Episode 64: Dana Kuehn
Supreme Court Justice and Former Presiding Judge of the Oklahoma Court of Criminal Appeals
01:03:22
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Show Notes
Oklahoma Supreme Court Justice Dana Kuehn, the first woman to serve on both of the state's high courts (the Oklahoma Court of Criminal Appeals and Supreme Court), sits down with host MC Sungaila to discuss her career trajectory, including her path to the bench, and shares insights on effective advocacy, appellate briefwriting, and moving from the role of trial lawyer to service on both the trial court and appellate bench.
Justice Dana Kuehn
Justice Kuehn was appointed to the Supreme Court by Governor Kevin Stitt on July 26, 2021. Before being appointed, she was serving a 2-year term as Presiding Judge of the Oklahoma Court of Criminal Appeals to which she was appointed in 2017 by Governor Mary Fallin. She is the first woman in Oklahoma history to serve on both courts of last resort.
A native of Tulsa, Oklahoma, she attended Oklahoma State University, receiving a Bachelors Degree in Political Science. Justice Kuehn was a top-ten graduate of the OSU College of Arts and Sciences and a member of Kappa Alpha Theta Sorority, of which she served as President. She received her Juris Doctorate from the University of Tulsa College of Law in 1996.
After graduating law school, Justice Kuehn was a felony prosecutor for ten years with the Tulsa County District Attorney’s Office. She headed the Crimes Against Children Unit and served as Chief of the Juvenile Division. She was an Associate with the firm of Steidley & Neal from 1999-2000.
In 2006, Justice Kuehn was elected Associate District Judge of Tulsa County. Justice Kuehn served as Chief of the Civil Division at Tulsa County from 2010 through 2012. She teaches Evidence Workshop at the University of Tulsa College of Law. In May 201 7, she was inducted into the Tulsa College of Law Hall of Fame and received the Thomas Coffman Community Service Award.
Justice Kuehn is an active member of the Tulsa County Bar Association and Oklahoma Bar Association. She is a recipient of the 2016 Mona Salyer Lambird Spotlight Award. In 2017, the American Board of Trial Advocates recognized her as Judge of the Year for the State of Oklahoma.
She is a member of the Choctaw Nation of Oklahoma.
Transcript
In this episode, I'm very pleased to have and join us a Justice on the Oklahoma Supreme Court, Justice Dana Kuehn. Welcome.
Thank you for having me.
We want to know about your career, your path to the bench, and your time on the bench also. We'll get down to the very beginning of the inklings and the inspiration of what made you want to go to law school and become a lawyer.
I'm one of those goal-driven people. I have been my entire life. I can tell you that I knew I was going to be in law school when I was in high school. There are no other lawyers in my family. I don't know why. I'm a religious person. I attribute a lot of things to God and what I think my path is supposed to be. In high school, I enjoyed reading. I'm an avid reader. My parents had me read all the time. In fact, it was something fun that I did with my mother to go to the library and do the library summer reading program growing up. I love to read, argue, and debate. Most importantly, I liked helping people, solving problems, and being in leadership roles. With those sets of characteristics that I have, I thought, “Being a lawyer sounds great.”
On top of that, at some point, when I was young, I think it was fifth grade, My mother still has the letter. I wrote the mayor because I was upset with Tulsa. I saw so many homeless dogs around. I'm a huge animal lover, so I was like, “It’s always a problem. When I’m the mayor one day, I can tell you I'm going to take care of it.” It was pretty funny. I also had some political aspirations. I didn't know what I wanted to do, but I always thought, “Political science and becoming a lawyer might take me down that path.”
You mentioned going to the library and reading all the books. I had that experience. I remember one summer, I had read the entire fairy tale section. When I was done, I was like, “You need some more books,” because I read the whole thing.
This will tell everybody how old I am, but my mom used to give us rewards when we would finish our book list. She was a teacher and we went to go to the teacher store here and they had smelly stickers. I don't know if you remember it. When you scratch them, they smelled. It’s fascinating to collect them. I got to go get a packet of smelly stickers if I finished my list for the week. I have that great memory of it. I love reading until now and I love reading non-lawyer things by the way.
I've found that in law school, it can be hard, but after law school, it's nice to get a little escape and read something a little bit different, not briefs and not opinions. It's a good little outlet and if you enjoy reading, then you continue to. it's a nice thing to carry on throughout life. Did you ever think about being a writer or an author yourself?
That's funny you say that. I have thought about that. I have grown in my writing a lot. We haven't talked all about my path, but I didn't have to hone a lot of my legal writing skills until I became a trial judge and then even more so an appellate judge, and I've enjoyed it. I do a lot of writing myself. My legal staff help me write as well, but they also help me learn. They're talented. I have them read and edit everything I write and we work on things together.
I've always thought about writing a book and I don't even know where to start. I don't know if you know Chief Judge Sutton in the Sixth Circuit. We've become friends. He's spoken in Tulsa and I asked him because he's published many books, “How do you have time to write books? You're so busy.” He says, “Everybody has a book in them.” I'm like, “What a great thing to say.” Stay tuned. Maybe someday I'll have time to get that done. That is something that I would love to accomplish.
I was sensing something about that. I was like, “I was thinking she might be interested in doing this.”
That would be great.
Did you have some idea in law school or before law school what law you wanted to do or whether you wanted to be a litigator?
I'm sure everyone reading has had this path and I'm not sure of your path. I would love to know. At first thought, I wanted to work for a big firm and a corporation and do corporate law. My dad was always in business, so I grew up around that scene and thought, “I'm going to be a contract lawyer.” I then went to law school and I joined the mock trial team. I loved doing trial work, and then I got an internship at Tulsa County District Attorney's Office when I was in law school. I got my internship license.
I was doing preliminary hearings and even I prosecuted a felony rape jury trial while I was still in law school, so I knew I had to be in the courtroom. I landed at the District Attorney's Office because that's where I was clerking. It doesn't mean that I wouldn't have enjoyed the Public Defender's Office as well but then, I knew in my heart that I wanted to be in the courtroom. That's when I ended up. My first job out of law school was being an Assistant District Attorney in Tulsa County.
Several of us have that experience. We have a distinct reason why we go to law school, but then by the time we get out, it may not be the same thing that we end up doing. It’s because it doesn't match you and your skills well or what you enjoy and where your passion is. What you think it is may not be what you like to do.
I completely agree with you.
Having that opportunity in law school to get that experience at the district’s office is great. That's one of the great benefits of the law school clinics that are now so prevalent. I taught in one for several years now and it's great to see it. I wish that they'd been more prevalent when I was in law school and that those opportunities were there, but in the Ninth Circuit clinics, the students got the opportunity to argue and real appeal to the Ninth Circuit Court of Appeals. That's pretty tremendous. It gives them great skills, but also to have the opportunity to say, “I've developed these skills and I argued a case in court where many people may not argue at all or very late in their careers.” It gives them a boost in their careers, too.
I completely agree with you. I feel like I only had that experience because I knew of the opportunities and I had to develop myself by trying out for the mock trial teams, applying for my internship license, and getting a job where I could practice in court. Those are also limited. I might be speaking out of turn here, but I'm almost positive.
Where I went to law school at the University of Tulsa, they also have clinics like you're discussing, which are extremely important for student interaction. The ABA accreditation restricts a lot of this from going out and having on-skills training and bringing law school for credit. I wish that that was a bigger chunk of school because everybody that's a lawyer knows, and you hear this all the time, “I learned how to practice law once I left law school.”
That can be true. You learn how to think like a lawyer, what in writing and all those concepts, and understanding that background. Once you can reflect back on law school, what you did learn, and that knowledge you've gained but to be on the ground trying to apply it is a whole other learning process. I agree with you. I encourage students to clerk with a judge, be in the courtroom, or ask the firm they're working for to even go watch court processes if they're not even allowed to participate.
To see how it is in practice. For a couple of reasons, you're developing practical skills and also seeing how it works in the real world as opposed to in theory.
What clinic did you teach? Was it in a court clinic?
Appellate, which is great. That's good because it's good training for anyone. Even if they don't want to be appellate lawyers, they've greatly increased their writing skills or advocacy skills. All of those things are helpful, no matter what practice they end up doing. It's general training going forward in being in law.
It sounds like a wonderful program.
It's wonderful. Students enjoy it and they're quite successful. We've had good results in the cases that we've worked on. That's always good too to get a good result from the client. From a practical standpoint, as a supervisor, as someone who works with associates and trains them, it makes it much easier for me when they have come in with that experience. Not only that they have the training, but it's easier to say to a client, “I recommend that this particular newer attorney, not me, argue this appeal.”
If they ask you, you have to say this is their very first one, but don't you worry. There's a comfort level that might not be there, but when they've already done it supervised even before graduating, you can say they have done this before. This is not their first time. That helps us give them more experience with it. It's pretty neat, but that's great that you had that experience and epiphany that you wanted to do trial work and you certainly get that experience in the DA's office. That's a good place to go for that
I was there for a long time before I ran for office. It was one of the best jobs that I've ever had.
That was going to be my question because it's so different, especially talking about different members of the bench from different states, even at the Supreme Court level such as yours. It's completely different whether you get appointed or elected. What is the process of becoming a judge? I always think of it in terms of two questions. The first thing is, what made you want to be a judge as opposed to an advocate, but then the second thing you have to consider is if you have that idea to say, am I willing to do the things that are necessary to get there? I think that for people who want to be judges, elections seem a little a bridge too far sometimes. I give you a lot of credit for doing that.
Thank you. I had been in the District Attorney's Office for many years. At some point in your career, you've developed something new. You have a passion to extend yourself and try new things. I'd been in the courtroom for so long at that point as a litigator. I had some ideas of what I could do if I were a judge. I thought that should be the next step in my career. You're right. I probably was crazy because I had four young children. When I told my husband that I wanted to run for judge, he looked at me. The super support system that he is, we went for it.
At some point in your career, you just develop something new, extend yourself, and try new things.
In Oklahoma, a trial level judge is a four position. It is nonpartisan, but it is an elected position. For all my county seats, we had to raise over $150,000 for a trial judge-level race. This was way back in 2006. I'm sure it's even more expensive now. The ethical rules, that's the other thing people don't understand. I can't ask for money myself. I can't state my political opinions because it's a nonpartisan race and when you're a judge, it doesn't matter what your political opinions are. It's what the law is.
Citizens get frustrated. They don't understand that when you're trying to describe, “Please, vote for me.” They're like, “What do you think about X, Y, and Z?” You have to say, “I'm going to follow the law. That's what I have to do. If you don't follow the law then get talked to your legislator and they can change it and I'll help you enforce it.”
I ran for judge. I ran against a sitting judge at that time. We're now friends. She's back on the bench. I beat her and then was served on the Tulsa County bench. I did start on a criminal felony docket and then moved to civil over $10,000 for the more of the majority of my several years on the trial bench. You then can look to the appellate system in Oklahoma, which is like Texas. I know that you talk to a Supreme Court Justice from Texas because I love the show and I listen to that. Her description is the same as mine.
Our state has two high courts. We have a Court of Criminal Appeals and a Supreme Court. For criminal appeals, there are only criminal appeals throughout the state. The Supreme Court does everything else. It administers the court, the bar, and a lot more responsibilities on that court along with all the civil things appeals that we hear.
We also have a Court of Civil Appeals. On the court of criminal side, you have state court to courtrooms straight up. In the Supreme court, we have an intermediate court that can also build up here. We send things down to the Court of Civil Appeals. Those can get re-appealed up to the Supreme Court like the Federal system a little bit but with the circuits. That's the way the state courts work now. How did you get elected? It's even more fun.
We have a Missouri plan. If someone retires or they don't sign up for their term, all appellate judges are six-year retention. You go through the judicial nominating commission and if you get out of that, three names are sent to our governor and then the governor appoints from those three. You then serve and you're on the retention ballot every six years. Unless you're newly appointed like me to fill another term and you're on the ballot the first year, you've been appointed. I am on the ballot in November of 2022. I've been on the ballot before because we haven't gotten to that part of my career, but I was also on the Court of Criminal Appeals and was appointed. I was on the retention ballot for that as well.
I was going to ask you about that because I did think that was interesting that you had that position as well. That probably adds some good variety to the perspectives on the court having that experience too.
I'm proud of it because I'm the first woman in Oklahoma to ever serve on both of the courts. I'm not the first one to move from the Court of Criminal Appeals to the Supreme Court. Another person has done that. It was Justice Summers and he, a long time ago, did that, but I'm the second person and first woman. I liked it because a lot of the Supreme Courts do it all. They have criminal principles. I thought the best thing for me was that I went to the trial level to the Court of Criminal Appeals with five judges.
They taught me how to be an appellate judge and what the process was like. It's completely different, and then I got to move to the nine-member of Supreme Court. Besides the traditions and how things work around the Supreme Court, I was trained on how appellate work is, briefing, writing, voting, and how to interact with your colleagues.
There are a lot of differences between the trial bench and the appellate bench. One of the most notable or at least the folks I know who make that move, the first thing we say is, “I don't get to decide. I have all that means.”
That has happened to me. I'm so used to getting the briefs. I'm reading things. Number one, everything's read backward, which is strange. At the trial level, you're reading everything and making a decision. At the appellate level, you're starting with the decision and going back. The mystery is solved, but it's going to the end of the book first for appellate practice.
That's so true. I haven’t thought that way, but that's right. You started the order and you started to learn it from the appeal.
It's a totally different way of analyzing your brain and thinking, “Now I have this standard of proof and I start here. I don't start there.” You're right. That is the number one thing that was hard for me. I have a very efficient way I work. I would read things, make decisions, and be like, “I'm done. This is it. Next.” That is not how appellate practice works. You're like, “Why does it on me? I'm working.” That's not how it works.
There's some persuasion and discussions back and forth that are going on because that's the first thing you learn. If it's a three-person bench, it takes two to tango, so you have to have that.
I was always trying to get at least two other votes on the Court of Criminal Appeals. Now I'm trying to get four other votes to get a majority if I'm the author of a majority opinion. It can be interesting.
To me, that’s the most visible difference between them. Sometimes people have a hard time adjusting to that. There's the initial adjustment, but some people beyond that are temperament-wise or how I roll. It's a much better fit for me to be the sole decider.
I learned from my time on the Court of Criminal Appeals. I thought it was a blessing to have that experience before I became a justice. Besides learning, one of my favorite verses is, “Be still and know that I'm God,” and it's important for someone like me. I'm a go-getter. I like to have my opinion known. I like to voice my opinion and I want people to listen and agree.
Especially when you're on the trial bench, that's how it is. You're the judge, so you get to say how it is. When you get there, you don't have to talk all the time. You don't have to voice everything that comes to your head or every opinion. You learn to be very respectful of listening. Learning that skill on the appellate bench to your colleagues and giving them the deference to speak and hear what they're saying.
You might not agree with them, but sometimes you don't need to say anything. You have to be still and listen. The other thing that I learned on the Court of Criminal Appeals when I first got there is that even the tiniest little thing, I would read and be like, “Do I agree with that? I can't vote for that. I'm not going to do this. I wish they'd changed this.”
At the end of the day, you needed to learn to pick your battles and learn when you would concur and resolve, sip and dip, or whatever without writing. Otherwise, it would've been impossible to do my job. I learned that if it were an important issue or something I felt extremely passionate about that I thought the majority got wrong, I would do a writing. I learned also how to negotiate with my colleagues about the smaller things or get over them, for a lack of a better term, when I draft separate writing and expressed my opinion. That was a learning curve.
That varies depending on the particular traditions of that court about how often people tend to write separately. In some places, they prefer unanimous decisions. It is even more of a momentous decision to write something separately understanding where that particular court is at and how it operates as well. It's interesting to hear you talk about that because it highlights that when we think about judicial decision-making, especially in collegial courts and you think about the law and the actual substantive part, judges are people too. You're thinking about also the collection of individuals and how you work with those relationships in the context of the legal decisions you're making. It's interesting to think about it that way.
It's interesting. You do have to get to know your colleagues to know what they appreciate and what they don't. You also appreciate that they begin to know you as a person and work through problems in a collegial manner. I can tell you that everyone in the State of Oklahoma should be extremely proud of their Supreme Court. It's pretty obvious. A lot of us don't agree a lot of the time, but we work together to get opinions out. You’re right. There are nine. That's always nice, but it's not always that way. Because I don't agree with one of my colleagues at the end of the day, we're still friends when we walk out of that conference room and everyone gives everyone deference. They're very professional and we work hard to make sure we get things right.
You really do have to get to know your colleagues to know what they appreciate and don't. You also appreciate that they begin to know you as a person and work through problems in a collegial manner.
That discussion is what citizens should want from their justices where you're bantering back and forth all the ins and outs and the different opinions until the majority rules. It's fascinating when you go into a conference with an oral argument. I can tell you, even as a trial judge, I loved oral arguments. When I had specific questions after reading briefs, I brought the attorneys in to say, “Let's talk about this issue a little bit more. You briefed it but I have questions.” You might think you have your mind made up until you flesh through talking about these legal issues with people. It helps you hone in on what the answer is and work through problems together. It's fun.
I feel that way. Some people, even as appellate lawyers like to do their own thing, but like I that back and forth, debating issues, and working through them. That gets you to the best place and allows you to consider things. Maybe you hadn't looked at it that way, same thing on the bench, especially when you're deciding issues that are for the parties. At the appellate and Supreme Court level, it's a much wider audience.
It's deciding the law and the standards in the context of one factual setting, but it's going to apply to a lot of others. You want to make sure that you have considered all of the ramifications of this particular rule, not just the facts that are in front of you. Part of that is having the colleagues to work with to think about, is there something I'm not thinking about or some impact that I don't see in having this rule that isn't a good impact? I would look at it differently if that were the case.
It's nice to know that, especially where there can be contentious about the law or the outcome of the case. You have that mutual respect because you have the next case coming. You need to have a good working relationship with all of the members of the court to make that happen. Even where there's a difference of opinion, as long as you have that underlying respect for each other, then that gets you through.
I'm blessed. There are other Supreme Courts that don't have that collegial relationship. I can tell you that in Oklahoma Supreme Court, we are very collegial with each other when making these decisions.
What was the biggest difference? Obviously, there's a difference in the substantive coverage and the number of justices on the Supreme Court from the Court of Criminal Appeals. Was there something else that was notable between those two courts?
I was a prosecutor for a long time, then I was a trial judge for felonies. I then did insurance defense work as an attorney as well a little bit. When I flipped to the civil docket in Tulsa County, I was excited and I loved it. When I went directly from that, I went back to criminal. I was there for almost four years. I can tell you that reading that over and over again can get pretty tiring if all you're reading all the time are these horrible things or sad things that happen to defendants that have addictions or things like that. It was a nice change to be like, “An oil and gas case.”
You were like, “Are you brave?” I'm like, “I'm divorced.” The biggest difference was the volume of variety. It's wonderful. All the things that you continue to learn are areas of the law that maybe you haven't seen before like probate or guardianship. Those are some areas I had never delved into as a litigator or appellate judge. It's interesting to read those. I also find that the Court of Criminals is very busy because everybody can appeal their criminal case.
The Supreme Court, because of the variety of the issues, is a lot more tasking for me because we have a docket every Monday and you can have a lot of cases on there and they're all different. You have to read them all. If you're going to decide to accept original jurisdiction or deny it or not, that's a decision in itself. The variety and the workload were also something that I noticed. In all the other responsibilities you have, ceremonial, being a justice, and lots of bar matters. You're deciding, number one, whom to admit to the bar, the bar itself, and then people that are in trouble with the bar. That's a lot of work as well.
I hadn't thought of that part particularly from the chief justice’s perspective of the administrative aspect of the court system also on top of that.
In our justices, our chief justice is pretty much the Grand Poobah of most of it, but they can bring things to a conference, and then all the justices do have projects that they work on separately. If you have something you want to try to accomplish, you can go get permission from the chief to go forward on a project. You're right. Administering the district course is a big job, like budget, problems, and technology keeping trial judges happy.
There are a lot more hats and aspects to that court position that aren't part of an intermediate or specialty appellate court, as far as the initial work. You get to decide which cases you're going to decide. There are a lot of issues as well.
A lot of people think, “They don't work. They don't have anything to do.” It's like, “You have no idea.” You have to decide not to decide.
Those can be thousands of petitions in one year. People focus on ultimately the number of cases that are subsequently decided. Maybe that's in the 100 or 150 or something, but there are thousands in order to get to that point. There's a lot coming through there in terms of your other roles in the judicial system and the whole rule of law setting.
Our Court of Civil Appeals does yeoman's work. They do a lot of work and they write a lot of opinions. Some of them are sorted up to us and sometimes not, but they do a lot of work as well.
What advice or tips do you have for lawyers and advocates in terms of brief writing or other things that they could do to make things more helpful for you?
It's almost the same advice from the trial bench all the way through the appellate bench. When you're a litigator, you're focused on your one case, or however many cases you have, but one thing people forget is how many cases a judge is reading. You had better be a concise writer and get to your points quickly and have it very concise.
If it's poorly written, confusing, or drawn on and on, you can imagine if I have twenty briefs to read through and yours is taking me forever because I can't even follow the flow versus the response to your brief that hits all the points quickly on why they should win, that's going to be more influential to any reader. Remember your audience, not that you're trying to influence and you be effective in that type of writing, but the efficiency of your writing needs to be straight to the point with your arguments.
That would be my number one with writing. When it comes to oral argument in front of the Supreme Court or a trial bench on summary judgment motions or things like that, number one, I've always admired trial litigators. It's hard work, but I am in awe of the appellate litigant of your oration skills, your ability to think on your feet, and how to prepare for an oral argument. What you all do is an amazing and outstanding talent to me. I'm in awe of you. It's hard to give comments on how to make that better.
On the trial bench, one thing that frustrated me and sometimes on the appellate bench is when attorneys don't listen to your question because they're always thinking ahead. They're so eager and prepared like, “This is what I have to get out. This is going to be the issue. This is what I want to say.” It's hard, and sometimes judges ask dumb questions. Believe me. I probably have asked them myself where you're looking at the judge like, “I don't even understand what you're asking me.”
Of course, you should say, “Can you please repeat that?” Listen to that question and try to answer the question, because it's irritating. I'm asking you something because I need you to tell me what you believe the answer is. I want to hear what you have to say. If you go off-topic or you try to cover it up with something else, I can tell, which makes me think you don't have an answer, you don't want to tell me, or you're not listening to me.
Those things are all that I would recommend when you're arguing with a judge in any form. Also, I appreciated an appellate argument. You can probably give the audience great skills on this because I don't know when to concede an argument and when not to and how to concede and not concede too much. It gives great panels of judges. When the attorney gets up and says, “In this giant scenario, let's start right here.”
If you can concede something that doesn't hurt your case, that everyone knows that you should be conceding, factually maybe, without hurting your client or your case, it gives you a lot of credibility with the panel. If you try to argue something that's completely frivolous or dumb, the judges are going to know and they're going to be like, “That is something we shouldn't even be talking about, and you know it, but I understand. Am I right? Isn't that a scary skill to learn because you don't want to know what you can?”
I think everyone lives in fear of seeing a line in a Court of Appeal opinion saying, “As council conceded an oral argument.”
Maybe you go over it with your client and everyone is super clear, “This is what I'm going to say. In my opinion, we will have nothing but build credibility with the court.” It is a loser factor. Everyone can agree, even your client can agree. I understand, but I can tell you when it happens and it needs to happen. The judges I've served with, when that's happened, you go back to conference a case and everyone is appreciative.”
That also takes a lot of preparation in terms of planning ahead and understanding how all the different building blocks of the case fit together. After you know that, then you can know how much you can agree to, not dispute, or say that isn't great, but it doesn't mean we lose. We still win for the following reasons, but you have to see the roadmap for that and make sure before you’re like, “Maybe I am saying too much, I need to think about that.”
I do have to say I've witnessed different judges practicing in front of them, suffered some, and enjoyed others. Personally, as a litigator and as an appellate judge, I've also watched oral arguments with my colleagues and listened to other oral arguments. Sometimes, I listen to the Tenth Circuit arguments and I find them interesting or the Supreme Court arguments.
I'm sure appellate litigators need to understand that sometimes the style of a judge or a justice might not be nice. I don't appreciate that. I don't practice that myself, but if that happens, I would answer the question thoughtfully and not let it ruffle your feathers and move on. If someone is like that, the rest of the panel understands that person's personality.
We often go the day before to see how the particular panel is and see the field before we get on it. When you're sitting there waiting for your case to be called for argument, you can also watch the other arguments. When the client is there in the courtroom, they can see all of that and they can understand what you said, which is, “This person likes to ask cranky questions.” The fact that my lawyer got asked a cranky question doesn't mean that they're particularly cranky at me or some. You get that feeling so they don't take it that way.
One of the downsides now of the remote YouTube recording of arguments is that the client will parachute in for their case. They don't see the rest of it. That explanation, they were just cranky at you go. They were cranky with everyone. I know it was a tough day or something, but they don't have that context anymore from watching the arguments. There are good things about technology and the remote stuff, but there are also things that you miss from not being in a courtroom the whole time.
I would've never thought of that, but that would be complicated because there are judges or justices that have a style of yelling or being cranky, wanting to yell at attorneys instead of asking them actual questions. I can imagine if I were a client, I'd be like, “We're going to lose. They hated you.”
You're like, “This is just their style.” They're like, “Really? I don't know. Are you just telling me that?” It makes it a little bit harder. It's much different when they used to come to court with you and see the whole hearing. You all see what's going on. That's one thing that I've noticed that is different from technology. That's so helpful in other ways. It can be hard to remain calm and not have that ruffle your feather when you're already amped up for an argument. There's no point investigating that.
I served with one judge that wouldn't even let somebody put their book on the podium before they start shouting questions at him. Don't let it get you down and don't let it ruffle your feathers. In fact, that's probably what that person wants. If you remain calm, maybe it will calm them, or maybe not.
I have one situation. There was one courtroom where there was a dead spot. The acoustics were bad. It was unfortunately right where the attorney's lectern was. There would be some members of the bench who would be like, “We can't hear you. You need to speak up.” You're like, “I'm in the dead zone trying to move, but not leave the lectern.”
The clerk is trying to come help and go, “We've got to fix that.” Things like that can be a little unnerving, but you got to stay cool and roll with it. Do you have any particular advice then for those who might be considering moving from being a trial lawyer or advocate joining the bench? Are there any words of wisdom in terms of discerning, whether that's the right move for you?
As I said before, and I'm not shy about it, I'm a very religious person. I pray and think about it. If you're thinking about making that move, understand if that's what you're supposed to be doing. If you're friends with some people that are on the bench, go talk to them and say what you like about your job. If you're close enough with them, flat out and say, “I'm not sure what I'm going to do, but this is something that I'm thinking about. What do you think the pros and cons about it?”
If they know you, they're going to hopefully be honest with you about, “You would have to give up this and I know you're good at this. This might be something you don't like about that job. It might pay half the salary that you're making right now.” You might have to run a campaign. Are you a people person? Do you getting out and socializing? Not a politician but you have to put yourself out there if you're running for office. You have to have that type of personality. Are you willing to have a lot of people be mad at you all the time?
Scalia had some comment about that, but if you're doing a good job, there are a lot of people that maybe don't like you because you're ruling against 50% of them most of the time. Be prepared also to give up a lot of social things and your First Amendment Rights to Free Speech where I can't go around talking about whom I want to support for political office or attend political fundraisers even though I'm passionate about voting and whom I want to represent me personally. You have to give a lot of things up.
I understand what the limitations are, the pros and cons, and how it would fit into your family life. In order to research those things, go talk to someone that's in that position if you can. I would be willing to talk to anybody that wants to talk to me about my experiences. They can call or email me anytime. I would encourage you if you feel it's something that you want to do. If you should go for it, being a judge is an honorable profession.
It's something I thoroughly enjoy. I felt like I was ready for it after I'd been a litigator for that period of time and ready to take that next step. Sometimes, being on the bench isn't what people want to do. In trial work, you have to socialize with the juries. I had a sleeping bag in my office. I was up there until 2:00 AM and that's trial every week. A litigator in a firm or a prosecutor might have a case or so many cases a year. If you're a trial judge, you’re on trial every week.
I have little kids, but my husband was great about bringing them up. We'd eat pizza in the courtroom. We'd do homework while the jury was out and we'd hang out for as long as possible. He'd take them home to go to bed. My kids became friends with all the court deputies and my staff. They knew the courthouse upside and down because they spent a lot of time there.
I was going to ask you specifically about young kids and being on the trial bench because that's something I've heard from some of my friends. You have young families. You know where you're going to be from, let's say, 8:00 AM until 6:00 PM. That is in the courtroom or bench. After school activities and various things, you're not going to be able to do those things. That's a pragmatic thing we need to work with.
It depends. I was lucky since I was on the trial bench. I got to set my own schedules when it came to docket management. If I knew one of my kids had a play coming up and I wanted to be there and it was in the morning, I could stop and start my docket later. That one is not true in trial work. It was hard a lot of times when someone was sick or I had to miss something because I was on trial.
You can't hold up everyone for your personal needs when you're on the trial bench. I always found a great balance though. I was also always thoughtful of moms and dads that were appearing in front of me as attorneys. If they ever told me something was going on, I would always work with them on their schedule because family is very important.
It was, again, a big juggle, but you can do it. Interestingly enough, I wish I had more men coming up and asking me about how to juggle that because they’re parents, too. I teach at the law school and a lot of women students come up to me and say, “How did you do it?” I'm like, “You just do. You're a mom. You can do everything. You're super. I can't tell you how or why, but I did. I felt like being a mom was my number one job. I always made them first as much as I could and it worked.”
I think about that too. My mother worked when I was younger too. She would take me after school. I would go with her wherever she was going for business. I would sit there and do my homework in the office or in the meeting rooms. There were so many good things about that because you hear and internalize things in how she was negotiating and dealing with people. You do things that you're good at, but you don't even think about, but you were not conscious about it.
You couldn't explain it, but by being there, I could sip that in. There's a positive to have the kids involved. I thought that was good practical advice. You think about being a judge and the positive things of service and being able to have a different role with the law, but then you also need to think about not how you get there. What does this mean to my overall life? I am a full human and how does that relate?
Running a campaign is hard work and extremely stressful. Going through the JNC process in the politics of having a governor appoint you is also extremely stressful. I over-prepare for everything. I may be a little crazy when I'm prepping for those types of things, but it's a job within a job on top of your other job and your parent’s job. It's only for a limited period of time. If you can do it, I would say that it's an experience that you should do.
That was interesting. The way you said it, it's all different boxes within boxes. It's true and all its aspects to it.
Where's your slick? I'm telling you it's a full-time job outside your job. Campaigning, preparing, and politicking, absolutely.
One of my friends who's on the Court of Appeals in Ohio ran. She had small kids and she said, “The benefit of this particular position was that there was this short window to a campaign.” The opening had come up, so we're talking about serious campaigning only over four months or something over a full year. While it's intense, it's like, “It can do that for a short period of time.” That was a plus. She's like, “You can do anything.”
It's like when I'm working out. It's a twenty-minute workout. I'm like, “The last three minutes, get through it because then I'm done for the day.” It's the same scenario. I get it. You mentally have to think you can see the light at the end of the tunnel. You can do it.
Keep moving forward, and you're like, “Only a few more minutes on board.” Thank you so much for joining the show and having the discussion. I appreciate it. It's been fun and you're so relatable and personable. It's been a joy.
Thanks. I was thinking to myself, somebody needs to host a show about you. When I was reading your resume and all those things, I'm like, “This woman is an amazing inspiration for young ladies everywhere.” I hope, at some point, you have one of your friends do an interview of you for the podcast. I'll look forward to it. I’m going to listen to that one.
Thank you. That was very sweet of you.
You're welcome. It was such an honor. It's very humbling that you would want to learn about me. I appreciate you taking the time to ask me to be on the show. Thank you very much.
It was wonderful. I do have a few of my lightning round questions that I want to ask you before we go. The first question is which talent would you like to have, but you don't?
I would like to be able to be a runner. I am not. I like to exercise, but I cannot run. I can't do it. I hate it.
This one might be a long answer because of your affinity for books, who are your favorite writers?
Top-notch. My number one is Dame Hilary Mantel. I love English tutor history, especially tutor history and Wolf Hall and those trilogies. I think that she's one of the best. She's one of my favorites. I like reading devotionals as well. Antonio Martin is one of my favorites and Max Lucado are people that I tend to read a lot. Those are the top on the author list for me.
Who is your hero in real life?
I have a lot of heroes in real life. My dad is my number one. I hate to leave my mom out so she's probably my hero too. On a personal level, my parents are my heroes. They are so supportive of me and have given me the opportunities to be where I am now and helped me. On a professional level, I would say, Judge Carlos Chappelle, who was a trial judge in Oklahoma. He was the presiding judge that I love very much. He also had the motto, “Be still.” I loved watching him be still, things working out, and how he managed a courtroom. He passed away from cancer some time ago, so I miss him a lot. I think about him often. He was a great role model for a lot of people.
It's wonderful when you can have that opportunity to learn from someone that you admire. For what in life do you feel most grateful?
For my family, my beautiful boys, and my husband who's my best friend.
It sounds like you have a great partnership when you were talking about him bringing the children to the court and things like that. That's meeting you where you are and having it work for everyone. That is a nice exemplification of it.
He puts up with a lot. That's another thing you need to know if you're going to be a judge, especially if you're going to be on a Supreme Court. You have a lot of things you're doing and a lot of people that want to talk to you, and the things you're doing. He is there to be supportive and patient.
I was thinking of that too. I was like, “Patience would be good.”
He's good at that.
Also, a good sense of self. You're patient, but confident in yourself to move forward.
You hit the nail on the head there.
Given the choice of anyone in the world, who would you invite as a dinner party guest?
I have a funny answer to this. I love Harry Connick Jr. He is an amazing person. I love his music. I've listened to it since I've been in college. His dad was a DA. His mom was a judge. He has an amazing family. He's a great husband and I love his jazz. He's so talented. I would love to have dinner with him to learn even more about his life. That would be fascinating. It's something that I also don't know a lot about. I'm not a jazz musician or a movie star. He's such a good human being. He does so many things for his state and other people. If you asked me about music, he would've been one of my tops beside others. That's my response.
I like the multidimensional aspect of it. You're like, “All these various things. He's a good human too.”
From what I know, he's a superstar. I've known nothing about him, but he seems to be a nice family man and a loving husband. He had a great relationship with his parents. He posts about his parents all the time. What a great guy.
You can learn something.
I have a piano so he could play.
There you go. I like this. The last question is about your motto. What's your motto if you have one? You can let me know what that is if you have a motto.
I have a couple. I like to tell my boys, “Have courage and be kind.” That's important. I also will say once again, to be still. All of those things help you mature, learn about others, and be humble wherever you are. Humility is extremely important to me. I love learning about other people and helping them. Those are things that can make people stronger about themselves because you can have the courage to stand up for what you believe in. You should be kind to others. You mature, can listen, and make a good argument if you’re still first, listen, and then have something to say if you should say it. Those would be my mottos.
Have courage and be kind.
It came to mind right now the question that when you say, “Be still,” how do you do that? Is there something that you think about?
I have had to work on this. The more mature I am, the easier it is. For instance, if you're in a conference and someone's saying something, maybe that is getting under your skin, instead of popping off, looking at the chief and asking him to respond, you sit in your mind, listen, and say, “Will anyone learn anything from what I have to say? Will it make matters worse with what I have to say? Am I making the room noisier if I talk?”
It's a hard lesson to learn, especially for someone like me. I'll be honest. I like to express my opinion and have a say and let people know what I like to say. I was like, “That wasn't right. That wasn't nice. This is what I think about this.” Not everybody needs to know what Dana Kuehn thinks or cares what I think about everything all the time. Those things go through my mind when I'm having that moment. I find that when I do speak and when I do exercise being still. When you have something to say, people think, “She wants to voice an opinion, and this probably means something.” Otherwise, you become a chatter-box all the time.
It's more selective so that when you do speak, people are like, “You should pay attention to that.”
You'd be surprised. Sometimes if you hold your tongue, you can go back later. The situation might have changed, or the person that made the comment might have been corrected by someone else that maybe has a more eloquent way of dealing with that person. That's how I'm still. I sometimes take a moment to react. That doesn't mean I always exercise that wisely. Sometimes, I can't help myself and I still pop off, but I've been trying to live by that motto. It's helped me grow and become mature in my thinking and the way that I deal with others.
Another way that could happen is your mind is active too. The mind is always thinking about multiple things. There are multiple tracks going on and you're thinking a few steps ahead. You’re trying to clear that out to be still in the middle of that, much less pausing and wondering whether what you might say would be productive, useful, or all the various questions you had. The first thing is to still all that stuff that's going on in your mind. Do that, then you have the output part of being still. That's why I was curious. Any good tips on that? I'd appreciate it.
Take a deep breath.
I liked these three questions because I do think it is necessary that I say this. Is it productive or helpful?
Is there somebody else that's going to jump in and maybe communicate with this person or in this situation better? If I'm calm, it'll resolve itself. Judge Chappelle was great about that. If you let it go, sometimes, that's the best thing to do.
That's good advice. Thank you so much for that in particular. I'll use that in the future myself.
You're welcome.
Thank you so much once again for joining the show. I enjoyed our discussion and getting to know you.
Thank you so much.