Episode 66: Sasha M. Cummings
Ninth Circuit Mediator
01:03:22
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Show Notes
In this episode, M.C. Sungaila takes a look at the fine art of mediation with Sasha M. Cummings, a mediator with the United States Court of Appeals for the Ninth Circuit. Prior to becoming an appellate mediator with the Court, Ms. Cummings worked as a litigator for over 15 years. She discusses her path in the law, and what it's like to mediate cases with the Court.
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Sasha M. Cummings
Sasha M. Cummings is a Circuit Mediator at the U.S. Court of Appeals for the 9th Circuit specializing in federal appellate mediation.
Prior to her appointment as a Circuit Mediator, Ms. Cummings was a partner at Lewis Brisbois Bisgaard & Smith LLP, where her trial practice focused on complex litigated matters, including catastrophic injury, products liability, and premises liability.
Ms. Cummings has volunteered extensively as a Judge Pro Tem for San Francisco County Superior Court, Judge Pro Tem for Marin County Superior Court, Mandatory Settlement Conference Officer for San Francisco County Superior Court, and Mandatory Settlement Conference Panelist for Marin County Superior Court.
Ms. Cummings is an Adjunct Professor at USF School of Law and served on the UC Hastings Foundation Board of Trustees.
Ms. Cummings received her J.D. from UC Hastings Law and her B.A. from Wesleyan University.
Transcript
In this episode, I'm very pleased to have join the show, Sasha Cummings, who is a mediator at the Ninth Circuit. Welcome, Sasha.
Thank you, MC. It's wonderful to be here.
We will get into your role, which is unique, being a full-time mediator at a Federal Court of Appeals in a program that was pioneered in the Ninth Circuit. Similar programs have spread to other circuits but still, the Ninth Circuit was the first to have this. Before we do that and talk about your career as a partner in a large law firm, I wanted to start with the fundamentals or the beginning of how it is that you decided to study Law and become a lawyer. What precipitated that?
Like many people who went to Liberal Arts undergrads and faced graduation, there was a fork in the road while we were contemplating. At least, I was contemplating what the next step was going to be. I was a Psychology and Sociology major undergraduate. I have always been very interested in people and the relations of people, both on an individual level and a broader social group societal level. I was looking for what would be the next step that would continue to foster that curiosity and real genuine area of interest. I was thinking about graduate school and also law school.
For a while, I went back and forth on the two of those and ultimately decided to sit for that LSAT and apply to law school because I did think it would be a versatile degree or at least I was told at the time that it would be a versatile degree. I don't think I, until much later in my practice, understood so many areas that could be explored with a Law degree. I did not have lawyers in my family growing up, so it was not like I had someone who was like, "Go do this. Try this out."
It was one of many leaps of faith in my career. One was being a Northern California kid deciding that I'm going to go to Connecticut to school and do that for college. Another was, "I'm going to try law school and see what that's about." It was a little bit of a leap of faith but it was aligned at that point, with what I thought I wanted to do with my life, which was to help people and, hopefully, be a consensus builder. It's amazing when I look back and say, "I make these decisions at age 20 and 21 that craft your whole life," which is pretty interesting.
It sets you on a path certainly. It's trusting your gut and taking that leap of faith in terms of whether it's the right path. It's also recognizing that if it's not the right path, you can take a turn. You don't have to stay on that path for your whole life. If it's not working and it's not having meaning or helping you help others, if that's your priority, then you need to reassess and figure out what would. Always recognizing that it's possible and it's not set in stone is helpful when you are having the leaps of faith. When you are young, it always seems like, "This is it. Once I make this, I can't change it." It's only until you get a little bit older when you are like, "You can change it. It's okay."
When many of us were starting and learning how to try cases and present oral arguments, I would have an argument and a plan. It's learning to be able to be nimble with that plan and adjust. That same current should run through one's career because you have chosen one path. It's good to do a 360 every once in a while and evaluate, "Am I on the path to where I want to be? Is what I'm doing authentic and important to me?" Don't be afraid to find a way to change, pivot or add something to your practice to fulfill that.
It's good to do a 360 every once in a while, and evaluate if you are on the path to where you want to be.
The point you made about how you can have a plan or a framework in a trial court or appellate argument but you have to be nimble to adjust to what's happening in real-time or what the judges might be interested in hearing. That's the art of advocacy that you get over time.
Listen to the question, answer the question that's being asked and be clear on what your argument is. If you need to step away from where you thought you were going to go to address a question, being nimble and flexible enough to do that is a skill. When you see it done and when you have done it, it feels great. When you watch it or see it not happening, you are rooting for the person into the question.
You appreciate it. You say, "I appreciate what you did. That was cool."
I'm a big fan of the law in courts. Throughout my career even when I was going to a case management conference, and I was line 42 on the 10-01 calendar or something like that, I would love to watch what was going on. I wasn't head in my file or anything like that. I wanted to see what was going on with the judge, what mood they were in, what questions they were asking, and then how they were responding to cases in front of me. I still love the opportunity to either watch an oral argument on video at the Ninth Circuit Court of Appeals or sometimes sit in a courtroom and watch from the back. It's fabulous.
There are a couple of things in that. The first thing is, as a newer lawyer, that's a good thing to do. Go watch. If you are going to do something that seems pretty basic, you are going to either sit in that court and see other things happening or go visit other courts that are in session to absorb information about the judge, "I like the way somebody did that. I did not like that." When you are choosing your style and approach, it's very educational. The second part is that I still do what you said you did in terms of, "I want to gauge the mood."
When I go for an appellate argument, I like to go the day before. If I have an afternoon argument, I come in the morning. I want to see where are the court and the panel at. If one of them is a little gruff, they are gruff to everyone. If they are gruff to me, it's just a gruff day. Don't take it any particular way. It helps you read the panel and be more attentive to what's going on, how you can help them, and answer their questions. I still do that.
I consider that part of my preparation, whether it was a trial, a hearing on a motion or arguing motions in limine. That was part of my preparation. I wanted to know the landscape. In the Bay Area, we have so many different counties. When I was first practicing, San Francisco does things different than Marin, which does things different than Santa Clara, which does things different than Alameda. Getting the lay of the land was important. Having a familiarity with the courthouses I was going to, and how each judge ran their dockets and getting to know the clerks, CSOs and deputies were all part of my learning experience, very formative in my early years and helped me a lot, which I'm grateful for.
That's some good food for thought for people if they are not already doing that. After law school, you went to a law firm right away.
I went to a small law firm in San Francisco for my first couple of years out of practice. I don't know if it was luck or there's probably some other word for it. I was the second chair to a trial during my first year in practice. That's hair-on-fire. By the grace of whatever, I had a fantastic legal assistant who had been practicing in the law longer than I had been on the planet at that point who was gracious, kind, and helpful to me and explained who keeps what verification and all this stuff. When I tried the case that I tried many years ago in my first year the same way now, it's probably not but it was very instrumental in getting me over the fear of the first trial. It was not a total smooth landing on all fronts but it was good to see the process from the beginning to the end to do voir dire, pick a jury, and be involved in that.
That was helpful. At that point in my career, I was like, "What do I do? What's the next step?" After that, I joined a larger firm where I spent the bulk of my career. I had the opportunity to focus on complex litigation/catastrophic injury cases, which I found very interesting not because there was usually a fatality or something tragic involved but because they enjoyed learning about an industry or a specific product.
I enjoyed spending time with engineers for three-plus years, learning about a rubber compound recipe that was proprietary, traveling to the different plants, and seeing if they were using the ingredients they were supposed to be using in the recipe. I found it fulfilling on an intellectual level to become an expert in a part of a car, or a piece of machinery or refinery where a valve failed to get to understand how all that works. That was interesting and challenging on top of the legal side of the practice. I enjoyed the relationships that I established with my clients and everyone that I worked with along the way.
Having that experience like you did doing a trial so early in your career, there are many good things from that. One is you go through the fire and you are like, "I did it." With the fear of the unknown, you are like, "I have been there." It does not mean you are not afraid or that you have trepidation but you did it. You did not fall apart. Next time, you can do it again. There's a lot of value in doing that and pushing through it. You are less afraid of things that you know and have familiarity with. There's that, and it's a great confidence builder, too. Also, that gives you so many more opportunities.
You have that experience. The next trial is easier like, "Have you ever done a trial?" "Yes, I have." It perpetuates additional experience much earlier in your career and snowballs. Also, you are able to find out whether you like it or not. There's what you think it is but then you do it and you can find out, "I enjoy the process of learning about my client's industry and their particular products. I also like the process of doing a trial." I had an early experience doing a trial as well in my career. That was a good experience but the other way around for me let me know, "You don't want to do this. That's not what you should be doing."
It was good that I made it through too but it was like, "That is so not what I thought it was. I don't want to do this." It's good either way if you come out of it realizing, "I like it or I don't like that. That's not for me." I felt bad when people were cross-examined, especially very well because they were ripped apart on the stand. They limp off the stand. I felt bad for them as humans, no matter what the situation. If they were untruthful or whatever it was, so be it. I can't do that to another person and I thought, "This is the opposite." Trial lawyers are very good at this. They are surgical about their cross-examinations.
There are human beings at the end of every interaction you have in litigation. Even if it's a corporation, there are people with feelings, lives, and experiences behind them.
They don't have any of this moral angst that I have about this. I thought, "This is not for me," but I love talking to the judge. I loved arguing the jury instructions, motions in limine, and post-trial motions. I remember thinking, "If there were a job where I could do that part of a trial, I would be happy." Everybody said, "There's no job like that." As it turned out, no Appellate Law allows you to do that. When you are in the trial court, that's exactly the part that you do. The moral is you might discover that you love it or don't but that helps you narrow down the path that you should proceed towards. It's helpful either way in getting experience.
I think about my law school clinic students who are able to argue cases in the Ninth Circuit even before they graduate. That helps them if they want to do appellate work down the line. They can always say, "I have argued a case already," which will allow them further opportunities earlier in their career. They might decide, "This is the last appeal I ever want to be here for." Some of them do, "I would rather do some other litigation." Along the way, they have gotten some good skills, writing, analysis, speaking, and having conversations with the judges. It's still a win-win even if they conclude, "This is not what I thought. It's not what I'm interested in doing."
You have brought up two other important issues. That is, there are human beings on the end of every interaction you have in litigation. Even if it's a corporation, there are people with feelings and life experiences behind that. Never forgetting that regardless of what the email or meet and confer letter says about you or is important. Second is the job you want that has all the skills that you would like to focus on does not exist. It exists. Someone says, "I don't know if that job exists." Keep looking for it because it may exist or you may need to go out and create it somewhere.
Even if you find out it doesn't float your boat, that's good because that's further information that helps you decide what might.
All information is good. If it helps you distill or create options for yourself, that's hugely valuable.
You had this pretty long run of doing litigation work at a big firm and becoming a partner there. You moved to become a mediator at the Ninth Circuit. How did that happen? What were you looking at in terms of the mediation position and what you could do there that you could not do in your prior role?
One of the things that I have done consistently throughout my career is volunteering at the courts. Many of those opportunities have come from being in front of judges and having a judge say, "Would you consider doing this?" I always felt it was a huge compliment. I remember having another case in Marin County Superior Court, and Judge Linda Reade was the judge on my case. After the case was concluded, she said, "Would you ever consider volunteering for our mediation panel?" I thought, "What is this?"
I looked into it, and that set me on my path to begin volunteering time as a mediator in Marin County, which led to me serving as a Judge pro tem in small claims and small claims appeals, and also serving as a settlement conference officer in San Francisco Superior Court and a Judge pro tem in San Francisco in trafficking, criminal and civil cases, which I found so much fun. It was something I had to juggle with billable hours and doing what I needed to do at the firm and my caseload.
When I started doing it, I found it fulfilling in a way that was different than the things that were also fulfilling in my practice. It was important to me to make time for that. I had been practicing for years, also mediating on the side for years and volunteering as a judge pro tem. When this opportunity came to my attention, I did not know that circuit mediators existed in the formal sense of how you are a member of the Ninth Circuit Court of Appeals staff.
I was aware of the volunteer programs of the Northern District and at the state courts that I had participated in but I was fascinated by this opportunity to be part of the courts and be mediating cases, which I love, and to have the breadth of caseload and case subject matter that the Ninth Circuit has. It checked that box about intellectual curiosity and what I loved about my practice. The Venn diagram on this was like, "This job exists."
That's what I like about appellate work, too. It's not just one subject matter. Different kinds of cases and areas of the law change all the time. The setting and the skills are the same but you get to learn whole new things in each case, which keeps it fresh, keeps you engaged, and constantly learning. You are interested in staying challenged and learning new things. The breadth of the subject matter, especially at the Ninth Circuit, is quite large. Many people who have been on the show have served in many different ways.
I don't think we talked before about being a mediator and a judge pro tem, which served the courts and helped them with their caseload in different ways while they were handling the cases directly or helping resolve them. That's a way to serve the community and the courts directly as well in addition to the pro bono work we have discussed, bar and other kinds of board and community service work. I'm glad you mentioned that. In this case, it was a way for you to explore that, too. It was a good adjunct to litigation but then you could find out, "I enjoy doing this work. Doing it full-time with a wider range of subject matters might be interesting to me."
It's shifting from my daily practice, which was largely defense work, to the more neutral mediator role. Being in both rooms and getting perspective from the plaintiff's side helped my skillset as a practicing attorney in addition to developing and confirming my interest in mediation. It was helpful to understand where they were coming from and also how some of the taglines that I had used as a defense attorney in mediations would land in the other room. I was like, "That sounded good and a great approach when I said it but it lands in the other room flat."
It's good that you think it was great but it's important because it's messaging back and forth between the parties. If that's not going to advance the ball, which is what you want to do when you are in mediation, then you are like, "Maybe I need to rethink that." It's not having the effect that's needed for the client, which is moving towards the resolution.
Volunteering at the courts is a great way. Early on in my career, I felt like I needed to join every organization I possibly could. I did because I wanted to find the lanes that worked for me. I encourage people to do that while the fees are low. You can try to fit the gap for a year or two.
In your early years, many of them are free. You can try it out.
Volunteering at the courts provided a little bit smaller audience and a place where I could get to know people one-on-one, which was how I was most comfortable getting to know people at that point. It was a great opportunity to serve the court and the community, represent the bar, try and help with things. There's nothing like staring down the traffic court calendar where there is a lot going on. You need to make decisions on the spot. Whereas in my Civil cases as a Judge pro tem, I could take the matter under submission, draft the order and marinate on it. With the traffic court calendar, it is standing room only before the docket starts. You must keep things moving.
How you engage and present the story of your case or issue is central. The worst thing you can do is lose somebody’s attention.
There's a lot of prep that you can do ahead of time but at the moment, you need to get the information that you need to make the decision. You are oftentimes giving the decision to someone who's standing right in front of you and having and wanting to be respectful whatever reaction they are going to have while still maintaining the integrity of the court and knowing that there are 50 people after that individual watching who you need to be mindful of. It was a great learning experience to step out of the comfortable world of having time to digest, marinate and craft your words correctly. You need to make decisions and be articulate about them. They need to be now.
That's such a great description. That is traffic court. I have served as a Judge pro tem as well, not in traffic court, although I have witnessed some and gone and seen all of the different courts that pro tems are in. It's pretty daunting. I went to see all the different courts because I was trying to choose where I thought I could serve the best. As an appellate lawyer, I'm like, "I don't know where I would fit in the pro tem arena." I ended up doing work with the collaborative courts. Criminal
courts are very unique courts that are holistic in their approach to results from Veterans Court, DUI Court, Homeless Court, and to Whatever It Takes Court, which is a panoply of particular issues that defendants might have.
It's working towards an approach to help that person become productive again and not recidivist, which helps the community. I learned so much doing that. It's such a different setting. I had not done criminal work so there was also the substantive part, "Here are the 100 people who are on the calendar and the time you have. Go for it. Handle that and take care of it." It does have that back and forth in forming your skills like mediating. You said, "I can see this different perspective. When I'm doing that, I'm going to figure out how to approach mediation for my clients in a different way, even in an advocacy role." Having seen that, I would think it would help, especially your decision-making skills and ability to react at the moment when you are on trial as well.
It helps with that. It's what we were talking about at the beginning. It's being nimble, agile, and able to respond. Sometimes truthfully, the answer is yes or no. We want to put a comma but sometimes that's what it needs to be. It's volunteer work, and I did it for all these reasons but everything I have done has always come back to feed and inform my practice and hopefully improve it and take me to the next step.
That's important to note and say that you are doing one role but you are one person with all these different facets. You are bringing new facets into other things that you are doing. It felt that way. I took some fiction writing and other classes several years ago. What was amazing to me was that it changed my legal writing because I started thinking about presenting ideas, the story of the case, short story writing techniques, and creative nonfiction techniques.
It impacted it. It wasn't something I had expected. I wanted to do it for its own sake. It was interesting. I wanted to learn that but I was surprised that it had that feedback loop back and forth to that other writing. It's similar to what you are describing here. It has its own thing. I'm learning this new set of skills but it also informs how I act and other things I'm doing and improving that.
That's fabulous because of the narrative and the storytelling aspect, particularly whether it's the trial court level or the appellate level. That narrative and how you engage and present the story of your case or issue is so central. The worst you can do is lose somebody's attention. Once that has happened, it's hard. It's having that feedback loop, pursuing that out of interest, curiosity, and finding that it all marinates and translates to improving, changing, and evolving your career.
I remember having to make the case with some of my instructors. I'm like, "There are a lot of parallels to legal writing." They are like, "No." It's because they are thinking of boring legal writing and whereas, therefore, and all of this stuff. I was like, "We tell stories. There are different principles that you are teaching us in the short story context side. We do the same thing."
I would bring these briefs to show them. They were like, "You are right. Appellate brief writing especially is very different. It's a story based on facts and the record, but it's still a story." I was able to open their eyes a little bit to all legal writing is not boring as well. I thought I was the ambassador of lawyers to them as well. We are good writers, too. We get a bad rap.
Going from Liberal Arts writing to learning law school writing and what my writing evolved to in the practice are different things. It does get a bad rap.
Have you enjoyed being a circuit mediator, and what is different or new from that job mediating than it was volunteering for the state courts?
Yeah. I love my job. All the things I thought it was going to be in terms of subject matter, mediating cases, and being part of the courts have met and exceeded all of those. Here's what has been an additional part of it for me even though I had volunteered at courts. To feel and be part of the Ninth Circuit Court of Appeals is pretty amazing and walking into the Browning Courthouse for the first time.
I joke and say, because I'm not a morning person and a Monday person, "How can you walk into that building on a Monday morning and not be humbled and inspired at the same time?" Being part of the court confirmed what I had always hoped when I was practicing on the other side, which is that there is a tremendous amount of talent behind the scenes at the Ninth Circuit. We talk about judges and clerks but the docketing clerks and staff attorneys are such a wealth of knowledge and so truly committed to the law and the Ninth Circuit.
It has been very cool to be part of that. I was like, "I can issue orders and consolidate cases. What?" It has been fun to maintain both the intellectual challenge of immigration cases and copyright cases. Nowadays, when I get a case that would have been a case that I would have handled in practice, I'm like, "I remember those because they are such a breadth of practice." To also be able to handle procedural issues for the parties is a cool aspect of the job.
There's a lot of case management stuff to it that you don't think about because you have to make the mediation feasible or possible. You have to manage the case and also work with the judges and the court to manage it for their interests as well. You have the parties. There's a lot more to it that you can do being part of the court. If you did not have that and you were not in that role, you could not do it as a mediator.
It's the flexibility that we do have to balance all those factors that you mentioned. There are the panel, court and party needs, "We have this appeal but there are 3 or 6 other pending tentacles related to other cases that are pending in different district courts." We have the ability to bundle those together if all the parties are willing. Let's approach it from a global approach. If the briefing is approaching, we want to be sensitive and aware, "Can we get this mediation in before you all launch into briefing?"
"Frankly, as a practitioner, can I save your clients some time and money if you are in agreement that you want to consolidate the cases and I can enter that order for you? There's something else I can do procedurally that does not necessitate one or both of the parties to file and draft something, circulate it, and incur costs that we can take care of collectively if everyone is in agreement." There's that part of my brain that is still like, "There's time, risk, and expense."
That's something that you bring to mediating for the court. You have all that experience litigating the cases and understanding also some of the unspoken factors that are still factors in terms of whether mediation is going to be possible or what calculus people will make. If I have already put in so much amount of money to write a brief or do all of this, then I might say, "I'm going to move ahead," instead of being in a position of saying, "Let's do everything to resolve it." Before that happens, maybe people are much more willing to talk before they have expended that time.
Effective case management streamlines the process.
In other cases, people need to do that so that they can see, "This is where we are at. This is how it looks on appeal. Maybe we should talk about resolving it either because we could not reach a better result for everybody if we mediate it as opposed to what the court can do in the case." Sometimes you need to have that to have a reality moment about where the case is at. Other times, no one is going to say that to you necessarily. It's good that you have that experience to recognize that and say, "Would this be helpful?"
I do find myself, whether it's in a separate caucus or a group situation when I'm mediating. I may throw out some issues. It can be everything from attorney's fees to a litigation budget, what's covered on appeal and what has been expended. Is there self-insured retention? Is there a deductible if you are dealing with insurance funds? I do bring that to my practice because they are issues that I'm hardwired to think about because of my practice. Hopefully, it helps me establish a stronger relationship with both of the parties so I can get more information.
I see the opportunity that mediation presents at whatever stage in the litigation to be an opportunity for you to add dimension, either add layers or distill things down to what you think might help resolve this case. I had the notice of appeal. I can look at your motion for summary judgment and the trial record from below. There's that stuff that you talked about behind the scenes that are the movers and shakers of decision-making. To this extent, I can get that information and help you more, whether someone wants to share that with me is a different occasion. I do hope I bring that practical practice side to the discussion.
It is helpful. Even if it turns out that the parties aren't able to reach a consensus to resolve something and the court will need to resolve it, it can help manage the case along the way. There's still some helpfulness to it that the parties and the court will get. There's that. I have had some cases where there are a series of related appeals. They may not be consolidated but they are related. It would be nice if they were all on the briefing schedule. Once they are all up there, then we can have some discussion about them.
It's having mediators say, "Do you want to put this to bed in some administrative stasis while we make sure everything is up here? We can do a similar briefing schedule for all of them." It helps everybody to say, "We know what we have. It will help manage the cases if we don't resolve them and put them on the same track. We can talk about all of them together in some holistic resolution to all of them instead of feeling pressured in some of them to do a brief while others are not ready to be briefed yet." That's helpful.
Counsel knows. You know what else is out there beyond what we might see at the Ninth Circuit. Tell us about that. Let us know.
What's unique and helpful in your mediation offices is telling you not only about what other Ninth Circuit appeals might be related to. Are there other related cases in the district court still or at other stages where we can look at all of those and say, "We have all these different tentacles. Is there something we can do to look at all of these issues collectively?" The parties may look at them collectively and can't resolve one alone. They need to look at all of that. Maybe that's a way of relieving the parties from all of these different cases and having one spot to do that, which without the Ninth Circuit might not be possible because you have some in the district court and some here.
Sometimes we have 3 out of the 4 parties that would be needed to reach an agreement. People say sometimes, "I don't know if we can do it because we are missing this person or entity." We have the option to reach out. If that entity or individual is interested, we can bring them to the table and have them as part of the conversation. That flexibility and ability to create options to resolve the case, whether it's through case management or making sure we have all the parties in the right place to make the decisions, is helpful. It's effective case management. Hopefully, for the parties, it streamlines the process so that it's organized in a little bundle versus having all these different cases at different stages that you are trying to track at once.
There's no one central place where you can talk about all of them together. There might be a mediation or settlement conference in one of the cases in the district court but it would not cover everything. It's nice to be able to talk about them altogether. I also think that in some cases, allowing people to look at it all together can yield results that would not happen if you did not have that. People can sometimes look at each case and start to look at those cases.
You are like, "These are people involved in these disputes. They have many of them. We need to figure out what works for the people, not just each case." By putting them together, you widen the vision for everybody who's involved who may only be a party to one of the cases and does not look at all of the other things. That may be the way to have some global resolution. You are causing everybody else to look further at other things and maybe recognize some of the pressures on different sides that they don't see because they just see their one case.
In expanding the vision or the pie, there is this energy to it that can help people have a different perspective. Sometimes I say, "Let's pull out to the 30,000-foot level, look at the lay of the land here and figure out what we are dealing with." It can be helpful. I certainly know when I was practicing, we all had a lot of cases going on at one time but I was always very focused on a specific case at the time. It's helpful to be given the opportunity to look at it through a different lens or perspective.
As an appellate lawyer for clients, I have the opportunity to do that too looking across cases institutionally and pulling back. People are fighting very hard in the individual cases but let's pull back and not only look at this individual case but also look at a range of them about what's the best way to approach them is. Even looking at that portfolio, are there some you would want to pursue and would not or some you would want to mediate?
Those are all factors to consider but you have to pull back from being in the trenches and the individual case to be able to do that. It's similar. That's why I see the value in that. I was like, "We do that and analyze these things." It can yield a different perspective of looking at it. It may not lead to a resolution but it is a different way of looking at things that might cause them to make different decisions.
It's not the same but I remember drafting briefs. I always want to put it away for a little bit and then come back to it or have somebody that is not knee-deep in it to take a look at it and get that different perspective. Going back to what we were talking about, being able to look up, do a 360 and have some perspective and that broader view of things can be informative.
In your role working towards a resolution in the case, sometimes you need that fresh perspective, especially because you are on appeal. It's a case that people have been living with for many years by that point. There can be some entrenched views about things. Some people will say, "Is it even possible to mediate on appeal?" People are so committed to whatever they are doing. How can you get them to be open to that? If they are appealing, they are even more committed to their position in the case.
How can you open the dialogue and have people consider something else? I don't know what your answer to that is but it's a whole new ball game when you are on appeal. There are different things that matter and standards of review. The record is what it is. You are not going to go out and create new facts. Everybody does know what they are dealing with but it's a whole new arena that you are in. Being in that arena is like, "We can step back and reevaluate because we are in a whole different ball game."
In some ways, the fact that it is a whole new arena provides an opportunity to have that dialogue. Oftentimes when I was practicing, I would have appellate attorneys in the wings and my ear leading up to it. Even if you prevail in the trial, the other side may want to appeal. I want to make sure that I have done my part to preserve the record of what it needs to be. It's the fact that it comes up to the Ninth Circuit. There are identified issues that are on appeal. There are standards of review. I'm not going to say they are clear but you’ve got to pick a lane.
We find it personally fulfilling when we can help people advance the ball, even if it isn't resolving the case.
You know what the criteria are that are at least going to be right but you also have oftentimes new counsel coming in at the appellate level or additional counsel. I would like to use that opportunity to not only introduce if you have not already met each other but to have that conversation. You have trial counsel and the client that has lived with the case. We have appellate counsel that may or may not have been visible at the trial level but is here because there's a brief. We are going to do this in the Ninth Circuit. I find that it is a good jumping-off point.
We use a lot of our initial assessment calls to try and start that dialogue. Even if you don't want to have it on the phone with me, I always encourage counsel to have some informal discussions. We are going to circle back to see where your clients are at now that we are at the Ninth Circuit and that you do have a briefing schedule when you are thinking about time, expense, and risk. I have the conversation. If it goes up to the Ninth, they agree or disagree with you, and you bounce back down to the district court, I'm sure you have seen them. I know I have. I have had a couple of cases that come up and go back down.
It could be a long journey. Maybe you want to consider that too in making the cost assessment.
There are always life and business considerations that are factoring in to re-explore them. Oftentimes I have parties say, "We have not had any discussions since the trial or the decision on the dispositive motion." Let's revisit those and see where people are at. I respect if you are firmly entrenched, and we want a panel decision on this. If you or your client wants to explore this, we are here for them.
That's an interesting point that you made. There are new players and actors often on appeal in the form of appellate counsel. Looking at it from the appellate perspective, we can be an avenue to have a more open-minded discussion about where it could go. Also, there's the point you made about, "Is this going to be an up, back down, and up again situation?"
That's something that I would factor in terms of, "What is the best relief we can get?" Let's say we are 100% right. What is the disposition? We are going to have to go back, relitigate things in the trial court, have another trial, put in some more evidence, and then possibly come back up. That's different than if we are right and we skid judgment. Those are factors to assess. Sometimes that can be a factor.
The appellate counsel is very attuned to that, saying, "I agree with you 100% but what does the disposition look like? What does that mean in the longer-term if there are other business concerns? There's the expense of that. What could we recover?" The expense of doing that in fees would outweigh that. Can we have a discussion? That would be a midway point on something.
I welcome those appellate counsel voices because they do add so much to the discussion. Sometimes they can inform the other side if maybe they don't spend a lot of time at the appellate courts. Having that information exchange and a reality check can be helpful.
"The best that could happen is this." Maybe people are not focused on that early on. It's good to factor it in. They may still conclude they don't want to resolve it but at least they have thought about it, which is helpful. It sounds like you do enjoy everything that you are doing with the court and that it has been so much more than you ever thought when you first came to it. That's always nice when that happens.
I am enjoying it. I see the value in it. I hope that we are helping people. I find it personally fulfilling when I can help people advance the ball even if it is not resolving the case but at least informing their decisions, so clients and counselors are on the same page about knowing what the next steps look like. Sometimes we release a case, and two months later, I get an email. I'm always happy to parachute back in before you are assigned to a panel to look at the issues. All my colleagues are.
That's important to you that the door is open if things change along the way in terms of the process. Recalculations are made for a variety of reasons or maybe people are stubborn, and now they are not stubborn anymore or something. All kinds of different things can happen as the case progresses.
Both parties have seen each other's briefs. We want to sit down and talk. All those things play into it. Having that flexibility and offering has been fulfilling.
Seeing the briefs makes a difference because also, no matter what, you can say to a client or the trial counsel, "Appellate briefing is different and how it might be presented, especially with new lawyers on both sides." It's hard for them to envision that and see what that looks like but once they see the briefs, they are like, "It is different." The storytelling could be a fresh approach to storytelling on both sides. The issues as they are distilled on appeal may be much more narrowed than they were in the trial court. Credibility isn't being measured. It's all of these different things. Sometimes people see that and go, "It is different."
It's the writing professors who were like, "Legal writing is terrible," until they see it and they go, "It's different." It's the same thing that I see on appeal. That's another opening to have dialogue again and reconsider that. I do that and appreciate that the mediators at the Ninth Circuit are open to that and having that discussion too because I have done that before like, "It's helpful to have some discussion." It's such a wonderful opportunity and resource to have such an experience of mediators at the Ninth Circuit who are committed to the law, to the court and to serve those who are in the court.
I feel very lucky to be included in that group of people.
Before we conclude, I usually do a few lightning rounds of questions. I'm going to ask you a few of those if you are buckled up and ready. Which talent would you most like to have but don't?
I don't know if it's a talent but I have not mastered this mindfulness meditation sit-and-have-your-brain-be-still thing. I still am at the catch and release stage where my mind works fast when I'm trying to meditate. I wish I did have that skill or talent. I'm working on that. I'm a work in progress.
The whole meditation and mindfulness thing is a challenge for me too because my brain is always moving. I found the in-between thing that works for me is walking meditation or labyrinth walking. Grace Cathedral has a wonderful labyrinth, which I love. I remember I had a months-long trial in San Francisco. Every morning before court, I would go walk the labyrinth at Grace Cathedral. It would center you. It's such a beautiful space. I have concluded that it is the way that I can get to a meditative state. Walking and discharging all the extra energy helps. I tried the other two. It's hard for me.
I'm going to do it. MC, thank you for that.
Grace is beautiful. Who are your favorite writers?
Mentees that become inspirational friends are a version of heroes.
There are so many. During one of my early pandemic cleaning organization projects here at the house, I did have the opportunity to come across books that have been on my bookshelf for years and books that I read in college. I have been revisiting some of those, whether it's Toni Morrison or Maya Angelou. We talked about different lenses. It has been fun to read them at age whatever now and compare it to my impressions of it when I was reading it at age twenty-something.
Do you still have notes in the margins from then?
Yes. I like hardbound books. I like paper or something I could hold in my hand. I like to write in the margins and all of that. It has been fun to revisit those books in part because I reached a point during the pandemic where I'm like, "I can't handle anything unexpected or unknown. I need to know what's on the next page." I have reread those during the pandemic. I may or may not have visited some Harry Potter also. It has been fun to rediscover my bookshelf and pick a couple of things off there that were significant to me at a very early stage in my life and revisit them now. It has been comforting to do so.
I have the same thing. It's the classics, either from high school or college. Going back to read them is great. It is an interesting thing to see the margin notes on the things you underlined when you were 16 or 20 years old. You see the evolution of your mind and what strikes you now and what struck you then, especially with the classics. There are so many more layers. You saw it through one lens at this age but now you are like, "There are so many more layers and levels to that." You could see where your brain has gone in terms of going up those levels. It's something else to read things that you wrote before.
I have been surprised at how much I have enjoyed revisiting those.
I have done that too during COVID, in addition to a bunch of new books. It's going back to those, especially the ones that I remember like Dante's Inferno. Reading your notes in that and going back to it is fun. Who is your hero in real life?
There are so many. First and foremost, my mom has always been my hero. She has an itty-bitty package, a big personality, and strong conviction. She's very vocal. It's all things that I was embarrassed growing up but all skills that I respect and hope to honor in my life. I have heroes that I have never met that are such a huge presence in our community like RBG and so many other judges and strong women lawyers that have come before us.
As I have mentored people that organically restructured throughout my career, what has been fun at this particular time in my career is watching younger attorneys that I had conversations with years ago talk about their concerns or worries and watch them be these awesome players who have established their families, had kids, started law firms and are doing amazing things. I have watched them conquer all the things that they thought might not and could not happen. It's so fun to be part of that. I am enjoying that. Mentees that become friends and inspirations is a version of hero to me.
It's coming full circle. Seeing them come into their own is fun. I hope one of the things from this show is that there are women who have achieved extraordinary things and are doing important things in the law and the court system. Many of them have had challenges, and they have overcome those challenges to still do amazing things down the line. There are always challenges. The road is not straight but it's nice to see everything open up for people to blossom. For what in your life do you feel most grateful?
I am most grateful for my family, who are friends, and my friends, who are family. I have been blessed with a lot of wonderful people who have been supportive and encouraging at times when I knew I needed it and when I did not even recognize that I needed it. I'm grateful for those relationships that have supported, uplifted, pushed, and also let me when I just want to sit here.
One of the things of the last couple of years is to reemphasize closeness with family and friends. It's important.
One of the hardest things about this for many people is our support system sounds so formal. The people that we are close to and rely on nurture our souls. We do the same for them. With the distance, Zoom has helped. I'm very grateful for that but it's not the same as being around a dinner table.
The camaraderie and being in the same space with people are different. It's nice to be able to do that. Speaking of that, given the choice of anyone in the world, who would you invite as a dinner guest? You can invite more than one if you can't choose.
I would have the Major League Baseball negotiators, the player representatives, and the owners. We would go to a restaurant. It might turn into a working dinner because we need to sort this out. I'm going to need baseball back.
I hear a volunteer mediator showing up for this.
Put me in, coach. I'm ready. I'm sure the negotiators on deck are doing an excellent job but I'm happy to contribute.
Last question, what is your motto if you have one?
I find myself saying a lot to people, "Know what's yours and know what is not." What I mean by that is to know what your strengths are and what you bring to the table. In an industry that has a lot of conflict at its core, know what's yours and know what is someone else projecting on you. Be honest about what you may have contributed to the conflict or whatever static is going on in the world. That requires you to have a sense of yourself.
In the trenches of litigation, a lot of things can be thrown around. If you were clear on who you are and how you conduct yourself, if you have a practice that is authentic and has integrity and you are clear on that, a lot of that stuff that comes towards you, you will be able to say, "That's not my stuff." It's acknowledging what stuff is mine and what I might have said.
Taking responsibility for what's yours, acknowledging that but recognizing when it is not can be hard. That's a good point because you have to know who you are so that you can make that assessment to be strong in yourself and know your strengths and weaknesses. Also, you have to have that to recognize what is yours and what is not but also recognize when somebody else may be putting on you like, "The reason you are suggesting that is that you would do that, not me but you might."
That's hard to do. I have only gotten somewhat proficient at it in the last few years. That takes time of being comfortable with yourself and recognizing it. Let's put it this way. I opened up an appellate brief. Every time I open the opposing brief, I'm always worried. I always have that moment of, "Did I miss something? Is there some point in the record or something that I missed? They are going to point it out."
I don't think there was but I always have that fear. It's the same thing of like, "If somebody says that, maybe it's true. Maybe I did do that." You have to have enough recognition, "That one is not. Maybe it's this one. I should look at that." A lot of them, you can set aside. It does keep you more even through the process because there is a lot of boxing going on in litigation. You take fewer punches when you realize, "That's on my punch to take."
It is a process of getting to know yourself. The voice in all of our heads sometimes helps us and sometimes does not. Developing that and having an anchor or conviction in knowing who you are is an interesting juxtaposition to what we were talking about in terms of knowing your case and being prepared and solid in that but also being nimble. It's a process. We are all on that journey. Try and figure it out.
Sasha, thank you so much for joining the show and having this chat. I enjoyed it. I have learned a lot. Thank you very much.
Thank you so much, MC. This was an absolute pleasure. Congratulations on this show. It's fabulous and so interesting to hear these different stories from women doing amazing things within our profession. Thank you.
Thank you. I appreciate it.