Episode 27: Rebecca A. Delfino
Professor of Law and Faculty Adviser at Los Angeles’s Loyola Law School
00:58:41
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Show Notes
We’re in for a treat as MC Sungaila dabbles a little bit more into legal academia as a career option for lawyers and law students. Joining her is Professor Rebecca A. Delfino of the Loyola Law School in Los Angeles. Professor Delfino wears many hats in the school, most notably as a Professor of Law and Faculty Adviser of the Moot Court program. She takes us back into her storied journey from law school to law firm, the Court of Appeal, and eventually, back to law school where she’s now busy molding a new generation of law professionals. Listen in and take a peek at the career path of an amazing woman who has an impressive resume of experiences both in academia and in the courts.
This episode is powered by Clearbrief, Trellis, BriefCatch, and CSBA .
Relevant episode links:
Loyola Law School, Molly Dwyer, Stanford Law School, RAND, Judge Rosenthal - previous episode
About Rebecca A. Delfino:
Rebecca A. Delfino
Professor Delfino teaches skills and doctrinal courses in appellate law, criminal and civil procedure, the judicial branch, advanced legal writing, and alternative dispute resolution. Her research and scholarship interests center on the intersection of the law and current events and emergencies, such as the opioid epidemic, the proliferation of deepfakes and AI technologies, and immigration crises. Her work investigates the historical roots of events and crises while also projecting forward, exploring how the law can and should be used to provide solutions to emerging problems and potential catastrophes.
Professor Delfino believes that the answers to the societal challenges appear only through active intellectual engagement that crosses the disciplines within the law and beyond. Accordingly, her scholarship reflects the need for greater connections between fields of law and the academic disciplines of business, humanities, natural and applied sciences, and social science.
In addition to teaching and scholarship, Professor Delfino also serves as the Faculty Director of the law school’s Externship Department and the Faculty Director of Loyola’s nationally recognized and award-winning Moot Court Program. As Director of the Loyola Moot Court Program, Professor Delfino has developed a unique and intensive summer advocacy “boot camp” at Loyola for advanced legal writing and oral advocacy students.
Prior to joining the full time faculty of the law school Professor Delfino served as Lead Senior Appellate Attorney at the California Court of Appeal, Second Appellate District, Division Seven for 17 years. During her tenure at the court of appeal she researched and assisted in the preparation of more than 800 bench memoranda and draft legal opinions in numerous areas of law from felony criminal cases, to complex civil litigation, to family law and probate, to juvenile dependency and delinquency matters. In addition to her full time position at the Court of Appeal, in 1999 Professor Delfino joined the adjunct faculty of Loyola Law School.
Professor Delfino is a member of the adjunct faculty of the Glendale Community College where she teaches a political science course focused on California State and Local Government and a course focused on the United States Federal government and politics at the national level. Professor Delfino also serves as a “neutral” for the Los Angeles County Superior Court. Since 1999 she has been mediator, arbitrator and judge pro tem. As a volunteer bench officer, Rebecca has presided over more than 100 limited civil arbitrations and small claims trials.
Professor Delfino began her legal career as litigator at Kirkland & Ellis and was later an associate at Quinn, Emanuel, Urquhart & Sullivan in Los Angeles. She handled all phases of civil litigation in a variety of cases from complex multi-party product defect and construction cases to white-collar criminal defense, to protection of intellectual property rights, to defense of employment discrimination and harassment claims.
During law school Professor Delfino had an externship with the Honorable William Shubb of the Federal District Court of the Eastern District of California in Sacramento. After graduation from law school she served on a clerkship with the Honorable Cliff Young, Associate Justice of the Nevada State Supreme Court. Professor Delfino also worked as an elementary school teacher for the Los Angeles Unified School District in South Central Los Angeles before attending law school.
Transcript
I'm pleased to have joined by Rebecca Delfino who's at the Loyola Law School in Los Angeles. She wears many hats there as a Professor of Law, but also in the Moot Court program. I had the pleasure of working with her in connection with the Ninth Circuit Clinic at Loyola as well. Welcome, Professor.
Thank you for having me.
I'm glad to be dabbling a little bit more into academia as an option for careers, for lawyers and law students. I'm particularly interested in your roles because the clinical roles and Clinical Law professor roles have come into their own light as the importance of practical experience in law school and for law students before they graduate has become more of a need and an interest in that.
It's also because you come with an interesting background before that in working for the courts and working for the Court of Appeal as well. That combination is a unique one and is something interesting to explore on the show. First, I wanted to skew how you decided to go into Law. How did you decide you wanted to go to law school and become a lawyer?
I didn't have any lawyers in my family. I wasn't sure what they did. I'm the youngest in my family. I always felt like I was fighting for attention and space. I was fighting to get my opinions out in my family. I always had a sense that I wanted to be in charge. I wanted to be in control. I wanted people to listen to me. From a young age, I wanted to have a profession where as a woman, I could do that without having someone turn to me and say, "What do you know? You're a girl," or whatever.
I remember when I was in elementary school, I played a lawyer in a play. It wasn't the Merchant of Venice but it was some little elementary school play. I not only enjoyed the performative aspect of how theatrical it was, but I also liked the fact that I was a lawyer and when I spoke my lines, everybody would listen. Maybe I was confused because I was in a play and I was a lawyer. I came away with this sense of a lawyer was a person that could take control, be in charge, have a place at the table, and everyone would have to listen. I had put that in the back of my mind and didn't know what I would do with that.
When I got into high school, I started doing theater and debate. I remember I did a Moot Court Program when I was in high school. It sparked within me an interest in maybe thinking about being a lawyer. When I went to college, I majored in History. I did plays and different things on the side. I was still toying with the idea of having a profession where I could command the room and command respect. I kept on coming back to the idea of being a lawyer.
I took a little bit of a detour after college. I was an Elementary School Teacher for a while in LA Unified School District when I was young. I had a lot of teachers in my family and I thought, "Maybe I should consider that as well." No one was encouraging me to be a lawyer. They said to me, "Work for the government, " so I want to be a teacher. I did that for a while. Being an elementary school teacher, I saw a lot of need. There was a lot of inequality in our society and a lot of things that happened to the children and their families that I thought were unfair and unjust.
As a teacher, although I could certainly teach the children the basics of elementary education, I felt like I wasn't doing much more for them. They had more needs. They had relatives who were being arrested. They had problems getting services. There were a lot of things that I was troubled by as a human being. I came back to thinking, "What could I do to be more helpful in society?" Although teachers are great and I am a teacher now again. At the time, I thought there's got to be something more I can do for these people.
I decided that I would see what law school was about. I went to law school. If you ask Law professors, many will tell you that law school was the ultimate experience. They loved law school. What's funny is I loved law school. At the time, I would never tell my classmates that because everybody grumbled about how hard it was, the rigor, the hours, the reading assignments, and being called upon. The Socratic Method, everybody hates that. I loved every minute of school and I liked Law a lot. I thought, "I'm going to try." I didn't know what I was going to do with my law career. I knew nothing about the practice and worked in a law firm for one of my summers. I confess I did not like that at all.
What I didn't about the law firm experiences is that I had never worked in an office. I didn't understand office politics. I was confused by the assignments people were asked to do, the expectations that were placed upon the younger associates, and the hierarchical nature of law firms. I found it a little strange that they were not necessarily meritocracies. The way they were structured and the way people were evaluated and so forth seemed odd to me. This was in the early '90s. Half of my law school class was women, but not half of the law firm where I worked at.
That's our time.
There were few women partners. There weren't a lot of women I could look to see where I would go with it. It seemed odd to me there weren't women partners so there was that aspect. Some of the stuff that law firms did and some of the assignments I had, I couldn't understand because no one took the time to explain to me how they fit together.
How does that fit together? Too many people will just give it and say, "Here's this piece.” I've never understood how you could do that piece without understanding how it fits together because you don't know what you're trying to achieve.
What I love about the law is that it's about finding answers for people's difficult problems.
There was no one there at that law firm that would sit down and explain that to me. I came away from that somewhat dissatisfied with that experience. I thought for a period of time that I would quit law school and go back and be an elementary school teacher. I had already agreed to be a post-grad clerk for a judge. I thought, "I'll at least do that." I didn't want to let him down. I felt that would not be appropriate. I went on my postgrad leadership and loved it.
Clerkship in my experience is the pure love of the law. Working with someone who does care about teaching you how everything fits together is a great mentor. It's an amazing experience if you love the law.
It's not only that, but what I liked about it was we were working towards a solution. What I love about the law and continue to love about the law is it's about finding answers to people's difficult problems. Let's face it. If the problems are easy to solve, they usually don't end up.
It wouldn't get to that point. You wouldn't be in the system if they were easily solvable or could be agreed to.
The beauty of working in a court for a judge or in the courts, in general, is that you're taking different positions. If the advocates are good, the best positions have come to the top. You're trying to figure out how they match with the existing law or don't to find a solution that is warranted under the law. There's nothing else going on. You can focus on what's important. I love that.
I still think about that. As an appellate advocate, our job is to see the bigger picture, fill in where it fits in that bigger picture, and explain that in a persuasive way.
You're thoughtful in that way. If I'm being honest, not all appellate advocates are that way. A lot of folks put entirely on the advocacy hat. Everything is in service to that rather than having fidelity to other issues as well. The advocates that I admire the most are the ones that are more thoughtful.
You're trying to help the court to decide the case. That's what the court is going to do. Why don't you help explain that? That's how I've always seen it.
That's a good approach.
I loved my courtships too. I was so grateful for having had those opportunities also. In your case, you were maybe a little disillusioned about things. It's a way to be like, "Back up little camper. There are good places and there are good things to do with your Law degree."
As I look back on my career, every job that I got after that, my clerkship was somehow the reason that door has opened. I ended up in big law when I finished my clerkship. The reason I got those opportunities was because I had a clerkship. That was it. The reason that I ended up working for the court was because I had a clerkship. They're more involved in that. The reason I ended up a Law professor is because I had a clerkship, had worked for the court, and had a perspective that could find a place in legal academia.
I put it in the category of if students are interested at all in the law in that way, go for it in terms of applying for a clerkship.
The last thing I'll say about clerkship is they're a good place if you like the law, but you don't know what else you're going to do. It gives you breathing room.
It's helpful in whichever way you decide to go. You had the clerkship, you went into big law, and then said, "How about the court again, but a different court?"
When I was in big law, I worked at two big national law firms. When I returned to practice after my summer associate, then I knew what to expect. There was more like, "This is what it is. This is what I'm going to be doing." I did work on some interesting cases and got interesting experiences that I knew I wanted to have in litigation, trial litigation, depositions, trial work, and things that I thought would add value to whatever career I had. I didn't know where my career would end up.
After about 6 or 7 years, I thought more about, "I wanted to write and teach." Unfortunately, the rigors of practice didn't necessarily mesh with doing any scholarship that wasn't related to my cases or teaching. Teaching requires some consistency of availability. I was trying to find a way to do that and still stay working as a lawyer. I saw that the California Court of Appeal, where I spent about seventeen years, were hiring lawyers. I thought, "I know how to do that." After a couple of tries, I was hired to work there and loved it.
I don't think that many people realized that. Molly Dwyer, who has been on the show, is the Clerk of Court for the Ninth Circuit. She was a Staff Attorney at the Ninth Circuit Court of Appeals. When people think about attorneys working with judges or with the courts, they largely consider the term clerks after law school. In the California system, almost exclusively what you have is career clerks at the Court of Appeal and Superior Court. Supreme Court has those too, although they're mixing it up with some clerk terms, also with the current justices, but nothing that I knew about in law school that this was possible.
There's intellectual rigor. There is variety. You work with other smart people that are all trying to do the right thing by the cases. It's challenging. It's the purest form of practice without being an advocate or an adversary because there's no adversary. It's tremendously rewarding. For me personally, it opened up a lane through which I could start teaching. I started as an adjunct.
You have the opportunity to do that. You could be more consistently available.
I was researching and writing all the time. I created a folder where I would have ideas for articles. I would see things in cases and I would be like, "That will make an article. No one has written in this area because it's an issue of first impression.” People listed those. In fact, when I transition into full-time teaching, my first couple of articles were based entirely on things and ideas that I had while I was working at the Court of Appeal that I knew nobody was writing about.
Rebecca, you make me feel a little bit better that I'm not the only one. I don't have a folder but I have a notes part of my iPhone where I'm like, "This is interesting." When you're working on cases and you see that development of the law, sometimes you're like, "This is interesting. There's an opening here. I didn't know there was an opening. We need to explore that." It's beyond the individual case that you're involved in. It's interesting. Nobody knows about this. Nobody is writing about it.
It happens more often than people realize. People are always surprised because there's so much law. There are volumes and volumes, every type of content, procedure and every level. You would think, "How can there be anything left?" The earth is not entirely scorched.
You're looking and you're like, "I can't believe there's nothing on this."
“It's an issue of first impression,” or “There is a gap here. There's something important to say about this that no one has said and it should be said.” That's where a lot of my scholarship came from and it's fun. The only downside to ever working in a court is you never sign. It didn't bother me, but it bothers some people. You never get to sign. You write this draft opinion for a judge or you contribute to a draft of theirs and your name is never on that. You are part of the shadow court. The what staff lawyers are. That never bothered me. I never thought about it until I started doing my own scholarship and having my own name on it. I was like, "My name is on this. This is fun. This is satisfying."
Think about that outgrowth from doing the work. You're seeing it in real-time where the cases are happening and falling and where there needs to be real guidance. Part of the value of having professors who have had significant experience prior to becoming professors is that you have a bit of a pulse on that. There may be interesting issues legally or academically. Which ones are people wrestling with now or they will be wrestling with soon that clarity would help or at least some path about how to deal with that?
Even if it's not a case, it's something to cite. I always tell folks, "Citing something is better than citing nothing."
Especially if you're talking about larger concepts of where the law might or should go or if there's a gap, that can be helpful. If the cases don't acknowledge a gap, but there's an article saying, "There's a gap," then you're not the only one saying there's a gap. Here's a suggestion about how we might fill it. There's a certain level of humility that is helpful in all situations. You have to keep that in mind when you're a law clerk or career attorney in the court. You have to have a sense of humility and be okay with that. Your name isn't going to be on things, but there's value and meaning in you knowing that you've contributed to helping the law in the purest way as a law book.
Clerkship is the purest form of practice without being an advocate or an adversary, because there's no adversary.
It's also contributing to the sense that there's an answer.
There's a problem-solving. That's the difference in that. I had initial dreams of being a writer before I became a lawyer. What I love about being a lawyer and a writer is that we write for a purpose. In a particular case, we're writing to advance the law or to persuade a court. There's a real thing that it's directed to. In this case, it's a particular problem that you're helping solve through your writing instead of, "That's interesting writing.” Somewhere someday we will be inspired by that or enjoy that turn of phrase." It was different than, "I know at least three judges and their staff that are going to be reading this."
It's a limited audience. It's a technical type of writing, but it serves an important purpose or the impact that it has like the ripple effect statewide or nationwide or whatever. It's true.
Chief Justice Durham from the Utah Supreme Court is another one who talked about that in terms of why she was interested in the law and why she became a lawyer. She was like, "We solve problems."
In terms of my personality, I'm not comfortable if there's no answer. I can live with being wrong. I'm open to the fact I might be wrong, but I have to have an answer. Floating around in uncertainty is not something that I'm comfortable with. The law is an instrument to provide answers, clarity, stability, and response so that people can move on with their lives. That's the function of the law in our society.
My legal scholarship is I write about everything from immigration to deepfakes to the opioid crisis. I consider myself a generalist in that respect. The throughline that I have is that the law is meeting some intersection of crisis or chaos. The law is providing the answer. We can use the law to do that. That comes particularly out of my upbringing as a judicial attorney and as a staff attorney. I probably wouldn't be that way otherwise.
I was going to ask you about that because the actual subject matter of your academic work is pretty widespread in terms of what's the commonality other than the same mind looking at these problems. That's the commonality.
I was trying to figure it out myself. I was like, "What is the connection? A lot of it is Fifth Amendment stuff, which is important. The Fifth Amendment is interesting and there are so many facets to it. What I ended up coming back to was more of my approach to what the law represents. There are some human problems for which there are no clear remedies or the remedies are uncertain.
They are about making other connections with other people, taking medicine or thinking and sitting, praying, and the different ways that people find answers. To me, the law is this beautiful connective tissue that we've created as human beings that no other species has as far as we are aware. Other sentient beings don't have laws. We've created this. We've agreed to it and we all have buy-in into it. To me, it provides the answers to everything that's ailing us.
It's a way of society creating order out of chaos.
Other people have other things they look to depending on their affiliations, upbringing and belief system. To me, it's the law that does that. When I see the opioid crisis or unaccompanied minors coming across the border, I'm thinking of, "Where is the law in this? How can it be used or misused to achieve the end of whatever this person's concern is? It's always the first thing about. That comes from working for judges and having that side-by-side mindset with a judge. There's got to be an answer.
When you're a judge and somebody came to you with a problem, you have to give them an answer.
I worked on about 800 or so cases. In all the years I worked at the court. I never came back to the judge with, "There is no answer." There were some hard aligns, but there was no filing that said, "Sorry."
You can't do that. The closest thing to that is to say, "It's not the court's job. It's the legislature's." It's not our job. It's not our bailiwick. Even that is based on a structure. It's an answer based on the structure of the system, which is based on law.
Reasonable minds can disagree as to whether that's the right answer in that case but that is an answer, unlike the other branches of our government, where they get away with not answering. There's always accountability somehow somewhere. Even at our highest courts, there's always going to be some level of accountability because you have to have the answer..
I've worked for lots and lots of different judges. One connection that I see among all of them, whatever their ideology or leaning was, is the desire to put all of their efforts and energies to find what that was, and to say and be willing to put their name on it, stand up for it and say, "This is what it is." Not everybody can do that. Not everybody wants to do that. It's the quality of confidence, humility, and the gravity of it. I've always admired that about the judges that I've worked with and known.
Some people phrase that in terms of you have to be comfortable being the decision-maker. At the appellate level, it's more of what you're talking about. You're making potentially a far-reaching decision about the law itself and being able to almost stand up for the law in that way.
It's standing up for the institution and saying, "We're going to stay with this."
I'm so glad you explained that connective tissue between that because that's your larger view of what the law is for.
The unique thing about being a Law professor and why I love being a Law professor is my ability to work with law students. I knew I would teach law students, but I didn't know how much I would work shoulder-to-shoulder with them, counsel them, and talk to them about how do they achieve their life goals, life mission, and what they want to do. I enjoy that aspect of being a Law professor for the impact I'm having on the profession in a different way.
That was different. When I'm working with the judge, we're helping people figure out what the law is so that they can use it. I'm now working as a Law professor trying to teach, hone, and work with people that are going to be using that instrument. That's important. In fact, I don't think I appreciated the gravity of that until I started teaching students. It's almost like raising a child in some ways where you influence them.
Sometimes I have thirteen weeks to take someone from here in this space to over here and try to impart to them not only the content and the doctrine. I see it as my mission to also teach them how to be human beings first. That is my motto. A lawyer comes after that. First, be a human being. For every problem that you see in the law as a lawyer, first think about its effect on you and others. Understand that and then make sure that as an advocate, you always keep that in mind. I'm lucky because I get to teach ethics, which comes up all the time.
That's from class one to the last class. We talk about all the systems of ethics that operate on all of us. I try to spend as much time as I can afford. I'm not only talking about the model rules of the ABA and the California rules, but also the rules that operate on us as human beings that live in that space and what to do with them. We know sometimes as an advocate that we are asked to present arguments, positions, or people or causes that we go, " What do you do with that? How do you make peace with that? What to do if you don't make peace with that?" I spend a lot of time talking about that. The students I work with go out and they can be thoughtful. I tell them, "You get plenty of business. "
You have to teach someone the method so they can proceed through the career. Otherwise, it's just rules. If you're not understanding more than that, you're going to get stuck to having those.
I tell the students, "When you're writing for a court or arguing in front of a judge or a jury, they are human beings. Whatever decision they make, they want to feel good about it, whether it's voting for the death penalty or finding someone that’s not guilty. You have to think about that as a human being and present it in a way." I always tell my appellate advocacy students that when they're in oral advocate, they need to be the most reasonable person in the room. Whatever the issue is or whatever questions that come to you as an advocate, you want to give the most reasonable, rational and sound response. Why?
It's because the judges who are hearing that are going to be more open to that as a possible answer. You are trying to help the court by being the most reasonable person. If the person or your colleague on the other side gets up, asks, takes an extreme position and argues some technicality in which they might be right and they seem unreasonable or irrational in that process, they might lose anyway. You always want to be modulated, careful, reasonable, and rational so that the decision-maker, the fact-finder says, "I'm going to go with that one because it meshes with my values. It makes me feel reasonable."
I say exactly the same thing, Rebecca. Judges are people too. Newer lawyers will say, "Here's the technical argument." They're working through it. I'm like, "That's all well and good but here are the facts of the case or the story of the case. We need to marry those two things, the law and the facts." If you feel badly about a result or the facts are not favorable for your side, people are human. They're going to look at that and go, "I don't know about your clients so much."
They'll look to the other side and say, "Give me a reason to go with you because I'm more comfortable with that.” It takes some time to figure that out. As you're watching cases unfold, when you're listening to questions or judges or reading things, you see the reasonable approach. If it's tied, the reasonable one is going to win every time.
The law is a beautiful connective tissue that we've created as human beings. We've created this. We've agreed to it and we all have buy-in into it. It provides the answers to everything that's ailing us.
I've also seen situations where somebody takes too extreme of a position, isn't forthright, misrepresent something in the record or something like that, and it's over in terms of credibility. We're not going to give you any more patience. I'm thinking you didn't have to do that. You could've taken this other position. Everybody still would have kept with you, but you had to go all the way over here. No one is going with you down that path. Thank you, but if you’re on the other side, you're like, "Why do you have to do that?"
As dramatically as some decisions appear to be, the rare exception does move slowly and incrementally. It's like an ocean liner. You don't flip it around. You have to appreciate that.
I've even said that to some people who want to move the law forward. They're like, "We need to say X and take X position and start position." I'm like, "That's not how things change.” Working through things slowly is how it works.
It's the same with RBG. That's how she started with the smaller cases, worked forward, and got some of the rights that we still enjoy.
Over time, you internalize it, having the exposure to that on the court or doing enough cases that you have a gut sense of, "That's not going to work. That's too far. That's a bridge too far. Here's the most we can say. Eventually, it might lead to something else, but here's where we are now. Here's where the law is now.”
It's also making the responses and being thoughtful in making confessions. All of those things go into it.
When you were talking about the thread of your scholarship, I remember a friend of mine who's an amazing professor at Stanford Law School, Deborah Hensler. Your approach reminds me of her approach. You guys have similar approaches to how you're studying the law and thinking of the law. She was the first woman Head of the Civil Justice Institute at RAND. She then went into academics, but she always brings up that same thing like, "We have a problem. We need to figure out how is the law going to bring some order to this problem.” Practically, how is it going to be implemented?
If we figure out it's going to be implemented differently, we have to go back to the drawing board and think about how we are going to think about this law because it's not working or we need some other tool. She studies complex class actions and complex litigation. She's always interested in going back, interviewing the lawyers doing those cases, and finding out what's happening on the ground. What's the new issue that we need to look at? It's remarkably similar. You guys don't know each other. I need to introduce you.
She is amazing. I love her. I was like, "Deborah's the only other thing new." She's the only other professor that I'm like, "Yeah. That's how she thinks about it.” It's refreshing because you can have more dialogue across from practitioners to judges to someone like you or Deborah. We're all having this dialogue for the same greater purpose. We want to know how is it working and being implemented and is it solving the problems.
To my mind, it should. The law should always have a response. I always find it interesting when you see there's nothing at all. For example, one of the articles I wrote on deepfakes is about pornographic deepfakes, studying revenge porn and thinking, "This is horrible." It's a relatively recent event in the law that this is even a criminal offense. It's not even a criminal offense in all states. You think, "What is this? Is it about women? Why use something that is out there front and center?” To me, if there's a problem, the law must come and apply itself.
It can't be absent.
The law has touched everything. It's regulated. We wouldn't be safe and alive if it weren't for the laws that we have, which is a good thing.
You talked about, in terms of your students, training them and bringing them up. I have this same feeling in the Ninth Circuit Clinic. Particularly, in the short period of time that I have them. We're working towards doing a brief and oral argument in a short period of time.
It's a great experience for them because a lot of them have worked in law firms or for courts. They've never done anything quite like working with a partner on a case that they know is the important court at the Ninth Circuit that's going to be heard, and that these are life and death issues for some of these clients. Your time together with them is so short that there's no time for extraneous anything. You're teaching them how to get down to it. They don't have that experience anywhere else. There's no extra credit. What's going to be best for this client now? Sometimes what's best is maybe not even in the student's best interest. They learn things like, "It's great that my case gets settled and I didn't get to argue."
The client had a good result. That's what our goal is.
That's a great life lesson for them to have.
It's that understanding of how it works when you have a case. The point you mentioned, which is carrying something through like that all the way through from the beginning to end. Normally or often, as a summer clerk or even as an associate, you are getting these bite-sized pieces of larger things. You rarely get the opportunity to understand, "How does this all fit together?" You don't get to see the end and how it's all fitting together, which is the strategic part of the law.
It's true. When I was an associate at big law, I would often work in the middle of cases and would never see the end of them.
"What happened. Where's the punchline?" That can still happen in the Ninth Circuit Clinic. Sometimes it can take a year or longer before you get an opinion. At least you've done your part of the work from brief to argument before you graduated. That’s what I've heard from them too. It is that they love having the whole thing. I do know that every year, they wonder what they're going to do for the rest of the time. Are they going to have an oral argument?
They say, "We just have the oral argument. What are we going to do for the rest of that term?" I'm like, "Prepare for an argument." It’s two months of preparing for an argument, especially since you've never done it before. "Here's what you're going to do. Here's how many courts you're going to have." That's another appreciation of how much work it is to get prepared for those 10 minutes, 15 minutes, 5 minutes, or however long you have to talk.
I equate it to planning for a wedding where you plan for a year. You do all this effort and it's a short afternoon. If you want it to be beautiful and flawless, then you got to put in all that effort. I tell the students when they argue in front of the Ninth Circuit that when they get up there for their 5 minutes if it's 5, take a deep breath first. You're standing there at the day. It's you law students who have not yet passed the bar. Many lawyers go their entire careers and never get to stand at that moment. Take stock of that, enjoy that and engage." In my experience when watching the students, they do that. It's really neat.
It's a remarkable gift that the court helps facilitate as well. It helps them so much more than they know in their career, both in terms of the experience and all these things. They're internalizing. They don't even know they're internalizing in terms of what's best for the client, all of this stuff. It helps them also in a tangible way because it can be sometimes a challenge for those of us who want to give experiences to people early, but they don't have anything.
Nobody wants to be, "This lawyer is arguing their first appeal for you." No one wants to be that first person usually in a law firm environment. You can say, "They argued in the Ninth Circuit in law school." You're coming to a law firm with that experience saying, "They've already argued an appeal." It helps them get more experience. It's like what you’re saying about the clerkship. I had this which then led to all of these other opportunities. I feel the Clinic does that too, because of having that experience, they're both more evolved when they come to the firm.
They probably take more complex things because they've dealt with a case over that long term and they've had the argument. They have tangible evidence of experience as well, which then helps us, as supervisors, explain that to clients and make them feel comfortable, “They can take a couple of minutes of this argument. They can do it. They've done it. We won. Here's the result.” It's wonderful. Rebecca, thank you so much for having this discussion. It's fun. I wanted to do our last lightning round of questions if you have a few minutes.
Let's do it.
What is your top tip for appellate brief writing?
My top tip would be to spend as much time outlining as you research and as much time revising and editing as you do the outlining. I don't think people spend enough time revising and editing or outlining before they write. That's the difference between an okay brief and a great brief, revising and editing.
I have at least 3 or 4 rounds of edits internally with the Clinic. Everyone is always surprised. We're scheduling the rounds of edits because that's at least how long it's going to take or maybe more.
The law has touched everything. It's regulated. We wouldn't be safe and alive if it weren't for the laws that we have, which is a good thing.
Students or people think that editing is proofreading. It's so much more than that. Proofreading, anybody can do that. Editing is two-stage. First is thinking about it like a reader and reconsidering everything. Secondly, then being a copy editor. If you do it properly, it takes as much time as it does to write. Before that, it’s all the outlining if you want your writing to go smoothly. It's not a novel. They don't know when or where it's going to end. Before you put your fingers on a keyboard with a brief, you have to know where it's going to end, so you have to have a clear visual. If you don't, then maybe your solution isn't right.
Your brief is going to be like a meander. Where are we going? It's not a mystery.
I also tell students to think about the fact that the person reading their brief may be reading it on mass transit. I’ve watched one of the judges read all the briefs on the Blue Line coming from Long Beach to Downtown LA. You had to hold that person's attention while they were on the Blue Line. It's got to be that clear.
For the outlining part, I usually do the headings. I put all the headings on the brief. That’s how I do that outline. If it doesn't make sense or you can't direct it, then you know it's organized wrong.
I tell them after they have a draft to do a reverse outline, "You take each paragraph and then on the margin you write what was the point in that paragraph. You should be able to compare that to your original outline and they should be the same. If they're not the same, that means something went awry. You got to go back in the editing stage and fix it."
That's a good point. It's making sure that each thing is in service of whatever position it is you're racking for. The legal brief is not poetry. What about the oral argument? What top three tips do you have for that?
In addition to being the most reasonable person in the room, the other is to do what we don't do in real life. In real life when people have conversations, even when they're talking about something important, as someone speaking, they tend to be not listening to them, but thinking about their response. "I know what you're going to say. This is what I'm going to say." In oral argument, you have to put your head in this space where you're not doing that default human thing anymore.
You are keeping your head clear and listening to what's coming into you. Do you understand what they're asking? Many advocates, both law students and professional lawyers, will miss the question and not just like they give a response that may be not the best. They miss the entire trajectory of the question because they haven't listened. Not all questions are hostile to you as an advocate. If you're not listening carefully, if you're too quick to formulate a response, you're going to miss that. Listen and listen. It's hard to listen.
Sometimes you jump the gun, “I'm certain what your question is,” because that was one of the questions I thought would be asked, but it may not be the question. You also want to make sure of that, “Did I get that right?”
It's frustrating for judges when advocates do that because then they feel like, "What is this? I read your brief. I don't want to hear that again. I want you to respond. I have thought about your case. I've probably written a draft. I'm probably sitting with a binder with a bench draft in front of me. I want you to listen and answer the question that I put to you because that is what I'm concerned about." Listening to that and responding to that directly and succinctly is important.
They are human too because they'll be wondering about the answer to their question if they don't get the answer. It makes it harder for them to concentrate on whatever else too. Which talent would you most like to have but don't?
I wish I could sing. I always wanted to be a singer but I can't sing. It has nothing to do with the law. I just think it would be fun.
That reminds me of Judge Rosenthal, who is an early guest on the show. She says, "I had dreams of being a ballerina but reality intervened with that. I was way too tall. There was no way I could do it."
I'm tone-deaf. When I was in high school, I tried out for a musical. We had to go and sing as a chorus. I was singing in the chorus and they stopped. The director walked closer to us. We sang again and then he stopped everyone. Finally, he isolated me. He was like, "You." I had the non-singing role and I so wanted to be the singer. It's okay.
He was trying to pinpoint where exactly the dissonance was coming from?
Yes. He was like, "Where is the person? You." It's embarrassing.
What is the trait you most deplore in yourself? What is the trait you most deplore in others?
They're the same trait. The trait I have that I get most aggravated with is sometimes I don't have the patience that the moment requires. I have some patience but sometimes I am impatient. That is frustrating for whatever and whoever I'm dealing with. I wish I had more patience. It's the same with other people. When I see people that don't have patience, that is also something that I wish people have. From a sense of being in the moment, and having patience with others, the other important personal qualities like empathy and compassion bring out of that. If you're too quick to answer, respond, or frustrated that things aren't going your way, none of those other qualities can come out. It's a lack of patience or not enough patience.
There's not enough room for the other things to come out because you haven't given breathing room for it by not being patient. That also can be challenging. You have a mind that moves pretty quickly, jumps through things, and sees connections between things. I have the same thing. I'm like, "What do you mean you're not here already? I'm over here. You're not here yet?" It's getting to the point where everybody's mind works differently and at different paces.
Give them a moment and let that happen. I see it all the time in the classroom when I'm working with students. I'm constantly having to remind myself that we're not all on the same page. I already know how to do what I'm teaching them. I have to take the patience to break it down to the smallest component pieces. When I first started teaching Appellate Advocacy, my first semester, I realized that some of the students didn't even know what forum I was talking about. I went, "Oh, my God." I started to break it down. In my first lecture, we talk about the core systems and the different levels of core systems. That stemmed from my desire to show more patience with where they're at. I can't assume people know what I know because their experiences are different.
We need the foundation for that. Sometimes you don't realize that you do need that foundation before you can move on to what I'm talking about.
Some of them do. I always tell them, "Bear with me. Doodle on the paper or whatever. If you already know this, terrific. If you don't, let's talk about the superior courts, small claims, what is this and that.” They then feel oriented and grounded, and then I can start.
“I'm talking about this piece of it. Let's talk about that.” Who are your favorite writers?
I'm a fourth-generation Californian. My family came to California in the 1870s. I love to read about California and so writers that were focused on California and what it's like to be a Californian. I love Joan Didion. I love her. In part, I was raised in Northern California. I love John Steinbeck. I continually rediscover things in his cannon.
This is going to be strange. I reread for fun the opinions of Roger Traynor. He's not originally from California. He was from Utah originally. To me, he is the judge in the California State Supreme Court that has had singularly the most influence over California Law, Tort Law, Employment Law, and Tax Law in California. All of these things come from the cannon of Roger Traynor's occurrences, his dissents, and so forth. I think of him as a California writer.
That's so interesting. That's true. When you said that, I was like, "Everybody feels important to the Supreme Court."
I don't think he gets enough credit. We think of California judges like Earl Warren and Justice Kennedy. I think of some of the other Californians that have played important roles like Hiram Johnson, other individuals that were maybe lawyers, maybe not that were important. Jerry and Pat Brown had important roles in the development of California history. Sometimes people forget about the judges and how their writing is on par with the writing of people who write in other spaces. Those are the writers that I spend my time reading during the pandemic.
Who is your hero in real life?
Law is one of these funny professions where doing well relies upon crystallized intelligence rather than fluid intelligence. Crystallized intelligence gets better as we age. That is why you don't graduate from Law school and immediately argue in front of the Supreme Court.
My parents together are my heroes in real life. When my family came to California, they had the traditional immigrant experience. It was in the 1870s, but they came to California with nothing and worked in the fields in the Central Valley through the generations. My parents graduated from high school. My father went to college. He went to the Cal State in the Cal State System, and so did my mom. They are salt to the earth type of people in their resilience, sense of family, work ethic, and marriage. My parents have been married since 1963, and are still married.
They're the whole package of what it means to be a person that lives a hardworking and ethical life and tries to help others when they can, and represents what we want for everyone generation over generation. They did better than their parents. I've done better than them. I don't know what the future holds for my three children. I do feel there's a foundation of value in humility, strength, and trying to be good to others. The word heroism is a little odd because we threw it around so loosely. There are different people that represent what those values are, but I always try to connect with someone that I know.
Who would you invite to a dinner party?
I was thinking about this earlier. If there is one person I would love to have in my house, that I would love to spend the evening with, it would be Sonia Sotomayor. I think a lot about lawyers, judges, and people that I haven't met. I feel fortunate I've met quite a few people that I admire that are lawyers, professors and judges. One I've never met that I would like to meet and spend time with would be Justice Sotomayor.
For those who haven't read her book about her life is amazing and moving, just to get from her upbringing in the projects to having survived and persevered in the face of diabetes and some other health concerns through her trajectory, through going to Princeton, going to Yale, being a prosecutor in rough and tumble New York, and her elevation through the court system. Her worldview and sensibility, what she represents on the court, and what she has thus far is a voice, a presence and a perspective that is sorely needed.
The new appointee to the court is also terrific. I don't know her as well. I'll wait and read her book. Justice Sotomayor's book is amazing. If you want to read books about judges, I would recommend her. She was in the shadow of Justice Ginsburg, but is equally important. Those two women in different ways represent a lot of the formative experience of women lawyers in prior generations. One can learn a lot about their experiences by studying their lives. She's fun. That's what I've heard too. I've also heard that she's terrific. I'm so glad she's there.
Would you invite anyone else to join you?
If she were coming to my house and were making a ravioli and my traditional Italian dishes, I would probably invite a bunch of women law students and people whose interactions would be meaningful all the way around. One of the things that most of the judges I know enjoy is engaging with law students and individuals who are new to the law because they still have the outside perspective and that 30,000-foot view of how things are.
That's refreshing. It's engaging. Lawyers, Law professors and judges sometimes see things. We get this myopic impression of cases or issues. Outsiders see things we miss. I think that Justice Sotomayor would benefit from hearing them. It would be like being in the presence of a holy person. For the law students, it would be amazing. That's who I would have. I would have other law students because law students and people that would leave will say that would be a transformative opportunity for them.
That would be so impactful.
For me, I would not be the same after that. I have no doubt.
I remember the first time I met Justice O'Connor, I could not speak. She's right next to me and I couldn't even speak. That was bad. Most people are like, with some celebrities, "A Supreme Court Justice." I’m totally incapable of functioning. Luckily, I was able to redeem myself later because I had a friend who was working on a project with her. At the last minute, she calls me and says, "You're going to want to drop everything and come to this. Would you like to have dinner with me and Justice O'Connor?"
I was like, "Yes. I'm going to redeem myself from that last." I was able to have dinner with her and one other person. All of us sitting in this restaurant having dinner. It was the most amazing. Your sense of it would be life-changing to meet somebody like that, it really is. That would be a great opportunity to provide your law students. It's a fun give and take, and back and forth between different generations of women lawyers too.
Law is one of these funny professions where doing well relies upon crystallized intelligence rather than fluid intelligence. Crystallized intelligence gets better as we age. That's something that young lawyers need to appreciate. That is a reason why you don't immediately graduate from law school and argue in front of the Supreme Court. There are certain numbers of years you have to practice. You have to be sponsored and so forth. It's because how the law should work and must work relies on that level of intelligence.
Being able to have that give and take and that small influence among the people that are in the position of being in the court is significant. If you think about it, the Supreme Court Justices could decide not to have term clerks. They could hire the smartest partners to work for them from the best law firms. There are people that would work for them because it would be cool. If one of them calls me and I'm going on a sabbatical, I'm going. I'll do whatever. There's a reason that they want law students. They want that fresh connection to their ideas and thoughts and that engagement at that level. It's something that everybody would get something from.
New Supreme Court Justices frequently have people who have been their clerks, who know them well and may well be partners somewhere who come and clerk for them again on the Supreme Court. People would drop that to go do that and they do. Last question to close. What is your motto if you have one?
I have two. I already mentioned one which is to be a human first, a lawyer second. The other one that is my motto is I always want to think about cultivating eulogy virtues versus resume virtues. When somebody passes away at a funeral, it would be rare for a person where they would talk about how many cases they won, how many houses they bought, or how many vacations they went on.
That's not what people talk about at funerals. What they talk about is what kind of a mother, father, sister, brother, neighbor, friend or community-involved individual one is. Those are the eulogy virtues. When I talk to students, I try to get them to think about that. Be that person versus one who accumulates stuff and experiences.
Part of those also is how you make other people feel.
That's what's lasting. Everything else goes somewhere else. The lasting impression you have is based on your relationships with people, valuing and prioritizing those is what's most important.
That's a good reminder for you to give the students too. In law school, you think single-minded trying to get through law school and it's good to remind them that there are other things.
Some of the things that made them interesting candidates for law school are the things they need to hold onto dearly and not let go. Whatever else they're told about, "That won't serve you," yes, it will.
Please don't change that. It's an important part of who you'll become as a lawyer also and what you can do in solving people's problems.
That's what it's about.
Thank you so much for joining the show.
I enjoyed this.
I enjoyed it too. It's so fun. You have a wide-ranging mind. You have thought about different things in different ways. It's refreshing to me as well. I appreciate it. Thank you so much for joining the show.
You're welcome. Thank you.