Episode 99: Consuelo Maria "Connie" Callahan
United States Court of Appeals for the Ninth Circuit
01:18:35
Subscribe and listen on…
Apple Podcasts | Stitcher | Spotify | Google Podcasts | Amazon Music | PocketCasts | iHeartRadio | Player.FM Podcasts
Watch Full Interview
Show Notes
U.S. Court of Appeals for the Ninth Circuit Judge Consuelo Maria "Connie" Callahan joins MC Sungaila to describe her journey from lawyer to judge and her commitment to the rule of law. She also provides advocacy tips for both appellate brief writers and oral advocates. Listen in for valuable insights and practical tips.
Relevant episode link:
About Consuelo Maria "Connie" Callahan:
The stylish and vivacious Connie Callahan was born June 9, 1950 in Palo Alto, California. She graduated from Stanford University with a degree in English in 1972, and received her JD from Pacific McGeorge School of Law in 1975, and received her LLM from the University of Virginia School of Law in 2004. She worked first as a Deputy City Attorney for the City of Stockton and then as a Deputy District Attorney for the San Joaquin County District Attorney's Office until 1986, when she was appointed Commissioner of the Municipal Court for Stockton Municipal Court.
In 1992 she was appointed to the Stockton Superior Court, and in 1996 was elevated to the Third District Court of Appeal. She left the Third DCA in May 2003 to accept an appointment to the United States Court of Appeals for the Ninth Circuit, where she currently serves
Transcript
I'm very pleased to have join us Judge Consuelo Callahan of the United States Court of Appeals for the Ninth Circuit. Welcome, Judge.
Thank you so much for having me, MC. Thank you for sharing our stories with the younger generation.
You are one of the most powerful women in your impact and your service on the bench as well. I hope that there is some inspiration for those who might consider going on the bench or thinking about other aspects of their career and being inspired by what you've achieved. I wanted to start at the beginning, which is law school. What gave you the idea to go to law school? What inspired you to do that?
My parents were the first in their generation to even go on to higher education. I'm the first lawyer in my family. My mother's family was born in Spain. My dad was Irish. My mom didn't speak English until she went to school. Education was always emphasized in my upbringing as the great equalizer. That's how you get ahead in life. If you're not educated, you're not going to have independence.
My mom was probably an early feminist. Young women were not as encouraged certainly at that time. She was bright, but she always felt a little bit trapped with getting married young and going from her father to her husband and three young children. She always emphasized, "You need to be able to support yourself because otherwise, other people are going to tell you what to do." I was also interestingly encouraged by my dad. He was a good girl dad in the sense that there were two girls and a boy in my siblings. If you said you wanted to do something, then he would say, "Why aren't you doing it?"
It does make a difference, especially with both parents like that and the father having that view. That's certainly the case in my family. It's having that encouragement and saying, "It's whatever you want to do. Accomplish things without any agenda."
People often think it's women encouraging women, but it's the combination. As you hear people's stories, you find out a lot of times there are as many influential men in people's families as there are women. It's how the synergy comes together. I was a little kid. I'm not very big as an adult. As you can see, any power I have probably has to come more from the power of my personality or position.
I realized fairly early on that I wanted to go to Stanford. I made up my mind I wanted to go to Stanford. I became fixed on that, but when I was a senior in high school, a judge who was a father of a friend of mine asked me what I was going to do. I said, "I'm either going to be an English teacher or a lawyer." I was an English major in college. When I got further along, and I did do the honors English program at Stanford and heavily emphasized that it became apparent to me that I didn't feel that I would have the power of a position that I wanted as an English teacher.
For whatever reason, I didn't think as many people would listen to me. Somehow, my Spanish grandfather always wanted a lawyer in the family. I was the first to go. I felt that the law had great power. I felt that I needed a power of a position to impact, do the things that I wanted to do, and make a difference. I felt that was not going to be right for me. I needed some power. The law had power. People would listen to me.
Early on, I realized I like to be at the pointy end of the spear. I don't like being the person that everyone is always telling me what to do or to be in this supportive position. Law seemed like a profession where I could be out there. I could be in charge. I could be the boss. It sounds fundamental, but I knew that about my personality from when I was very young that I wanted to be the boss. I envisioned myself as a benevolent despot and that I would be a good boss and a good queen, as it were or Glinda the Good Witch.
I knew I wanted to be in a position where I could make the decisions and I wasn't always supporting other people. That's what appealed to me about law school and the law. I somehow always felt that I wanted to help people. That was important to me. I felt that my strength was in speaking for others. As a kid, my parents encouraged me, "If you think that, tell someone about it." I always was the person that stuck up for other people, or if there was a point to be made, I was out there making the point and probably sometimes to my detriment, but it was a good combination for me to meld the law with that.
As it turned out, it has been a good profession for me that way because I much prefer to be the decision-maker. I much prefer to be the person, even as stressful as that can be. I would rather be the one that makes the mistakes but at least have the opportunity to make the mistake as opposed to always being in a supportive role. I always had a little drama in me. Early on, I took dance classes. They had to pull me off the stage because I was never quite done performing.
The law gives you that front and center to be out there and to do it. I saw that the gift of gab and the gift of performance melded with my intellectual. I was always a good student. I was motivated, "Why would I want to get a B when I could get an A? Show me a good loser and I'll show you a loser." I wanted to succeed, but I felt it was for other people too. I felt I could help other people. That's why the law was appealing to me. It's naive, but it was simple. I knew myself. It was a good choice.
That's an important point. It's something that others have talked about, too, in terms of knowing yourself, your strengths, the things that you enjoy doing, and how that all fits together. It's more than thinking, "I would like an intellectual challenge." It's a combination of things, including, "This is a good combination of things I'm good at too." I certainly have that experience myself. When I was doing trial work, I realized that I didn't enjoy that. I was much more suited to appellate work, as it turned out. It's your personality, what fits, as well as your interest.
My mom always described me as an old soul. I remember being a young child. I felt like I was watching people in their train wrecks. I would think, "That's not a good idea." It would be an adult thinking, "Why are they doing that?" I went my way through it, but I have found that I pretty much see the pitfalls of things. I had naturally good judgment.
I was naturally a good evaluator. I could see when no good would come of something. Probably most of the people that work with me would describe my strength as more as I can come into a situation. I can cut to the chase. I see what's important. I'm very capable of drilling down quickly as to what issues are and what truths are and evaluating people and situations.
I had confidence, but I also had a certain amount of humility that I realized, as human beings, we all are infallible. We have our failings. In recognizing the importance of making wise decisions and getting to the right conclusion, I always try to surround myself in situations where I have other people weighing in. I'm trying to listen to other people so that hopefully, I'm right because I know how important it is for the people you judge or the type of jobs I've had to be right.
We all are infallible. We have our failings. Recognizing the importance of making wise decisions and getting to the right conclusion, surround yourself in situations where you have other people weighing in.
That meshes well with the Court of Appeals position because you are working collaboratively. You're not the only judge making the decisions. You get all of that input. If you work well in that environment, then the appellate position is very well suited.
I enjoy that part about appellate work. I like having colleagues, working with law clerks, and doing all of that, but I'm not going to lie. I loved being a trial judge and a trial attorney. I loved never knowing exactly what was going to happen next and the quick draw of it to responding quickly a little bit. If you're watching Top Gun: Maverick, you're maneuvering. You have to act quickly. You're testing your instincts.
I liked trial work because I like people. I liked the grounding that it gave me that these are real people and real lives. I like managing things a little bit. It's a little bit like running a circus when you're running a trial somehow. You're trying to keep the train on time. You've got jurors, lawyers, and witnesses. You have all of those things, plus all of the things of human nature.
People might not know this about me. When I make decisions, I make them based on the law and the facts to the extent that people are involved. I make myself feel how the people feel and what are the important parts. As a trial judge, you have to sentence people. I found that more painful than I thought. I had been a prosecutor for ten and a half years. A lot of people are in prison for a long time because of me. Asking a judge to sentence people to life without the possibility of parole or asking jurors to come back with the death penalty was different than when I moved over to be a judge and the final arbiter of it.
I was surprised at how much it pulled on my heartstrings. Even though I handled the emotional part of it appropriately, the pain in trial courts is palpable. Dealing with the people you're locking up for the rest of their lives or the people who have had someone in their family killed by a drunk driver or murdered takes a lot out of you. While I miss the excitement of trial work, I don't miss the pain every day of seeing people as they're litigating things.
You know as a lawyer that going to court is the worst experience people can have in their lives probably. I always say, "Don't go to court unless you're the judge or the attorney. If you have to go or if you have to be a party, hire good attorneys." It's a very painful experience for people to have to litigate their business and their personal problems or be subject to the criminal justice system. It's hard. It's something as a judge you have to be mindful of.
That's an interesting point, the way you framed it in terms of how there's an immediacy to all of that when you're in the trial court or on the trial bench in particular. The people are right in front of you. Their families are right in front of you. That emotion is part of the room. It's part of that atmosphere as well. You're looking at the particular person. You're making these decisions and who they will impact. It would be hard not to have that affect you in some way.
You should. It's not as much the legal acumen that you need later at the appellate level because the law is fairly familiar in many ways, but you have to be wise because sometimes you have to decide. People waive jury trials. They want you as a judge to decide who's telling the truth. I've had people waive a jury trial on a murder case. I had to decide whether the person was guilty or not guilty. There was a not guilty by reason of insanity plea. The impact weighs upon you so heavily.
Anyone that tells you that you're 100% sure, people can be very good liars. Sometimes it's, "He said. She said." You have your tools. Hopefully, you're a good judge, but people can lie. Judging credibility or what you have to do in the trial court is so difficult. Some people aren't good at that. For example, you see that with jurors. When I was selecting juries, I rarely wanted people that had PhDs or were educators or that sort of thing. A store clerk sometimes is better at evaluating credibility. A mom sometimes can tell which of her kids is telling the truth or not. That's the skillset in the trial court.
Even though judges need to be familiar with the appropriate law, you're called upon to do so many other things. You're called upon to judge character, what's the right sentence, credibility, and so many other things. I always say, "Wisdom is the key in the trial court. Your legal acumen is more the case when you're doing the appellate issues." My heart does not hurt nearly as much since I left the trial world, but there's nothing as satisfying as people when they tell you that you made a difference in their lives, you changed their lives, or they turned their lives around because of you or your decision.
One of the hardest cases I did when I was on the superior court was a move-away case in a Family Law situation. They were both good parents, but the mother had the primary bond with the children. I allowed the mother to move away. I worried about that. I knew I was interfering with the father's relationship and the ability to see the child. It was pre-COVID. I went to a drug court graduation. I frequently go to those to stay connected.
I saw this man across the room. I immediately recognized him. It was twenty years later as the father that I ruled against. My heart sank because I had always wondered all of those twenty years, "Did I make the right decision?" He came running over to me. He recognized me as well. He told me, "It all worked out because she moved away. She came back, and then I was able to have a relationship with my kids."
I said, "I thought about that case so many times. This means so much to me." His son was graduating from drug court because he had a drug program and he was doing well. That was one of the best days of my life coming back together. People don't think we worry about cases. I worried about it all the time, "Did I get it right?" They had that family come out. I was able, by chance to get that circle closed.
That's remarkable because you don't often get that opportunity. That's affirming. It closes the whole circle for you. The point about that at the child level, in particular, is you can have these significant impacts on individual lives and how that ripples out into the community, the family, and all of that. It is maybe one person, but that person has a lot of other connections, both familial and community-wise. What an impact you can make by helping someone along through a difficult time. I've seen that in the drug courts and collaborative courts here in Orange County as well. What a sparkling ending to many of them. You go, "It was so nice that the court could be part of that."
I don't think people realize how much we worry. We do the best that we can, but they think that the door is closed and we never think about how the story ends. I can tell you as a judge my personal story, but I know other judges. There are things where you feel you made the right decision and gave it everything that you had, but nothing is 100% certain.
Getting to see it play out, having that reinforcement, and finding out that you called the ball and that the story ended well is so important. To everyone out there that reads this, we do worry. We do care. There's so much that goes into making decisions. In every trial that I did as a trial lawyer and every trial I did as a judge, I left a little bit of me in that courtroom.
If you put your heart and soul into it and if you are fully into something, that's true. How did you decide to join the bench from being a trial lawyer?
For ten and a half years, I sat in the courtroom every day. I was in trial back to back all the time, but even when I wasn't in trial, I was going to court on my cases. I went to court every day. I got to see a lot of other judges. It's interesting. When you're a trial lawyer, you don't see other lawyers as much, but you get to see how other judges operate. Sometimes I remember thinking, "Why doesn't the judge know that? It's so obvious. Why don't they know that?"
I realized later, when I became a judge, that good judges make it look a little bit easier than it is. You're required to know so much in many areas of the law. Simplistically, I looked at what they were doing and thought, "I could do that with a little more confidence perhaps than maybe I should have had at that particular time." It interested me, but it was an evolution. I wasn't one of those people early on that said, "I want to be a judge." I wanted to be a lawyer. I wanted to do trial work. I wanted to help people. I wanted to do all of that. It evolved. I saw it as a natural progression.
Being a good judge, the judges make it look a little bit easier than it actually is because you're required to know so much in so many areas of the law.
As a trial lawyer, I had a very good reputation with the court, but I had never been a particularly politically active person. Our idea in my family was you always voted. You were always informed. You were involved in your community. I was always involved with a lot of student groups, women's groups, and the women's center. I started the Child Abuse-Sexual Assault Unit when I was at the DA's office. I'm making the courts a better place for children, starting a child advocacy center, and all those things.
I always was involved in community issues. I was president of the Child Abuse Prevention Council, but I wasn't political. I never worked for a governor. I didn't work for a president. When I decided that I wanted to become a judge, I realized, "I applied to state court first. A lot of these people know the governor. They have been involved in politics. They have worked for a governor."
I was a little slow getting out of the starting blocks. It didn't happen right away to me. When I mentor people about being a judge, I tell them, "It's a process." My community involvement and my ability as a lawyer served me well, but my political contacts were not such that I had a direct route. Fortunately, I was in San Joaquin County. It was different than Sacramento because not so many people worked for the governor there.
What I realized is I'm never going to be a force in politics because that's something, but I had to get somewhat involved. I had to get to know people that were. I had to get them to support me and tell the governor that I would be a good person to appoint. I was a good lawyer. I was involved in my community. I could pass all of the evaluations and those types of things, but I didn't have the political context. I needed to get to know people that did and convince them that I would be a good judge.
How did you do that? I'm curious.
I would go to political events. I learned that I had to meet with people. I had to let people get to know me. I had to ask. Strangely, it's hard to be an advocate for yourself sometimes when you first start doing it, but most of the time, if you ask people to help you and you're not asking them to do anything that you wouldn't do or that you haven't prepared for, people will say yes quite a lot. Most people are afraid to make the ask or they think things come to you.
I've always been appointed by Republican governors or Republican presidents. We had in San Joaquin County a very prominent Republican. I came to know this person. He thought that I would be good at the point that he decided to endorse me. He passed away now. His name is Alex Spanos. His family still owns the Los Angeles Chargers. They were big in business, but he was also involved in a lot of philanthropy. He was from Stockton. He cared very much about Stockton and about Stockton having good governance.
Somehow I convinced him that I could do the job. As I did the job, continued to do a good job, get other jobs after that, and show that I was capable, he probably was happy. He became a friend. If you ask people to endorse you, you need to do a good job. You need to make their words good and whatever it is. That goes across whatever parties you are or people in the community. Don't ask people to endorse you if you're not going to work your hardest and be your best at it.
He was one of those people who said, "Be a good judge. Be fair. Do the work." That was a very significant person in my professional life that was the wind beneath my wings to move forward. Before I did that when I first put in for judge and didn't get it, the person that I was in the finals with was a commissioner in San Joaquin County, which is the Judge Judy job.
When he got the job because he had better connections than I did, I applied for commissioner. You were selected by the judges there. They all knew me and my work. I became the commissioner. I was the commissioner for five and a half years before I became a judge. I'm different than some people that you will probably talk to. I started with no political contacts and no lawyers in my family. I had to learn how do you do this.
People make fun of Judge Judy in some ways and judges, but there's something brilliant about her. If you've been a commissioner, you've done small claims and traffic, and you've dealt with large courtrooms of pro per or pro se, people are there. Learning to help them tell their stories and figure out what the law is for them and who should prevail was the best way for me to start.
I've had a lot of people tell me throughout my career how easy I am to talk to, how I can drill down on things, or how I get to the point and let people tell their stories. I attribute a lot of that to being Judge Judy, as it were, dealing with people that had no legal skills and having to sort out how am I going to hear a million cases and how people tell me what they need to tell me, make decisions that are correct on the law when they don't even know what the law is, and get them on their way.
That was an invaluable experience. I never knew what was going to happen. Some days you would tell people, "I learned a lot about things I would not do again." You always try to keep the courtroom calm and try to keep people so that they're staying on point. You would say something and see the temperature go up and people go wild. I think, "I'm not going to say that again."
Sometimes you would think that people would be able to accept the ruling that you make even though they confessed to you or told you that they were responsible but then when you told them that they were, they would go ballistic on you. I learned great courtroom control. I learned a lot about communicating with people and giving people bad news that they don't want to hear. Even though the cases were not huge cases, it was the most important thing for people that day.
When I found people guilty of traffic tickets, I tried not to say the G word, guilty. I would try to say, "I've heard the evidence. I'm convinced beyond a reasonable doubt that the offense did occur. I'm going to sustain the conviction. I would go forward," but somehow when you say, "You're guilty. You're wrong," you had to learn to tell people in a way. They knew they lost their case, but somehow give them the dignity to walk out of the courtroom in the same way that they walked into the courtroom and not to make them feel less important because they didn't win.
You have to learn to tell people in a way that they know they lost their case, but give them the dignity to walk out of the courtroom in the same way that they walked in and not make them feel less important because they didn't win.
That's particularly true when you're talking about those kinds of calendars where a lot of people are there while your case is being decided. All the other people waiting for their cases should be heard. There is a sense of not only internally whether they feel good leaving the courtroom, but there's a whole audience, as you indicated, that's there.
As a lawyer, that's not relevant. You cannot tell a pro se something that's not relevant. You have to tell them, "This is important to you. It would be important to me if I were in your position, but these are the issues that I have to decide. What I need you to talk about to help me is X, Y, and Z." I haven't told them that they're not relevant, but I've told them what they need to do to prevail. It makes all the difference in the world. I think of the things that people taught me in watching their responses and how to allow people to have dignity. You have to get the right answer, but they also have to feel like they were heard. That's tricky when you have a lot of people. You have to move a lot. You have to get it done.
It's interesting what you said about that experience and learning how to do that. Those are some serious soft skills that are not necessarily law school skills. It's having learned those and worked through that, and then how that has continued to impact how you are on the bench, whether you're even working with your colleagues or asking questions to the appellate lawyers in front of you now.
I was a natural cross-examiner. When I see my opening, I'm in for the kill. I took to that naturally. I did it for ten and a half years. When I hear things that are clearly not true, I had that tendency. Many times, if you're doing a trial, you have to do that, but I've realized in oral argument that I've adopted a different personality. I have to fight my sense to not back people into a corner because lawyers sometimes will say things that are clearly not true. It's not in the record that way.
In two seconds, I could have them in a corner like a dog putting their nose in there, but in appellate arguments, I try to dial that back about my personality. Every now and then it comes up when people are telling a lot of things that aren't true. I can't take it anymore, but for the most part, I've realized that for people to be effective, my being intimidating does not help them. They came to say certain things. I need to hear what they want to say.
Even sometimes, I always say this to my staff, "A stopped clock is right twice a day." Even when someone doesn't seem to be making any points, there's usually a kernel in there. You could be there arguing. You could have your client in the audience. For judges to make it seem like you don't know what you're talking about or to take you down a peg, I don't think you are not going to leave feeling good. Your clients aren't going to feel good about you.
I'm still going to decide the case based on the law. I want your best help for me. Recognizing that I have the power in that situation was an a-ha moment for me. I said, "I don't need to humiliate anyone. I don't need to cross-examine people for the most part. I need to let them say what they came to say. If I have certain things that need to be answered, I need to make sure they're answered before they leave."
I fight my regular personality to get to the truth of things and make it an environment where people feel more comfortable, be more helpful to me, and feel good about the argument that they made. Occasionally, people come in and you realize they're pretty clueless. It's sad. I feel bad for the parties. I realized they're out of their league.
There's nothing I can do to help them, but what I will do to help everyone is read everything. We read the record and research the law, despite whether the attorneys do it or not. We're going to still do our job, but when I realize someone can't answer questions and they're not going to be helpful, I lighten up on them and let them talk. I will ask fewer questions.
I'm sure you can relate to this. I always worried about this as a trial lawyer. What if you freeze? What if you can't? You're frozen in space. I've had a couple of people freeze when you ask them a very obvious question. One of them was perhaps the longest silence I've ever heard of oral argument history in all my years. I finally suggested an answer for the person because I felt like I had to break. They were paralyzed.
I'm not going to help them win their case. I'm going to still decide the case, but if I see that someone has had a frozen moment or that they have completely lost it, I'll usually suggest an answer. My heart doesn't want them to die a million deaths out there. It doesn't affect the result. I'm not going to save anyone from the result of the law. I'm not going to do that, but I try to maintain the dignity of everyone that comes in. If I ask you hard questions, it's because I know you can handle it.
You're still going to decide things based on the record and the law. You are going to do that. There's no point in being gratuitous with someone and making it particularly personally difficult for them, especially if they did have a moment, "What will I say?" It sounds like the empathy you gained from the trial court and the commissioner roles are going through your work on the Court of Appeals too.
I always have a cheat sheet of some sort. I always figure if I froze, I have something that I can pick up. There's some segue. When I coach people, I always say, "You've always got to have a few go-to's because if something like that happens, if you're making an opening or a closing or doing that, jot down what you have to say before you leave or jot down something that will pick you up and get you back on task."
That's recognizing that people do have those moments. It's also recognizing the stress of the courtroom. I know a couple of people that have passed out in court. It's a very good friend of mine who's now a judge. She was a public defender. Her client confessed right at the end of the trial on the stand in front of the jury. It was caught that day. She went down. It was so shocking. Who would know?
Who knew that would happen? Let's talk a little bit more about oral arguments. Do you have particular tips for appellate advocates in terms of presenting arguments or things that are more helpful? Answering the questions and not freezing is helpful.
I always start with people from this standpoint. You can never be too prepared and too professional. Whether it's a job interview or going to court, you never hear people say, "That person was too prepared. That person was too professional," but there are so many times that we go back in and think, "Why didn't they know that? What were they thinking?" You have to prepare.
You can never be too prepared and you can never be too professional.
It's a small period. You may come out of it and feel like, "I didn't get to say everything that I said." If you knew the answers and you were able to answer every question and be responsive, and they didn't mention a case that you hadn't heard of that was dispositive, you have to realize don't be disappointed that you didn't say everything that you wanted to say when you went in. You may have had a good oral argument if you answered all of our questions because we're going to decide your case.
Be a little flexible on that point. Pick a couple of things, maybe 2 or 3 points, that you have to make either at the beginning or the end and then plan it so that there will be no questions and that you will use the whole time. When questions start, then the dance begins. You have a partner. The judge is playing the lead. You've got to answer the questions. Not answering the questions and not following the lead is a failure on your part going in.
Make your expectations. First, start with being prepared and professional and plan what you're going to use the whole time. When the questions start, start dancing and follow the lead of where people want you to go because they're going to decide your case. Try to read the room. Some people can't tell. I can watch most oral arguments, whether I'm in it or someone else. I can tell where the judges are seeing the pressure points and where they're focused.
Good oral advocates know. For example, one person that does a lot of Supreme Court cases was a former solicitor general, Paul Clement. I mentioned to him that I had a case where he was arguing in front of me. I'm sure Paul had read everything that all of us had written on the particular issue. Paul knew I was going to be the deciding vote. He figured that out. Paul was laser-focused on me and convincing me. He was so right about it because it ended up being a 2-1. I was the person that could have gone either way.
We're human. To the extent that you can figure this out, I try to figure my colleagues out because I have to get a second vote. I have to be able to count to two if I want to be in the majority, or if it's an en banc, I've got to count to six. I need to understand my colleagues, how they think, and what issues are important and in a sense, be an advocate myself with them if I want a position on the law to prevail.
As an advocate, you should be doing the same thing. Study us. Read the room. Follow that. Occasionally, I've seen people snatch defeat from the jaws of victory. They're winning, and then they tank themselves. After knowing your case, learn to read the room and learn to know your judges. I also think if it's an area that we haven't published in or an area first impression we're probably going to publish, subtly tell me how to write the opinion in the way that you will win and how the cases lead to a certain result.
I've asked people sometimes, "If you want me to reach that result, how would I write that opinion? How would I decide the issues to get there? What would support your argument?" Sometimes they look shocked, "I don't know." How can you ask me to decide a case in your favor if you don't know how I would write it? I have to write it. The first time you go, you're going to be terrified. Live through it and survive it.
I remember my very first jury trial. I ran back to the office and told my boss, "I'm going to die. I'm not having a good time." He said, "I never told you this would be fun." I said, "I thought once I got warmed up, I would feel better." Seventy jury trials later, I still was terrified because there was a lot at stake, but I was terrified and more knowledgeable. It's interesting. We have law students that sometimes will present cases from a clinic. They get prepared by their law professors. They do a lot of vetting.
It's amazing. They do as good a job as the top 20%. I'm shocked that lawyers don't vet more, "You should moot yourself and prepare." If you do that, your oral argument will honestly be okay. You don't need to be a reverend giving the Sunday homily. Everyone jumps up and goes, "Amen. Hallelujah. You win." That's not the way that it happens. If you are prepared, you know your case and the record, answer the questions and have the law in your favor, you should win.
If you are prepared, if you know your case, if you know the record and you answer the questions, if you have the law in your favor, you should win.
I'm glad to hear you say that about the law school clinic students. I've been teaching in various clinics for years. That has been my experience too. They're way more prepared than the amount of time that you would be able to do that as a lawyer. Almost every time, I have the students in the spring semester saying, "What else are we going to do? The oral argument is in April. It's January." I'm like, "That's what you're doing this entire time."
The only time they falter is if there are more nuanced questions. Sometimes they don't know how to play a little bit as far that goes but I've found them to be right on with where things are in the record and what the law is. They're very good about that. If you're preparing people, you do a great job doing it. I always look forward to students. I tell them at the end how they performed, not the merits of the case. I'm pleasantly surprised at how well-prepared, sophisticated, and better they are. I say, "You can come back anytime and be in front."
It is so great and confidence-inspiring for them as well to have argued a case in court prior to graduating from law school and then to have some positive feedback from the judges about how they did. I hope that will encourage them to continue to prepare as hard and do that once they get into practice.
Even I would tell people, "It's nothing. You take it very seriously. You're going to be nervous but also try to have a little bit of fun." When the arguments are spirited and going well, it can be fun. You're playing verbal judo and doing all of that. There's nothing wrong with looking like you're having a bit of a good time and enjoying that.
When you get out of it and survive it, and nothing bad happened, give yourself a good pat on the back because it's not easy. When you go to court and do a jury trial, whether you do oral argument, you're doing things that most people would never force themselves to do. You're jumping out of an airplane and pulling the chute. Doing what you do and going to court takes a lot of courage.
I have the same experience still. In my first appellate argument, my client looked at me and was like, "Are you okay? Are you going to faint before you get up to the lectern?" Once you're there, you get into it. You're engaged. It all disappears but still, to this day, I'm still nervous before I stand up. That's a good thing because when you're not nervous, then that means you're not putting all of yourself into it. Maybe you need to be doing something else.
You have no business being there if you're not nervous because the court is important. The results are important.
"I still care about this. This is great." I don't know if people think that. I hope it's helpful for people to hear that. Everybody gets nervous even after so many times that you've done it because you care both about the law and the people.
You learned that you can be terrified and still think. You can still perform. I know that everyone is good at what they do. They feel the same thing. There's nothing like winning a case to make you feel like you want to do it for the rest of your life. If you lose a case, then there's nothing that feels that bad. I have a funny story about when I was trying cases and my children were young. I tried 70 jury trials. Of those, I lost four. I can still tell you everything about those four.
I came home one day after I lost a case. The kids were sitting there. My husband was there. The kids were wearing black armbands like when someone dies. My husband told them, "Your mother is going to be in a bad mood." They all had their black armbands. I looked at it. My daughter looked at me and said, "I told you she would not think that's funny." I had no humor about losing whatsoever, but it's part of it.
As you look back, when something doesn't work, you deserve to lose occasionally, or sometimes you learn from that. The next time you do something like that again, you're better at it. I always like to debrief, "What could I have done? What could have gone better?" You win. You were good enough. That doesn't mean you can't be better. You should never rest on your laurels, whether you're a judge, a lawyer, or anyone. Even when you did great, enjoy when you have a good moment. Don't ruin it. Always strive to do it better the next time.
I think of it that way too. Early in my career, I started the practice, however painful it might have been, to listen to all of my arguments and see, "Now that I have a little distance from it, let's critique things and try to improve each time by listening to them." It's also listening to people that are great at oral argument. Dissect it, "What is it that makes that so great? Why is that effective? Is that something that I could adopt?" It's always wanting to improve, grow, and learn all of that.
It's always hard to watch yourself, but it's good exercise.
Although I put it in the category of what I do before oral argument on all of the briefs, I have a dispassionate read even of the brief that I wrote saying, "Let's look at this and tear it apart with whatever kinds of questions I might have. If I were on the bench, what would I ask? Where are my weak points?" Try to be as distant and dispassionate from that even though you're invested in that brief as possible. Critiquing and seeing where you could do better is the same thing. You have to have that distance so that you can do better for your clients in the long run. What about brief writing? Do you have any tips or ideas for advocates that is more helpful than not?
People think that we see a lot of great briefs on the Ninth Circuit because we are directly under the Supreme Court. My extern, who's a law student, said, "I'm shocked at how bad a lot of the briefs are." I was on a panel where we were speaking to law students at Pepperdine with two of my colleagues. We both shared. The number of terrible briefs is shocking. One of them said, "Brief means try to be brief. We roll our eyes when something is so huge and overwhelming."
We know it takes a lot of time to distill something complicated into something understandable. Take the time. We can recognize it when you do it. A lot of us were talking. I start with the blue brief or the appellant's brief and then go to the appellee. Sometimes I don't even look at the reply brief. I'm done by then. I look at it many times, but it doesn't tend to influence me in the same way.
I like to look at the briefs in a way that if you make it your goal, I want all the facts in there that are relevant for my decision, the good facts, the bad facts, and everything. What is the background? What are the facts there? I want all of the relevant laws, even the law that's against you, particularly the law that's against you. I look at it. If it's a good brief, I know what the case is about and what the law is. I can focus on the issues and then decide.
An analysis isn't as hard for us as trying to marshal the facts and the relevant law to the extent that the research, the facts, and all of that are correct in the briefs. It's wonderful. If I get halfway through a blue brief and I don't even know what the case is about, I go to the red brief and see if the red brief is going to tell me what it's about. My colleagues will all tell you they do the same thing.
If you want us to read your brief, you need to tell us what the case is about and everything we need to know to decide on it. You can argue how we interpret all of it. We know that people misrepresent things. When you cite to the record, make it easier for us to check. When we find out that something isn't where you say it was or that the case doesn't stand for the proposition that you've said, your credibility has plummeted incredibly. Your brief becomes much less effective.
Nothing can be too well-written. Nothing can explain the issue too well. It's a pleasure to have good briefs. We mostly don't get good briefs, but some are so awful. Most of my law clerks don't believe in the death penalty, but they would believe in the death penalty for bad briefs. When you write bad briefs, we have to do everything from scratch. We will do it because we have to get the right answer. That's our job.
When you write, nothing can be too well written, nothing can explain the issue too well.
It goes up geometrically how difficult our job is. We can't help but be a bit annoyed, but I'm not going to tell you in the end. If you did a terrible job briefing, are you going to lose? We're going to get the right answer no matter what, but there always is a chance that it's a sophisticated briefing. When you get credibility with a panel, and it's a close issue and you weave it together so beautifully, does the tie go to the runner? Probably so. We're human beings.
On the Ninth Circuit, you're not guaranteed oral argument. If your brief is terrible and you leave out important arguments, and God forbid we might miss it or something, then you may not get the opportunity to argue the case. Your case will be decided and submitted in the briefs. You will get what you ask for. It shouldn't be that hard, but it is hard because probably the excellent briefs are about 20%. The bad briefs are about 40%. The ones in between are adequate, but nothing that we comment on.
A lot of times, after we hear oral arguments, we go back and talk about you because we have to decide the case. We will talk about the jobs that you did, what you didn't bring up, what you did bring up, and how well you did. On the Ninth Circuit, a lot of people think that oral argument doesn't make a difference. It does on the Ninth Circuit because I was also on the State Court of Appeals. On the state Court of Appeals, we wrote our decisions before we even went to oral argument.
I can only think of one time in six and a half years that I changed my mind. I was talking with Judge Bumatay. He keeps track of the number of times he changes his mind. He has only been on the court for two and a half years on the Ninth Circuit. He says he changed his mind twelve times. A lot of times, we write bench memos that we might exchange, but we don't conference about the case.
We hear oral arguments and then go back and talk about them. We come in with a tentative view, but we haven't written an opinion on the state board. When you have oral arguments at the Ninth Circuit, that means at least one of the judges wants to hear from you and has questions. Don't leave any cards on the table. You've got a chance to convince that panel.
I've heard many times in oral argument people come in and say, "I was a tentative affirm but after I heard the oral argument, I want to go back and look at this. I've changed my mind. I see it differently now." If you're arguing at the Ninth Circuit and the court has told you they want oral arguments, bring it on because it's all on the table.
Understanding the differences between the courts is also important between the state court in California and the Ninth Circuit where there are drafting of opinions before the argument. Even though the parties can ask for the argument and get it, there has clearly been conferencing and a draft opinion prior to your arrival and argument. That's completely different at the Ninth Circuit.
As an appellate advocate, once you write something, it cements you because you have to pull it all together as opposed to when you're considering the case. Sometimes things don't write, but at the state court, when they have written an opinion, it wrote. At least two people have signed onto it. The process is further along.
As a judge wanting to persuade other people, if I get a bench memo I don't agree with, I'll send a comment memo because I want people to keep thinking and be fluid. I find the more entrenched people get between judges, the harder it is to change their minds. I want to change minds sometimes too. I might be your best advocate back in that room. You never know. If you pick up that on oral argument, then certainly go with it.
I've seen the same thing. I can see that something made a difference in terms of something I said or that my colleague on the other side said, "That's a different way of thinking about this. I've looked at it." You can see. That part of the argument made a difference in terms of how the case was perceived.
When you're the appellee, you've already won. If something is submitted on the briefs, I'm going to tell you probably 99% of the time that you're going to win again if you're the appellee and if it's submitted on the briefs because no one wants to talk about it, but when someone says they want to talk about it and you're the appellee, don't go in there thinking you've got it all going your way. I see that shift fairly frequently at the Ninth Circuit. It's hard to explain to your client why you won below, and now you lost.
I think of it the same way in terms of an argument. If you're the appellee, there are some questions that at least one judge has with regard to the record, the law, or something. That could leave an opening for the appellant. You want to be aware of that, try and figure out what might that be, and be prepared. If you're in the appellant, you're like, "Yay."
They might want to hear it, but everything is on the table. Whether it's applying for a job or going in on a case, nothing is done until it's done. People that start counting on things before it's done are very foolish. It's never over until it's over.
It's carried all the way through. What advice would you have for those who might be thinking about becoming a judge at some point in their career? Do you have any words of wisdom for them?
I've probably done a lot of things wrong, and I'm still where I am. For example, I was eligible to do law reviews. I didn't do it because I wanted to be a trial lawyer. I never even thought about being a clerk because why would I want to help a judge when I could go in and do the cases all by myself? Those were not good judgments on my part. If you can do law reviews, do law reviews. If you can clerk for a judge, take the time to learn about the system, work on your writing, and have a good understanding of it. It's important.
I say, "I didn't do any of those things. Here I am." There are people that have done all of those things and they don't get where I am. You can make decisions that don't follow the mold. There are certain things. Doing law reviews, getting the best praise you can get in law school, and doing clerkships to the extent that they're available all prepare you well. Be a good lawyer. Make sure that you excel at whatever area you pick. If you have the opportunity to do criminal and civil, have as much diversity in your background.
If you love politics, then go for it. Take your poison. I started as Judge Judy. I had to work my way up through all of the things. I did the state court, federal court, and all of that. There have been appointments that were direct to the US Supreme Court or the California Supreme Court, but if you examine certain things, most of those people have very good political connections. They're good at what they do. I'm not taking away the substance of them, but they have the context that I didn't have.
If you love politics, pick your poison. When your party is in, you might zoom right to the top. When your party is out, you will go down right to the bottom. They will not pick you. Part of the reason for me is that I never wanted to be a federal judge. I wanted to be on the California Supreme Court. That was my goal in life. That's what I thought was the end-all and be-all. I never even thought about the federal system. That's how naive I was.
They came to me and asked me. Part of the reason that they came to me was that there was a Republican president and there were two Democratic senators. I don't know that I was anyone's first choice, but I was confirmable. I was a person of substance. I wasn't a political red flag for either side. I was confirmed. Sometimes there are other ways that you can get there. Be mindful from day one that you're out there and that your reputation is everything.
I would never have thought when I went through that you have to be evaluated by commissions. When I was evaluated by the FBI, they went back to when I was sixteen years old. I was 52 years old. If I had been a horrible person, they would have found out about it. They would have talked to people. Think about the wake that you leave behind yourself.
When I talk to young people, I tell them, "No good can come of using drugs and breaking the law." If you want to be a federal judge, know that you're going to have to account for your life from start to finish. It's a lot easier if you can tell them, "I didn't use drugs." I was so excited when I told the FBI agent I had a parking ticket. I never had a speeding ticket. I never had a moving violation. When you work in places, they will go back and talk to everyone that you worked with and lawyers on the other side.
You can't be a cheater. You have to be the person of the highest integrity because those things are going to sink you. If you are an unethical person, it will come out. That those are the type of things that sink people, not so much that you're a human. You didn't do everything. You weren't perfect your entire life, but if you're a prosecutor and you withhold evidence, that's very bad if you're doing civil work and you get a lot of sanctions against you, or you're not ethical in the way that you do your work and you're always getting disciplined or things along those lines.
You have to be the person of the highest integrity, because those things are going to sink you. If you are an unethical person, it will come out.
Be a boring and good person. Be a goody two shoes but do what you want and what you love. I have loved everything that I've done. Therefore, I was good at it because I was passionate about it. Do things other than what benefits you. Do things in your community. Do things to help other people. Do things to improve the law and justice system and bring credit to that. They care about if you're a member of the local bar association. Do you do pro bono work? Do you help other people? Do you mentor people? It's all of those things.
My parents emphasized that we needed to be good and honest people and be people of substance. Those things necessarily followed me. Not everyone has that background going into it. If you don't have that good support system, or maybe you don't come from a family that's very supportive of you doing well, get mentors that help you make good decisions along the way.
If you get into ethical dilemmas, talk to someone about it before you make a mistake. Be the best lawyer that you can be. Be the best person in the community that you can be. It's the politics or the icing on the cake for people that do that, but no one can ever take away from you the things you have under your control. Those are your ethics, integrity, and your work.
That's very good and well-rounded advice with regard to the whole process because some of it you do have under your control and some of it you don't in terms of timing, even in your case of the federal appointment, "This is where things work politically." People thought, "We have to have someone who could cross the aisle particularly. People would be okay if we're not of the same party."
I'm an example of not doing a lot of the typical things. Life turned out. I've had a lot of fun along the way. I love what I do. Most people would tell you that I've been a good judge in all of the judgeships that I've done.
It's good to find things that you enjoy because you're right about that. You excel at things that you enjoy. It goes hand in hand.
Governor Newsom, for example, has a website if you go on it that talks about how if you want to be a judge, you can get a mentor that's a judge to help you navigate that process. I do a lot of mentoring. Particularly, I've always done that, but now, I have a little bit of experience. I'm what they call an OG or an old gangster in the gang parlance as opposed to a new one.
I do a lot of mentoring because I don't tell people what to do, but there are certain things that make sense to be thinking about as you're preparing yourself to go through the process or even preparing people to go in front of the commission to answer questions about any criticisms they have had or preparing for an interview with the governor's office or the president.
You can always find people that will help you in that process. I don't care what party people are. I'll help them. I've made it my point to help people be judges if that's what they want to do and to understand exactly what's involved in the job. I learned it because I had to learn it. I didn't have anyone to tell me, but I pretty much learned a lot along the way.
If you were mentored and helped, the only way to respond to that is to pay it forward and help others with the knowledge that you gained through the mentorship or on your own to say, "I'm going to throw a ladder down to someone who may have been like me and didn't know anything about this process."
I'm very invested in the reputation of the judiciary. I've taught overseas and in other countries. In other countries, judges take bribes. It's expected that the person that paid the most is the one that's going to win in court. Our system is not perfect, but I've never seen that. All the judges that I've worked with honestly are trying to do the best job. They're reading things. They're not in their chambers throwing darts, doing Ouija boards, or trying to flip a coin, "Who should win?"
I see from the courts I've worked on the process that we give each particular case and how much goes into that. I want people to believe in this. We can't expect people to always agree with us, but I truly believe the people I've worked with are conscientiously doing the job the way they think it should be done and they're doing it well. Sometimes we're going to have to disagree, but I've never seen untoward actions behind the scenes. We're lucky.
It's important to me to encourage people that have those qualities to join the bench because I'm closer to retiring than I am to the beginning. You can make a lot more money being a lawyer. Not all lawyers make more money than judges, but by the same token, none of us is doing it to get rich. We're doing it because we believe that it's an important branch of the government and the system. We want people to have confidence in us. It's wonderfully satisfying, but we don't get rich doing it.
That's the service component that is involved as well. There's a personal sacrifice to that. It's important to make sure that the representatives of the bench and who the judges are will be the component that carries the system through, gives people confidence in the system, and then carries it through in the rule of law.
It's important to make sure that people are committed to those who are applying to the bench. That's interesting. It's paying it forward to people but also to the system that you've enjoyed and admired. Normally, in the end, I ask a few lightning-round questions. The first one would be this. Which talent would you most like to have but don't have?
I would like to be able to sing. I would like to be on Broadway, to heck with it.
You can dance well.
I'm a dancer already. I would love to be able to sing, do all of that, and perform. That's on my next life.
That sounds good. You have to keep adding on to the talent stack. That's good. Who are your favorite writers?
I tend to like biographies or autobiographies. Maybe it's because I've had to chart my path. I tend to like to know how people got where they are and how they see themselves because I do think that people that are successful share many of the same qualities, but they also have certain unique qualities. That's always very interesting to me. It could be historical. It could be about past presidents or other figures. I enjoy seeing the fabric of people's lives.
As you learn about them, people always assume that successful people are always successful. They don't realize many times where they came from. For example, if you read either Justice Sotomayor's autobiography or Justice Thomas's autobiography, they came from abject poverty and the segregated South. They had to overcome all of the adversity to be on the highest court in the land.
If you want to be successful, you have to be able to overcome adversity. It's learning how other people develop resilience. You think that they're so different than you. They're not. Maybe you didn't have good parents, for example, "It's over." There are so many ways that it doesn't have to be over. I like those stories. I generally like to be optimistic and believe that we have to be here. We probably were born with an expiration date on our behind. We don't know when it is. As long as we're here, we need to live a life of purpose. You need to figure that out. I like writers that help me see how they did it.
I'm reading the biography of Sandra Day O'Connor first, which is good. I started the biography of Judge Dorothy Nelson in your court.
It is unbelievable when you see what she overcame.
I worked with her. I knew a small slice of it but seeing it all together is remarkable. Who is your hero in real life?
I don't have just one, but I will tell you classes of people that are heroes to me. I am amazed by and respect, for example, first responders and military people. I see it as lost and I don't see it in the legal profession as much as I would like. It's people that have a purpose beyond themselves. It's people that will run into the building when other people are running out. It's people that will fight for our liberties.
I would like to see people in the legal profession that have purpose beyond themselves. People that will run in the building when other people are running out. People that will fight for our liberties.
As lawyers, we can do that, take cases, and fight for the individual rights of people that can otherwise defend themselves. That, to me, is heroic. I don't see that as much as I would like in our profession. We become consumed with our accomplishments. Sometimes people would use me as a shield rather than protect me. I like the people that go in despite danger to themselves and protect things that are important and beyond themselves.
My husband falls in that category. He and my dad were in the military. They were in wars. He was in law enforcement for over 30 years. He has a completely different mentality than lawyers do, for the most part. He's always looking. I can't tell you the number of times we have stopped to help people that are in distress at the side of the road. He does not drive by someone that needs help regardless of putting himself in harm's way.
My sister is another person. My sister is a school psychologist. She always fought for children. She has always been there for people that can't advocate for themselves. The family joke is that she could teach a chair to read. She works with children with special needs. She always puts them above herself. She had a lot of adversity in her life. She lost a child. I'm watching her still find joy in her life, persevere, and help other people.
I admire people that continue and think about other people despite what they can do. These are people that we don't recognize. I admire people who do things, never expect recognition, and often don't want recognition because they do it for the right thing. As lawyers, sometimes we always want recognition and seek it. There are people out there that do it without ever wanting it and ever expecting it. Those are my heroes.
It's the thing to do. Given the choice of anyone in the world, who would you invite to a dinner party?
There are a lot of interesting people. I would choose some of the typical people, but I would pick my grandson. He's whip-smart and hilarious. He calls me Lalu. I saw him. We moved so quickly. We're always going to go back and see how people form their personalities and how they're not an extension of you. I was doing party favors and stuffing red envelopes for a party. He was helping me. The party was the next day. He told me, "Lalu, you should have started this a little bit earlier." Here's a five-and-a-half-year-old telling me I'm not managing my time well.
"You need to plan this out a little more."
He likes doing boring things. What he was saying was that there is something in doing small things and accomplishing small things. I let him stay up until 10:00. We finished. He was encouraging me the whole way to do it. Sometimes it's going back to the basics, rounding ourselves in what's important, not seeing through our jaded eyes but seeing through our positive eyes, and being a little bit more of a clean slate. I would like that.
That's funny sometimes. There's no filter on the observations. The real perception is out there.
I needed to hear that. He was right.
That's awesome. It's very refreshing. Last question, what is your motto, if you have one?
I do have a general motto. It has to do with not allowing other people to limit you. Decide what you want to do, set your goals, and go after them. If you allow other people to limit you, then that's exactly where you're going to end up. If you allow other people to give you self-worth, you also give them the opportunity and the power to take it away from you. You need to see your value in and of itself and independent of everything else that is in the world.
It's not to say that you don't pay attention to other things that are going on, but you've got to have that internal sense of yourself and be willing to go for it. When I went to law school, there were less than ten women. If I had listened to where I should have gone, what I could have been, or what I should have been, I wouldn't have had all the opportunities that I've had. Have a sense of yourself and be true to that. Listen to other people but don't let them rain on your parade. You're special.
That's a great way to end. That can be a journey sometimes when you're a lot younger. Having that reinforcement helps but getting to the point where you know who you are and your core value is maturity. To carry that forward allows you to do hard things, be courageous about decisions, and not depend on what other people think about you. Thank you so much, Judge Callahan.
It's my pleasure.
I appreciated and enjoyed this so much. I know that the readers will too.
Thank you. If anyone wants any advice, it's free. I work pro bono all the time. I'm sure you can find me, but on the other hand, it is free. You get what you pay for.
I knew you were going to say that. I was like, "It's free." I knew you were going to come up with that comment, but somehow in your case, that's not true.
Thank you for doing this, sharing other people's journeys, and maybe showing other people. We all have our vulnerabilities, strengths, and weaknesses. In the end, you have to write your story. I'm not saying it to demean myself because I do have confidence in myself but to see my imperfections and how you can be an imperfect human is close to a perfect life.
I do think it will be inspiring. Your observations have been helpful and unique in terms of advocacy, what is helpful to judges, and things like that. That's also quite useful. Thank you again, Judge Callahan.
Have a great day.
Thank you. You as well.