Episode 4: Elizabeth D. Walker
Justice of The West Virginia Supreme Court
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Show Notes
Joining M.C. Sungaila is Elizabeth D. Walker, Justice of the West Virginia Supreme Court and Co-Host of Lady Justice: Women of the Court. She shares the ups and downs in her life as a judge, her path to the bench by running for elected office, changes in her state's court system, weathering an impeachment trial to come out on top as Chief Justice, and provides practical tips on becoming an effective lawyer who can leave a lasting impact.
Relevant episode links:
Lady Justice: Women of the Court - Apple Podcasts, The Lincoln Highway, A Gentleman in Moscow
About Justice Elizabeth D. Walker:
Justice Elizabeth D. Walker
Justice Beth Walker has served on the Supreme Court of Appeals of West Virginia since 2017 and was the first justice elected in a non-partisan race. She currently is the longest-serving member of the Court and was Chief Justice during calendar year 2019. She will be Chief Justice again in 2023.
Justice Walker chairs the West Virginia Task Force on Lawyer Well-Being. She also is active on social media and passionate about public engagement and civics education. Along with Justice Rhonda Wood of Arkansas and Michigan Chief Justice Bridget McCormack, she is a founding co-host of Lady Justice: Women of the Court, a podcast featuring three women Supreme Court justices discussing the judicial branch of government and their experiences on their state’s highest appellate court.
Transcript
I'm very pleased to welcome as a guest Chief Justice Walker from the West Virginia Supreme Court of Appeals and who has her own podcast. Welcome, Justice Walker.
Thank you. It is great to be here and I am one of three co-hosts of a podcast called Lady Justice: Women of the Court. We are in our second season of podcasting about being a State Supreme Court Justice as a woman, State Supreme Courts, and how they work, and I am joined in that podcast by Justice Rhonda Wood of Arkansas and Chief Justice Bridget McCormack of Michigan.
I do recommend that folks check that out as well. Let's start with regard to your career in the law, in terms of how did you decide to go into law and to study law, and what drew you to it?
The story of how I got started goes back to seventh-grade social studies. That is when the conversation went along the lines of, "You like to argue. You should be a lawyer." I said, "That's a good idea. That's what I'll do." I was set to be a lawyer from seventh grade, more or less. There were a lot of twists and turns as I got through high school was first and necessary and then on to Hillsdale College, and then law school at Ohio State.
When I was at Hillsdale, I was a double major in English and Political Science and all of us who major in Liberal Arts give some thought to graduate work and teaching. When you get into that, it can be attractive, but I decided to stick with my original seventh-grade plan and go on to law school and figure out later whether that was the right choice, and it was.
Had you known any lawyers or any lawyers in your family, or other than that suggestion that you were good at arguing? What was there anyone you had known who had been a lawyer?
I am a first-generation lawyer, which means there was no one in your immediate family that forged the path or set the example. I do have an uncle who was a lawyer and who's retired now, but growing up, I didn't have any examples of that. It's a very different way to get there. We did a podcast not long ago that was focused on undergraduate students and women and encouraging them to consider careers in the law. All three of us on the show are first-generation lawyers.
We said, "This is absolutely doable. You don't have to have connections. You don't have to know people in order to get into law school, to do well in law school, to get jobs after law school." There's networking involved in any career, but there's nothing special about knowing lawyers or having parents who are lawyers that might make the path easier to navigate, but the path is absolutely there for everyone.
I asked that in terms of, you can have a better sense of what it might mean to at least do the work of a lawyer, if you have lawyers in your family so that you can better decide, that sounds like that's something I want to do. There are so many different kinds of law to practice that there could be one lawyer in your family, but that's no interest at all for you to do that law. That's one of the nice things about being a lawyer is that there are so many different ways to be a lawyer and then to be a judge that it can be adopted to your particular strengths.
When you have someone who sets an example or even early in your career, whether as an undergraduate or later, if you had the opportunity to work in a context where you get to see lawyers or judges do what they do, that's important and can be inspiring. As far as I'm concerned, it's not necessary, but all of us get there differently.
What law did you practice prior to the bench?
I came out of law school and joined a firm that I wouldn't call big law, it would be big law in West Virginia, but it's more medium law compared to other places. A firm that throughout my 22 years, there were around 100 lawyers, more or less. It was a little smaller when I joined it and got a little bigger. When I started, I didn't know what I wanted to do. I remember being assigned to three different practice groups and doing three different things. One being general commercial work, the second being bankruptcy, and the third being labored employment.
It turned out that I loved labor and employment law, so that's what I focused my career from early on. I represented employers primarily, although occasionally, employees and executives. I did all kinds of labor employment work from defending, discrimination cases, wrongful discharge cases, all of that to traditional labor law, negotiating labor agreements, handling union organization efforts, all of that for clients throughout my 22 years.
I was then recruited to join the WVU, West Virginia University Health System as a lawyer. For the five years before I was elected, I was the labor and employment lawyer for that system of hospitals. I took the same work that I had done for a law firm into an in-house context. I focused on labor and employment law the whole time.
You're the first judicial officer that I've spoken to on the show who has in-house experience as opposed to private practice or even government practice. How is that different and maybe how do the skills from the in-house work together with the private practice skills translate to or impact your role on the bench or the skills that you bring to the bench?
When you're representing organizations, whether it be corporations, nonprofits, whatever it may be, you're always on the edges of their corporate culture or their corporate initiatives, or strategic planning. You might be aware of it and you might be involved in it depending on the type of work you do. When you're in-house, you are immersed in what the organization is doing or trying to do.
You're attending lots of times as counsel. You would be attending the management meetings or the director meetings, and you would get a lot closer view of how an organization is run. It's a tremendous learning opportunity. In addition to being the lawyer on a couple of levels. One, I happened to work for an amazing general counsel, Bob O'Neill, who is one of my mentors. Whether it's in a law firm or otherwise, you have a great opportunity.
I got to watch other leaders, nonlawyer leaders, and the skills that they had displayed and developed while I was there. Even though it was only five years, I learned a lot. That's how all kinds of in-house counsel job. Sometimes you're just a lawyer and sometimes, you have administrative responsibilities. I had a mix of that.
I worked very closely with human resources on a lot of different initiatives, some legal and some purely corporate or strategic. You learn a lot of different skills. When it comes to being a Supreme Court Justice, a big part of that job is administering the judiciary. I'm 1 of 5 board of directors of a very large organization and I learned a lot in my in-house opportunity that I'm still using.
That's where I was thinking it would most translate as well, because especially at the State Supreme Court level, you have broader responsibilities for the court system and The Bar and not as managing a large organization in that regard, besides deciding cases that come before you. That's something people don't think about that part of the job of being a judge. It depends on if you are at the highest court of your state. That is a major aspect, especially as chief justice, about what you're doing. How did you decide to move from the in-house position to the bench?
It started back when I was still with the law firm in private practice. I ran for the State Supreme Court first in 2008. That was eight years before I ran again and was elected. In that race, the circumstances were very different. We were still in West Virginia, electing our judges in partisan races. In a primary, I was the only Republican running. There were two seats open on the court that's also changed.
It was a free for all election. The highest two vote-getters of the three of us would be elected. Now, we run for specific seats, but at that time, I ran against two opponents in the general and I missed being elected to one of those seats by six-tenths of 1% as a first-time statewide candidate. Side note, starting with statewide races, pretty ambitious. I wouldn't necessarily recommend it to everyone, but I was recruited by folks who were interested and thought that I would be a good justice on the court. I ran and came very close and was not successful.
I went back to my private practice and then was recruited to go to WVU Medicine. Our legislature changed the way that judges are elected and now all of our judges from our trial judges, family court judges, magistrates, and Supreme Court justices are all elected now in nonpartisan races. That's important and it was an excellent improvement.
In the first nonpartisan election, I decided to run for the court. By then, as I mentioned, the election process was also changed, so that you run for one seat at a time. There was one seat available in 2016 when I ran. I ran against an incumbent and three other candidates. It was me versus four others. I was the only woman in the race and I won by a very large margin in May of 2016. I was elected then and took office in January of 2017.
There are a few things in there that are common or that are a theme from other judges as well. One is being persistent, the first time was very close in your case, but you didn't end up in the position, but you went back and took the opportunity again to run for that. The second point is that how you can join the bench is different, elected versus appointed, depending on which state you're in.
Also, the process for that, whether it's partisan or nonpartisan or how that all works, that's an important consideration. What process do you go through and are you comfortable going through that process to join the bench? Some people might not be comfortable with going through the election process and would prefer hope that their state has an appointments process. Some people would be the other way around. To join the bench was to go through the electoral process, but was that hard?
It was difficult, particularly since I decided to dive into a statewide race. West Virginia is not as large as some other states but still a large geography to cover and a lot to learn about running a judicial race. They're different than other kinds of elections. There are a lot of ethical restrictions on what you can say and not say. You want to carry yourself appropriately to convince voters that you would be a good fit for the judiciary.
Even one conversation can be a mentorship experience. Sometimes, you don't need formal mentoring programs or go through an entire matching process.
It was hard, but I believe in selecting justices and particularly state judges. It's important to be accountable to voters. I can understand why folks prefer appointments. They're also hard in a different way. You have to navigate a lot of politics that aren't always as apparent as in an election. It's a lot more out there, whereas appointments, you might not know who to know, who we have to know, or how that process goes.
I was able to find the folks to give me the advice I needed to do what I needed to do. I ran the best race I could and learned a lot the first time. At the time, I didn't appreciate losing, but it was certainly as all of the most difficult experiences in your life are. You learn a whole lot from them that you don't necessarily realize at the time.
Anyone who's competitive and likes to win doesn't enjoy that. That doesn't surprise me. You're so close the first time too, at least there's that encouragement like, "It was close. If you did this again, you'd have a good shot." How has it been serving on the court? What do you most enjoy about that?
I most enjoy the variety of the things that we do. We not only decide cases, which is an extremely important function and the first thing that people think of when you think of being a judge, but we're also the administrators or the head of our judicial system in West Virginia. That's 1,500 folks, all across our state from the trial courts.
We are a unified court system. Every state is different. Some Supreme Courts have different amounts of authority over other courts and some have none at all. We oversee all of that. Even though they are separately elected, we employ all the folks who work for the judges at the various levels. I've always enjoyed leading, identifying priorities, strategic planning, which I'm still working on. Convincing the court to do strategic planning is something that often happens in state government, at least in West Virginia. I'm an advocate for that, but I enjoy the variety of it.
It has not always been easy when I joined the court. Initially, you come in and you are very focused on being the best judge you can be. You're very focused on your personal. It's a learning curve. I was a labor and employment lawyer and would be looking at criminal cases, child abuse and neglect cases, and other administrative matters that I had a little experience with. You're very focused on getting up to speed, but what I didn't anticipate and what was the case was a broken culture at the court when I joined it. It was a very difficult situation.
The justices barely spoke. Some of them didn't get along or were pretty much at war with each other, most of the time in the beginning. It wasn't until later, when there was an unfortunate political upheaval, that the court changed and now it is a much more pleasant place to be and a much better functioning court. I value now the way I get along with my colleagues and the way we get things done because, in the beginning, it was not at all what I had hoped it would be.
That would be shocking because you would assume we're all in this together, rowing the boat forward to decide cases and administer this whole legal system, but it's unfortunate that it wasn't that way. You've seen it both ways, the challenging way and also the collegial way now, so you can appreciate that more.
As an appellate judge, whatever size Supreme court you might be sitting on or as part of a panel in the federal system, you don't appreciate the group dynamics and your own role as an advocate. When you think, "I'm a judge now, so I'm deciding things," but in fact, as people joke in a court of 5, you need to count to 3.
As passionately as I might feel about a particular case or issue, if I don't have two justices along with me, I'm not going to prevail in what I believe to be the right course of action, whether it be an administrative outcome or the decision in a case. There's a whole skillset around and part of that group dynamic that is important and fascinating, not many folks think about that until you're in the situation.
Unlike being on the trial bench where you are the decision-maker and there's no one else you have to confer with about that, that's not at all true on an appellate bench and there needs to be a consensus about a decision. There is the collegiality, but also a persuasion, as you noted with your colleagues about it, what the right outcome is in the case. I'm assuming your court is a discretionary review court or does everything come to you?
Everything comes to us and for the foreseeable future, it will. West Virginia is one of a few states that did not have an intermediate court of appeals. All of the appeals from trial courts, family courts, and other administrative bodies come to us. Since 2010, we have taken every single case and a brief explanation is we handle cases on 1 of 2 tracks. One track is we put them toward oral argument and we bring them in and we hear arguments that is a minority of cases.
With a larger number of cases, we decide on the briefs. We issue what are called memorandum decisions, which are of less precedential value than assigned opinion but still precedential value. They are published on Westlaw. They can be cited as precedent. We issue at least a memorandum decision in every single case that is appealed to our court, including original jurisdiction, writ petitions, and all of that.
We are a busy court. The new development is as permitted by our constitution or legislature and I'm almost at 22 already passed legislation creating an intermediate court of appeals that intermediate court will go up and running. In fact, in the process of interviews and selection of those judges, there'll be a three-judge panel is underway. Those will be appointed initially by our governor and then run to retain the seats or be elected, and eventually, they will have ten-year terms.
Ours are twelve years on the Supreme Court, but our intermediate court jurisdiction is primarily civil. The criminal cases, the child abuse and neglect cases will continue to come straight to us. The civil cases and workers' comp, those two big areas we'll go to the intermediate courts. We are re-imagining our judicial system as we speak, which is another great leadership opportunity or learning experience because we are implementing the legislature and set some boundaries in what they wanted the intermediate court to do, but gave the Supreme Court a lot of latitude in terms of rules, procedures, and everything else. We are in the middle of all of that, which is exciting and a lot of work at the same time.
That was something that is not common that there's no intermediate appellate court. Nevada had that same situation and was integrating some intermediate courts of appeal in their system as well. That's an exciting time when the court itself and the judicial system is morphing. That's a neat time to be on the court and to be part of that.
You can be sure that some of the things we've learned, through the pandemic, for example, are things we're taking into consideration as we establish this intermediate court of appeals. We're hoping that we launch it using electronic filing and skip paper entirely. Our Supreme Court, we are still paper, but we may be able to put our filing electronic as part of that process. We've had an RSP out. We're in the middle of all that.
I didn't mention this another type of case that will go to the intermediate court is domestic because so many of those cases involve pro se litigants, self-represented litigants. We are exploring remote locations for those litigants to come and be able to appear before the intermediate court, without having to travel all the way to the State Capital in Charleston.
It is a three-judge panel that will sit-in in the Capital, but we are finding ways to keep those self-represented litigants from having to travel as much as some of the locations in West Virginia are a five-hour drive from the Capital. I'm not sure had we not gone through the pandemic if we would even think about remote access as part of the launch of the court. It's going to be a better court as a result. We are taking a lot of lessons learned and hopefully making it one that serves the folks whose cases are going there even better.
I was going to ask about that whether there were different locations for the intermediate court appeal or one and you answered it. That makes a lot of sense to have the technology built-in are hardwired in from the beginning given what we know, what seems to be ongoing, with regard to access. In general, it's a good idea for people, especially representing themselves who are very far away and to have to travel for that. They might not pursue their case if they had to do that. In the process, you can tinker with your own court and the procedures that you have.
The Supreme Court, we went back to live arguments. We're one of the few States Supreme Courts that have been live since September of 2020. Our only remote hearings for the Supreme Court, we're in April and May of 2020. We went back to live with plexiglass and all of the masks and microphone covers, all of it. We are working our way out of that, but we still have learned a tremendous amount in the process of how best to have a court.
One thing we did, for example, coming out, the Supreme Court of Appeals, our docket had five cases in a day, starting at 10:00 AM and folks would be expected to be ready when their case came up. We didn't have timeframes after 10:00 AM. It was, "Be ready." Folks would have to get there and wait. As part of keeping the number of folks in the courtroom down, we set times. We now start at 10:00 AM. We live stream and so we don't start the second case until it's scheduled so that if people want to watch that case, it won't begin early.
Things can run a little bit late if one argument goes long. We try to stick very much to the schedule and that innovation coming out of the pandemic has been good for lawyers and litigants because they know when their case is going to be heard and argued. Clients can tune in easily. We live stream on YouTube. We now make our arguments available after the fact, which we didn't before I arrived. That was something I did in my first year as chief in 2019. All kinds of great access and transparency initiatives have been part of my service on the court so far.
When you can display your skills and positively express your beliefs, you can leave a lasting impact on people. Establish your credibility to reach the next level.
Having the archived arguments is good both for lawyers who appear in front of you and one to see or if there was a similar case. I want to listen to what happened in that argument and what questions were there, also for the public to be able to see the work of the court even if they're not in the courtroom.
I'm careful. I'm not allowed to use the word archive because, as our clerk reminds us, we are not a court of record. We make our per argument recordings available. We had to overcome some of those little hurdles administratively to make sure that we were clear about what the impact of these recordings were. That was one of the reasons prior courts didn't want to make the recordings available after the fact because they were worried they would be used or edited, or something, but we put them out there because we think it's important.
You mentioned some mentors that you had and were there mentors that helped you both in your career in general and also in terms of your joining the bench? What did that look like in terms of their support?
Yes. Mentors are part of how you excel as a lawyer or a judge, but particularly as a lawyer. Oddly enough, my most significant mentors were not women, even though I'm a huge advocate for mentoring women. Those of us who are in leadership positions have a responsibility to be mentors. Mine happened not to be a lawyer who I mentioned.
First at the law firm, Rick Brown was my mentor in labor and employment law. One of the main ways that he affected my career is what he let me do. He was one of those senior lawyers who let you do more than you think you can handle. He sends you to a deposition when you don't quite know that you're ready for it or sends you to a hearing when he knows you're ready, but you don't yet. That is an art and a skill and something that I've benefited greatly from.
There were, of course, women in the law firm who I admired and talked to about concerns and what I should do, and all of that. I'm a big fan of the concept of you don't have one mentor in your life and your career. You can have a personal mentor. Sometimes we call them friends and they nonetheless set an example for you. I had a lot of mentors.
That point about those mentors sometimes provide you with the opportunities to grow your skills and to put you in positions to do things that you may not think you're ready for, but to have some development and growth plan that they want to make sure you're on, so you can become the best that you can be. Sometimes newer lawyers will be concerned about that or, "I was thrust into this."
I was like, "No, there was a purpose. There was a reason for that because you didn't know that you were ready for that, but somebody else gave you that opportunity." I feel that way too about opportunities in law school. There are a lot of clinics now that people can participate in and it can help your career if you have an appellate argument. Let's say, before you even graduate through the clinic, then you have that experience that a lawyer in the firm can offer you to do an argument for a client's rape case, and you've given them the opportunity to say, "This is not their first argument. They have something before."
It makes it easier for someone to provide additional opportunities to you and to grow in your skills, so, always thinking about ways you can do that, and also to recognize it's like the equivalent of recognizing a friendly question from the bench, recognizing a friendly effort by a mentor to have you get to experience instead of shying away from it or being concerned that you were asked to do something, "I'm scared about that or I don't think I'm ready."
If they don't feel like they have a mentor, seek it out. Sometimes someone doesn't appear. Sometimes you need to find that person or talk to somebody. One conversation can be a mentorship experience. A lot of law firms try to set up these formal mentoring programs and go through a whole matching process and sometimes that can work, but sometimes letting things happen organically is even better. Maybe both work on some levels.
Also, that point that there are some people who have mentors and sponsors who are career-long or life-long and help you at key junctures along the way. There are others who come in at the right time. They seem to be there at the right time with the right information to help you to move forward and sometimes, for a short period of time mentoring you in a particular way to be aware of those opportunities as well.
It's important to do the best you can in your career and do the most you can to contribute to the community and to the law. That gets to something else in terms of when you're considering or if you're considering public service through the bench. A lot of judges have served their community in other ways prior to the bench, whether it's Bar Association boards or community boards, or philanthropy, or things like that. At what role do you think that plays in becoming a judge?
Specifically on that point, whether you're elected or appointed to having a network is important to becoming a judge because you need folks who know you and can speak for you because regardless of the method of selection, you don't speak for yourself. Other people speak for you as well. You get asked a question, "What would you advise a woman who wants to be on the bench? What advice would you give them?"
I always start with, "First, be a great lawyer." Focus on doing what you're doing well, whether you're in a law firm, whether you're in-house, or in those community activities. Don't do the community activities because you think you're checking a box in order to meet people. Be good at it. Be an excellent nonprofit board member, if that's the service you choose or an excellent bar governing person, or committee chair, or whatever it is that you do. When you can display the skills that you have positively, that's what makes an impact on people.
Not that you tell them that you're interested or good at something. I'm a firm believer in letting your work speak for itself. I'm not saying you don't advocate for yourself. That's two different things. Without the credibility that you have with being a good lawyer, a committed community volunteer, excellent board member, whatever you choose for service, it's hard to go to the next level. You have to rebuild a strong foundation.
I also think that it shows an interest in serving the larger community in some way so that it doesn't seem like it's of the blue when you're like, "Now, I like to be a judge." Is that for you or is it for some other reason that you think you can contribute? Whatever way you decide to serve, showing an interest in serving is helpful in that regard. It's not all about me. It's something that I can do well and I can contribute to the community. That's why I wanted to do it.
Any judge will tell you being a judge is difficult. It's not just about, "This looks like fun." Not that anyone would think that, but it is a difficult thing that you're navigating yourself toward if you're interested in being a judge. Doing all those things along the way will give you better life experience and better wisdom to handle, not just the great parts of the job but also the adversity that is almost inevitable.
What do you think are the most challenging things about serving as a judge?
I mentioned one and that is learning that new dynamic, particularly on an appellate court, when you're interacting, in my case, for other people, and there's an art and skill to that. That would be one thing. Another unexpected event that took place in my circumstance, which I doubt very many people have the opportunity to go through and learn from, is going back to the dysfunctional culture that I was mentioning. There was a lot of conflict in the court. Some of that conflict was also political.
To make a long story short, the West Virginia Legislature impeached the entire Supreme Court in the summer of 2018. I am the only person on the court remaining from that court. One pled guilty to a federal felony and one was convicted in a trial. One other resigned and one other member of the court served for another couple of years and she retired here at the end of 2021.
I overcame my own impeachment. I am the only one of the justices who went to trial and I was acquitted overwhelmingly in the West Virginia Senate because I hadn't done anything wrong. I was swept into a political typhoon, for lack of better words. It was an extremely difficult and unexpected event in my second year on the court. I had joined the court in 2017 and I was impeached in 2018.
As I said, you learn the most from the things that are the worst often in your life. I thought that was the end of the world because even though I was acquitted, I stood up for myself. I hadn't done anything wrong. The idea of being impeached is probably the most frightening thing that a judge or any public officials would ever face.
Overcoming that impeachment has been something that I've done and my greatest accomplishment so far as I'm concerned because I had to get past all of that. I was impeached at the end of the summer of 2018. I was acquitted on October 2, 2018 and I was Chief Justice on January 1. I went from that whole circumstance to serving as chief.
Chief Justice: Mentors provide you with the opportunities to grow your skills and put you in positions to do things that you may not think you're ready for.
Beginning to repair the schism that had happened between the legislature and the court, which led to the impeachment in the first place. We alternate chiefs. I was a chief in 2019. I'll be the chief again in 2023, but we worked out accountability, transparency, and policies. There was a constitutional amendment passed the legislature now controls the court's budget. All of that happened while I was chief, so it was a tremendous learning opportunity, personal growth opportunity, learning a little bit about resilience and wellbeing. I had what I see now as a bonus. It's certainly much different than I expected when I joined the court when I was elected.
Resilience, yes, but also testing your own belief in yourself and in your own fortitude that can only contribute to the strength you bring to the court now.
As a side note, West Virginia is a small place. Public service can be in any state as small, but I serve now with one of the other justices that voted to impeach me when he was in the house of delegates. You learn all kinds of skills and the ability to go forward. You can't carry all of that around when you're in public service, and you have to be able to move past all of that.
How did you do that? That's a level of forgiveness as well as moving head and saying, "Next step, let's move forward for the benefit of all."
You make a concerted effort. You have to focus on the reason that you're there, the job that you promised the voters that you would do and you move forward and do it. You have acquired the personal skills along the way to accomplish that. In my case, it was a combination of things I had probably learned along the way for more than 25 years and I put them into practice once I had to do that.
Until you absolutely have to do it, I don't think that you know what you have, what fortitude you have? Get to know yourself and your strengths a little bit more. After that, it seems easier, I suppose. After those first years like, "Wow." Many challenges in a row. Challenges within the system, but you've grown personally and professionally. You're able to take those on and lead in a different way.
I'm grateful for the lessons that I learned because it makes me better at what we do now. It makes me a lot more focused. We have to work with the legislature, but we are a separate branch of government. You learn that in grade school, three branches, checks and balances and all that, but when you're in it and those kinds of things happen, you have to find ways to maintain your judicial independence. You still do the things that voters expect you to do and that you need to do to get along with the other branches. It's been a learning laboratory of professional skills, as well as personal skills.
I'm glad you talked about that and mentioned that because it is unusual and a challenge that I don't think people would consider. Even you wouldn't have considered it as being an option once you were on the bench, but something like that would happen. It's a reflection of where the court and the legislature were institutionally and what was going on there that led to that. Also, it led to the opportunities you have to lead it out of that into a new era where hopefully won't come to that place again, in terms of the interaction of the legislature and the court.
To step back from what happened in West Virginia, it's not the only state where there have been, at varying levels, real conflicts and a real test of the separation of those two bridges between the legislature and the judiciary. We're seeing it all over the country, not quite where it was in West Virginia, but certainly in a lot of other states where there's been either talk of impeachment or significant budgetary conflicts, and all of that.
Also, satisfaction with decisions or things like that as well, right?
Fortunately, our situation was not driven by specific decisions of the court. That's hard. When you have legislators who believe strongly that the court has made the wrong decision and court members who believe justice strongly that they have made the correct decision, and how does that conflict? That's the test of our system of government, but it's happening. I don't want to make it sound like West Virginia is unique. What happened may have been a little a different version, but it's still that same conflict. It is a little bit different in the state government situation than in the federal judiciary.
When you're considering which bench you'd like to be on, there are pros and cons to each. There are different realities to each that could happen. Are there any particular judges that you know now that you would say there are aspects to them that you admire? Have you seen helpful things and how they've managed challenges, like the ones you've had that can help guide you in how you handle them?
I'm a big fan of Sandra Day O'Connor. She was first. She doesn't quite have the same pop culture status as Ruth Bader Ginsburg achieved, both deserving women, both worthy of admiration. I admire the way Sandra Day came from a legislative background and brought those practical skills. Graduating from law school at a time when women couldn't even get jobs as lawyers rather got jobs as secretaries. It hasn't been that long ago.
I wasn't probably old enough to appreciate a lot of her service. For some of it, I was. Watching the way she handled her role is inspiring and instructive. Another one of a lesser, but still important feature, I believe that you should write opinions in a way that the litigants can understand them. I admire the clear writing of Justice Kagan very much. She is a gifted writer, as with Sandra Day O'Connor. The like or dislike their specific judicial philosophies, there's a lot to learn from both of them, in my view.
I was going to ask about brief writing and what's most helpful in that regard, but also, there's digital opinion writing. You touched on that a little bit, but is there a particular aspect you have in mind when you're writing opinions in terms of how to provide clear guidance to litigants and lawyers?
The first is that under the West Virginia constitution, it states that our opinions of the Supreme Court include syllabus points. We write syllabus points very much, not like a Westlaw summary of, "This is a point." Those are the points of law. Our syllabus points are the legal holdings in the case. We write those carefully. There's a lot of craftsmanship involved in that and so that's where it starts. Your responsibility to the bar to elucidate or explain what's happening in the case.
You learn the most from the things that are often the worst in your life.
That's probably your first responsibility, but I also strongly believe that the litigants in the case at some basic education level should be able to understand the opinion, should be able to read the first couple of paragraphs. I work hard on my opening paragraphs so that people would know what the case is about right from the beginning and not just, "The circuit court granted summary judgment and the summary was." I want to get down to what the case is about and what we are talking about in the case.
I'm a fan of Bryan Garner. There are other great legal writing gurus as well. Sometimes we're handling, handling highly technical things, tax law, other things like medical malpractice cases, by their nature very technical, very difficult, but those are the exceptions in my experience rather than the role. I come to this as an old labor and employment lawyer who doesn't know real estate law. For example, I had to write real estate opinions in a way that I could understand them because that wasn't my area of practice. It's a responsibility that we have.
One of the ways I do that, I try to keep the traditional legal language down to a minimum. I haven't convinced all of my colleagues of the virtue of that yet, but we do let each other write our assigned opinions in a style that we think is best. I'm still trying to bring them along and slowly, they're thinking about it, but those are some of the things that are important about judicial opinion writing.
A similar approach to that is helpful in brief writing. In other words, giving you a nice overview of what's happening first in the brief and orienting you, is that helpful as well?
Very much. I always encourage lawyers to write to their audience. You're changing the case from a case in front of a trial court to a case in front of a panel of five. I'm not talking about writing to me like to Beth Walker or to any of my colleagues. Writing to an appellate judge is different. I always encourage lawyers. I know from having practice, the first thing you do is you get your summary judgment brief out. "I'll turn this into the appellate brief." The law is going to be the law, you're going to use a lot of that, but I challenged lawyers to think differently about that appellate brief.
That was the summary judgment you wrote for the trial judge, but how is that going to be different in front of an appellate court? With the possible exception of criminal cases, where lawyers need to bring all of the arguments forward, I encourage lawyers to pick and choose their arguments and not to feel like you have to bring ten assignments of error in a civil case.
It's dizzying. It's difficult for anyone to sift through all that. There are exceptions to this rule, criminal cases, habeas cases where lawyers have a responsibility to bring everything forward. I understand that and appreciate that, but it's not always necessary. Some of the best appellate advocates pick and choose not just in the oral argument but also in the brief.
Issue selection and limiting the issues so that you're focused on the ones that you're most serious about. I know when I see a brief in, there are 8 or 9 or 10 issues. I hope it's a significant trial that might justify that, but even so, there are not that many about where they end up landing unless there is an exception in a particular case.
Narrowing it that down for argument, what is the nub of the case for oral argument? I could be flushing out an argument in a way that's hopeful. Even if there are other issues that are good, you can get the answer from the record, and there's not that much controversy to discuss. Maybe don't focus on those arguments. Choose a couple that there might be the most questions about.
You raised a great point because you were looking at the arguments from the point of view of how you would react to it. That's exactly what lawyers should do is think about, "If you were the appellate judge, how would you respond to these thirteen assignments of error?" It's human nature. I'm not saying that's how I judge a case, but human nature is saying, "That's a lot. I wonder if they have anything." If they feel that they have to bring all that forward.
We carefully consider every argument, but it's harder to sift through ones that are less meritorious or less substantive that are put in there for the sake of whatever volume error. I understand the dynamics, sometimes clients are insistent about arguments, lead counsels, and all of that, but that's one of the skills you can develop as an appellate lawyer. Help people understand how you get to the most effective brief and how you get to the most effective oral argument.
Those are different from whatever brief or oral argument happened in the trial court. It's not a repackaging of this. There are different considerations that an appellate court is looking at and different hurdles you have to get over including, not just the Arabic prejudicial era that made a difference in the case and that can impact how you select the issues and how you argue things. Thanks for that reminder about a different thing when you're doing appeals than the trial court work. I wanted to conclude with a lightning round of various questions. I'm going to start with which talent would you most like to have that you don't?
My immediate gut reaction to this is I would like to be a better golfer, which has nothing to do with being a judge, but I'm an avid golfer. I would like to have that talent because I fear that I'm a much better judge than I am a golfer.
Have you been golfing for a while then? Was it a new thing that you picked up?
I took up golf when I was 40, so several years ago. I did not golf as a youth or college, or any of that, and I have found it to be a fun activity, but one that I'm continuing to improve at. If I had had that natural talent, I suppose I'd be wishing for something else, but I would like to be a better golfer.
That's what I've heard from people who do enjoy golfing. Part of the enjoyment, but also the struggle, is that you have the opportunity to continuously improve and that you need to do it consistently to have that improvement. There's that as well. Who are your favorite writers?
My favorite writer probably of all time is T. S. Eliot, a poet, but I will also mention it because I'm enjoying his book right now and I've enjoyed his previous books, if I'm saying it correctly, Amor Towles. I'm reading The Lincoln Highway. He wrote A Gentleman in Moscow. That would be a more contemporary, but going back, I'm big T.S. Eliot fan.
Every time I hear that, I always think of the first poem I read and probably many of us had in school, Love Song of J. Alfred Prufrock. Who is your hero in real life?
My father. We lost him in 2009. He was a wonderful inspiration and a constant reminder to always work hard but also to not take yourself too seriously.
What in life do you feel most grateful?
My husband. He and I have been married for many years. Going through the things that I talked about in terms of elections and an impeachment, and all of it being the chief justice, having him by my side. I'm not sure I would have been able to navigate all of that without him. I'm extraordinarily grateful for him, Mr. Walker.
It's so important to have a strong partner and that you make the best decision you can in that regard, but you don't know until things happen, "How was my choice?"
It's also an important reminder, as strong and talented as you are and as many gifts as you have, it's difficult to persevere without some community, whether it's a partner or a family, or whatever your community may look like. We work alone sometimes as judges, but you have to have that support behind you, whatever it looks like.
That is a good reminder. That's been one of the things from COVID in terms of reminding all of us that's what's important and what's essential in life, getting down to the real core fundamentals there. Who would you invite as a dinner guest?
I previewed this, but I would invite Sandra Day O'Connor. I understand she's not appearing publicly, but I would nonetheless invite her. Knowing what I know now, I would love to have a conversation.
She's remarkable. I had the opportunity to have dinner with her and with a friend of mine. There were four of us at dinner in this restaurant and it was amazing. It was my opportunity to get over the fact that I'd been completely tongue-tied when I'd met her. I couldn't get a word out. I was like a complete fangirl and it was awful. My friend was like, "You have to make up for this, but you have to talk if you're going to come to dinner." It was amazing. She was wonderful. I was involved in her iCivics Project and so was my friend. That's how we connected and that's how we ended up having dinner. The last thing is, what is your motto, if you have one?
I don't have a motto. I was thinking about this because you were kind enough to share some of the questions you'd be asking. I gave it some thought and I was trying to think of something clever. I don't have anything clever. The only thing I can think of that I say consistently, which is somewhat ridiculous and not terribly inspiring for women. It's one of my favorite quotes from Dirty Harry, when Clint Eastwood says, "A man's got to know his limitations." I don't know why, but I often fall back to that because sometimes you have to be realistic about what you can accomplish, not to not dream big, but you also need to know yourself.
There's a certain humility to that too in saying what is possible, but also it doesn't stop you from having a vision or hoping to accomplish more but also having a certain pragmatism about what is possible. It keeps you from not being discouraged in some ways.
I suppose it hearkens back to my father, who's always reminding me in my head not to get too big for my britches.
There's a grounding element to it. Thank you so much for joining us. I enjoyed the conversation and I appreciate your taking the time to do this.
Thank you for the invitation. It was such a pleasure to meet you at AJEI. I admire again, as a fellow podcaster, your spirit of wanting to bring these stories out there and be more encouraging to women. I know how hard it is to put one of these together and to coordinate all of the interviews and all of that, so hats off to you. This is going to be a great thing. I very much look forward, not to my interview, but maybe to others.
I do hope that it is a positive force in the world and that people will think of things they might not have thought of doing. Also, get some general inspiration from all of your amazing stories and your fortitude in the face of challenges. Thank you so much again. I appreciate it.
Thank you.