Episode 93: Melissa Hart
Colorado Supreme Court
01:11:48
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Show Notes
Justice Melissa Hart of the Colorado Supreme Court shares her journey from U.S. Supreme Court clerk to U.S. Department of Justice trial attorney, law professor, and now member of her state's highest court. With host MC Sungaila, she explains her intuitive approach to career decisions, the long-term impact of mentoring on her career trajectory, and best practices in appellate advocacy.
Relevant episode links:
Justice McCormack – Previous Episode ,The Amazing Adventures of Kavalier & Clay , Their Eyes Were Watching God
About Melissa Hart:
Justice Hart has served on the Colorado Supreme Court since 2017. Prior to joining the Court, Justice Hart was a professor at the University of Colorado Law School, where she directed the Byron R. White Center for the Study of American Constitutional Law. Throughout her years as a professor, Justice Hart maintained an active pro bono practice, writing amicus briefs in appellate courts and representing clients through Metro Volunteer Lawyers. Her teaching and scholarship focused on access to justice, constitutional law, judicial decision making, legal ethics, employment discrimination, and civil procedure.
Justice Hart grew up in Denver, where she graduated from East High School. She earned her bachelor’s degree from Harvard-Radcliffe College and then spent a year teaching at a high school in Athens, Greece. She returned to study at Harvard Law School, where she was the Articles Editor for the Harvard Law Review and Book Review Editor on the Harvard Women’s Law Journal. After graduating from law school in 1995, she clerked for Judge Guido Calabresi of the Second Circuit Court of Appeals and for Justice John Paul Stevens on the United States Supreme Court. She practiced law for several years in Washington, D.C., including as a Trial Attorney at the U.S. Department of Justice.
Transcript
In this episode, I'm very pleased to have to join us, Melissa Hart, who is a Justice on the Colorado Supreme Court. Welcome, Justice.
Thank you so much for having me.
I'm interested in going through your background, given that it's pretty wide-ranging in terms of practice and also a significant career in law school teaching prior to the bench. There are not many who have that kind of background, the combination or particularly extensive law school teaching prior to being on the bench. I hope your experience, as well as Justice McCormack, who also had that experience on the Michigan Supreme Court, will inspire some law professors to consider also serving on the bench.
I think that would be great.
It's a wide variety. I think of that way in terms of there's a lot of discussion about diversity on the bench because diversity in perspectives in practice areas is helpful as well. You get all kinds of things. To me, that's the joy of appellate work, and I never know what substantive area I will be working on now, wherever the law is moving and changing.
That's certainly the same thing on the bench and at the Supreme Court level, where you are making all of these different policy decisions in so many different areas of the law. It helps to have people on that bench who have different expertise and experience in different areas. First, I wanted to start with your origin in the law story. How was it that you decided to go to law school and be a lawyer? What inspired you to do that?
My origin in the law story is not what people expect. I grew up as the child of a single mom. My parents were divorced when I was right around three. It's a little unclear right around there, and my sister was not even one year old. My mom went to law school with this toddler and this infant. I can tell you that when I was in law school, I called her every day and said, “I don't understand how you did that.”
She worked hard. We did not see her very much. It was hard, and I did not want to be a lawyer. I thought it looked hard and thankless. She had all the stories you can imagine of a woman graduating from law school in 1974 being asked to type up documents because the men assumed she was a secretary and all the things that, luckily, we are largely passed now.
Really being honest with yourself is important for finding a satisfying career that a satisfying life.
I was quite firm that it was not going to be my path. I was in college, and it was my senior year of college. It was either December or January of my senior year in college. I had written my senior thesis about a coalition of feminist organizations and labor unions that were working on how to handle what was called fetal protection policies, which were workplace policies that said, if you are a fertile woman, you can't work in a job that involves exposure to lead or could bid into a job that involves exposure to lead.
In a lot of companies, it wiped out every job option. I was very focused on the relationship between feminism and unionization. It was a social science paper. It had nothing to do with law but my thesis advisor said, “You should understand. There is this underlying legal case that's going to the Supreme Court.” This was back in the early '90s. “You should understand what the law underneath it is even though you are not writing about law.
Again, this is pre-internet and pre-Lexis and Westlaw. I went to the law library at about 6:00 in the evening and read the case. It was a case from the Seventh Circuit in Chicago. That was the case that was going to the Supreme Court. It's an interesting case because it has three different opinions. A majority opinion, a concurrence, and a dissent. It was an en banc decision of the court. They had lots of judges, and all three decisions asserted that what they were saying was the correct answer and the others made no sense.
I thought, “That's weird. One of them has to be right.” I started looking at the cases that they cited and went and got the next book off the shelf. By midnight, when the law library kicked me out, I had 40 books on the table. I had read back to Muller versus Oregon, the first case about workplace regulations. I called my mom back in Denver and said, “I have to go to law school. This is completely fascinating. The way that this reasoning works and I am compelled by it. I didn't think I was going to do this but I've never felt so fired up and intellectually engaged in my life.” My career has to involve something that is as exciting as this. It was, again, my senior year of college. It was full on 180.
Was it the subject matter also because you were engaged in that and the role that the law can play in a change in that regard to you? Was it also literally like, “This is a fascinating intellectual exercise.”
At that moment that evening, it truly was, “This is this reasoning by analogy and trying to create a sense that things are inevitable when they are not in any way inevitable.” It was that game that I found fascinating. It is also true that my whole life, I have been very passionate about anti-discrimination and this whole area of workplace regulation and women's rights. I was a Women's Studies major in college. I was very focused on that, and that also was at the core of what was exciting about it to me.
Yours is certainly an epiphany moment in terms of what's involved in thinking about the law and decision-making. What does it mean to think like a lawyer or a judge in that particular case? In your story, something that reminds me of other judges who have said, “I was drawn to the law because there was an aspect of problem-solving to it. It was a way to solve large problems or small problems.” What have you that, “Without that tool, I couldn't solve the problems that I was interested in solving?”
I still teach one class each semester. One at the University of Colorado and one at the University of Denver alternating. One of the things I always say is that we need to emphasize that what you are training yourself to be is a person who solves problems. That's an incredibly important gift to be able to give to your clients. I wish the law weren’t as complicated a tool as it is. We should be simplifying it so that people can solve their own problems if they can't find a lawyer but the fact that we can take this tool and help people solve their problems is a wonderful way to be able to spend your life.
In recent years, I've come to that perspective as well with regard to my clients, which is they have a problem that they cannot solve themselves or they are in trouble for something they may have or may not have done or whatever. We are here to help solve a problem that individuals cannot solve on their own. If we are not here to solve the problem, then there's going to be a less orderly way to solve the problem. The law and the courts play an important role in that regard. We, as lawyers and advocates, play an important role too. As an appellate lawyer, you have a larger sense of you are also impacting the law beyond your client.
Looking at the analysis beyond that and helping courts decide, “What are the larger implications besides just for your client?” It is very intellectually satisfying. I could see where you said, “This is cool. This is what lawyers do. This is interesting.” That has to be one of the singular epiphany, lightning moment stories that I've heard. Especially given the background you mentioned, I was verbally against doing it because of what I had seen in my mom's experiences. What did your mom say when you said, “I'm going to have to go to law school?”
She laughed. My mom is one of my heroes. As I said, she graduated in 1974 from law school. She worked here in Denver, Colorado, doing a variety of different things but a fair amount of Family Law and small business. In 1995, when my sister and I were both solidly out of the house, she sold the last house that she ever owned in Denver and spent the next twenty-plus years working internationally. Doing international human rights work and international Rule of Law work and teaching in law schools around the globe in Cambodia and Turkey.
She found her passion in the law. It wasn't what she was doing for those years that she was raising us. That was work to have a living and raise her kids but she always knew that what she wanted to do was something global. What’s amazing about the law is that she could do both of those things and switch after many years and pursue a completely different path.
One of the things I hope to illustrate through the show too is that there are so many different things you can do with legal training. Many different kinds of law, and it's not static. As you evolve and as you are able to, you can apply those skills in many different ways. That's interesting that your mom exemplifies that and that she found the spot where it's most meaningful to her.
You said, “I'm going to have to go to law school. I like this.” Probably also thinking, “I could be good at this because this is very interesting.” What did you think or have some sense of what you wanted to do when you were in law school or what your next step was or was you discovering that along the way?
I want to say both that I didn't have a sense and did. I was very clear that each thing I thought I was going to do for a moment. That was what I was going to do, and then I realized, “That doesn't quite make sense.” I encourage Law students, to the extent that there are Law students reading this, to recognize that it's okay to change your mind. I took a year off between college and law school and taught at a school in Athens, Greece, and I loved it. I loved Greece and traveled a fair amount around Europe. I came back thinking, “I'm going to become an international law lawyer because I want to be able to work in the European Union.”
I realized pretty quickly, even during my first year of law school, that it would mean doing Business Law basically, and I wasn't interested in Business Law. Even though I continue to love Greece and Europe, that wasn't going to be my path. I thought, “I want to be a prosecutor prosecuting sex crimes,” because I'm very passionate about violence against women and the ability of the law to address violence against women.
There's actually more trial work happening in state courts than there is in federal courts. Federal court trial practice is mostly litigation practice.
I realized again, pretty quickly, that I didn't have the emotional skillset to be able to live with that every day, and that was going to be more than I could handle and be an effective advocate. That's one of the things people need to think about is not only what intellectual skills you bring but also how you stay well while you are doing the work you want to do. I returned to where my roots probably were, which is that I liked working on anti-discrimination issues, and ultimately, most of the work that I did, both as a practicing lawyer and then as a Law professor, focused on anti-discrimination matters.
I have noticed that. That's why I was curious whether that carried through but there are a couple of really interesting things in what you said that people should think about. One is when you are deciding which area or where you think you might want to start out that it isn't just an interest in that area but discovering what does it practically mean? “It sounds interesting but what do you do day-to-day? Is that something I would enjoy?” I had the same thing. I was going to be an international lawyer and discovered the same thing. I went, “I don't want to do that,” but at least it was an impetus. I have a specific goal of getting to law school but then that can change as you go through law school and discover things like that.
The second thing was that you mentioned also your own personality and makeup. How does it fit with that, both your skills but also are you going to be able to handle that well or be drained by doing a certain work? That's a different question. I don't know what everybody thinks about when they are choosing what work they want to do thinking about yourself, whether it's emotionally. How do you operate, and is it something you can handle? Is it a kind of stress that you can handle well or is it going to bear me too much?
That's an important question to ask, and there are certainly lots of jobs like being a criminal defense lawyer, a prosecutor or an immigration lawyer. There are some jobs that you can immediately think of, “The potential for compassion fatigue for not being able to separate yourself from your clients is huge.” On the flip side, I worked for a large law firm for a little over a year and worked a lot of hours because that's what large law firms expect. At the end of the year, they said I would need to work more hours. I said, “No. I'm not going to work more hours than I worked this year.” I wondered to myself at that time, “Is it just that I'm not a hard worker?”
Also, in my life, I have had years where I have worked hundreds of hours more than I worked that year but I was working on things that I was passionate about. I realized, “I have a limit. If it's something that doesn't light me up, I have a stopping point where I can't bring myself to do it.” If it's something that excites me, I have virtually no stopping point, which is its own problem. Recognizing how all of those different things fit together and being honest with yourself about it is important for finding a career and a life that is satisfying.
That's not something that normally you are encouraged to think about when you are in law school. You are like, “You will get a job, a certain salary in maybe the different areas of the law but not that because is it a good fit for me.” In my experience too, I had that moment of like, “This didn’t fit. My personality is not a good fit between being a trial lawyer and an appellate lawyer.”
Those are two very different types of people. One, that enjoys, and one usually doesn't enjoy the other, and so there's some self-selection in that as well. Let's talk about your career before going into law school teaching. You worked in a big firm for a little bit. You also worked in the Department of Justice. There are a number of different things that you did. Maybe you can talk about those ideas.
When I first came out of law school, I clerked for two years. I clerked for Guido Calabresi, who's a Judge on the Second Circuit Court of Appeals, and for Justice John Paul Stevens on the US Supreme Court. Both of those were incredible experiences. They were very different but both filled me up. I clerked for Guido, who insists that people call him Guido. I don't call judges by their first names. In his first full year on the Second Circuit, he had a group of clerks before my group but we were his first full year of clerks. He was still figuring things out. He had been at Yale Law School and the Dean of Yale Law School, and a big man on campus for his whole life.
Now, he was coming into this collegial court where you had to make decisions in groups and the junior judge and navigate that. He would speak very honestly about figuring that social piece out, the social dynamics of a workplace. He was a wonderful mentor and a great person to work for. Justice Stevens, when I clerked for him, he had been on the bench at that point for 35 years. He was on the Seventh Circuit for ten years and then had been on the Supreme Court for 25 years. He knew exactly how he was going to do things and what he was doing. I didn't always agree with him. We used to sometimes argue but if he disagreed, he always wrote separately.
I said, “Does it matter that you think this? Are you sure you need to write a dissent here? Couldn't you let it go? It's not an important thing.” He said, “I will always going to say what I think.” That's not the approach that I take as a Judge. I'm a bit more circumspect about when I write dissents but it was fun to be able to grapple with that. That was the first time I started thinking if I ever were a judge, and at that time, I had no thought of wanting to be a judge. You make a decision when you would write a dissent or what compromises you are willing to make to bring people along, especially on a collegial court, on the appellate court.
That’s something a lot of people think about in advance but you see it from having a clerkship, especially on a collegial, collaborative court where you are not the only judge making the decision. There's a panel. You have some colleagues. The only way your view and your perspective become the majority opinion is that one other person has to at least join you in three panels and more in other settings. How do you work with that dynamic over the long-term across multiple cases and repeat working with the same colleagues? People and even different courts have very different philosophies about that.
We don't want more unanimity whenever we can. We want to discourage dissents or concurrences, and there can be some culture clash if a new judge joins and says, “That's not my view. I have the Justice Stevens view.” Everyone was like, “That’s not how we do it.” There's a lot of that. For you to notice that so early was pretty perceptive because I don't know that a lot of clerks were thinking about that thing. Also, what an interesting experience because you have a newbie judge, a very experienced lawyer, and a professor but navigating it from the very beginning and an experienced justice and seeing the different approaches that they take and the Rules of the Law. It was so interesting.
It was a lot of fun. I look back on those years with a great deal of fondness.
How did you decide to apply for a clerkship? I'm always curious about this and want Law students to consider clerkships. Don't think, “No, I can't do that,” because it's such a rich experience.
I have to confess that I didn't think about it the way I would encourage people to think about it because I was pretty ignorant. I did what everyone was telling me to do, which was to apply for these jobs. Again, to emphasize, I had two of the best jobs I've ever had. They were amazing. If I had it to do over again, I would've loved to also clerk for a district court judge. That's something that I didn't ever do that would have been an amazing experience. Particularly as we've discussed, I was a Law professor and taught Civil Procedure. I spent a lot of time as a professor sitting in courtrooms watching how things worked so that I could be sure when I was talking to my students about it that I understood some of the things that I never handled as a lawyer.
I never, as a lawyer, for example, handled a motion to intervene. In civil procedure, you talk about motions to intervene, and I thought, “I should see what this looks like when a judge is thinking about it because I don't know from the law school perspective.” It would have been fun to see that as a clerk. I tell students when I talk to them now to think about their motivations. Don't apply for whatever people might call the fanciest clerkship. Apply for the one that would fit what you are trying to get out of it. If you think you are going to be a trial litigator, do it trial.
Being a lawyer is such a great experience. It's such an important thing to do.
The district court all the way.
Also, don't forget the state courts. I know that at lots of law schools, people focus on the federal courts, and that seems fun and everything but there's more trial work happening in state courts than there is in federal courts. In federal court, trial practice is mostly litigation practice. It's not trials. Its discovery and summary judgment and various things go to trial. In state courts, a lot more stuff goes to trial. If you are wanting to see how the court operates in the courtroom, state court clerkships give you a lot more of that.
That’s a really good point to also investigate, and each state is different. Some of them have actual career research attorneys in those positions, in the trial courts or even in the Court of Appeal. In California, the California Supreme Court was until recently entirely career clerks but in the last several years, some of the justices have added to that with term clerks graduating from law school who then go on to Federal Circuit clerkships or even US Supreme Court clerkships and then practice. The idea would be to check those avenues out. There may be some that have opened up that maybe even folks in law school aren't aware that are available.
Especially in the State Supreme Courts like yours are doing important work and have their own constitutions to interpret. It’s an interesting opportunity. What an amazing experience, both of those clerkships. I hear what you are saying about the district court that, in retrospect, that would have been nice. I remember when I went to my circuit clerkship, had a district court, and had a year of practice before that.
It radically changed what I learned from that clerkship because I had at least a basic footing of what is this record I was looking at and how it might have been created. Even the clerkship thing gives you more mind space or freedom during that year of the clerkship to learn other things besides, “What is this I'm looking at? What's going on as you are in the first few months of any clerkship? How exciting those amazing start to your career.
I then went to the law firm for a little over a year, and then I went to the department of justice in Washington, DC. I worked for what they call the Federal Programs Branch, which is a terrible name because it conveys nothing. It was civil litigation at the Department of Justice. We were defending government agencies. I worked primarily on three buckets of things.
At that time, the Violence Against Women Act had not yet been found unconstitutional. The Federal Government has a right to intervene whenever a federal statute's constitutionality is being challenged. I wrote briefs and traveled around the country defending the Violence Against Women Act against constitutional challenges. That was one bucket.
President Bill Clinton had entered a settlement agreement with Black farmers on behalf of the US Department of Agriculture because it probably won't surprise people to hear there had been rampant discrimination against Black farmers by the government for decades in terms of loan applications and emergency relief. He entered into the settlement, and basically, we were mediating claims. It was not a whole litigation process. It was a mediation process, and that was interesting because I spent quite a good deal of time in rural Arkansas, Missouri, and Tennessee meeting with farmers at their farms, meeting with their lawyers there, and mediating these cases. That was another bucket.
My third bucket was a lawsuit that was brought against the Immigration and Naturalization Service, which doesn't exist anymore but it did in the '90s, by Hispanic employees of INS alleging discrimination. That was a big class action lawsuit, and I was representing the government. I did lots of depositions and motions practice. I spent a lot of time in Los Angeles, where it was being litigated in the Central District. Three different things that gave me a broad range of experience working for the Federal Government. It was great.
I was thinking it was a very eclectic experience. It's not what you first have in mind when you say, “I worked for the Department of Justice.” Most people think, “You were doing criminal cases or a prosecutor,” or something like that. The variety of the things you were doing, including mediation, what a great experience for anyone but especially for a newer lawyer.
One of the fun things about working for any government is that you jump in. It's not that I wasn't supervised at all but basically, they said, “Buy a ticket to California, and we will see you when you get back.” I grew up as a lawyer quite quickly, I have to say.
Both in terms of the breadth of your experience and also, “You have the reins. Go for it.” You have to exercise your judgment and that you are trusted. Exercising that judgment is a unique thing that is recent in your experience. It's funny that you mentioned gala, and I've also seen you doing some writing on Johnson versus that whole of mine in the past. Thinking about how many times our paths have crossed in some way. I worked on US v. Morrison. I also did some initial work on Johnson. I was like, “It's interesting.”
I remember the first time I saw in the constitutional case books for law students on reading Morrison and other decisions that I've worked on. When you are doing things like that, you don't think of it like, “People are going to study this later. This is an important decision.” You've had that feeling, and I’m sure as well in your life. You came to teach after that. Tell me what you were thinking about. As you said, you went to Greece and did some teaching as well. You have an interest in that beforehand.
I have always been interested in teaching and thought about doing law school teaching. It was Justice Stevens. When I was at the Supreme Court and talking to him about what should my career look like, he was very emphatic that I should be a lawyer. He said, “You could teach someday but go be a lawyer. Being a lawyer is such a great experience. It's such an important thing to do. You would be a really good lawyer. Do that. Don't skip that part.” I’m glad he told me that because I love being a lawyer.
To be honest, the reason I ended up teaching was another one of my epiphany moments. When I left high school here in Denver, I thought I would never be back. I thought I was an East Coast girl. That's where everything happens. I was living in Washington, DC, which people may mostly know but it's a city that's divided into directional quadrants. When you write your address, you must write, “This and that Northwest and this and that Southeast.” In theory, you know which direction is which.
I decided in 1999 that I wanted to do a triathlon, and as I mentioned, my mom had left the United States and was doing international work. She was in Haiti at the time and said, “If you would be willing to go out to Colorado for your triathlon, I will pay for your flight and your entry into the race. I will rent you a bike because I need someone to deal with my storage locker there.”
There are some great mentor programs out there where the right people can get matched up, but mentoring works best when it develops somewhat organically.
I was a government lawyer and said, “Free plane ticket, yes.” I came back out here. A triathlon is you swim and then you bike. The bike ride for this race was on a road that you rode very far out East in Denver, and then you rode back West. When you are riding back West, you are looking at the mountains, and the whole time that I was riding, I thought, “I have missed knowing which direction is West.” I have felt so confused in Washington, DC, and so ungrounded.
I realized the mountains always grounded me. I always felt I knew where I was when I was growing up, even if I sometimes wanted to be somewhere else, I knew which way was which. I got off the bike. I did the run and called my friends in DC and said, “I've got to get back to Colorado as fast as I possibly can. This is where I'm supposed to be. I'm not supposed to be in DC. This is where I belong.”
It was because of that. I loved my job at the Justice Department. I would have been very happy staying in that job but it was this feeling of, “I've got to move,” that caused me to say, “If I'm going to move, would this be the time to consider going into teaching because if I'm ever going to do it, this makes sense.” I was lucky to get hired at the University of Colorado, moved out here, and started teaching in 2000. I taught for eighteen years full-time.
I taught Employment Discrimination and Civil Procedure. I ended up teaching Legal Ethics and a Civil Access to Justice and Poverty Law class. I taught a lot of different things. I loved it but always maintained a law practice. I had an active pro bono practice doing amicus briefs in appellate courts and then representing individuals from our local pro bono organization.
I became a Family Law lawyer because when you look at what local organizations have in terms of pro bono cases, they have a desperate need in the area of domestic relations because most people can't afford to hire lawyers. I did some adoptions and some divorces. I loved that too. I never stopped being a lawyer, even when I became a professor.
You were taking Justice Steven's admonition there. I have a friend also who's a dean of a law school, and he has the same perspective. He says, “I have a certain percentage of practice that I continue to do because that is how I stay fresh for my students and that I still have that practical advocacy perspective that I can bring to the students, and that's valuable. I don't want that to get stale.
All lawyers should do it.
That's what he says. He's like, “I also do this.” It's valuable. That's a good thing. For those professors who might be reading, who don't do that, you might consider continuing that. The comments about how you know that a decision is right at a certain point in your life are very real and relatable. That happens to a lot of people and what happens is that after that happens, you ignore it or put it aside rather than listen to it because you think, “That's crazy. That doesn't make any sense at this particular point in time,” or whatever it is but paying attention to what I refer to is a sense of knowing. There's a sense of internal knowing that this is the right thing. This is the next thing that needs to be done, and being courageous enough to follow that.
It's important to acknowledge. It's not always easy. I got very lucky both times that I felt like I knew what needed to happen. Things fell in place, and it's not like everybody can turn on a dime all the time. It was very fortunate.
Especially when you are talking about teaching and wanting to teach in a particular place, that’s very hard.
I was very lucky. I had a friend who already taught at CU, and I was able to reach out to him and say, “Can you help me navigate this process and figure out what's my best way in?” Without that friend who remains a friend and mentor, I don't think my path certainly wouldn't have been as easy, and it might not have gone the way that it did.
You wouldn't have had any sense. You don't have someone to ask to say, “How does this work? What are the needs of the university at this point? How can I match those,” and things like that. You wouldn't be able to know that if you didn't have that advice. Let's talk about that a little bit in terms of mentors and sponsors. You've talked about Justice Stevens. One of the great benefits of clerkships is having that relationship with your judge who truly has your interest in mind and often is very interested in your career long-term like what is your highest and best use and how can they help you achieve that, which is lovely.
You talked about your friend as well, who became a mentor on the faculty. What kind of role have folks like that had in your career? What does mentoring look like? Sometimes students go, “I need a mentor,” like they are going to go pull one off the shelf for something. What does that look like? How does that develop?
Mentoring works best when it develops somewhat organically and also recognizes that there are some great mentor programs out there where people can get matched up. The best mentor programs, though, ask a lot of information from both people and do try to find likely connections because an off-the-shelf mentor, someone who's older, is not necessarily going to be the perfect mentor.
In fact, the person I was referring to, who I think of as a mentor, is maybe two years older than me. His name is Phil Weiser, and he is now the Attorney General of Colorado, which is strange. He ended up being the dean of CU when I was teaching there still but I wasn't reaching out to him as a mentor. I was reaching out to him as a friend and an equal, and it's important to recognize that you can still be a mentor when you are the same age. He had more experience.
He had more experience in that area that he could lend to you.
There are many things in the legal profession that are hard. If you have a sense that you're either called to do something, or that you really think you can make a difference in a particular role, that is what carries you through all of the hard stuff.
That's an important piece. Sometimes when people are looking for mentors, they are imagining that they are looking for a seasoned professional. Sometimes that works but sometimes it doesn't. Particularly, across generations, as there's a lot of conversation about now, the generations don't always understand each other perfectly. It's important for us to work on understanding each other but you might find mentors who are closer to your own age.
The advice I give people and the way I have survived in my life is that, in addition to having mentors, everyone should have a posse. I have a group of people. It doesn't have to be a big group but a couple of people who have your back at work, who can check you if you think that something that happened was wrong, and you can run it by them, and they can say, “It wasn't that wrong.”
You are getting more upset than you need to or can say, “That was wrong. We need to figure out how to make it right. I have a posse at work. I have a mom posse who I would never have survived as a parent if I didn't have a group of girlfriends that I could text and say, “I don't understand what's happening. I'm doing everything right, and everything is going wrong. Is this normal?”
That's as important as, specifically, mentors. You need to think about people who sustain you, and mentors can do that but what they are doing is more of pushing, guiding, and helping you see the path forward. On any path forward, even if it's a path that's relatively smooth, you still are going to have days that are bad. I don't know anyone who hasn't. At that moment, what you need is your posse. That's how I think about it. That combination is important.
That is an important point. You are the first to mention and it is but there's not just one route of support and you may need different kinds of support at different points in time. The reality check support is very good with colleagues and those who commiserate but also say, “I don't know about that perspective. I have a different perspective on that. Give you more objectivity.”
I will confess for myself, and maybe I'm admitting to weakness but I've seen it in other people. Sometimes, you don't want to admit serious vulnerability to a mentor like anger. I feel wronged in the workplace by a mentor. You feel like maybe you don't look as worthy of being mentored, which is incorrect. You can be vulnerable, angry, and all those things, and you still are worthy of being mentored.
What I have found is that it helps me if I can check those feelings with my posse, and if they are validated, then that's the moment where I'm like, “I'm going to talk to my mentor about this.” If my peers who have my back say, “Melissa, you maybe didn't get enough sleep last night. That was not as bad as you thought it was or that was not as important as you thought it was.” It helps me stay grounded. That has made me more effective at being mentored too because I take the real things and the important things to my mentor for conversation.
Also, there is a sense of service. Sometimes people think that they can't be a source of wisdom or support until they have more experience or distance from someone else's experiences. It's an encouragement to all of us to be supportive and generous towards our colleagues and others to help them. Mutually support each other but also be there to be that sounding board for people and recognize that you don't need to be twenty years out of law school to do that. If you are someone's colleague, you can still do that. It's a good thing to do to be there for others. Everybody talks about a personal board of directors, and I like a posse.
It feels more vulnerable to me, and the piece that is important is the vulnerability and the feeling of safety that you can be vulnerable because you know you are safe.
Somebody might say, “I don't agree with that. It wasn't a problem.” As you said, maybe you had a rough couple of days, and you see it that way but then you reset and move on. No one is going to judge you for that particular perspective. That is what, in a sense, the posse conveys. We have each other's backs no matter what, and it's nice. More vulnerable but also more heart than somebody saying the personal board of directors. I like that posse thing.
This is a pretty big leap from so many years of law teaching to then the bench. Very often, there would be a lot of governors who would not say, “The first person that I would think of appointing to a bench would be a Law professor.” There has to be something else to converge at a good point for that to happen. Did you have another epiphany about what it was you thought you could do or did it happen another way?
It was an epiphany, although it was one that took a lot longer to actualize. As I mentioned, I taught and still teach Legal Ethics and am passionate about access to justice. I started teaching legal ethics in 2002, and each year, I would end up expanding the amount of time that we spent talking about why the civil justice system doesn't serve people. The different problems that we have in terms of the cost of lawyers and the complexity of the system. The monopoly that lawyers have on giving legal advice and all the ways. Many people don't realize it. Probably the people reading this blog realize this but the majority of the population does not realize that you don't have a right to an attorney in civil cases.
In Colorado, for example, about 80% of domestic relations cases are moving through this system with unrepresented litigants. They are trying to navigate getting a dissolution of marriage and custody of their children with really important life issues with no help, and the system is complicated. It's a very important problem that we've got to find solutions to.
As I was teaching each year, I would make my students spend more time thinking about it. In about 2010, that was my next epiphany. I thought, “Many of the things that make the civil justice system not work for people have to do with the rules that the State Supreme Courts make because, in addition to deciding opinions and doing the judge things that everybody knows that we do are responsible for the administration of the state justice system.”
We make the Rules of Civil Procedure and the Rules of Criminal Procedure, and the Appellate Rules. We decide who can practice law, who can give legal advice, who can't, and the rules of professional conduct. All of that is done by us, not by the legislature. I thought, “That's what I need to do. I need to be on the Colorado Supreme Court because I want to be involved in rethinking how we are running our justice system.”
Again, my focus was very much civil but it's also true on the criminal side. There are so many things that we could do better without any legislative change that we could do better by rules and being thoughtful about how we are doing it. It’s different motivation for coming to the bench than a lot of people have. I love the part of the job that involves hearing oral arguments, reading cases, and writing opinions.
If you're at the Supreme Court, only bring your best horses. The Supreme Court doesn't need to see all the arguments you made at the Court of Appeals.
I love it but that's not what brought me here. That was in 2010. In Colorado, we have the merit selection system that a number of other states have, where if there's an opening, anyone who has a law license essentially can apply. There is a nominating commission that interviews people and sends three names to the governor, and the governor has to choose 1 of those 3 names.
I applied in 2011. I was interviewed by the nominating commission but my name was not sent to the governor. This is going to sound weird because it happens that there are vacancies every two years. It was purely by coincidence. There was another vacancy in 2013. I applied again and was interviewed by the nominating commission but my name was not sent to the governor.
I applied again in 2015, and at that time, my name was sent to the governor but was not selected. One of my now current colleagues was selected, and that was hard because it's very public once your name is sent to the governor. All the lawyers knew right out there. After several months of depression, I picked myself up, tested myself off and said, “Do you still feel like you are called to do this?” I answered myself, “Yes. I still feel called. I'm going to keep on going.”
In 2017, when the next vacancy arose, I applied again, and at that time, I was appointed. To your point about Law professors not seeming like an obvious choice, part of the process of all of these interviews was me educating the nominating commission to understand that, in fact, the work that I did as an academic looked a lot like the work that I do as a judge.
I would never have tried to be a trial court judge because that's a completely different turn but reading, writing, reasoning through things and trying to explain things in language that people can understand that’s what I did as an academic, and it's what I do as an Appellate Judge. Each time that I went to talk to the commission, I got better at explaining that in ways that I think started to resonate but definitely, the first couple of times, they were like, “Who are you and what are you doing?”
It's almost like an education campaign through that period of saying, “No. This experience is thoroughly relevant to this judicial position. Don't discard that at the outset.” There's a story of persistence in that and often everybody thinks, you apply for the bench, and then that's it. Happily ever after. On the bench, so many times, that is not true. There are many applications before you get appointed, and it can be very difficult for someone especially like you who's very high achieving and all of the stuff that's like, “What do you mean? Maybe after the second one, she should be seriously considered for this.”
It could be hard to continue to move forward, and then you have to revisit that and say, “What I think I'm going to have meaning and how I'm going to contribute, is that still true? It’s because I'm going to have to go through this gauntlet one more time.” That peels back a little bit about what is involved in getting to the bench.
For some people, it's very quick. Other times, no. It's many times applying and having the fortitude about that. Justice McKenna on the Hawaii Supreme Court said, “I kept applying probably 10 or 12 times. I kept doing it until I got on the nominating committee list, and then eventually, I was chosen. Being dogged about that if you think that it's something that you can contribute something special to you.
It's another one of those moments where you have to assess how much you think this is what you are called to do and how much you can handle the emotional stress of going through it. I do a lot of work with more junior folks who are interested in getting onto the bench. I've had people I've worked with who I truly believe if they could stick it out, they will one day get on the bench, and it would be great. I've had a couple of people say, “I can't do it anymore. I can't handle the emotional roller coaster. I need to do the job that I'm doing and put it to the side.”
I say, “It's strong of you to recognize that this is not good for you, and I hope that maybe in five years, you will revisit it. Let's put it down and see if we ever want to pick it up and look at it again. If you decide you don't, that's also okay. It's okay to say, “Where the lines met of how important it was to me versus how the emotional strain caused me to say no.” I'm a big fan of doing that self-interrogation for lots of different things.
There's not going to be one answer that is the same for everybody at all. It's going to be different depending on your circumstances, and that's hard because people want one answer. People are like, “Can you tell me the answer.” I say, “There is not answer. There is an answer for you at this moment in your life.”
That could change. As you said, even if you are certain about it now, in five years, maybe your perspective will be different because part of, “Law school is hard. There are many things in the profession that are hard.” If you have a sense that you are either called to do something or that you think you can make a difference in a particular role, it is what carries you through all of the hard stuff. You have to have that sense of why you are doing this because it sure isn't a lot of fun along the way in many circumstances.
The judicial vetting process, the whole appointment process, is very public and everybody is scrutinizing and doing all this stuff. You have to be okay with yourself that you make it through that and go, “I'm who I am, and whatever people think, that's their thing. I hope I get the opportunity to serve in this way.” That's good advice for people, and I also think that part of my thinking in having the show too is that it's nice to have those discussions with individual judges who are on the bench who can talk to you like that and about that.
If you don't have that opportunity or you don't have someone say the right words for you to move forward, then you might not, and the world will miss out on what you could bring. I thought, “This is the way of mentoring and having those discussions, and maybe the right person will listen to the right one and get that encouragement.”
It's a wonderful idea. We are not clearly in conversation with each other but we are hearing each other. I read a couple of the episodes, and I feel like I met some new people, and that's a lot of fun.
That's good. I'm glad you said it that way because that's what I hoped it would be like. That's what it's like for me. I hope that's what it's like for readers. I'm glad it worked. That's excellent. That's exactly perfectly what I had in mind. Thank you so much for sharing that insight too. Also, you highlighted, and as Justice McCormack did too, this is an interesting part of what State Supreme Court justices in particular do and the role in the system overall in deciding important cases but also the administration of the court system and how all of those rules and things play out. Also, having a role in working with those to enhance the system. That's a role that a lot of people don't think about in terms of State Supreme Courts.
The best oral arguments are the ones that just feel like having a conversation.
People are always surprised when I tell them that for us, it varies day-to-day but I would say probably 35% of our time is spent on those administrative things. It's a big part of, and it may be a little bit bigger for me because I care about it a lot but all of us spend a lot of time in our different areas. I have a few colleagues who are real criminal experts who work with the Criminal Rules or the criminal jury instructions and trying to make those work better. That's happening all the time, even while we are doing our front-facing work.
Do you have advisory committees from the jury instructions where various practitioners are also helping with those?
For all of the rules committees, we have a board of lawyers and judges that will make recommendations to us but for each of them, we have one justice who's the liaison justice to those committees. They will get their fingers in it a little bit too. I'm the liaison to our statewide access to justice commission and to the standing committee on family issues, which frankly is very connected because family is so much access to justice issues and a couple of other committees but that's where I focus my time because that's what I know from my practice experience. We try to draw on what we learned. We all came from different backgrounds, and what we learned in our practice and brought that to the court.
That's one of the things we talked about earlier, which is that having that diversity of practices gives you that opportunity. I've had some experience and how this works, so I would like to be the liaison for that. That's very helpful. To the advocacy piece of things, do you have any advice for advocates, appellate advocates in terms of brief writing, oral argument or anything like that in terms of what's effective?
I have lots of different opinions but in terms of brief writing, the things that have stood out to me, particularly at the Supreme Court level and it's a little bit different if you are at the Court of Appeals. At the Supreme Court, only bring your best horses. We don't need to see all the arguments you made at the Court of Appeals. We are not going to grant all the arguments that you made at the Court of Appeals. It's distracting and almost disqualifying. When we see a petition with nine issues presented, it's almost like, “I don't even need to read this because if there's anything here, it's so buried that I don't believe it's going to be presented.”
There has been the spaghetti against the wall approach and the sense that there hasn't been a calling of, “These are the key issues.”
That’s one of the things. I would also say that a succinct, persuasive introduction, not the statement of the case like the facts but an introduction before you even get into anything else, can be effective but not if it's long. This is my third piece of advice in writing briefs. Don't be shrill. I don't like that word because it's a little bit gendered but briefs that scream at us are less effective than briefs that don't.
That's both in terms of the actual text on the page. There is never a reason ever to use all caps in a word. I suppose in a heading but in a paragraph, there is never a reason to use all caps or even to capitalize something that's not a proper noun that should be capitalized. Capitalizing something doesn't make it more persuasive.
In terms of the language, asserting that something is the greatest defense ever or a shocking egregious violation of his due process rights. If it's a violation of his due process rights, that's bad. That's shocking and egregious. You don't need to say, “It's a shocking egregious violation.” It's distracting and not persuasive. A lot of people think that it is but honestly, the briefs that leave all of that out are the most persuasive briefs.
In terms of brief writing, those are the things that come to my mind. Edit that and proofread. Again, I'm going to read your argument even if you have typos and grammatical errors but I will be less confident that you've thought it through carefully because you haven't taken care with your brief. It creates an immediate barrier to the reader and questions about how serious this is. Those are the things that pop out to me about brief writing.
Especially the typos and things like that. I think about that even with the associates and the Law students I work with. I was like, “Make sure that is in order,” because I'm going to look at that or anyone who read this and think, “You didn't get that right but what else did you not get right? What kind of care have you given this entire document you gave me if you didn't check that?” It puts you in the mode of like, “Now, I have to be super careful with everything,” instead of saying, “I will sit back and hear what you have to say.” It puts you in a bad way. I try to say that to the Law students and the associates. I’m like, “You may not know anything else you are doing but we know that you can do this. Take care of that and then the rest we can teach you and train you.”
Another thing I would say is that one of the most effective things I've seen is when people use their table of contents well. If you are thoughtful about your headings, make your headings do a little work both because maybe once I'm going into the brief, I may not read the headings carefully but when I read the brief, the first thing I do is flip to the table of contents and read through. If it only says, “Argument 1, Argument 2, Argument 3,” you missed an opportunity to let me know what I was going to be reading about. If you make a statement again, not a paragraph-long one but a succinct statement, then I am already thinking, “This is what I'm looking for in the brief.” That's an often missed opportunity.
The table of content is a roadmap and a short story of what's to come and also disposition. I don't know if you think about that too in terms of, “If you agree with me on argument one, you may stop here.” The road mapping is like, “We are good here. The rest, we could wing on that. The rest, okay. Fine,” but you don't need to decide that if you agree with me on issue one.
In terms of oral argument, if you can turn it into a conversation, the best oral arguments are the ones that feel like we are having a conversation and related to that. Unfortunately, the US Supreme Court has probably done us all a little disservice in the way that they, in the fact, that the press pays so much attention to them. Their arguments look very different from any other court that I've ever seen.
It’s certainly very different from my court in that they are having an argument, and the justices are arguing with each other, and there is this feeling of gamesmanship that's going on. That's not the case. I have not seen any other appellate court where that's the case as much. For example, if I ask you a question, it's because I want the answer to that question. I do not want you to try to answer a different question that you think will look better for you. I want to know your answer to that question, and I'm not asking it to try to make a point to my other colleagues. I'm asking it because I want you, the lawyer in front of me, to talk to me about the question I asked.
People see it as more of a game than it is. I know my colleagues are the same. I come into an oral argument with between 2 and 10 questions to which I want to know the answer before I come out of the oral argument. I don't need to be the one who asks them. I only need to be sure those questions are answered. If one of my colleagues asks them, I will cross it out in the list and say, “That was answered.”
One of the challenges of being on a collegial court is that you have zero say about who your colleagues are.
If I come out of an oral argument and haven't had those questions answered, it means that something that was bothering me after having read the briefs is still going to be bothering me. It may still be, even after I get an answer. I may be unsatisfied with the answer but the worst thing is to miss that chance to answer the question that you are being asked, even if it's bad for you.
Even if the answer is one that you wish you didn't have to give, being able to answer it and say, “It's true. It would have been better if this had happened but here's why I win anyway.” That's an important skill to develop to concede when you need to concede and answer the question. The great oralists that I've seen, that's what they do.
That last one is an important one because people sometimes think when you say, “Concede when you have to concede.” People think, “What? We are just going to roll over and say, ‘That's it,’ we have to lose? No. The art is the next part of that,” which is, “This case is not so great but it doesn't preclude this from happening in this case for the following reason.” If you can say that, that's the next step to that instead of rolling over. That was a good example of how to do that.
I've seen the flip side. Our chief justice is one of the most wonderful people I know and a very patient and kind man. I will never forget one oral argument where a government lawyer would not concede something that had to be conceded. Chief Justice Boatright said, “Wouldn't you concede that?” The lawyer said, “No, I wouldn't.” The chief came back and said, “I think you probably do have to concede, and I'm curious how you would go from there.” The lawyer was like, “No, I'm not going to concede.” I don’t remember exactly what the chief said but he was like, “You are making a big mistake.” It wasn't exactly that but it was definitely like, “I cannot believe you are not taking this opportunity to concede and then tell me why that's okay.”
In that situation, I can only think that there's something in the background, in the office, that is like, “Whatever you say, don't say that.” “Okay. I won't.” That's what strikes me as something that was going on but it puts you in an uncomfortable position and not good in that situation. I have a question. Do you confer before the argument or only after the argument?
After an argument, there will be hallway talk but we don't sit and confer as a court. We sit and confer as a court right after the oral argument. Sometimes, that's all we need. Everyone is pretty clear on that. At least half the time, we will have a conversation at that point and say, “Let's come back and talk again on Thursday and see if we are all still in the same place.” We meet at a conference every Thursday.
One of us will say, “Based on what came up at the oral argument, I would like to go do a little bit more research. I'm a little unclear about something.” Oftentimes, we confer twice before the opinion is assigned, and when the opinion is circulated, we do a lot of back and forth when opinions are circulated in person. Sometimes, there will be an email or something but we just walk down the hall and talk to each other. We like each other, which is nice.
That’s good because that's one of the challenges of being on a collegial court like that. It’s like, “I have a bunch of colleagues over which I have zero say about who they are.” We are all here together, and hopefully, that all works out well. It doesn't encourage everybody to get along because you have to work towards decisions together but it's nice when we also like each other.
It makes a big difference. We do not agree with each other on everything at all but genuinely like each other, which makes disagreeing much easier.
That's what I was going to say, “That's different.” There's a difference between still having respect and liking each other. That's different from, “We agree on everything 100% of the time.” It’s how you agree or disagree because of the relationship and the respect that makes it much more pleasant. Each court is different. Some confer in advance and even have dark opinions circulating in advance, and others are like your court working it out afterward.
Our Court of Appeal is, and you mentioned that you talked to Karen Ashby. She is amazing. Our Court of Appeals does PDMs, which stands for Preliminary Disposition Memos before every case. They've already written something. With the volume of work that they have, it makes a lot of sense to do it that way. The only thing that worries me about that is that I have changed my mind at oral argument, and I worry that if there were something already written, I would be more hesitant to change my mind. I would be like, “The work has already been done. Why rock the boat?”
One of the things I've learned in this job, which I didn't understand before, is that there are people who are so much better at explaining things orally than they are in writing that I have had the experience of listening to an advocate during oral argument and realizing, “That's the point that you were trying to make? That's not what I read on the page.”
Somewhere between your words and my brain on the page, there was a disconnect that now that I'm listening to you, I will go back and reread your brief, and I will go back and reread the briefs and realize, “Now, I can map what I heard at oral argument onto what wasn't making sense to me on paper.” I realized, “That's a really important persuasive argument, and it, in fact, changes the picture for me.”
I've had that experience where I've seen that happen on the judge's faces during that argument, and you are like, “I think that can even be when you yourself are preparing to present an argument, and you see different themes or ways of explaining things. Everyone hears things or responds to analogies or arguments differently. If you can say, “Another way of looking at this is X,” you yourself can have a moment when you do that and the same thing with members of the bench. It's like, “When you explain it that way, I see what your point is and how this fits together, and that makes a lot of sense.” I've seen that happen in terms of reframing or explaining in a different way.
People ask about oral arguments all the time because most people assume that by the time we get into oral arguments, we've made up our minds, and for me, at least, it's not true. Sometimes in my mind, it's the same. It's not true that I am immovable by the time I get to an oral argument.
That's a distinction too. People think, “This argument makes a difference because everything was well said.” Both can be true that you have a sense going in but there's also being open to hearing other things that may impact the decision-making. That's a different question. That's always why I’m like, “If you have the opportunity for oral argument, don't waive it as an advocate because that's your last opportunity to explain and to answer questions.” You don't know what questions the court has until you're there being asked them. You go, “That's a good question. Maybe I didn't think of that or it's different having that conversation about it.” Typically, I would end with a few lightning questions. Which talent would you most like to have but don't have?
As an advocate, if you have the opportunity for oral argument, don't waive it. That's your last opportunity to explain and answer questions.
Singing. I would like to sing.
Who are your favorite writers?
I love Michael Chabon, especially since my favorite book still to this day is The Amazing Adventures of Kavalier & Clay.
That was an early book of his.
That is still my favorite. I love Zora Neale Hurston, Their Eyes Were Watching God was one of the best books I've ever read. I will stick with those two. I like lots of different writers but those are the two that immediately pop into my head.
I remember when the Chabon book came out first. He went to UC Irvine for his MFA. It was right in my neighborhood, and he was married to a federal prosecutor.
I should also mention that Jane Mayer, who writes for The New Yorker, is one of the best nonfiction writers out there. I don't know if you have read her stuff.
Yes, I have.
"Life's most persistent and urgent question is, 'What are you doing for others?'" – Dr. Martin Luther King, Jr.
It is good.
I think good writing is good writing in all different arenas and can bring great terms of phrases or approaches to writing things that always end up coming out. In some way, in your own legal writing, even. It doesn't have to be the same genre. It's like, “That's effective.” Not thinking about that in terms of writing books. Who is your hero in real life?
My mom, for sure. You've mentioned Chief Justice McCormack on the Michigan Supreme Court. I've never met her but I fan girl her quite a lot. She's doing extraordinary things. It's on my goal list to meet her someday. I don't want to shock her but she's probably one of my distant heroes.
For what in life do you feel most grateful?
My family. I have a lovely husband and two kids. I have a daughter who's a sophomore in college and a son who's a senior in high school. I don't know what I would do without any of them. It’s them and our dogs.
How many dogs?
We have two dogs. We have a Labradoodle named Molly, and we have a COVID rescue. He's from Texas. His name is Ovi.
They are great. They are an important part of the family. Given the choice of anyone in the world, who would you invite as a dinner guest? It could be more than one person if you would like to have a little dinner party.
Probably the Obamas, both of them.
Both have interesting stories, and I also think sometimes that together, it would be interesting too. The sum of both of them together is different and more than each of them alone. What is your motto, if you have one?
I do have one. It is a Martin Luther King quote, and if I say it wrong, I will be super embarrassed but I'm pretty sure I've got the words in the right order. “The most persistent, the most urgent question is what can we do for others?” That's how I try to live my life.
That comes out in your story and in terms of your various epiphanies of how you can best serve at different points in your life. Thank you so much for sharing that journey, your thought process, your advocacy tips, and all of it. I enjoyed this and appreciate you joining the show.
Thank you. It was fun to talk with you. Thank you so much for reaching out.
Yeah, absolutely. Thank you, Justice.
Be well.