Episode 153: Lisa Sarnoff Gochman
Author and Criminal Appellate Lawyer
00:55:31
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Show Notes
Lisa Sarnoff Gochman, a criminal appellate lawyer and author of At the Altar of the Appellate Gods: Arguing before the US Supreme Court, reflects on her career, the parallels between good writing in legal briefs and creative nonfiction, and writing the first book to provide an inside account of preparing for and arguing a landmark criminal case before the U.S. Supreme Court.
Relevant episode links:
At The Altar Of The Appellate Gods, Hamnet, The Marriage Portrait
About Lisa Sarnoff Gochman:
Lisa Sarnoff Gochman
Lisa Sarnoff Gochman is a career appellate prosecutor. After graduating from Cardozo Law School in New York City in 1984, Lisa began her career in the Appellate Bureau of the Bronx District Attorney's Office. Several years later, Lisa was sworn in as a deputy attorney general in the Appellate Section of the Division of Criminal Justice within New Jersey's Office of the Attorney General. During her 26 years with the Division of Criminal Justice, Lisa argued 25 cases before the Supreme Court of New Jersey, and once before the Supreme Court of the United States in Washington, D.C.
Lisa also served as appellate counsel for the Office of Insurance Fraud Prosecutor in Trenton. Lisa retired from State service in 2012 and now serves Of Counsel to the Monmouth County Prosecutor's Office in Freehold. Lisa is also the author of "At the Altar of the Appellate Gods: Arguing before the US Supreme Court," which captures the terror, wonder, and joy of arguing a landmark criminal sentencing case -- Apprendi v. New Jersey -- before the Rehnquist Supreme Court in March 2000.
Transcript
I'm very pleased to have as a guest an appellate lawyer, but a criminal appellate lawyer, Lisa Sarnoff Gochman. Welcome to the show.
Thank you so much for inviting me on. This is a very special show.
Thank you so much for being here. I'll have to give the audience a background as to how we got here and I reached out to you. I enjoyed your book about arguing before the US Supreme Court called At The Altar Of The Appellate Gods. I thought you were a great writer in that book and a great chronicler of your adventure arguing before the US Supreme Court.
I wanted to have you on to talk about that, but also I thought you have such an interesting specialized niche career as a criminal appellate lawyer for the prosecution side. I hadn't talked to anyone who had had that kind of career. I thought it'd be helpful for people to learn about that and what that's like as well. I typically start with the question of how did you get to the law? The first question would be, what caused you to go to law school or become interested in wanting to become a lawyer?
The answer isn't quite as altruistic as many of your guests have related. Mine was when I graduated from college in 1980, there were some doors open for women, but not many and they certainly weren't wide open. The default careers at that point were teacher and nurse. All were on the horizon for women. They were a lot more women in law school at that point. I wanted in the publishing industry, something to do with writing. I knew I wanted to be a writer. I couldn't be a creative writer or write literature because I have absolutely no imagination. I knew it had to be in the non-fiction realm, but I didn't know how I was going to get there.
After college, I started working for a publishing house in New York City in their subsidiary rights division. I was in a very lowly secretarial position, but I enjoyed subsidiary rights. That's where magazines and other books want to take excerpts from a book that is being published or has been published. I knew that I wanted to do something like that. At the time, this is back in 1980, the salary was $8,000 a year, which was completely unsustainable for New York City.
I thought, “Maybe I'll go to law school. I can be a literary agent. I could do subsidiary rights. I could still be in the publishing world.” I went to law school with that in mind, figuring I'll do contracts and I will learn how to be a publishing lawyer. The summer between my first and second year of law school, I got an internship at the Brooklyn Legal Aid Trial Division, and I shadowed a public defender. One of my first assignments was writing a search and seizure memo on behalf of a defendant who we thought had been the subject of an unreasonable search.
I started doing the research and reading these cases on Constitutional Law and the Fourth Amendment, and I thought, “This is what I want to do. This is so much more interesting than contracts.” That's how I became involved in wanting to pursue criminal law. Initially, I wanted to do it on the defense side because that's what I knew. I was working for Legal Aid. I had a class with Barry Scheck, who is now the head of the Innocence Project. When I was in law school at Cardozo, they didn't have Forensic DNA. Barry was the head of the Criminal Law Clinic. That's what I was in at that point. I was working on behalf of the Bronx Public Defender's Office, but I didn't get a job offer from Legal Aid.
I did get a job offer from the Bronx District Attorney. I went to work there in the appellate section. I realized that I could marry my love of writing with my love of Constitutional Law. I kept at it. When I left the Bronx District Attorney's Office after about three years, I moved to New Jersey and I joined the office of the Attorney General in Trenton, New Jersey, in its Division of Criminal Justice in the appellate section. It's pretty much the same kind of thing, responding to briefs. You take these transcripts that are dry, black and white, and you have to turn them into this gripping narrative as you give the factual recitation.
I love that. I've always found that an incredible way to write. I've listened to you discuss writing as an appellate attorney, and it's not that much different than any other kind of writing. Even if you're writing a novel, there's some structure to it. There are rules of the road. Legal writing is the same thing, but slightly different.
I'm glad you say that because I remember distinctly being in a lot of different creative writing classes, short story, creative, and non-fiction, and everyone is convinced that l lawyers don't story do any storytelling, and we're all boring briefs, legalese. I had to show a few of the appellate briefs to them, and they're like, “It is storytelling. We're using many of the same techniques that good writers and other genres use.” A lot of the judges will say good advocacy is good storytelling. In the appellate realm, the storytelling is first done in the briefs.
The way you describe it coming to appellate law is being, “I can marry my love of writing and my interest in this subject matter.” That's how I look at it too, but for me, I love having different subjects each time. Each case is different I love boning up on that and figuring out, “For now, I'm an expert on this particular thing or case,” and as you said, making the record come alive is a unique job in the law.
When I told people I was going to be writing this book, they said, “How do you know how to write?” “I've been writing for many years.” To go from legal writing to writing this book did take several gaffs before I found my voice. My husband and my friends would say to me, “You need more Lisa in there.” Eventually, I found that sweet spot between legal writing and non-legal writing, where the book is relatable on both levels.
That's what stands out to me about the book. It's not dry. More than lawyers would enjoy reading it to understand what it feels from a very human perspective to prepare for a case before the court and to argue it, but it also educates people about the law and about how all of it works at the same time. I think, from my perspective, you succeeded in marrying both of those things. I can understand what they were saying. That's the relatable part or the human part of your own quirks, character and emotions. That's what's going to keep people interested in reading to the next page.
People think you go into the Supreme Court and you argue a case, but there's much going on behind the scenes. A lot of it is chaotic and emotional. I only had twenty minutes to argue. My whole book is about a twenty-minute period of my life, but there's much that was going on that most people have no idea about and nobody had written the book about arguing in the US Supreme Court. That was a little daunting like, “Could I pull it off?”
I felt that I had a good story. I had a great case. Apprendi versus New Jersey is a landmark sentencing case. It's taught in law schools. In Justice Stevens’ autobiography, he talks about Apprendi being the most important majority opinion that he has written. It spawned off a whole area of sentencing law. I had that going for me as well. It wasn't like I was arguing some dry bankruptcy case.
Your case is very human as well. That's helpful.
It was a horrific story. For those who haven't read the book, it was a White supremacist, a pharmacist in Southern New Jersey who decided that he did not like having a Black family move into his neighborhood. On four separate nights, he took his rifle and fired into the house to give them a warning that they were unwelcome. The case ended up being about New Jersey's hate crime statute, whether or not it was constitutional. I did not defend the defendant, Charles Apprendi. I was there on behalf of the State of New Jersey, defending the constitutionality of New Jersey's hate crime statute, which amazingly, this was many years ago, and hate crimes are still foremost in the news nowadays.
You mentioned some of Brian Levin's work also in the book. Brian was a colleague of mine at a law firm and I’m friendly with him. It doesn't surprise me that he was involved in the case and interested.
He flew in to watch the argument that morning and was flying home that night back to California.
It was an important case. One of the things that stood out to me was the support that your office had for you. Often in these cases, even if you're the appellate lawyer at the other levels of the court, once it gets to the US Supreme Court, people go, “Now we need to bring in a different person to do it because we're in the US Supreme Court.” That support that you got to stay on the case and to argue the case that allowed you to have that amazing experience can be rare these days.
The case came to me in the appellate division, which is the Intermediate Appellate Court. It went up to the New Jersey Supreme Court. I kept the case because that's how it works in my office. You follow the case along. When it got to the United States Supreme Court, I wrote the briefs, but who was going to argue? It was up in the air. It is such a rare occasion to have a case in the United States Supreme Court. It wasn't a sure bet that it was going to be me. I wanted to argue it, but there were many attorneys with far more seniority than me who I thought would probably end up taking the case and arguing it. The Attorney General of New Jersey at the time was John Farmer Junior.
He was the Chief Senior Attorney on the 9/11 Commission. He was the dean of Rutgers Law School and now he is the director of the Eagleton Institute for Politics at Rutgers. He had told me that he didn't like taking a case away from a line attorney. He had been a US attorney. He understood what that was like to be the attorney on a case and somebody with more seniority takes it away from you as it works its way up into the higher courts.
He said that this is his only opportunity to argue in the US Supreme Court. He said, “Fine, I could second seat him.” That's a decent compromise, then he read my brief and he realized that he couldn't get up to speed in the limited amount of time to do it justice. He has other responsibilities as the Attorney General of New Jersey. He said that I should argue it. I got to leapfrog all the other people between me and the Attorney General. That was nothing short of miraculous.
That is often the case in these cases. As you said, even if you're still doing the briefing, the actual argument doesn't come up that often. People would want to take that opportunity if they can. It's great that you got to do that. The other thing I think you show in the book is exactly how much effort it takes. What people see, as you said, is the twenty minutes before the court, but to have that comfort level that's required to be prepared for those twenty minutes when you tell people like, “I'm preparing for a Supreme Court argument and I'll be doing that for 6 weeks or 2 months, or at least a month,” people’s mind boggles. No one usually spends that much time preparing for one twenty-minute argument, but that's the reality.
You've got twenty minutes. My goal was to walk away with my dignity intact. I felt that I did. I think that I achieved that, but you never know when you get up there. I had never argued in the United States Supreme Court before. I was comfortable arguing in the New Jersey State Supreme Court, but the US Supreme Court is a whole different ball game. It's the major league. I didn't know how I would fare under the circumstances, but the lawyer persona takes over. To me, the most interesting thing about arguing in the United States Supreme Court was how close I was standing to the Justices.
Isn't it amazing? It's different from other courts in that regard.
If I was addressing Justice Ginsburg, who at the time was standing to my far left, I could not see in my peripheral vision Justice Breyer, who was seated to my far right. In a way, it was good. It kept me in my lawyer zone because you become completely unaware of all the spectators sitting behind you. I was a tourist attraction.
People come to the United States Supreme Court. A lot of them were there to see the Apprendi argument or the argument that was done after mine. Most are just tourists who are coming in to see the United States Supreme Court because that's the only way you get to see an argument. It’s to physically be in the courtroom. That was a little daunting to know that, as I describe in the book, it's a theater in the round. You're being looked at by everyone on all sides of you. That, to me, was the most amazing part of being in the United States Supreme Court.
It's much more intimate than you think. It's grand at the same time as being intimate. It helps if you don't see all the people file in. You're already there sitting at tables. Afterward, you'll see the vast array of people who are watching. It's good to just focus and not pay attention to that.
Before the argument, I did turn around and was looking around and was like, “I cannot believe how many people are sitting here,” because I'd never had such a large audience before. It all faded into the background as soon as the case started, and all of that disappeared.
Were the justices a lot more active? Most Supreme Courts, whether you're talking about a State Supreme Court, like the New Jersey Supreme Court, where you've argued, also are active. They're curious about how their decision will affect other cases. Was there some difference that you felt in the argument between before the US Supreme Court and how that went in terms of questioning than the New Jersey Supreme Court?
The US Supreme Court was the hardest bench I've ever been before. They did not give any slack to me or to my adversary. Both of us were first-time appearances and there had been a myth that they go easy on first-time arguers, but that was not the case. I said about two sentences out of my prepared statement, and the questions started coming and they did not stop for my entire twenty minutes. Justice Scalia gave me the hardest time of all. He would not allow me to finish any of my answers. At one point, Chief Justice Rehnquist broke in and admonished Scalia to let her answer the question. He said something like, “She's answering the wrong question, Chief Justice.” He didn't like my answer. We went back and forth for quite a while.
The US Supreme Court is the hottest bench ever. They don’t give you nor your opponent any slack.
My favorite interaction was with Justice Sandra Day O'Connor. Sometimes the justices will ask questions not to trip up an attorney but to broadcast what their view is on the subject. I knew that's what she was doing based on prior votes in analogous cases in the US Supreme Court. I remember thinking to myself as she was speaking to me, “This is cool. Justice O'Connor was asking me a question,” because when I first started law school, she was sworn in as the First Associate Female Justice of the Supreme Court. It was an amazing thing to have her standing there and I am interacting with her.
Sometimes the justices will ask questions not to trip up an attorney but to broadcast their view on the subject.
As far as other differences between the state court, the state courts let you argue pretty much as long as you want in. The US Supreme Court does now too. When I argued, they had very strict time constraints. Other than that, it's a court. An appellate court is an appellate court you'd better be prepared regardless of who you're standing in front of. That's the advice that I would give to appellate attorneys. Know your case. Know it better than anyone knows it. Be the expert. The second you walk out of the courtroom, you can forget it all and move on to the next. For those few moments when you're standing in front of the lectern, no one knows that case better than you. That's what you need to portray as you're arguing.
That's both the case law, the record and everything altogether for that period of time because you can be the most helpful to the justices that way too. Also, your point of having that level of confidence from that also makes a difference in your presentation.
Getting back to your question about the difference between the state and the US Supreme Court, the US Supreme Court wasn't necessarily interested in New Jersey's hate crime statute. They were interested in all sorts of sentencing statutes and mostly congressional statutes. I needed to know everything there was about the Sixth Amendment, right to a jury trial and sentencing enhancement. That was daunting, but you do what you got to do.
That's a good point because as you're taking a case through the different parts of an appeal, how you present it, sometimes you know your case, but how the court will view the case and what issue it's being asked to decide in that case, and how broad its concern about what its ruling's going to do to other cases changes? As you said, the state Supreme Court's curious about the New Jersey hate crime law and its impact on New Jersey law, but the US Supreme Court has a much wider view of saying, “Whatever we do is going to impact the entire country and many different states. We need to have even broader view,” which means a different kind of preparation for that.
As it turned out, Apprendi was applied to federal statutes and then to state statutes. It did evolve well beyond the borders of New Jersey.
That's an important point because I think also people think, “It's an appeal. It's the same appeal all the way through it.” Not exactly, because the issues vary and then what the courts are interested in is different depending on which jurisdiction. What about appellate brief writing? What kind of advice would you give for that?
My favorite tidbit is to write a self-contained brief. Never give the judge or the law clerk an opportunity to go to your adversary brief. You want everything in your brief. Sometimes it's unavoidable in New Jersey. The appellant is the one who puts everything into their appendix. As the respondent, I have to say, “See the defendant's appendix at a page,” whatever, because I can't duplicate that in my own appendix under the rules.
Write a self-contained brief. Never allow the judge or the law clerk to go to your adversary's brief. You want everything in your brief.
Other than that, write a self-contained brief. Make sure you go from A to B to C to D. There are many times that writers will skip over something that is fundamental in understanding what the point is. I learned that also while I was writing my book where I would be writing about something legalese and non-lawyers would read it and go, “How did you get from here to here?” It's like, “All lawyers know this, but a lot of non-lawyers don't.” That's very important to make sure you're going A to B to C to D and not skipping any of those letters in between.
I teach in an appellate clinic, and the first thing I usually tell the students is, “If you're not the appellant, don't just respond. If you're the respondent, don't just respond to the other side's brief and use that as the frame for your brief. Start with how you view the case and how you would present it, from standing on your own feet if we're your client instead of responding to something somebody else said.” Also, on top of that, you want to be the go-to brief that the court goes to. If you're more comprehensive and it's like, “This brief is credible. They properly cite the record.” What do they say about this point? That's where your advice about being self-contained fits in.
There's nothing more gratifying than seeing an opinion. It's basically lifting from your brief because that means the court got it. I understood it and I was able to convey to them what needed to be conveyed.
We were talking about brief writing and you were saying being to be a self-contained brief so that the court can look to you as being the resource that is go-to. Any other advice for writing? You talked about storytelling. You're telling a story in the brief. What are some good storytelling techniques?
I used to talk about making my facts read like an ABC movie of the week. Sometimes it's very hard to do. You may have a very boring fact pattern. It may be some basic drug possession case. There's nothing interesting to write about, but it still has to flow. I think the best advice is to keep reading other people's briefs. Keep reading everything you can, fiction, non-fiction see, see what you like in a writing style and keep learning how to write. I have been doing this for many years and I still like to learn how to write.
Keep reading other people's briefs. Keep reading everything you can. Fiction or non-fiction, see what you like in a writing style and keep learning how to write.
There's always room for improvement. I can go back to a brief that I've written many years ago and go, “I would've done it this way instead.” Not that I did it wrong the first time, but I see other styles and ways of developing the facts or incorporating the law and keep learning it. You don't stop learning how to write because you graduated from law school or on a creative writing program. You always have to be interested in how other people write.
For example, and I write about it in the book, the Oxford comma. For years I never thought twice about the Oxford comma, but then I started working for a woman who loved the Oxford comma. I started using it, and now I can't live without it. Simple things like that. If you're going to be a writer, then you have to keep learning, learning how to write.
That's one of the joys of it. You keep layering on the different skills. It's a lifelong process of becoming a writer and getting better at your craft because that's what it is as an appellate lawyer in particular. It's a craft.
You want your brief to be the one that the judges rely upon. That's just not the quality of the writing. It's also making sure that you don't exaggerate. You don't lie. You don't hide things from the judges. Your credibility is key regardless of where in law you practice, whether you're in a trial court, an appellate court, or behind a desk. Credibility is key. You never want to put something in a brief that does not belong. Even if it helps you in the long run, if it's incredible, if you take a case and you cite it for the wrong proposition, or you try to work your facts, you seem to leave some out or add some in, that's not going to work in your favor in the long run.
That's all in the context of the standard overview in the particular case about what you also need to present in terms of evidence standard or something where you need to lay everything out and whether you look at the record in the light favorable to the judgment or in the light favorable to another party is also important to think about when you're presenting your story.
That presents challenges as well because you are, as an appellate attorney, within these confines of evidentiary standards, the facts of your case, and the applicable law, and you have to find a way of making that all meld. You get the judge to come to your position. In a way, as a prosecutor, it's a little bit easier. We usually win more than we lose. I think it's much more difficult to be a defense attorney, especially in New Jersey, which is very pro-defense. At the end of the day, it's your credibility as an attorney. I want when appellate judges see my name on a brief, they expect a certain quality, a certain standard, and I need to make sure that I am up to that standard each and every time.
What's also interesting about your career is that sometimes people think, “I have to choose to do one thing or the other. Once I've chosen to practice, then I can't become a writer or a novelist in that sense,” but you've done both. It's a question of, and in your case, putting together your original interests and your interest in writing, your practice experience into more of a creative non-fiction kind of form is what I think of it as. Maybe you can give some thoughts on that in terms of don't just choose. Once you've done one thing, it doesn't preclude you from going back to your other writing interests and how do you combine those, the practice and the book writing?
My new motto is, “You can have it all, but not all at once.” I have a son, my marriage, and my career, and I work part-time now. I retired from the Division of Criminal Justice back in 2012, which gave me the time to write this book. I started writing it in May 2019, and then the world shut down. The beginning of the very next year, it gave me a lot of time to sit and write a book. You may not be able to do everything when you want to do it, but you can certainly find time along the way. I've had a career for many years, along that, I didn't write this book until few years ago. I was well into my appellate career before I was able to sit down, have the time and devote to writing it the way that I wanted to write it. If you've got kids or illnesses, that gets in the way. You can do it all, but you may not be able to do it all in the same week.
That is something we discover as we go along in our careers. You can have it all, but not all at the same time.
It goes by fast.
There's that as well, but I was wondering if you thought the book, you wrote it later in your career well after the experience, how do you think that impacted the book? You had more experience of writing in general. The experience you were writing about was a little more distance. Maybe you had a larger perspective on that too. I'm curious what you think about the timing of writing the book.
After I argued in the US Supreme Court, I came back to New Jersey with a mountain of work to do and everything else in my life and writing a book about this was not anywhere on the horizon. There was also the point that I lose. There's no spoiler alert. For many years, that was difficult for me. Every time that a court struck down one sentencing statute after another in the state court system, in the Federal court system, it was like a kick in the gut to me. I was responsible for that.
I've come to decide that Apprendi was correctly decided, that it doesn't matter whether a judge or a jury makes the finding of a biased intent as long as there is a fact finder who can do so. I think perspective and age comes wisdom. It was all gelling for me at that point. I knew I needed to write a book about something. I never knew what I was going to write this book about. Literally, one morning in May, I woke up and I said, “I'm going to write about the US Supreme Court. I have a great story to tell.”
I had been telling all of these stories in my continuing legal education classes. At first, though, I thought that this book was going to be a companion piece to those continuing legal education classes. At the end of the class, everybody always has all these interesting questions that either, “I didn't have time to get to or I hadn't thought about before.” Writing the book allowed me to do a deep dive into what had happened. I had never processed it before and I had never allowed myself to regale in the fact that I had argued in the United States Supreme Court. The book allowed me to do that. I think that with the experience and looking back on it many years later, that helped. It gave me a much better perspective and softened the book a bit.
I often wonder about that. It came to you like, “This is what I'm going to write about.” I feel like just when you're writing a brief, there's something percolating in the back of your mind. Sometimes it takes longer than other things and then it comes out either as a fully formed idea or, in your case, “I know I'm going to write about this.” You needed that time to percolate to get to this point and emotionally for you to get the distance to appreciate the experience even though it didn't come out with a victory. There's that. You feel responsible to some degree from that development, but making peace with that as well.
Reveling in the process itself and our justice system and how it all works at the highest level is interesting. There isn't a book that has done that before in this way, in a highly personal way, and in a way that's accessible to non-lawyers to understand what goes on in the appellate process. It's a great educational book in that regard. Even for lawyers who haven't done appellate arguments at all, and certainly not Supreme Court arguments, that would learn a lot about the process too.
Unless you're sitting in the United States Supreme Court, you can't see an argument. For many people, the only arguments they've ever seen are in movies or on television. It probably sounds very boring to a non-lawyer, and perhaps it is, but it is a remarkable experience. Few attorneys have the chance to do it. There are many attorneys who are members of the United States Supreme Court bar who have never been to Washington, DC.
I wanted to write a book that would teach people, but there's no test at the end. I've always enjoyed books by authors like Mary Roach or Bill Bryson who take a subject that I wouldn't have taken in college because there would've been a test at the end of it that I would have failed. I can learn about the digestive system or the Appalachian Trail, but I'm having much fun along the way with their personal stories and their writing style. That's how I wanted to approach this book. I wanted people to be able to read it and go, “That was fun. I enjoyed reading it. I never have to know this again, but that was a great book.”
It seems like your experience of reading others' works also contributed to your sense of how you wanted this book to be and what you wanted people to come away with from the book.
Some of my favorite authors are David Sedaris and Nora Ephron. These are people who can make the mundane come to life and draw you in emotionally. That was some of the impetus also. Those were some of my creative muses in writing this book. To make it personal, to have people drawn into the emotion of it and the humor. My book has a lot of humor in it. It's not dry. There's a car crash and all sorts of stuff that happen that has whirled around me as I was preparing to go to the United States Supreme Court. You have to have a sense of humor about it, or it'll drive you crazy.
That's a good point for all stressful things in life. It's like, “You got to roll with it.” Sometimes you're like, “The only thing you can do is have a sense of humor or else it's going to be bad.” You might as well have that.
Getting back to your point as to why it took me long to write this book, I think a lot of it is because, at this point in my life, I can laugh at myself. I can look at my foibles and go, “I can share these with people now. I couldn't have done that earlier in my life. I wasn't in that emotional frame of mind.” If people know that blurt out some other spoonerism, that's okay. Everybody does it. It doesn't bother me anymore that everybody knows that I do it.
That does come with time and being comfortable with yourself and all of your foibles no matter what others think or say about it, but also being open about that kind of thing makes it more relatable because you're a human being with all of these, good, bad and all of these different aspects to you. No one's perfect. Sometimes that's the beauty of things. Your comfort level without being able to write it, but also being able to have that come out contributes to the book being more relatable.
There were additions to the book that have come out because I've decided that I am not comfortable with everyone reading this book knowing about X, Y, and Z. Some things stayed in for a long time and then came out and some things stayed in all together because I was perfectly fine with it. That was part of the writing process to decide “What stays in? What comes out? How much needs do I want everybody knowing about? How much of me is related to this story I'm trying to tell as opposed to some gratuitous story?”
That comes from being able to edit your own appellate briefs along the way because you're constantly streamlining and calling that to say, “I'm telling a story, but a story for the legal issue that the court's going to decide.” What is essential or helpful to that and not like the whole story of everything that happened that the court doesn't need to know about for that legal issue? You had good training in the editing process of appellate briefs. That leads me to a question of how does the writing and editing process of the book, let's say, compared to the writing and editing process of the briefs you filed in that case, or appellate briefs in general? Are there corollaries or is there something different about editing a book that's not a brief for the court?
The biggest difference is the time constraints. I have very tight timelines to write briefs. The Supreme Court of the United States does not give extensions. That brief is done on the day it is due and that's it. That's where you are. I had deadlines with the book, but not the same thing. I wrote this book over the course of three and a half, four years. I had the ability to keep going back, redrafting it and living with some of the stories that I put in deciding if I was comfortable with people knowing about that.
You don't have the same thing with a brief. I have a few weeks to write a brief and that's it. Sometimes I'll go back and go, “I should have said it this way. I should have written something differently. I wish I had added this in.” The time constraints involved that is the biggest difference. I had far more leeway writing a book than I do writing a brief.
I write about the different Supreme Court cases that were important to the apprentice decisions, the ones that proceeded with Apprendi and the ones that came after Apprendi. I needed to add those in so that lawyers who were interested in Apprendi, this was for them. For non-lawyers, I needed to write it in such a way that they could understand the law, follow it, and understand why I was arguing what I was arguing when you get to the chapters about the courtroom scenes. In that respect, I still had to use the same type of writing style and logic in that sometimes you have to distill a case down to its essence. It’s not always easy to do.
Sometimes you can take out a holding easily and sometimes you can't. That was part of this book, also. Apprendi is very esoteric in many ways. The cases that preceded it were very esoteric, and I needed to keep writing it and rewriting them for my audience. In an appellate brief, the audience is judges. If you skip from A to C, maybe the judge will pick up what B was supposed to talk about to get you from A to C.
In the book, I couldn't skip over any of that. I had several non-lawyers reading the earlier drafts, and they were the ones who helped me make the book the way it is. They shaped it for me, but saying, “I don't understand this. How did you get here? I don't understand what you're talking about here. How did you do that?”
That was the most helpful part of the editing process for the book. For a brief, I no longer have supervisors who supervise my briefs. I just do it on my own. I'm competent at this point that I haven't missed anything. If I have, the judges will fill in the blanks. The book is the final word. When I write a brief, it's not the final word. The judge's opinion is the final word. When you write a brief, that's it. Nobody is going to come and once it's published going to say, “No, that shouldn't have gone that way. You misinterpreted the law.” It's too late at that point.
You're talking about two different things in that regard. You can decide what you're going to talk about in the record or in the case in your book. You don't have a standard of review and all of that. I wonder about sometimes it's helpful, even in legal cases, to run arguments by people who have good common sense but no legal training. I could see where it's particularly helpful in writing a book about the law.
Initially, the book was going to be written for lawyers, but as it morphed into something different, I needed to adjust my writing style to ensure that non-lawyers could follow it as well. That made for a more interesting book.
Isn't that interesting? I think sometimes you have an idea of what you're creating and then you let it flow. It becomes in the process of creation. It's fulsome, whatever it was meant to be. It may not be your initial view, as you said, a book for lawyers, but it's a book for everyone, non-lawyers too, who are interested in the judicial system and the Supreme Court. By combining both of those, you've created something unique in the book itself.
Thank you. In writing the book, I wasn't working under the constraints of appellate litigation. That was very freeing for me to realize that I could write whatever I wanted in any way that I wanted to write. I wrote it in a certain way, but I didn't have standards the way that you do for appellate writing or page limitations.
Typically, I'll close with a few lightning-round questions, but we started with one of them, so I want to make sure that we finish it, which is, who are some of your favorite writers?
I read two phenomenal books by Maggie O'Farrell, Hamnet and The Marriage Portrait. This woman can write. They're both very sad books, but the writing is beautiful. I have realized over the years that it's the same thing when you go to college, for example. You could be interested in the subject, but you have an awful professor, you're going to hate whatever it is he's talking about.
When you have a wonderful professor, you will suddenly be enlightened as to a subject matter that you didn't think you had any interest in. As I get older, I realize that the way you write is the most important part about the book. The subject matter is secondary. I love reading David Sedaris and Nora Ephron. I'm reading Salman Rushdie. I read all sorts of different books, but they have to be written beautifully, or I lose interest and stop reading them. I'm sure a lot of readers have this rule, “You've got to finish the book.” I used to be like that, but not anymore, especially reading off of a Kindle, like you don't get a sense of how far you are in a book.
I know that's different from having the physical book.
You still have 50% left, but you're not sure how much that is. If the book doesn't grab me, I'm not going to go toward the very end.
Sometimes reading books for the craft. The way someone has constructed their sentences or things like that. The subject matter could be quite eclectic, but the actual say, “That's such a unique way of writing. I appreciate that and enjoy that.” That's something new for me that I realize, “I like the way somebody writes. It catches my eye or my mind in a particular way,” and then I think you can incorporate all of that or take all of that in, and then your own writing can improve from that. It doesn't have to be a duplicate of somebody you appreciate, but incorporating all of that, and then your writing grows and changes over your lifetime because of all the great things that you've read. Which talent would you like to have but don't have?
I'm going to borrow this from a friend. She has the ability to not be embarrassed by anything. If she is embarrassed, she lets it fly off of her shoulders and that's it. I wish I had that. I'm getting better at it, which is why I think I was able to write this book now that I couldn't have written back then because there are stories in there that aren't the most flattering, but it's part of the mosaic of who I am and of the topic of the book. I wish that I didn't second guess myself. I wish that I didn't feel embarrassed by anything. I'd go a lot farther in life if I had that shield around me.
That's a superpower. I hadn't thought of that before, but it is being able to sort of let it go off your back like a duck.
I have imposter syndrome. I'm sure at any time, someone's going to say to me, “How the heck did they let her go to the US Supreme Court? How the heck did her book get published?” Whatever it is. It could be smaller things than that. I wish that I could completely overcome my imposter syndrome. It does recede into the background when I'm arguing when my lawyer persona takes over, but I wish that that persona was full-time.
Some of that carefulness about things is part of the appellate personality, and we're very cautious about that. I still have this thing when I open the other side's brief. I'm always worried that I'm like, “I hope they don't say that I got something wrong. We waived something. We mischaracterized a case.” I know we didn't, but I still always have that fear.
The worst part about being an appellate lawyer is reading the reply brief.
It is always like, “Everything's fine. Perfect.” There's always that, “Did I miss something? Should I have done something differently?” From the first brief to now, it’s the same feeling. I'm glad you say that. I’m not the only one. Who is your hero in real life?
My real-life hero is my grandmother, Martha, my father's mother. She graduated from Columbia Dental School in 1919. She went on to have a successful dental practice in Queens, New York, back when she was probably one of less than a handful of female dentists. Unfortunately, she passed away when I was a freshman in college. I never got to have the conversations I would love to have with her now as a grown woman myself, like how did she do it? She had two sons. How did she do all of this? What was it like for her to be a female dentist back in New York City in the 1920s? That must have been amazing and she is my hero. She was with me when I argued in the United States Supreme Court. She was definitely there. I was wearing my other grandmother's pearls, but my grandmother, Martha, was definitely there cheering me on.
There would be some significant stories from that, I imagine. That's amazing.
To me, she was just grandma. We did grandma and granddaughter kind of things.
For what in life do you feel most grateful?
I'm grateful that I have gotten to this point in my life and have been able to take stock of what I've accomplished, not just professionally but personally. I'm very proud of my son, who graduated with MBA. He works in Disney World. He's married and happy. I'm thrilled about that. To see that my marriage has lasted as long as it has, through all of the ups and downs of marriage, children and appellate work.
Appellate work is not easy. There were many nights when I came home from work with a briefcase full of work that I had to do once I got my son to bed. To be able to look back and see it as a whole and see what I've accomplished is very gratifying. I always say to myself, “I might be old, but it's given me a perspective that you can't have when you're in the middle of it all.”
That's meaningful what you said about seeing it as a whole because when you're going through it, you can't have it all at the same time. You're doing one thing at a time, and then to be able to see the whole mosaic together is a great perspective to be able to have. You're right about being an appellate lawyer. It is demanding in a different way than it would be to be a trial lawyer. Everything we do requires a deep amount of concentration over a long period of time. Being able to have that and to be graced with that opportunity by the support of your family or whatever is needed in order to allow you that time to be able to concentrate is a gift. We may not be running off doing trials all over the country, but when we're working, we're very focused.
I was very fortunate that my husband was able to take over most of the parental duties while I was preparing for the United States Supreme Court. I was happy that my son Jordan was old enough to understand what was going on. He was nine years old at the time. He was there in the courtroom. He watched me argue. He may not have understood the intricacies of the appellate litigation or the Apprendi case itself, but he understood how important it was that his mom was in the United States Supreme Court arguing a case.
It was great for him to be a part of it and to see that. That's important. Given the choice of anyone in the world, who would you invite to a dinner party? It could be more than one person currently with us or not with us on this Earth.
My grandma, Martha, Sandra Day O'Connor and definitely David Sedaris because he'll be funny as anything. Those would be my top three. I think we would have a wonderful time discussing all sorts of topics, including what it is for women to open up the doors for other women and how humor is part of everything. You have to see the humor in it all, or it's going to come crashing down on you.
That sounds like a great group of dinner party companions.
Also, Nora Ephron. I love her.
You have to put your favorite writers, both of them, in there. Last question. What is your motto if you have one?
“You can have it all, but not all at once.” You won't know that until you're old enough to realize that you did it all or maybe you didn't. Maybe there's something that you weren't able to do because you were doing something else, and that's okay too. Everybody's roads are different.
You can't have everything. You won't know that until you're old enough to realize that you did it all, or maybe you didn't, and that's okay. Everybody's road is different.
Thank you so much for sharing your road, journey, book, book writing and Supreme Court argument experience. It's been a lot of fun, in particular, to talk to another appellate lawyer who knows her craft. It's a lot of fun and thank you so much for joining.
Thank you so much for inviting me on. This has been wonderful.
Thank you so much.