Episode 31: Anna Blackburne-Rigsby
Chief Judge of the District of Columbia Court of Appeals.
00:59:47
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Show Notes
MC Sungaila is joined by the Honorable Anna Blackburne-Rigsby, Chief Judge of the District of Columbia Court of Appeals. Chief Judge Blackburne-Rigsby shares her journey as a Black woman lawyer and the advocacy and inspiration that spurred her towards a place on the bench. She describes the influence of her mother (now a retired judge), and that of her peers and mentors, and how she is in turn helping to inspire and train the next generation of lawyers.
Relevant episode links:
Anna Blackburne-Rigsby, Conference of Chief Justices, National Association of Women Judges, Chief Justice Christine Durham – Previous episode
About Anna Blackburne-Rigsby:
Anna Blackburne-Rigsby
The Honorable Anna Blackburne-Rigsby was appointed Chief Judge of the District of Columbia Court of Appeals in March 2017. Chief Judge Blackburne-Rigsby chairs the Joint Committee on Judicial Administration for the District of Columbia court system. She is a member and the First Vice President of the Conference of Chief Justices (CCJ) Board of Directors, and chairs the CCJ Committee on Public Engagement Trust and Confidence.
Prior to being designated Chief Judge, Chief Judge Blackburne-Rigsby was nominated by President George W. Bush in August 2006 to serve as an Associate Judge of the District of Columbia Court of Appeals. Before that, she was nominated by President William Jefferson Clinton to serve as an Associate Judge of the Superior Court of the District of Columbia from 2000-2006, and she previously served as a Magistrate Judge on the Superior Court of the District of Columbia from 1995-2000.
Following law school, Chief Judge Blackburne-Rigsby was an associate at the law firm of Hogan Lovells US LLP (formerly Hogan and Hartson) in Washington, D.C., where she litigated commercial, real estate, employment discrimination, and education matters before state and federal courts and administrative agencies. Chief Judge Blackburne-Rigsby later joined the District of Columbia Office of the Corporation Counsel (now District of Columbia Office of the Attorney General), where she served as Special Counsel to the Corporation Counsel, working as part of the senior management team. She then served as Deputy Corporation Counsel in charge of the Family Services Division, where she managed the Division’s 65 attorneys and support staff, responsible for handling child abuse and neglect, child support enforcement, and domestic violence cases.
Chief Judge Blackburne-Rigsby has held offices in several judicial organizations. She is a former Chair of the Washington Bar Association’s Judicial Council. The Washington Bar Association is an affiliate of the National Bar Association. Chief Judge Blackburne-Rigsby is a Past President of the National Association of Women Judges (NAWJ). In addition to her work with the National Association of Women Judges, she also serves on the Board of Managerial Trustees for the International Association of Women Judges (IAWJ) and served as Chair from 2010-2014.
Chief Judge Blackburne-Rigsby has received awards for her legal, judicial and community service. In 2017, she was inducted into the Washington Bar Association Hall of Fame. In 2017 and 2019, she was honored as one of Washington, D.C.’s Most Powerful Women by the Washingtonian magazine. Chief Judge Blackburne-Rigsby was named “2018 Woman Lawyer of the Year” by the Women’s Bar Association of the District of Columbia. Chief Judge Blackburne-Rigsby has been named the Washington Bar Association’s 2020 Charles Hamilton Houston Medallion of Merit recipient. She was awarded the American Bar Association’s Margaret Brent Award Honoring Women in the Legal Profession in August 2020 and the National Association of Women Judges “Lady Justice Award” in October 2020.
Chief Judge Blackburne-Rigsby is married to Judge Robert R. Rigsby, Associate Judge of the Superior Court of the District of Columbia, former Corporation Counsel for the District of Columbia, Retired Military Judge, and Retired Colonel of the United States Army. They are the proud parents of one son, a recent college graduate.
Transcript
In this episode, I am pleased to welcome to the show the Chief Judge of the District of Columbia Court of Appeals, Anna Blackburne-Rigsby. Welcome, Judge.
Thank you. It is a pleasure to be here and to have this time to talk with you.
To my knowledge, you are the first guest of the show who has a mother-daughter history with regard to serving on the bench. I'm interested in getting into that story as well because certainly, your mother was a pioneer in that regard and that's a unique relationship that we haven't had on the show before. I wanted to talk about a little bit before we get into your journey to the bench and your practice prior to that is that your mother was in the law. How did you decide that you wanted to enter the law?
As early as I can remember, I remember saying I wanted to be a lawyer and I was probably saying it before I knew what lawyers did. I can remember my parents were very involved in the civil rights movement in the early ‘60s. I have two sisters and the events that were unfolding on the news at that time impacted me a lot. The discussions about equal rights, equal justice, the law and civil rights lawyers impacted me even at a young age. For as long as I can remember, I wanted to be a lawyer. You mentioned my mom. She went back to law school when I was in high school. It was something that had been a dream of hers.
She started out as a teacher and always wanted to be a lawyer. She went back to law school. I had a front-row seat to watch what it looked like to study hard. I remember thinking how much she loved it and the fact that she had had some life work and experience before going back. My dad encouraged my mom. I always talk about my mom being my shero, but my dad was my hero. He was one of the early girl dads. That's a popular term now. We were three sisters and he encouraged us all to pursue our careers and dreams.
Also, your mother. My dad went back to school to get a graduate degree when I was very little and I think about how challenging that was for the family overall, working, going to school and all of that. I think it made a big difference to me seeing how my parents worked that out and supported each other in that professional transition. That's real support. People can talk about it. It’s seeing that happen.
It’s seeing that partnership and my mom loved and still loves the law. She's retired from the bench and did some interesting things with her law degree from the beginning. The funny thing is she was on the bench in New York State where the judges are elected. She was first elected to the bench shortly before I was first appointed to the court in DC as a magistrate judge. Our judicial careers tracked. When I was nominated to our trial court by President Clinton, my mom was part of my swearing-in, which was very special. I later went on to be appointed by President Bush to our Court of Appeals here, where I now serve. It's been a very special relationship to share with her career like this.
I always think it's interesting methods of getting to the bench in both of your jurisdictions show how different it is across the country. People don't always realize that some judges are elected and some are appointed. You need to understand how it works in your jurisdiction. If you want to become a judge, are you going to be out there pounding the pavement, campaigning or going through an appointment process? It's very different. It's good to know what it is you need to go through to join the bench.
I think that's a great point and that underscores one of the things that's always been important to me, which is being engaged throughout your life. For me, it's been very important. What I call authentic and sustained engagements in the communities where I found myself, whether it was in high school, college or law school and then after law school doing things that were important to me that were serving my community. Through that process, you learn how your local government and your courts work and how to become a judge. People also get to see you engaged because it's something that you care about. I think those things have always been very helpful to me throughout my career.
It's also something that I think people just naturally look to in those who might be applying or looking to be elected to judicial offices. Do you have an interest in serving? Not an interest particularly in, “I just want to wear a robe on the bench,” or something, but that you have this desire to serve the community in different ways and being on the bench is another way to engage in that service.
You hit a big button for me because a lot of women and young people in general always ask, “What do I need to do? What are the steps I need to take to become a judge,” as if there is a formula. I don't believe in the formulas. You have to be authentic. Who are you? What do you bring? Why do you want to serve and do you want to serve? Having served on our trial court and now on our Court of Appeals, you are handling and entrusted with the most important concerns for people who will come before the court. It’s hard. It's a heavyweight.
It’s one that I take seriously and I think my colleagues take it very seriously. I try to stress that when I'm talking to people who may have an interest in being judges. To me, it's a very important role, but I think of it as one of a servant leader. You have to be a little bit humble and understand that people are not necessarily the sum of their worst actions or mistakes. How does that play out in a case before you? We see people from all walks of life, every circumstance, rich, poor, and all different races and languages. That takes a certain amount of humility and compassion and legal training, analysis, and hard work.
We can talk about the difference between the trial bench and the appellate bench, but even at the trial level, you're impacting individual lives in a significant way. I'm thinking, especially in criminal cases or family law cases, that this is very important to these people and their sphere of influence and community. That's an important weight to have and to recognize and to have humility in dealing with that. There's a larger impact from the Court of Appeal in terms of making law. If there isn't any law on a subject, things that impact a lot of people right away, but it's the same thing at the trial level in terms of individual impact on people who then have an impact on the community. It's important to keep that in mind.
On the appellate level, compassion, humility and collegiality comes into play as well but in ways that might be unexpected. As a trial judge, you're presiding over an individual trial or hearing or matter and you decide. If the parties disagree, then they appeal to the Court of Appeals, in my case, which is our court of last resort here. The judges at the appellate level decide cases collegially and collectively. It means that no one judge decides on an appeal. We are usually sitting in panels of three judges or, for our full court, a panel of nine, which we call en banc.
You have to be a little humble and understand that people are not necessarily some of their worst actions or mistakes.
The humility, collegiality and compassion come in different ways as you are trying to be open to persuasion from the viewpoints of your colleagues, yet you hold your thoughts and views about the law and its application to a particular case. That can be challenging, too, deciding by committee or group decision-making.
That's usually the toughest transition from those I know who were on the trial court to the appellate court. It's not just your domain anymore, as it were. You're working with different colleagues. You need at least two on the panel to get to a particular result and more if it's en banc. It's an adjustment and some people I don't think are quite ready for that or recognize that it's a different way of working.
It's important too because it helps the outcome and it underscores something that's very important and near and dear to me, which is the importance of diversity in our courts, among our judges, not only with gender, race and ethnicity but prior professional experience. If you have the best judges and all seven of them came from the same exact office, then that discussion will be different from a discussion with seven other judges who maybe one is a trial judge, one's a former public defender, one's a former prosecutor and one is from academia.
That enriches and expands the application of the law to the facts in a way that's important. It also gives people confidence. We have a diverse community here in the District of Columbia and we have a phenomenal bar. It’s one of the third largest bars in the country, despite our small geographic size. We have a richness here and our bench should reflect that richness and diversity.
People bring different practice experiences, you know, different perspectives to the bench and that's a positive thing, especially when you're talking about, at the appellate level, having debates and going back and forth on deciding a particular case. People will bring different perspectives to that discussion. As an appellate lawyer, I know I would not enjoy it if I were a solo practitioner doing appellate law because part of the joy to me is having those debates and discussions so that you can get to the best approach and analysis of the law. I feel that it's better if you have a debate about it and discussion.
We spend a lot of time with our colleagues and I feel like I have grown as a person, judge and lawyer because of my colleagues who work hard. We challenge each other. One of the things I'm most proud of is that we do it in a way that is collegial. That may be very surprising given sometimes the combative discourse we sometimes see in our communities, but I think we do it pretty well because we have strong disagreements. Sometimes those results in dissents, but for the most part, we're able to have the discussion and understand that we disagree, but not vilify the person that we disagree with it. That's hard to do.
It's a challenge, but definitely, collegiality is one of the highlights of the bench to have principled discussions and not have it be personalized in that way.
I think the judicial branch could probably be a helpful model for our broader democracy.
It's good to hear that it's retaining that despite what's going on outside the court courtroom walls. I want to talk to you. You said that you had served in many different capacities and had an interest in that service prior to being on the bench. What kinds of things did you do in that regard?
If you had to ask me, I never thought of being a judge when I started out on my law school journey. It wasn't something that had crossed my path. I initially thought that I wanted to be a civil rights lawyer. I knew that I wanted to do public service. I went to Howard University for law school in large part because of its historic mission and work. Many the lawyers like Thurgood Marshall and Charles Hamilton Houston came from that university. The focus is on working to unravel many of the discriminatory laws in this country. In the climate where we are having and seeing some renewed activism and protest around racial injustice, I try to remind folks that we're not just talking about a feeling. When we talk about racism or discrimination, we're talking about laws that were on the books in this country for many decades that discriminated against people based on their race and gender.
We have to remember it, in my view, because that's where the courts, judges and lawyers come into play importance. Those were some of the reasons that prompted me. I did my undergraduate work at Duke University and that was a great experience but very different from my experience at Howard University School of Law. I ended up leaving there and going to a large corporate firm which was not anywhere on my plan.
I was going to say that doesn't sound like that was the original plan.
That wasn't, but it was a great experience. It was one of the oldest and largest law firms here in the District of Columbia at the time. It helped me cut my teeth on what hard work looks like, billable hours, accountability to clients and what a good work product should be. That’s the experience that has been a part of my view of myself as a lawyer and a judge.
I was also wondering. I know you have law firm practice. I want to close it out a little bit in terms of after the law firm, you went one more place before the bench.
Sometimes mentors come in unlikely places.
I was a summer associate at a firm and got an offer. I then went to the firm after law school and I did litigation work. I had some great opportunities to do pro bono service and this was in the late ‘80s or early ‘90s. At this particular firm, Hogan & Hartson, now it’s Hogan Lovells, had a unique commitment to pro bono work. They were one of the leaders. Now, there are many firms. I'm very proud of our bar here in the District of Columbia for its commitment. I did that night and I had an opportunity to work on some lengthy cases that are probably still going on in litigation.
In the early ‘90s, the first woman mayor was elected in the District of Columbia, Mayor Sharon Pratt Kelly. I was interested and intrigued and was perhaps looking for a way to join her administration. I was hired as a Special Counsel to then the Corporation Counsel. I joked because the names of every place I've ever worked have changed. The Corporation Counsel's Office is now the DC Attorney General's Office. I was fortunate to work for a dynamic lawyer who was a civil rights lawyer, but a partner at a major firm who left the firm to become the Corporation Counsel, John Payton.
He was a wonderful, brilliant lawyer and a mentor of mine. I love my time with the local government. In the office of the Corporation Counsel, now Attorney General, the cases that they handled impacted the people living in the District of Columbia. It’s very exciting. There is always something happening. It was great if you prevented it and it didn't make the news. If you resolved it well and it made the news, that was also great.
From there, one of my former colleagues and supervisors at the Corporation Counsel's Office is the person who told me and encouraged me first to apply to the bench, but at the Corporation Counsel's Office, I did a combination of policy work. I worked on some of the larger litigation cases and then ultimately, I ended up managing what we call the Family Services Division, prosecuting child abuse and neglect cases, domestic violence cases and elder abuse. It is an area of law that I had never specifically worked in before and also managing. As attorneys, we're not always trained to manage.
That's a gap. We're taught the legal skills, but I remember the business school was right next to the law school where I went to school. I saw the business school students were taught how to work together in teams and how to lead. We were there reading our books and not doing any of that. We had to learn it on the job usually.
We learned it on the job and as I said, I've been blessed to have great mentors. One of the partners that I had the opportunity to work with at Hogan & Hartson was David Tatel, who became a judge on the DC circuit. He did civil rights work at the firm for large educational institutions. That was a great opportunity. Sometimes the mentors came from unlikely places. Life in a law firm, you work hard and you work long hours. My law clerks laugh when I tell them we did not have an email. This was in the late ‘80s or early ‘90s. I remember when the first fax machines came in and the faxes would come on this curled-up shiny paper.
It meant that you got some really important news from a client. We didn't even have federal express or overnight mail. As litigation associates, we had to get to the main post office downtown by midnight to mail something so it would get there two days or three days later. You had to really be in your office to get work done. Computers weren't networked. We had giant floppy disks to transfer data. Those were long days and nights at the firm. I remember my parents saying, “I know you're working hard, but you have to remember getting out and doing things that maintain your interest and desire to serve.” I got involved in the bar and different community civic organizations.
Those were some of the times when I felt most like a lawyer, especially as a young associate, because sometimes you're working so hard. You forget that you've learned a new language of the law and you're so focused on the things that you don't do perfectly as a new lawyer. You forget that you still know a lot to help somebody who doesn't have any legal training read a document or help someone at your church who has a question about filling out forms for their Social Security benefit. Those things were I would feel terrified of. “I'm leaving the office. It's 7:30. I'm just going to go to this bar meeting and then I'm coming right back because I know there is a deadline, but those things ended up being my lifeline and often my unexpected lead to the next opportunity.
I would completely echo and agree that bar service and other community services from the beginning is a good idea. I know some people may think “What do I have to share?” From our legal training, we think a little bit differently. We think of problems and we break them down differently. Sometimes, it can lend a lot of clarity to people in ways that we're like, “We didn't know that was valuable.” Now, we've been completely turned around and that's just how we think about problems. We don't notice it anymore, but it is nice to feel like, “I can be helpful to others even at this point. Even while I'm still trying to learn in the law firm.”
The law is not a solitary thing. I can remember as a young associate and I tell this story sometimes. When I get calls from some of my former law clerks, they are experiencing a tough challenge in their new job. When I was a young associate at the firm, I got some less than favorable feedback on one of my assignments. I was devastated. I was new at the firm. I'm trying to do everything perfectly. No one's perfect and I made a mistake. My solution was to go into my office, close the door, and think, “I'm just never coming out.” I was so dumb. “How could I have not gotten that right? I messed up. I disappointed the partner.”
I called my mom. I’ll never forget this. I was really upset and disappointed in myself. She said, “You made a mistake. What are you going to do about it?” I was like, “What do you mean what am I going to do about it? I'm just waiting. At any moment, they're going to come in and fire me.” It must've been horrible because I'm thinking no one else could have made that kind of mistake. She listened to me for a minute. She says, “What did you do right on the assignment?” I said, “Mom, didn't you hear me? I just told you I got a terrible evaluation.” “No. Think about it. What did you do right? What did you do wrong? What would you change?”
I calmed down. I answered her questions and I was getting impatient. “What's the purpose of this conversation,” she said to me. She says, “Now, I want you to get a tissue and dry your eyes and put your lipstick back on. I want you to go in there and talk to that partner and ask for another chance. Tell them what you think you did right. Tell them where you know you messed up and tell them what you're going to do differently.” I was like, “What? I can’t do that. It's over, mom.”
I did that and it was a game-changer for me. I had to work like heck on the redo and the correction, but I'm thankful for this day that my partner gave me an opportunity to try to turn things around. That was a tough lesson and one that I try to remember that I still make mistakes. I also try to remember that the young attorneys who are clerking with me, make mistakes and they are mortified. Sometimes I'm not always successful, but I try to show them the same grace that my partner showed me and I also expect to see the same grit that I had to dig in on my end and pull out in order to turn that situation around.
It's good that you had your mother to be that touchstone in discussing it and walking you through it because she showed you the process to dig out of that and what to do. She didn't just make you feel better in that particular instance, but she showed you how to handle those things in the future. It was invaluable.
We don’t want to forget the road and the path that was paved by many other women judges.
I try to remember that and this is one of the things I love most about being a judge. I've been on the bench for several years. As I like to joke and say, “I started when I was twelve. I have so many wonderful former law clerks I am so proud of. I invest a lot in my relationship with my law clerks and it's one that goes well beyond their 1 or 2-year clerkship. I've had to replay the advice that my mom gave me many times to many of them. I do see a difference in the men and the women. I find it too often and I experienced this myself as a woman in law school and as a new lawyer in my different work opportunities where I would doubt myself.
I would work really hard on something, but when it came time to report out, I would be, “I did this and that. I could have done more.” To the person hearing that, they don't have the same confidence. I may have worked as hard or even harder sometimes, then somebody comes in and says, “The answer is this. Here's why. Here's my research.” I had to practice my delivery even now of things. I encourage particularly the young women lawyers and students who I've had the chance to work with or speak with or mentor to do the same. To trust that they're ready long before they often feel ready.
As lawyers, our judgment and how we deliver and the confidence we inspire in the work that we've done are important. That doesn't mean I'm saying you can BS your way through stuff because judges can spot that a mile away in lawyers who have come before us. It means that you're never going to have an infinite amount of time to get to the answer or to research something. No matter how much time you have, you can always rewrite it better. You've got to stop at some point and move forward with your best judgment based on your best efforts and your best research. Be able to talk about it and not always be so ready to fall on your sword thinking that it's the end of the world because you made one mistake. Pick yourself up, fix the mistake and move on. Try your darndest not to make the same mistake over again.
As long as you're making new mistakes, at least you've learned one from that one. There'll be another one because that's how life is. It’s just not the same one over and over. That's a little different. It is nice the relationship between law clerks and judges and that long-term relationship you have in mentorship that you can show both personally and professionally to people. It's nice as a clerk to know the judges that you work for have your back and want your best interests in mind.
It is and sometimes that's tough. That shows up in the form of tough love and some tough conversations, but I've heard from so many of my former clerks that those were the moments where they felt like they learned the most. What I will say is a lot of times, it would be much easier for me to say nothing because the clerkship will come to an end in a relatively short period of time, but that doesn't help them go.
I teach in law school clinics as well and I always tell my students that if I didn't care as much about them, I wouldn't be as tough as I am in certain things. I would just let it go, but no. I can see your potential and I want to encourage you to reach it. They don't always see it that way. You've mentioned mentors that you've had throughout your career as well that have been helpful to you and that's important as well. You've seen the value of that and now you're paying it forward to your clients.
I still have mentors. I stand on the shoulders of so many people who invested and believed in me. I still have mentors and people I rely on for their thoughts and viewpoints. I don't have all the answers and people have done most things somewhere before. I'm very involved in the Conference of Chief Justices, which is the chief justice of all the state and high courts. Those relationships are very important.
The National Association of Women Judges is an organization in that I’ve been involved. My mom and I joined together when I first became a judge. It’s a special organization because it's a safe place where you can talk to other women judges about experiences that may be unique to us in our courts. These are professional organizations, but they were also sources of friendship and collegiality, people who understand what you do and some of the challenges and joys of what we do.
Former Chief Justice Christine Durham from the Utah Supreme Court was on the first episode of this show. She's one of the prime movers in forming the National Association of Women Judges.
We've just begun doing our in-person conferences again, but she's there. As past presidents, the very close group of us who were former presidents and for me having served as president a number of years after the founding of the organization, to still have a connection and a friendship with her and some of the other founders of the organization is special. We don't want to forget the road and the path that was paved by many other women judges like Justice Durham and others. It's nice to have kicked off our shoes, closed the door and had a talk about, “Okay. Really?” Some of these challenges and how we navigate them and that's invaluable. As professionals, as women, we need that.
It is invaluable to have those discussions and to have Chatham House Rules. We have these discussions in the room. It's here and it stays here, but we help each other.
We laugh a lot. Some of my closest friends are through that organization, the National Association of Women Judges and they're all over the country. The friendships I have with the other chief justices and when COVID hit, I still remember March 15, 2020, sitting in my office thinking, “It's going to take more than hand sanitizer to get our local courts through this once 100-year crisis. The first thing I did was pick up the phone and call some of my other fellow chief justices and say, “What are you all doing?”
It's so wonderful to have that network and call on people in your position in other jurisdictions. It’s that same brainstorming thing, “What ideas are you having? What are you implementing? What's working and not working?
I could not have ever imagined, first of all, doing one career for many years. As a lawyer, we are lawyers throughout our careers, but I felt like I was doing five years here and there. For the years that have gone by, it sometimes feels like it was the blink of an eye, yet when I reflect, I feel like I've seen more changes in the courts and in the judiciary in the last two years than I have in all the years that I've been on the bench and that was because we had to. We could not close the courts. Even though our court buildings closed during different points of the COVID pandemic, the courts couldn't close.
We don’t want to lose all of the important traditions that make our courts a key part of our democratic society, but we also need to be flexible and innovative and more focused on meeting the needs of the people that come before the courts.
We had to pivot and get up to speed with virtual platforms and technology. That was a challenge and one that we met fairly well. We can't go back. We don't want to lose all of the important traditions that make our courts a key part of our democratic society, but we also need to be flexible, innovative and more focused on meeting the needs of the people who come before the courts.
Now, you have more tools in the toolbox as a result of it that you've implemented and you're right. The courts must remain open to doing their job even if it isn't physically open and find ways to do that. Along the way, you've covered some good access things too.
If you had told me that our court would be doing oral arguments on Zoom and live streaming them on YouTube, I have a son and if he had told me I would be a YouTube phenomenon, but what I hear in our outreach and engagement with our stakeholders is people appreciate that. Lawyers watch it. People in the community can tune in. It's a training opportunity for folks who've never done an oral argument. It increases access and flexibility for people to not have to travel and sit and wait.
There are a lot of other positives to that. Sometimes it takes a shock to the system to make some changes like that, but it's good to try to see the silver lining of all the challenges that have gone on over the last few years. That's hopefully at least a few of them. What kinds of advice would you have for advocates then before your court, in terms of what can they do to make your job easier, whether it's in briefs or oral arguments? What helps you in your decision-making process?
I can't stress enough the importance of good written advocacy and good legal writing. It's the nuts and bolts of what we do. A good briefing is critical to the appellate process and the trial process too. I’m wearing my appellate hat now. It's critical because we prepare. We're considered what's called a hot bench that when you come before our court for oral argument, we have some extremely hardworking and dedicated judges. We've read the briefs, the pleadings, the record, and many key cases. If your briefing made that helpful reading, that's a good thing.
It goes a long way to helping us reach the best decision. Good written and oral advocacy is different from trial advocacy. The best oral arguments from our perspective are the best conversations with the lawyers who know the facts of their case well, who are very familiar with the law and the applications and who are responsive to the questions of the judges. My personal pet peeves. If I ask a lawyer a question and the lawyer says, “I'll get to that,” you lost me.
It’s because naturally, you're like, “I have this question. I'm thinking about this. You can talk about something else, but I'm still wondering was the answer to my question,” right?
Yes, and the oral argument is to help persuade us. It's for us. If I ask a question, I want the answer to that question. That's a good thing. Also, I think it's a good thing. Some of the best appellate advocates know the weaknesses of their cases. They'll admit it, but then they turn it around and say, “That may be one of the problems with this application or this case, but we have these.” That's a better approach, in my view, than to say, “No, it's not a weakness.” “Yeah, it is.”
It could be a weakness, but it's not fatal to your position.
Recognize it, show me how to get around it and you may have persuaded me further. Also, preparation. Preparation is important and it shows through in the lawyers in the courtroom. I think those are important things to me.
My students in my Ninth Circuit clinic just had their oral argument in their case. We did lots of preparation just as we would for other cases. There are a couple of chords, a bunch of questions, and the answers back and forth from knowledgeable people but people who don't know about the case. We are trying to anticipate whatever kinds of questions could happen and have experience at the lectern on the case before they get there. All of that does show up for the students at the actual argument, so they're more helpful to the judges and justices when they're asking questions.
Also, we’re asking questions. I know when I ask questions, I'm not trying to ask a “gotcha” question. A lot of times, I'm trying to ask a question to help you and the same is true for my other colleagues. To help you highlight something that I think is important in your case that might persuade one of my colleagues. If you're listening, don't fight the question.
That's such a challenge. Many people automatically think a question is either “gotcha” or a negative pressing question, “It's bad.” You have to listen and wait and discern like, “I think that's a positive one, it's a helpful one or it's an opening for me to mention things that are helpful to the case.” Also, that question of eliciting things back and forth between the different members of the panels as well. That question may be for another member of the panel. I've noticed that too. Do you confer about the case prior to arguments in your court, so you have a sense of where people are or do you wait?
We do a brief a few minutes before we're about to go in. Each of us highlights our thoughts on the things that we are about to hear. We do a more lengthy and comprehensive post-argument conference.
Don’t fight the question.
You do have a little sense of where people's thoughts are before. I also think about this from my perspective as an advocate. An oral argument is a way for you to explain things a little bit differently. Sometimes different ways of stating the argument resonate with different people or even sometimes, you think you know everything about your case. You wrote your briefs and did all the stuff, but even when we're preparing for an argument, we see new threads or new trends or different ways of analyzing the case law or even putting together parts of the record. I feel like that's what our argument is for so you can say, “Another way of looking at it is this.”
That's helpful and we enjoy the oral argument. Within my own chambers, one of the things that I enjoy and I think my law clerks mostly enjoy is we will do a moot before every oral argument, where my law clerks will assist by preparing bench memos about the cases. We sit around the conference table, all of us together and we talk about each case. Whichever law clerk has prepared the bench memo in a particular manner will present the case. We then ask questions and I find that very helpful as a part of my preparation, but I also do it for them because they get comfortable talking about the law.
Packaging things in a very clear way, a summary way in presenting it because that's an important skill when you're going into practice. Nobody wants to hear the long shaggy-dog story about something like, “Just give me the summary. What do you think the answer is,” and then explain why. That's a skill. You're teaching them that, so there'll be in a much better position in practice. I felt that way during my clerkships. Law school taught me how to think a certain way, where to look for things and stuff like that, but the judges who took time in training you, it was like, “That's how I learned how to be a lawyer, how to practice and how to do that was from the judges who took so much time to train you in good writing, thinking, presentations and all of that.” It's so invaluable.
That's the value of a clerkship. I'm a big believer in judicial internships. Many of my judicial interns have become my law clerks or have gone on to clerk for other judges. That's an important experience as well.
That's a good opportunity to mention. I don't know that people always think about that, but even if you don't know whether you want to do a clerkship or you don't. You're not sure, “I don't know about that,” but you can find out by doing the internship and it’s great, especially in chambers like yours, where you treat it seriously. I know some places where they have ten externs and they hardly see the judge or whatever it is. That's a different setup, but where you're treated like another law clerk and you get that same kind of training, it's amazing.
My philosophy is that we have too much work to make work. The interns are not going to do everything and as much as the law clerks are doing, but they're doing the same type of work. I would rather an intern do one assignment for their entire friendship and break it down into small steps and explain why we take the time to do each step so that we have something that they learned from and can hopefully be a good work product for them rather than have them bounce around and do many small projects.
I felt like that’s what the law clerks do, only much less of it because that's just drinking from a fire hose for someone who's still in law school. That's too hard. You want to train them and not overwhelm them. I'm so glad you do that with the interns as well. That's a really important thing to mention because I don't know that many people think about doing that.
It does take a lot of time and also, and it takes time with the law clerks too. What I usually say is we can take on as many interns as we can more comfortably because when they leave, it's still going to be our case and we don't want to have to go back to everything.
We still have ownership of that, so we're going to need to work with that. That doesn't go away when the intern leaves. I'm glad you mentioned the internship and clerking because I hope that people will consider that as well from reading this.
If I could change one thing, I would change clerking. Now that I'm hiring law clerks, I like clerks who've done a year or two of a job and then come back and clerk, especially the appellate clerks. You can clerk at different points and I think it's more common now that people come back after 1 year or 2 at a law firm or doing something else and then clerk and then go back to what they were doing because it helps them grow professionally.
It's much more common now, which is good. There's more flexibility. It's not like, “I didn't apply right out of law school and now I'll never have the opportunity.” That's not true anymore, which is good. Also, you have more experienced people working with you, which is also good. There's some other training prior to that. I did a clerkship right out of law school and then I did another one after a year of practice.
I thought the combination of having both a clerkship and practice prior to that, I learned so much more, I felt in that second clerkship because there were a lot of things I already had under my belt that I could then pay attention to the additional things to learn. My judge was one of the pioneers of saying, “No, I want people who have experienced prior clerkships. People who have worked in the world.” He's starting the trend.
What types of courts did you clerk on?
I clerked on the federal district court for Judge Alicemarie Stotler out here in California, who ultimately became the chief judge of that district court as well. I interned for Dorothy Nelson on the Ninth Circuit. I ended up clerking for Judge Fernandez on the Ninth Circuit. That was my major clerkship. It was great training and Judge Nelson of the same thing with her interns.
Do as much as you can, for as many as you can, for as long as you can.
We did what the law clerks did, just less. We got to sit in the meetings with the other law clerks talking through the cases and things like that. It was a magical experience and having that experience made me want to clerk after that. I was like, “This is so interesting.” They were wonderful judges and mentors. I’m very grateful to have all of them.
I have the honor to officiate at the wedding ceremonies of many of my former clerks and their children's arrivals and to be in touch with virtually all of my former law clerks about their lives and career decisions is such a special gift to me as well.
It's really neat continuity. The community creates amongst the clerks is also lovely too. You get to meet the clerks from different areas and have those connections as well. I'm glad you've mentioned that both clerking and being judicial interns are great opportunities and wonderful experiences. I was wondering if you have a few minutes for a little quick lightning round wrap-up of questions. Which talent would you most like to have but don't?
It’s singing. I can't sing a lick and I’d love to.
There are singers and there are listeners. You need an audience, so it's good to be the audience. What trait do you most deplore in others and then what trait do you most deplore in yourself?
The word deplore is such a strong word.
Let’s just say not your favorite.
This is what you get when you talk to an appellate judge. You want to like them.
I know. I was like, “We're going to parse the words.”
Dishonesty is a trait that I don't like in anyone. Myself, I would like to have better time management. I sometimes underestimate how much I can take on and I wonder why I'm perpetually exhausted. What trait would that be? It’s the desire to say yes to everything because those are things that I care deeply about. I tried increasingly to learn to say no. I'm passionate about whatever that is, but I can't do it now. Perhaps check back with me another time.
It is hard to say no, especially for things that you are passionate about. A related aspect of it that I at least have, is that I always underestimate how long something's going to take. I'm like, “Sure. I can do all of that.” I’m like, “That can be done,” and I move on to the next. Especially when you want to do all of the things and contribute in different ways, it's very easy to fall into that. “Of course, I can do that also and fit that in.” I definitely have that issue. Who is your hero in real life?
It is my husband. He's a real-life hero, a decorated Retired Army Colonel with distinguished military service, but he's also a judge on our trial court.
I was going to say, “Also a judge.”
He is the love of my life and my best friend. He is a wonderful husband and dad. He has always supported and committed to service as well. We share that value and commitment in our lives, work, and marriage. I love him and I like him a lot too, as I say.
That's a good combination, especially in a spouse. That's good.
My mom is my shero and my dad.
Your mom sounds remarkable, so I can understand that.
She’s still fiery and feisty.
Given the choice of anyone in the world, who would you invite for as dinner guests?
I had one answer. I'll have to tell you that one off the tape, but the other thought is I would love to sit down with myself at the point in time when I was about to graduate from college. I had so many doubts about who I wanted to be and what I could do, all the things I dreamed of wanting to do and make an impact and a difference. Another flip side of that is I'd love to have a conversation with my son’s future self and be able to tell him, “You see? I told you.” You’ve got all of these things within you to be able to achieve your dreams.
I think about certain points, it would be nice to have had that same level of confidence that you get from having gone through it, but I don't think you can get there unless you go through all of the challenges.
They strengthen you and you just have to keep going forward.
Those of us who are good at worrying tend to do that. Last question, what is your motto, if you have one?
I have two things. One thing I say a lot, I call them my three Fs, Faith, Family and Fortitude. I think of myself as having strong personal faith and that's why I serve and choose to serve in different ways. Family, my immediate and extended biological family, is important, but also I think of family broader. Extended family, community and a village. Also, fortitude that life has challenges and many joys, mountains and valleys and that you can do it.
I also say to myself on some days when I'm very tired to do as much as you can for as many as you can for as long as you can. When you look at what's happening around the world and so many places, how blessed I am to have work that I love, that is meaningful, that I think helps. We need to be in such a place or a time as we are right now. I try to be intentional about things of. Leading a court as a Chief Judge is a different skillset from being a Chief because you have colleagues and you're trying to lead them. You are trying to be forward-thinking and still have my cases. Also, to lead by example and inspire. Those are things that are important to me.
Thank you so much for taking the time to join the show and share your wisdom and insights with lawyers, law students, and others who read the show. I enjoyed our discussion and I so appreciate it.
I enjoyed talking with you and one thing I’ll add because it just came to mind here. As an African-American woman in this space, I do feel like I have the ability and the opportunity to try to bring people together and bridge differences. Also, to speak and give voice to the experience of a Black woman lawyer and judge. It’s all these different things. It took me a while to be able to own all of those parts of myself in a way that I try to make clear who I am.
Learning to be your authentic self is a journey and recognize how all those experiences shape you. My mom having grown up in the Jim Crow era of legalized segregation in the South and my dad was the child of immigrants from the Caribbean. How all those things shaped who I am and I'm proud of all those things. We are strengthened as a nation and society by those strengths and differences. People should feel comfortable owning all those pieces of themselves and bringing all that they are to the work that they do, especially when we're talking about equal justice under the law.
You are a very gracious lady and I appreciate you doing this.
It's my pleasure, MC and it’s great chatting with you. I hope I get to meet you in person one day.
That would be lovely.