Hail Mary , Wheel of Time, Game of Thrones
About Diana Hagen:
Diana Hagen
Justice Diana Hagen was appointed to the Utah Supreme Court in March 2022 by Governor Spencer J. Cox. Prior to her appointment, Justice Hagen served on the Utah Court of Appeals for nearly five years. She received her law degree Order of the Coif from the University of Utah S.J. Quinney College of Law in 1998, where she was a member of the National Moot Court Team and the Utah Law review editorial board. Following law school, she served as a law clerk for United States District Court Judge Tena Campbell and then began her practice at the law firm now known as Parr, Brown, Gee & Loveless.
In 2001, she joined the appellate section of the United States Attorneys Office for the District of Utah and later became the Appellate Chief, a position she held for nearly ten years before being promoted to First Assistant United States Attorney. Justice Hagen has served as president of Women Lawyers of Utah, the David K. Watkiss-Sutherland II Inn of Court, the Salt Lake County Bar Association, and the Utah Chapter of the Federal Bar Association. She also spent many years as an adjunct professor at the University of Utah S.J. Quinney College of Law, where she taught appellate practice and coached intercollegiate moot court teams.
She has been recognized with a Utah Philanthropy Day Heart & Hands Award in 2014 for her volunteer work with Girl Scouts of Utah, was named the S.J. Quinney College of Laws 2015 Alumna of the Year, and received the FBA Utah Chapters Distinguished Service Award in 2017. Justice Hagen currently chairs the Judicial Branch Education Committee and serves as the appellate judge designee for the Utah Sentencing Commission.
Transcript
On the program, I'm very pleased to have Justice Diana Hagen from the Utah Supreme Court. It’s a relatively new appointment. It's about a year since you've been on the court.
Not quite a year, but almost there.
Welcome, Justice Hagen.
Thank you. It's a pleasure to be here.
Thank you so much for joining. It's particularly fun for me to talk to you having started the show with the first woman justice on the Utah Supreme Court, Christine Durham. In your era on the court, there are now three women on the court. That's very exciting.
She certainly blazed the trail for all of us. When she was appointed in 1984, she was the first woman ever to serve on the Utah Supreme Court. It was another 21 years before the second woman was appointed to the Utah Supreme Court. When I was appointed on May 2022, there have only ever been three women on the Utah Supreme Court ever. Now, there are three at the same time and we have a majority female bump. It's quite an evolution.
Sometimes there's this long distance between appointments to a court and then suddenly, it reaches a certain momentum, and there are quite a few on there. It reminds everyone to persist to move forward. Don't give up. It's a beautiful circle from Justice Durham being the first one on the show and the first one on the court. I wanted to talk about your path to the bench because you did also serve on the Court of Appeals prior to the Supreme Court, and also did some bit of appellate work prior to that. First, I wanted to ask you about what drew you to the law, to begin with, and why did you go to law school.
I never thought about going to law school. I wanted to be an actress since I was a little girl. I would see all the plays and I even went to USD in Los Angeles to study acting as an undergrad. At some point during my undergraduate career, I decided that maybe I didn't want to live audition to audition. I thought maybe I wanted to have a little bit more stable job. I thought I would change to being a spokesperson. Maybe a media liaison or something like that.
I changed my major to Speech Communication. One of the classes that I was required to take as part of that was called Freedom of Expression. I didn't know what it was, but it was a First Amendment Law class. You read all the US Supreme Court cases on free speech and I thought it was amazing. I had never had any exposure to that. I'm a first-generation college graduate. I never knew any lawyers or judges growing up. I didn't know anything about law school.
One day, the classmate sitting behind me was telling me how she was going to take the LSAT and I had never heard of the LSAT. I asked her what it was and I found out it was a test you could take. I thought, "I'm going to take that and see if I have any aptitude for law because it's so interesting." I got married right after I graduated. I took the LSAT the day I got home from my honeymoon and I ended up doing well. I applied to the University of Utah here locally and ended up getting a scholarship. I thought I don't have much to lose so I thought I would go and try it out. I'm so glad that all of those things came together because I think it was what I was meant to be.
That's a common theme that you discover all of these different things put together. Having that acting background and wanting to be a spokesperson helps you with public speaking and advocacy as a lawyer, but then being open to new things and new opportunities that you'd never considered before and becoming interested in the law from the First Amendment class. That's being open to serendipity or things that might be interesting that you hadn't considered before. I suffer from this and sometimes others do too. We know what we want, we're very focused, and we move forward with blinders on without looking at, "That could be interesting over there." That could be hard to do, especially when you're younger.
I completely agree. Whenever I talk to high school students or college students, I would say, "You must keep your options open. You never know what's going to come your way or catch your interest. If you just haven't closed any doors and keep your options open, then you can take advantage of those opportunities that unexpectedly spring up."
Sometimes you might have an impression of something like, "I would never want to do that," but then if you're open to learning about it, you’ll find out, "I would be interested in that." It's not discarding things too early also. Having a scholarship and all of that, you're like, "It's good. I should go ahead and move forward with this."
I thought I might as well give it a try. I didn't have much to lose. It was also wonderful because when I started law school, I felt very out of place. I felt like I was in over my head and all my classmates were so much smarter than I was and understood this. Some of them maybe have a background in the law or parents who were lawyers. I thought, "I'm out of my league here," and thought about quitting my first semester. My husband said, "Finish the first semester. You're on scholarship. There was no downside. Finish it out and see how you do." I ended up doing well. I was pleasantly surprised that I was not the stupidest person in my class.
There were a lot of us who felt that way, especially in the first semester or first quarter or whatever system you're on. You often come in and you're like, "At least I don't know the law, but I think I'm a good writer. I'm good at something," but it completely breaks that down and rebuilds you. In the process of that, you think, "What am I doing here? I know nothing. My writing before is not the right kind of writing for this. I feel overwhelmed with everything I'm learning." That's helpful that you mentioned that because a lot of people go through that in their first year in law school. Having you say that might encourage others to stick with it as well.
It's a completely different way of learning. It was so difficult and different from what I expected. When I decided to go to law school, I had in my mind that they were going to give me this big book called The Law. I was going to memorize it and that's what the law was. I thought, "I've done Shakespeare. I can memorize lines. I can memorize this book called The Law." I had no idea what I was getting into.
It's hard in law school too because unlike undergrad where you have midterms on papers and things like that and you can gauge how you're doing, you have no idea how you're doing until those grades come out at the end of the first semester. It's important to keep going and see how you do. Even if your first year doesn't go as you expect, a lot of people turn it around in the second or third year. A lot of people, even those who struggle in law school, end up being amazing attorneys. If it's something that you love and that you're interested in, perseverance is important.
Studying law might be difficult, but you have no idea how you’re doing until those grades come out at the end of the first semester.
It can be an ongoing theme in a number of different things, including applying for the bench. That's true. I remember that in law school, there are some people who are a little bit late bloomers in law school. Once they get it, they've got it. It takes them a little longer to put all the pieces together. Sometimes people think, "If I haven't done it by the first semester, that's it. I'm never going to be comfortable in this."
Especially when we're law students, there's always this sense that everything is set after a certain point like, "After the first year, if it's not the perfect grades, there's no hope. If I don't get this particular job, then that's it. The rest of my career is shot." Your first point about being open to other options and opportunities and finding different paths, it's important to keep that in mind even though it can be hard to do, especially at the beginning of law school.
That's how I ended up with a career that I love too because I had originally gone to a law firm where there was a media law attorney who was brilliant. He ended up being such a great mentor of mine. His name is Jeff Hunt. He still does media law and First Amendment law. I love that kind of work and that's what initially interested me in law school, but I found I didn't like law firm practice. I didn't like the business of law very much.
Luckily, I had clerked for a Federal court judge who had been an assistant US Attorney. She used to tell me how wonderful that job was and that was the best job in the world. I wasn't too sure if I was interested in criminal law. It wasn't anything that I'd ever considered, but the US Attorney here in Utah decided to start an appellate section, where they'd have dedicated appellate attorneys to handle their appeals to the Tenth Circuit.
One day, I got a call from the judge I clerked for, Judge Tena Campbell. She said, "I found out the US Attorney's office is starting an appellate section. You would be perfect with that because you're a great writer. I know you did well in your courts and you can argue. I've already talked to the US Attorney Paul Warner, and he's expecting your resume."
At the time, I'd only been in my firm for about a year and a half. I thought, "I don't know if I want to leave my firm this early." Luckily, she was a wonderful mentor and explained to me that there are so many people who would love to have that job. Sometimes getting into the US Attorney's office is like getting struck by lightning.
Yes, because of the timing, the hiring freezes, and all the various things, not to mention the particular opening.
Thank goodness, I had her giving me that good solid advice. I ended up taking it. I took a big pay cut, but that was the best career decision I ever made. It's another one of those things about being open and not being completely set in your career path or your plan, and not being so bound to your plan that you can't deviate when opportunities arise.
Also, to have a mentor explain that to you because others would be like, "No."
Honestly, I was so young. Because I didn't have any family members or anyone I knew who were attorneys or in legal practice, I didn't know what a great job it was. It seemed like a big sacrifice to give up a lot of my salary. Also, the firm where I was with was prestigious and had a great reputation. I thought, "I can't walk away from this," but I walked away from it and did something that I enjoyed so much more. It still makes me laugh when I think that I didn't want to do criminal work and that criminal law was my lowest grade in law school because I ended up becoming an expert in criminal law and I loved it.
There are so many things in there. The first thing is what you think something will be like in practice or how the practice will be. Even if you like the subject in law school, the actual execution is totally different, and adjusting to that. Also, clerking for a judge is so helpful in that regard. They are long-term lifelong mentors and supporters in addition to what you learned working with them.
I'm a huge fan of judicial clerkships. I became so close to my judge that my daughter has her middle name as her name. She is like family to me. It was a wonderful thing when I started at the law firm to have someone that I could call and talk to, and work through some of the difficulties I was having. To have her advice and her guidance all the way through has been amazing. I try hard to give that same attention to my own law clerks. They come and sacrifice for a year, when they could be making a lot of money, to come and work for me and work hard. You do a great job and in return, I try to be a lifelong mentor and sponsor in their careers.
It evolves naturally. People think, "I have to go out and find a mentor. What does that mean? What does that look like? How do I do that?" Sometimes the best relationships like that come from the lawyer you worked with closely in the law firm or the judge that you clerked for. It arises out of that working relationship.
As for my experience, the judge-clerk relationship has been the most amazing experience. You know that the judge is always in your corner to provide advice for your benefit. They get the benefit from seeing you blossom and they want you to blossom. Whatever advice they're giving you is truly in their heart and your best interest.
It's wonderful.
How did you think about doing the clerkship? Sometimes law students either don't consider it or don't find out about it until later in their careers.
Luckily, I was doing summer clerkships at my law firm every summer. My mentor there, Jeff Hunt, had also clerked for a Federal district court judge and he had encouraged me. At that law firm, it was expected that you would go and clerk for a year. I wasn't too sure about whether I wanted to do that, but I was told that that was a good thing and it was going to be the best year of my legal career and it was going to be a great experience so I did it.
Thank goodness because it made such a difference in my career. I wouldn't have had the opportunity to work at the US Attorney's office in the appellate section. I’ll tell you the story about what happened later. About 3 or 4 years later, I wanted to start a family and I wanted to work from home part-time. I wanted to work full-time but at home for part of the week. My judge knew that and encouraged me to talk to the US Attorney who had never done anything like that before, so I did it.
At first, it was like, "We don't do that. Maybe we could let you go part-time, but we don't do the telework thing." I went back to the judge and she said, "If it won't work out at the US Attorney's office, I'll hire you back with a permanent clerkship and you can work from home. We'll even put a prep in your office and schedule all your hearings on one day a week, and you can bring the baby in, but take one more run at the US Attorney because that's where your career is going to thrive and that's where you should be.”
I went back and asked one more time and I didn't get a great response. I said, "I'm going to go back and be a permanent clerk for Judge Campbell," and the US Attorney's office said, "Two days office and three days at home," and it was done. I worked that schedule under five US Attorneys for the next twelve years. It made such a difference. It kept me in the law. I would not be here if that had not happened. If I hadn't had that opportunity to find the right balance for me between family and career, I'm sure I would be a permanent law clerk. I would've enjoyed that immensely, but it would not have led me to this position. I'm grateful for that.
In the longer term, the better thing for you was to get varied experience at the US Attorney's office.
It ended up being fantastic. I got promoted to Appellate Chief a couple of years later, despite my work-from-home arrangement. I was able to do some great cases. I did have a couple of big cases that they asked me to work on the trial team. I was in the office more for those. I then ended up becoming the First Assistant for the office. I hoped and tried to pay it back or give back to the office, at least as much as they gave me in giving that flexibility.
I don't know if it's waxing or waning within the profession now, but at least after COVID there was more openness to that realizing, "People are productive." Especially, appellate lawyers are more productive in some ways when we're home. We’re able to work and concentrate instead of being in the office and being moved off the deep thinking that's involved when you're drafting a brief or reviewing a record.
A lot more places understood that over the pandemic but now, there's some swing back to that. I worry about that because what you're saying is true. Having that flexibility in the scheduling within the day and not having the commute on top of that or whatever else is going on allows you to integrate things much more and still get the work done.
It's especially true for appellate lawyers. In fact, by the time I left the office, we had all of our appellate lawyers and our paralegal working the same schedule. We all came in on Mondays for meetings and to collaborate. We then all had a different day of the week that we were in the office so that people could drop by and ask us questions about legal issues, but it was those three days at home that we were churning out briefs and being able to focus, review records, and write. It worked out beautifully.
That's so great. You were the vanguard in that scheduling.
I was the only appellate attorney who had young kids at home. That's the other thing I liked about it. We weren't making it a motherhood thing. It works and it improves morale and productivity. It's a good thing no matter who you are or what your circumstances are.
It's not just a balance but there's also more fluidity between other obligations or other things you want to do in your life and the work. That's neat. That's a good point.
I like to mention that because we did a panel where we had all five of the women who have been justices on the Utah Supreme Court. Four of the five had some kind of flexible part-time or telecommuting arrangement early in their careers. I thought that was remarkable. Justice Christine Durham had contributed so much to the legal community, not just in Utah but in the country. We might have lost some of that talent along the way if we hadn't been flexible. That's quite a message.
Not knowing that about each other's experience and going, "You too? Interesting." The ripple effect that can have is interesting. What got you interested in joining the bench yourself? I'm thinking it's probably a combination of your clerkship experience and seeing the judge in action, but probably a few other things too.
I loved appellate work. When I was in law school, I did moot court and I was on the National Moot Court team and I knew that's what I wanted to do. I love writing and arguing before a panel of three judges and answering questions. There was something special to it. I liked it more along with investigating and building a case and things like that. I liked having a static record and the law that I could apply to it logically and make persuasive arguments.
I knew I loved that. Apparently, I knew I wanted to be an appellate judge when I started at my law firm because someone showed me a little form that we filled out when we started the law firm. We gave some information like, “Where do you see yourself in twenty years?” I said, "As an appellate judge." I was apparently gunning for that.
You didn't remember that was on your radar.
I didn't. I wanted to be an appellate attorney, but I always knew that. I started applying fairly young. I was only 10 or 11 years out of school and I was teaching appellate practice up at the law school with another appellate attorney, Fred Voros, who ended up joining the Court of Appeals. He was applying for the Court of Appeals and convinced me that I should apply to get on the radar or the pipeline and get people to know who I was.
It was interesting because I made it to the shortlist that went to the governor at that time. The governor asked me who I would appoint if I were him. I said, "I would appoint Fred Voros,” who was the one that encouraged me to apply. He was an amazing judge. He did get appointed that time, but I ended up applying eight times after that.
I was going up to the governor every time. I was starting to feel like it wasn't going to happen. If I had to do it over again, I probably wouldn't have started quite so young, only because there's a stamina issue. They have to keep going through the process over and over. Doing the applications in Utah for appellate judgeships, you have to write an essay on a particular topic with your application. There are three levels of interviews.
It got exhausting after a while. I might have waited until I was a little older, but I didn't give up. It was what I wanted to do. As long as the nominating commission was going to keep sending me to the governor, I was going to keep going for it. I finally got it on my eighth time. That was a dream come true to be on the Court of Appeals. I was so excited and so happy.
Do you need four years of practice to apply? Is it ten years or something like that?
No, there isn't. In my mind, I had thought that ten years seemed about right because when the Court of Appeals started in 1987, there were quite a few judges who had only been out of school for about ten years. What I didn't realize was that they built an entire bench of seven judges that year. It was maybe the exception rather than the rule that people would be appointed that young. I would encourage people to start looking at it fifteen years out. Most people get appointed at about the twenty-year mark, but there's no hard and fast rule. It can be different for different people.
If you want to apply for the Court of Appeals, look at it about 15 years out [of law school]. Most people get appointed at about the 20-year mark. But there’s no hard and fast rule.
I think it also depends on the makeup of the court. In California, the governor is looking at a range of diversity, both in practice areas and backgrounds, but also in the younger or older range. Depending on where the governor is, it could be different as well. In California, we have a base. It's got to be ten years minimum and then beyond that. It's usually well beyond the ten years of practice that people get appointed, but sometimes not. That's a good point. Don't take yourself out of the running if you want to do it. On the other hand, eight times is a lot of stamina. Those applications are not short no matter where you are. The process is grueling. Everyone is examining everything about you, the interviews, and all of that stuff.
I probably would've done it a little later. One of the issues too was the judge who was appointed the first time was the Criminal Appellate Chief at the State AG's office and I was the Criminal Appellate Chief at the US attorney's office. We were so similar. In fact, he was the one I replaced. Once he retired, then there was that space for someone with similar experience. That's how it worked out nicely. Luckily, it's not the first Supreme Court position I applied for on the Court of Appeals. I got to have the opposite experience.
That's good. You put in all that on the front end of the first appointment but thank goodness the Supreme Court appointment was not like that. It's timing and so many things that are not in your control in those circumstances too. Maybe we can talk a little bit also about Utah's method of selecting judges. There are so many different varieties across different states. Particularly, even at the appellate courts and the Supreme Court level. Maybe you could describe how that goes.
In our constitution, it provides that there shall be no partisan political considerations in judicial selection. It's a constitutional mandate that we don't let partisan politics enter into the process. We also have set up in our constitution of nominating commission structure, where judges have to go through a nominating commission. There are 7 names for appellate judges and 5 names for trial court judges sent to the governor. The governor selects one.
There's a Senate confirmation process. We have a hearing before the Senate Judiciary Committee and then the full Senate vote. After that, we sit for an unopposed retention election. First, every 3 years, and then after that, it's every 6 or 4 years for Supreme Court justices. That's the basic framework. Until 2023, we had a process where we had a statute in place passed by that legislature that provided for the makeup of the nominating commission.
It had several different features including it couldn't be more than four members of the nominating commission that were in the same political party. There had to be a certain number of attorneys, but the state bar got to put forward a list of attorneys that they wanted to serve and that the judiciary also had a non-voting seat, but in an advisory role on the committees.
Our state legislature changed that in 2023, where the composition of the nominating commission does not have to follow those rules. Luckily, we have a fantastic governor who will appoint good people to the nominating commission, and that will take seriously the constitutional mandate that partisans and political considerations should not come into play. We were a little disappointed as a judiciary that those guardrails that were put in place to keep it from becoming a political process have gone away. We're hopeful, especially with that constitutional language, that we'll continue to have a merit-based selection process that will be used outside the political process.
That's interesting that was changed, but the spirit and the history are still there in terms of how the selection process has gone in the past.
It has been very impressive. Our state courts are merit-based. It doesn't matter what practice you had. You could be a criminal defense attorney, have a different religion, not be involved in politics, or be an administrative attorney. Everyone was considered. It has resulted in a very diverse and capable bunch. I hope that continues because that allows businesses, litigants, and attorneys to have a lot of faith in the judiciary, which is so important to our credibility.
The Senate confirmation process is interesting because that isn't always the case in other states that have the nominating commission. That's an interesting mixture of the political process, and the different branches being involved to some degree. Hopefully, it's not as blistering as the US Senate process.
It's not, although it was still extremely intimidating. It was a little scary going in there and not knowing what they were going to ask. It was very nerve-wracking, but it went well and I thought they did an excellent job. I thought they were extremely faithful to the spirit of merit-based selection as well. They didn't ask any questions that were overtly political or anything like that. It was a good process, but it's extremely unnerving.
Yes, it is at the Federal level, I can imagine. Because of that, you don't know what's going to come up in those hearings. That's a good lesson in persistence though for the appellate court position. There are several people who have said yes, and they've had to apply many times, but they had faith in their willingness and interest in serving in that way and persisted. It's a good reminder of persisting and being open to opportunities. Particularly in the judicial application realm, you really have to persist.
Honestly, that process made me a much better judge. I got more experience as a prosecutor. The last case I ended up doing was a mother case. That was a few months before I ended up getting appointed to the bench. I wouldn't have had that experience if I'd gotten appointed any earlier. The process of meeting with the governor's staff and having to think through what my approach to the law is, how I am going to deal with the workload, and the learning curve on all these new areas that I have to learn made me a better judge.
It's cumulative of all your experience that you're gathering and then bringing to the judicial role. In our state, they change a little bit, depending on the governor. They get to tweak a little bit the essay questions or whatever. Did you feel like you saw your own evolution and experience when you were filling out the applications too?
Yes, definitely. When I look back at the essays I wrote, I felt like there was more maturity, judgment, and nuance that I could see. Experience is important. Even if my law clerks are excellent writers and can analyze an issue, having that experience in judgment that you can only get with time is important. It turned out exactly the way it should.
It turned out well and hopefully, either way, you might say the same thing. When you were explaining that, I was thinking you would see your own evolution when you're doing those and think maybe a little bit like, "That was a naive response in that first application." That was someone who hadn't seen all of the things I then saw the law in practice, and how that impacts how you would serve as a judge.
I see that in my earlier applications.
It's good to be idealistic but it's also good to have some experience. Tell me about your time on the Court of Appeals compared now to your time on the Supreme Court, how those roles differ, and how one informs the other.
It has been a surprise how different it is. The Court of Appeals has a high caseload and we process a lot of cases. It feels like a marathon that never ends. Public cases keep coming in and we're deciding them as quickly as we can. I certainly served on committees and was involved in other things on the court of appeals. I knew that the Supreme Court had a lot more responsibilities in that way. I never fully appreciated when we would look at how many cases we decided versus how many cases the Supreme Court decided. I would wonder what they are doing over there. Now, I know.
They're administering the court system also.
It’s all of the rules, committees, policies, and the different projects that we're doing. When I started at the court, I was replacing a justice who had started this legal regulatory reform or this big project in Utah. It was getting to a point where we had to transition it to a more sustainable project rather than the initial pilot base. That has taken a tremendous amount of time, interfacing with the bar because the courts are responsible for the regulation of the practice of law. The administration of the court system and the practice of law is a lot. I didn't fully understand how much time that took or how many meetings I was going to be in every day.
That's the hardest thing for me to figure out. Just like we were talking about with an appellate attorney, I have blocked out that time to be able to focus. That's something I haven't figured out quite yet on the Supreme Court. How do I block out time so that I can just sit down and work on opinions rather than running between different meetings and looking and reading rule change proposals, and other things like that? That's a big difference. It’s how much we do that doesn't have anything to do with writing opinions.
It's something you know in the background and you know about the committees. Maybe you've served them or helped the court with some of them, but you never see the whole picture of that.
That has been surprising but great. I have some amazing colleagues on the court and I loved the Court of Appeals. I had such wonderful friends and colleagues there as well. [My colleagues] on the Supreme Court have been so welcoming, kind, gracious, and lovely. If I had to spend a lot of time and meetings before other people, I think of them. It has been wonderful.
In terms of writing, I always knew this, but it became even more apparent on the bench. Organization is so important.
That's a beautiful thing to be able to say because this is one where you don't select your colleagues. Someone else does, then you show up and hope you have that working relationship or you work on having that working relationship both in decision-making and otherwise, but it's nice when it happens organically.
One of my friends from the US Attorney's office was already on the court, Paige Peterson. The Justice who was pointed right after me was Judge Jill Pohlman, who was on the Court of Appeals with me for the last five years. It's very special. I have to pinch myself and see how lucky I am to get to work with friends like this. It's fantastic.
What an amazing confluence of things to be able to have that because it's so important to have that collegiality and trust with your colleagues. That is built up over time, but since you have relationships prior to this, that can let you hit the ground running in that regard. That's so neat. What a small world.
My other best friend from the US Attorney's office became the first female US Attorney in Utah. It has been a great year.
It has been. That's amazing. That's neat. One of the judges I interviewed out here who's the Presiding Judge of the LA Superior Court right now, Samantha Jessner, worked in the US Attorney's office. She said that she started applying for the bench when she noticed all her colleagues down the line were going to become judges. She's like, "Maybe I might have the chops too and I should apply." She's then able to work with her colleagues as well, which is nice.
What advice would you give to appellate lawyers or lawyers advocating in front of the Supreme Court regarding how they can be the most helpful to you, whether it's brief writing or oral argument? I always ask this especially of appellate judges because I'm always curious. I wonder particularly in your case since you have the appellate experience. The answer to those questions is a little bit different for those who were full-time appellate advocates before coming to the appellate bench. There are still some a-ha moments from that you think, "I know what would be effective." Some say, "I wish I'd known how helpful this particular thing was. I would've been more consistent about it."
One of the surprising things is I realized how important it is to attach the critical part to the record or critical exhibits to the brief itself. I realized that I was going to be taking these briefs with me everywhere in different places where I might not have the record accessible immediately. Perhaps the ruling, although sometimes I didn't even do that if I was the appellee, having that at my fingertips is extremely helpful.
In terms of writing, I always knew this, but it became even more apparent on the bench. Organization is so important. The briefs that you can tell someone started writing and it was free flow are not effective. They end up repeating themselves. As soon as I get to a point where I'm like, "This is the same argument they talked about four pages earlier, your mind starts to think, "Not everything in here is something that I need to know." You stop focusing as much as you otherwise would.
Organization is critical. Taking the time to do an outline and figure out where things logically go and put all the arguments that relate to that particular topic in one place, rather than spread out into the brief - that makes a fairly effective brief. For oral arguments, they're more important than I thought they were only if the attorney is answering the judge's questions and concerns.
Now, you understand why judges said, "Answer the questions."
Yes, because they read your briefs and they understand the case. What they're trying to do is figure out how they get past some stumbling block, how they can rule in your favor, how they can resolve a particular issue, or maybe how far your argument goes. If we decide in your favor, how far is this going to extend? How narrow or broad is your argument? Are you conceding this point and you're only trying to win on this narrow point?
All of those seats are extremely important when we go back and decide the case. Listening to the judge's questions, responding, and even responding to questions that perhaps the judge poses to your opposing counsel. It's an extremely effective technique. Sometimes we'll have an appellant and we'll be asking about one particular issue and it's clear that the judges are very interested in that issue. That's their sticking point.
The appellee will get up and start another issue that we hadn't even discussed. If you weren't paying attention, you could tell that all the judges were focused on this other topic. You could go there and respond to the judge's concerns and shore up your case much more effectively than if you just give an argument. It's hard to do. When I was starting out as an appellant attorney, being able to think on my feet and change directions was difficult, but it's still something that people can practice, learn, and get better at. It also makes you an effective advocate.
Getting that comfort over time and being able to read things and adjust things in real-time, that's the challenge. I still teach in a clinic for the Ninth Circuit Court of Appeals and that is the challenge. It is getting people comfortable enough so the students can be nimble like that during an argument. That's part of what we're doing and preparing them to argue their case before the court and it's hard. That's the final thing. When that switch is turned on, they move to the next level. It's exciting to see when they do that.
Even as a beginning appellate advocate, I found ways to do that. I was preparing outlines that had different topics. Maybe I wasn't going to hit or maybe I was. If I saw that the court was interested in a particular topic, I would just flip to that page and pick it up there. I was generally the appellee for the United States. I would make notes in the margins saying, "This is in response to Judge Lucero's question," or something along those lines. It looked like I was being nimble and I was, but I had done the preparation in advance which made me feel comfortable being able to switch topics and respond to questions.
Preparation is the only thing that makes oral argument fun. Otherwise, it would be painful. I wish that it could happen without that but it never does. That's the precursor. Does your court conference or discuss the case prior to the argument or only after the argument?
Only after the argument, which was another interesting thing to discover. I would read the cases myself and I have like what questions I had and where I was leaning. It was always fascinating to go out on the bench and hear the questions of my colleagues. I was surprised at how many times we all zeroed in on the same issue that we wanted to explore.
That's an interesting process. It's lovely on an appellate court. It’s even better now that I have other colleagues asking questions. People do pick up on different things. Being able to go into oral argument with an open mind, and listen and hear what concerns and questions they have helped shape my view of the case. It's extremely helpful. I enjoy oral arguments. It's very useful.
People do pick up on different things. To go into an oral argument with an open mind, listen, and hear what concerns and questions your colleagues have, will help shape the view of the case.
One of the most profound things I heard is from an appellate advocate turned judge, Judge Millett, on the DC Circuit Court of Appeals. She said, "The thing that surprised me is that for the advocate, the oral argument is the end because that's the last opportunity to have the conversation with the court, but that's maybe 2/3 through the process for the court itself." How she views argument being on the bench as opposed to being the advocate is it's a part of this ongoing process.
She thought that you have to recognize that even though you know it to be the case because they're still working on it when your advocacy is done. It’s something about internalizing or knowing that and saying, "This is part of the process." It’s knowing how we can be helpful when we're there to facilitate further discussions about what the court is going to have.
One of my former colleagues used to put it this way and I thought it was fantastic. Your oral argument is your opportunity as an advocate to be in the room when the court is conferencing. These are the questions and the things that we're going to be talking about. You get to be here for the beginning of the conference or discussion and weigh in on some of these questions and concerns. That's where you want your focus. That's what you want to accomplish.
That's another great way of describing it. Do you use a lot of technology? Do you have the record and things like that available on an iPad or something when you're on the bench or not?
I have tried that occasionally and I don't love it. It's too blocking to me. I have my clerks create a binder for me that has the break, then the key cases and the key record sites. I do it on paper. Speaking of technology, during the pandemic we went to an online oral argument. The appellate courts loved it. They loved having online arguments. We've always live-streamed the audio, so now people could watch the proceedings.
We ended up changing our courtrooms. Now, they have cameras. They're all set up for video conferencing. We can do hybrid arguments. We can have even one attorney who wants to appear remotely and have other people in a courtroom. Our Chief Justice appears remotely for one set of arguments. It gives us so much more flexibility. It's good for the public to get to see what's going on in our appellate courts.
The Supreme Court is statewide and Utah is a fairly large state. There's quite a distance to travel between the Southern and Salt Lake City. Sometimes we have a maybe domestic case, so we wonder whether it was a good idea to have counsel. These individuals have to spend the time and money to come up to Salt Lake to argue. Now, we feel like we can go ahead and schedule that and not have to worry about that because people have the option to work remotely.
The pandemic and all the lessons we learned about remote hearings have helped in terms of access to justice. It has increased our appearance rate. People are able to take a break from work and appear in the break room. They don't have a warrant out for their arrest. We've embraced that and we’re trying to make the most of it going forward.
It's good to have different options and to be flexible, and to have hybrid argument presentations. That was one of the reasons that the Ninth Circuit had before the pandemic. It’s a pretty robust technological setup where the judges could appear remotely on a screen, especially for people who had to travel and didn't have a lot of resources to do that. To allow them to present remotely was nowhere near as common as it is now in so many appellate courts. At least, they were thinking about that before the pandemic. It's nice to have that option now in so many other appellate courts also.
There's nothing like going to the actual courtroom. You have a beautiful courtroom that reminds you of the public role that the court is playing, the importance of the decision-making and the cases as a matter of public interest, and things like that too. It's nice to be able to go to the courtrooms to argue.
I enjoy it as well. The Tenth Circuit was doing a pilot project a long time ago when they were having us argue one time a year remotely. That was years and years ago. I didn't mind it as some other attorneys did, but there was something special about traveling to Denver and going to those beautiful courtrooms and getting to appear in person. I like that we have the option.
It's nice to have the option now instead of exclusively one way. It's good to have a reminder every once in a while of the full context in which this decision-making is happening, and the importance of it to the state or the jurisdiction. Thank you so much for sitting down and having this chat. I appreciate it. I appreciate knowing your insights and the takeaway of persistence on so many levels and being open to other opportunities you might not have considered. You never know where it might take you. It could even be the Supreme Court, so there you go. Usually, I close with a few lightning-round questions. We talked about brief writing and argument, so I won't go there. I'll start with which talent would you most like to have but don't.
I would like to have a good singing voice. If I did, I might not be in the law because if I could do musical theater, I might still be an actress. I would love to be able to sing.
How did the acting training inform your law practice? Do you think it had an impact on how you presented cases?
Absolutely. It made me more confident and poise. I had done some oratory in high school as well. When I was at the US Attorney's office, whoever my supervisor was would often comment in my reviews that I had this great presence in the courtroom. I thought that stage presence that I learned in theater. All of that makes sense. Being able to use language, presentation skills, pauses, emphasis, and things like that makes you a more compelling advocate in the courtroom. It helped.
Use language and presentation skills, pauses, emphasis, and things of that nature. It makes you a more compelling advocate in the courtroom.
I hadn't thought about that part. Pausing for emphasis and the phrasing so people can take in the substance of what you're saying more easily.
I have to admit that when I was a brand-new appellate lawyer, I was very young, and I didn't know any lawyers, I was a little bit intimidated by the entire thing. When I used to go to the Tenth Circuit, I would think of myself as playing a role when I stood up there, that I was this extremely competent amazing appellate lawyer. It helped calm my nerves and gave me a little bit more confidence.
That's great. I like that way of thinking. Keep moving through it and become that particular role.
That did happen after a while and it was still me.
You didn't have to do that consciously anymore. I still always get nervous before I'm going to stand up and argue, but once I'm up, it all goes away. There's still that moment. I like to think that as long as you have that butterflies, you still should be doing what you're doing because you care about the outcome.
You had that little adrenaline rush.
If you don't, maybe you're not as engaged. That's a whole separate problem. I'd like to know who are some of your favorite writers. They don't have to be legal writers, but they could be.
Oliver Wendell Holmes was the first one who inspired me to go to law school. It was some of his First Amendment decisions that I loved so much. I do have a little bit of odd taste in reading. I like sci-fi and fantasy. I like epic fantasy. I like Robert Jordan's Wheel of Time series and George R.R. Martin, Game of Thrones. That's what I read.
When I interviewed with the governor for this position on the Supreme Court, he asked what was the most recent book I read. When I've been talking to all my colleagues, they were all saying these profound books like Just Mercy and all of these things. I said, "I just read Project Hail Mary," which is a sci-fi book and it was wonderful. I absolutely loved it. Apparently, that didn't knock me out of the running. I like to balance the hard realism of the cases we deal with every day and escape with literature.
What about some of the classics like Isaac Asimov?
I enjoy all of those.
That's even interesting now as we're entering a new space era to look back, especially to some of those foundational sci-fi things and think, "That's interesting. They got some things correct long ago."
It's amazing.
Who is your hero in real life?
I'd have to say, my husband. He's the one who kept me in law school. He's the one who has supported me. There’s one thing I haven't talked about besides having a flexible work arrangement. When we had our second child, I asked him if he would quit his job as a graphic designer and stay home and be a full-time parent. That was hard for him but he did it. He did it so well and was absolutely amazing. I honestly don't think I would be here without him. He made it so that I could be involved in bar activities. I was put on trial teams where I sometimes went days without being able to see my kids awake. Knowing that my kids were cared for and that he supported me made all the difference.
It's a huge comfort level knowing that they were well taken care of by dad. You had a lot of involvement not only in the work you were doing but also in the Bar Association, serving in a lot of leadership roles. That's a whole second shift career-wise with the number of events you go to, the meetings, and things like that.
I don't think I would've been able to do it otherwise. I'm grateful that he made that sacrifice. He always supported me and believed in me. He spoke at both my investitures as a judge. He's not a lawyer but he has been my biggest supporter. He is such a great dad.
He encouraged you to keep going in law school too when you might have thought, "I don't know." It's nice when someone who loves you and cares about you sees your potential in that way and then nurtures it.
It is. I'll always remember in a final Moot Court competition in law school, we had a visiting judge from California. He said some nice things after the argument about how I was born to be an appellate lawyer and those types of things. This is so typical for my husband. He went and took the program to the judge and asked the judge to sign it for me and write a few words. Those were the things he did to always encourage me and keep me going. It has made a difference.
That's very thoughtful. He's very thoughtful of what would encourage you instead of saying it himself, which I'm sure he did over time like, "You're going to do great," and all of that, but to have that additional thinking, "This would have an impact on her to be able to look at this every once in a while if she's questioning something." He's a very empathetic person. Also, a good person to have with your kids. That's a good choice you made there for both of you.
It has been a nice life.
It might be related to this, but what in life do you feel most grateful for?
I am extremely grateful for my family. I have two wonderful kids and my husband. They're all so supportive. That has to be first and foremost, but a very close second is the incredible good fortune I have of working on a court with friends who I love, want to spend time with, respect, and admire. It makes it so much easier too when we're dealing with difficult issues. It's easier to respectfully and kindly disagree, to push back, and to have those kinds of disagreements when you have genuine affection for each other. I feel extremely grateful to be on this court and to be with these colleagues.
To be on the court and the time that you are on the court. As you said, it's all meant to be in the longer term in terms of the timing.
I couldn't agree more.
That's very cool. The last two questions, the first of the last is if you were to host a dinner party, who would you invite?
I thought about this one. Someone like Carl Sagan, Jacques Cousteau, or someone who does something with science. Even though I'm not involved in science, I find it fascinating. I would love to hear and learn more from people who think about those big concepts and the natural world.
That's interesting. I like interesting answers. The last question, what is your motto if you have one?
We do have one. It's a family motto, "There's always more to learn." It means a lot of different things. When my kids were little, they'd ask us a question sometimes. They'd say, "What's the difference between a cactus and a succulent?" We'd give our best guess and then we'd look it up. We'd find out we were wrong and we'd say, "I was wrong about that. There's always more to learn. It's okay to be wrong as long as you're willing to learn more." It also talks about the desire to continually grow and to be curious and to learn new things. We say it all the time, “There's always more to learn.” It's one of the reasons that I applied for this job at the Supreme Court. Even though I loved my job at the Court of Appeals, I knew there was more to learn and it'll be a great opportunity.
I like that. It has many facets to it in a lot of different settings. In my own upbringing, if I had a question about something, they'd send me to the dictionary or the encyclopedia. It's their way of, "Go find out the answer. You can do it. You have the skills. Go do that and then we'll discuss it." It's a variation on that too.
I had the same experience as a child. I'd ask a question and my mother would say, "Go pull the encyclopedia and look," but if we were reading the giant encyclopedia, that was the end of the road. Now, we can look everything up online. That's wonderful.
It's totally different now. It's like, "Do a little search there and you can find things out."
It’s sometimes overwhelming, but it's wonderful that we have so much information and so much learning at our fingertips.
In our lifetimes, the change has been significant. Justice Hagen, thank you so much for joining and discussing. You are a very warm and accessible person. I appreciate sharing your experiences and being so candid about them.
It has been my pleasure. Thank you so much for having me.