Episode 57: Maria Stratton
Presiding Justice, California Court of Appeal, Second Appellate District, Division Eight
01:02:12
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Show Notes
Justice Maria Stratton shares her journey from the public defender's office to the bench. She highlights the importance of mentors along the way, including the federal judge for whom she clerked. She also shares some great tips on appellate advocacy with host M.C. Sungaila.
Relevant episode links:
Justice Maria Stratton, RAND, Project for the Innocent, StrengthsFinder
About Maria Stratton:
Maria Stratton
Justice Maria E. Stratton is the Presiding Justice of the Second District Court of Appeal, Division Eight.
Justice Stratton was born in Santa Monica, California and raised in San Diego, her father’s last duty station in the United States Navy. She graduated magna cum laude and Phi Beta Kappa from the University of Southern California and received her law degree from Boalt Hall at the University of California, Berkeley (now Berkeley Law). She served as law clerk to United States Circuit Judge Harry Pregerson at both the U.S. District Court (before his elevation) and the United States Court of Appeals for the Ninth Circuit.
After clerking, Justice Stratton worked as a Deputy Federal Public Defender at the Office of the Federal Public Defender for the Central District of California in Los Angeles. She was an associate at Overland, Berke, Wesley, Gits, Randolph and Levanas for a short time before joining Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky where she practiced criminal and civil litigation for 10 years as an associate, partner, and a managing partner.
In 1993, the United States Court of Appeals for the Ninth Circuit appointed Justice Stratton as the Federal Public Defender for the Central District of California where for 12 years she directed an office of 60 attorneys representing indigent federal criminal defendants at the trial and appellate levels and on post-conviction habeas corpus review. She has served on the Ninth Circuit Capital Case and Capital Cost Oversight Committees and the Ninth Circuit Gender Bias Task Force Los Angeles Working Group.
In 2005, Governor Arnold Schwarzenegger appointed Justice Stratton to the Los Angeles County Superior Court, where she served as Assistant Supervising Judge of the mental health departments of the criminal division, Assistant Supervising Judge of the Van Nuys courthouse, and Supervising Judge of the probate division. From 2006 through 2018, she tried over 60 civil and criminal cases to jury verdict and presided over hundreds of civil and criminal bench trials. Justice Stratton was also active in bench and bar education.
In 2018, Governor Edmund G. Brown, Jr. appointed Justice Stratton as an Associate Justice to the California Court of Appeal, Second Appellate District, Division Eight. She is presently a member of the Judicial Council’s Probate Curriculum Advisory Committee and Appellate Indigent Defense Oversight Advisory Committee and a former member of the Judicial Council’s Task Force for Criminal Justice Collaboration on Mental Health Issues and the Mental Health Issues Implementation Task force.
In 2022, Governor Gavin Newsom appointed Justice Stratton to be Presiding Justice. After receiving an “exceptionally well qualified” rating from the Commission on Judicial Nominees Evaluation, she was unanimously confirmed by the Commission on Judicial Appointments.
Justice Stratton is the recipient of the 2016 Ernestine Stahlhut Award from the Women Lawyer’s Association of Los Angeles, the Wiley W. Manuel Award for Pro Bono Services from the State Bar of California, and the Mort Herbert Service Award from the Los Angeles Criminal Courts Bar Association. During her career as a trial lawyer, she was recognized by the Los Angeles Daily Journal as one of the Top 75 Women Litigators in California and one of the 100 Most Influential Lawyers in California; by the Los Angeles County Bar Association Criminal Justice Section as Defense Attorney of the Year; and by the Women Lawyer’s Association of Los Angeles as one of the “First Women of L.A. Law.”
Transcript
I'm very pleased to join the show Justice Maria Stratton from the California Court of Appeal in Los Angeles, Second Appellate District, and the new Presiding Justice of Division Eight of that court. Welcome, Justice Stratton.
Thank you. I'm happy to be here.
You have an interesting background. There's a little similarity, at least with Chief Justice McCormack from the Michigan Supreme Court, who has been on the show as well in terms of having a public defender background but you also have a mixture of time in law firms and a judicial clerkship all in the Federal system. You are now a Judge in the state court system. I wanted to talk about that background and how it has contributed to your role as a Judge and Justice. First, I wanted to start with this. How did you get into this whole lopping, to begin with? How did you decide that you wanted to go to law school and might want to be a lawyer?
I didn't want to be a lawyer growing up. A lot of people know when they are six years old that they want to be a lawyer. I didn't. I wanted to be a social worker. I enrolled at USC because they had a good social work school at the time, thinking I would major in Social Welfare, get my Master's, and be a social worker. I did my four years at USC. In my senior year, they put me in an internship. That was part of the major. I hated being a social worker. It wasn't me.
I looked around at all the social workers, and they were doing all this terrific stuff but I wasn't enjoying it very much. I decided, "I don't think I'm going to go down that road." At that time, it was a five-year program to get your Master's instead of six years if you did your undergraduate. I only had one more year to go. I thought, "Maybe I should do it anyway and get my degree but I wasn't enjoying it."
I was dating this guy who was going to take the LSAT. In those days, you took it. You didn't take all these review courses. He said, "Why don't you take it with me?" I went, signed up, took the LSAT, and did pretty well. I thought, "I don't have anything else to do." I took a year off and studied Spanish. I got a job as a production assistant at a television station in San Diego, working on the news.
I worked that little machine that pops up the identification names of people that are being interviewed. It was pretty fun. I went to law school the next year. I still thought, "I'm going to be a poverty lawyer." I wanted to still do social work stuff. I took a class in Poverty Law. It was so boring to me. I thought, "This isn't working out." I still wanted to do something social justice-y but I was having a hard time finding my niche.
At the end of law school, I realized that I thought I wanted to be a trial lawyer, which was outside of my experience. I had gone to a Catholic high school. They wanted me to be on the debate team. I was too shy. I was terrified of speaking in public. At law school, I thought, "I want to be a trial lawyer." I remember my mother said to me, "Do you want to be a trial lawyer? At that point, I wanted to be a trial lawyer right away.
You either became a prosecutor or a public defender if you wanted to do it right away. I applied to both sides and got a job offer from the Public Defender's Office. I had been an extern for Harry Pregerson in my third year. He had offered me a clerkship. I did the clerkship with him and was still very interested in trial work. I applied to both sides and ended up getting a job offer from the Public Defender's Office first. I went there.
What you described can be hard to do, especially when you are younger. You have this image, "This is what I'm going to do. I have this set." You get into it and go, "This isn't at all what I thought it would be. I don't like what this means to do day-to-day. To change that, I had this plan. The plan isn't working." It's being open. You were like, "I will try law school." It's finding your way. Do you know what caused you to decide? Was there some particular thing that you saw or heard that made you think trial work would be the thing to do?
You either became a prosecutor or a public defender if you wanted to be a trial lawyer right away.
When I looked at the substance of the other classes, I was taking, and you take a lot of the bar review classes like corporation and property, the subject matter didn't interest me that much. The thought of sitting in an office and looking at documents didn't interest me that much. The only thing I knew other than that was, "You could be a lawyer that goes into court and represents people and has a lot of contact with your clients in that way."
That's what turned me towards trial work. It turned out to be a perfect fit for me. Still, to this day, when I speak in public, I have a very shaky voice when I start, and then I will get over it and be able to speak. That flows from my high school days when I was too shy to speak at all. It still is a little bit of a problem for me to get going but once I get going, I'm fine.
If you ever stopped being nervous about those things, whether it's presentations in court or speaking, then that means you don't care about it anymore, so you should probably do something else. You care about the result of that. Whenever you care, you get a little bit nervous.
Even at my confirmation hearing, I had to make some comments. I started, and my voice was a little shaky. I thought, "You have been doing this for 40 years. What is going on with you?" It only lasted for about 30 seconds but I was still struck by the fact that I had that performance anxiety before I got on.
That's still a factor. The question is whether it shows or not. You still have the anxiety, "Let's try not to have it show." I listen to all of my oral appellate arguments not immediately afterward because it would be too difficult to be objective. I listened to all of them say, "Being objective, what could you fix? What can be better next time? Where did you properly answer questions? Where did you think something was a hard question when it was a softball?"
It's training yourself by listening to that. One of the things I found was that my voice would start a little shaky or something. I got voice lessons and did all kinds of voice coaching so that wouldn't happen. It happens, and then you have to keep improving. Tell me about your externship and clerkship with Judge Pregerson because you mentioned that had an impact on where your career went.
I was going in the direction of trial work. I thought it would be great to extern for a trial judge. I was up at Berkeley. I was familiar with the LA area because I had been raised in San Diego. I started looking at Federal judges because I had taken my Federal courts class. I loved that class. I applied with Judge Pregerson and the judge in Puerto Rico. I went down and interviewed him.
First of all, I had pants on. I didn't know you were supposed to wear a dress. Later, they commented on that. I walked into his chambers, and he had a Navy sword hanging behind his desk. It was in the Marine Corps. The Marine Corps at that time was part of the Navy. He had a Navy sword, and my dad had a Navy sword as well. I immediately recognized the sword. It popped out of my mouth, "My dad has a sword like that." I didn't know he had a real military history.
That's very positive because he's interested in that.
I had no idea. We spent the whole time talking about his career in the Marines and my dad's career in the Navy. My dad was a career Navy guy and had spent all of World War II and the Korean War in the Pacific on hospital ships because he was a doctor and an aircraft carrier. I knew a lot about that. We had a lovely conversation. He hired me as his extern. This was in the fall of my third year. In December, I had gotten close to his secretary, Jackie, during my period there.
She said to me, "You should apply to be his clerk next year." I said, “Jackie, come on." I wasn't at the top of my class and didn't have all those credentials that the law clerks usually have. It hadn't occurred to me to apply to be his clerk. She said, "You should go ahead and apply." I went into his chambers one day and said, "Judge, I have to ask you a question. Would you hire me as your law clerk?" We paused. He looked at me and said, "Okay." I was shocked.
I'm sure Jackie was pushing me and pushing him to hire me, and my background or she wouldn't have suggested it. I was still pretty surprised. If it hadn't been for Jackie, I wouldn't have had that experience. It was an experience that changed the whole trajectory of my career because he was someone who was very loyal to his clerks and was constantly pushing them in the direction he thought they should go based on his relationship with them. He did that with me as well. It was wonderful.
That personal connection and relationship with the judges that you clerk for is so special in the long-term. Having that experience and connection with him from the beginning with the sword and everything moved things forward, and then having Jackie probably say something like, "You might consider this," before you walked in there but you had to make the ask.
I have always been partial to support staff. I went out of my way to become friends with Jackie because I wanted to know her better. She was the only other woman in the chambers. I wasn't thinking that I was going to get anything out of it for myself. I just wanted to get to know her and what her whole experience had been because she had been a single mom at a time when there weren't a lot of single moms. I learned a lot from her. My interest in other women and other women's stories helped me along unknowingly. I didn't think it would but it did.
You don't do it for that reason but interestingly enough, it might end up helping in some way. I have the same thing. Everywhere I go, the support staff is very tight and kind to me. Part of that is that you treat people all the same. It's not that position matters. It's how you treat people. Everyone is a human being. You treat everybody with kindness and respect. People notice that.
That's something I relate to for sure. That's amazing because you think of how one thing strings together from doing the externship and then the clerkship and having that opportunity to spend more time working with him and learning from him over that year as well. Certainly, that helps because he went from a district court to the Ninth Circuit while you were working for him as well. You had both.
The other thing about him was he was one of the first District Judges to hire female clerks, even when I was there. I started in 1979. That was the first year they had a female district judge. There were still male district judges who would not even consider hiring female clerks. I wasn't his first. I was maybe his fifth. He was a real pioneer in doing that and very instrumental in nudging the other judges to do it as well. I was fortunate to work for him.
I had forgotten about that. I talked with Tina Bird, who's on the Superior Court but also has a Federal background. She said the same thing in terms of the clerkships. What's so interesting too is the timeframe you are in matters in terms of what's available and when things are starting to break open in that regard. If it had been ten years earlier, having the clerkship experience would not have been likely possible at all for you. My experience in the late 1980s and the beginning of the 1990s is very different. They were hiring many more women as clerks, and it wasn't a question anymore but that's because all that had to happen before that, ten years prior.
It was because of Judge Pregerson and also Judge Warren Ferguson. Warren Ferguson was next door to us. He was also hiring women almost from the get-go. Those two were pioneers in letting us get our foot in the door. It was great. I remember when Judge Connie Marshall was appointed to the bench. He went out of his way to invite her down, show her how he set up chambers, and have her talk to us so she would know what we did when she was in the midst of hiring her clerks. He was so welcoming to women in a Federal court. It was a wonderful thing. I don't think he gets a lot of credit for that but he should.
It is such a gift to people, especially when you are starting like Judge Marshall. There are so many things you have to learn about how things work and all that. Getting that guidance is helpful. She's such a lovely person. It's nice that he was helpful to her as well. She's such a kind person. She sits on the RAND Advisory Board for the Institute for Civil Justice with me. She always has such great comments and insights when we are discussing different policy issues and things like that. You got your position at the defender's office. How did that go?
The one thing about being a hands-on administrator is that at a certain point, all the personnel problems start to wear on you.
It was great. Judge Pregerson was pushing me to the US attorney's office. That's where he wanted me to be because he told me, "I want you to be a judge. The way to be a judge is to be a Federal prosecutor." He was pushing me to apply to the US attorney's office. I was like, "I don't know if I have the personality to be a prosecutor." I did apply and interview with the US attorney's office. I didn't feel that it was me and what I enjoyed doing.
I was very lucky when the Federal defender made me an offer. At that time, there were only fifteen lawyers in the office. A third of us were women. It was pretty much in the vanguard in those days. I was there for three years. I had a terrific experience. In those days, you stayed three years and then left. Now it's more of a tradition to stay much longer than that but most of us stayed about 3 or 4 years and then went off. I stayed for about three years and then went to a small firm that had built itself as a Civil Rights firm.
It wasn't but I was still thinking in my mind, "I want to do a social justice type. That's where I want to be as opposed to contracts, torts or something like that." I went with them for about ten months. They hired me because I knew the Federal court very well. I was able to make appearances in Federal court comfortably because I was comfortable there. I was working for this lawyer. I was carrying his briefcase and doing all the work. He would get up and do the appearance. I had already had three years of doing my own cases.
It would seem like a step backward.
I wasn't enjoying the work that much because it wasn't Civil Rights work. I stayed for about ten months. I went into the senior partner one day and said, "I can't do this any longer. Can you switch me to a different partner? I'm just carrying his briefcase." They said, "We need you to work with him." I go, "I quit." I had no idea what I was going to do after that. Luckily, by that time, I was married. My husband was working. I wasn't going to quit without any basis of support.
I came home and told Stephen, "I quit my job." He was at a small firm with lovely partners. The two senior partners took me out to lunch and said, "We want to hire you." I said, "I don't know if it's a good idea for me to work with my husband. That might be a little too intense." They had asked me to work for them before I went to the small firm. I had told them, "I'm not going to do that because I don't think we could work together." They came back and said, "Give it a try."
The senior partner said to me, "If it doesn't work out, I will find you another job." I said, "That's different." I went with them, and I was with them for ten years. There were eight partners. Three of us were women. It was terrific. It was a wonderful experience. They were all either ex-Federal prosecutors or ex-Federal defenders. We were mostly practicing in Federal court. We did a little bit of state court work but it was mostly Federal. I had a lot of great experiences there.
One day, I came into work, and the application for the Federal defender position was on my chair. To this day, I don't know who put it on my chair. I wasn't even following the office. I didn't know that the position was open or that it was up for reappointment or anything. I was looking at it and thought, "There are two possibilities. 1) Somebody is trying to get rid of me or, 2) Somebody thinks I should apply for this job because I would be good at it."
I never found out who put that application. I filled it out and sent it in. I told my husband. He was one of my partners. I told two of the other partners. I filled it out and sent it in. I didn't do anything about it. I didn't start campaigning, calling people or anything. I told one of the partners. He said to me, "Do you want this job?" I said, "Yeah, that's why I applied for it." He said, "Why aren't you telling anyone, going out, and telling people who can spread the word about you so that you can get this job?"
It hadn't occurred to me that's what you are supposed to do when you apply for a job like this. I said, "Is that what I'm supposed to be doing?" He said, "Yes, so that if they get called, they are not going to be surprised when they find out that you are being considered. Also, they can spread the word for you if they are your supporters." As it turned out, I called a friend of mine who I've worked with at the PDs office who was working for a big firm and asked him for support.
He said, "I can't even believe you are calling me. I got a call from someone who's vetting the incumbent. I said to the person that called me that the incumbent would be fine but I would like to see Maria in that position.” I said, “You said that?” He said, “Yeah. I didn't even know you were applying." When I got off the phone, I thought, "Mike was right. I ought to get on the stick and start selling myself to people," which wasn't my inclination. I started to make more phone calls and did what I had to do.
Who makes the decision in that regard? Is it the district judges? Who appoints the defender?
The Ninth Circuit appoints the defender. They have a committee of judges, the Committee on Defender Services, that handles all of the Federal defender's offices in the Ninth Circuit. They will generally ask the district court judges for their opinion on the candidates. Although it's not a binding opinion but they will ask the district court judges for their opinion because you are appearing in front of the judges.
They know more, they see you, and can comment.
When I applied, I had an interview with the selection committee of the Ninth Circuit, which was comprised of private lawyers, a Federal defender, a judge, a law professor, and a member of the state bar. They represented a state bar there. There were six people on it. I also had an interview with the committee of the district court judges, which was a little dicey. I had an interview with the three Ninth Circuit judges who were on the selection panel for the Ninth Circuit.
I don't know if people know how that works in terms of whose decision-making it is. Those people call around, vet, and ask questions to people who might know something about you. That's where that comes down to. You should let those people who might get called know that you are interested in applying and all of that.
I didn't know that. I'm constantly telling people. In those days, I wear my hair shorter than it is now. I had two little kids. I didn't have time to be fooling with my hair. I remember when I went to speak with the three Ninth Circuit judges. The first question they asked me was, "Why do you wear your hair so short?" I looked at them. I was stunned. Who asks a question like that? I said, "I do because it's easier. I like it." It was on the tip of my tongue to say something flip.
When I met with the district court judges, one of them asked me, "If you got this job, would you hire the incumbent? Would you keep him on?" I said to the judge, "I don't know if you know this about the incumbent but he's a fabulous trial lawyer. I would keep him on. The question is whether he would want to stay on because he might not want to stay on but if he wanted to stay on, I would take him in a heartbeat. He's so great." One of the other judges was very droll. He looked at me and said, "That was a gracious answer to a stupid question."
I was like, "You are in the middle of something there." Sometimes it reminds me of an oral argument where you are getting questions and you think, "That question isn't for me. It's for another member of the panel. I'm here to provide the answer that will give more ammunition for whatever is going on here. I will do my part and step aside afterward." When you joined the office, it was pretty small but then, in your tenure as the Federal Public Defender, it grew. You are responsible for some of that.
When I first joined the office, there were fifteen of us lawyers. When I came back as the Head, there were 39. When I left, we had about 60. It grew quite a bit but it grew mostly because shortly after I started my term there, the Ninth Circuit wanted me to start a capital habeas unit to represent individuals who were under a death sentence in state court. They were filing their Federal habeas petitions. They wanted us to take over that representation because it was too expensive for them to be appointing private lawyers to do it.
When you don't have that mix-up of ideas, it's not as rich.
I was pretty much opposed to starting such a unit. I told the chief judge at the time of the Ninth Circuit that I didn't want to do it. He hung up on me. A couple of days later, he ordered me to do it. I did it. We started a capital habeas unit. That expanded the duties of the office. In addition to the lawyers, we had to hire special investigators, special paralegals, and support staff to help them. In about a year, we were already hiring twenty new people. By the time I left, we had about 200 employees and 60 lawyers in a medium-sized firm.
One of my colleagues from the Ninth Circuit, Paula Mitchell, runs the Project for the Innocent at Loyola. I know a little bit about what's involved in some of that habeas work.
They are in the thick of it. She knew Judge Alarcón wrote a big report on the death penalty.
How long were you then back in the public defender's office serving as the Head of the office? That was much longer than three years.
I was there for twelve and a half years. I got reappointed twice. At a certain point, I loved that job. I felt like I was helping to make a difference. I was doing these little one-issue appeals to keep my hand in it so the Circuit would also see me in action and not think I was just sitting around. I wasn't doing any trial work but I was proud of all the lawyers in that office. They do amazing work. It's under difficult conditions. My goal was to try to make it 50/50 gender-wise and also increase the minority lawyers in the office because I thought it would be better for our clients. I was fortunate enough to be able to do that by the time I decided to apply to the bench.
What made you decide, "I would like the challenge of being on the bench?" It sounds like Judge Pregerson had told you that he thought that was a good path for you in the beginning but when did you think that would be a good path for you? What caused you to apply then?
He was pushing me. The one thing about being a hands-on administrator is that at a certain point, all the personnel problems start to wear on you. People have their issues. Maybe they feel they are not getting the recognition they want. They think they are being discriminated against or not getting along with their colleagues. I realized I didn't have as much patience as I did when dealing with those things. I was dealing with them but wasn't as patient in my own head as I thought I should be. I thought, "It's probably time to go and let somebody else take the mantle."
I didn't want to go back into private practice. Each person was pushing me. I applied to the Superior Court bench under Gray Davis thinking, "I'm a Democrat. That's not going to be a problem." It was a problem because by then, I knew you had to go around and call people. I was doing all that stuff. Somebody told me, "He's not going to appoint you because you are a public defender. Don't even think you are going to get it." I didn't.
When Governor Schwarzenegger was elected, I applied under him, and he appointed me. Even so, the first thing his appointment secretary said to me was, "I don't like the judge you've clerked for." I said, "I don't even know how to answer that because I do." I don't know if he was trying to poke me to see how I would respond. It turned out to be a lovely interview with him. Schwarzenegger appointed me to the bench. I was on the Superior Court for twelve years.
Some previous governors will be like, "If you are in this particular role, we don't appoint people who have that in their background." The fact is that can change. I remember what Judge Pregerson was saying, in other words, "The best background to have the best likelihood of appointment to the bench is to be in the US attorney's office or have some experience there or in the DA's office." That gives you a launching pad where people feel comfortable appointing people with that experience.
No one ever said previously the equivalent of that is being in the public defender's office. It was a disqualifier but that changes too. Governor Newsom wants more diverse viewpoints on the bench in a number of different ways, including that. If we have prosecutors, we are going also to have people who have done defense work. That can change if that goes in the category, "Don't disqualify yourself forever from a particular position because that may not be the situation at that point." That path is not possible for quirky reasons or whatever reasons are out there.
President Biden has been amazing in putting some public defenders on the bench. Governor Brown always looked for public defenders, legal aid, public interest lawyers, and plaintiff's attorneys. They may never get appointed. There's a certain group of us that are hands-off. It has changed now. It's wonderful because having different practice areas on the bench is so important, not just for the litigants but also for exchanging information among colleagues.
When I took the Superior Court bench, I became pretty close friends with another judge who was a 25-year DA. I went to mental health court after he did, and then he came to probate after I did. We were always in touch with each other but I remember that when we were sitting in the same divisions for many years, he and I would check in with each other. I would say to him, "Why is the prosecutor doing this certain thing?" He would say to me, "Why is the defense attorney doing certain things?"
We were able to put our bodies of knowledge together to come to the right decisions. It was wonderful. When you don't have that mix-up of ideas, it's not as rich. I find the same way with gender. If you don't have a good mix of gender, it's the same thing. You are able to say to somebody, "You shouldn't be doing or thinking that." There's a stereotype. They are able to do that to you too but you don't get that if you don't have a real diverse group working together.
When I'm reviewing an appellate record as an advocate, I try to see based on some prior litigation experience or what have you. What do I think is happening in the exchanges? Why would somebody do X? It's nice when you have the background to be able to think about that in terms of the larger picture and have somebody you can ask to say, "What is happening? This doesn't make sense. Why would someone make this decision or take this approach?"
It's helpful, especially in the appellate realm, to have that debate. I have never been the type who thinks being a solo appellate practitioner is the way to go unless I have people to bounce things off of or go through, "If we take this approach, is that fit with the law? Is there some other argument?" Brainstorming the legal arguments and where the law is going is so helpful. Having people who bring different experiences to that process makes a difference.
The appellate court has farther to go than the Superior Court as far as maxing it out more. Hopefully, Governor Newsom is aware of that and is trying to mix up practice areas.
You were on the Superior Court, and then you joined the Court of Appeal. How are those two roles different? What do you like about the trial court role? What do you like about being on the appellate bench?
I liked being in trial and doing bench trials quite a bit because you can get more into it. When you have a jury trial, you are hanging back out because you are letting the jury make the decisions and form their ideas about what the stuff is. With bench trials, you can get into it. I enjoyed that quite a bit. The greatest thing for me about the appellate bench is that you get to do a little bit of everything. You get to do criminal, civil, dependency, family, probate, and delinquency.
You are moving from one area of the lot to the other and thinking hard about stuff. I love that diversity of practice. When I was in the Superior Court, I was constantly volunteering for different practice areas. I pretty much did almost all except Family Law and dependency because I liked learning new things. With this assignment, you are learning new things every day. It's very interesting to me.
The greatest thing about the appellate bench is that you get to do a little bit of everything. You get to do criminal, civil, dependency, family, probate, and delinquency.
That's what I love about appellate practice too. One day, you are doing one case. Another day, you are doing another kind. It keeps it fresh and interesting. You are deciding where the law should go when you are on the appellate bench. That's fun. You are mixing it up between the different kinds of Substantive Law. That's unique. There are some states where that's not true. The Texas Supreme Court is divided between a Civil Supreme Court and a Criminal Supreme Court, for example. There may be some overlap but they are different subject matters. That's not how California courts are done. It allows more variety.
I don't think it's a good idea, frankly. I remember that when I was on the Superior Court bench, they would often assign lawyers who had just been appointed as judges and only had a civil practice. They would be plucked down into a criminal assignment. They had no idea what they were doing. They were learning it brand new and bringing with them their skills from their civil practice. They had such interesting insights and questions, "Why is it this way?"
The criminal bar wouldn't necessarily question it because that's the way they learn to do it. They would come in and have these interesting questions and perspectives on things. It would make you think, "I've always taken that for granted. Maybe it should be changed. Maybe it is a bad idea." Even with Criminal Law, it goes the other way too. I would look at civil things and go, "This doesn't seem to make sense from my experience." You would be able to have real dialogues about things.
You are in the presiding justice position for your division. There are other things to that job also in hosting oral arguments in that way for people who come before your division. What unexpected things have you encountered in your first few weeks in terms of the presiding justice position that have surprised you?
I was surprised at how stressful it is to lead an oral argument because, at least in our division, the PJ keeps track of the time for the lawyers. It's not the clerk doing that. You are multitasking at the same time you've got your phone at your side with your timer on. You are watching the time for the lawyers and telling the lawyers when they are close to timing up so that they can wrap up. You've also got your list of questions that you want to ask about the case. You are also looking at the overall time because you've got to finish your calendar by 4:30 hopefully.
I didn't know this but oftentimes, we will schedule six hours of oral argument theoretically, and we will have to squeeze it into five hours because the counsel could have asked for up to 30 minutes. A lot of times, they will ask for 30 minutes but we are looking at it and thinking, "This isn't a fifteen-minute case." We are over-scheduling. I did my first one. I'm looking at it. We had scheduled 7 hours of oral argument in a 6-hour day. I'm freaking out already by noon and telling the clerk, "Are we going to be able to do this?"
He's like, "We will do it." We ended right on time. There are all these things. When I thought as an associate justice, I could sit back and think about the case I was doing and worry about all the practical things but I'm sure once I get more accustomed to it, it will be fine. The former presiding justice was so sweet. She emailed me and said, "You did great. I watched the live stream." That was nice to hear from her because she was terrific at it.
She's so kind and gracious in that way too. She's supportive of other women. Who I've experienced as being good at managing oral argument calendars and things like that is Justice Bigelow. She's great. On the Federal bench, Judge Callahan is good at that. She's very respectful to her colleagues by saying, "Are there any other questions? You have this and that." She's arranging the timing. The thing is, they don't have to count because the calendar is there. They don't have to do that part.
It's being gracious to make sure that the colleagues on the bench are able to ask the questions because that's important. You are there to answer the court's questions. If they have some, they should be allowed to ask them. It's working with the time and also making sure the counsel has extra time if the questions took too much of their time away from them and at least a couple of minutes for rebuttal or things like that. She does it very seamlessly and respectfully to everyone. She's a good person to watch where she's presiding on the panel at the Ninth Circuit. She does a good job of that.
That's great to know. I have to look her up.
We will tip on that. I always ask your nuts and bolts in terms of advocates appearing in front of you, either in argument or brief writing. Are there any particular things that you are like, "These people should know X to make sure that they are helping us the most they can help us or our research attorneys?" What should people make sure they do either in an argument or a brief?
In a brief, what is least helpful is when the litigants are not adhering to the standard of review. If the standard of review is substantial evidence and they are arguing all this other stuff that's out there but they are ignoring the body of evidence that supports the verdict, not even touching that, it doesn't help us because we have to abide by whatever the standard of review is.
I'm surprised at how many people ignore that. The true appellate lawyers, that's their specialty. They start with that. Their briefs are very helpful to us in that way because they lead us through the right way to do it. The lawyers who don't do a lot of appeals or maybe do, the standard of review isn't helping them. They ignore it. It's disappointing because we are not getting any help from them.
We have to look at their brief and go, "You are not helping us. You are not using the right standard." That has been a big discovery for me in the three years I have been on the appellate bench. The quality of the appellate writing is so different. Before, when I was practicing in Federal court for so many years, I had never done a state appeal but I had done about 50 Ninth Circuit. I was used to the Ninth Circuit.
I thought the same good learning would be the same degree of good learning in state court. I was surprised at how many people will take on an appeal, have no idea what they are doing, and don't bother to read the rules. You get the lawyers that are the experts at it. They are a dream. It's so fun to be with them because they are so helpful to us in arriving at the decisions we have to make.
The other thing that I found is that sometimes you think, "The oral argument isn't going to be that important." In our division, we issue tentatives. We are often changing those tentatives because the oral argument is so helpful when you get a good advocate. When I joined the court, I was anti-tentative because I thought that would be the impression that we had already made up our minds. We were set in stone, "What's the point?"
I was surprised at how many times we changed the decision completely or at least change the focus or added things that we didn't think were important but the counsel educated us on. It's pretty fluid. I was pleasantly surprised because I didn't want to give the impression to the counsel that we had already made up our mind, "Don't even bother."
You want to go into the argument thinking, "I could have a meaningful discussion about something as an advocate too." The way you do the tentatives is it's a summary of where you're going. That is a nice and happy medium between full-on tentatives that are released that might make you feel like, "There's very little chance that I could have an impact on this now that it's all fully written in front of me." It's releasing something that says, "Here's where we are going and what we are thinking. Tell us if we are missing something. Is there something else we should consider?" That helps engage people to say, "I know where the point of engagement should start, so I will start there, and we will have a dialogue about it."
I'm surprised how many lawyers come in. The first thing they say is, "Thank you for the tentative. It helped me to focus my argument." I remember when I was pro teming in another division that didn't give out tentatives. You would get these lawyers that would come in and talk about stuff that they thought was important. In our heads, we are thinking, "It's not that they don't know it. They are fully at a disadvantage." There are some justices in my division that prefer the, "Let's give them the whole opinion." I'm more of what you are saying. I give them a summary so they can focus on the issues that we think are important. That's something that we are going to have to negotiate.
That can happen sometimes. You are like, "We think this is the important issue to start with." You start and realize, "I'm getting a lot of interest in this. Maybe that isn't what the panel is interested in. I will talk about this other issue. I didn't see it that way." If you don't have to do that, you already know, "We are going to talk about this issue. We will start there." That makes it easier and more efficient for the advocate. I could see why people are happy to see that.
If somebody offers you help, take them up on it.
We get better results out of the lawyers because they are more focused. They are more helpful to us. I'm a big fan of it. I wish we all did it.
I like where it has come to. It was several years ago when Justice Bigelow started that. She was massaging it, working with it a little bit, and having it come out to where it is now. It's good. It has been organic because you have a little give-and-take between people, "We are going to try it this way. Was that helpful or effective for anyone? Did it help us? Did it help the advocates? We will tweak it a little bit and do it this way." It's nice to have that. It's responding to the impact of it because sometimes you think in life generally, "This is a great idea. I'm going to do this." The response was, "That wasn't a great idea. You need to adjust that." It's good to adjust in response to feedback and things like that.
We have a lot of disagreement in our division. When we are trying to craft the tentative, oftentimes, the person that maybe is in the minority on a particular issue or is on the fence will say, "Could you include these questions in the tentative? Can we write it so that the parties know we are not all onboard?" Oftentimes that's helpful.
I'm a real big proponent of, "Could you put my question in the tentative? I don't have to ask them. We don't have to waste time with the lawyer. They can come in prepared to answer the questions." I found that helpful because if I'm on the fence about something and the lawyers know what my issue is, then they come in and address it directly. It's so helpful in coming to a decision.
In putting the questions in there, how do you think that impacts the way that argument progresses? Do you think there are more or fewer questions? Is it that the questions ended up being more refined because people are starting at least in the general area of concern that the court has? I don't know if you've seen any impact.
It refines the argument because the lawyers come in and know what the questions are in advance. They don't have to think on their feet. They have been able to think about it and maybe tie in certain cases to make their points. It has been a great idea to have them when we do say, "Would counsel be prepared to answer the following question or address this particular issue?" They start with that, which is also wonderful. I do a lot of moot courts for students. You are always telling the students that, “If the judge asks a question, don't say, ‘I will get to that later.’" When we issue a tentative like that, they come in ready to hit the tentative right off.
In the very beginning, it was done when you come in and appear at the beginning of the calendar. There would be a little note, "Here are our questions. Here's the tentative." You have some time but you didn't have the time as you do now in advance where you can say, "Let me consider that and think about the nuances of answering that." That has been an interesting change in the format of the tentative summary too.
It's particularly helpful when we picked out an issue that maybe wasn't a big focus of the brief. We are telling the lawyer, "The issue you thought was important isn't that important to us. We want you to look at this issue." When we issue the tentative far enough in advance, then they have an opportunity.
If it's something like that and you are showing up for a calendar that day, you are like, "I hadn't considered that. I would have liked to so I can answer that." That's helpful. We talked about Judge Pregerson's impact on you and your career. Are there any other mentors or sponsors like the magical mentor who left the application for the public defender's office on your chair? It's the little elf or fairy. You may never know who that was but I'm sure there were others that supported you.
I always tell people, "It's helpful to have a mentor or a sponsor." Sometimes people go, "What is that? How do I get that? What does it look like if somebody is being a mentor or sponsor?" That's why I asked you. Sometimes in those stories, people go, "Someone is trying to be helpful to me. I should listen to them or help them be helpful."
I was fortunate because I did have Judge Pregerson pushing me, even after I left the clerkship. He did this with all of his clerks. He pushed us off to where he thought we should be. I, too often, wonder how people react when they say, "You should find a mentor." People were like, "How do I find a mentor?" I don't know how to find a mentor other than to reach out to people that you think you want to know better and to feel confident enough in yourself to reach out to them and do that. If you are not the type of person to do that, then if someone offers you help, take them up on it.
There's a young research attorney in my court, not working for me. It's a young woman who's applying to the bench. When I found out she was applying to the bench, I said, "Let's have lunch, sit down, and figure out what you are doing and who you need to call. Let me help you. Who can I call? There's this and that." I never heard from her. I don't know if it's because she thought, "I shouldn't bother her," but I offered. If somebody offers, take them up on the offer because if they are offering, they know it's going to be a lot of work but they are offering anyway.
You are worth it. Say to yourself, "I'm worth it," and take them up on the offer. She never did. I thought, "Is she not taking me up on the offer because she doesn't want my help?" That's one thing. I feel like she's embarrassed, and it would be too much of an imposition. I'm in a quandary of like, “Should I call her?” Should I say, "What's going on? Do you not want my help? Do you not want to be associated with me? That's okay. If you are doing this because you think it's too much of a hassle for me, I wouldn't have offered if it was a hassle." On the other hand, I also have my little, "Maybe she doesn't want me."
I feel like that too. You've offered to help someone. You are like, "It's out there if they want it. I'm not going to push my help on someone."
My advice to people is if somebody offers you help, take them up on it, go have a cup of coffee with them, and find out what they can do for you, what they think about you, and what they see in you that maybe you don't see in yourself because oftentimes, they will say to you, "This is why you should go in this direction." You are thinking to yourself, "I never looked at myself like that."
There's a lot of that in terms of how you don't see your potential in that way. It's called the StrengthsFinder test. When you do that, you can find out your particular inherent strengths. They say that in most circumstances, you are not going to see your strengths. When they come back, you go, "Doesn't everybody do X?" They are so inherently in you that you can't see them. It's a little bit like this. They are your strengths that people see. They can be employed in this positive way. They would be a great fit for this particular position but it's hard to see because it's part of you. You think, "I'm not special. Everybody is that way."
You don't know why you are special. You don't recognize that specialness in you. I remember when I first started as the head of the PDs office. The male lawyers would come in all the time. They would be telling me about their victories or what they did. It was a lot of fun to hear what they were doing. They had no compunction about coming in and not boasting but letting know this good thing that they had done. I would never get the women in there. They would never come up and do that.
I thought, "What is this all about? I know that they are doing as well as the men but why is it only the men that are coming up?" It's a reticence in many of us not to talk about ourselves. Ultimately, I started a tradition where we would put on the office-wide email everybody's victories or good things so that everybody could see that everybody was doing well. It's a certain group of star lawyers who happened to be the ones that were more vocal about their victories than anything else. A lot of times, I thought, "Maybe they don't see themselves being special." They need to put that out to them.
That's a subtle culture change within the office but it's also meeting people where they are. If you said, "You need to go in and let people know about this great result you had," you may not even realize, "I wouldn't put it in that category of great result that I would choose to tell you about." When you change a culture to, "This is what we do when we have good outcomes or something like that," then some people will come forward in a way that they might not in other ways and circumstances. It does say a little bit about how tiny changes in how you do things impact people's
perceptions of themselves. We get to celebrate everyone, not just the people who come in and let everyone know about it.
You get a lot more out of people when you're kind to them. When they feel that kindness, they pass it on to others.
At least as an older lawyer and judge, it's important that we push people to recognize their specialness.
I know that there are some situations where people don't feel comfortable in that but they are comfortable promoting someone else or saying what somebody else did that was good. Sometimes in law firms, we have other women partners, "You can tell others about the great thing that I did, and I will tell others about the great thing you did." We all feel much more comfortable doing that because we were more comfortable lifting someone else up and making sure they get credit for something that we think is pretty cool.
There are different hacks to this system to make sure. I'm like, "We will do whatever works in this circumstance." Thank you so much for joining the show, talking about your journey, hopefully giving some food for thought to others in their career journeys, and making sure not to be shy about opportunities or accepting help from others. I would like to do a few lightning-round questions before we close the episode. Which talent would you most like to have but don't?
I would love to be a singer.
Who are your favorite writers?
Russell Banks is probably my favorite writer. I like the way Agatha Christie writes.
All of the different mysteries like Miss Marple and the characters, are great. Who is your hero in real life?
It's probably my parents.
For what in your life do you feel most grateful?
It's probably my parents and my husband. I have a wonderful marriage with him. My parents were so supportive. They weren’t helicoptered parents. They were like, "We are there for you and whatever you want to do." Particularly, my mother was, in a very quiet way, an extreme feminist. She inculcated my sister and me with that in a very sly way. I'm grateful to her for that.
I remember my dad being in the same category of whatever-it-is-you-want-to-do thing in an era when dads didn't necessarily say that if you were a girl. It's helpful to have that. Given the choice of anyone in the world, who would you invite for a dinner party?
I would probably ask our Chief Justice of the Cal Supreme Court. I would like to know her better. She's a very fascinating person.
That's a good one. That's the first time someone has chosen our Chief Justice. She is pretty great. What is your motto, if you have one?
My motto is to try to be kind to everyone. In my job, I'm dependent on the lawyers and the people I work with to give me the resources I need to make decisions. You get a lot more out of people when you are kind to them. When they feel that kindness, they pass it on to others. When I was in the trial court, you could never go wrong being kind to someone. They may not immediately respond in a kind way but eventually, they come around. It's so much more pleasant and effective in getting the best out of everybody by being as kind as you can be to them and nonjudgmental about people.
That's very good advice to end with. Thank you so much once again, Justice Stratton, for joining the show. I appreciate it.
Thank you. It was a pleasure.