Episode 5: Margaret Grignon
Justice Of The California Court Of Appeal, Second Appellate District (Ret.)
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Show Notes
Margaret M. Grignon, retired Justice of the California Court of Appeal, Second Appellate District, discusses the joys and challenges of a distinguished career on the bench and in practice. Justice Grignon spent 14 years on the Court of Appeal and authored in excess of 2,230 opinions, more than 160 of which have been published. Her work as an appellate practitioner upon retirement from the bench has produced multiple precedential opinions in state and federal courts. Listen in as Justice Grignon shares why she decided to go into law, and what she views as being the most effective approaches to appellate briefwriting and oral argument.
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Justice Margaret Grignon
Margaret M. Grignon, retired Justice of the California Court of Appeal, Second Appellate District, discusses the joys and challenges of a distinguished career on the bench and in practice. Justice Grignon spent 14 years on the Court of Appeal and authored in excess of 2,230 opinions, more than 160 of which have been published. Her work as an appellate practitioner upon retirement from the bench has produced multiple precedential opinions in state and federal courts. Listen in as Justice Grignon shares why she decided to go into law, and what she views as being the most effective approaches to appellate briefwriting and oral argument.
Transcript
Welcome to the show, Justice Grignon. I appreciate you being here. Let's get started with some of your history, practice and other good tidbits that might be of interest or help to women lawyers who might want to join the bench or can see themselves doing that someday. In the beginning, I wanted to start with, how did you decide to go into law? What did you end up liking about it? Was it different from what you originally thought when you chose a legal career?
Originally, I didn't intend to go into law. I didn't have any mentors or even lawyers in my family or friends that I could look at. I went to college with a political science career in mind. I was very interested in international relations and thought that someday I could be an ambassador. I went to school and thought that would be a good thing to do. Partway through that, I realized that was probably an unrealistic goal to start out with and decided to go to law school.
I started with some big general ideas of international law as well. That didn't end up happening either. Prior to joining the bench, what law practice did you engage in?
I clerked for one year for California Court of Appeal Justice, Robert Thompson. I went first to O'Melveny & Myers and then Gray Cary Ames & Frye, which is now DLA Piper. I was a transactional tax lawyer and I found that subject fascinating in law school. It was a great puzzle practice to figure out what was the right way to structure transactions to get the best tax benefits. That was the first seven years of my career.
It's not common that you would think that a judge would come from tax. That's a little different. We think of litigation or a trial lawyer. That's an interesting background. There's a similarity between the tax that is an interesting puzzle. It's a complex area of the law. To that extent it’s similar to the analytical work you would do as a court of appeal justice in particular. You mentioned that you had a one-year clerkship and that was at the State Court of Appeal; those one year positions at the state appellate level largely no longer exist. There are more research attorneys now at the California Courts of Appeal level who stay there for a while. Were there one-year clerkships prior to that?
A very long time ago, there were one-year clerkships but then the workload got to be so much that most justices hired permanent research attorneys because it was easier to work with people who knew what they were doing than to have new people every year. My justice, Robert Thompson, felt strongly that he learned more and got more out of one-year law clerks. Retired Court of Appeal Justice Miriam Vogel clerked for him as well before me. Maybe 1 or 2 justices at that time were still using rotating law clerks.
I know that some members of the California Supreme Court now have adopted that practice in part that they have some rotating law clerks again. It's always a balance even with associates between that, you want to have more people train more people, but then it's also good to have people who have some experience. A mix is good.
I know that there are sitting court of appeal justices in the second district who have that same mix of permanent research attorneys and rotating law clerks. It's coming back into vogue. It's a great opportunity for young lawyers to start out their careers that way. Some of the justices realized that it was good for both them and for the new lawyers.
There's a certain point in your career where you want to give back and you're thinking about the next generation and how to train them. That's one way to do that to give that experience. I know my courtships at the federal level were great that way. I have learned so much about how to practice law and think about legal problems in a practical way that I didn't get from being in law school. I feel like I got my Law degree from my school, but I learned how to be a lawyer from the judges I worked with. It's good to have that opportunity. From tax lawyer to judge, what was that path? How did that happen? How did you decide that you wanted to apply to become a judge?
You get your law degree from school but you learn how to be a lawyer from the judges you work with.
It's a twisted path. I was living in San Diego and working at Gray Cary Ames & Frye. For personal reasons, we ended up moving to Lancaster in the Antelope Valley and there are no tax lawyers in the Antelope Valley. There was an opening for a municipal court judge at that time. I was approached to apply for it and I said, "No, thank you." I didn't have any idea how you would do that. I practiced a little bit out of my home and then with some of my colleagues in Los Angeles. I was approached again about six months later. By that time, it was beginning to look more attractive to me, so I put my application in. I was fortunate that Governor Deukmejian appointed me to the municipal court in the Antelope Valley.
How was that experience on the municipal court?
It was challenging and excellent. I had a limited background in litigation or anything having to do with judging. I had to work hard, pay attention and get advice from anywhere I could get it, but I thought that it made me a better judge to be on the municipal court. You might see as many as 100 people a day. It's 100 cases where you have to make a decision. I spent as much time as I needed to come to the right decision in an environment where you have to make a decision on the basis of the information you have in front of you. That was an important learning skill that I developed in that three-year period of time.
I remember when I was pro temming the first set of cases I had were in the collaborative courts. All they told me [the day I arrived to fill in on the bench] was, "We have 100 people. You have three hours to get through all of the cases. Make sure you get the people in the orange jumpsuits on the sheriff's van by X time. Go for it." There's a lot of learning going along very quickly there. From the municipal court, did you go to the superior court as well or did you go then to the court of appeal?
I was on the municipal court for three years and then was appointed to the superior court after that. I was very lucky. We lived in the Antelope Valley in the Lancaster-Palmdale area. I was afraid that, like all new judges, I would get sent to Compton. As I said to everyone, "There weren't a whole line of judges waiting to sit in Lancaster either. I got to stay in Lancaster." I spent my whole six years on the trial court in Lancaster near my home, which was great.
That's nice and also serving your direct community, which is always rewarding as well. Did someone approach you about applying to the court of appeal? Were you looking for new challenges? Did you sit by invitation or designation on the court of appeal before you were appointed?
I did when I was in the municipal court. Chief Justice Rose Bird was appointing, for the first time, municipal court judges to sit pro tem on the court of appeal. She appointed me to sit with Division Three. I sat with Joan Klein, Elwood Louie and others. I did that for 60 or 90 days. That was a great experience.
What a great group too. One of my friends is doing that in Justice Edmon's court. She is sitting there by designation from Orange County Superior Court. She was an attorney in the court of appeal. She is loving it. You did that. You sat by designation. You said, "I like this. I could do this." How did your actual appointment to the court of appeal go?
I was very lucky my whole career of being appointed during Governor Deukmejian's term of office. He appointed me to the municipal court, the superior court and then to the court of appeal. I applied. Although I would never have given up being on the trial court bench, I learned many things that stayed with me throughout my whole court of appeal career. I was ready to move into the more academic environment of the court of appeal. I put my application in and was appointed.
Did you have any angels along the way in the appointment process or people who encouraged you? It can be very discouraging to go through that process. Sometimes you have to apply many times before you get a position. I wonder if there are any words of wisdom you can share with others about that?
A lot of it is fortuitous. For example, former Justice Marvin Baxter was Governor Deukmejian's appointment secretary at that time. The governor was very much looking for qualified women to appoint to the bench. Marvin Baxter was probably involved in all three of my appointments. He was helpful to me in terms of helping me through the process. Also, Justice Armand Arabian was helpful to me. I had some good mentors in that administration.
What advice would you give to a woman lawyer who is considering joining the bench in terms of preparing to apply or thinking about the process?
My route wasn't typical and probably unfortunate in many respects. A more typical would be involvement in bar associations, making yourself visible that way. I don't think there's any one particular job that is the right job to get appointed to the bench. Probably litigation as opposed to transactional work would be more typical, making a name for yourself and not leaving dead bodies along the path. In other words, make sure that you are treating everyone fairly and well. There are people out there that will say good things about you and that no one is out there that will say bad things about you. Your reputation is key.
You can't control what people might say all the time, but you certainly can conduct yourself with the opposing counsel, co-counsel and the court in a way that inspires confidence, even if you're on the other side and you win. If you win in a way that is respectful, people remember that. I have noticed that when we are involved in any judicial budding at the state level, people call everyone, including people they think might know you who aren't on your list and get comments from them because they trust those individuals.
That's a good comment. Also, you shouldn't conduct yourself in that way just because you think somewhere down the line that something is going to happen. You build a certain character from doing that over time, which then makes you appropriate to be on the bench. What was the most unexpected aspect of being a judge? At the trial court level or the court of appeal level, was there something like, "I thought the job was X, but there's this part that's involved in it. It's either more interesting or different than what I expected?"
You expect to have to make decisions, but I don't think that you expect to make as many decisions at a time and how much of an impact you have on people's lives. Whether that's a traffic ticket, misdemeanor, felony, civil cases, disillusions and child custody issues, it's an incredibly important job. The impact that you have on people is so frightening almost.
It's being very aware of the importance of the role and impact that you have on individual cases at the trial level and then beyond the parties at the court of appeal level. How did you work through that? To some degree, that could be a little bit freezing like, "This is an important decision. I need to make the right one." How do you still keep the seriousness of that because you want to keep that when you're making decisions but not be immobilized by it?
It turns out that I can make decisions. That was something that's in my character that I can do and I probably didn't need that particular trait so much before. The other thing is that if you do everything you can to make a decision that you're comfortable with at the time, that you get all the information, work as hard as you can, try to figure out the right answer as much as you can and then put it away from you when it's done. The harder part is putting it away from you when it's done. For the most part, there are always cases where you think, "I wish I had known that or maybe I could have done that differently." For the most part, if you go through the process of doing a good job at the time, then you're able to live with your decisions.
To make a name for yourself, make sure that you are treating everyone fairly and not leaving “dead bodies along the path”.
That's good ammunition for life in general. I have heard some judges talk about this that you play a different leadership role as a judge beyond deciding the cases. You can't do certain things as you would if you were an advocate but in other ways, you have other abilities, whether it's to convene people around issues or help create a community.
I was wondering if there's something in your view because you have been in both places and are now back in the practicing realm. Whether there's something that stands out to you that was special, like being on the bench or having been on the bench, there are certain things that you can now do that are positive for society or leadership in the bar.
I was in a very small judicial community and I was a new person. I was not part of the existing power structure there. In fact, it was an interesting case. There were three municipal court judges with me. The other two were men. There were two superior court commissioners, both men. There were no women prosecutors or public defenders and 1 or 2 women that were practicing law in the community. I came in with expectations of being a foreigner and also a woman. They didn't know what to do with me.
One of the things that I learned was that they had been doing things their way for a very long time. If I wanted to implement change, which I could do in my own courtroom by saying, "We are going to do X instead of Y," that the best thing to do would be to have meetings, convene the people that would be interested in this, bring them along and co-op them.
Ultimately, the changes that I was able to accomplish were because I had brought along all of the people that were impacted by the decision and made them part of the change. That's something that I learned and has been useful going forward. That is that you don't adopt change from the top-down. If you don't do it with everyone involved, it isn't going to work.
That is a good team leadership lesson in a number of different settings but that's true. That's another aspect of convening, getting consensus and getting people involved in the decisions. What do you think is one of your greatest accomplishments or what you're most proud of from serving on the bench?
For the most part, it's my whole body of work. In other words, there are a lot of published decisions out there that I wrote or signed, you and I know in our careers as appellate lawyers now, that continues to impact the law now. What I feel I'm most proud of is that body of published decisions that I worked very hard at.
That must be a great feeling. I know just working on cases, I have that feeling sometimes and I'm still surprised. Somebody will say they studied the case or that was in my textbook and I'm like, "It wouldn't be. That's cool." It's nice to have that because we work hard on those things and it's nice to know that we have a lasting impact. If I can ask you a little bit about the opinion-writing process, then how did that work for you? How did you draft? Tell us how that comes about after oral argument in case?
One of the things I learned in my one year of clerkship was how to write. Justice Thompson was a tremendous writer. He wrote clearly in an organized fashion. From him, I learned to do that as well and that carried me through my legal career until I came on the bench. At the court of appeal, as you know and see a lot of the time, there are drafts of the opinions before oral arguments.
Opinions got drafted in my chambers in two ways. There were a lot of cases when I was there. I wrote as many as 200 majority opinions a year and that's a lot. I had three research attorneys. They would work on some of the cases, maybe 80 altogether the three of them. They would do the research and give me their drafts and then I would take them. Sometimes, I rewrite and edit them and take charge that way. About 100 cases a year, I wrote myself from scratch. It's just me writing the opinion.
What I would do is I would take the briefs and the record. I tried as hard as I could to read the relevant part of the entire record so that I knew everything that was in there. I would draft opinions that used a similar format and introduction because, as Justice Gilbert said, "Opinions are not supposed to be mystery novels. You need to tell people at the beginning what the answer is and the facts and the law." A way to write that was to go from point A to point B to point C and get you to where you wanted to go in a logical fashion.
I know some judges and justices now are aware of published opinions, in particular being excerpted or put out into the public and the media. They work hard in particular to make sure that there's a common-sense or clear description of what it is that's being done so that it can be properly shared with the public so they can understand the opinions well also, even to people who aren't lawyers. That's a change in perspective that some judges have, saying, "They are going to quote me. I might as well make sure I have this clearly set forth." What is your favorite memory from being on the court, if you have one?
It's funny, but I was thinking about that. My daughter and son were both in elementary school when I was on the municipal court bench. One of my fondest memories is my daughter's elementary school class came to my courtroom when I was on the municipal court bench and watched a morning of what went on in the courtroom and then I answered questions. To have all these young children see what I did and what court and the justice system were like warmed my heart. That was a great day.
That's great for students to see what happens in court. That's an amazing opportunity and then to have your daughter watch you as well was cool.
The other thing is that there were no women role models. I realized how important it is for young women to see women in positions so they can say, "Maybe I could do that someday." I thought my time in the Antelope Valley was important because I spent a lot of time going to schools and other organizations, being present and talking about what it was like. I felt that was an important part of my job.
To go back to your initial impetus to be an ambassador, you are somewhat of an ambassador for the legal system as a judge. I wouldn't say there are some parts of your career that match your initial interest. Is there a judge that you particularly admire?
I admire Sandra Day O'Connor for a lot of the reasons that we have been talking about. To me, well before my time, she was a woman attorney and judge. She excelled and balanced family and professional work. There was a period of time when her children were young when she worked out of her office at home. To me, she embodies a woman's role in a professional career.
In other words, she could have children, husband and family and yet reach the highest pinnacles. When she got to the Supreme Court, she was the center of a divided court. Women are particularly good at that. They are good at being consensus builders and working collaboratively with people. She did a tremendous job.
She played an important role in that way with the court. One change in personnel can completely change the dynamics of the entire court and a lot of things. She definitely did play that role. There's a book called First. It's a biography of her. I'm told that it's pretty accurate. I was on a plane and somebody next to me said, "My mother grew up with Sandra Day O'Connor and she recommends this book. It's very accurate, she said."
Tell me about also your return to private practice and then serving as a mediator after you left the bench. You have a great practice now with your law firm with your daughter. I would love for you to talk about that but also transitioning from the bench because a lot of people think two things about becoming a judge. First, it's the endpoint of your career. That's the last thing you do and then, second of all, thinking, "There are other things I can do after leaving the bench."
You can’t control what people might say all the time, but you certainly can conduct yourself in a way that inspires confidence.
In the old days, people were appointed to the bench at age 50. If you're there for 15 or 20 years, that is the end of your career. I was appointed to the bench when I was 34. Although I was young, I was not the youngest. Ron George was the youngest at 33. By the time you have worked for twenty years in the court, you're in your mid-50s and you have a lot of professional life left. One thing that happened is people started to get appointed to the bench at a much earlier age.
The second thing that happened was this private judging, which allowed people to leave the bench and do something that allowed them to make some money and continue to use their judicial skills. That allowed a lot of people to be able to make decisions to leave the bench. When I left the bench, I was not particularly interested in being a private judge. I thought that if I was going to be primarily a judge, I could stay where I was. It was a perfectly good job and position. I wanted to do something different. Since I had never practiced appellate law before, I decided to do that.
I went to an international law firm for ten years and practiced appellate law. That was a great experience. I learned a lot about the difference between being a judge and an advocate. My daughter and I formed our own law firm. We have been practicing appellate law together. I also do arbitrations and mediations as part of my practice, but it's not a substantial part of my practice.
You have such good judgment. You are one of the best oral arguers that I have seen and repeatedly so. I'm wondering if you have any tips about an oral argument from your time on the bench or from your own presentation of it that you might say, "Here are some things you should think about when you're preparing or presenting."
There are two things. First of all, you need to be prepared. What I do is prepare unendingly. I do everything I can possibly think of to prepare so that when I go to oral argument, I'm not worried about not being prepared. I know the barring catastrophes, answers to the questions I'm going to get asked, what the case is about, the cases that are cited and all of those things. I go into court without that burden of wondering if I'm going to not know something.
When I get to court, the important thing and probably maybe it's a little bit easier because I have been on the other side of the bench, but I want to have a conversation with the justices. I don't want to talk to them or give them a speech. I want to see if I can get them to talk with me, talk about what their concerns are about the case, what they would like to know, what the issues are and have this free-flowing conversation. When I can have that, that's when I do the best. That's when my arguments are the most successful.
It's listening and trying to pay attention to what the justices indicate they are interested in and making sure that's what you're talking about. To be honest with you, they have read your briefs and they know what you have already told them. Unless you have some wonderful new insight that they haven't heard before, the argument is not very interesting to them if you keep telling them the same thing you told them in your briefs.
You once framed it, which stuck with me. You told me the argument should be different from the briefs, but you can introduce new arguments. What does that look like? It looks like framing the issue a little differently or explaining it differently because sometimes, you can explain it one way in the briefs to somebody and maybe that doesn't resonate, but you find another way or another analogy and argument and it will hit someone like, "That makes a lot of sense." Your description of you're looking at it through different lenses and ways of explaining it or even the rationale, law or purpose of the law that sometimes it can resonate with a judge but another way of explaining it just didn't for whatever reason.
That's why oral argument continues to be important. Unfortunately, a lot of courts don't think it continues to be important. It's not just that you're going to come and repeat what is in the brief, but you're going to have this conversation. You're going to say something in a way that you didn't say before or they are going to hear it differently. You're absolutely right to frame it in a way that's interesting and different. Everything is different. You file an opening brief, which is not what was filed in the trial court. You file a reply brief, which is different from your opening brief. You have an argument, which is again different. It's very time-consuming and difficult, but it is what allows you to persuade the most people.
Also, sometimes you can see the light bulbs go on with the interchange between the members of the panel in an answer that's given, "I didn't know that or I hadn't quite put that together. Now, we have to deal with that fact in the record that maybe they hadn't focused on in the same way." Like the same thing of explaining it differently, the light bulb goes off and there's the interplay between the members of the panel also that changes things.
That to me has been one of the toughest things about having remote arguments. When all of the justices are remote and they are not together, that impacts their ability to interrelate in that way on the bench. It concerns me about that, but I'm glad we have arguments in one way or another with COVID. Let's go to brief writing then. What is the most helpful thing a lawyer can do in a brief for the court?
There are two things you have to do in a brief in addition to writing well in a clear and organized fashion. First of all, you have to make the justices want to rule in your favor. I call that winning the hearts and minds of the justices. You need to present your case in a way that makes them think that your side should win. Especially if the law is not 100% on your side or if you're in a new area, you'll have to give them a legitimate path to get there.
It has to accomplish those two things. They want to rule in your favor. Two, they don't have to go outside of the legal realm in order to rule in your favor. That's important to give them a legal path that they will feel comfortable with that they can get to the result that you want them to get. You need to have a path for this. You want to keep your justices on that path and not over here. That's why it's important for your brief to be organized with no extraneous issues and things that might allow them to go off the path.
I'm always thinking of keeping a smooth reading for the judges, but also that's right. You're giving them a direction too. You want to be clear about that direction and not have them take an off-ramp that you don't want them to take at a certain point. Is there anything else that you wanted to make sure that you didn't answer or cover in terms of judicial career or legal career and those women thinking about that?
No, I don't think so.
I'm experimenting with a lightning round of questions. It will be quick answers on each of these points. Top tip for appellate brief writing?
Clarity. I would suggest that you write clearly and logically and go from A to B to C so that someone can follow you.
Same for oral argument?
An oral argument should be a conversation with the justices, engaging them in a discussion of your brief that is a way of thinking about your issue that they haven't been presented before.
Tweet: You create change by bringing along everyone who is impacted by that decision, and by making them part of the change.
Which talent would you most like to have?
If I thought about the talent that I would like to have, I would say empathy. In other words, to be able to look at things from other people's perspectives besides mine. Not that I don't have any of that, but to have more empathy and understanding of where someone is coming from or what someone's view is as opposed to just mine.
What is the trait that you most deplore in yourself that you do have or in others?
Sometimes I can be hypercritical and I deplore that. I try to be more generous of spirit. I usually won't say anything, but it's even bad to think bad things. That's the trait that I could do well to get rid of completely.
If you could wake up tomorrow having gained one quality or ability, what would it be?
What you gain every day of your life, if you're lucky, is more wisdom. What I would like to do is to continue to learn things and be wiser.
You have a choice on this one. Who are your favorite writers or what is your favorite word?
My favorite writers are nineteenth-century British authors Jane Austen, Anthony Trollope, Charles Dickens and that whole group. That period of time is an amazing thing to me that you have all these people in this one small area that were so tremendous in a single period of time.
Who is your hero or heroine in real life?
I would have to say my dad. My dad left home at age thirteen and that was the end of his formal education. He supported himself from age thirteen. He did lots of things. He was in the Merchant Marines. The reason he is my hero is that my dad got up and every single day did what he was supposed to do. He was a completely admirable man and had incredible integrity. He paid close attention to what was right and wrong and he only did things that he thought were right. He gave me a compass by which I can try to live my life.
It might lead to this. For what in your life do you feel most grateful?
I am most grateful for my two children, Anne and Christopher, and their spouses and my two grandchildren, Jack and Alex. I can't think of anything in my life that I could not have done without.
Given the choice of anyone in the world, who would you want as a dinner guest?
I was thinking about that. The answer I would pick is a little odd, but I think Thomas Friedman. He has written a number of books that are very accessible. They are not necessarily scholarly, although they are incredibly well-written on the Palestine, Arab-Israeli conflict, climate change and globalization. He writes on any number of topics that are important. He writes in a way that makes you think about all of these issues and see them from a different perspective.
Finally, if you have one, what is your motto?
My motto is courage and that means a lot of things. There's physical courage, which none of us usually have to evidence often. It doesn't come up often. There's moral courage. There's the courage to admit when you're wrong. There's the courage to see things from different perspectives than your own. It's a sense of doing things that are uncomfortable or that scare you or that are important and facing them head-on.
That's a great way to end. Thank you so much, Justice Grignon, for joining us. I appreciate your insights.
You're welcome. It has been my pleasure.