Episode 62: Nancy Wieben Stock
Retired Orange County Superior Court Judge; now JAMS Private Neutral
00:55:25
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Show Notes
Judge Nancy Wieben Stock served for over two decades on the Superior Court of California in Orange County. After her lengthy career, she is now serving as a full-time mediator, private judge, and arbitrator for JAMS, Inc. In her chat with host MC Sungaila, Judge Stock shares her journey from the bench to her current role as a private neutral. Tune into their discussion to learn more about Judge Stock’s career.
This episode is powered by JAMS ADR
Relevant episode links:
Judge Nancy Stock, Eileen Moore – Past Episode, Seeds Of Contemplation
About Nancy Wieben Stock:
Nancy Weiben Stock
Hon. Nancy Wieben Stock (Ret.) joined JAMS following 24 years on the Orange County Superior Court bench, where she most recently served on the Complex Civil Panel. Her time with the Court also included serving as Presiding Judge, Supervising Judge of Family Law, and Presiding Judge of the Superior Court Appellate Division. Prior to her appointment to the bench, Judge Stock worked as a federal prosecutor and in a business litigation firm.
Judge Stock is highly regarded among counsel for her skill in handling complex matters, including cases involving multiple parties and requiring coordination between multiple jurisdictions. She is known for partnering with parties to craft fair and creative solutions to complicated disputes. Judge Stock is also tech-savvy and able to take control of the case management process, keeping all sides organized and efficient while working toward resolution.
Transcript
I’m very pleased to welcome Judge Nancy Stock. She has had many hats and many roles from the Federal prosecutor’s office to the bench in Orange County, California, including as a presiding judge and now, as a private judge and mediator.
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Welcome, Judge Stock.
Thank you for having me.
I want to talk about all of your career, judicial insights, and all that, but first, I wanted to start with the basics. How is it that you decided to go into the law and what was it that inspired you to go to law school?
I happen to be attending undergraduate studies at a campus that also had a law school. In fact, that law school was named after Martin Luther King Jr. It was right across campus. I was a Political Science major and ended up taking a course in Constitutional Law. We did a moot court. I found myself over there with other students, doing research, drinking the water over there, talking, and schmoozing. I had been a product of the late ‘60s and ‘70s at the time. I was involved in activism and a lot of different causes. I saw the law as leading to a potential career for me. Frankly, it wasn’t a stretch to apply, then I walk over to the law school and spent three wonderful years at UC Davis King Hall Law School.
That’s common for those of us with the Political Science degrees up and say, “What will we do with that next?” It’s usually law school. The impact of the Civil Rights Movement and what was going on at that time has been a common thread with some of the folks who’ve been on the program. Lynn Schafran, who’s at Legal Momentum, has been doing a lot of work on behalf of women and girls for many years. She saw that, but then she had a class with Ruth Bader Ginsburg, which opened her eyes to the fact that there are also women’s rights issues to deal with. She would love to focus on that. That’s how she came to do her life’s work in that regard and has made some amazing impacts. The second thing is that people sometimes see the law as problem-solving for society and individuals.
That’s definitely the case. I had as a Poly-Sci major to do an internship in Sacramento with Senator Nicholas Petris at that time. Some of the issues we were working on have still yet to be solved. I remember being very passionate about working to restore certain civil rights to ex-felons, most importantly, the right to vote, because they saw it made sense if you believe in rehabilitation and restoration. That’s still out there. Some of that activities looking at the legislative branch, trying to be persuasive, forming arguments, and going across the aisle, are the work of a trial lawyer. It did help me point in that direction.
Sometimes, those policy things can take a while to move forward and it can be a little bit of a bummer thinking about that. A long time ago, you were working on that and it still is something that’s being worked on. You saw those skills for being a trial lawyer. Tell me how did you decide to go into trial work, and how was the US attorney’s office in that regard?
I ended up coming to Orange County for my very first job. I started with a law firm that did traditional civil work at the time, which was real estate oriented.
That was what we did in Orange County. It was real estate, deals, and litigation.
Every time there’s a deal, there’s litigation. I found myself in the library because I was a lowly associate. Frankly, I had intended to spend some years there, but a great opportunity came about. President Jimmy Carter, at that time, had appointed the first-ever woman as the United States attorney for the Central District of California, Andrea Ordin. She was putting together a team. Eighteen months into the practice, I was recruited, and I went to Los Angeles. I never looked back. That’s where the real trial began.
There is value to being able to listen, understand, and persuade.
I left the library and entered the courtroom as an assistant United States attorney in the Criminal Division. At that time, people came and went 2or 3 years and left, but the office started to gain momentum, and people saw it as a career track. I ended up staying twelve years, concluding my last two years as chief of the Orange County office. That’s what led to the rest of my career in Orange County.
I was wondering about how you came here initially. Andrea is legendary. She and I will be speaking soon as well. She’ll be on the show. I’m very excited about that.
My work as a federal prosecutor was incredibly meaningful. I was wet behind the ears, 27 or 28 years old. I looked like I was a high school freshman. I’m establishing any credibility in the Federal court. It was a little difficult. At the time I entered the practice only 3% of the nation’s women were lawyers and even less percent in the Federal court on the criminal side. It was more like 0%. A few of us were paving the way. I enjoyed the idea of announcing to the jury that I was there representing the people of the United States of America.
One of our Federal judges, the late William Gray, somebody I very much admired, had a special jury instruction. He would throw in on his own at the end of every criminal case. He would tell the jury as they were walking up the stairs to deliberate, “Ladies and gentlemen, the issue before you is not whether the government wins or loses. The government always wins when justice is done.” I thought to myself, “Did he really have to say that? I would have preferred that he tell them the government should win.” I love it because it was a pure concept. I felt that as a trial lawyer. I had a single line and mission. My role was to be ethical, to fight fair, and do so for the people. It was a great gig on all fronts.
How is it leading the office as well, at least we’ll say in the Orange County office? That’s a different role on top of and is great with your trial skills and trying cases, but you’ll be doing less of that when you’re leaving the office. What kind of leadership takeaways did you take from that position?
I started my leadership in Los Angeles, where we had probably the second largest office in the country behind the Southern District of New York. It was almost the opposite large courthouse tower with many assistants, and I was the chief of major crimes there and the first assistant to the chief of the criminal division. Everybody there had a full caseload except the very top guy. When I came to Orange County, quite frankly, it was all hands on deck. We only had three departments.
One of our Federal judges hadn’t even moved in yet. There was no luxury of sitting back in my office, supervising people. A few of us gathered together. We did our normal work. We forged a presence in Orange County along with our partners with the Federal defender’s office. It was a matter of forming a base in the community and starting to try federal criminal matters in Orange County for the very first time.
Now we have the beautiful Federal courthouse, but I remember from my time clerking with Judge Stotler, we had the trailers. It’s a little different.
I was in the trailers before Judge Alicemarie Stotler in a six-week criminal trial involving fraud relating to the real estate and mortgage crisis against Richard Racehorse Haynes, a well-known and well-qualified criminal defense attorney. I was the sole counsel for our side. I got a phone call from the governor’s office that I had been appointed to the superior court effective almost immediately because the office would be essentially vacant and open for public election if I didn’t get sworn in within about a week.
I was in the unenviable position of either forfeiting the judgeship in my lifelong dream or finding a way to get this case done. I found a colleague, a super-smart guy who was willing to step in. The judge gave us a week off. We did a brain transplant and he stepped into a jury trial. He had never seen the jury except for jury selection when he was sitting in the back. He took that case to a verdict. He won the case. I was on the bench for probably three weeks by the time the verdict came in. It was a very unusual handoff, but I had three fond memories of Judge Stotler’s courtroom, particularly when I had to beat a hasty retreat before I even gave my closing argument.
That is a delicate situation to say the least. Normally, there’s at least some flexibility in the timing for that appointment. Tell me about being a judge was a lifelong dream. What was it that you saw to be appealing about that?
I didn’t necessarily see the judge part right away, but the lawyering part, how the law might fit into a life-giving way, something I could feel good about and enjoy for my whole career. I just came back to the idea that there is value in being able to listen, understand and persuade. That was the hook that brought me aboard into the profession.
Quite frankly, I had my head down as a federal prosecutor and wasn’t trying to be too ambitious about it, but around ten years in, I decided to go ahead and put my name in as a judge for a potential appointment by the governor. It wasn’t until we opened up our Federal Courthouse in Orange County that I was on the radar screen. At that time, people didn’t care about who practiced in LA, but once I was in Orange County, where I had lived the entire time, there were opportunities for engagement. I had a number of interesting cases. A couple of years in, I did get appointed.
That’s one thing. It can be a long or short process. You never know. Sometimes you have to apply a couple of times. Part of that is making sure that you want to do it because it can be a challenge sometimes going through the process. It doesn’t happen at a time you might prefer, as you indicated in your situation.
There’s a lot to be said for surrendering. It’s a long, arduous, somewhat invasive process. The vetting is very thorough, which I think is good. You have to surrender it. I remember when I got the call that I was going to be appointed, the very next call after that was from Eileen Moore, now on the Court of Appeal, she was 1 of only 4 superior court judges over the courthouse. It was a lonely existence. We had never met before. She said, “I’m so happy to hear of your appointment. I can’t wait to get together,” because we were just a very small minority at the time.
She’s always gracious and welcoming in that way. It’s lovely to have her be part of the legal community here, both in terms of service for veterans. She was on an earlier episode of the show. If people are interested in learning about Justice Moore, you can read her story as well. How was joining the bench? Was it what you thought it would be? How did your skills translate to that? I know sometimes it can be surprising in terms of this thing I learned here is quite useful for something else I would do on the bench, but it would never have occurred to me until I got there.
It was what I expected and thankfully, I was given assignments that fit my skillset at the time. I had been raised in the Federal court and I was adjusted to a very formal style of advocacy where absolute preparation was minimal. There was no suit of the pants presentations. When I got to the Supreme Court, which has a reputation for being a little bit more casual, it didn’t hurt to have a little bit more formality and organization to my style. I frankly think the attorneys are appreciated. The presiding judge at that time gave me exactly what I needed. He took somebody who was used to try and complex multi-week cases that take months to prepare. He put me in a long-cost assignment where I tried, right out of the gate, no misdemeanors and no small claims.
He put me in a six-week multi-party complex case where I wrote an enormous statement of decision. As soon as that was done, I had a six-week jury trial, the same thing. For 12 to 13 weeks, I was doing what I was comfortable with. I’m learning it one case at a time and working on the problem instead of having to jockey 50 matters in an arraignment court where I would have known nothing about what I was doing. I felt that he was generous in that way, allowing me to learn how to zip up my robe, figure out which way the flag was and get used to my staff. I’m grateful for that opportunity. That’s the scene. We need to give a hand up to people, a gentle entree, if at all possible, and then let people shine. I felt it’s built my confidence up, and it helped me get off to a strong start.
That is an unusual assignment for first out of the gate, but it’s also one that was sensitive to your experience of what would be comfortable for you. Other people would be like, “I haven’t had anything close to that. That would be very daunting.” For you, that’s the closest corollary to what you would be doing as an advocate. That’s a huge credit to the presiding judge as a leader and developer of people to recognize that.
You had many assignments on the bench substantively in terms of different areas of the law that you dealt with and then ultimately into a leadership position on the court as well. What did you like about that and what’s the process of becoming a presiding judge? You are selected by your peers in that regard, so that must feel good.
We need to give people a hand up, and then let them shine.
It does. We are truly the people’s court. We’re a court of general jurisdiction. We take everything that comes in the door except bankruptcy and patent. We are where the people need to be. I enjoyed doing pretty much a full tour. I saw a couple of tours in Family Law at one time, serving as the supervising judge there. I had a felony criminal assignment for a while, a general civil assignment, and then I finished out in the complex courts where we had special dedicated assignments. No judge goes into that role hoping to be the top person or be a supervisor at all. It’s almost inconsistent with life because I had 120 individually elected constitutional officers like herding cats. The opportunity did come up. I spent three years as the presiding judge in Merck and Ward. We are a major urban court.
We were the fifth-largest unified trial court in the country. I had a $20 billion budget. I had 150 total traditional officers, 1500 staff, and 9 courthouses. We were an amazing force. I loved that tour. I knew it was temporary because, quite frankly, it was like a Camelot tour. We had money, and political support, and we were not under any horrific emergency situations. My team had high morale and the judges were hitting on all cylinders. We cared about the craft. We spent time learning and being introspective about our work. Everybody kind of enjoyed the years. Shortly after I finished, we went into a great economic recession. We went into completely different times. There were courthouse closures. There were all deprivations, but I had an opportunity to be what I would call a servant leader and be aware of what we needed to do to provide better public access.
As a courtroom judge, you just don’t think about what’s happening and how long the line is in front of the small claims department. Whether child sex assault victims are being properly introduced into the courthouse environment or we have proper wraparound services for domestic violence and collaborative courts. That’s where my attention was called to those. It was a privilege to have a broader view to be able to think about those issues. Being a presiding judge of that kind of a court gave you the opportunity to be on the judicial council for the State of California and get involved in other statewide initiatives. Not anything I would have done with my head down in the courtroom, but it gave me an opportunity to work on a number of task forces and help move the ball a little bit to try to fix a few things to make people’s lives easier.
That’s definitely been at the State Supreme Court level. Some of the chief justices who I’ve spoken to on the show have said it’s one of the things that they hadn’t foreseen. That was impactful were these statewide commissions, roles of administering, or figuring out how do we deal with these larger access problems or other issues in the courts that go beyond individual cases. They had never known about that particular role, but it’s meaningful and an important aspect of being a judge and having those opportunities.
I’d like to highlight that because people don’t think about that. They think about deciding the cases if you’re thinking about joining the bench, but there are also these more system-wide roles that you can have in terms of whether it’s rules or various access to justice task forces. There’s a lot of the administration part, which is important to how the courts function. How have you translated all of that now that you are not on the Orange County Supreme Court, but now you have taken all of that experience into the private realm? What kinds of things have you been doing, and how has that translated for you?
For me, it’s just a different form of service. It’s been a real privilege to be a private neutral because people come to you wanting you to help them. That’s nice in the courtroom role. People may be brought in involuntarily and they may not want to be there. Oftentimes, the judges don’t have the time to solve the problem truly. Part of what I’ve brought to the table, I believe, is a real desire to try to bring a peaceful solution and help people solve things, throw out creative ideas, and be a full-on coach and cheerleader well into the evening hours. Whatever it takes to encourage people to not give up, there will be a brighter day ahead if only we can get past these hurdles. To me, that’s been a real blessing in terms of the energy I feel I’ve been able to bring to that third chapter or career.
That’s different because depending on what timeframe people were appointed to the bench, it might’ve been the cherry on the top of a long career already so that when people are concluding their judicial service for the State or Federal government, they’re like, “That’s good. I’m not going to be doing anything else after that.” As the appointments become earlier in people’s careers, there are more of these opportunities. Whether it’s to go practice or private judging, there’s a third act, which might not be there for those who might have been appointed at a time when it was already the third act that people were working on.
Going in at the age of 38 gave me a long runway. There are ethical limitations on what a judge can do on the bench doing the public’s work. When I started with jams, probably within the first year, I was called to serve on a panel of five judges. This was a settlement reached between the City of Anaheim and the ACLU on the Voting Rights Act issue wherein the city was trying to migrate toward voting districts so that communities of interest could have some political clout. They hope that their votes, when cast, would produce a candidate that represents those communities. The City of Anaheim put together a judicial panel of five retired judges. We did a listening tour around the city. We went to every corner of that city, heard what people had to say about what they needed, where the communities were of interest, and then ended up proposing some district maps that the city council could consider.
Thereafter on a rolling basis, they would never again have at-large votes where a couple of well-funded parks and people would get elected, but there would be a district-based representation. That was a wonderful project. I love being out there on the listening tour, no robe, but there was a judicial component to it. The city wanted a panel that would be respected by the public. The public was very polite and respectful. Our titles helped a little bit, but the skillset was to listen to what people had to say and convert it into a solution. It was wonderful and pro bono. We all had a great time. That was something that came up right away as a private judge.
That’s such an amazing dog to have there and creative. It almost seems like that can open your mind to the different creative ways you can use your skills in the private context.
That’s what keeps it fresh.
I hadn’t considered that because I always think, “You’re doing similar things to what you would be doing on the public bench but in a private realm.
We do have the whole private judging arbitrator thing. I tell my mediation clients who are there to settle, “The week before, I was a judge deciding things, breaking people’s hearts. I wish that stranger in the room that gave her a ruling that nobody had anticipated. You don’t want to be there.” It’s true. Every day I have that hat on as well. It informs me about why we don’t want to be there if we don’t have to beat.
I wonder whether you’ve seen any changes or impacts from COVID of people being more open or more coming to you for private mediation or arbitration, whether they’re concerned with extended delays in the courts or certain closures.
We definitely have seen an uptick and anecdotally, people tell us, “Thank God I’m here because I was trailed for five weeks. I got continued ten times.” We find that out at tenability. The real effect of COVID that we worried about was we went into a virtual platform mode almost overnight. A lot of us were worried. We do employment mediations. We do cases where there’s an imbalance of power, or we may have cases where somebody has been traumatically harmed. A lot of us worried that the trust is built with the mediator, the intimacy, and the feeling of safety might be lost on a screen. I found much to my light that it was the opposite, that the people didn’t have to worry that they were going to run into the other side of the coffee machine or there’s no physical, “I have to go to the parking lot.”
I found that people hung in longer. They had more stamina and they’re more comfortable. I had a case with a high powered CEO. We started the mediation. He had his comfort dog. He’s sitting on his couch, wearing a polo shirt. That immediately brought a mood to the room that it might have taken hours to get to that place when people are in their corporate mode and we’re all in our place, and to go a little bit later in the evening if we have to. People are comfortable, get a home-cooked meal, and walk the dog. I’ve been impressed. It wasn’t just a solution to survival. We have to go on. It has turned out to be a real bonus. I’m finding that people are reluctantly coming back to in-person. A lot of people are staying on the platform. I think that’s been a good outcome for all of us.
It’s stressful already. If you can have the other things that make it easier, as you said, “I can take a break, have dinner in my home and come back.” That will make a difference in how people respond to the negotiations as well as mediation.
It makes a huge difference. I was very delighted with it. I haven’t seen a difference in settlement rates or any other statistics. It seems the same, so that’s good.
Also, if people have to come further to travel for something, or there’s a disparate amount of travel that each side has to do, maybe it’s farther for one side than the other. It’s nice to have that option.
Frankly, you get your decision-makers there for the day, whereas they might not have even participated or flown there. It’s a good outcome for everybody.
Practice your craft and be as good as you can be with your craft.
It takes a lot to move things forward, especially technologically in the law, something like a pandemic.
That was the kind of you need a Category 5 for us to make a change. The bench is a conservative institution by nature. It took some extreme circumstances, but I’m happy with what we’ve ended up with so far.
That is interesting to say that people are still preferring or, in many cases, implementing Zoom or virtual mediations rather than in person. People get comfortable with it too. They know the pros and cons, and they’ve had to work through that over the last couple of years. It seems like, “I know what that is. It’s not something new.”
It enhanced civility and professionals. When I first started as a lawyer, you didn’t ever admit in open court and certainly not to your opposing counsel that you had a child-related problem, you had to leave early, or there was anything that would interrupt your laser-focused on the case. Now that’s over with. I’m seeing children on screen and people’s spouses come in. Everybody understands, men and women. We have lives. We have things we need to deal with. I’m seeing more compassion from opposing counsel for what I’d call life circumstances. The trade-off is. “You’re in your home, and this is a good thing. Let’s work with it.” If it is shared by the judicial officer, it is contagious. I feel that’s been one of the legacies of the last years.
That’s an interesting point in terms of you might know something, but when you see that, you see someone with their spouse, kid, dog, or whatever it is. It humanizes everyone. You should have compassion for your fellow humans. What advice would you have for someone who might be considering, at some point in their career, joining the bench or applying? What kinds of things should they consider before they decide to do that, and the things should they be doing to be consistent with search and applying to serve through the bench?
It’s a weird process. It’s unpredictable, at least in California, you make an application to the governor. All these secret people vet you, sit around, and you have no idea what’s going on, then you get a call in the middle of a jury trial. What I would recommend is it is idiosyncratic. It depends on which way the winds are blowing. It has nothing to do with your qualifications. My advice would be to practice your craft and be as good as you can with your craft, and be a congenial civilized, respectful person. Don’t make enemies because you never know who’s on what judicial bedding committee, and just do the work because it will translate directly to the judicial office.
There are a lot of little things that you can do in certain states. You can sit pro tem as a judge, help the court out, and volunteer that way. Frankly, I don’t think that’s necessary to train you for the job. I walked into a superior court, never having practically set foot in it, with virtually no knowledge of state law or procedures. In fact, I had to ask somebody how to get to the presiding judges’ chambers. It was on a different floor. I know nothing about anything. There’s no reason to study up ahead, but you can burnish your credentials as a person of honor, somebody who’s respected in the legal community, and then keep your radar up for what individuals are influential.
Can you get an introduction to that person? Should you be more active than a bar association activity if that is something that’s important in your community? It does differ a little bit from county to county, but being a consistent, quality, ethical lawyer, a go-to person, or somebody everybody respects. To get your name top of mind, bar association activity is maybe helpful and nonprofit charitable. If time permits, among your billable hour requirements or whatever. Be patient. Surrender it to the powers that be. That’s all you can do. You are not that much in control, which is a hard lesson for lawyers.
That’s very hard. I do think that there are some benefits to doing what you can to figure out what it’s like, whether it’s asking people, “What is this job like before I apply for this,” because I think sometimes your impression of that and what it involves might be different. I check that out. I know serving pro tem on the collaborative courts, going into something where you don’t know anything, which is what I did. I don’t know any of this. I have written appellate briefs, but I’m going to do my very best and ask for help when I need it.
It opens you up to a different part of a practice that you might not know about and in a different part of the court system that you haven’t seen. I always think there’s a benefit to that and then see how you do like, “You have to learn how to do a whole new set of things. How do you work in that kind of environment? Is it really too battling for you or is it okay?” Test that out and see how that works.
The rude awakening is that, in a large general jurisdiction court, you can end up in all sorts of faraway lands in subject matters. Let’s say you are a very intellectually gifted person. You write well. You have great case management skills. The last place you got assigned is your perfect match, which would be a general jurisdiction, civil court, a complex, or no. You’re sent to a faraway branch office where you’re truly doing the people’s work, civil harassment, and restraining orders with no lawyers representing anybody.
Your afternoon calendar is a felony arraignment. Anything you’ve thought about what you were as a judge goes out the window because there’s a little bit of a tour and dues you have to pay. The spirit of being a lifelong learner, having a servant’s heart, getting your ego out of the way, and don’t expect to be worshiped and adored. You might not even feel competent for years.
That’s the part where you’re like, “People’s lives are here. Let me just double-check all these things. It’s a little daunting.” I talked to Carolyn Dineen King, who’s on the Fifth Circuit. Before she joined the Court of Appeals, she had never done any litigation of any type and was a corporate lawyer. She was humble enough to admit when she came in and looked, “I don’t know anything about this stuff. I’m happy to do the work, but I need help. I need to talk to my colleagues on the bench. I need someone to mentor me.”
That’s the right attitude and the lawyers appreciate it because, quite frankly, sometimes they’re the instructors at the beginning.
I loved her. I was like, “Let me be clear about this.” I liked that because there’s a certain level of humility, practicality, and reality to that. That’s a good temperament. That’s the kind of temperament I would like to have to be on the bench. We could recognize that and say, “Can we all get in the boat and ride together on this? Thank you.” Your point about the assignments is super important because I’ve known people who said, “I want to apply to the bench because I want to be X kind of judge .” You may never be that kind of judge because where you get assigned is not up to you, and even if you were assigned there, you’re not going to stay there forever.
You have to want to be a judge. It’s nice to have a specific idea. Basically, I put it in the informational realm of like, “Where are you applying? How do you become a judge? Is it an appointment, election, or are there options for either? What does that mean? What kind of judge would you be? What does that look like?” You’ve got to get the information down so that you know that.
Your point is well taken that you need to shadow around and hang out. The best match would be to go to a partner at Latham & Watkins. They got appointed by the governor and are juggling some kind of criminal misdemeanor calendar. Talk to that person. First of all, I guarantee you that judge will be thrilled about her appointment and loving homework. There’s no doubt about it, but get the reality, “This is a learning curve. This is exciting.” That would give you the best impression of what you might be encountering when you get appointed.
There’s a realistic element that you want to do and take care of so you know what you’re getting into. What advice do you have for advocates in terms of argument motions or anything in terms of your top tips?
On the written side, a chronology of the facts and a timeline need to be set for them somewhere in there, as basic as that might be. It’s very helpful. Rising to the occasion as quickly as you can and identify the key legal issues and the key points of contention. The same would carry over into oral advocacy. As soon as you get up to the podium, sooner than later, you want to draw the court’s attention to the critical issue and frame it in the manner that most suits your situation. This is the issue that needs to be resolved. Here’s how I would suggest we go. Certainly, don’t start out by reading the facts or anything from the brief. The biggest deficit that I see with lawyers who are giving oral arguments is they don’t listen.
They think of themselves as mouthpieces, and maybe that’s what they’re called. They’ve lost the ability to listen, or didn’t cultivate it. Most judges, and certainly justices on the Court of Appeals, are well-prepared. They’ve actually read the papers. They probably have bench breeds or an outline of how this might go. They are strategically seeking out little data points and getting things tied up for a very good reason. When they ask a question that’s critical, they're closing that door. You blow it off, you don’t hear it, or you hear something else, that could be a problem.
Practicing that listening technique, maybe moot courting a little bit before you go into court where people are flinging a few questions your way. Inexperienced people are just going back to their notes and trying to anchor themselves. It’s not effective advocacy. It can be frustrating to a judge, especially when the judge only has maybe 15 or 20 minutes on a big calendar to hear your case, and you’ve lost your opportunity. That would be the most recurring flaw that I’ve seen in my time on the bench.
Be patient. Surrender it to the powers that be. That's all you can do. You are not that much in control, which is a hard lesson for lawyers.
It sounds like you’re talking about a number of different things when you’re saying listening. It’s not just listening to the questions of a particular judge, but if there’s a panel, listening to their interactions of questions back and forth. Also, listen to your opposing counsel in terms of either what they said or how they’re answering questions.
I hadn’t even thought of listening to a closing counsel. One of the biggest mistakes we see in the examination of witnesses is somebody getting up on cross-examination with a list of questions that they wrote out the night before. The witness handsome a softball like you can’t believe. It absolutely calls for a follow-up. It calls for you to put your notes aside and go with it. You see it on TV, but unfortunately, you don’t listen to what they say. Therefore, we didn’t take advantage of it. The same with opposing counsel. They might have made arguments. That’s very inconvenient. You need to put your notes aside and get all over them. It’s listening 360 ears open for all those different voices.
You have to be nimble. Also, if questions are being asked by opposing counsel and by the court, you want to pay attention to where they are coming from in terms of asking those questions. It’s constantly in motion.
For that reason, that’s not for everyone. If this is not life-giving to you, you’re going to head for early burnout, maybe a more contemplative work, transactional work, creative work, where you’re building and cultivating something. Instead of being in this dynamic environment that’s uncontrolled and not even that pleasant, maybe that’s a decision. Back to your point. People should shadow and see how that works. Go to another environment and go, “I would love to be the lawyer that puts the deal together and see the look on those clients’ faces.” That’s another thing. This is a long career and there are many avenues. People need to be aware that the avenue they’re on is not the best avenue.
Sometimes, people feel like, “I’ve chosen this. I’m not going down this road. Now, I must stay on this road because that’s the road I chose.” That’s not true. You can change and have new interests. You want to grow in different ways. That’s also why I asked about so much of your career before the bench as well. You’ve done a lot of different things throughout your career. It’s thoroughly possible and enjoyable to do that. It’s possible to change your mind or to evolve in ways. I think that sometimes law students, in particular, are worried like, “I have to get on this track. I’m not on that track. I have to stay on this track.”
Check in every once in a while and make sure it’s still the track you want to be on. Maybe there’s something else across the road you’d rather try. Try to be open to that, which can be hard so have that mindset when you’re in law school. I also appreciate you’re talking about the US Attorney’s Office because I don’t know that’s one. I know in school, we certainly hear about law firms working for the government but not necessarily the US Attorney’s Office. Part of my mission here is to make sure everybody knows about all the different options that are available and might be the best fit for them at a certain part of their career.
I would be a strong cheerleader for the US Attorney’s Office. For one reason, it’s a high-tier, intellectually stimulating job. It involves trial work before the most demanding of trial courts, where you practice your craft at the highest level. We tend to learn from who we learned from at the beginning. Your skillsets are going to be at the most demanding level. The bonus is assistant US attorneys do long-term grand jury investigations. They build cases, craft cases, and display their works in the gallery of the courtroom, and then it’s not over.
We defend our cases before the Ninth Circuit in both written and oral advocacy. That’s a nice package because so much of the legal work is truncated. You’re writing the little dimmer, but you never get to see the full track, much less be the lead attorney. As a twenty-something-year-old lawyer, you are the lead attorney all the way down the pipeline going to the circuit court. That’s extraordinary. It would take years to get there, if at all, in a law firm. I’m a big proponent of seeking that option out. It is a great way to serve the public.
It’s a comprehensive set of skills that you’re building, and you are able to have that long view and long roll in a case which doesn’t frequently happen if you’re an associate in a law firm.
Thanks for the opportunity for the plug. It’s a great career term.
Thank you so much for joining me for this episode. I want to ask a couple of lightning-round questions to close up. The first question is, which talent would you most like to have but don’t?
I would like to be able to sing spectacularly because I think it would be so liberating. I liked the idea that it would bring joy, and I do not have that talent at all.
That’s a good one to consider there. It’s a positive thing. It would add joy, so that’s good. Who are your favorite writers?
I like the writings of Thomas Martin. He was a Trappist monk in America. He’s a contemplative and I love the simplicity of his writing and a bit basically his passage, the ones the books I’ve read are, “I’m stumbling around on Earth. I have no clue what I’m doing. I just hope that I’m heading on the right path. I hope it’s enough that my heart wants to go there, and hopefully, God will take my hand to get me there. I may not even appreciate it, but I want to go in that direction.” I like that attitude. He wrote Seeds Of Contemplation and it’s not super high level. It’s like, “Get out of our egos. Get out of our heads, and try to open ourselves up to be directed in the right paths.” It’s simple. I like that.
He’s very elegant in that way and very accessible.
That’s key.
Who is your hero in real life?
It is my little brother, Rod, who unfortunately passed away at the age of 64. I admire him so much because he’s a guy that had a keen, protective instinct his whole life, both with his family, then with others. I used to ride around in his vehicle. He always had an Army blanket and a full-dressed first aid kit so that he could be prepared to help and rescue anybody he encountered. He saved at least one life doing that. He is ready to blow the doors open and rescue people. Toward the end of his life, he struggled with these very disabling medical disabilities. He threw the bad card in the deck. He encountered them and navigated them with such class and determination. Any other person would have said, “I don’t deserve this. I got a raw deal.” He was a class act all the way to the end. He is my hero.
That’s both wanting to help others and being ready to serve others. That’s the first part. The second part is a little bit surrendering in a different way to going on at that level health-wise. That can be hard and not be bitter about that. Given the choice of anyone in the world, who would you invite to a dinner party? It could be more than one person, and they don’t have to be still on Earth. It could be historical.
I believe that I would want to be in the presence of somebody who is a survivor and to be inspired of what they had survived. Unfortunately, current events bring us to the thought of gun violence and mass shootings. Gabby Giffords is a survivor and an advocate. She is such an extraordinary person. For somebody like that, I would be very honored to be in their presence to witness how they’re dealing with the ongoing effects of the incident, but also where they’re trying to go with it, which is a frustrating path as well. Surviving is not just, “I survived. Here’s this ongoing piece.” I’m fascinated with them. My chosen dinner guest would be a survivor like Gabby Giffords.
I do think that’s also what you deal with whatever challenge or difficulty it happens to you, what you do with that, whether you turn it around to help others in that position, that special person who does that as well. Last question. What is your motto if you have one?
It’s not very original, but I would subscribe to the idea of, “Treat others as you would have him treat you.” It’s plain and simple like, “What comes around goes around.” I’m keeping that. That has a spiritual connection to it as well. We’re taught to do that, but I think that makes sense in life. It’s a little bit of a litmus test when the tone is getting aggressive, or we’re not quite being very attentive to people. That’s for life, not just for judging.
Treat people with respect, kindness, and empathy. It goes a long way and it makes your life nicer as well. It all fits together.
They did a study years ago in California of what were the elements that made people believe that they had received a fair trial or a fair hearing? It wasn’t the judge’s decision. It wasn’t whether the judge was on law review. It wasn’t how nice the courthouse looked. It came down to basic issues of respect, the judge making eye contact, listening, providing feedback, and showing that the judge was aware. It is treating that person’s case like you would want your case to be treated. If you exercise those qualities time and time again, people will walk out having lost the case and saying, “I would come back to that judge. That judge was fair. That’s all I could have cared for.” It takes the temperature down when you can convey that message.
People want to have the feeling that you’re taking their case to heart and that you’re giving them every opportunity to present it and listen to them. You might not agree with their position in the end, but having been fairly heard, basically, the concept of due process goes a long way. Thank you so much for joining the show and having this discussion. I appreciate your taking the time to do this.
Thank you very much. Have a great day.