Episode 95: Elspeth B. Cypher
Massachusetts Supreme Judicial Court Justice
01:15:23
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Show Notes
Host MC Sungaila talks with Massachusetts Supreme Judicial Court Justice Elspeth Cypher who shares her journey to the bench, from civil practice to chief of the appellate division in the district attorney's office. Listen in as she shares both valuable tips you can use in court and inspiring wisdom for aspiring women lawyers and law students.
Relevant episode links:
Massachusetts Supreme Judicial Court, Women's Media Center Live, Tana French
About Elspeth B. Cypher:
Elspeth B. Cypher
Elspeth B. Cypher, Associate Justice, was appointed to the Supreme Judicial Court by Governor Charlie Baker. Justice Cypher was born in Pittsburgh, Pennsylvania, on February 26, 1959. She received a B.A., magna cum laude, from Emerson College in 1980 and a J.D., cum laude, from Suffolk University Law School in 1986, where she served on the Suffolk University Law Review.
From 1986 to 1988, she was an associate at the Boston law firm of Grayer, Brown and Dilday. In 1988 she became an Assistant District Attorney in Bristol County, where she served for the next twelve years. From 1993 to 2000, she was chief of the Appellate Division of that office and argued many cases before the Supreme Judicial Court and the Appeals Court. In 2000 Governor Paul Cellucci appointed her to the Appeals Court, and she took her seat as an Associate Justice on December 27, 2000.
For many years Justice Cypher was an adjunct professor at Southern New England School of Law (now the University of Massachusetts School of Law - Dartmouth), where she taught courses on legal writing; criminal procedure; criminal law; and women, law, and the legal system. She has participated in numerous educational programs for judges and lawyers and has written extensively about developments in criminal law in Massachusetts. Active in the Massachusetts Bar Association, Justice Cypher has served as co-chair of its criminal law section. She was the recipient of Massachusetts Lawyers Weekly's Lawyer of the Year Award in 2000 for her work in the long running prosecutions of James M. Kater for the murder of Mary Lou Arruda.
Transcript
In this episode, I'm very pleased to have joined us, Justice, Elspeth Cypher. She's on the Massachusetts Supreme Judicial Court, the highest court of the State of Massachusetts. Welcome, Justice.
Thank you very much for inviting me. I’m very happy to do this.
I'm so glad. As we were discussing before we start, we both have a common interest in the next generation and teaching law students and things like that. As we both hope, this will be helpful, particularly for law students.
I hope it will.
Thank you so much for joining us. I always want to discuss your career path and obviously, you're joining the bench but I wanted to start first with how the heck did you get into law? What inspired you to go to law school and become a lawyer, to begin with?
What it was, two things came together. One was I had been on the debate team in college and I loved it so much. It was so much fun but I did not know what I wanted to do. Two of my professors at that time were saying, “Why don't you go to grad school and teach speech communication?” That was my major and I did it for a year, but I hated it. I said, “I'm not staying here. I don't care if I finish this Master's degree.” I was back in Boston, where I'd gone to college. I was working as a clerk. Not a law clerk, just as a clerk like a secretarial clerk. I was 21 and not knowing what I was going to do. Not having a plan, I was feeling things out.
I bumped into a professor of mine who had gone to law school and he'd always written on my exams, “Go to law school.” His name was Michael Brown and he's a professor at Emerson College. He taught American Government in Politics and American Political History and things of that nature. We bumped into him on the street on the corner of Beacon and Berkeley, to those people who know Boston. He said, “When are you going to go to law school?” I said, “I don’t know. I'm going to save up some money.”
He said, “You're never going to save enough money to go to law school, so just apply. Go at night and do this.” I said, “I will do it,” because I wanted to do it. I have been thinking I couldn't do it. I did apply and I got in. I went at night and I worked during the day but then he called me and offered me a job in his firm to be a law clerk while I was in law school. That was fabulous. I was in a small firm with three partners. It was a minority-owned firm. I got so much different kinds of experiences as a law clerk while I was in school and I stayed on with them for a few years after that as an associate and did all sorts of things, from criminal law to employment law to divorce stuff. I started feeling I needed a more in-depth focus or more training.
This was such a small firm that I felt like I was committing malpractice when I showed up sometimes in court. These guys would hire this 6’10 Black guy and I would show up. It was like, “This little White girl, what's she going to do for me? Where's Jimmy?” I started to feel insecure and wanted to get grounded in something solid. I applied to District Attorney's Office in Massachusetts. Our hours are all by county and they're elected.
I was hired at the Bristol County District Attorney's Office in New Bedford, Massachusetts. We're close to Rhode Island. Massachusetts is not small. I'm maybe an hour away from Boston. I worked there. I did some trial work, not mostly though. I was hired into the appellate unit, which I thought, “They're hiring men to appeal.” I thought I had to work my way up after doing trials then maybe they'd let me do appeals but it was the other way around because of research and writing. I loved the appellate process, so I did that for many years, ran the appellate unit, and managed the cases. Argued in front of the appeals court in the SJC.
It got to the point where I started to feel like it would be nice to have an objective role rather than an advocacy role, so I applied to the appeals court and it was good timing. I got through and was appointed by Governor Cellucci, who's since passed away. I happily worked in the appeals court for seventeen years. It's an intermediate appellate court with 25 judges and we sat in panels of 3. We had a process where if we published something, every other judge read it and gave you feedback. You had to have a pretty thick skin about your writing or your arguments. You could get back some comments that were meant well but were a little sharp sometimes.
One of my best friends wrote, “What? Are you kidding?” I was like, “Okay.” The opportunity came up for the Supreme Judicial Court and I was on the fence because I was so happy. It was a little bit of encouragement I applied and it's been great. It's been terrific on the Supreme Judicial Court. I have a wonderful group of people. I was appointed by Governor Baker who won't be running again but it's been wonderful to work with them and to have a hand.
Like on the appeals court, it was great because if you couldn't figure out the answer, that was fine. You could get through the case and answer the case and say, “We’ll leave the big thinking to the SJC,” or the hard part. If they don't like it, they can fix it. Now. It's like, “The buck stops now.” It's like now you have to engage with those hard issues and figure it out.
That's the difference between the intermediate appellate courts and the Supreme Court of States. Your policy-making and law-making at the Supreme Court level, if there is no precedent, you have to, “it falls on me. You got to roll up your sleeves to decide that.” Not just for the case in front of you but for other cases.
I'm sure the judges you've talked to or the lawyers, we've all had COVID stories. That coming out and hitting you right in the middle of the boom was very difficult. That was trial by fire with no precedent, “When can you have a Zoom hearing?”
Some courts were further along technologically in regards to that as well. The 9th Circuit Court of Appeals already had a lot of the technology in place because it's such a large circuit. Over so many states, they allowed sole practitioners or government lawyers who couldn't afford to travel for argument to do it remotely. It was a great boom that they had that because they were able to across the board. Other places didn't have that. You have to accelerate and be creative while you're waiting for the technology to be added to the court system.
We were not quite ready. Certainly not where the 9th Circuit was. I think our trial courts did, especially the clerk's offices, which were used to. We're a little behind in technology. We were founded in 1692 and we like to stay there. This gave everybody a good push who was resistant. The clerk's offices in the trial courts rose to the occasion in terms of getting papers filed and docketed and also coping with the unknown variables when it was early in the pandemic. We were able to rent some equipment so we could do our hearings on Zoom. We did those on Zoom and we still will do that if we have a lawyer from Springfield or Pittsfield, which is not as far as the 9th Circuit where people have to travel. If there's bad weather or one of our judges comes down with COVID, we’ll be able to handle it.
It gives you more options, which is good.
It did give us a good push. We needed it.
Sometimes you need those events to move things forward. In your story, I was thinking in the beginning when you said that this one person saw this in you basically. He saw you would be a good lawyer and he’s like, “When are you going to do that?” I've heard that from other people. I think that people who mentor you or give you opportunities sometimes see things in you first that you can't see or you don't.
That's right. I also think it was 1980 for me when I was graduating from college. I went into law school in 1982 but women, even now, sometimes will think they're not qualified or they don't have the skillset or they think they have to be invited to apply for something. For young women, mentorship is important because they do need that boost. I know men have their feelings too about things and may not be confident. As a gross generalization, they tend to be more confident about their abilities than women.
I've done that myself in the past where if there are twelve qualifications for something, you go, “I only have ten. I'm not sure I should apply.” We look at it differently that way then some guy will go, “I got five. That's good enough. I'll apply.” It's a totally different mentality about that.
It is. It's interesting.
Sometimes or if you haven't done a case exactly like that, you're like, “No, I don't know if I should do this one because it's a little bit different.” I've told myself sometimes, I go, “What would a guy do?” Would you require that there be twelve of the twelve requirements? Would he say, “I don't know. I haven't done something like that before?” The answer generally is no, so you just take the leap.
Yes, and you have to. I think also we have to be okay with hearing no. That no, we feel it as a rejection and you feel it as like, “This means I can't do it or I don't have it.” When there are so many variables that we can't know about or control going into that process of a job, an application to the school, a judgeship, teaching, or anything. You don't know all the time why you weren't picked but that no shouldn't be taken personally. It's a not now.
That ‘no’ shouldn't be taken personally. It’s a not now.
I like that reframing of it. That's good. Sometimes not even not now. It could be that maybe there's something else.
That sure is true, isn't it? I look back now and I think of jobs I applied for that I didn't get. I was like, “I didn't get that. I wanted to do that,” but it worked out okay, so I can't complain. Other things come and you don't know what's around the corner.
I see that too in the various paths of people's lives that I've heard on this show, which is in retrospect, it all looks like it makes total sense and is inevitable. All of this is inevitable and it all fits together. At the time, it's like you were saying in the beginning, “I wasn't sure what I was going to do. I didn't know.” In retrospect, it all seems to put together and make sense but at the time, we're all making our way in general. The other thing I thought was interesting was that I don't know that people often think about going to a DA's office or even the US attorney's office. They also have appellate sections. I think people always think that it's in trial work in government work but it's not true.
No. Some district attorney's offices, not here but in some other states I've known, will have their trial attorneys do their own appeals. As an appellate lawyer, I'm sure you realize that's not a good idea.
It’s good to at least have someone else and another appellate lawyer collaborating with you or working with you.
Many of them do separate units then people can learn trial work on the side or help out with second seating and doing some more complex motions. It can be a very good place to be for trial practice or appellate practice. Chances to get into court are smaller these days.
Also, having that trial experience or being deep in litigation like that can help an appellate practice, later on, have that understanding of what's going on. You see the records differently. You read them differently. You put the story together differently. You're also a lot more empathetic than the trial lawyers. All the things that are going on and all of the stuff then in retrospect, looking at the written record, “This one issue is popping out,” but may not be the time of trial.
No, then that's the thing that I've always found so interesting. To me, trial work and appellate work together have seem like a sculpture. I think of it like a sculpture like the trial attorneys are there charging out, tapping out the big pieces to make the general form and the judge cut and the jury help, however that form's going to look. It goes to the next level to the appellate and it gets more refined and you can start seeing it. By the time it's in the appellate courts, now they're looking at it clearly and polishing it, so you know what you've got by then. It's always felt to me a little organic the way that it comes to life. It has to be raised.
That whittling process, the sculpting process, that's true. Sometimes individual cases that would reach the highest court have been narrowed down to this representative issue. It's happening in that case, the facts are good for it but this is an issue that's impacting a lot of other cases and a lot of other people, so transcends the individual case as well. That's a whole other art and skill of presenting it and figuring out what that issue is.
Yes, it is. That requires that you stay on top of the law too, to be able to spot those issues.
Sometimes what I found interesting about that at the state level is that there may be an issue that's percolating nationwide across a number of different states. It may not have reached a conflict situation in your jurisdiction but it's percolating. In this case, it may present a good opportunity to do that, so fix in what we in California call issues of statewide importance. Even if there isn't a conflict and look outside your jurisdiction to see what the trends are too.
Yes, and that's helpful because you can get a very insulated and provincial why do we care about what else is happening? We're here in our state but there are so many good ideas in other appellate courts and other courts, other states, and you never know.
I find that fun. From an advocate perspective but I also think from what the judges are doing at the appellate level. Especially if the highest level is you've got this one case and I think of it as being like a pebble or a rock in the stream. The stream is the law. It's bubbling along and where does this rock go? Where does it fit? What does it do? Is it going to change the entire motion of the stream? Maybe we don't want to do that. Maybe we do. All of that thinking about in a much larger context, it's not your case but fidelity to the law or where the law might be going. That's part of the calculus, which is the special calculus of being at the appellate level.
That's for sure.
When you decided to go from advocate to decision maker on the law to join the bench, how did you go about doing that? Maybe talk about that a little bit in terms of it didn't happen.
No, it didn't happen the first time. The first time I applied, I applied for a district court job. I wasn't called back for an interview or anything but the process in Massachusetts is an appointment process. The openings announced the application is put out. Now, they're operating with blind applications, so they don't know who you are at first.
Is there a commission?
There's a judicial nominating commission that the governor's office sets up. He or she doesn't have to but they've been doing that by executive order setting up this nominating commission of various practicing lawyers from around the state in different areas. You submit it to them and they vote on whether to give you an interview. After the interview, they vote to decide whether they're going to do further due diligence.
If they do due diligence and you’ve passed due diligence then they vote again to decide if they're going to send your name up on a list to the governor's office. The governor's legal department gets involved and whittles down the list and does its own interviews. Maybe the Lieutenant governor will be involved depending on how the governor does things but ultimately, it ends up with an interview with the governor.
When the governor made his decision and this is always a tricky area because they also like to send it to the Joint Bar Association, to a committee of all the bar associations. The bar doesn't want to give them vetting information if it's pointless. Often, the executive branch doesn't want to turn over identifying who they're interested in because once that happens, the rumors start. If people don't get through that joint bar and the rumors have started, it can hurt their careers. They try to be very careful about the relationship between the governor's office and the Joint Bar Association.
They're conscious of that and they're careful with it. They vote much like the ABA, whether you're qualified, not qualified, or over-qualified. When that happens, we've got one more constitutional bar in Massachusetts. It's called The Governor's Council. It was established when our state was established in our constitutional court. They are there to give advice and consent to the governor on issues of parole and judicial nominations. They have something to do with paying money. I don't fully understand.
There’s one elected from each district, which is roughly approximate to a county. They're all very different. They don't have to be lawyers. Some of them are not lawyers. Some of them are. They're very different. You don't know how each one is going to be. You try to talk to them ahead of time to see what they're looking for then they'll have a hearing on your nomination. We will be publicly questioned and you can have witnesses. In my most recent round, there's somebody who's always videotaping these things and posting them, so your whole hearing can end up on YouTube. It's quite a process.
Every state is a little bit different. As we were saying, that's been fascinating to hear about that. In deciding whether you want to apply to the bench, part of it is to be the judge but then what do you have to do to become a judge? Are you willing to do that? Knowing what the process is in your state helps you make that decision. Some states are entirely elected. The Supreme Court in Texas is elected and reelected and that's how it goes.
There is no appointment. Other places are like yours where there's a nominating commission. That first creates the list from which the governor can select then all of the other parts to the puzzle as well. What you said about being public and knowing that you're under consideration, I think that's always a challenge because it does impact your career for that period of time. Whether you are chosen or not, everybody knows your name is in the mix.
They might not send you new cases.
That's what some of my friends said when they've appointed, they're like, “Everything went to a standstill for a few months.” I don't think people realize how long this process can be. It's not happening tomorrow. Even if my name is up, it'll be like six months, a year, or whatever. It's a long process but that's nonetheless how people perceive it. When you were talking about that, I was thinking, in our process in the State Courts of California, it's much earlier in the process that you're publicly known as being the candidate.
If the bar input and the state judicial evaluation committee rate you like the ABA as well, then there are individual bar associations that do that. You were named the world soliciting information about you. You even passed through the nomination commission and got on the shortlist, basically for the governor's office. I was like, “I like that about your process.”
I have to say they've done a very good job of keeping everything that should be confidential-confidential and minimizing that exposure for people. They have done a good job with that because it is hard, especially if you're in a solo practice or small practice. The bigger firms are used to it and they can handle it better. Also, it's important to tell your employer but other than that, you don't want it around. That is something but if you're running, that's out of the question. That's not a problem.
Although that's shorter because they’re shorter cycles to that. Obviously, you're out there but that's usually a 6 to 9-month period. It's not a long time. Whether it happens or not, you go.
I understand the reasons for both. Both are all different processes because some have a combination. Me and my colleagues will say, especially after somebody's been to a conference and has been talking to judges who are elected, “I am so grateful we don't have that burden. I can't imagine doing this job and having to run.” My name ends up in the paper and 50% all the time are always going to be unhappy with the judge. It’s tough on that. I can't imagine the election process would be even harder.
50% of the time, people are always gonna be unhappy with the judge.
It's so different. Anyways, it's been interesting because we do on occasion in California, if there's an opening and the governor has not appointed someone for that opening then an election period comes up. There are straight elections but that's generally on the trial court bench. Usually, the governor's office is moving to get the appointments they're entitled to make so that doesn't happen too often. We have the retention elections too. There's a little bit of a mix of that. We do go on the ballot in retention.
That's interesting.
At least, they're already there and all of that doesn't have the practice. Anyway, it's an interesting array of different ways that different states do it and what's involved in the process.
An important point too for women is having people know that you're reaching for something because women are still taught it's not very becoming to be ambitious.
The common thread and what I've heard from so many women on the bench that I've talked to on the show is that thinking about it in terms of where's my highest and best use next, where can I serve? If you think of it that way then it's not like, “I am ambitious.” I’m ambitious because of what I can do and how I can help. That's different.
I think that's right. That comes from a very good place in the lawyer because it isn't a function then of ego. It's a function of how am I best able to serve at this point in my life. What matches my temperament and abilities now? Knowing it could change in the future and that things aren't for you, you never know. I like the idea of looking at it from your highest and best use. That's a very good way to look at it.
That's the common thread and I see that often in judicial selection. No matter what variety of what people are looking for in terms of judicial temperament and judicial readiness. A lot of that is being an interest in serving in various ways prior to the practice. Not like suddenly you woke up on one head, it'd be cool to be a judge. You were serving in other ways, whether through your position in government or in a nonprofit or that you served in bar associations or their time to other community nonprofits. Something that shows that this is a common thread of service and you've recognized that at this point, this is another way to serve and that continuum.
I had an interesting question from a lawyer when I was applying for the SJC the first time and didn't get through the commission. I had raised my son pretty much as a single mother so I devoted my time to work and my son. That was it. The man from the big firm says to me, “You don't have a lot of things on here about community service.” I'm like, “I'm going to the PTA. I'm an assistant district attorney in court for no money. What do you mean by that?” That's what I wanted to say.
That's something where the courts or the appointing bodies are getting better at recognizing different ways of service and thinking about that community service much more broadly. Not just bar association but, are you on community boards? Are you working with your child's school? Various ways show. Basically, you're thinking outside yourself to help others. What you were doing in your entire job.
That didn't seem to matter at that point.
I know. That’s the thing. You get blinders like, “This is what it's supposed to look like,” but what I've noticed is a couple of things. First is that changes over time, where things are and what people are looking for. That's why in part, serving on the bench is partly you and partly the zeitgeist. We cannot predict. It might be that your experiences and things like that are now what the governor's looking for. Many years ago, no way. They couldn't see past, these are the set things we like to see. You never know where that might be in your jurisdiction.
Again, that goes back to not taking it personally.
Yes, and it's hard because, in that instance, you’re like being personally deeply examined for those all.
I know but don't take that personally.
Don't take it personally but where's your service? I have a question for you too because it does happen. When I think about mentoring and helping people, usually the best way you can return that is to pay it forward. Do that for something else. What I've seen amongst my friends on the bench is that when they reach the bench, then they help others.
There's this system that you're going through that you have no idea like, what questions should I be asked? What is this stage of the process like? We all work together to help prepare people for those interviews, for those situations, so that at least, they're muted out. you’re not completely shocked. You still could get a left-field question but at least you're like, “I did this once,” like an oral argument.
I think that's good advice. The Women's Bar Association here does that but there are informal networks. There are men and women doing that together, which is fabulous. I know there was a book going around for a while on all the big legal topics, like guns, equality, and whatever constitutional issue you could think of, state or otherwise. There's this binder that was passed among a few judge applicants to help them get ready. It was nice. People updated it and passed it on. San Francisco's probably bigger but we're a very small legal community. Everybody knows everybody here.
That's nice because of the collegiality. That is important too, especially when you're not in the trial court. Not a single judge bench. Your ability to work with others and to reach consensus decisions with others on the bench. That seems like a great opportunity. You're all helping each other as colleagues by doing that and in the course of that, you’re learning how it is you can help and work with each other as colleagues.
I think that's one thing that people don't always think about too, in terms of what's a good fit for them, both in terms of experience. Also, what is it like on a bench? It’s very different from being a trial judge. You are the decision maker. That's it. You also have a very set schedule. That's something people don't always think about. I know where I am from 8:00 AM to 6:00 PM or 7:00 PM or whatever it is, every day because I need to be in court for trials and hearings. They think about that in terms of your life, if you have a small child that has various activities and things like that.
That's one of the reasons I wanted to do appellate work because it was so stable. I have to prepare for a trial, go into court, have it not go because it got continued, so all your childcare gets all screened and messed up. I love the appeal court in the SJC because it’s like, “Here's your date, come to court.” I would prepare and be able to go. That was very helpful while having a small child, a young child, or even an older child.
I think also that thinking about yourself and being honest with yourself about how well you work with others because the appellate bench, when it's functional, is very much a collaborative effort and you don't speak for yourself. You never have the courtroom alone, except for those single justice emergency hearing things. I've seen over the years some trial judges who got used to that having their own courtroom and go to an appeals court of the Supreme Judicial Court and there's a bit of culture shock.
The appellate bench, when it’s functional, is very much a collaborative effort.
It's a real adjustment. It's not something that you think about. Some people never make that adjustment if they've been on the trial court for a long time.
I think that is fair. That's true. You love getting the trial court experience there. We have 3 judges who were appellate judges but not trial judges and 4 people who are trial judges. It's a nice mix.
I like that nice mix. That's something that people don't about the difference between the trial bench and the appellate bench, what it means in your daily life, and also how you're making decisions. For me, I love being an appellate lawyer because the product like how we argue something, how we present something, and how we think about legal issues is so much better when we have a team working on it than if it's one. I like the back and forth and what could we do? Make sure we've considered every issue.
It does help.
What advice would you have for those who might be considering applying for the bench?
I would say the two biggest pieces of advice. The first is it depends on your process. If you're elected, it's a whole different process. It probably not be the same.
I was going to talk about the terms of a process like yours.
A process like mine and bearing in mind, it's a small state with a good population but lawyers know everybody. Everybody knows everybody. You don't know who's related to who. You never know whom you're talking to or who's nearby. As a lawyer, make sure your conduct and your speech are impeccable as you go through the hallways or you're talking to an assistant clerk, a court officer, a judge, or another lawyer.
You want to always be as professional, polite, and gracious as you can be. Not to say don't be a strong advocate but you don't want unnecessary conflict that becomes personal or anything like that. It’s because you never know whom you're going to meet along the way over the years and how somebody can help you or hurt you. At least here, it seems they do their background due diligence but that's calling up other people and lawyers like, “What do you think of her?” They look at your application and call posing counsel on things. You don't know they're calling. That's very important.
I have three things, so that's one. The second is to join some bar associations and get on a committee related to an area you're interested in. You can start as a young lawyer in that committee then move that branch out but get involved in something like that so that you are known and you are a name that they know and that people know and you're familiar with.
The third thing I was going to say about terms of preparing is to do work in an area you love or like. If you're doing it in an area you cannot stand or you're putting in the time, it will show in your product and in your attitude. It'll show how you feel about yourself but if you are working on work you like and even if it's better, you love then that passion will go into it and propel you forward. It will make the work better. Those are the three things I would say. Do something you love, bar associations, and be darn polite.
The whole stability situation and that's true. It’s the vetting process. You're right. It’s talking to people and particularly the opposing council, your former colleagues, and the whole array. Even people that you wouldn't imagine would be called. You’re like, “You practice in this area? I know Joe and he does that. I'll call Joe and see if anything about you.” It's tricky that way. You can't control what anybody's going to say but you can control your own behavior and your attitude to people.
You don't want to give them anything concrete that is true.
Don't give a freebie away to someone. That's true.
That also demonstrates judicial temperament if that's what they're looking for.
That's a good point if somebody has a temper or it comes out in certain ways in practice then somebody might wonder about that on the bench.
Those things often don't get better on the bench.
That's a good point. Those are all practical, pragmatic thinking about that. I think people think can bigger picture of things but like, “No, these are some core things to how it operates.”
You can keep those three things in mind no matter what you think you might be doing or even if you're not sure you're going to be a judge. Don't close your doors. Make sure you keep all the options open. That advice works for all sorts of positions, especially in law.
I think about treating others with respect and treating them well. Particularly, I would say in that list of people, you were talking about staff and court clerks and people like that. That, to me, is one of the most important of how somebody is. Treat everyone with respect because they're human beings or do they treat them in other ways because they think?
That's something that was interesting to me as an attorney who had seen some judges operate with staff, court officers, or lawyers. I'm working with them in a different capacity on the bench and they're being so lovely to me. I'm remembering, “You weren't always lovely with staff.”
It's a tough one.
The thing about being a judge too is everybody is nice to you and then you become smarter and funnier.
You have to manage that for yourself too. That's nice and everything. It might help smooth the way in life a little bit but some reality checks are good on that too. Who you are internally and the outside stuff has much less play, good or bad.
We all have different personas or roles we play in life. Seeing that as a role that is to be played properly helps. Knowing that it's not you they're being nice to and standing up for. It's the position and it's what it represents.
The honor of being able to do that is the one and a continuum of a long line of people who have had that role to ensure integrity in the law and the world law. You have this opportunity in this moment in time to sit in that seat or somebody else will do it after you. The larger sense is the perspective.
It does and it helps although sometimes it feels a little like, “Oh my gosh.” It’s so daunting.
A little overwhelmingness as well, for sure. I've had some friends who have joined courts where they clerked. There were a lot of judges on the court and that is mind-blowing.
The first time when I was in the appeals court, I practiced it a lot in front of the appeals court. There was one woman judge with that I particularly loved arguing in front. Her name was Charlotte Perta. She's since passed away. She was a role model. When I got to the appeals court and there she was. I had to call her once on the phone and I'm stuttering because I couldn't call her Charlotte. It was so hard. I couldn't. She noticed and laughed and said, “You'll get over that.”
It’s that thing that you're like, “Wait a minute.” All these people were held in high esteem and even maybe still the judge I worked with had overwhelmingness. What advice do you have to advocates appearing in appellate courts or supreme courts?
There's one mystery I have not been able to solve about appeals yet. Maybe you are familiar with this or it's my imagination. On both sides this happens but we tend to get more of a record on the criminal side. Inevitably, in several cases in any given month, the one document that will decide the issue or is critical to deciding the issue, the litigants have decided doesn't matter. They're not going to put it in the record. It's like un-airing sometimes. It’s like, “Please put the right things in the record. If we're going to make a decision on something, make sure that all the supporting material that was attached to it is in there.”
A complete record is important. Even the record of the things that happened in the trial court. There are two stages of that versus making sure it's in the trial court record to begin with. Second of all, making sure what that trial court record gets entirely moved up to the appellate courts. It falls through the cracks at either of those stages.
On the appeals court, we didn't have the authority to do too much about that but in my court now, if I need it, I will get it from the trial court. We can compensate for this. Civil cases are harder than criminal because the rules are different. One thing is making sure of the record. Approaching the case honestly is important and knowing your shortfalls, weak arguments, and what your strong argument is leading with your strong argument and oral argument so you don't get tangled up and weak arguments and lose all your time.
Know what your strong argument is and lead with your strong argument at oral argument, so you don’t get tangled up in weak arguments and lose all your [allotted argument] time.
Plus, that demonstrates to us that you understand the issues and you have good judgment so we can trust you in that judgment because you know issues 5 and 6 aren't that great but 1 and 2 are your best ones. The other thing that is helpful is to tell the court, whenever the client is in the room, listening, or client's family. Lawyers will introduce themselves and say, “Your honors, I'm so and so. I represent so and so n the courtroom today,” then they gesture and that way, the judges know. You don't ever want to be in a position of saying something.
An appellate argument is very abstract sometimes and very cold. You can end up saying something in an incredibly sensitive case and hurting some of those people or giving a bad impression of the process. I think the lawyer can let us know that. Also, I found that sometimes judges who like to give lawyers a real hard time. They know the client is watching, so they won't.
They'll say, “A good job counselor or something like that.” You telling us who's with you is important. Generally, if you have a weak argument, you can say, “It's not my strongest argument but,” rather than denying reality because you want to maintain your credibility. Part of that is showing us you can issue spots, you know what's the strong argument, and where you're weak. View it as a conversation.
That was an interesting part. I hadn't heard that point made exactly that way before by selecting the issues and narrowing it down to like, “This is the one that oral argument will be most helpful for and is the main issue.” In doing that, you're also signaling that you've called through it and you have some judgment that could be trusted. That's an interesting way of thinking about it. The other thing is in terms of the bench’s response to the advocates. There's good and bad to the availability of arguments on YouTube now. It's good that you can listen to and watch the panel or the court with similar cases to yours but what that means is that clients will sometimes pop in to listen to your argument.
Whereas if they come to the courtroom, they hear the whole calendar. If you're the last calendar, they will take it the same way that maybe this particular judge likes to ask tough questions of everyone or has a certain attitude towards arguments. It isn't your advocate. It only happens to you when they see that one argument because they're not sending in court for the whole thing. “What happened? You’d been there the whole time.” That's what was happening now.
I think that's a good point. Right out of context, it's not out of context for the argument. It's out of context for the day's arguments. It’s the whole situation. Each case affects the other in terms of how the subjects, mood, and intensity.
With that, you get by seeing the whole thing all the way through and being in the breath. There’s also a difference between seeing them and when you’re in the room. You get another whole different sense. There are good things about remote arguments and Zoom and things like that. It’s different when they can be there the whole time.
I think the argument is important preferably in-person, obviously, but if it has to be on Zoom, so be it. Some people say, “What difference does the oral argument make? You've got the brief.” It makes a difference. I believe it makes a difference. I've seen it make a difference. You go in thinking of case is one way then you hear the advocates, you say, “A-ha, this is a whole other thing then what I was reading in terms of context.” The argument is important.
I've seen that. I also think of it in terms of different ways of explaining something. Sometimes it can resonate with different people so you explain it slightly differently or have a different analogy or something like that at argument. Sometimes you can see like, “Now I see it that way. That makes sense to me. Now I see this record or I see something slightly different from the brief.” That can happen.
Although as an advocate, I was always trying to restrain myself from advancing my brilliant idea for arguments that I came up with on the spot. Those never go well.
That's true but looking at it through a prism, there are different ways of elucidating things. What you were talking about now where an impression for whatever reason was graded about what happened or the timing of something and the record then you clarify that argument. You could see the light bulbs go off and go, “What? Because of that, I have a totally different view of everything.” Now, you’ve handled it differently. Unless you have the argument and the opportunity to have that conversation, that may never have come to light.
Everybody wants to know how to do a good appellate argument and all that but preparation is the biggest answer to that question. When you're prepared and you know your case, you'll be comfortable when you're talking about it because it's what it is. It's a conversation and you know your case well. The more you know, the better we all are in that conversation.
Everybody wants to know how to do a good appellate argument, but preparation is the biggest answer.
I've always thought, “If I could have the oral argument without the pain of weeks of preparation beforehand, that would be great.” You can't have the oral argument that's fun unless you've done the other. Preparation is key that leads to the best.
It's very true. I feel that way about teaching too. It's like, “I like teaching. I like having taught, but I hate preparing.”
Could we not do that part? It’s like, “No, that's all part of the process.” If you don't know, the rest does not follow. You have to do it. Have you been teaching long?
I have. I can't seem not to. I taught in graduate school for a year then after that, I taught while I was in law school. I was teaching a class at my college on public speaking and debate. The lawyers I worked with are all teaching also. I taught at the community college they were at. When I was in the DA's office, I taught at the local law school here. I've taught legal writing, criminal procedure, criminal law, women's legal history, and feminist legal theory race. I have a course that I co-teach with a Dean of the law school, who's retired now.
We teach on the intersection of race, women's rights, and gender identity. I enjoy the students. I enjoy the new approaches that you cannot be cynical with students. Whatever tendency you might have or your colleagues might bring out and you’re like, “We got the same issue or whatever.” With the students, I've not only felt it's my obligation not to be negative and cynical because they're coming up and they need to have a good attitude. It also helps me because they do have good attitudes and they're looking at things with brand new eyes. I love that. I do.
I've seen that. The upside of the freshness is that there's a sense of, “We can do that. We can do these various things.” You're like, “It doesn't work that way in most cases,” but it opens your own mind to it. I shouldn't say no to that. Let’s think about it. Is there a way we can make that argument or a way we can do something? Even if it is outside the box. It nudges you to do that. How was it different between teaching, let's say at community colleges and at law schools? Was there a difference?
Yes. The community college of business law or in hotel law. This business law, employment law, hotel law, maybe a criminal law class, they're young college age, they're at a different level of their education and in their life experience. Although, sometimes you get older students in those situations, which add an awful lot to the class. I make them co-teachers in that circumstance. A difference.
In law school, you've got the anxiety level of the students. It's much higher but I try to bring that down because I don't personally think that a high anxiety level helps people learn things that might be contrary to the traditional Socratic method calling but I don't think it helps. Bringing down their anxiety then helping get through to get the basics down. What has changed that I have been in tune with, I had taken a break from teaching and gone back, is how technology has helped students because now, you don't have to worry about teaching them Black Letter Law.
They're going to find it. They're going to find a great outline. They're going to know it. They're going to have it up on their computers in class. They're going to have the case. They're going to be the master of the material. That relieves you of a good chunk of going over substantive material because they have those tools. You can work more with applying it and I've found that's been an interesting change. It's progressed students a little faster that way because they do have access to that information in so many different forms. It's not like we're hiding a secret language anymore.
Also, I think that happens when you take a break from something and then go back to it. You have fresh eyes yourself and there's a difference. I thought law school to those who worked as well, so a night class. People went to law school at night and that was a very different experience than people who are going full time. Very different backgrounds, a range of backgrounds and most people have a real purpose for why they're doing this. Their very particular purpose.
There's an attitude of, “I'm here for a purpose. I want to achieve that purpose. I'm not going to screw around here. Teach me.”
It was very rewarding to do that. For me, one of the joys of doing it is when every once in a while, there can be someone you can expose to your practice area to appellate law. Their eyes light up and they may not have found anyway in the law but suddenly doing this, they're like, “Yes, I'm firing on all cylinders and fear of doing something you love.” It's always neat. It's worth it. It's happened to me maybe four times in many years of teaching but it's worth it for those a-ha moments when you can do that for someone. Show them a potential path that they haven't considered.
It's very exciting. I like watching where my law clerks go too. They sometimes start out thinking they want to do one thing and after exposure to the court system, a whole other area opens up.
Sometimes clerks start out thinking they want to do one thing and then after exposure in the court system, it’s like a whole other area opens up.
That's one of the things too that is instructive and helpful, which you have some idea and maybe you'll still do that idea. In practice, in reality, you find something else that you love as well or more and you go up to do that. Sometimes people think, I'm only going down this one road and that's the only road but it's not true. There are so many other things in your career.
That's a good point.
Your clerks, you don't have permanent clerks? You have clerks who rotate take-through, is that right?
We have term clerks. We have a few staff attorneys who do court work but they're not assigned to us for cases. They do other things related to our petitions for further ballot review or if there's some question of court institutional memory. They'll know where to find it. We pretty much have law clerks. You can keep your law clerk as long as you want to. I think two years is nice if I could get them to cycle right. Two years and one goes then there'd always be somebody who knew what happened but it doesn't always work out that way.
We take them fresh every year, which is a very intensive experience because we're retraining them at the beginning and all that. I see benefits to both kinds of clerking. One thing I tell my clerks, the ones who want to stay and don't want to go, is that they can't stay because they need to at least go out and see the world. If they decide they want to be a permanent career clerk, they can look for those jobs because they exist in places.
Also, that's something helpful for those in law school to think about because I think when people think about clerkships. The term clerkships are often thinking of the federal level but there are those opportunities on some levels.
Yes, there are.
It's a good thing to keep in mind always.
It is. The state practice is different than the federal practice. Some people enjoy state constitutional law or state prosecution defense.
Keep your mind open if you're looking for clerkships and thinking about different opportunities. There might be some there. Our court in California had career attorneys until the last few years when they started to mix it up. The individual justices had some term clerks and others. That seems like a good thing to have that mix like you have.
It’s good. It keeps you fresh and on your toes, to tell you the truth.
You still need those with the institutional memory and things like that.
I've joked sometimes that we're the judges, we're the just tempts. It's the permanent staff that keeps the whole place running and consistent from year to year.
I interviewed the clerk for Molly Dwyer, who's the clerk for the Main Circuit Court of Appeals. She was a staff attorney, a supervising staff attorney and had all these various roles in the court and now is been the clerk for quite some time. She knows so much about all aspects in the court.
That's invaluable.
I was like in such a worse for the judges or for everyone.
The thing too, not all lawyers are cut out or want to be in court or be performing or be arguing with other lawyers about or settling cases. They like the research and the writing and doesn't matter to them if their name isn't on it or if it gets edited.
They enjoy.
That’s a different way of doing it.
That's one of the points of the show is making sure that everybody can see all the different things you can do and all the different things that people have done throughout their careers and there's a place for you either in the law or outside the law.
Sometimes I've thought that we all need law degrees to get by in society because it's so complicated. Even if you go to law school and decide, “I want to go to law school and learn law,” and if you can afford that. That's a great thing to know and a great thing to have even if you don't practice. Even if just as a framework for research or thinking or education to have that background. It would be so helpful so in many other areas.
Yes, and some of the guests in the show have been very good about articulating that, how the various skills and ways of thinking that they learned in law school translate to leaving a nonprofit organization. The different management, which you don't think about from law but the critical thinking and even some of them translate their courtroom skills to now, “Now I have to work with a board of directors and all these various stakeholders to an organization.” I can translate that persuasion in different realms and use some of those things, skills. It's amazing to hear that and to see that. People talk about that but hearing that and seeing actual examples of.
That's very helpful.
It makes it come alive having and using those skills. Talk about it. Typically, I'll close with a few lightning-round questions. The first question is, what talent don't you have that you wish you did?
I have no talent in singing or music and I wish I did or I used to wish I did may. I'm going to change that now and say, “I'm content now that I know I can't do that.” What I would like to be able to do is paint and draw. I try but it's fun. I would say I would have to change but when I was a kid, I didn't get into chorus. I didn't carry to your tune and I hated to sing. I would've said that but now, I don't care about that anymore.
There you go. There's some revolution in your interest and things like that. I will take singing classes and things like that but I know that some things you have. I don't have the visual envisioning of what it could be kind of thing. I can do that with the written word and law and things like that but the visual. That part of my brain did not get flipped on.
I can visualize. I can't get it out of my brain to the paper.
It's interesting. Who are your favorite writers?
I love to read. Unfortunately, because we read so much in an appellate court, it cuts into your personal pleasurable reading but I like Robin Morgan. She's a second-way feminist. She has a podcast called Women's Media Center Live. She has some books, poetry, fiction, as well as autobiography things or commentary type. She's fabulous in her thinking and her writing. I love her a lot. There's a mystery writer from Ireland called Tana French who has a beautiful way with words. When I read one of her novels because it's like a police procedural like Michael Conley or James Lee Burke.
I think both of them are fabulous. James Lee Burke, my uncle gave me a book of his, and I never thought I was going to like it. He's such a beautiful writer. When you get that good writing with some of these, “It's a mystery,” or you're reading a police procedural, it makes a difference. I do like those good writers and so many.
I ask that because I think that good writing is good writing no matter the genre. There is a lot you can learn from that. That seeps into your judicial writing or legal writing and having that exposure to, “That's so beautifully done. It's the right word or description for something.” It inspires me to continue to want to work to do that. It sounds like a good story.
Sometimes we see briefs that are like that.
I had a midlife moment about years ago, and I thought, “What if instead of being an appellate writer, I would be a writer?” I took a lot of writing classes, creative writing, nonfiction, and all of this stuff. I kept telling the professors, “This is very similar to what we do in the appellate brief. This principle translates this way in her writing.” They're like, “No, legal writing is boring or whatever.” I would throw out some briefs out and show it to them. I said, “See how this is like that storytelling part and this is here?” “We've never seen briefs. We didn't know that legal briefs were like that because they had these appellate briefs.” I hope I opened their eyes a little bit.
That's a good point. You should be able, as a lawyer, to write so clearly that somebody could pick it up and read it. No need for long words, Latin words, and French words.
It should be readable by others and understandable. If you've done that then you understand it too.
I think that's it. If you could do that, then you do understand it.
Yes, that's interesting. Who is your hero in real life?
In real life, there are all sorts of people that I know individuals who are heroes for one reason or another, whether it's some personal characteristic or something they've done. In thinking about that question in terms of a true blue hero that you admire, I may be saying something controversial but I admire and my hero is Hillary Clinton. She kept at it. She got kicked around so hard and not listened to so often but things she said were so important and have come to mean so much now.
With some of the wisdom she's been coming up with lately, I have a lot of respect for her and I admire her perseverance. She came onto the scene at a time when women were coming out and it was hard. She wasn't in that generation of women who were the first women in their law school class but early enough. She hit public life and it was very a challenging thing that she went through but she came out of it good-natured.
One of the things that I discovered from doing the show, which is I graduated from law school in 1991. I realized hearing that the 1980s were pivotal for women in the law certainly in the late 1970s. In the late 1980s, things changed quite a bit. Being able to see other things, challenges remain but there were a lot of challenges we didn't face graduating at that time. Even a few years difference from the early 1980s would've been a different experience and how grateful we are for having that but also respecting those understanding the kinds of things that people had to go through beforehand. Also, now I hope that from this is how quickly things did change relatively in people's lifetimes.
There may be more work to do but for those who are in law school now saying, “All of this was accomplished.” You have so many more opportunities to you. All the different things in the law that you can do that are open to you to do now that may not have been open to people 40 years. I hope I get to hope for people.
I hope so too and I think that's very important to make sure that young lawyers and law students and law clerks have hope and our optimistic about their ability to make changes and to have an impact and to affect the world. It’s hard because we have so much information. You get all this information from so many places about so many places. It can be overwhelming and depressing if you focus on the negative parts. It can be scary but it's important to know where you can make a difference in your world. Maybe your world isn't the big biggest world in the world but anything you can do in any little place is good.
It’s really important to know where you can make a difference in your world. And maybe your world isn’t the biggest world in the world, but anything you can do in any little place is good.
What people have a man have done themselves in pioneering trailblazing in opening up trails for others and what you said, what can you do to make it even better for the next folks coming along?
One of the things I think she demonstrated was so much grace under pressure and the ability to bounce back.
Those are resilient. That’s very important to accomplish things in life. You have to have that. Whether it's applying a few times for a position or any number of things. I hope that people get that message from your stories, others, and her stories. Given the choice of anyone in the world, who would you invite to a dinner party?
I'm not going to invite any of the founding fathers because we know what they wrote. We're stuck with it and they wouldn't understand us. They would not understand where we're at and they would be too unfamiliar. You have to spend the whole time catching them up.
I like this very practical view.
One of the people I would like to invite to dinner would be the governor of our state, Charlie Baker. He's so interesting. He's not a lawyer. He had an MBA but he's been the most practical governor concerned about making things work for two terms. He's a Republican in a democratic state and he is highly popular but he's very interesting in that regard because he's so pragmatic and has been able to bring together groups that other states can't get pulled together. He's been able to pull everybody together, work together. It's been great. I would love to meet Robin Morgan or Hillary Clinton and have them over for dinner. I think that would be a nice mix.
I like that when you have a group, sometimes the mix of the group is a little extra. Each of the people individually is interesting but you think about what can be had amongst them.
They would all add something different. It's like bringing a writer or an artist to other conversational lawyers or something. Another interesting person I think is Timothy Snyder. I don't know if you've read anything by him. He writes a lot about autocracy and where we are now. He's got a lot of books. He's a very good writer. He's a Yale professor and he is fabulously interesting.
I haven't but I'll have to. That's one of the good things from this is I get all these great books to add to my book list and things.
Timothy Snyder is appropriate for the age now.
Last question. What is your motto if you have one?
I don't know if I have one. I looked up above my door and there is one of those things, those plaques people paint with sayings, and it says, “If the broom fits, ride it.” We'll go with that.
That's so funny. Thank you so much for joining the show.
It's been great talking with you. I'm looking forward to tuning in to your show more because it is interesting hearing all these experiences and different perspectives.
Thank you so much. I appreciate that and I appreciate you being here and sharing your insights and wisdom as well.
You're welcome and thanks for inviting me.