Episode 70: Chase T. Rogers
Former Chief Justice of the Connecticut Supreme Court
01:03:25
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Show Notes
Chase T. Rogers, former Chief Justice of the Connecticut Supreme Court, sits down with host M.C. Sungaila to share her journey to the bench and beyond. She also discusses the importance of building a team with diverse experiences and provides appellate advocacy tips.
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Chase T. Rogers
Chief Justice of the Connecticut Supreme Court Chase Rogers (Ret.), chair of the firm's Appellate Practice group, brings her vast knowledge and experience as a litigator, trial judge and Chief Justice to assist litigation clients in multiple areas of law. Clients benefit from her 20 years of experience presiding over bench and jury trials, and hearing, mediating and ruling on complex commercial disputes. She has also been a panel member on over 1000 appellate cases and the author of hundreds of decisions for the Connecticut Supreme Court. In addition, she has extensive experience in conducting investigations, including employment matters, discrimination, sexual assault and sexual harassment claims, police use of force, breach of contract and breach of fiduciary duty matters. She also has served as an expert witness regarding Connecticut law.
Chief Justice Rogers' career in the judiciary has spanned over two decades, starting when she was sworn in as a Connecticut Superior Court judge in January 1998. Her assignments included serving as a judge on the Complex Litigation Docket for four years in Stamford. In March 2006, Chief Justice Rogers was sworn in as an Appellate Court judge and a little over a year later, she was sworn in as Chief Justice of the Connecticut Supreme Court. Among her many accomplishments, she is credited with restructuring the civil justice system to reduce costs and embedding a culture of openness and transparency in the judicial branch.
Chase currently serves on the State Justice Institute's (SJI) Board of Directors, which she was appointed to by President Barack Obama in December 2010. She is also the chairperson of the national Civil Justice Implementation Steering Committee. She also currently serves on the board of the Center for Human Trafficking Court Solutions (CHTCS), and has provided consulting services to the Institute for the Advancement of the American Legal System (IAALS). In addition, she is an adjunct professor, teaching Connecticut civil procedure, at the University of Connecticut School of Law.
In 2012, Chase was appointed to the Federal-State Jurisdiction Committee of the Judicial Conference of the United States by U.S. Supreme Court Chief Justice John Roberts, where she served until January 2018. She also served as a member of the Board of Directors for the Conference of Chief Justices until January 2018.
Transcript
I'm pleased to have joined us by the former Chief Justice of the Connecticut Supreme Court. She’s now the leader of the appellate group at Day Pitney. Chase Rogers, welcome.
Thank you for having me.
Thank you so much for joining. You have a varied experience on the bench. Prior to being the second female Chief Justice of the Connecticut Supreme Court, you also served on a myriad of other levels on the bench, the trial level, appellate level, and then in the Supreme Court. There is a lot of depth of experience on the bench that you can share with us. Having left the bench, you're also one of the new breeds of appellate judges who continue to have careers, morph and grow after their time on the bench. I'm interested in hearing about that as well. First, I wanted to start out with an origin story as it were in terms of how you decided to go to law school and become a lawyer, to begin with. What was appealing to you about that?
I did not have lawyers in the family. I was a Political Science major in college. I have always been a reader and a writer, and it seemed a good fit for me. I liked the logic of it and hopefully, I'm a fairly logical person. It seemed the right direction for me. I also liked school, so I wanted to stay in school for a while longer if I could. That provided a great opportunity for me to go to law school.
Especially as an appellate judge and now as an appellate lawyer, enjoying reading and writing is a good thing. It’s necessary so it's better if you enjoy it. How did you decide what you wanted to do with your law degree right away immediately out of law school?
With my Political Science background, I thought that I was probably going to do something related to the government, but I enjoyed employment law classes and administrative law classes in law school. Ultimately, I decided that was the direction I was going to go. I was fortunate to get hired by a great firm called Cummings & Lockwood. They gave me carte blanche to try and develop the employment practice and work with some of the more senior employment lawyers. It was a good opportunity for me at the time.
Anywhere where you have opportunities to grow in both the practice and your skills is a good choice, especially starting out, because it's so important to get a good foundation.
Some of that is luck. The vibe felt right to me. The head and the managing partner of the firm felt right to me in terms of what he was saying and he lived up to it. He was a great mentor for me for many years. I was one of the fortunate ones that I had support right from the beginning.
That's an important theme or point that we discussed before in terms of mentoring and the role that mentors have played in our careers at different points. I would say it's rare that you have someone who supported and mentored you early in your career, and made good on particular aspirational goals and visions for how you would develop a practice.
If I can, he was a white male in his 40s. It didn't fit necessarily the profile for a young woman starting out as him being my mentor, but it was such a natural thing. We liked each other. We got each other. His strengths were different from mine so I could learn from him. I was reliable for him. It just worked out. One of the things that he did, which I try to do in my practice both before and after I was on the bench, was he would let you watch something the first time. If it's a deposition, he would have you in there but then he was like, “What do you think?” I would be like, “I don't know. I guess I'm ready,” and he would let you do it.
Sometimes I'm sure I fell on my face, but it was always, “I'm going to let you do as much as you feel like you can do. If you make a mistake, we'll figure it out.” One of the great things he said to me is there's never a mistake that cannot be fixed as long as we deal with it right away. I think he was right on that, but it was a way that then he could bring more junior people along.
That fits in the category in medical school that I always heard of, which was, “See one, do one, teach one.”
I've never heard that, but that is so true. I'm going to remember that. That's great.
It's good because I think also if you do the next step of the teaching and of having someone share their knowledge with a more junior attorney, then that cements what they've learned and they have to think about it. Think through what their strategy was and the various stuff involved. I think about it in terms of mistakes, but they happen, especially when you're learning. My mantra for that is as long as it isn't the same one over and over, I'm cool with it. They happen, but you've got to learn from them. Make a new one and have a twist on it or something totally new like, “That's unexpected,” but not the same one again because that one should have been averted.
I think that's true.
That sounds like such a great experience out of the box. As you said, it’s luck, serendipity or whatever. All of that converging is wonderful. Was he part of your personal board of directors or somebody who you might consider on the bench as well or was that something that you came to on your own?
Very sadly right before I went on the bench, he passed away. He was a Vietnam vet and the victim of Agent Orange, ultimately. One of the things about him was he had the greatest sense of humor of anybody I've ever met. As you can imagine, there are times that are quite shocking as Chief Justice, particularly on the administrative side of it. I used to think about him all the time when that would happen. I would be like, “Where's the humor in this so I can get through this?” I think he was there for me because I was there for ten years and it was a great experience. Unfortunately, he didn't get to see me in that role and I didn't have the benefit of his input.
As you said, continuing to inspire your approach to things and be like, “Okay.”
“What would he say about this?”
That's so true about having humor about things because you can either laugh or cry sometimes and you're like, “It's better to have a good laugh on this one than go the other way.” It's so ludicrous.
There's really never a mistake that cannot be fixed so long as we deal with it right away.
Everybody who comes into an interview says, “I take my work seriously. I don't take myself too seriously,” but I think those are important words of wisdom. I did try to adhere to that during some fairly difficult situations.
That's an important perspective in terms of humility when you're in doubt as well. Don't take yourself too seriously. You have to work and what you're doing is important, but not having that is helpful. How does it work in Connecticut? Is it all appointments or are there elections for all of the various judicial roles that you've had?
Thank God, it's all through a Judicial Selection Commission or I would never have been a judge. The thought of an election is scary to me. At any rate, after about thirteen years of appearing in court, I was thinking I would rather be on that side of the bench than this side of the bench. It’s probably a better use of my skills in some ways. You apply in Connecticut to the Judicial Selection Commission for Superior Courts, which are trial court judges and also for appellate and Supreme Court. If you get through that process, then you're in a pool from which the governor can choose you and the legislature then has to approve you. It's a fairly lengthy process. I was fortunate in that regard.
I've heard of that. That's different from California. We have vetting, but it all goes from the governor's office first in terms of interest and ultimately, appointments. There is a vetting of qualifications by various entities but it's not like they select like, “Governor, here's the pool of 6 or 8 that you can appoint. It's a little bit different, but I think that's how Florida works. It’s similar.
It could be. They all seem to have a little difference. I'm not sure about Florida. Historically, it has worked well in our state because you've got both branches. You have the legislature and the governor involved. You also have a group of lawyers and community people who do the initial interview and the Judicial Selection. It seems to work pretty well.
You made it through that selection process and onto the trial court bench relatively soon.
I got very lucky. I loved the trial bench. One of the things that they do in Connecticut is it's a unified system. They move you around geographically. In the early years, pretty much every year, you're going to a different set of courts, staff, prosecutors, public defenders, and different groups of private lawyers, for the most part. They also move you around. It sounds like you looked at my CV. I did juvenile, criminal, civil, and complex litigation. It was always different and a great learning opportunity.
I like to talk about the different selection methods and the different roles you can have on the bench as well because it's different in each state. As you alluded to, it's important for people to know that if somebody thinks, “I would like to join the bench,” but you don't realize that means you are going to have to go hit the pavement or an election. Maybe that's something you would like to know before you do that.
I also sometimes hear people say, “I would love to be X kind of judge or be in this type of subject area. In many situations like in California, that's nice, but you can be applying to many of them and maybe not that one at all throughout your tenure. It’s what court needs you, where it's appropriate when you're starting out, and all of that. I think that's part of being an appellate lawyer too. I love having so many different subject areas. That's fun that you're not in one place the whole time or you can choose one thing that you think is safe. You get to move around. That would be cool as well.
You have to be flexible. I'm sure, in my first year in criminal, people were putting their heads in their hands, but I loved it. I tried to learn as much and as quickly as I could. There are people you can talk to and understand the process so then you're in the best position to make the right decision. Criminal was fun. As I tell people, the juvenile court was the best assignment I ever got as a trial lawyer in Bridgeport, which is a relatively poor city. There have been historically a lot of problems.
I was making 30, 40 decisions a day when I was doing calendars. It truly could make a life and death difference for certain kids. Once I got through that, after doing that for two years, I felt like, “I get how you're supposed to go about doing this.” It was invaluable to me in my development as a judge, which I had never been in a juvenile court in my life before I walked in and started as a judge.
I think that's surprising too in a way that you feel like, “I'm really contributing,” or “This is meaningful.” Particularly, it’s meaningful for you to be serving on the bench. I always think about the appellate bench is where you can have the most long-term significant impact because you're working on published opinions and deciding or solving conflicts in the law that will apply to a lot of people. That is what I know being an appellate lawyer, but also think that's the biggest impact. There are so many areas in the trial court where you have a significant impact on the life trajectory of individual people. Those people ripple out to their family and community. There is a similar impact that you can see from that work that is rewarding.
Particularly at its granular level as a juvenile court, we are doing delinquency, abuse and neglect cases. What you're doing matters. There's never any question about that. To sit there and do that for seven hours a day, it's hugely rewarding. It's scary, but somebody has got to make the decision and get the best information you can get. As you were mentioning, it can impact a community over time.
As chief justice, one of the things we focused a lot is on policy in the juvenile area because you could make changes there that were going to make a difference. All of that early experience played a part in how I approached the Chief Justice position in the end. I'm very thankful that I got the opportunity to be a trial judge for eight years.
There's value in having different roles within the court system and in different courthouses because that fed into your body of knowledge that you're going into as Chief Justice. There's a significant role that a Chief Justice can play in terms of administrative and how things are organized that can have a long-standing impact on the law.
Connecticut is a relatively small state. It's a unified court system. I saw this opportunity with a team of people to help bring the court system into the 21st century. We did everything we could for the next ten years to do that. I'm not saying we succeeded all the time. As I said to my kids, I think I left it a little better than when I came in. That was my goal. This is one of the things now that I've had the benefit of hindsight a little bit, “Did I really get that opportunity and have all that time to try and do things that would make a difference?”
My next question would be, what contributed to that opportunity? Sometimes it turns out that was just the time that needed to be done intersected with your time as Chief Justice, and there you are. It's like being the leader of anything when you're president of a board or a bar association. You’re like, “Those challenges came up when I was in that role and I had to meet them.”
Without going into detail, the legislature and the press were not happy with how the judicial branch had been operating in a number of ways for the prior time period. I don't want to go into detail on this. In some ways, it gave me an opportunity that people were like, “We got to fix this.” It wasn’t like we were happy where we are to just sit back and be quiet.
Where there are challenges, there are opportunities to make the change.
I had that opportunity. I had a great team of people. I was talking to a friend of mine who just stepped into a very important position, not in the judicial branch, but a very important position. One of the most important things is that you cannot do it yourself. You have to have buy-in and the way you're going to have buy-in is to have a team of people you trust that's willing to make hard choices in terms of, “Here are your options. This is not going to go great necessarily at the beginning, but it will get us to where we want to be.” I was very fortunate to have that around me. We had a good time for quite a while.
You cannot do it yourself, you have to have buy-in. And the way you're going to have buy-in is to have a team that people trust.
How did you build that team or how did you consider who were the right people to be on that team both for buy-in, but also for getting the work done?
This is one of the advantages of being in the system for the prior years. I knew people who I completely trusted. I knew they are not going to be yes-people. They are going to challenge me on things. They are going to have different perspectives than me on some issues, and the same perspective on the ones that we had to be rowing in the same direction right from the beginning. I had that experience and intel. I was able to choose my team when I got in there. I inherited some great people who recognize that change had to happen. Some of them had wanted to make change for many years but had not gotten the green light to do it. All of that worked together to set up a positive situation.
Different leaders have different theories about that. Do you want people who all resonate with where you're coming from or do you want some debate and people to be critical of things? I think I'm in the category of I would rather brainstorm and work through all of these things internally in the team before coming up with a difficult choice of where to go. I would rather hear that there before the decision is made than later.
Debate is a very nice word. We had plenty of debate on a lot of issues. It worked because they understood that at the end of the day, I was going to have to make the decision. They were giving me their best view and input. Once that decision was made, there was never an issue that I recall that people were still like, “No. We shouldn't be doing that.” That doesn't mean that we didn't change course on some things or modified, but we were all on the same team and we understood that.
How is it also adjusting on the appellate bench and then on the Supreme Court? When you're on the trial bench, you have to make many quick decisions on the fly in one day. Once you were on the appellate bench, you have colleagues. You can't make a decision by yourself or else you're going to be a dissenter. How is that adjustment?
Thank God, I was on the appellate court for a year so I could see how that consensus-building worked, when it didn't work, and why it didn't work. There's no question that it was an education for me. Once I was Chief Justice, I had a little bit of an advantage because I was Chief Justice. While you still only have one vote, you definitely can have some impact in terms of how the deliberations are going to ultimately go, “Can we get this done? Can we agree on this?” After my retirement, they had a little ceremony for it. I was surprised at how few dissents I had.
I do dissent and I dissented on some big cases where people had disagreed with me. For the most part, we were able to get where we needed to get either with a strong majority or unanimously. Having said that, there were times that you have to give it up and say, “I think it's wrong for the following reasons.” I always viewed that as an opportunity to try to narrow it down as opposed to just saying, “It's wrong what they're doing.” Over time, I got better at developing a way to, “Let's just narrow this decision as narrowly as we can so the people would think about it the next time around.” I'm sure there are justices born with that skill. I was not, but I understood the concept and I worked hard at it over the years.
There are certainly different philosophies with regard to dissents at all and reaching consensus and similarly, concurrences. There are some people who are willing to do the concurrences and have that narrowing of the decision approach but who don’t like to do it in the dissent context. There are others who are like, “Nope. We need the whole variety of this,” and it's okay. That's how a lot of developments grow through concurrences and dissents. Who knows in the future and as you noted, maybe there's a different set of facts in the future, and concurrence or dissent will encourage people to look at that case differently and apply it in a different setting.
I think dissents are healthy. We try very hard. We don’t say it’s 100% of the time, but we try to be a collegial court in terms of how those dissents were written. I do think that is the role of the Chief Justice in large part. If you're reading something that you're like, “This is not going to reflect well,” you need to say something and hopefully persuade people to tone it down. It's not because I'm not up for a good fight. I worry that the public loses trust in the system if they see personal baiting or commentary about the other side in a particular case. I worked hard at that over the years. I was fortunate to be there for ten years. I think you get better at it over time.
That's in a setting that you can't practice very well. You're like, “I see what I'm in.” Otherwise, handle that in whatever adept ways to handle things, especially with different personalities involved, as well as the context.
A friend of mine who's on the appellate court said to me, “You had some very strong personalities when you're Chief Justice.” I said, “That's a very nice way to put it. Yes, I did.” The good news for me was I did like all of them on a personal level. We got through the day and we made it work.
There's a difference between strongly debating or disagreeing on different positions or legal points and still getting along personally, respecting each other and things like that. Those are two different things. At least, we hope they are. We would like to continue to be that way. That's our tradition and what we like to think about as our profession. We fight hard in that courtroom or whatever, then go out and have a beer or coffee or something afterwards. That's what we aspire to do in some ways in theory. It's possible these days. I have a question about the Chief Justice position. Was that something that you were directly appointed to the court?
What happened was I was on the trial court minding my own business and enjoying that. I get interested in the appellate court because I thought, “Now, I can do a lot of writing.” It's primarily writing. I applied for that. I had a good interview with the governor for that position and she appointed me to it. I was happily minding my own business on the appellate court and about eight months later, she called and said, “I would like for you to be chief justice,” to which I said, “Do you mind if I close my door here for a second?”
I still remember walking across my chambers and shutting the door going, “Did I just hear what I thought I heard?” Ultimately, that happened. You were asking about what's the process. I had not even applied for the Supreme Court at the time. She said, “There's a problem. You need to apply and get through.” I was like, “I'll do that,” and that's what happened.
That's also in the category, I've heard that too, of people either have a great relationship or a great interview with the governor for a particular position. The governor remembers you for something else. That carries forward. In this case, it’s tremendously so because you hadn’t applied.
I hadn't even applied. I think everybody has had this experience where some interviews go, “Okay,” but we just connected. She was interested in what was happening at the branch. I took the opportunity and it might have been presumptuous to me, but even at the appellate level, I was like, “These are some of the things that I think need to happen for the system, not to be under attack the way it is.” I think that's what she wanted.
You were able to share some of your ideas systemically, which would be something that the Chief Justice would work with.
In Connecticut, I would say 50% of my job was on the administrative side of it. You are the head of the branch that's working with a team.
You saw eye to eye with her, but then also by talking about those issues, that probably planted something in her mind of, “I thought those were interesting ideas and I have this opening. It would be nice to give her an opportunity to implement those ideas and have that role.”
The big one at the time was openness in the system. The people would understand what was happening. That files would be open to the public unless there was a good reason. For instance, on the juvenile side where they shouldn't be. I had bought into all of that from the beginning because, in my view, I think the judges do a great job and it's a hard job so why wouldn't we want them to understand what was happening in the system? That was a relatively easy choice for me.
As a judge, you read the briefs and hear the arguments. As an advocate, you're trying to get past and fill the holes.
Historically, there had been resistance to that, particularly with the press, It's true that the press has a role. They don't have some of the roles that they thought they had, but they have a very important roles. I was open to the press being at hearings, being able to take notes and all of those things. She saw that as a way to get past some of what was going on and it was of interest to us.
Transparency can be very helpful in that way because if you are transparent, then everybody can see and make their own assumptions.
We see that time and time again. I have a friend who's an incredible commissioner. She has a very difficult job. When something goes wrong, she gets depressed in there and she explains, “This is what happened. This is what we're going to do to fix it.” As a result, she is wildly effective because people are like, “We can trust her. We know that she's got her eye on the ball here and it works.” I found it worked as well to let them see what was happening.
Especially if it sounds like there's some tension. When there's tension, people always suspect the worst like there's something bad going on.
That's so interesting that you say that because one of the first things we did was set up a Judicial-Media Committee, which had both judges and members of the media so that they could, at the very beginning, be working through what was happening that was causing the problems, “Why can't we get files?” Whatever the case was. Over time, they developed this committee. It was a great committee with a lot of energy and what they developed was an understanding of what each other does.
They have had a school for both of them. Whether it was the judges learning how you meet a deadline or the media learning what's going on in a domestic violence TRO hearing, what the judge has to do, and how much information. They have all of that. It was enormously helpful for both sides to see, “This isn't an easy job on either side. How can we make it work?”
That’s trying to reach a level of understanding about the challenges of each other's roles so that you can understand why people might have a certain reaction to something. I was thinking about it when you were talking about that. I know Loyola Law School has a legal bootcamp for journalists where that information is shared about different laws, decision-making, and things like that so that they have a foundation when they're reporting on cases. I like the reverse of that, which is educating lawyers and judges about what's involved in that too because from that comes mutual respect.
The other piece of it was just by being on those committees together, they knew each other. If there was a problem, they didn't just write an editorial. They would talk to each other about it and see if they could work out or who can I talk to that can help us with this? That worked well also.
That's a very good observation because you're creating bridges. There are humans on each side and you might know one of them and you could ask a question. That's so different rather than just hauling off and complaining about something that's like a black hole or some nameless and faceless thing. There are people I've interacted with and maybe they don't know the answer, but I have someone to reach out to specifically to ask these kinds of questions. If you have a working relationship with them, you're at least going to try mutually to reach out and talk to them instead of complaining about them publicly.
It worked for us for the most part.
It sounds to me that a lot of this is not just executive management but also managing people. There's a lot of like, “Okay.” There's some psychology involved. You're managing people at so many different levels in this.
There was a lot of that. It was very educational. It was a little different every day, depending upon what was happening, but it was never boring. Going back to your point about it, it's very different being a trial judge versus being on an appellate court. A lot of it is people relations and figuring out how to make this work for everybody.
I think of that even internally among the members of the court and the research attorneys or judicial clerks. Those are long-standing relationships so I think that makes a difference. You all know you're going to be there working together so you've got it. It's like family. We have to make this work in a way that moves the cases of law forward. There's some investment in that, but it's different from what you're talking about at the administrative level where you have all of these different stakeholders who don't have to be in the same room with each other. That's a different management issue.
It’s one of the reasons why when I retired and went back into practice that I said, “I'm not even sure you want me to, but I'm very happy to do absolutely no administrative function in this committee.”
I was going to ask you about that. I was like, “On the one hand, those are valuable skills to bring to the law firm afterwards.” On the other hand, I can see where you're like, “I have maxed out on those. I'm good for a while not using them.”
I think it was somebody else's turn. That was literally why I decided to retire. Day Pitney was great about that. They said, “Practice law. Mentor our more junior lawyers. Do other things that interest you related to the law and we'll make it work.” That's what we've done.
How was that transitioning back then from the bench to appellate advocacy in particular? What new skills did you have to develop in that move?
That has been fun. I’m in my fifth year in 2022 and time goes so unbelievably quickly. I still can't believe it. Some of it is the same. For instance, working with the more junior associates and some of the most junior associates on certain projects is like having clerks. In fact, some of my clerks even come to the firm. That has been enjoyable to be able to reconnect and work together again. As I mentioned, aside from investigations and some mediations, the big changes are most of my practice is doing appellate mooting and editing of briefs.
The big difference though is that as a judge, I used to read the briefs, hear the arguments, think them through, and work with my clerks. Ultimately I would say, “This one has a better case than this one. I can't get past this hole in the case on the other side. Now, I'm being paid to say, “How are we going to get past the hole in the case?” That's a different skill set that I've had to use in a long time.
The companies and the other firms that hire me find it very valuable to hear what the holes are from a judge's perspective, but now I have to help fill them. As an advocate, I always liked putting the puzzle together. How are we going to present this in a way that it all folds together? I had to scramble a little bit at the beginning. Remember, you got to do that piece of it as well. That's the thing that I've been working on the hardest back in practice.
As an advocate, focus on where the issues are and then deal with them yourself in the argument.
I think that's right in terms of those who have been on the appellate bench and who are called to consult or become part of an appellate team. For oral argument, for example, the questions are, “Are there perspectives or is there a framing of this that we're missing? Is there a set of questions or a line of questioning that we haven't considered because we're so entrenched in this case now?” There could only be one way of looking at it.
For that piece of it, it does seem to be helpful to have former judges on these mooting teams because I think over time, you start to think differently as a judge. You're looking at it with a different eye than the advocate is. It's fairly easy to figure out that this is one of the most likely places that the judges are going to go if they're going to have a problem with this case. That's enormously helpful as you well know to the person who's standing up to have had an opportunity to at least think about it. It may not be an answer that's persuasive, but you're not just being hit with something that you're like, “I've never even thought that piece of it through.”
This is what I say to everybody who I've worked with. They don't care what the strong points are. They know that. They've read it in a brief and they don't want you to repeat that. If I have one piece of advice that's universal is to focus where the issues are and then deal with them yourselves in the argument. If it appears that the court is going in that direction, don't try to avoid it. We would see it on the bench. We saw it time and time again. People were primarily prepared to deal with the strong side of their case, and that's a mistake.
I always think about wanting to take as many types of questions as possible from as many perspectives as possible, especially when you have a panel of judges. Each of them could have very different perspectives. I don't want to be caught in this situation you mentioned, which is like, “I never even thought that could be a question.” Almost none or maybe none at all in that variety that comes up in an argument. There may be challenges in the case that may not be able to be surmounted in the view of one or more of the judges, but at least you've thought about those challenges and have some answers to them.
You're absolutely right. There are going to be things that you have thought about that you're still not going to be able to persuade them. What I say a lot of time with people that I'm mooting is, “How are you going to pivot? How are you going to say, ‘I'm not going to persuade you on that particular point, but it doesn't matter because we should win for the following reasons?’” These are nuanced levels. It's not easy to do the first time you do an appellate argument.
For the most part, I'm working with people who have a lot of appellate experience, but you need to go through those nuanced levels to have complete comfort before you appear. I'm sure you've seen this too. You can tell the people who've been booted from the people who have not. When we were on the bench, it would be very clear who had been through their paces before. I think that's helpful to the court to have people who have at least thought about, “What do I do if this happens?”
It’s helpful to the court because the court is looking for answers to questions that are important to the members of the court. The more someone is prepared to answer those questions and to respond directly, the better.
That’s another thing, particularly with younger attorneys or more junior attorneys. Hopefully, it's comforting to say that 99% of the justices are not trying to trick you. They're just trying to figure out what the right answer is. That takes some of the pressure off of you as well as an advocate. If you can think about it that way, I think the arguments tend to be presented a little differently.
There that question of trying to figure out whether is it a friendly softball or is it something more challenging? I think sometimes that can be in the heat of the moment, especially if it's one of your first arguments. It can be hard to make that assessment sometimes because you're always thinking exactly, "It's going to be a critical question but a helpful one."
There were times that we were like, “I was just trying to help the guy,” and it went in a completely different direction.
I also think a lot of it is true in the lower court, but there is a lot of cross-talking between the judges too that comes across that you're like, “I'm just here to bounce that ball back over to the other member of the bench and answer that to relay something from another member of the bench.” That's a whole other level of layers of things that you're working with when you navigate this.
I will say that I was guilty of this. This is something in hindsight. I'm sure it's very disconcerting to people. I can remember it being disconcerting when justices are talking to each other during an argument. Depending upon who was sitting next to me at any given time, there were times that I was doing that. Over time, I tried to stop it because while it can be very helpful to the justices to be like, “Did that case say that,” or “What is this guy talking about?” I think that's probably not fair to the advocates because it's disconcerting. It’s like, “What's happening out there?”
We're not privy to what's going on. We're not sure what the whole context is, but it is true that oral argument is your last opportunity and only opportunity to be in the room with the decision-makers and to provide answers to whatever burning questions that will lead to the decision. It seems like you should always take that on the team or anyone available to have that conversation.
Interestingly, the Connecticut Supreme Court has already been out of the case. Some are more exciting than others, but they do it. I was always amazed. I would say probably in about 20% of the cases, I wasn't positive of what I was doing until after the arguments. I found the argument extremely important to the decision-making.
That’s interesting because there are so many debates about that. Some people say, “Does it change a decision, a vote or something like that.” That's encouraging for appellate advocates to hear, “20%, it's more than what I thought.”
That’s just me, but I do think our system is a little bit different. The good and the bad are the draft decisions aren't done before the argument. We wait until there is an agreement and there's a vote. The bad thing is that it can take too long to get those decisions out. There's a downside. On balance, I certainly think my experience was that the oral argument can be extremely important to a decision.
I've seen it, whether it's in terms of reasoning, in terms of result, or even in terms sometimes of the record. There's one aspect of the record framed in a certain way that you suddenly have this a-ha moment like, “I understand what went on here and that impacts how I see the whole case.” That can happen at an argument sometimes.
It absolutely can happen particularly on issues of procedural fairness, particularly in the criminal context, which was something that I tried to be sensitive to and think about. It's enormously helpful to have the attorney in front of you that you can work through what really happened here.
It’s not that everybody hasn't reviewed the record and looked at that, but sometimes it's connecting all of the dots and the chronology or the sequence of something that something is like, “Okay.” It eliminates everything from understanding that sequence. It sounds like we've tiptoed around a little bit with some of the suggestions for argument in terms of as an advocate. In terms of questions, moving and preparing, is there anything else you would add in terms of good wisdom for appellate advocacy?
We didn't talk about the writing much.
In Connecticut, 46% of the judges right now are women. So if you're a woman who wants to go into the bench, go for it.
We haven’t gone into the writing. Certainly, that's such an important part of what you're doing on appeal.
That’s a huge part. I am of the succinct school. I think it doesn't help you to say it ten different times in ten different ways to the extent that you can just get it down in a concise way what the argument is and it holds together. That's by far the most persuasive. I tell people a little secret that at least with me and I'm pretty positive I wasn't the only one. When you are confronted with fifteen sets of briefs for the next term, you tend to pick up the ones that are shorter first. You're more alert and awake. You’re like, “I don't have to plow through hundreds and hundreds of pages on this one.” You do it ultimately. You have to, but you're happier at least when you're reading the more succinct arguments and analysis.
That’s one and I think it's key to have other people who don't know a lot about the case to read your brief once you think it's done, because invariably you're going to find that they'll say, “I'm with you,” and then this gets muddy right here. Is there a better way to say this or do we need this? For the most part, the judges are not subject matter literate and they certainly aren't as familiar with the case as you are. To the extent that you can have somebody who is looking at it with fresh eyes. To me, that's probably the most important thing you can do in a written brief.
Sometimes even that goes with subject matter expertise too. Sometimes writing a bankruptcy, it’s clear there's someone who's a specialist in that area, but when you're dealing with a court that is a generalist and has all different kinds of cases, you might need to break it down a little bit more.
I 100% agree with that. There are a lot of areas like that like insurance. It's very helpful to have somebody who is not a subject matter expert look at the brief and probably do the mooting as well. As you said, bankruptcy can be a real bear. All those sorts of things can be very complicated if you don't know them well.
Also, a lot of the lingo and language. People who are in that space all the time are like, “We know what that means, but it's not fair to assume that somebody just knows what that means.” They don't do that every day. What kind of advice do you have for those who might be considering becoming a judge or applying for the bench? Do you have any words of wisdom for that path?
It depends on what stage you're at in your career. As a more junior person, you got to do the hard work. A lot of it is relationship-driven too. To the extent, you're viewed as somebody who is ethical even if they're really strong in their positions but is somebody who's not going to screw around in terms of how they handle both their matter and opposing counsel. I've always thought that it is a good indicator of what kind of judge they're going to be.
I think that's helpful. To the extent, you've done the work and you want to become a judge. I checked because I was curious as to what the numbers look like. For women, go for it. In Connecticut, 46% of the judges right now are women. I don't think that barrier exists at least in our state and I know in a lot of other states as well. It's a fabulous, exciting job opportunity if you can get there.
One of my initial impetus in starting the show was that I had noticed the impact that the appellate level across the country, the number may not be that high. In the highest courts and appellate courts, that’s a different number than at the trial court level. I thought, “I want to make sure that people understand what the roles are like and what it's like to be in those roles and to consider applying for them. If you don't apply, you can't get it.
That's exactly it and it's a little scary, but it's a great opportunity. I can say this having done it for a long time. It's enormously important that you do have diversity on your appellate bench because people do come at things with different backgrounds and they come at it differently. To hear it is enormously helpful. You may disagree ultimately on what the law is saying to you, but it keeps you alert to, “There is a different way to look at this,” or “This will create this problem. Are you okay with that still?” I am a huge proponent of women and people of diverse backgrounds and ethnicity trying to get there because it's so helpful to the system.
Also, experience with different kinds of practice and things like that and to have diversity in that regard too. People who have deep and practical experience with different areas of the law can lead to the point that you were saying, which is, “Here's the downstream effect of that. In reality, here's how it would probably go down. Are you okay with that and the impact of your decision?”
That so often is a question that appellate courts, especially supreme Courts, have because you're deciding this case. Is the right thing for this particular case? You're deciding for the law and for the state. Is there some unforeseen consequence that we're starting in motion here? In this particular case, we're not thinking about it, but testing that in terms of application and to have people with the different experiences that they've tested from different angles and have different influences on that.
A great example of that is probate. In our system, the probate judges, while they ultimately report to the Chief Justice, they're fairly independent in how they operate. There would be times that we have very important probate cases, all the issues of conservators now, what the oversight should be, and all of that. Statutorily, what the statutes are saying to you. We would ask for amicus briefs. We wanted to make sure because we didn't have a probate specialist at certain times. We would want to make sure what this is going to do. Is this even realistic in that system? To your point, you can have a unique background and still be an important and helpful judge in the system.
Probate is a great example of that because there are so many intricacies to that in terms of how it works, how this issue arises, and what kinds of cases. That's something that’s helpful to have some guidance about that. There's something on paper and there's the law, but in what circumstances do these questions arise and is this the fairest way to do this? Are we making sure there's due process and all of these various things that you need to do? I'm thinking particularly in terms of conservatorships these days.
Thank you so much for joining and discussing all of this. Also, doing well retrospective on the time on the court. Before we close, I usually ask a few lightning-round questions. We've covered a couple of them in terms of the oral argument and appellate briefing, but I want to run a few more. Which talent would you most like to have but don’t?
I would love to have a photographic memory. It used to drive me crazy that people could remember, “That case is on page 363. We wrote that in 1998.” I would be like, “How do you remember that?” That's something I would like to have.
I have an imperfect photographic memory, which is terribly frustrating. I remember not the page number but I'll say, “It's the third paragraph down on this particular page on the right,” but I don't remember the page number. It would be nice to have the whole thing. I have friends who are exactly like what you said and it's amazing. They are 100% right every time. Which trait do you most deplore in yourself and which trait do you most deplore in others?
This surprises people but I'm very shy. I wish I was not as shy as I am. I don't love that about myself. I watched my kids. They're not shy at all. It's the greatest thing to watch. In others, I'm not a big fan of arrogance. I tend to not react well to that.
The shyness thing, there are certain levels of introversion and things like that people don't necessarily put together with people like you who are very articulate. You're bringing all these people together and bringing consensus in all of this stuff, but you're like, “I'm shy.” Even more for you doing that, despite the shyness, it shows it. Who are your favorite writers?
I’m old school. I’m a big Ernest Hemingway fan, which drives the rest of my family insane. They're more of the Southern Faulkner.
It's tremendously important that you have diversity on your appellate bench.
That's completely the opposite.
When you started, you were going full circle, but what got you interested in the law? I still think To Kill a Mockingbird is the greatest American novel there is. I read it as a teenager and it's a great legal story. A lot of other things in there too, with a great legal story as well.
I always think that it has so much of what we hope we're able to do or aspire to be able to do as lawyers. Also, something much bigger than ourselves that we're working towards. It's nice to have that as some template or to have in mind that what we're doing has a level of meaning that's much higher and way beyond our particular egos and selves. It's nice if you have the opportunity to do what Atticus Finch did. I would be like, “That's it. I'm retiring now.” That's the goal and I'm glad I had that role and that's it. Who is your hero in real life?
I pride myself and I’m not being political, but I have to say that I thought Barack Obama did an incredible job in his role as president. I may not have agreed with all of his policies, but the way that he handled himself under what has to be incredibly stressful and difficult circumstances. I always felt that this is something that I try to do. It’s to have grace under pressure and I think he is the perfect emblem of that with how he handled himself.
It's interesting that you would say grace under pressure because that's the phrase that comes to mind when you were describing what you were doing as Chief Justice. That's the phrase that came to mind.
That's very kind. I don't always succeed but I try. I think he did it and he did it for eight years and that's not easy.
In particular, it's not easy for that long over a sustained group. For what in your life do you feel most grateful?
That's easy. My family. I have an incredible family. My kids are unbelievable. My son was visiting and just left. That's my greatest joy and my daughter is amazing. We're a very close family. My husband is wonderful. He was appointed as a judge a year ago so that's an interesting scenario we got going.
Do you give any advice or does he ask for any advice or he just does his own thing?
He doesn't ask for advice. He will describe what's happened during a given day and I'll be like, “That's great.” I remember those days, but he's enjoying it. He's going in far senior to where I was when I became a judge. He has got a lot of experience and wisdom. He's having fun with that.
All along, it's nice to have different challenges. It makes the profession fresh when you’re in different challenges.
I think that he was ready for that.
Given the choice of anyone in the world, who would you invite to a dinner party? It could be more than one person or just one person.
What we haven't talked about is I think it's important that people have outlets when they are in a job like being on the Supreme Court and mine is baseball. I would have to say right now to have dinner with the owner of the Mets and the three announcers that do the Mets games. That would be a dream come true for me. I would have fun with that. I've been a fan forever. My dad used to take me to games as a kid so I've always been a big Mets fan, which is a tragic thing to be, but we're actually having a good year. Fingers crossed and we've got a great new owner. They want to win, so we're hopeful as fans that it will happen.
It's great timing to have that dinner. The last question is what is your motto if you have one?
We used to say this all the time when we had particularly difficult decisions that we had to make on the administrative side, that there was no good answer or no comfortable answer. I'm sure I drove them crazy, but I ultimately would say, “What's the right thing to do here?” If we do that, then we've done our job and we did that. We took some heat for that on occasion, but I did try to live by that.
I think if that's your touchstone, then you've made the best decision you can.
It gets rid of a lot of the noise like the politics and what’s the blowback going to be. I'm sure many people had many disagreements with some of the things I did, but I was relatively comfortable with those decisions.
That’s why I say being in your core, what are you comfortable with and what you feel is the right thing to do. That's internalizing it in a way without keeping all of the rest of it away and trying to center.
You’ve got to factor those things, but particularly when there's no clear answer, I found that was the best way to operate.
In most circumstances, that's a good question for yourself and doing the right thing. That comes in the category of things come around as well. If you're doing positive and the right thing, hopefully, that comes back in a positive way to you as well, but that's not why you do it. You do it because it's the right thing. Thank you so much. I appreciate you joining the show and having this discussion. That's probably useful to anyone who isn't even in the role of a Chief Justice in terms of navigating some difficult decisions for different stakeholders.
I enjoyed it. The hour went very quickly. Thanks so much for having me.
Thank you so much. I appreciate it.