Episode 55: Rhonda K. Wood
Associate Justice on the Arkansas Supreme Court and co-host of the Lady Justice podcast
01:02:01
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Show Notes
M.C. Sungaila sits down with Justice Rhonda K. Wood, an Associate Justice on the Arkansas Supreme Court and co-host of the Lady Justice podcast, to hear her path to the bench in a state where judges are elected, and her legal career in the then-nascent specialty of privacy law in the medical context (HIPPA). She also provides some solid tips on appellate advocacy. For example, Justice Wood suggests that lawyers ask for exactly what kind of relief they want, and provide an alternative outcome in the event the Court cannot reach consensus to grant the primary form of relief you request.
Relevant episode links:
Justice Rhonda Wood, Lady Justice, Boys & Girls Club, United Way, Commission on Children, Youth and Families
About Rhonda K. Wood:
Rhonda K. Wood
Justice Rhonda K. Wood is in her sixteenth year on the judicial bench. She served six years on the trial bench, two years on the Court of Appeals, and is in her eight year as an Associate Justice on the Arkansas Supreme Court.
Justice Wood serves on many legal organizations. She is Certified Faculty for the National Center for State Courts, a Henry Toll Fellow, and serves on the ABA Appellate Judge Education Institute’s Education Committee. Justice Wood is Chair of the Supreme Court Commission on Children, Youth, and Families, a member of the Arkansas Judicial Council [Chair, Supreme Court Liaison Committee, Chair, Education Committee, Arkansas Bar Association [ former Co-chair Health Law Committee, Legislative Liaison for Health Law, 6-year delegate to the Arkansas Bar Association]. She has served her community in many ways including being a founding board member of the Conway Inter-Faith Clinic- a free medical and dental clinic in Conway.
Justice Wood earned her B.A. with distinction in politics, magna cum laude, from Hendrix College, and her J.D. from the University of Arkansas at Little Rock Bowen School of Law with highest honors. She was the 1st recipient of the Dean’s Distinguished Certificate of Service. She also received the highest score on the Arkansas bar examination. Prior to becoming a judge, Wood practiced law with the Wood Law Firm and Williams and Anderson, PLLC. She was an Assistant Dean, Bowen School of Law.
Transcript
I’m very pleased to have on the show Justice Rhonda Wood from the Arkansas Supreme Court, who has her own show with a number of her colleagues on different State Supreme Courts around the country who have also guested on the show called Lady Justice. Welcome, Justice Wood.
Thank you so much. I appreciate you having me and getting the opportunity to share with, hopefully,all the women out there that are interested in going after their dreams.
The first step in doing that is, does your dream include law? What might be some reasons why you might want to go into the law? I want to ask you first. How did you decide to go to law school and become a lawyer?
I was one of those that always wanted to go to law school and always knew. I grew up. I had an older brother that was on the debate team. He was five years older. I went on the debate team in high school. We would have a subject and we would research it and we have paired. It was like going to court and you would argue. You never knew which side you would be on and you would argue both sides of the issue. To me, it was no question that I love the preparation of the argument, the research of the facts, getting up there and presenting the argument. There was no other option for me.
Did you know anyone in your family or anyone growing up who was a lawyer? Did you just like the analytical process and the debate?
I did not know anyone. I joked that I did not meet a lawyer until I started law school. I knew no one. I had no connections. It was completely foreign as far as that goes other than what I saw on TV, which we all know is what you see on TV is not what the legal practice is like.
It may not translate fully to the real world. One of my favorite ones, as an appellate lawyer on Law & Order, they have a trial court ruling. They are immediately arguing the appeal and getting a decision almost the next day sitting outside.
You got a trial and everything happens in two weeks.
The process is a little more deliberate than that especially at the appellate level. I was like, “You got to fit it in your hour program.” It is a little different. When you graduated from law school or when you were in law school, did you have a particular idea of what law you wanted to practice? It sounds like you were interested in being a litigator from your debate background.
I was but I found that hard to do and balance family life. I ended up being interested in Health Law. My husband was a physician on the regulatory side. That is why I switched. I thought I would do straight litigation. When I was in law school, HIPAA laws came out and all the regulations hit in the ’90s. That area of Health Law exploded and blew up. I ended up primarily going into that area because it was brand new and nobody was doing it. I remember when some of the initial regs came down, they were 20,000 pages.
Be confident in your ability. When you know you want a position, present yourself.
If you remember, it fundamentally changed all of a sudden that physician offices had to be reconstructed. There had to be a separate checkout and everything about it. You signed all those releases, HIPAA forms and noticed all those forms had to be drafted so it allowed me to do a transactional side. Every employment contract was different. There were Stark regulations now. It was like employment, business and transactional side.
There was a lot of litigation involving it as well so I got to do some litigation. It was this new area. I was day one graduating law school and got to go in and create this unique practice that nobody was doing. I started as a sole practitioner. I opened my own. Nobody has the expertise. No one could say that they had been doing it for twenty years because nobody had been doing it for twenty years.
That is a good point to emphasize, especially for newer lawyers who are trying to select an area. There, you have a cross-section of, “I understand this industry side or business side from my husband on how that works,” and then there is this brand new area whereas you pointed out smartly, “It is wide open because it is brand new.” Everyone is trying to drink from a fire hose, trying to figure out what all this new law means. There isn’t someone who can say they have this very long experience who should be hired instead of me. It leveled the playing field. If you start working on it early in the vanguard then you will be that expert that people want to hire.
I go in now, even in big hospitals in Arkansas and 22 years later, there will be the HIPAA notices for me to sign as a patient. I will look at it and be like, “I drafted that twenty years ago.” That was when the first form was out and they probably changed. It is the same form but that’s different forms. It is hard to imagine that those forms did not exist. No one knew. It was like, “Who’s going to read 20,000 pages of regulations and figure out what needs to go in the notice?” I was like, “I will do that.”
That is brilliant. There are great business savvy and identifying opportunities in that anecdote.
There are always those opportunities that are coming. There are always new regulations or changes. Be the first and not be afraid to say, “I’m just as capable as anyone else to become an expert in this area.”
That is another good point. I do this sometimes. I have to shake myself out of it, which I want to make sure I check all the boxes and be 100% qualified for whatever this is before I go for it. I see so many of my colleagues, largely men, who do not do any of that. They are like, “I got one of those. It is good. I will try it.” There is a certain element you have to say, “I’m going to go for it. I’m just going to do it. I do not have to be 100%.” There is a freeing aspect to a whole new area like that. You are like, “No one’s 100% so I will become that.”
If you exude confidence then people have faith in that. Everybody has the same bar license. I passed the bar and had the same license they do. As females, we know we are going to put in more work than everybody else. It is by knowing your ability, you were going to do it, succeed and you would not let your clients down. If you exude that to your clients, they are going to trust you and hire you.
In there too, you were able to bring a little bit of what the clients in that setting need, the doctors in the offices from an industry business practical perspective that could bring to that from understanding your husband’s practice, which is also valuable. That marriage of understanding the client’s particular needs together with your expertise is a great combination.
We hear a lot about appellate lawyers becoming a specialist. It is figuring out exactly what your client needs. This may be off-topic where you are wanting to go. Doctors are really busy. They do not have time to go sit in a law firm and talk. I knew but they want us, lawyers, to come to their office and go after hours like 6:00 when we are done in the same clinic. The first lawyer that says, “I’m willing to do that,” is who they are going to hire. There are lots of industries that are like that. You go to the client, not the client who come to you. A lot of larger firms have that expectation that the client’s next appointment comes to you. It was a flipped model. It was like, “I will come whenever you come.”
The client adjusts to you instead of you adjusting to the client. That one small thing is an important aspect. You are showing in that particular way, “Here is how I’m going to be with you as a client, which means I’m going to think about your needs and make sure that I do what I can to accommodate those and understand how you operate and what works better for you.”
It is a small thing but an offering that makes you stand out and shows that you understand the demands of their own business. I do not think it is off-topic. This is helpful. It is good advice on how to work with clients and develop your practice. That is always valuable in a real-time way. You created a niche practice in a newly developing area. What caused you to say, “The next thing I’m going to do is I’m going to be a judge?”
I took a step in between because nobody was doing it. I started teaching adjunct Health Law at the law school because they needed someone to teach this regulatory area. It was odd because I was two years out of law school and then I was teaching it because I would become an expert in it in Arkansas. I started teaching and I ended up loving teaching. I ended up selling my practice for a good amount of money to a large law firm. After that, I ended up going full-time in teaching and became an assistant dean. I taught Health Law and loved it.
I never thought about being a judge. In Arkansas, if you are elected, the only opportunity is if a judge retires before their term, there is a temporary appointment but you can’t run for that seat if you are appointed in Arkansas. There was a judge that had gotten ill and stepped down in my home community. The governor asked me if I would take that appointment.
I had worked with the governor and some other people on healthcare initiatives. They said, “You would be a great fit.” I said, “Okay.” I thought it would be a two-year opportunity so I took it. I was the only female out of five judges in my district. It turned out I loved it but then the choice came. I think this good women’s issue is there were four males and me. I had to decide.
I couldn’t run for my own seat so it became running against one of my colleagues or not. I felt confident in my ability and knew I wanted to do this so I presented it and said, “I’m going to run for one of the positions. Either you can run for your own position or one of you can run for my position. I would rather not run against one of you but one of you would probably not want to run against me. I have got to switch.”
It is like a domino effect along the rest.
They were astounded by that initially. They thought it was gutsy. It all worked out and I ended up not running against my colleagues.
That makes things much easier like conference sessions and things afterward.
People will support and believe in you more when they know where your heart is.
I served six years on the trial court, ran for the Intermediate Court of Appeals and then ultimately the Supreme Court.
I knew that judges were elected in your state and also about that interim appointment. Running is so different from appointments and you had the experience of both. Are there certain things people should be aware of, particularly if you are going to put your name on the ballot, as opposed to in the hat for an appointment? Are there things to be aware of that people might not think about before you decide to take this on? What are some things to consider?
Arkansas is unique. The appointment process is not a commission or anything like that when the governor makes this temporary appointment. I’m more of a proponent for state elections judges being elected. There was no transparency in the appointment process. I would like to think he picked you out as the most qualified. There is no way to know. No one saw the slate. No one knew who the other candidates were or how and why he selected me. That lack of transparency makes me very uncomfortable.
In the election process, they see everything, good, bad and ugly. The voters see it all and the voters choose. I have run and contested on elections and unopposed but the voters see everything. I’m in favor of that. The big thing I tell people is if you are running for election or you are going to run, you are asking to be on the public payroll, you are asking the public to pay your salary and you are asking to be a public servant. I find it bold to ask the public to do that if you have not shown that commitment to public service prior to that point.
If you have not been out there serving your community and nonprofits, volunteering, boots on the ground when there is an emergency in your community, helping and saying, “I am a public servant. I’m here to help you,” then I struggle with people then suddenly showing up to say, “I’m going to run,” and they have never served their community. That is a lot to ask out of the public.
That is a good way of framing that. I have thought of it always in terms of whether it is appointment or election. It seems odd if you have suddenly had this out of nowhere with no track record, get interested in serving. You are like, “Where were you when there were all these other needs? It doesn’t seem to be a longstanding interest of yours. You are just now interested when there is a particular position.”
There is a saying out there that said, “When you do something for someone, do not expect something in return.” When you have been out there helping the Boys & Girls Club, United Way or those entities is when you weren’t asking something in return but suddenly filed for office and then you are showing up at all the non-paid events, now you are wanting something in return.
I always say, “If you think you are going to run down the road, make sure you put that time in before you are a candidate before or doing any of that, that you have proven to your community and you really want to serve them.” That is important. Lots of people get elected without that but that gives you value and integrity. People are going to support and believe in you more when they know where your heart is.
That is a longstanding effort on your part to serve in whatever ways are available to you at any point in time. Some people, at least on the appointment level, talk about becoming involved in bar associations and things like that. That is one way to serve the profession and the community to the extent the bar associations are also doing that. There are a number of different ways to serve whether that is serving on nonprofit boards or other charitable endeavors in the community. It doesn’t have to be directly legal. There are lots of different ways to find ways to serve.
I served as a delegate to our bar association and did that as well. Lawyers do not elect judges that the public does. You can’t forget that. I tend to think that the public is going to stand on the side of the road and hold a yard sign or go door-to-door more than lawyers.
In California, it is largely an appointment process but there are some opportunities for election at the trial level anyway. There is always that tension or challenge when people are being elected in terms of how people find out. If you are not a lawyer, how do you find out about someone’s background? That is the door-to-door part that you talked about in terms of meeting people and getting out there.
Bar associations will do ratings of judges who are up for election to say, “We have looked at this and here are our thoughts that people can weigh in on.” To me, one of the challenges is how you translate and get that information out and be transparent with voters who aren’t lawyers and often will turn the ballot over to their lawyer friend or family member and say, “Do you know anything about these people?” We do not. I do not know if you have any good ideas about how to make sure that you get that direct connection or that people feel like they are knowledgeably voting if they are not a lawyer.
Arkansas is quite a different state than California. To me, I did find that community organizations would support those people that they knew had supported their community organizations in the past. They spread the word and helped inform it on the trial court bench. Even in the Court of Appeals race, I had eighteen counties, which was a large area. It was about 1/3 of Arkansas.
We went door-to-door. We picked the big cities and big neighborhoods but we spread out. A lot of word of mouth is people talk to their neighbors into their church to say, “I did not even know we had a Court of Appeals. This Court of Appeals judge from Northern Arkansas knocking on my door, telling me who she was with her kids.” That impressed them and they told their neighbors, friends, people at church or whatever. We had to do the work and show up at county fairs here and that thing. You have to put the work in.
That is a broad combination of skills that you need to become a judge and in the election process to go out. If you are introverted, that can be very challenging to go door-to-door and meet people. That is not your favorite comfort zone.
For anyone reading that is that person, I always score as a complete introvert. That may surprise you. Every time I test, I’m an introvert but I have learned I’m a very functional introvert that has learned to function in an extrovert room. I have to fill myself up and focus. For us introverts, we do that and then have to come back to our cocoon and re-energize in the safety net of our privacy for a day or two.
That is exactly how I function too. I love being out, meeting people and doing all that but to re-energize, I need to go home, read a book and do something in my quiet space for a while afterward.
The other thing about running for office is you can’t be self-absorbed, worried about being perfect and be able to go with it. I’m a little OCD sometimes and I have to let that go. You can’t worry about what you look like in a picture or if your clothes are perfect. One story I tell is I had to get up and drive three and a half hours North for Rotary Club Breakfast. I had to leave my house at 3:30 in the morning. I was trying not to wake up my husband. I thought I would grab the clothes like the suit and the suit pants.
You’ll often be amazed that people will offer something greater than what you would have asked for.
As the sunlight was lifting, as I was getting closer to the morning breakfast, I looked down and it was a terrible clash. It was this pattern design with burgundy dots on my pants. I had this different striped blazer going on. There were no stores open that early. I just had to go with it. That is where it is like, “I’m going to sell this with confidence. These people are going to think that is how people are dressing at Little Rock, Arkansas now.”
She goes in there with confidence and acts like this is the style. They are going to think that is what the style in Little Rock is now. I got out of my car and realized I looked very foolish and had horrible fashion sense but it was like, “I’m just going to sell it,” so I did. I looked awful but nobody knew that I knew I looked awful.
It is your attitude about it. You are like, “I’m going to go for it,” even if you are horrified when you first see it.
It is like I wanted to die but nobody knew that.
You could set a whole new trend like, “You know what they are doing down there? They are wearing these things together.”
I hope they did not buy those clothes.
I have had, unfortunately, similar experiences getting dressed in the dark before you have to go somewhere or putting things aside, shoes that are not quite the same and not matching and you just got to go, “That is it. Go for it.” You have been at many levels of the judicial system. They are also different. How do you think your time on the trial bench informs your Supreme Court work and appellate work?
Without a doubt, it has made me a better appellate judge has been on the trial court. Even having served on the Intermediate helped me when we reviewed cases. I always say I could be a better trial judge now having known what I did. I know there are some Supreme Courts that can allow trial judges to rotate into their Supreme Court for temporary vacancies. I wish Arkansas allowed that because it can make for better trial judges. It gave me a tremendous experience.
I understand the trial judge way better. My personality is better suited for the appellate court because that introvert of all judges, you are around people all the time. I’m much more on reading, writing and research. I love that on the appellate court. Our job is to review the trial court and having been there makes it easier.
I have heard that. That is why if you had that perception, it is your experience as well.
Not to detract from the judges that haven’t but there is a value in having an appellate bench that is mixed with different backgrounds. Having some of that background helps.
I can think of that in California in our Supreme Court. We have a mixture now. It was almost exclusively people who had been on the trial bench or Court of Appeal and then Supreme Court. Now we have some appointments that were straight from law teaching to the court. There is a value in having all those different perspectives and being able to look at it differently.
I was talking with Justice Groban, who was in civil litigation and involved in judicial appointments as well prior to joining the Supreme Court. He said, “I look at things from a pragmatic way, not only from a practitioner perspective in terms of what was going on too.” All of your experiences round together and help you see different things in the cases that you are reviewing.
Your point about being able to rotate through would be great, especially the trial judge level would be very interesting. Here, we have some trial judges that can sit in the Court of Appeal if there are vacancies and we have a need there. Also, on the Supreme Court, we have different Court of Appeal justices if there is a vacancy that rotates through. They have all said, “That was so valuable,” having that period of time where they could see, “This is what’s happening with my opinions. When I come back, I look at them differently. I make sure that there are certain things that I have clearly laid out.” It makes the review easier.
I wish there were more of that ability to rotate through and have that in Arkansas. You could learn from having those.
I wish I had that then kind of thing. I see all this and I wish I had that. I’m assuming that along your journey in your career, you have had a number of mentors, sponsors or people have come in and help you or give you some good advice at a key juncture. Can you talk about that a little bit of what that looks like in terms of having a mentor and the ways they have helped?
I did not have a great mentor in the law. That was because there weren’t that many. I was in law school when there was the first female justice elected to the Arkansas Supreme Court. I did not have that relationship. When I clerked all through law school, I did not have any female attorneys that were in that position. When I was at the law school as a student and as teaching, I did have tremendous female faculty members and even another assistant dean with me that were tremendous mentors in life and career.
They encouraged me to never settle and gave me some great advice on a lot of things. One advice that a dear mentor gave me was that never ask for someone. She told me this when I was running for election, even if I needed something like raising money for the law school back then or asking someone in any position of power. She said, “Do not go in and ask them for something specific. Tell them your predicament and say, ‘What can you do to help?’ A lot of times, you’ll be amazed that they will offer something greater than what you would have asked for.”
She said, “Do not sell yourself short.” A lot of times, as women, we lower expectations and say, “I have this great thing I’m doing.” We make a small ask and they will easily say, “We’ll do that. We’ll help you with this podcast. We’ll help you do X.” It could be if you say, “I’m starting this podcast. Here is what I’m doing. How would you like to help me with this?” They would come back and offer you something that you did not even know they had the capability of doing.
She always told me, “Do not sell short. Do not make a small ask. Ask them what they can do to help and you will be shocked.” That has been true so many times in my life that I have thought about going in and asking for something and instead, I have said, “Here is the situation. What can you do?” Whether it is the courts needed something that I’m trying to help with or anything, I have been shocked and amazed that it has come back beyond my expectations.
There is something else in that, which is you are allowing the person to give in the way they want to give. They also may know more about what and how they can give even in their industry or company that you do not even know or think about.
Don’t just focus on the error; focus on the remedy.
That has been one crucial piece of advice that she gave me that, time and time again, it is always rung true. I have never had them come back with something lower than what I would have wished or hoped for. That is the thing. You are going to go and need to build a ramp for the elderly. You go in this company and you want to know, “Can I have some wood?” Sometimes you are shocked and they are like, “We’ll do this. We’ll send a team out.” You are like, “Okay.”
That allows people to think outside the box in terms of how they can help with other connections, like who they can connect you to, we can promote this or raise awareness about this in this way, which they know perhaps is the best way to do it or the best connection to get that out. You may not know that so you do not know to ask about it.
People generally want to help. We just have to ask.
That is great advice. Thanks for passing that on. That is helpful for a lot of people. To think and be open about that, there is a good combination. I know specifically what I need but leaving it open to other things. You are right about being conservative in the ask. We often are that. It leaves it open as a nice in-between.
It might be too uncomfortable to say, “Here is my ask,” when I’m asked for something specific and much bigger but you are leaving it open to something different. I love that in so many ways. That is such great advice. I’m going to put that into practice. I will let you know what happens from that if I get something unexpectedly good and more than I could have even thought of.
Sometimes we had it where I wanted something and they are like, “We can help with this but what other projects could we do it on a continuing basis?” I’m like, “Of course.”
That is one of the things too. I talked with Judge McCormack about this, which was there are so many other aspects. You are deciding cases. That is your job. Also, on the State Supreme Court level, there are so many other roles that the court has and that you might have, particularly as the Chief Justice and Supreme Court Justice as well in terms of stakeholders. In the entire court system, often, the Supreme Court has an administrative role or some kind of role in setting that up. Is there anything in that regard that you have worked on like Judge McCormack?
All of us have our own. The major thing that I have done and worked on is in 2014. I came on and became chair. We have a Commission on Children, Youth and Families. We came on. We received a big grant, a couple of million dollars. That has been my pet project. We reformed juvenile justice statewide in Arkansas massively. It has been an overhaul. All the stakeholders have bought in. The juvenile judges have been the primary buy-ins. The main thing that we have done is that we were sentencing juveniles like adults based on the crime. We have a validated assessment, every juvenile has. That determines whether they even get charges filed.
We were looking at the numbers and we have cut in half the number of delinquency petitions on non-violent offenses in the state for the last years running. We have cut the number of juveniles incarcerated by almost 40% for a couple of years, running all based on that. We are using a validated assessment tool instead of our gut instinct and saying, “You look like a thug. I’m going to lock you up.”
We have rolled out tools. It is taken commitment by the judges and the officers because it is taken a tremendous amount of time. They have to stop on the front end and go through this assessment tool with the juveniles and their families. Once you call it juvenile delinquent, they have that label and they may start acting even more like one. From the get-go, let’s make sure whether they need to come to juvenile court and what services they need. We have done a complete overhaul.
The governor has helped fund us. The legislature has passed legislation. That has been the big thing that we have been doing. We’re doing another one this session. Every session, we move the ball forward. You had mentioned before what you are most proud of. That is something that will impact families for generations. It has already been for several years. That has been my 100% focus off the bench.
That is something that I do not think that people think of when they are thinking about applying to become a judge of that impact that you can have system-wide. It is important for people to know that that is a role, especially the State Supreme Court’s play and other judges in the system too in California. We have a lot of different commissions on access to justice and a number of different areas, our jury instruction committee, a range of those things where judges and practitioners from around the state are appointed to you and can have some say. They can make a big difference.
We can bring people to the table and start the conversations. We have the ability to go out and get national grants to our administrative offices. I had a juvenile component when I was on the trial bench. I did juvenile, civil and criminal. I had that passion and knew there needed to have changes. When I was able to get to the court, that was immediately my goal.
I was to be able to use that platform that I now had to, “Let’s get to work, roll up our sleeves and get things done.” It has taken everybody. Everybody has gotten on board. The statistics prove that these are real lives that we have changed and juveniles that aren’t incarcerated. That impacts their whole family and the next generation.
The convening power that judges have is an important thing because bringing people to the table to have that discussion may not be possible if you did not have that platform to invite people to do that, not a particular outcome, just to have the discussion. That is a powerful aspect of the judicial role to use it as a force for good to bring people together.
That is important. It is the impact of you being on the trial bench and seeing the impact on individuals and saying, “There is something we might want to do about this process.” In California, around the country, there are collaborative courts and courts where you are looking at the people involved in a much more holistic way from prosecutor, defender, the probation office, mental health and a whole range of things to make sure that people can move forward in their lives. When you see that it is successful with people, the ripple effect is amazing.
After I left the trial bench, I ran into a young man. I forget if it was Walmart or a grocery store. He ran into me and called me Judge Wood. I said, “Were you in my court?” He said, “No, my older brother was.” He said, “I appreciated how you handled it, all the services, everything you did and how fair you were. I saw courts were fair.” To me, we are not just dealing with that. The siblings are watching. If it is in the adult system, the next generation is watching how we’re treating their parents in court.
That is how they judge if they think the judicial system is fair. We wonder why they were getting generations that do not trust the judicial system, law enforcement or whatever it is. It is because the generation is watching it. We do not even think about the same thing with juveniles when we’re trying to deal with them and their family. The siblings at home are watching that. We’re impacting them.
That is such a powerful moment. I know you are aware of why I want the people in front of me, the parties, to feel that they were treated fairly. That impacts the family overall and the siblings. It impacts so many people beyond the folks who are directly in front of you at the time. What a great feeling. That must have been amazing. I hope it is positive but that is so great. Shifting a little bit to advocates and lawyers who might be in front of you on the bench now at the Supreme Court level, are there any top tips in terms of how they can make the briefs more helpful to you or oral argument more meaningful?
The number one tip I have is to be more specific in the relief they want. Especially appellants, their whole focus is the trial court error. They always are like, “You need to reverse.” It is like, “I got you making that point but do you want to reverse and dismiss? Reverse and remand for a hearing? Reverse and remand with instructions to enter an order that says what?” They do not go to that last step. It is like, “Take it home.” Even on oral argument, I will sometimes say, “If I buy your argument, what exactly do you want this court to do?”
Take something you can’t control off your plate, leave it in God’s hands, and move on to something you can control.
They sometimes look at me placed over at that point like, “I do not know. We’re expecting you to figure it out.” I’m like, “I’m asking you.” The alternative is you may be going for reverse and dismiss and that is your number one choice but sometimes it is good to give the alternative because we’re a collaborative court and you may win a few judges onto your side and persuade them.
You may not persuade them all. Is there a middle ground that you can offer as an appellant as a backup that could still get you a good result? It may not be a complete reverse and dismiss but you’d be okay with arraignment because it still gets your client back in the door for a second bite at the apple. Do not be afraid to not go all in but to say, “This is our preferred remedy.” If the court doesn’t get there, this would be acceptable too. Do not just focus on the error. Focus on the remedy.
That is an important point in terms of, “If I agree with you, what is it you would like me to do?” As an appellate advocate sometimes, that is the focus in crafting the brief too. If you have one issue that can reverse the whole thing with directions for judgment or whatever it is, you are going to put that first and say, “You only need to decide this issue of the three that I might have. Here is the disposition from that. If you do not agree with that then go on to other arguments and there are different dispositions for those.” What your client gets from the argument you are making on appeal is it should be an important factor in how you are framing things or crafting the brief, to begin with.
I would hope they do it that way but they do not. In your way, that is how it should be done. Give us the argument that is dispositive first, start with that and then go forward. Even on the criminal side, we always write our opinions, addressing the sufficiency that had been in spurts because we do that from a double jeopardy standpoint.
Frankly, do not feel like that is how you should address a criminal brief to us because you rarely win on that. Give us the stronger point of evidence that is going to get a reversal or get our attention rather than get bogged down whether the facts are sufficient. Start with the point of law that you are going to win on, not the facts. I always say the same thing with an oral argument. If they start getting up there and talking to me about the facts from the beginning of the oral argument, you have lost your case. You argue the facts when you can’t argue the law.
It all fits together but it is not a fact-finding venture at that point at the appellate levels so it is a little different. That is a good point at argument and having the alternative too because you have to think about that, “I want this,” but assume that doesn’t happen. As you pointed out, think wisely too, “Maybe there are some people who will agree with that disposition but I’m not going to get enough folks for that disposition. What can I live with? Would it be a good backup and a good in-between for judges to come together rather than not agree with me at all?”
I do not know if this is true where you are or not but a lot of our Supreme Court that has sat came from the Intermediate Corporate Appeals. It is funny because they will cite the Court of Appeal’s decisions to us, which aren’t precedent, without realizing that some of us descended from those. It is like, “How can you not be that careful and cognizant of realizing who was on that panel at the Court of Appeals? Those are the majority of opinions at the Court of Appeals that you would like so you pluck out language and use it at oral argument but you did not go further to see who descended and think about that.” Even though we have been at the Supreme Court for 8 or 10 years, we recall that we did sit on that court.
That is an important thing to check. Is there an overlap in the authors in these opinions? That is a good point. In California, we do not have horizontal stare decisis. Different panels of the Intermediate Court of Appeal and even different members of the same division could decide a legal issue differently in one case than another. Whether that happens or not, if you are in the same division, that may be very unlikely but it could theoretically happen. It is important who authors things and the overlap in that. There still is that possibility, which is a little unique. It is not always the case. I know it is not true at the Federal level.
It leaves a lot of percolating happening, which might result in conflicts that the Supreme Court then needs to review. It is interesting that they can choose this reasoning better or come up with their own reasoning. I do not know many courts systems that have that. It is still helpful to be cognizant of who was on the different panels in doing that. In some divisions, the judges know their opinions. They have been on the bench for a long time.
They know I have decided on this issue and they are going to go back to their opinion to cite that in the next opinion because they know that case well. You want to be aware of that if there is a case that you can bring to the attention that they authored. That is helpful. Any other ideas for oral argument or tips for argument other than being clear about your 1st and 2nd choice in terms of disposition?
The other thing which advocates know and I always tell this especially the newer attorneys or the law students is to go into it. I wish we could change the name and not call it an oral argument but an oral conversation. It is not an argument, it is a conversation and not a speech. If you plan for it to be a speech, you are going to be disappointed, at least in our court because we tend to be hot. It is also not an argument so do not argue with the court. It is a conversation.
In a conversation, if someone asks you a question, you answer that question or not answer the question. It is conversational. That is how I would hope it would be. I feel that the name is wrong. If I can change the name, I would. Maybe it is because they are arguing their side but they are not arguing to the court or with the court necessarily. It is more of a conversation with the court.
That is how I think of it too. You are engaging about the law in a particular case. At the State Supreme Court level, you are deciding not just this case but the law and legal standards statewide and other cases that are in front of you. There is a lot of testing about that. Are there impacts of this rule that we’re not seeing on the facts of this case but we need to be aware of when we’re crafting that rule.
That is a lot of questions I sometimes ask, “How’s that going to relate in this situation? What if the facts were a little bit different that this is now the rule of law?” Sometimes I will have someone say, “I’m just starting in this case.” I was like, “We’re not just deciding this case.” It is that realization. The most fun is when we can have this engaging conversation about the law and walk away like, “That was a great conversation. Hopefully, when we get the law right, we can go back and decide.”
I always appreciate, as an advocate, having questions than not having any questions because I think of that too. This isn’t a one-way thing. I’m not giving a speech. I want to know what are the things that you are curious about or have problems with. We can’t always know that. We can see it for ourselves but we do not know. Different members of the panel may have different views on that. I would rather get feedback and be able to have the discussion rather than not. It is a lot more fun. Those are good advice.
I liked the disposition one because that is one that is not always mentioned first but is important. Think about what you want from this. What does the law allow you to do? Does the case law say you can get that or not? You need to figure that out. In some cases, it can mean like, “Do we appeal this at all? We’re vetting this as a preliminary analysis.
If what you want is something that isn’t possible based on the errors that we see, you need to evaluate that.” It is an important thing to think about all along but be very specific, “You want me to do something for you.” It is the opposite of the initial advice of being open-ended in terms of having someone to help you. In this case, you want to be specific about your ask.
I always appreciate, as an advocate, having questions than not having any questions because I think of that too. This isn’t a one-way thing. I’m not giving a speech. I want to know what are the things that you are curious about or have problems with. We can’t always know that. We can see it for ourselves but we do not know. Different members of the panel may have different views on that. I would rather get feedback and be able to have the discussion rather than not. It is a lot more fun. Those are good advice.
I liked the disposition one because that is one that is not always mentioned first but is important. Think about what you want from this. What does the law allow you to do? Does the case law say you can get that or not? You need to figure that out. In some cases, it can mean like, “Do we appeal this at all? We’re vetting this as a preliminary analysis.
If what you want is something that isn’t possible based on the errors that we see, you need to evaluate that.” It is an important thing to think about all along but be very specific, “You want me to do something for you.” It is the opposite of the initial advice of being open-ended in terms of having someone to help you. In this case, you want to be specific about your ask.
There are times where I have said, “If the role doesn’t get you there in your case, should the court consider re-looking at the rule?” We’re not going to go in and rewrite the rules of civil procedure in this case. If we think you lose on this, I will say, “Should this court send us out to the rule committee? Is this fundamentally unfair? Tell me what you think about the rule change.” Sometimes they look dumbstruck and it is like, “I really want to know.” This is our job. Our court changes the rules. You may not have asked for a rule change but tell me why or not the court should consider a rule change. If you haven’t contemplated that, we should have. We have all sorts of powers.
That is what I was going to say. That gets back to the point. We decide cases but there are other things administratively that are involved. It is thinking outside the box in terms of that as well. We want to make some recommendations about the rule. That is something to think about as well. That is great advice. I wanted to wrap up with little lightning-round questions. Which talent would you most like to have but do not?
I used to be able to play the piano when I was young and I lost the ability. I would like to regain that talent.
That takes a lot of practice. What is the trait you most deplore in yourself and the trait that you most deplore in others?
In myself, it is impatience. I wish I had a little more patience. If I see a problem, I want to fix it immediately and want everybody else to fix it immediately. For others, it is worrisomeness. People tend to worry about things they can’t change.
Are we, as lawyers, professional worriers?
A lot of people will tell me something and I will say, “Do you have the ability to change that?” I will be like, “No.” I’m like, “Let that not be something you are worried about on your plate.” If you can’t control it, take that off your plate or leave it in God’s hands and move on to something you can control.
“If everything seems under control, you're just not going fast enough.”
- Mario Andretti
That is excellent advice, having things you can control, things you can’t and being able to recognize that too. There are enough other things you can do something about that you can worry about. I was a worrier from a very young age. I even had one circumstance where I told my mother I was worried. She says, “Why are you worried?” I said, “I’m worried because I have nothing to worry about. Certainly, I have forgotten something because there should always be something to worry about.”
I’m a family of that. I am constantly saying, “If you can’t change it, I’m worried about that more.” I feel sympathy and concern but I can’t worry about it and control it. There is a difference.
That has been a learning process for me. For those of us who are going to come out that way, that is how we’re built. It is going to be a challenge. It is one of the things we have to learn to grow. That is an excellent reminder. I feel reminded by your comment there too. Somebody else would come up with something else that I could worry about if I was missing something. I have gotten past that most of the time but it was pretty funny that my mother was like, “How is this child mine? She’s not like that at all.” Who are your favorite writers?
My favorite writer of all time is Winston Churchill. I am a Winston Churchill buff. I have most of his books, which are a lot. I read a lot of biographies about him too. People know him as a statesman. They do not know he was a writer, which is how he got enough money to become a statesman as he wrote prolifically and was a brilliant writer. He does not use a lot of what we would call legalis. He’s concise to the point but also colorful enough that you can get and see the picture. He has written a lot of the history of the rules, especially the British empire. When you read it, you can imagine and see it clearly but not filled with all the fancy words that would struggle with your reading ability.
It is creating a vivid picture but with a concise set of words and not a bunch of flowery stuff. I will have to go back and read some of Churchill after this. Who is your hero in real life?
It is my husband by far. He had some medical disability issues that he has struggled with and overcome. He’s, without a doubt, a hero.
Isn’t that nice to say that it is your husband?
Without any hesitation or doubt and I get to live with my hero. How about that?
That is what I’m saying. That is a gift in itself that you feel that way. It is a good decision.
That is the decision I made.
That is one of the things a couple of the guests on the show have said. It is very important to choose the right partner, especially in life overall but in terms of your career as well.
It is having the person that will support you, especially if you are going to go into the political world. Politics is tough and rough. Having the person that will stand there and stand firm is everything.
This will segue into this question. For what in your life do you feel most grateful? I might know the answer.
It is my family 100%.
It is so important to have a solid core and base both in yourself and your inner circle with close friends and family.
They get the craziness of the role that I live and operate in. They do not treat me like I’m special. When I was on the trial court, I would come home from doing some big event where I was treated like I was a big deal. I would walk in the door and they would be like, “We do not have any clean socks.” They always keep me grounded. At the same time, if there is ever any ugliness, they are right there to stand behind me.
Humility is good. It keeps you in that realm. That is cute. Given the choice of anyone in the world, who would you invite as a dinner guest?
I have been asked this before so you’ll see the connection. It is Queen Elizabeth. It is because I would love to talk to her about Winston Churchill.
I was going to say that. I was like, “I know where this is going.”
It is not that I love England at all. Winston Churchill had tremendous success, tremendous failures and he persevered. A lot of people do not know that he was bankrupt and dirt poor. I think the younger generation doesn’t know. It is the way he persevered in crisis and, at times, political life. They said, “You were over and done,” and he wasn’t. There is a lot that I value and would love.
She has spent through so many wars, prime ministers, transitions and someone that has seen so much of a history change. I would love to visit that. We lost my husband’s aunt, who is 93. Talking to her about everything she has seen in her lifetime and this change in the rule was wonderful. I can imagine someone in that leadership position and all the leader she’s met. That would be neat. As a female, she wonders how she was always treated. There was a change over the decades. She saw a shift in these later decades compared to early on.
It might not be for her but maybe. That would be an interesting question to navigate things quite well. It would be very gracious. To Churchill, one of the interesting parts to him is the failure part. He was not taken seriously in so many ways or dismissed and then came at such an important time for the world that he was able to come forward. His persistence allowed that to happen. It is a good inspiration for all of us in terms of what’s now called resilience and all of that stuff, like pure grit. My last question is what is your motto if you have one?
There are two. There is Mario Andretti’s quote that says, “If everything is under control, you are not going fast enough.” If I feel everything works and everything is going okay then I’m not doing enough. That has always been my approach for my career. There is something else I need to be doing whether it is juvenile justice or something that I feel I have got all handled. There is probably more that I can be doing. I do like that quote.
The other thing someone has always told me is that, “If you always feel you are the smartest person in the room then you need to find more people and bring more people into the room because you always need to be in a room with people smarter than you.” I have always strived to find people smarter than me to be in the room with me if I want to keep self-improving.
It keeps you elevating to the different levels and looking at problems in different ways.
I played tennis growing up and my family always said, “You always want to play someone better than you in tennis.” Everyone wants to play with someone worse. Someone had to play the worst person. You appreciate that sacrifice but you might want to find a better player because it would help you raise your skills. It is the same thing as you want to try to find that better person. Helping the podcast has helped me because being around Bridgette and Beth has helped me elevate my game by seeing them leadership-wise. One of my other mottos is to try to live by.
The first point is a little bit about complacency. If you are going along and it is too comfortable, there is something you need to stretch a little bit. The second is a way of stretching, being with people who elevate you in that regard. I always liked to learn about different things and areas I do not know anything about and talk to people who know a lot about it.
Hence, the show, when you started this new project.
That is part of it. I also hope from this that there is a community and a collective aspect to all of the women like you who are contributing their stories and their advice. At a certain point, at a critical mass, all of this becomes more than each of its individual parts and becomes something even more helpful or meaningful to others. It is exciting to see that. Thank you so much for joining the show, Justice Wood.
I enjoyed visiting with you.
Thank you so much.