Episode 54: Sarah Beth Landau
Justice on Texas’ First Court of Appeals
01:10:01
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Show Notes
Justice Sarah Beth Landau is the first public defender elected to the First Court of Appeals in Texas. With host M.C. Sungaila she shares insights from her journey, including becoming a judge through an elected process, appellate brief writing, and mentorship.
Relevant episode links:
Justice Sarah Beth Landau, Judge Danielle Viola – Past Episode, Corrections in Ink, Lie Down in Darkness
About Sarah Beth Landau:
Sarah Beth Landau
Sarah Beth Landau was elected to the First Court of Appeals in 2018. Before taking the bench, Justice Landau worked in the appeals division of the Harris County Public Defender’s Office and for 10 years as an Assistant Federal Public Defender, doing trial and appellate work. Justice Landau has over 20 years of legal experience and has handled over 600 appeals as an advocate in state and federal courts. She is the first public defender to be elected to the court. A frequent presenter on criminal law issues and appellate advocacy, Justice Landau taught Appellate Litigation for six years at the Thurgood Marshall School of Law.
Justice Landau worked for several years in complex commercial litigation at Vinson & Elkins LLP in Houston and at Coudert Brothers LLP in New York. She clerked for the Honorable Vanessa D. Gilmore in the Southern District of Texas after graduating from Columbia University School of Law. Justice Landau studied political science and quantitative economics at the University of Minnesota, graduating cum laude and as a member of Phi Beta Kappa. She worked her way through college and a Tokyo study abroad program doing odd jobs including, but not limited to, janitor, honors academic advisor, commercial radio DJ, personal ad taker, and sandwich artist.
Transcript
I'm pleased to have Justice Sarah Beth Landau from The First Court of Appeals in Texas. Welcome.
Thank you. I'm so delighted to be here.
We will talk about your career journey to the bench. You have your role in the public defender space prior to becoming elected to the Court of Appeal. I want to start first with how you decided to get into the law business, to begin with. How did you decide that the law was for you and that you wanted to go to law school?
It's not one of those stories where somebody has wanted to be a lawyer since they were five and then followed that path. Mine was, I didn't know what I wanted to do. I wanted to do something interdisciplinary because I was a Liberal Arts major and spoke a few languages. I was intellectually very curious but I didn't know where to channel that. I applied to get a PhD in Economics. At the same time, I applied for law school. I figured whichever one turned out better, that's what I'll do. The law school got back to me a lot faster than the PhD program. Here I am.
Do you ever have a path not taken like, “If I had done that, maybe I should have done that or I should do it as a next career?”
I mostly am grateful it worked out this way because I am a happy lawyer and judge. I don't know that I would've been a happy economist.
I was wondering about that because that's important when you're deciding what you want to do. Not only are you stimulated by it. Do you think you have meaning in doing it? Are you doing something productive and helpful to society? Do you like yourself when you're doing that or the whole package? My initial thing was that I wanted to be a writer or a poet before I became a lawyer.
I decided that wouldn't allow me to keep a roof over my head. I should probably do something where they paid you to write being a lawyer. I did have a mid-career like, “I'm going to double-check. Should I have done something else with my life or should I change?” I didn't like who I was when I did that. We're on our own when we're appellate lawyers but even more on your own when you're a writer, especially if you're doing memoirs or creative nonfiction.
You spend a lot of time ruminating on some parts of your life that were not the most fun. You become a little cranky and you're ruminating. I'm like, “No, I'm the person that likes to move forward.” I process. If it was a terrible time, I go, “What can I learn from that?” I move ahead and don't live in the past. When you do that, you become a little bit of a different person. I was like, “Nope. I don't like how I am in this. I like a little more sociability and where the writing has an impact.” I'm doing the right thing. There was no need to pivot. Everything was good.
It's smart to check in. I like science. I'd considered Marine Biology, which I feel like every middle school girl thinks about at some point. Economics was science adjacent but it's the dismal science for a reason, no offense to economists. This is a better fit for me because I have a service bent. That's easier to do in the law, maybe.
There are many varieties of ways that you can do that, which you've exemplified in your career. There may be more limited ways to do that as an economist, shall we say. Sometimes things work out. You're like, “That's how it was meant to be.” When you went to law school, did you know what law you wanted to do or were you thinking about? How did you get exposure to the public defender's office and do that work?
I'm not a very confrontational person. I thought, “I'm not a litigator. That's not for me. I want to do transactional work.” That was a total misstep. I was quite miserable. It was not for me. The things they give you as a summer associate in transactional work are not a good fit for what I'm good at. I was sitting near this group of mid-30s litigators. They kidnapped me out of the real estate and finance section into the litigation section. They said, “We have a hearing tomorrow. Can you find us a case that says this?”
I found the case and it was written by the judge. They were appearing in front of and I was like, “This is a fun puzzle. I like research.” All of a sudden, I realized, “I don't want to be a transactional lawyer at all. I want to be a litigator.” As we in Texas call them law lawyers, as opposed to courtroom lawyers, although I wound up doing that too and enjoyed that. I came into law school with exactly the wrong idea but I rode the ship. That's the important part. Law school is about figuring out what lawyer you want to be and checking back in down the road, “Is this still the lawyer I want to be?” The great thing is you can do anything.
Sometimes the impression from law school is you have to choose this because once you choose the path, you're on that path. If you don't get on it fast enough, you're never going to get on it. You have to follow this path and that's the way to go. There are a lot of different paths that you can take throughout your career where you feel like you can do the most good or the best fit for you at different points because you're an evolving, growing person. Whatever you might think is interesting in the beginning might have been but you want to do something else with the skills that you have.
You can have the soft sell and be an effective trial advocate as well as an appellate advocate.
I worked at a big law firm in New York and came down to Texas for a federal clerkship. How I wound up in Texas is a little bit its own story, which I'll set off to the side. I wound up staying in Texas at the biggest firm there. I had a friend who was at a large firm based in New York. She was in the Houston branch. She said, “Have you heard anything about the Federal Public Defender's Office?” I had no idea what it was.
I was interested in criminal law. We did a spring break caravan to New Orleans to assist with death penalty cases when I was in law school. A lot of the people who I hung out with in law school were interested in white-collar, criminal defense and things like that. I'd had some exposure to it but I didn't know what the Federal Public Defender's Office was or what they did. I'd heard of a District Attorney's Office. I didn't realize that there was a defense equivalent on the federal side.
She wound up working there and then leaving. When she left, she said, “You should apply for my job. You would love this.” I was like, “Do you think I can pivot that way?” She said, “Yes. Everybody here started at a big firm and wound up doing this after a few years or mid-career. Some people went back and forth.” She and everybody else had done it. I felt like, “Maybe I could do that.” I applied to work in the Appellate Section of the Federal Public Defender's Office here in Houston and that's how it got started.
We're talking about the Federal Defender's Office but the Appellate Section also. The Appellate Section operates in different US attorney's offices and defender's offices. Did you do appeals or also trials and appeals?
I started in appeals. There was a change in the law that led to many more Anders briefs being required. It’s those briefs where you are writing it for the court and the client saying, “There's nothing to see here. There's non-approval of this legal issue.” Those are little cuts in your heart as a defense attorney to write too many of those.
When the law changed and we were not allowed to raise certain issues anymore because the issue had become foreclosed, we were ordered to not brief that. I was like, “What about the trial?” The trial section had been all men for a long time and it wasn't that attractive to me. We got some new younger attorneys in the Federal Public Defender's Office from different walks of life. They weren't all big-firm lawyers. I wanted to practice with them, not just way down the hall from them.
They said, “You are a trial lawyer pretending to be an appellate lawyer.” That's not quite true but I wound up enjoying trial work. I did a couple of cases where I would assist with the trial. Getting ready for trial, we didn't wind up going or an evidentiary hearing, a suppression hearing or something like that was heavy on the law.
It’s the same role that I had civil law firm being the law lawyer but on the criminal federal side. I enjoy preservation as it's a weird lifestyle and hobby but that was one of my favorite things. I got to be the law lawyer who had kicked the trial lawyer under the table to tell them to object or write the trial brief. I like that work. Eventually, I transformed into a trial lawyer.
That's a soft transition because of legal work in the trial court. That's what appellate lawyers are comfortable doing. We like doing and feel helpful but I’m moving to do the rest. I did litigation and some trial work before I went into appellate. It's been a long time but I liked arguing the law, the jury instructions and talking to the judge.
I felt bad for anyone who was cross-examined. I felt empathy for the witnesses who were cross-examined, even if we were doing it and they deserve to be ripped to shreds because they were not being truthful. That's when I knew you couldn't do this. You're a different being than the people who do this. It's probably not your thing. Stick to the law part but let the other people do their magic. Lyn Librada who was my colleague at Hinton Moot has a very similar story. She and I are the only two appellate lawyers who felt badly for the witnesses.
I would try and turn that empathy into a tool because sometimes if you question in a non-aggressive way, you can get people to say things that if you had been poking at them hard with a stick, they might not say.
They're going to be super defensive. If they're comfortable, they won't.
My colleagues used to call me the soft sell. The thing I learned is that there are many effective litigation styles. A lot of people who teach trial practice are one style. I got a lot of feedback from those folks who operate in that style, “I'm not enough. I’m too much that. This isn't going to work.” I thought, “Aren't you guys telling me I'm supposed to be myself? What you're asking me to do is emphatically not me. How do you connect with the jury when you're being inauthentic that way?” I have to figure out some way to do this that still resonates and can connect with people, the witnesses, as well as the jurors. My biggest discovery was you can have the soft cell and be an effective trial advocate as well as an appellate advocate.
Authenticity, genuineness and credibility are important to both trial and appellate advocacy. If you're trying to pretend to be some other style of person that you're not, it's not going to go over well.
You can always take a point like, “I can't hear you. You're so soft-spoken. You're speaking in a monotone.”
I'm always in the constant improvement category. Even if it hurts, I listen to every argument. I listen to it or watch the video and try to be as dispassionate as possible and go, “Which part was good? Which part could have been better? Are you sure you got the friendly questions or did you mistake one? Perhaps in the heat of the moment as not being friendly and was.” I evaluate the whole thing from afar so that next time you can improve. I'm still in that category.
You're a better person than me. I would like to be in that category but having to listen to my voice or look at my face fills me with existential dread. I avoid it as much as possible but I'm willing to have other people give me some notes.
I put it in the same category before an argument where I try to read the briefs dispassionately. Hopefully, there's been enough time to have some distance from them and figure out, “Where are my questions? Objectively, where are the questions on both sides? Is there something where we're not connecting? Is there some gap in the argument that I need to fill in for my client? Is there some logical connection I didn't make that we need to make?” Trying to have that same dispassionate could be hard right after you've written it. If you have enough time, you can do it. Evaluate it. If I had to decide this, what questions would I have?
I used to call that my mom test. If I would tell my mom about a case that I had, what would she ask me? She was a pretty good proxy for what a judge would ask.
They tend to zero in only on the fundamentals like, “These parts are missing.” I don't see how it could go that way because that doesn't make sense. From a common-sense perspective, it doesn't feel like it's the right thing. That's still great. I still use that too. When mom and dad test, it’s for different arguments like, “Let's go over this Sunday dinner, see what reaction I get and if it's effective.” From the public defender's office eventually, how did you decide that you wanted to become a judge?
I had some interest in being a federal judge but that is a political process on its own. It doesn't involve voting. We were not in and probably still are not in a posture where a federal public defender is going to get confirmed to a federal bench here.
That's happening out here in California but different.
It’s happening all over. We have some magistrates or former federal public defenders but we don't, to my knowledge, have anybody on the District Court or the Court of Appeals bench on the federal side. I moved over to the Harris County Public Defender’s Office from the Federal Public Defender's Office because I'd wanted to go back to appeals and they had a spot open. I'd spent more than ten years in the Federal Public Defender System. I was like, “I need to do something new.”
I moved over and had pretty success as a Federal Public Defender in the Fifth Circuit. I had shockingly limited success in the state courts in Texas. I was curious, “Why is this?” I did not become a worse lawyer when I moved across down soon. It’s like, “What's going on?” I looked into it. They're very stingy about granting oral arguments. Almost none of them had any criminal experience.
It's very hard when you are practicing and trying to argue in front of a bunch of civil lawyers, many of whom have been only big-firm lawyers, to explain how the criminal process works, what the error is here, why it is harmful and all other things. It's hard to connect. The way cases work seemed like criminal cases were deprioritized somewhat compared to civil cases. The civil bar is very active but probably the court was not hearing much from the criminal bar. They were off on their own doing their thing. They were not getting much feedback about how they were doing.
I had an argument, which was rare. I was excited. One of the judges contacted my boss after the argument. He was like, “It was recounted to me as who is that redheaded lawyer.” I don't know if he said that. He said, “She should run.” I was very skeptical about the concept of elected judges because I grew up in the federal system where you have a voice.
Reach out within your network and get to know somebody who's doing the thing you think you might like to do.
I don't know that the electorate is going to be that into a public defender either. It's somewhat better. It's judicial raises or low information raises. Probably few people knew I was a public defender when I ran. It was weirdly safe. I run with nine other people on the intermediate Courts of Appeals. Here in Houston, there are two. I'm sure most voters didn't know how to differentiate one of us from the other one. We all had different backgrounds. It was a safer space to be a public defender, trying to be a judge.
That is interesting because always the view there is like, “If you're a prosecutor, a district attorney or something like that, that is the way to go in terms of getting elected.” People recognize that and they feel comfortable with the whole law order thing. You need that for elections. As you said, “A low information,” it's very hard for people to get reliable information that helps them vote in a meaningful way. For judicial elections, it can be challenging.
Our bar association at least ranks people according to qualified or not qualified. At least you have a basis like, “If you think you like this candidate, you can double-check to make sure that the bar association thinks if they've got the chops to do the job.” Other than that, it's hard to get information. It's hard to be an informed voter and make the judicial selection.
I would love to see Texas adopt a system with the ABA style qualified or whatever their equivalent is. We don't have that here. The only information that voters can have is through somewhat of an imperfect lens, which is the paper's endorsements and different political organizations' endorsements. There also is a league of women voters where the candidates speak for themselves.
It's hard to get an objective sense when the candidates are talking about themselves. I don't think that's always better than their website. There are always some candidates who don't respond to the questionnaire. For those raises, the voter has nothing. It's suboptimal. I came around to elected judges in a way I never would've imagined I would but there are still some things we could do to improve the process for the voters.
Having grown up in the federal system, to begin with, seems foreign to me. The electing judges part seems foreign. In California, a lot of ours are by appointment as well at the state level. It's an unusual circumstance when we have elections. One thing I've heard about that is there's a wider array of backgrounds that's possible in terms of if you're going to election.
It could be a plus, a negative or a neutral with regard to the public defender background but one would be fairly certain that in a federally appointed circumstance given where things are in Texas, that would be a non-starter. At least there's an opportunity in an elected situation for there to be a wider range of backgrounds that people bring to the bench.
That's one thing that I've heard as being positive about the elections. You can see having different backgrounds, especially when you're on the appellate level and deciding things as a panel. What everybody brings to that discussion is helpful in terms of understanding and experiencing different types of law, even prior to being on the bench.
If anybody is reading this and they are licensed in Texas and got lots of experience in family law and probate law, I'm going to throw this out there. I'm the first and only public defender on my court. I would love to see even a few more colleagues with criminal defense backgrounds or prosecutor backgrounds on the court.
Some friends of mine and guests on the program have said that some of their skills in their practice arena translate very well to areas they never thought they would. For example, someone who was a federal prosecutor who did a lot of financial crimes and understood balance sheets and accounting is in the family law court in the state court and finds all of that very useful. There's a whole bunch of financial stuff that's going on. Financial experts and analysis are key to family law decisions. It is about money but it's hard. You wouldn't think of that like, “That background here would translate perfectly and be helpful in a family law setting.” Sometimes you never know.
That happened for me, for sure. I was doing a lot of white-collar securities fraud defense. It is a defense work where a plaintiff sues a company saying, “You defrauded me into buying or retaining my stock.” There is a lot of securities fraud in the federal criminal system. No one in my office wanted to do fraud at all. I was like, “Yes, please fraud. Give it to me.” There are those unexpected transitions that are easy.
What advice do you have for those who might like to become a judge and, along the way, would do it through an elected process?
It's great. Most of the judges that I work with are very open to mentoring and talking to people. Reach out within your network and get to know somebody who's doing the thing you might like to do. Almost all the judges I know are willing to meet with law students, young lawyers and mid-career lawyers. I talk to people all the time. If they mention even a passing interest, I'm like, “If you want to sit down and talk about that, I'm into it.”
Using that resource is probably the best way. Spend a lot of time in court, even if your practice is not a court-based practice, to get a feeling for the rhythms of court and how things work if that's something you would like. The biggest thing is not to count yourself out. You are your gatekeeper if you're not doing it right. It's important to give yourself permission if you need that to explore something that maybe at first you're like, “I could never do that.” Don't stop there. Interrogate that a little bit.
That's something I've heard from other guests like Judge Viola from the Arizona Superior Court. She says the same thing in terms of she wants to be available to people. She feels like part of her mission is to pay it forward to all the people that helped her, sat down with her, gave her advice and helped her figure out what her path was and whether the bench was for her. This is her opportunity to pay that forward to others and be available for that, which is very nice. I don't know that everyone has that same attitude but it's good for those of you who have that to help people out that way.
That's why I started teaching appellate litigation as a way to give back. I realized we had a diversity problem in federal court. I wanted people to see that this could be for them to have a contact. That's why I like interacting with students on social media. The fact that I exist spurs people on. It still confounds me that that could be the case but I've been told that. I'm going to assume it's true.
I enjoy teaching and having those interactions with students too. You can have such a foundational impact on their career in terms of helping them up their writing skills or advocacy skills. You can see them blossom over a pretty short period. Whatever they want to do after that, you're like, “I given them some tools to help them out.” They'll be able to move forward from there. It's very rewarding for that purpose as well.
You never regret becoming a better legal writer no matter what you do.
That's exactly what I say. Even for the new associates, I'm like, “Even if appellate is not for you, you will always use the skills from writing, critical thinking, analysis, research and oral argument. It's all translatable and useful.” The transition from students to advocates then. What tips do you have for advocates from being the mentor from your appellate advocacy in terms of brief writing and then going to an oral argument?
For brief writing, it's helpful if you can spare the luxury of time and other person's time to get some input on your briefs. If you're in a larger firm, that's built into it but if you're not, you’re in a criminal defense practice or a family law practice, which may be a solo practitioner or a small firm, where time is short. You don't have as many people in the building with you to make a special effort to have somebody else read your writing.
Even if I have somebody who's not a lawyer, I sometimes have college students interning. They can see things that you can't because you're in it too far. Having somebody else read is very helpful. I also like to outline my writing after the fact. I'm not good at outlining before. I tend to write and it organizes itself. If you can pull an outline from your writing after, you can tell whether you're on the path that you intended to be on.
I use the headings that way. I don't outline but I do all of the headings for the brief. That's my outline and I fill it in. If something needs to match my discussion and it doesn't match the heading, I've veered off where I was supposed to go or it turns out I need to change the heading because I’m arguing something else. You give and take between parts of the brief.
I used to always flip back and forth between writing the facts and the argument. It was this iterative process. It was not at all linear. When I tried to show somebody how I did it, they were like, “This is the most insane thing I've ever seen. What are you doing?” You have to find your process.
There's no one way to do it. That's why I ask that because there are different ways. It's how your mind works so whatever works for you.
I'm working on a paper about remedy. The recurring problem is that parties don't think on the civil side about the remedy and what it is they want the court to do and something the court can do. The remedy can be the organizing roadmap for your brief. In addition to those things, I would also suggest approaching things creatively.
A lot of briefs we get are linear. Nobody is approaching this in a newer creative way. Something that grabs my attention that I'm on this side of the bench is a different approach, whether that's inserting graphics, breaking up the text differently or taking a piece of the record and replicating it in the brief where it would help to see it immediately like as you're reading. Any creative approach is welcome because we read so much. It will get your brief favorable attention.
The biggest thing is not to count yourself out. You are your own gatekeeper if you're not doing it.
There's the discussion about whether you're reading it on an iPad, electronically or on paper because that presentation is a little bit different in terms of how it looks. The use of graphics in the design of the brief is something that wouldn't make it stand out when appropriate. It wouldn't be literal everywhere. It’s useful if you're copying everything into it. Sometimes it's perfect to see it, even to see a document, how it's interlineated or how something is put together from a grammar standpoint.
When we're interpreting what a trial court order means, sometimes it's helpful to see the trial court order so you can see if there was a handwritten interlineation there. What did the signature look like? Is that something that was processed electronically? It does help if you can visualize it. You don't have to hyperlink to something or dig through an appendix. It's a lot handier to be able to have it right there in the middle of the discussion for reference.
The question of remedy and disposition is an important one, whether you are asking for it specifically. You’re like, “You're right. What do you want me to do? What can I do?” Those are important things to answer. The organization you were talking about, I've done that before in some briefs where there are four issues. There's one that gets me judgment and you don't need to decide the rest. It's a strong issue. I want to put that issue upfront and say, “If I win, I get the judgment. The winner takes all. You don't need to decide anything else, court. Page twenty of the brief, you're done. Thanks so much.” That's a great way to organize it.
In Texas, we have to decide that issue first. If you're briefing here, putting it first is the order that we would address it. It increases the writer's credibility with the court for them to put it first.
You've made some meaningful assessments yourself of the strength of the arguments or an understanding also of what the court's responsibility is. You are conscious of that when you're writing the brief that you're having that dialogue through the brief itself. What about the oral argument?
Everybody you've talked to has said the same thing and at the risk of repeating that, answer the question. I don't know why it's such a struggle but I find that advocates frequently would come here with an agenda and want to talk about that agenda. Sometimes the court's agenda is a little bit different than the advocates.
Being able to attack quickly and answer the court's question, even if it seems it's a misplaced focus, is very helpful to the court in resolving questions. Sometimes, if you feel there's this issue that you don't get clarity on and you can't move on to another issue, it becomes even more important that the advocate object to it immediately not like, “I'll get to that, your honor. I'm so glad you asked this question. I’ll answer it.” That was short.
It feels like a pivotal threshold question that I need to figure out and I'd like your help. Do you have a different view on that from being an advocate and being on the bench? As advocates, we hear and know that. Sometimes we're better than other times at adhering to that. I'm wondering, do you feel differently about that answer that you're on the bench as opposed to when you were an advocate?
That was also the advice we got as advocates. It was consistent. Representing indigent criminal defendants on appeal in the Fifth Circuit is not a court that is interested in any deviation from what they would like to talk about. It wasn't possible even if I had wanted to. You're trained early on by the court like, “Answer the question.” They're not going to hold back in directing you where they need you to go. You will hamstring your whole argument if you don't do that. It's very consistent because of where I grew up in appellate practice.
Sometimes we know things and understand them but when we're there and in it, we're like, “We understand what that means, why that's helpful and how that's helpful. You should do that.”
It reinforces it. It's not idle advice.
I try to explain to my students to argue in the Ninth Circuit. I say, “If you had a burning question that you thought was important, you didn't get it answered and somebody goes on to talk about something else, are you listening to the thing that they're talking about? No, you're going, ‘I'm thinking about my question. What's my answer to the question.’” It's not helpful for you to talk about the other thing because no one's paying the attention that you want to it. They want to know this first. It's human nature.
Another tip I would give is people are usually pretty good about doing this. It is to reconceptualize your case into a format that's a conversation. Pretend you know nothing about your case and approach it afresh. What does the court need to know? You may not have talked about it in your brief but what is the impact of what you're asking the court to do? Is it not going to affect anything? Is it going to have catastrophic consequences? That's what the court is thinking about when they're trying to decide. How much relief do we grant? Is this the right disposition of this case? Would they think in a 30,000-foot view of what role this case has in jurisprudence more broadly?
You often hear that. That's our role as appellate advocates and judges to figure out there's the stream of the law, there's this case, the pebble is going to go somewhere in the stream, where does it make the most sense and why. Is it going to change the direction of the stream? Is that okay or is it going to keep it going the same way? That's our bailiwick.
You hear that much more at the Supreme Court level where there's clear policy making. In most cases, there is no law or we're not sure we're in conflict. The air correcting court's a little bit less but I do still think you're looking at a bigger picture, the law and these individual people in their case. You're also looking at it through this lens of the larger picture of the law.
That's also consistent with the advice I got when I was in practice, which is when you're in the Fifth Circuit and you're trying to get a good result for your client, to do that, you sometimes need to make your case also about why this is no big deal. You're not going to release hundreds of thousands of prisoners by deciding this case. This is very small and insignificant. It is this little corner of the law. This guideline provision doesn't come up often. It is okay.
I've taken that approach in some cases like, “It's nothing big here. It's all good. I’m very specific to this case. These are specific facts. When are you going to have these facts again? It’s probably never. It's okay to do the right thing for this client in this case. No damage overall.” It depends on who you've got, what the issues are and how you proceed with that.
In other cases, you're like, “It's a big deal. It's the whole thing.” We need to figure out where we're doing the law and maybe change it and the practical effects. The appellate courts are curious about that. What effect does it have on this business or cases? Whether it's intermediate or Supreme Court, it's precedent. It's going to have some impact.
I always think of it as, “Are we going to have some impact that isn't directly presented by this case that we're going to inadvertently do? Are we going to inadvertently allow for major car crashes or something that we didn't see coming because it wasn't directly addressed by the facts of this case?” We want to make sure we don't do that. If we do that, we're conscious of it when we do it.
As I've learned, that is an imperfect science because whatever you think you know, there will be a case later on that you did not anticipate. You have to go back to the drawing board and say, “We did say this in this case.” That doesn't mean that the same result will happen over here.
That's the whole iterative process of the different cases. You're like, “We said this. It seemed fair on those set of facts. I don't think it should apply the same in this setting.”
It's a little like Jenga. You've removed a critical piece and the whole analysis falls apart over. We can't do that.
You may not realize how critical that piece was when you were doing the initial decision. When you see something else, you're like, “It's a whole different thing that I see that's missing.” I have a different view of that. It doesn't seem correct anymore. You want to try to think of those things. You may not get them all but at least to the extent, we can think about it. Can the advocate help present it and explain that? That's part of our job.
The court, unlike the advocate, is a little bit limited in terms of how much they can say about cases or facts that are not before them. That's also a balancing act too. You don't want to give an advisory opinion about something that's not before you but you also want to signal that if it's correct to say so, this decision is limited.
What about amicus briefs in that regard? I don't know how many amicus briefs you get at the intermediate court of appeal, not many.
We don't get a lot. That isn't to say we get none but every once in a while, we'll get one and it'll land very hard. The place where it's the most helpful is where it's an area of the law that few people understand. There can be some practical implications that would not be clear, even if you read every case in the book about it. That can be an area where amicus briefs are very helpful for the court.
You don't want to give an advisory opinion about something that's not before you.
That's the sweet spot in terms of the practicalities. “Here's how the industry works or how this functions. If you pull this one thing out, it's going to change everything.” Probably it isn't to people's benefit to have it change and things like that. Those are practical things that you wouldn't know otherwise because you can't research them in the law. It isn't directly part of the case and the facts that you're dealing with.
What do you think about mentors and sponsors in terms of legal careers and the roles that they play? It sounds like you certainly got nudges or suggestions from people that you knew at different points saying, “You should consider this.” It is maybe a little bit different from what we think of traditionally in terms of mentors and sponsorships. I don't know if you have any thoughts on that and what that looks like. Do you need a mentor or sponsor? Are there other ways of having your ear to the ground and having people share opportunities with you that can have a similar effect to a mentor or sponsor?
You should take every advantage that you can get. I was lucky. I did not reach out to mentors. Students are maybe being trained better to reach out to people and have a more formal mentor experience. I was lucky because it's part of the fabric of the law to mentor others and I benefited. Aside from the judge who I clerked for, which is a more formal mentoring experience, all of my mentors were more informal and fortuitous. It's good.
I always wind up saying this extra to the women law students, “If someone is doing something that you are interested in and hear more about, you reach right out to them.” Send them an email and text. Reach out to them via social media, whatever it is. People are almost always willing to sit down with you and tell you more about what they do, what they like about it, what they don't like about and what they think is needed to succeed in that area.
I was not encouraged to do that when I was in law school and when I was a young lawyer. I try and make a special point, particularly to female law students. I do find that everyone who contacts me is a man. There's nothing wrong with that. Men are fine but I would like women to also feel free because I'm sure there are women law students who would like to talk about public defense, transitioning and making a huge career pivot 4 or 5 years into their career. Those are helpful stories for everybody, not just men.
I have a great story of a friend of mine who was on the show. She's on our Board of Supervisors here in Orange County but she moved from out of the state. She didn't know anybody. She sent snail mail letters to a few women lawyers who looked like they were doing interesting things on behalf of women and girls. I don't know how many of those she sent, maybe a dozen.
I responded and one other woman lawyer responded. The other woman lawyer gave her a job. She and I became friends and have worked together on cases and things like that since then. It took courage to do that. You recognize that and say, “You don't want to reward someone for having done that. I ignore them.” You never know what will happen from doing that. I give her so much. That was pretty brave to do.
I admire people who do that. I run the intern program here at the court and give that admonition every session. If there's someone on the court who used to practice in an area that you find interesting, please reach out to them. Sometimes it turns into a formal mentorship or sometimes it's a little one-off meeting.
You print out in the category you never know, although you can have some reticence in that because you're like, “I don't want to bother them.” It’s a sense of respect, politeness or whatever it is that you're like, “No, it's okay. I'm not going to ask.” We do sometimes have a little bit of that we have to get over.
You think you have to be a perfect law student with a 4.0, on the track to a clerkship and working in a big firm. You need to have all these boxes checked before you can ask a question.
There are a lot of very important aspects of character. It resonates with people in terms of whether they want to talk to you or not. If you have a similar interest, a great work ethic or something like that, that resonates with people too. I like that you notice that. You're like, “You don't have to be perfect because no one is perfect.” You don't have to be perfect to go or what you think is perfect.
If you think about it, most of the time, the potential mentor isn't looking at your resume. You've sent them a note or given them a call. I don't do a background check on people before I talk to them. That would be a little creepy.
I do think that can be ingrained into law school.
It's very hierarchical. It's grades and journal-focused. There's this perhaps unintentional message that gets sent, which is these people are worthy and valid. If you're not these people, you are not worthy or valid. Nothing could be further from the truth, honestly. Sometimes the people whose grades are not that great wind up being the best lawyers. Sometimes, people who go to the best law school and get amazing grades are terrible lawyers. There isn't enough of a correlation for me to put any stock in that at all.
People aren't doing that. They seem an approachable, courageous and interesting students that I'd like to talk to but I agree with you. In most cases, more men come out and do that at retail. I have a fair amount of women like my friend Katrina but that's because I do a lot of work in that area that resonates with people. They feel we have some connection that feels good to them to reach out.
With the work that you're doing, you are putting yourself into the mentoring space. It gets rid of that, “I'm bothering her. She doesn't want to talk to me.” It does help that you're there already.
What do you think about being on the bench? Is it what you expected? Is there something different to it that you enjoy or didn't think you would enjoy?
It has wound up being a dream job. This is what I was meant to do. I love legal research and writing. I get to do it all day long. I'm happy as a clam. I did not appreciate what a fire hose, the intermediate court of appeals, is. We have many cases and in a little bit still of a quiet time because of the pandemic and the limitations on trials. It's still like insanely busy.
I've decided it's like Hermione's purse. The work expands to take up any time that you a lot. I also was surprised at how much it is like a public relations enterprise in that. It isn't enough that your ideas are persuasive on paper. You need to have good relationships with your colleagues to get things done, legally speaking. You have to have credibility with them and they have to trust you because even if your ideas are persuasive, the laws lead you into some strange corners, even if they're correct. It helps to have a good cohesive working relationship with the judges with whom you serve so you can get things done together.
Even more on the appellate court where you have panels, no person can get anything done.
You can grant some briefing extensions.
You need at least to have a pair to get things done in that regard. I don't think people paid enough attention to that. Thinking about that is a huge difference between a trial court and an appellate court. You don't get to choose those colleagues. It's not like you can hire the folks who work with you. You're all separately elected or appointed.
You can encourage people to run. In that way, you can select your colleagues to some extent but there are going to be people who are different from you. They don't come from where you come from. You have to be a keen observer of your colleagues in terms of what's important to them, what makes them tick and what issues they have an interest in and don't have an interest in. There's a sales pitch aspect of it. You learn the judicial philosophy of your colleagues and there are some sales to be done too.
That's something that, as an advocate, you think about but don't think about it in the same way. That's an important part of what you're doing because you're circulating draft opinions. You're having the conferences, figuring out the reasoning and all of that that everybody can agree on. There's a lot to that.
Even setting your docket. If I'm going to have this panel, I'm going to set these cases and you're deciding who is going to hear the case to some extent. If I have something that involves school law, if I can, I'll wait until my colleague who has experience with that is going to be on a panel with me because I would like the benefit of his advice and years of experience.
I do explain what I called the black box. You'd argue a case and be like, “That went well. I feel like I answered those questions.” There was a lot of nodding and writing things down. All the signs are good and you get this opinion that bears zero resemblance to the oral argument that you had. “I get it better what that is.” It’s because you meet, confer and talk about your concerns. The opinion gets shaped a lot by that process. That does explain it a little more.
Students now are being trained better to reach out to people and have a more formal mentor.
That’s part that the advocates are not seeing and don't know about. That's why it's important to have an oral argument when you can. That is your last opportunity to be in the room with the justices, answer their questions and see the back and forth to discern where people are at, who might be trying to persuade who, who has which concerns and be able to respond to those. That's the only time we get to see it.
I've never understood people who wouldn't be given a chance to present an oral argument. In a fatalistic way, you’re saying, “The oral argument doesn't make a difference.” It may not change an outcome. The briefing is important but the reasoning can be impacted and on occasion, the outcome can be impacted too because you've presented the argument differently.
You're like, “Here's another way of looking at the issues that we've presented and another ramification of those.” We're all people. Different kinds of analysis resonate with different people. You sometimes see and you're like, “That wasn't described that way in the brief. Now that you say it that way, I could see that concern.” It starts a whole different way of thinking about the issues.
I don't understand that either. Why wouldn't you want to take every advocacy opportunity that you have? In our court, if you are denied in oral argument, you can file a motion to have the case decided with oral argument. If you feel your case would benefit from an airing of the issues and articulate why that is, you should file one of those motions. I don't know why we don't see them. I haven't seen one since I've been here.
In our state courts, if one party wants an argument, you get an argument. That's how it happens. It's the Ninth Circuit's decision about whether you get an argument and how long you get. It’s different depending on the courts. If you had an option to challenge that and say, “We think we would be helpful,” I don't see why somebody wouldn't do that, especially if you think it's important in a particular case.
Sometimes we don't see reply briefs in cases and that one, I truly don't understand. Mostly yes, reply briefs but it's enough cases where no reply briefs are worth mentioning.
I would think that's maybe a cost issue for some people but still, if I'm going to start preparing a case, I start with the reply brief because I want to see where there's an agreement, disagreement or the cracks of the issues. You don't have that. It's technically optional. I'm like, “Why did it make it easier?” The court has to do even more of that that you didn't do for them in the reply brief.
You may not like how they do it.
As the advocate, you're like, “Every opportunity I can, I want to do it and present it to my client's case to the best possible.” Thank you so much for participating in the show and doing this interview. I appreciate it. I wanted to ask a few lightning-round questions to close up. What talent don't you have but you wish you did?
I would like to be able to do handstands like in yoga. I don't know why but it's something I struggle with.
Even up against a wall, you don't try that?
I have tried it. Sometimes it'll work but mostly, no.
I'm asking because I've struggled too. That part helped me. I understand that struggle and that helped.
There's this bench you can get where you're more supported when you do it. I can do it in there but I want without a wall, get up there and stay.
What trait do you most deplore in yourself and what trait do you most deplore in others?
This is not an uncommon trait in appellate attorneys. I tend to wander off. If I tell a story, I get excited about the various pieces of it. I’ll go off here and there.” I try not to do that but I get over-excited. I don't love that trait in others. Deplore is a little bit strong but I want to know the answer to the question in all oral arguments. I want to know what happens. My husband and I both do this. We bring out the worst in each other because we are circuitous storytellers.
Whatever you do, it's common. That’s something that might annoy you and you're like, “I do that too.” My dad has some traits where I'm like, “I can't believe that.” My mom will say, “You're the same way. Why does that bother you?” I'm the same way. Probably that's why. Who are your favorite writers?
I used to love to read and my phone has ruined me. I am excited to read. I have Keri Blakinger’s book, Corrections in Ink. I read three pages of it and had to forcibly put it down because I'm like, “I'm going to be up all night reading this. This is engrossing.” I used to also like William Styron. Did you ever read the book Lie Down in Darkness? I thought his writing was lyrical and beautiful.
I'll have to read that one. I love good writing. All genres are welcome and sometimes unique phrasing or lyricism to the writing. It's a pleasure to read it.
I do think that great fiction writing helps with my nonfiction legal writing.
I don't think we think about that in that way, as clearly as we should, that it does. We're telling a story for a reason or persuasion. All of those skills of storytelling apply and make legal briefing and legal opinions better in employing them in this context.
I learned this word from reading this book, article or something. I used to keep a list of words.
Sometimes it is exactly 100% the right word. No other word would be the exact word. You're like, “I know this word. This is perfect for this.” Judge Fernandez, who I click for on the Ninth Circuit, is known for that. He has these very arcane words that he includes in his opinions. When you go and look them up, you're like, “That is the only word that is 100% appropriate in that setting.” He's well-read. He knows all these words. He was like, “That's the one we're going to use.” You got to have a dictionary to read Judge Fernandez’s set of opinions but he's always spot on about which word is the right one.
They must be a treat to read.
The court clerk had a humongous dictionary in the back. When we got the judge’s opinion, we were like, “What was that word?” We weren't quite as well-read as he was in that regard. Who was your hero in real life?
I hesitate on the word hero but I try and learn something amazing from everybody that I encounter. My parents. They're your first role models. I learned much from them. Judge Gilmore was who I clerked for. I've benefited much from the people I've gotten to interact with. I had an appellate chief when I was at the Federal Public Defender's Office. He could write up a storm. He was the most compassionate person. He was in the federal public defender space for so long. It's hard to maintain his creativity, optimism and love for the law. It'd be like some combination of all of them.
It's part of the fabric of the law to mentor others.
For what in your life do you feel most grateful?
I feel like the luckiest person ever. That also is a hard question. In some ways, I feel grateful for the State of Texas. I came here fortuitously, somewhat randomly and never left. The State of Texas has been good to me. I've met the most amazing people. I have the career of my dreams. I get to work with fantastic people on this court and the court next door. It's an amazing place. Texas is open and welcoming in a way that the Midwest, which is where I grew up, is not. I love you, Michigan but you're not an open people. I'm grateful to the State of Texas for taking me in. I wasn't born here but I got here as soon as I could.
Given the choice of anyone in the world, who would you invite to a dinner party?
I love art. I would probably pick people from that world. If I could pick people who are no longer with us, it’s Josephine Baker and Frida Kahlo. I would fill the table with interesting art figures probably because a lot of my friends are artists and I relate to them a lot. That would probably be my ideal dinner party. I'm also imagining, “What would I cook for them?”
Last question, what is your motto, if you have one?
I have a couple. In terms of the law, I always used to say this to my students. I don't know if you watched the Ruth Bader Ginsburg confirmation hearing many times the way I did. Most people have not but there's a point at which she said this. I had to go back and watch it because I couldn't believe these words came out of her mouth but she said, “Get it right and keep it tight.” That works in terms of writing and approaching the law both as an advocate and judge. In terms of life philosophy, “Be as kind as you can.”
At least a few of the guests have mentioned that. It doesn't cost anything to be kind. Sometimes you can make someone's day. It's all good. You don't know what people are going through. You don't know how welcome that kindness might be on a particular day.
In some cases, you can save somebody's life.
It was so kind of you to join the show and do this. I appreciate it. The readers will also get some great insights. You are quite genuine, approachable and authentic. I appreciate you being here.
This has been so much fun. Thank you for inviting me.