Episode 128: Laurie McKinnon
00:44:20
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Show Notes
You can never have too much experience in this field, especially as you transition to the bench. In fact, the more places you’ve been and positions you’ve had, the more knowledge you bring to the court. Justice Laurie McKinnon is no stranger to this in her professional journey. Justice Laurie McKinnon is a graduate of the University of Baltimore School of Law and began practicing in 1987 as a prosecutor in the Baltimore City State’s Attorney’s Office. She later moved to Montana as a Deputy Glacier and Teton County Attorney and, in 2012, was elected to the Montana Supreme Court. Join her in this episode as she shares with MC Sungaila her inspiring story—from clerkship to the bench to the Supreme Court—where she provides great wisdom and advice on being elected, writing opinions and briefs, doing oral arguments, and more!
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Montana Supreme Court , The Baltimore City State's Attorney's Office , Indian Health Service
About Laurie McKinnon:
Justice McKinnon is a graduate of the University of Baltimore School of Law and began practicing in 1987 as a prosecutor in the Baltimore City State’s Attorney’s Office. She prosecuted felony offenses and was also a prosecutor in the Felony Sexual Assault Unit. After several years as a prosecutor, she started her own practice and focused on criminal litigation (including death penalty cases), family law, landlord tenant issues, domestic violence, and general civil litigation. In 1995, Justice McKinnon moved to Montana with her husband, CAPT (ret) Gary L. Pannabecker, D.D.S., after he accepted employment as a dentist with the Indian Health Service in Browning, Montana. Justice McKinnon continued her career in Montana as a Deputy Glacier and Teton County Attorney.
In 2006, Justice McKinnon was elected to Montana’s Ninth Judicial District Court, serving Teton, Pondera, Toole and Glacier counties for a six-year term. While a trial judge, she oversaw water distribution of the Teton River and other tributaries within her district; wrote and obtained a federal grant of $350,000 from the Department of Justice to implement a drug treatment court; and developed the Court Appointed Special Advocates (CASA) program to provide a voice for children in dependency and neglect proceedings. In 2010, she was awarded Judge of the Year by Montana CASA.
Justice McKinnon was elected to the Montana Supreme Court in 2012. To promote equal justice, she worked to develop the Early Resolution And Mediation Program (ERAMP) for Montana’s trial courts. ERAMP, a court-connected program, combines the skills of volunteer attorneys, who have received mediation training, with the needs of low-income parents wanting assistance in mediating their parenting disputes. Justice McKinnon received the Montana State Bar’s Karla M. Gray Equal Justice Award. The award is presented to a Montana judge who demonstrates dedication to improving access to Montana courts.
Justice McKinnon serves on the Executive Committee of the Appellate Judges Conference of the American Bar Association. She serves on the Appellate Judges Education Institute (AJEI) and, in 2019, assembled and narrated a panel of judges from across the nation to discuss the important topic: “Independence of the Judiciary: The Shield of a Free Society.” She presented at the AJEI’s national symposium on the topic of a court’s jurisdiction. Justice McKinnon serves as an ABA Advisor to the Uniform Law Commission’s Fine and Fees Committee, which is examining the impact and legalities of fines and fees on indigent criminal defendants. In 2016, Justice McKinnon received her Master’s Degree in Judicial Studies from the University of Nevada, Reno. She is currently pursuing her Doctorate degree in the Judicial Studies Program.
Justice McKinnon and her husband, Gary, reside in Helena. They have four children: Rachel is an attorney in Missoula and a graduate of the University of Montana School of Law; Chet is a graduate of Montana State University and works in heating and air conditioning in Bozeman; Wyatt will be attending the University of Montana School of Law; and Dylan is an engineer in Helena and graduate of Montana Tech. Justice McKinnon enjoys her family, piano, her horses and dogs, and cherishes Montana’s great outdoors and the opportunity to serve its citizens.
Transcript
We have Justice Laurie McKinnon from the Montana Supreme Court. Welcome, Justice.
Thank you very much, and thank you for joining us.
Thanks for joining. I appreciate it to have your path, journey, challenges and successes shared with others and, hopefully, to inspire those who might be interested in joining the bench. First, I wanted to ask you what inspired you to go to law school and to become a lawyer, to begin with.
The discussions at the dinner table, for instance, with my family. My father and mother were both active politically. They were always watching what was going on and with respect to political philosophy. It was always something that was around me. I liked those classes in school. I did take a year off before I went to law school. I wanted to make sure that was what I wanted to do. I worked in a firm in Baltimore City and went to school.
That is a wise thing to do before you are going to invest three years of your life. Make sure that is something that you are interested in doing. A lot of people will go saying, “I'm going to try law school and see what happens.” Having an intentional purpose in seeing that is something I'm interested in. That is very pragmatic.
It was not the best year that I went to school. Within the first week, I was happy that I had gone ahead and started. I liked the classes and felt privileged to have a profession that I loved. I knew I was going to be fine.
It is nice when you have that feeling of home somewhere. You are like, “I feel comfortable. This is good.” What law did you practice when you came out of school?
I clerked for a year for a judge in Baltimore City. He was Judge Angeletti and the Administrative Court Judge when I was at least clerking for him. I got to know everybody in the courthouse and the state's attorney's office. After clerking with him for a while, I joined The Baltimore City State's Attorney's Office and got a lot of trial experience.
At that point, they had a jail overcrowding situation. They would have people show up in district court, give them bus tokens, and they would show up for their jury trials which couldn't if we were in the circuit courts. You get the file from the police officer. You start that jury trial and pick that jury right then. It was a trial by fire. They were misdemeanors except for some of the criminal possession and drug possession charges. It was a lot of work, and I got a lot of good experience trying cases.
Learning to think on your feet as you go. That can be hard. That is one of the great things about government service in terms of you are able to get a lot of trial experience. What about the clerkship, and how did that impact you in terms of I saw these folks at work and that I will be interested in joining that office? Did it have a longer-term impact on your career clerking for a judge?
Judge Angeletti was one of the Founders of the Public Defender's Office as it was getting started in Maryland. He knew everybody that he took me as he did all his law clerks under his wings. We walked down to the harbor together and grabbed something to eat. He included me in everything in his chamber. That was something that you can't get that too many places.
You can never replicate that being both a close relationship and having someone invested in your growth in such a way. If you are going to advocate in front of the court, it is great to understand how that court is functioning. What is a judge thinking in those settings? It is amazing. I also felt like in my experience that I learned a lot in law school, but I learned how to be a lawyer from the judges that I worked with.
You are privy to all the comments and discussions that he would have and his thoughts.
When you work for a good judge, it gives you continued or renewed faith in the profession you have entered the law in general. You are like, “We can do good things with the law.” It is encouraging. From the government position, I'm wondering. Did you go into private practice?
I have four children, and when Rachels, my oldest, came, I had gone back to work in Baltimore City, in the state's attorney's office, but the childcare arrangement didn't work out. I remember picking her up and thinking I can't do this anymore. I went in, and Stu Simms was the state Baltimore City state's attorney at that point. I said, “I'm going to resign.” He is like, Are you sure?” It was my first child, and I felt like I had left her in a situation that I was comfortable with. There was no question.” That is when I left the prosecuting, started a practice and did a lot of defense work. I had some death penalty litigation that I did with the public defender and did that until I came out to Montana.
It is important to think about we have whole lives in addition to our professional lives, all the other things that impact the decisions that we might make, and things going on with our family.
I love my job, but I had a hard choice to make.
You moved from Baltimore to Montana. How did that come about?
My husband is in the Indian Health Service. He had always wanted to come out West. At that point, we had two children. I was balancing the practice with being home with them. Initially, we were planning on two years, which was the commitment. We moved out to Cut Bank, Montana, which is right outside the Blackfeet Indian Reservation in the Northern part of Montana at Glacier Park. From there, I was lucky enough to be able to wave into Montana's bar. I started working with the Glacier County Attorney. We ended up moving down Scioto, which is Teton County. I worked there with the county attorney.
You moved onto the bench. What caused you to think about this is a good time to join the bench?
First of all, practicing law in that area was different from practicing in Baltimore City. In Baltimore City, the courthouse expanded Calvert Street, two big buildings, and there were 23 felony trial courts. In the Ninth Judicial District, which has four counties, for instance, Glacier County has the courthouse. It got all the court-related offices, the clerk and the recorder there. There is only one courtroom. The judge comes in once every two weeks except for law and motion day and when you try cases. It was different, the type of law and what I had done before. I felt that I could do a good job as a judge. I ran, and I had nothing to lose, which is how you get into some of these things. I won that position. Those are four counties, and it is a six-year term.
The learning curve there was huge because I had never handled malpractice cases, medical malpractice or some of the cases that you get. Mostly, I was strong with criminal work, family law and types of issues, but you take everything that comes in, and you have to address it. That learning curve was huge, but it was also great to have that challenge.
The jury trials were the most fun. I don't have those now. I enjoyed having the jury through that judicial process. First of all, I didn't have to make the decision except for the rule on the objections, but to see how the process was unfolding with people, and that is part of how people learn about the judicial branch by being on a jury.
Part of how people learn about the judicial branch is by being on a jury.
When you, as a lawyer, have served on a jury, you look at things a little differently after you have that experience. You are like, “ That is a perspective I hadn't been a part of, and now I'm going to maybe adjust how I do things a little bit. What assignment do you get as a new judge? It could be anything. If you were a criminal defense lawyer or a civil lawyer, you could end up in family law in some whole area that you had no knowledge of prior to the appointment. There is a huge learning curve. On the other hand, when you have an experience like you had at least being in trial and being in court a lot, at least you could bring that knowledge alongside new substantive areas that you are working with.
Having a criminal background would have been the hardest place to come up to speed with if I had been only civil. That was fortunate to have that background.
A lot of judges, at least here in California, do have that experience. The reason I know that is to serve pro tem in some related criminal courts, and there are a lot of instructions about what to do. When it comes to taking a plea, there would be a note that would say, “You might have to take a plea.” Take a plea. For a civil litigator like me, I'm like, “What is that?”
You need to take a recess, go off, get some information and get up to speed on what I'm doing. Being an appellate lawyer was like, “I need to make some findings. Okay, I will do that.” That was the sign where I was like, “I guess not a lot of civil lawyers are helping out in this assignment, but it is fun to learn new things.” From the trial bench to running for the Supreme Court would cause you to want to do that.
I miss a lot of things about the trial court. I had a treatment court that I enjoyed, but I like the analysis that you go through researching and writing an opinion. I wanted to be more in that, feeling less with continuances, managing the bar, and having to push cases along. I wanted to be able to study more law. It was like, “Why not? It's an election.” There were three of us that ran. We had a primary, and two went forward to the general election. It was 2012. It was not an easy election to get through. Especially for hedges like me who are not political, to have to address that zing aspect, how to get your message out there and go to events and all that. There are positive parts to it, but it also was not me and hard for me to do that.
The things that would make you great for that position are the things that make it difficult.
I have a colleague that won her election. It is gotten much worse in terms of money. In that election, there were millions of outside money that came in independent expenditures. I don't think I could have survived it like she did. She was a real trooper, was not going to give up, and had a strong message that was nonpartisan, fair, and impartial. I'm not going to be good at the track of having parties endorse me. You can't in Montana. Those are issues that are going to be much at the forefront of how we select judges and also how that affects the public's confidence in the judicial branch.
That is part of seeing or hearing the different ways that the system works in different states. You can see positives in one way and negatives in other ways, but overall, the goal should be to have that confidence in whoever ends up being in that position, but also in the court system overall because it is important that we maintain that sense of fairness in the courts.
Whatever way that is might be different according to each state, but the overall mission would be nice to continue to say, “We feel that this continues to be fair for our state that is great. If it is not working anymore, maybe we look at some other way but have the freedom to do that according to whichever state you are in.” That is challenging. You ran for that, got your role on the court and ran again twice.
The second time, I had already announced I wasn't going to run, mostly because I didn't want to run that same type of campaign. What happened was I went to the Appellate Judges' Education Institute Summit in DC. I have been doing that now for a while. I have made friends with some of those judges, both federal judges, other state supreme court justices and appellate lawyers who attend those.
There were a couple of judges from Indiana and a retired justice from the North Carolina Supreme Court. They were like, “Stop bellyaching about this campaign stuff. It is part of the job. You have to do it.” I came back and said, “I can withstand what happens. I will keep my head high and walk straight on this.” That is what I did. I did have to back up a little bit because I had already announced I wasn't going to run. I was coming in behind things, but I also had several years of hard work in writing opinions and respect. I think that pushed me through.
The summit is great. It is such a neat opportunity to learn from all the different people advocating in different states and members of different courts. It is a great place to learn and share information in your case to get a little buck up and move forward encouragement too.
It came from people that knew what I was in. That made the difference. That connections are invaluable. It has been a saver for me in terms of doing the appellate judge's conference and those summits and continuing with education.
Once you join the court and now that you are continuing on the court, what do you like the most about the position?
We have some extremely interesting constitutional questions. It is the cases involving the constitutionality of referendums and legislative referendums. We got a party control of both the AG, the legislature and the governor. There is not as much check on the activity. The check comes to us to make, which isn't always the best thing. I don't know that the state supreme courts are in the best place to be picking up where the compromises aren't being made. Those are going to be issues that we address down the road.
I have to say that writing is a form of art. How to get that opinion written in a way that is not only helpful for the litigant and trial judges picking it up. I can remember, as a trial judge, picking up an opinion that would be 50 pages and saying, “Give the bottom line. I have a jury after waiting.” How do you do it concisely but still make your point, and what is your audience? And all of that is an interesting aspect in terms of your final writing product, and often, that controls the tone of what I write. The common thread through a loft with me is the analysis and the writing.
Writing is like a form of art to get that opinion written in a way that is not only helpful for the litigants but for the trial judge as well.
You make an important point to you that judicial opinion writing is its own unique thing. You enjoy writing as an advocate. That is one thing. There is certainly a storytelling aspect to it, and I love that about appellate brief writing, but opinion writing is something different, especially when you think about all of the different audiences who are going to read that opinion.
The trial judges who wanted to know were like, “As a result of this, what should I be doing in a practical way?” It is filtered through journalists, or somebody might read the beginning of an opinion. What is the takeaway? Is there something you can provide to educate the public and make it clear at the outset? What are you deciding? The lawyers, litigants, and all of that. There are many aspects to it. It is an art.
More difficult opinions that are going to be of public interest will put out a synopsis ahead of time, which summarizes. I have always not liked that aspect of what we do. I find that the press does read the opinions. They may get some things wrong, but usually, you got seasoned journalists that focus on-court work. They know the history and have been watching things. The opinion does get read. To work on those sentences and the right use of words is not wasted because I think that the press, litigants, attorneys, and judges read it, and they want to know where we are going.
That s interesting about the synopsis. There is that in the US Supreme Court. Here is our syllabus. None of us wrote it, but we are providing this summary for you.
We won't put a big decision out until we do it in the morning. The press has some time to read it. You start to see the headlines after they have read it. There is enough time there for them to read it. You know that it is not wasted.
The press, in general, especially those that cover the Supreme Courts, whether it is US or state supreme courts, tend to have a lot of experience in that regard. I know they are not only reading the opinion but talking to a lot of different lawyers who appear before the court or people who are familiar with the subject area, professors, and things like that. They are trying to get all the different takes, interpretations and broader impact of the decision before they write whatever they are going to write. What are things in oral argument or in briefs most helpful to you in terms of your decision-making process? Are there things that people should do or not do that would help?
There are a lot of things that go into writing briefs. When I get a good brief, usually even the table of contents, the argument is there. You can tell where you are going. You don't want to waste words. You want them to have some impact. Put your argument out there from the beginning. We get all different levels of briefs. Levels in terms of some are well written, and some aren't. You don't ever want to have typos or anything like that. It is proofreading that is important.
For oral argument, the ability of an attorney to respond to a question in a way that is thoughtful in terms of trying to get to the substance of the question and answer it rather than seeing it as trying to keep to their script. Having that discussion and thought still taking place while you are making that argument, which is hard.
You had to prepare and be nimble, both of those.
We have a very active court in terms of questioning. I always am like, “Please, let's listen. I want to hear from the attorney.” I know where you are, and I'm going to hear where you are when we discuss this case at a conference. It is time that we want to know what the attorney's point is. I don't like when we don't give them that chance.
There was one thing that stuck with me for the show. I interviewed Patricia Millette, who is on the DC Circuit Court of Appeals and was a prolific US Supreme Court advocate prior to that. I asked her, “Is there anything that you have learned being on the bench that you were like I wish I had known this as an advocate. I would have done something differently.”
She said, “Yes, I'm always thinking as a judge how to write an opinion. I don't think I thought about it that way as an advocate. I was thinking about advocating for my client, but I could have helped the court a lot more if I had thought about that. Yes, I want to advocate for results for my client, but here is one way to do it. Be more mindful of that and specific about that.” I thought that was interesting. It completely struck me that I was like, “Yes, I'm in the opinion writing business. You got to help me write that opinion. It hit me as like, “That is a great way of describing how you can help someone if you think about that in a broad way.”
In realizing that we want to navigate the path ourselves, we don't want to overrule precedent if we want to be clear and help us get that path clear.
You being on a state supreme court of last resort, you are deciding the cases in front of you on the facts, but you are also mindful this isn't the only set of facts that are going to be applied here. We need to think about this in a lot of other contexts in terms of how the decision is made and what law and test we set. All of that is important.
The other thing she mentioned, which I'm interested in your view on this one. It might depend on how each court operates. She said, “For an advocate, oral argument is the end of the line.” That is our last chance to talk to the court. The goal is getting presenting the oral argument. For the court, after that, there are conferences and discussions back and forth and drafts.
Oral argument for the court is one more thing on the pathway. It is not the end of the path. Thinking about that is saying, “This isn't an end game for the court.” They are continuing to work, and it is one part of the process. Whatever happens, that argument can have an impact because whatever discussions you hear from counsel or questions you hear from your colleagues might spark different perspectives. All of that is part of the process.
Sometimes advocates can think, “I'm not sure argument makes any difference because I don't know if it makes any difference in things. Thinking about it that way as part of the process along there can make a difference. It is important as part of the ongoing process from briefs through decision-making. It shouldn't be given any short shrift.
We don't argue every case. Most of those arguments are helpful in the decision-making process. Sometimes they are even more than others, and I'm glad we had this argument. The argument is significant, but it is when the work of the court starts after that.
Most of those arguments are very helpful in the decision-making process. And sometimes, they're even more than others.
What she was saying was like, “That is true too. I know that.” I'm thinking about that in an intuitive way. It is like, “I see it all differently from a different perspective.” How do you decide which cases to hear arguments in?
If it is a case that is of big interest to the public, sometimes, we will set those in for that reason. Sometimes, we will try to decide without an oral argument. Who are the attorneys if it is going to be a good oral argument? If there are things that are not quite answered in a briefing and we could ask for a supplemental briefing.
We had an argument on a case involving an oil and gas lease and whether the tribe was sovereign and was a company that had been incorporated in Delaware. It had pretty big implications for tribal sovereignty and jurisdiction. This was the case that was well argued. We wanted some more input on it. We got another case set for December 12th, 2022, that involves nurse practitioners, licensing and issues. That has been set.
In the ninth circuit, there isn't an argument in every appeal. The court decides whether it wants to have an argument. One judge on the panel is enough to get arguments. Often it is because of some of the things you mentioned in terms of there might be some questions with regard to the record or things that the panel wants to be clear on that they have a proper understanding of what is going on in that case before they make a decision. There are others that are higher profile that you would expect to argue in, but sometimes it would be helpful. Do we think that there is something that will help us in our decision-making? We want to make sure we are not missing anything.
I always love arguments.
What do you love about the argument?
It is the appellate connection to people. Aside from my clerks, we got two justices that are always Zooming in because of their location, but the argument is a chance to connect with the attorneys and the public and to be involved in that process like you are involved with a jury.
Even as a lawyer preparing for an argument and after you have done the briefs, there are still new ways to look at and explain things. Things that you think, “Why didn't I see it that way several months ago when I was writing that brief?” Sometimes that only happens after months of living with the case. One of the things about argument is finding new ways to frame what is going on to figure out what the true nub of the case is and the issue is, and that process is pretty gratifying as the lawyer. Hopefully, that is helpful to the court in boiling that down.
I will often put an opinion down that I have been working on and pick it up later to make sure you see things differently.
I think about how carefully and intensely you are working on it. Having that distance thinking about something else for a while, and coming back to it, you see different things. Here is another way of framing this. There is crafting going on in appellate briefs and appellate opinions too. Do you tend to have consensus opinions, or are there also dissents and concurrences?
We start out with five-justice panels unless it involves a constitutional issue. If we don't have four on the majority, it goes to the full court. You can come in on any case you want, but I'm writing a dissent, and I frequently will write concurrences or special concurrences, but we all do that. You have to choose because you want to be writing those majority opinions. If you got too many dissents or whatever that you are working on to keep you from getting to those majority opinions. That is where the biggest impact will be because you're writing that opinion. If I can't get on board with the analysis, the bottom line is I have to write. That would be a special concurrence.
That is another reason to want to write that majority opinion. You get to write it the way you want it, and you don't have to write it as a special concurrence. That is important. The way the cases are assigned here by the chief is based on how many we got in the backlog because there is an interest to get the opinions out as quickly as possible and keep the caseload down, which the court has been very successful with. We got a case that will involve a question of personal jurisdiction. That is going to involve some research and thought in it. We will take the time to do that.
That is one of the differences I hear from my friends who were on the trial bench making decisions, having to make the hard calls themselves without being able to confer with colleagues. That is your decision. There are challenges with doing that. On the other hand, the buck stops here. Once you're on a court with a multiple-member court where consensus is important, that is a whole other way of operating on the bench.
Some people have trouble doing that transition, or they ultimately can work in both realms, but it is something different. For those who are considering serving on the bench, there is such a difference between being a trial judge, the only person deciding things and being on a panel where consensus matters.
We had four counties. It was a large geographic area. It is a single-judge district. There were a couple of times that I would pick the phone up and call a judge across the state or whatever. By and large, it is lonely to have because all of a sudden, people that you can't talk to them about your job the same way. With an appellate court where you got 5, 7, 9 or whatever justices, you have different issues. It is always helpful to find a buddy judge, someone that you can talk to, and you don't have to agree on the outcome of the case or the analysis. You need to have that connection with somebody because it is a hard job and a lot of stress. To be able to pick up the phone or text or say, “Can you believe that?” That is important, but it is a lonely job for the trial courts if they are on a single judge.
In my experience in private practice, there are some sole appellate practitioners, but I wouldn't want to be one of them because, especially in the appellate arena, some of the best thinking and outside of the box and finding different ways to approach a hazer from brainstorming and working together. It would be a little shock to the system not to be able to have that at all at that point. That is a good piece of advice.
Our better opinions usually are after we have worked through dissents and special concurrences and have input from everybody. It is also hard when you have written something, and you think it is the right way to not become invested in it and to be willing to change to build that consensus. I do think that when you write that dissent or that special concurrence or concurrence, you are improving the quality of the overall opinion. Sometimes, it does get where the two sides start to control the direction of the case to respond. You have to be careful that it isn't taking over. It is being argued by the parties and points made.
I can see your point about the crafting of the different opinions, the concurrences in the dissent that either sharpens the majority or ends up with a different outcome altogether, maybe as a result of that process. That process itself improves the decision-making process overall. There is a purpose to it and keep that in mind when you are doing it instead of maybe putting heads at some point. I always think that it makes it better. There is a reason there are multiple member courts at the appellate level.
You might not be willing to incorporate a justice's point if it is a 5-2, and you are going to keep that majority. You don't think that point should be in there. There are a lot of calls that have to be made if it is a 4-3 decision. That person could go the other way. Maybe you want to incorporate it even if it hurts a little bit.
It is good to keep in mind as an advocate that all of that is going on in your work. What can we do to make that party a little easier?
We turned out to be a dissent, but I was sounding the alarm for litigators. I was like, Bring this up.” There was one where the statute needed to be, by thought, revisited and reworked by the legislature, and it is causing a lot of issues with trial judges in the area of imposing sentences. That was written for the legislature. They will meet and read it, I don't know, and you write the other one. It is like, “This point wasn't raised. I wish you had raised it because it is preserved, but this is why I think it is important.” The next time it might get raised and preserved.
I think about the law in this way as an advocate, but also in decision making that the law is a stream. It is this constant stream that is going, and your case is like a rock that goes in the middle of that stream. It impedes the flow or redirects the flow. You have to think about what impact it has on all of the lot overall and why it makes sense that the rock should go there as opposed to somewhere else. Thinking about the opinions is in that way that the opinions are in that flow and point out different areas that might need another look. That seems to me a corollary to that.
That is putting the case in context. Where is the flow going to go after we put the rock down here? It is a very good analogy.
From the judges who have been trial judges, one of their particular interests are, do we have clarity for the trial judges about what they shouldn't be doing or not be doing. That is something that our presiding Justice Kathleen O'Leary out here. She was the presiding judge of the trial court. That is something I think about when I write my opinions. I think about, “Am I providing clear guidance to the litigants and to the trial judges? Is there something that needs to be addressed at a larger level that can help on day-to-day in handling each of these cases?”
I have heard that, particularly from Justice O'Leary and others who have had trial judge roles. That is one of the benefits of having diverse experiences coming to the bench. You have trial judges and people who aren't trial judges. All of that together, people have different perspectives, and they bring that concern or clarity to that position. Thank you so much. This has been fun. I like the discussion with you. Typically, before I close, I usually ask a few lightning-round questions. One of them is, what talent would you most like to have but don't?
Letting go of a grudge. I'm not holding grudges. I’m moving on from serious matters to something that is worth being upset about, but it is not helping anymore.
In those situations, the thing that helps is to say, “This isn't helping anyone. It is not helping me. It is only making it more difficult.” Have that moment. Who are your favorite writers? They don't have to be judges or lawyers.
I'm a nerd with this. I'm working on my doctorate. I'm studying this partisan gerrymandering. I love to get a well-written opinion that has a history in it. That is an enjoyable thing to read. That is well-reasoned and makes sense. I don't know if I have a favorite writer.
What, in your view, makes a well-written opinion? Are there aspects or components that are common to a well-written opinion?
I finished the Ruco decision. The tones and those between the majority of Robert and Kagan's dissent are different. The clarity is important but placing it in context, the issues and also a discussion of where we started and what has brought us to this point. In the dissent, Justice Kagan's style is almost as if she is talking. You can hear her talking in dissent. The briefing in the Harper versus Moore and Moore versus Harper, which is going to be argued in front of the Supreme Court, is top-notch. I enjoyed reading that as well.
There is legal storytelling in all of those good opinions and good briefs, telling this larger arc, where this case fits in, and where the law is at now. I remember I took some creative and fiction writing classes because I had this moment of, “Should I have done this instead of being an appellate lawyer?” I discovered, “No, you are in the right gig. You are doing well. This is much better for you.”
I discovered similarities that good writing and good techniques translate across genres. I ended up using a lot of techniques from short story writing, essay writing and things like that that I learned in the classes. I gave a name to the techniques that you would use in good brief writing, and it helps expand the world.
That process is very creative.
I would bring in briefs to the creative writing professors because they were like, “You are a lawyer. You must write novelty good thing.” I was like, “No, there is real storytelling, especially at the appellate level.” They didn't believe me. I would bring in briefs, and I go, “This is what we are doing here. Here is what they are doing in this opinion.” It opened their eyes. They were like, “You were right. We never knew that legal writing could be like that.” That is how it is.
When I get the new law clerks on board, that is the facts section of an opinion, the background of facts, that is always the hardest thing for them to write. I'm like, “You have to tell it like a story because you want everything listened to you, and you got to engage that reader.” It is the hardest thing for them to get a handle on. It is storytelling.
When writing a brief, you have to tell it like a story. It's because you want everything listened to and you've got to engage that reader.
Who is your hero in real life?
My mother, I have to say. You have lots of people that you admire, and you draw strength from them. My husband has been my biggest sponsor and my best friend. My mom, when she died, had applied to law school and she was 67. She was quite an unusual person, and I got a lot of what I love out of law from her.
I had Anna Blackburne-Rigsby from the DC Court of Appeals. She and her mom were the first mother-daughter set of judges at the same time, which was cool. Her mother had gone back to law school. It was a neat story of the two of them encouraging and inspiring each other back and forth and having that connection. Given the choice of anyone in the world, who would you invite to a dinner party?
I have to say, my husband. I'm comfortable with him. I don't know who else I would put in his place.
Sometimes you might not have that many opportunities to sit down and have a nice dinner together if you are both working. That is not so odd. For many of us, we are like, “Yes, that would be nice to have that opportunity.” Last question, what is your motto, if you have one?
That would be how I choose what my life is, and to be genuine, a true blue and a straight shooter. I hold those to a fault, but it is also what I think gets us through a lot of hard decisions. That would be my motto, “True blue and a straight shooter.” I don't know if that is the answer to your question.
They may not be mottos, but there can be guideposts too. In terms of how we act, that is fitting. When you said that, I was like, “Yes, that is my impression.”
It comes out in my opinion because I have that comment made by attorneys, and your writing style does come out.
This has been enjoyable. Thank you so much. I appreciate your sitting down and chatting. I learned a lot about opinion writing from you. It is interesting.
Thank you very much for inviting me.
Thank you so much once again. I appreciate it, Justice.
Bye.