Episode 171: Anna Manasco
U.S. District Judge, Northern District Of Alabama
01:01:23
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Show Notes
Alabama federal district judge Anna Manasco shares her journey from debate champion to appellate litigator and federal judge, and offers tips for young lawyers to grow their skills and gain opportunities to be mentored. Judge Manasco was nominated to the federal bench in February of 2020 and confirmed in May of 2020. Her journey to the bench was characterized by her willingness to learn from everyone and everything that comes her way in throughout her legal career. Tune in and be inspired!
Relevant episode links:
Northern District of Alabama, United States District Court, How I Lawyer
About Anna Manasco:
Anna Manasco was born and raised in Montgomery, Alabama. She received a Bachelor’s Degree from Emory University, a Doctorate from Oxford University, and a Juris Doctor from Yale University. After graduating from Yale, Judge Manasco clerked for Chief Judge William Pryor on the Eleventh Circuit Court of Appeals and went on to practice law at Bradley Arant Boult Cummings in Birmingham. Judge Manasco was nominated to the federal bench in February of 2020 and confirmed in May of 2020. She is a mother of three, serves on the Board of Children’s of Alabama, and is an active member of St. Luke’s Episcopal Church.
Transcript
In this episode, I'm very pleased to have joined us on the show to discuss her career path and journey to the bench, Judge Anna Manasco from the Northern District of Alabama, United States District Court. Welcome.
I'm thrilled to be here. Thank you for having me.
Thank you for participating in the great panel discussion we had with other judges and guests of the show at the ABA Women in Litigation Conference in San Diego. It was a great discussion. I thought the audience would be very interested in hearing about your path and career journey, as well as the other guests on that panel.
Thank you. It was my privilege.
I usually start from the beginning as far as the law goes. How did you decide you wanted to go to law school? Why did you think you might want to become a lawyer?
I was very fortunate to be exposed to the law from a young age. It was in the water at my house. My dad was in the private practice of law for many years and my mom worked with him in his law office. It was dinner table conversation on the regular around our mealtimes. In high school, I was a competitive debater. I realized that I enjoyed spending time thinking critically about difficult and thorny issues.
I was debating them, trying to view them objectively, and figuring out what would be the best result or what the result should be under the law. I was focused on those things at an early age. When I left high school, I knew that what I ultimately wanted to do was go to law school. I didn't know whether I would practice, teach, or work for the government or what I might do in terms of public service with it but I knew that I was headed into the law.
Were there any law firm management discussions? It sounds like there might be even at the dinner table, as it’s not a general legal issue.
It’s not a ton. He was a family and matrimonial lawyer. At times, he might have 1 partner or 2 but for the most part, it was not in a larger firm. He was on his own for many years because that practice tends to often work like that. There weren't as many discussions about law firm management but there were discussions like, “How does this argument sound? How do these good or bad facts sound or this rule?” A healthy debate was important. I understood what litigation took from a young age. We would wake up and Dad's trial materials would be sternal over the breakfast table. We would eat at the counter on the other side of the kitchen. It was the family business.
It's important to see what it is like in terms of how your life is when you're doing that focus. My mom had not until seen what's involved when you're consulting strategically at a trial. She's like, “Those hours are insane.” It’s very early, crawling in late, and starting the next day over. It's helpful to see that so you know what can be involved at times and how consuming it is when you're trying to work out the best argument. I still work out. If I'm doing an appellate argument and trying to think of themes, I still share it with my folks and people who aren't lawyers. I was like, “Does this sound right? What do you think about this?” It's great to get that feedback.
It's important to have that feedback. It is important to see what the rhythm of a practicing lawyer's daily life is like. I love that part. I also loved seeing Dad love his job. I never once heard him say, “I have the most boring day at the office. I'm not feeling satisfied by what I do.” Those things were antithetical to the level of interest, excitement, curiosity, and all of those things that he was experiencing in his practice. That was hugely influential for me.
It's interesting but he is also engaged with it. It's a very positive choice for him. That makes it easier to say that is influential in your decision to be like, “I want to be happy in what I do, too. This seems a good path.” A lot of folks who enjoy debate end up becoming litigators.
They do law school orientation. All of the former debaters in the auditorium could identify themselves quickly but it's an important training. The way debate tournaments work, you're assigned a topic, you do some research, you go to the tournament, and you're assigned a side. You may argue one side of a certain number of debates and another side of a certain number of debates but you don't have a lot of choice in that.
As a lawyer, I often valued the training that I had in seeing the other side of the argument and understanding what the weaknesses and blind spots are. Those skills were helpful to me. I would try to focus on what I thought would be the most effective arguments. I wasn't scared of those weaknesses and blind spots because I spent a lot of time identifying them. It also helped me to understand where adversaries were coming from and what they might be likely to say or do next that I could anticipate. Debaters commonly end up as litigators for that reason.
There is value in seeing the other side of the argument and understanding what the weaknesses are.
I do know former debaters, being a litigator myself. That's a great explanation of what it provides because it's much more formal and it has technical rules that are very different from legal arguments. Those factors are hugely valuable as a litigator.
The importance of the research and objective evaluations of good arguments and bad ones are the bread and butter of effective litigators.
When you were talking, I was thinking about agility and being able to think on your feet because we could be assigned one side we don't know which one, and you have to flip. You not only have to understand those things but be able to make a convincing argument for either side.
High school debaters spend some time learning how to do cross-examination or sometimes they'll call it crossfire. That question and answer, like I have to have a command of the information that I'm discussing or I'm not prepared to answer an unexpected question, is an important piece of it.
That's all part of the preparation for argument and presentation in court. It's setting a good framework for how to think about those things and how to prepare, even if it's not before you get into legal training. I hear all that. I'm like, “It's what litigators do.” A lot of debaters end up doing litigation because they enjoy that discussion. Did you think about subject areas like doing family law like your dad did? What were you thinking about what you wanted to do with your Law degree?
I was not sure about that piece, although I was sure that I would be a litigator but in terms of a specialty subject area, I did not know. When I went to law school, it was after graduate school. I did a JD PhD at two different schools. I thought that I would want to teach and practice. I ended up going into practice but returned to teaching after I joined the bench. I was writing and research-focused at that time but that was all I knew. I did not have a lot of exposure to subject area specialties other than family law. My 1L summer was speed dating.
When I would go to the law firms and meet with them or interview with them for summer jobs, I wanted to know all I could about what young associates were doing in different specialty areas and places where young associates had responsibilities and opportunities to grow and what a day was in the life was like for a construction lawyer, a healthcare lawyer, or a labor and employment lawyer so that I could make those decisions. I landed mostly an appellate work because I did not want to be a subject area specialty. I wanted to have specialty skills and roles but not necessarily a subject matter specialty. It worked out that way after some research but it was not what I had expected when I went into law school.
That's the value of this show. Jonah Perlin at Georgetown has a show called How I Lawyer, where he interviews lawyers who do different things so law students can know about what is involved. What is the day in life? What kind of person thinks that this practice is interesting? Do I have similarities and characteristics with those types of folks? There's a lot of value in checking around.
I clerked for circuit judges. Even after that, I had no idea that there was such a thing as appellate law as a specialty, that you could do it, or what was involved. Sometimes, you have to get out, talk to people, and find out about things to realize, “This is cool. This is something I would like to do.” I was thinking about that. When you were talking about your debate experience and the things that you enjoy doing, I was like, “That sounds like an appellate lawyer.”
When you were describing it, I was like, “She would enjoy appellate. I enjoy the same thing about it. Each case is new. It's a new area or issue that is thorny and needs to be resolved. I’m trying to figure out where the law should go and where the case fits in. It's fun to do that and not have it be like, “It's another fill-in-the-blank or same kind of subject matter case with slightly different issues every time.”
It was important to keep it fresh for me. I never got settled in one particular subject area. If I was working on a product liability case, somebody had to explain it to me from start to finish and I could begin my work on what the legal issues were that arose out of those facts. When I worked on construction cases, someone would have to explain the specialty terminology and what the issues were with respect to the project. Only then could I begin my work.
It's important to keep your learnings fresh.
There was always the stage one learning process, where I had to learn facts about the case, the dispute, or whatever was going on that were natural. It came quickly and easily to other people but I had to learn them before I could do anything to contribute to the team. That was exciting and fresh. I never got super comfortable with any one particular area because I didn't get it on repeat. That was my life as a law clerk, where you would pick up a case.
In some cases, you might see those types of cases more than once but for the most part, you had to figure out what was going on before you could even begin to approach the task of doing research or making a recommendation. The same is true for a district judge. There are all kinds of times when I have to familiarize myself with new and different facts that I have not encountered before I can begin my work. That addresses an intellectual curiosity that I'm thankful for. If every day were the same story with different chapters, I don't know how interesting or exciting I would find that.
It's important to know that about yourself and recognize things like, “What works for me? What do I enjoy?” I think the same thing. The variation keeps it fresh but if it weren't varying, I might not still be practicing. It keeps you in the mix. In each of those roles, it isn't specific to appellate. In the district court and litigator roles, I think of it as getting the background and the framework like where this fits in, in a bigger question, whether it's a question of the law or a franchise case.
What are franchises? How do they operate? What is this industry about? I can understand why a rule makes or doesn't make sense in that industry. All of that is helpful as an appellate lawyer but as a judge, you want to have a deeper understanding and put things in a larger context. It's interesting to think about that. Becoming a judge is a change in your legal career. You're making a switch from advocacy to a decision-maker.
Whenever you do that, you sometimes think about transferable skills, or what do I know how to do now that will serve me in the next role? What do I need to layer on and add to those skills to do that job to the utmost? It seems like you've done a good job of thinking, “I have these skills. I can translate it here.” It's a similar thinking process, even if it doesn't look like it's the same thing as an advocate and a decision-maker.
The enterprise is different but the skills are fundamentally the same. As a lawyer, I always wanted to start my thought process with as clean a slate as possible so that I could objectively view the arguments and make some curated, well-thought-out decisions about what would be a good strategy. I try to do the same thing in this job. If I encounter a case, emotion, or something I have to decide, as part of setting aside what I think I know or what I know, the approach to this case is its thing with its unique set of facts.
I come to a fuller understanding of what is involved and have a deep mastery of the legal issues that are applicable so that I can make a decision that is well-grounded and sound. The roles are different as a judge and an advocate but the skillset is similar. Along the way, I've been thankful. I can look back on my law practice and think about specific cases, mentors, or clients who encouraged this skill and wanted to think critically about arguments. It was not just to drink the Kool-Aid and tell me I'm right all the time and tell me that you have a way to achieve my strategic goals with absolute certainty. Let's think critically about how we're going to move forward. That skill has been immensely valuable here.
That's a good point about the client's perspective on that. It depends on how you're managing risk. Part of managing the risk is looking at, “There's a potential downside here. We have to accommodate that and be aware of that,” even as we're advocating our position instead of, “Never mind that. There's only one way to look at this.”
Part of managing the risk is looking at, "Hey, there's a potential downside here, and we have to accommodate that and be aware of that even as we're advocating our position." Instead of, "Never mind that there's only one way to look at this."
The ability to see the whole picture is critical for so many different things, not only to outcomes or results but also to candor as a lawyer and intellectual honesty as a judge. We have to see the fullness of an argument, a rule, a doctrine, or whatever we're dealing with. I'm grateful for everybody who helped me to cultivate that skill. I lean on it on a regular basis.
This discussion about skills and how they translate to different things is valuable. Sometimes, you can foreclose yourself on a new opportunity because it seems so different from what you've already done. You're like, “I don't know if I'm prepared or ready for that, or if I can do what's involved or some variation of that.” To look at things and break them down by skill is a particular mindset or vision that you have to see and see the translation.
There's a friend of mine, Jennifer Friend, who was a litigator and a partner in a law firm and then is the CEO of a nonprofit that helps homeless children succeed. Like you, she has a very clear sense of these skills as a litigator, which is what I use in this aspect of running a nonprofit business. I have that clarity around it. It's not easy to have that and there's a particular mindset that allows you to do that. It opens up so many new things to you when you can do that because you say, “I have these skills. These skills translate. I can do that. I need to learn new things but I also have these things. I'm not coming in with nothing to do this job.”
It takes some of the fanciest and most well-accomplished lawyers I worked with or maybe even worked against to have the skill of saying, “I don't know that. I'm going to need someone younger or more junior to teach me something about that subject area. If you'll teach me, I can do well with that.” That was modeled for me in a way that's stuck for me to understand. I did not clerk in a district judge's chambers. I don't spend most of my litigating time in the Federal district courts but I do have skills that I can bring to bear on that job.
If I ask the right questions, have the right mentors, consult the right resources, and work hard, I can learn the other skills. It's easy to convince ourselves to be like, “I'm not ready or prepared for that. Someone else is more ready or prepared.” In truth, there are skills you have that translate and the rest is learnable. It's not smooth or perfect but no legal work is. I've been very thankful for the experiences that I had that I can recall and lean on as I learned the rest.
That's how you grow. You have the things you know. You go into new areas, learn new skills, and put all of those things together. You add something to the whole mix by having a special mix of skills that maybe other people don't have in that position. Tell me about your clerkship. You clerked on the Federal Court of Appeals. How was that?
It was great. I clerked on the Eleventh Circuit for Chief Judge Pryor. I had worked with him as a young intern when he was the Attorney General of Alabama and I was in graduate school. I admired his intellect and public service. I could learn a lot from him. I had already had a tiny glimpse of what that might be. I went into the clerkship excited and it exceeded all of my expectations.
The job of an appellate law clerk is so unique because you receive a case that the judge you're working for has to hear whether there's going to be an oral argument or not. It's like this closed universe. I used to call it the silver platter because you would get this specific record that had been made in the district court that you were allowed to consider. Our training tells us we have specific kinds of cases that we are allowed to consider. In some cases, it matters more than others, depending on certain circumstances about this cases.
You had this closed universe of information that you were supposed to rely on to make a recommendation and prepare whatever work product you've been asked to prepare. It allowed me to hone those critical thinking and writing skills in a closed universe. As a practicing lawyer, sometimes, in cases, you have a handful of considerations and an ocean of considerations. You're trying to sort out what are your priorities and triage those in different ways. The opportunity to hone the craft in a confined space was great.
It gave me an opportunity to think hard about what good legal work is. When you leave law school, you’re like, “Can I pass the bar? What do I enjoy doing? Where should I get my first job?” Before the clerkship, I had not spent a lot of time thinking, “What does excellent advocacy look like? How does that manifest? Who do I look up to? What skills do I want to cultivate?” The clerkship year is great for that. You can see for yourself. You can see how your judge reacts to things. You know what's persuasive and ineffective.
Both on the trial court, district court, and the court of appeals, the insight you get from a clerkship is something you're like, “I'm never going to get that opportunity again to have that insight as a litigator.” What you're putting in there is received by the judge, the rest of the panel, and the law clerks. Are you being helpful? Are you not being helpful? What is helpful to a decision-maker?
That is invaluable. After enough experience of that over 1 year or 2 years, you internalize it. When you start doing the work yourself, you're like, “Not that. We're going to do it this way.” It's seeing all of those things as to what is effective and then making those judgment calls in a particular case about what is most effective there or most helpful.
It's an invaluable experience.
That whole closed environment is so true. That's part of what I enjoy about appellate work because I'm like, “We have the universe.” I always worried as a trial court litigator that there would be some smoking gun somewhere that I somehow didn't discover. Here's this whole story that's presented but in reality, there's something else that blows out of the water. I'm like, “I don't have to worry about that anymore because whatever people created, that is what happened. We need to work from that forward.” I can always find a case and law. I understand I'm not going to miss something there. There was always that sense that there could be something we didn't find somewhere that nagged at me as being the trial litigator.
I remember being a baby lawyer. My young lawyer friends were writing deposition outlines. They are preparing suggested questions for others or themselves to use as a witness. I always said, “That seems so hard to me.” I would have to think about the total universe of questions I could ask. Which ones are good? Which ones might be fraught with risk in some way? I don't know the answers to all these. I want to open the door to some of them. The closed universe piece was a great way to learn.
You're right because it allows you to focus on this part of the craft and the task. You're not worrying about the other part of it. It's a good way. Tell me about your PhD. This is interesting. You have a JD PhD. What was your PhD focused on? What did you think you might teach?
I studied Preliminary Politics in the UK. I studied questions about the representation of women and men in the parliaments. A few years before I started grad school, a historic number of women had been elected to the House of Commons in the UK. There was all of the hype that this is going to change the way that the parliament addresses “women's issues.” I took a critical look at that hypothesis. Did that subject the women to a standard that was fair politically? We don't normally ask if male representatives are changing the way the parliament deals with “male issues.” That would be a weird question to ask.
It turns out that there may be some stylistic differences but those, on the whole, do not dramatically alter the way that a parliament or a legislative body addresses the substance of a particular issue in front of it. The effect is much more nuanced. It's very important to not diminish it at all but it's not this straight line like more women in the parliament and more attention paid to women's issues. That's the metric on which all of those women are going to go and get reelected.
It was an interesting question. It was timely at the time. All of those questions become less timely as time passes. I loved the social science exercise of thinking critically about a hypothesis, surveying all the other ideas out there about this hypothesis, and trying to figure out how they fit, some a good fit or some not good fit, and think critically about that.
I got the chance to teach undergraduates as graduate students do. That was fun. I loved that. As a lawyer, it impacted my understanding of social science in cases I have that involved social science-type methods or statistics. It certainly was one chapter in my story of professional critical thinking that I found enjoyable. I can't otherwise say that that experience has impacted my day-to-day life in terms of practicing law but it was great.
It's always interesting to flex your brain in different ways and learn different disciplines and ways of thinking about things. A lot of creativity comes from combining different unexpected things. You can't combine them unless you know them. Having a different background and knowledge allows you to draw on other things for creative approaches to things you may not even think about. That's so interesting and cool.
It was a privilege to get to do it. It did shape my understanding of how the arguments we make justify whatever the desired political outcome is. Those become benchmarks against which we measure outcomes down the road in terms of political success or failure. It certainly did not just in terms of critical thinking but also in terms of the kinds of arguments or messages that are made to justify a particular outcome. It did affect how I think about those.
That's a good insight in helping analyze things that supposedly or theoretically correlate but may not. My experience that I've seen with the UK is that, to some degree, they're a few years behind the US in women's progress in the profession. They were so excited. They’re like, “We have the first woman chief justice.” They are behind in terms of how long women have been in the practice of law in the UK.
We're in 100 years, which is far less than the US. I'm like, “I see the trajectory.” They're still moving forward with a little bit less time than we've had to integrate women into the profession. It's interesting to see that and see a lot of first. The rationale for why you would do that makes sense. Does it say, “We're going to have all these women deciding cases?” It’s still important to have different perspectives, no matter what.
On an appellate panel, it's helpful to have all the different perspectives vetting out an issue and opinion because it's going to impact so many other cases. You want to make sure that you have, whether it's different experiences in practice that people bring to the bench, a fuller discussion as a result of that. Tell me about the bench. How did you decide to apply? How did that come about?
I knew in the abstract that I was interested in a judicial role. I did not know much more than that.
Why did you think that? Was it your clerkship experience? What made you think you would be interested in that?
I loved being an advocate. I had a great, thriving, healthy private practice at a firm that I loved. I would've been there for the rest of my life. It was not a situation where I had built a private practice that disappointed me in some way or I felt like it had outlived its utility to me. I wasn't looking to “get out.” I have always admired the public service piece that comes with the judicial role and the importance of viewing an argument from both sides and then making a decision that is in service of the rule of law.
The bar plays an enormous role in our work in that regard. Every judge wants well-lawyered cases and only well-lawyered cases. The opportunity for public service and a different role in the system appeals to me immensely. I knew that would be something that, if it were within reach, I would love to do. I didn't know how to make it happen.
When a vacancy was announced as forthcoming, it didn't exist at that moment. I had a friend who called and encouraged me to indicate to our senior senator's office that I would like to be considered. That was the process for that particular agency. You indicate you'd like to be considered and they take it from there. I said, “This is a terrible idea. I'm too young. I'm not ready. I'm ill-prepared.” I listed all the reasons why it might not work.
This is a dear friend. She’s someone I can speak freely with. She spoke freely with me right back and said, “You’re going to need to stop talking and apply. This is a great idea. It is a reasonable attempt. I don't think this is a complete shot in the dark because you are prepared.” She coached me up and walked down all the self-doubt voices that I was leading with. She would not let go so I did it. Incrementally, the rest is history.
I had a first interview that was lovely but I didn't hear back for a while and thought, “That's the end of that.” The second interview went the same way and accumulated some momentum that resulted in a nomination. I tell colleagues, friends, my kids, and their friends, “Don't count yourself out. You can't get the job you don't ask for. You can't have a role on the team that you don't indicate that you're ready for.” When the rubber hit the road, it took a hefty dose of encouragement for me to do it. I'm grateful for that.
That's a good point. You can give that advice to others but for yourself, sometimes you need to take the same advice you're giving to others. You need somebody to push back on you when you say, “No, I need all of these various things.” I'm glad she persevered in getting you to apply. You're like, “I want to do this but I have no idea how to make that happen or how it works.”
Part of my hope with the show is that people can read the different ways that you can get to the bench, whether that's something that you're interested in doing or knowing what's involved in that, whether you're going to go through an election or it's an appointment process, what that process is like. It's so different in different places across the country.
It's an intensely local enterprise for the most part. It's hard to be willing to put yourself out there enough to show that you have an interest and learn more. For some folks, there's a concern. I've worked hard to build this private practice. I don't want to look like I'm ready to abandon that. Getting a judicial nomination is a little bit like catching lightning in a bottle.
Statistically, this might not work out for me. I'm not interested in incurring any downside risk and the attempt to go after it. It can feel delicate. If you have put in the work to develop mentor relationships, personal board of advisors, and deep friendships who will speak frankly with you, that information is out there and findable but you've got to be willing to put your hand up and put your hat in the ring when the moment comes.
The judicial appointment is a delicate thing, especially when you're like, “I'm perfectly happy doing what I'm doing. I'd love to have the opportunity to do this but I'm happy. I would not want my pursuit of a judicial position to have some negative effect on my practice and the things I enjoy doing.” That's a concern. I've had friends who have been appointed but the process takes a long confirmation. They've said that impacted their practice because everyone knows you're up for this. Who knows when, 2, 6, or 9 months, you're going to be gone? That impacts our new clients or people with new cases to you. It’s not because you might not be there.
I was fortunate enough that once the news of my nomination was public or even semi-public, my law firm was supportive. It had been for other lawyers who had left our firm for the bench before. I did not have a lot of genuine doubt that that would be a piece of the process that I could weather. I watched other people go through the process with a lot of difficulty in that area. It's a concern. I tend to think that most problems are solvable for things that we want to try to accomplish in our professional lives. It took a lot of coaching from friends at times to remind me of my advice. For the most part, that's a navigable difficulty, even if it is very delicate along the way.
Don't say, “With that, I'm not going to do it.” How have you enjoyed being on the bench? What is it like to be a district judge? Is that what you thought?
It's been wonderful. I have loved every minute of it. All jobs have exciting parts and some heavier parts that are hard and not as exciting. If any Federal district judge were to sit down and say, “I enjoy sentencing people,” you would be very surprised. That is a universally disliked part of the job but it is an important part of the job. I have enjoyed all of the work that's been on my plate. I have wonderfully collegial colleagues.
I'm the junior most judge in the Northern district. All of them are ahead of me and have been willing to answer questions, provide counsel, or direct me to resources. The transition has been a complete dream. I started in May 2020. There was nowhere to go in terms of the day-to-day experience of working in a Federal courthouse. The courthouse was empty and quiet. Everything was happening on Zoom.
I have a good physical workspace here with plenty of space for social distancing but we were all still masked, even in the office, sitting alone by ourselves. It was not anybody's favorite time. There was nowhere to give it up in that regard. I have loved watching the courthouse come back to life and the opportunity to have in-person hearings. There are still some things I do by Zoom because it's helpful. I don't do it just because I have to. My experience has been good and I'm thankful for that.
Did you have any bumps in the road in the transition from being an advocate to being a decision-maker? Sometimes, people say, “That's a tough shift in mindset.”
I don't think I had a real bump in the road in terms of the day-to-day work but it was a hard turn cognitively. In the first few hearings I did have, I would be sitting there thinking to myself, “What are you doing? Why are you doing that? I can't believe you said that. That's a terrible argument.” I'm not going to register that on my face. Being mindful that I don't know as much about a case as the lawyers do, they may have reasons for making decisions or doing things that are unknown to me and should be unknown to me. I take some intentionality at times when it's not apparent why a certain strategic decision has been made. Cognitively, it was a square corner to turn. It was effortful but not difficult.
I thought that would be your answer because you're good at adjusting and translating skills. I was thinking the same thing that you're like, “We have to adjust.” What you said about where your mind goes when you're in court, you're like, “I’m thinking about rebuttal.” I’m like, “I don't do that.”
You're thinking, “Why in the world would you say that?” All of a sudden, I have to think, “It doesn't matter to me why he's saying it. He said it. Maybe it's the best argument he can make. His client feels strongly about it. The arguments he ought to be making, for whatever reason, he's not entitled to make, or he thinks it will not be fruitful.” I have to say, “I'm shutting off that part of my brain. I'm going to focus on this other part of my brain over here. With what's been put in front of me, what do I do?”
It’s not that long ago but looking back, are there certain things you think, “Now that I know, I would've been well-served in doing certain things to prepare for the judicial role?” Is there something you can tell yourself?
I said at the conference, “One of the things that if I had to go back and do over again, I would write motions and briefs that were a lot shorter than whatever it is that I ever wrote.” I did not fully appreciate how much quicker I would have gotten a decision had my materials been more concise. In my mind, judges have a list and they work on cases. It’s 1 through 100 on the list in the order of the age of the case. That may be true but, at least in my life, if I get to the end of my task list for the day and I have an hour, I'm not going to waste the hour. I'm going to look around and see, “I can't decide that big summary judgment motion.”
“What can I complete in this hour?”
“For this motion to compel about this specific privilege issue, maybe I can review those materials in an hour and decide on that motion.” I wish I had appreciated that as a lawyer. In terms of preparing for the bench, what I wish I had appreciated is how important the administration of Chambers is. I call it the sausage factory. What decisions do we make about how we organize our workflow that keeps all the parts of the factory running effectively and efficiently? That's, for the most part, not known to the bar. It might be known to former clerks who have worked here. That is a still-evolving part of my work as a judge a few years down. How do I make this place run well?
All the different parts are moving parts together. When you think about that on the district court, in particular, that's your chambers, clerks, law clerks, and assistants. That's all one team that needs to be organized and put together for the individual cases. On top of that is the larger district administrative concerns. There are a lot of layers to it that we don't see that part as the advocates.
It's important. It affects how efficiently we're able to do the work for the cases that you tee up. I don't have a law school or professional training in Chamber management other than one year of an appellate clerkship on the Court of Appeals. This was a steep learning curve for me but it's been fun to try to figure it out.
Think about some of the trial court presiding judges I've talked to who've said, “We have a wide variety of responsibilities, including facilities. If water is coming into somebody’s Chambers, we have to move them, get them in a new courtroom, get those cases moving, and do the facility part.” Who knew this is all part of the thing, but it is. We talked a little bit about mentors and sponsors but I didn't know if you wanted to say more about the impact on your career for newer lawyers.
It's huge. I did not have a subject area specialty so I had exposure to a lot of different partners and practice groups on a lot of different matters. I could quickly see different things that each person did well that I wanted to emulate. Only a few of those relationships developed into close mentorships, friendships, and people who would be champions for me. If I were to go back and try to make a list of everything I learned from my former law partners about how to be an effective litigator, negotiator, or advocate, it would consume pages of different names.
Some of that happens naturally. You get assigned to do some work for somebody. If you do it well, they give you some more but some of it is effortful. You have to knock on the door of the person you've been told is good and have X skill and say, “I would love to have the opportunity to work with you on this. I'm willing to do it even if I can't bill the hours or there's no prospect of future assignments from you for me. I would like to have the opportunity to observe you in this way.”
Sometimes, that feels impossible. Your plate is full but you've got to find a way to at least do it periodically, even if you can't do it frequently, or you'll wake up years from now having not done it at all and you missed out on some opportunities to learn from other people who have spent their whole careers honing their craft in specific areas. I cannot emphasize enough to young lawyers that practicing law is more than putting your head down and doing the work you're asked for. That is important.
If you don't do that, it's going to be difficult to be successful. It is much more than that. You have got to decide. This is a years-long process. What kind of lawyer do you want to be? What do you want your reputation to be? What do you want to be known for as a well-curated skill or ability? Equally important, what kind of work don't you want to do, or what relationships don't you think are particularly productive for you professionally? What do you not want your reputation to be? What kind of energy do you bring to a team?
This advice is still salient for young lawyers. Your first job at a law firm, a government practice, or a nonprofit is not your JOB. It's not you do this work and you get a wage. It is your first year of law practice and it is your law practice. You might be working as an AUSA for a partnership or a corporation and they might employ you in the strictest sense of that word. For your purposes, you're practicing law there.
The importance of seeking out mentors to build your law practice is that nobody's going to take as much interest in it as you do. Making those decisions early on and soaking people up is important to not only where you'll go professionally and what opportunities you have but also how happy and satisfied you'll be with the result of your hard work if you can look at it and feel proud of it.
I like that you are taking charge and ownership of your experience, career, and practice, not in a way that's overbearing or anything like that but saying, “Here are the skills I need to learn. Here's someone good at it. I'd love to be on a fly on the wall to see how that works.” Sometimes, people think narrowly about mentoring or sponsoring. They think, “It's going to be someone who is there for me my entire career and champions me in the room when I'm not there. There are mentors like that. Don't forget that there are other opportunities like mentoring on skills and other ways.
I like the way you put the ask in terms of it. It’s not a humongous ask. As law partners, we're very busy like, “I'd like you to mentor me and be with me my entire career.” I’m like, “I have a brief due. Hold on a minute.” Doing those smaller asks, I like the way you did that in terms of, “I see you're good at this particular skill.” It was good because it made it a much easier yes for someone. Someone likes to know that they're good at something. That could develop into something more from working with someone, or it doesn't but it doesn't mean that that piece isn't valuable in your toolbox and you're not grateful to that person for having helped you in that way.
Mentoring is not big, heavy conversations over lunches or in meetings. I can think of mentoring that occurred sitting around a table at the end of a trial day, trying to plan what was going to happen the next day. A lawyer took the extra five seconds to say, “You saw I asked this other question first instead of the one we had planned that I would ask that witness first. I made that decision because of XYZ.” It's 30 seconds but it's a teachable moment that somebody doesn't let fly by.
If someone does let it fly by and the opportunity presents itself, you can ask the question, “I thought you were going to start with topic A but you started with topic B. Was there a decision-making process that led you to that? I would love to learn more.” It doesn't have to be a grandiose goal. It can be in doses here and there that you seek out or someone takes the time to offer.
That element of curiosity is so important, being curious about things. There's importance in having someone spontaneously explain why a strategy call was made, how things fit together in the larger picture, or how whatever research you were doing fits into the larger strategy and works in the case so that you're not putting things into a black hole but you're learning about how to do these things. Those are great and they don't take long for somebody to do.
As we become all more senior in our work, it is on us to do that. It's important. We need to be doing it.
That is important because that's how you grow people's skills as lawyers. It's fun to be a part of that. Seeing someone improve and blossom into who they could be as a lawyer is nice. I am happy to be part of that process. Typically, I close with a few lightning-round questions. I'm going to speed through some of those. I'm going to ask the brief writing and argument questions because you'll have good insights on those both as the appellate practitioner and a judge. What would be your top tip for brief writing? You could say either appellate or district court. You touched on it. Be concise because you might get your case faster but I didn't know if there was anything else.
If your brief or motion has a fact section or some front matter about the legal standard, you should write that first because ideally, you ought to be able to write that in a way that will compel the result that you're asking for. If you can't narrate the facts in a way that makes it seem fair, right, or important that your ask is one that will be granted by the court, you have some decisions to make about what you're going to tell your client and what of the crummy arguments that might be available you're going to make and how you're going to put them in order.
Every lawyer has a case where they're adult bad facts or a case where the law is an uphill battle. If you start with the story of the case, you ought to be able to build it in a way that will facilitate the outcome you're seeking. If you can't, the moment to start dealing with that problem is before you have made all the rest of the decisions.
That is a good point, and it has to factor into the client's decision-making or should be considered whatever you decide. That is another point in terms of what you want to feel like when you read the facts or story. You say, “That is wrong. That shouldn't happen. It's fine.” There's a gut response to that and the legal analysis. That's part of the process that needs to happen in this analysis you're talking about. Do we have a compelling story that doesn't feel right or do we not because of facts?
We're all trained issue spotters. If you write the facts in a certain way, the judge ought to be able to read those facts and think, “I'm about to hear some arguments about these couple of things.” You've got to be able to do that.
I get that in my law school clinic students where there's this interesting story. I'm like, “That story has nothing to do with the legal questions you're about to tell me about.” These things need to match. That’s an interesting story and very empathetic but I don't think that's what I'm deciding here or what the court is going to have to decide. We're going to put that aside and deal with the story that matters for the legal decision-making, especially at the appellate level. That's new for law students to do. Let's focus on that but it’s good training for the future. What about argument? At the district court level, what is most helpful?
Assume that the judge is prepared. Do not come in and summarize the brief. I've read the brief already, and there may be something in it that you think you need to call out, emphasize, or explain because it's nuanced in a way that I could have missed on a cold read. We don't have hearings as a matter of course. In my courtroom, if we have a hearing, there is a question that needs to be answered, there's something I do not understand properly, or the briefs are passing like ships in the night. There's a reason we're here in the room together and it's not because I haven't done my homework. Assume the judge is prepared and begin by saying what you want to emphasize. A PowerPoint that is a narrated summary of the brief is a guaranteed path to an underwhelming oral argument.
Would you ask those questions upfront or before people start presenting like, “These are the things I'm concerned or thinking about?”
Sometimes, I will. Sometimes, I'll say, “I brought us together because I want to discuss this specific issue. Here is my understanding. Please tell me if I've misunderstood. I want to hear what you have to say about that specific thing.” Other times, if an emotion has a lot of moving parts, I will give the opportunity to say, “I have some questions but before I ask any questions, I want to hear you present your emotion and response.” If a substantial amount of time has elapsed between the filings, you can come in and the parties have settled or whittled down the issues.
They're like, “We're disputing. We're far apart on this.”
It would be unhelpful and counterproductive for me to suggest what I'm thinking about something like that. That tends to be case-specific about whether I ask the questions straight out of the gate or hold back and try to understand where things are at present before I do much more.
I could see it either way. That's why I was asking. It does seem that it depends on the circumstance. Which talent would you most like to have but don't?
I would love to have a photographic memory. I try not to be envious in my life but I am downright jealous of my friends who have a photographic memory. If there were some brain exercises I could do, let me tell you, I'd be doing them for 30 minutes a day to give myself a photographic memory.
I had a fellow law clerk who had that. He would be like, “It's in the slip opinion that came out whatever day on page fifteen at the top paragraph.” I'm like, “How do you do that?” I have an imperfect memory in that regard. I'm like, “It's somewhere on this page on the lower level but I can't tell you what page.”
“I remember that it is at the end of the opinion and right around where they're talking about this but somebody is going to have to go look that up and confirm what exactly the quotation is because I cannot recall the quotation,” whereas my friends with a photographic memory could like spout it off.
Who are some of your favorite writers?
That's a hard question for me to answer because I consume so many different types of writing. I would say the clear and concise ones. If I have to swim my way through a sentence, it can be difficult for me to enjoy it, no matter what it is, whether it's for work, pleasure, or whatever the case may be. It’s writers that are clear, concise, and conversational, even frank and direct writing in any environment, I mean fiction or nonfiction work. That is the writing that is most satisfying to me. That's what I tend to gravitate towards.
It's interesting that you can see that. It gets common across all genres, whether it's legal writing or pleasure reading. Do you aim for that in your writing, too?
I try to. There are times when judges' complete clarity feels off the table because the decision we're making is in some gray or discretionary area. For whatever reason, the record doesn't give us enough facts to write everything in short, declaratory, active-voice sentences. Sometimes, it feels out of reach and that can be hard. When it's on the table and can be done, I try hard to do it. That's a craft I'll spend a professional lifetime honing. It's on my radar screen as an intentional goal on a consistent basis.
I try to write what you appreciate and what you like. It works for judicial opinions. Who is your hero in real life?
I can't comment on many professional heroes but in my actual life, it's my kids and seeing the world through a child's eyes. My kids are tweens and teens. They're going through the process of figuring out what keeps them feeling intellectually curious, energized, and engaged in the many classes and body of schoolwork that they're asked to complete, whatever they like, and what of it they are doing because they have to. Seeing that curiosity and that eyes wide open, I'm deciding what I think about the big issues in the world is heroic for me. I admire that spirit in them. They're sweet kids and they have a ferocity about them that I'm not sure I had in my teenage years. It is a joy for me to get to watch their work and growth in that way.
For what in life do you feel most grateful?
Between my family and work life, I enjoy every day. Even when days are difficult, decisions are difficult, or circumstances or parts of the job are not my favorites, at the end of every day, I feel like I have had a day full of riches, blessings, and opportunities. Having a life that affords that outlook is something for which I am immensely grateful.
I always think if you like what you're doing about 75% or 80% of the time, you're doing well.
If you enjoy being around your family and that's a healthy, happy place, and you have a job that you feel strongly about and enjoy almost all of the things that come along with that job, that is a complete victory and the source of a lot of gratitude.
Given the choice of anyone in the world and it could be more than one person, they can be alive or not alive, or a mixture, who would you invite to a dinner party?
If I get the choice and have a time machine involved in my choice, I'm going back in time and having a dinner party with all the Founding Fathers to have a list of questions I need to ask what their thoughts are. I would love to hear about the perspectives in real time of the people who founded particularly our system of government and built a system that has remained dedicated to the rule of law for so long and for so many. If I get to pick anybody, that's where I'm headed.
That would be a great debate because you could see them and be present for the debates that occurred in that process.
I can take a healthy debate. I'm there for the Founding Father's dinner party. That'd be great.
What is your motto, if you have one?
I don't have just one. I tend to have a lot of cheesy ones. I let on about one earlier. This is a solvable problem. I say that to my kids all the time. Work hard and play hard. We cannot be our best working selves if we do not take time to rest, have recreation, and do things that make us whole people and not robots inside. Don't count yourself out. I alluded to that one. I tell that to people all the time. You have gotta be on guard against it because even seasoned professionals will count themselves out of the next role or thing they might be considering.
I also say that you should not be surprised. Sometimes, we are surprised by things that are, for whatever situation, person, or circumstance that we're dealing with, predictable circumstances. I tend to say you should not be surprised. It’s a reminder to myself. You know all the pieces of this and in light of that, this outcome is unexpected even though it is not what you were necessarily subjectively thinking you would hear at that moment. I tend to have a lot of cheesy mottos floating around.
I like that you shouldn't be surprised because there's always a sense of optimism and the best thing happens. Sometimes, things happen and you’re like, “Oh my gosh.” You look at all the different moving parts of it and the people involved. You're like, “Why did I think something else?” People are who they are. How this all works is how people interact. It pulls you back from the emotion of it. You go, “Let's think about this. That outcome was amongst the possibilities.” Thank you so much for participating in the show and having this discussion. I enjoyed it.
Thanks so much for having me and for doing the show. This is great and valuable work. I'm thankful to you and your colleagues for doing it.
Thank you so much.