John B. Owens
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Judge John Owens of the U.S. Court of Appeals for the Ninth Circuit discusses his career and path to the bench and encourages law students and new lawyers to consider judicial clerkships or externships to enhance their careers.
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About John B. Owens:
The Honorable John B. Owens serves on the Court of Appeals for the Ninth Circuit. Prior to becoming a federal judge in 2014, he was a partner at Munger, Tolles & Olson LLP (where he focused on white collar investigations and appellate matters), and a federal prosecutor for more than 11 years in Washington D.C., Los Angeles, and San Diego. He served as the Chief of the Criminal Division in the U.S Attorney’s Office for the Southern District of California, and received two Director’s Awards for his work there. The television show American Greed featured two of his prosecutions, and he obtained the longest sentence for a white collar defendant in the history of the Southern District of California in United States v. Cao.
Judge Owens graduated first in his class from Stanford Law School in 1996, where he was an Executive Editor on the Stanford Law Review. After graduation, he served as a law clerk for the Honorable J. Clifford Wallace of the Ninth Circuit Court of Appeals and for the Honorable Ruth Bader Ginsburg of the Supreme Court of the United States. His written work has appeared in the California Law Review, the UCLA Law Review, the Northwestern Law Review, and other law reviews. Judge Owens and his family live in San Diego.
Journey To The Bench
Welcome to the show, where we chronicle women's journeys to the bench, bar, and beyond, and seek to inspire the next generation of women lawyers and law students. On the show, I'm pleased to welcome Judge John Owens from the U.S. Court of Appeals, Ninth Circuit in California. John has an interesting background in big law and government service as well, and then service on the bench. He also has a beautiful way of encouraging others to consider things outside their kin, things that they might not have considered doing, including clerking and externing. I hope to discuss some of those things with Judge Owens. Welcome, Judge Owens.
Thanks so much. It’s great to see you.
I want to first talk about your journey to the bench a little bit and your career path and the role that clerkships played in your evolution as a lawyer and now as a judge. We'll then talk about considering those options and what that might look like if folks want to apply for those things. First question out of the box, what made you want to go to law school and become a lawyer to begin with?
A couple of things were the primary drivers. First, my father was a lawyer. I did not grow up with my father but I did see how his work and his hard work led to opportunities for him and for my family. I would visit him on the weekends. My parents divorced when I was very young. He was very supportive when we were kids. I saw that. I also saw how hard he worked and often kids don't want to do what their parents are doing.
I saw the trade-off. He worked at Borek, the big law firm. He also was the general counsel of Ernest and Julia Gallo Winery for about 25 years. I grew up with the Gallo family on the weekends when I would see my father and over the summers. I had a lot of respect for that family. A lot of respect for what my father did, but I also saw it was hard.
I was inclined not to want to become a lawyer, but then when I got to college, I started working for a basketball team, the Golden State Warriors. I worked in their business office. It’s not like I was hanging out with the players, but it is a basketball team, so the players are the problem. Back then, teams were a lot smaller so you would interact with the players in terms of the business side. I quickly realized that if I wanted to advance in the sports world, I needed to do something different. I was not a former NBA player. I was not the son of the owner. I was not Jeanie Buss, for example, with the Lakers.
I figured if I got a law degree, that might help in the sports world because I had seen that some general managers of teams and some teams had general counsels at the time. Teams are much bigger now. They're worth billions of dollars now. Now they all have this. Back then in the early ‘90s, they didn't. If the field of sports analytics, which is now a huge field, had existed in the early ‘90s, I think that's the field I would have gone into because I'm good with numbers. I'm very interested in those things, but that wasn't an avenue.
I applied to law school and I knew that with my dad and how well he had done. He was a law clerk for Justice Powell. That's something that we'll talk about in a little bit where that affected me. I saw how it helped him. Also, as I said, I saw the toll it took on him. I didn't want to do that type of law. That I knew. I did not want to do big corporate general counsel type of stuff. That's a great job for a lot of people, but that was not for me.
I went to law school thinking I would get a degree to work in sports. The thing is when you're that young and when I applied to law school, I just turned 21, between the time you apply or take the LSAT and apply and by the time you start school, that's a year or more. At that stage of your life, a year is a long time. At the stage of life I'm at right now, early 50s, there's not a huge difference between 51 and 52, but there's a big difference between 21 and 22.
By the time I started law school, I no longer wanted to do the sports thing. Part of that was because, in that sports world, athletes can be interesting individuals and a lot of them are great. Some of them aren't. In that world, if you have a team where you don't have maybe the best individuals on the team, your professional future is in trouble.
A lot of people's professional futures have been ruined because an athlete does something stupid. On that team, we had a guy named Latrell Sprewell, who ended up attacking the head coach of the Golden State Warriors. That happened after I left, but that's just to give you an idea. I didn't want to be in a world where my family's future was tied to whether Latrell Sprewell was going to choke the coach or not.
That's very wise. I think that your reality intervened and said, “Wait a minute, this might not be the most stable thing.”
I wanted to be in control of my own destiny. I went to Stanford for law school. While I was in law school, I started taking a liking to criminal law. I had a great 1L criminal professor guy named Miguel Mendez, who unfortunately passed away too young. He was a fantastic professor, a public defender originally, and a great guy. I was inspired by him. In the second year of law school, I took a class with Gerald Ullman, who was the Dean of Santa Clara Law School but was visiting Stanford. He was one of OJ Simpson's lawyers.
For the younger people who are tuning in to this show, I cannot stress to you what a big deal OJ Simpson was. Even before the trial, I cannot stress what a big deal he was. He was my hero growing up. I'm a Bay Area guy. He was a San Francisco guy. Everyone loved OJ. The whole crazy thing happened with OJ. He was accused of murder. I had one of OJ's lawyers. The guy who came up with the line “If it does not fit, you must acquit,” was Gerald Ullman. I was like, “This is what I want to do.”
What a combination of professors and experiences. That's amazing.
It was just luck of the draw. Professor Ullman was a visiting professor. There's no other reason why he was there. He was not part of the faculty, but the timing was great. I realized that's what I wanted to do. I also learned from my father that the better you do in law school, the more opportunities you're going to have. I worked hard in law school. That's one thing I want to stress to people. If you want to have opportunities in a legal career, you have to work hard. I don't care what school you go to, you have to work hard. I worked hard in law school.
If you want to have opportunities in a legal career, you have to work hard.
I cannot say I did well. I graduated first. If you graduate first, you're going to have some options. I ended up being a law clerk on the Ninth Circuit for Judge J. Clifford Wallace who is still on the circuit. He turns 96 years old this year. He's two floors above me right now. He was a great teacher about how to be a professional and how to take care of yourself. I learned a lot of things about exercise from him. How to be a professional, stay in shape, and take care of yourself, I learned from him. He's a Mormon guy, so right away he's not doing some of the things that the health-wise other lawyers do. He was a great mentor and continues to be so.
I then clerked for Justice Ruth Bader Ginsburg at the Supreme Court, another great mentor in terms of hard work. I thought I worked hard in law school. I had no idea what hard work was until I worked for her. She taught me that if you want to win, you cannot be the second most prepared person in court. You have to be the most. She had to do that because of where she was coming from, but it was a good lesson. For most of my career, I think I've done that.
If you want to win, you can't be the second most prepared person in court.
There are a couple of times where as a prosecutor I look back and say, “I should have listened to her a little closer because I got my rear hand to me on that one.” For the most part, I did that. I was very interested in criminal law. During both courtships, I always gravitated toward the criminal cases when I had an opportunity to work on them. I had a short stint at O’Melveny Myers in Washington, DC, which was a great place to work at the time. It certainly was back then, and I assume it still is. Walter Dellinger was the recent SG. He had started an appellate practice there. I launched there. Judge Sri Srinivasan of the DC Circuit was a fellow associate. Judge Pam Harris of the Fourth Circuit was a fellow associate. Shortly after I left to go to the U.S. Attorney's Office, Goodwin Liu joined as an associate. It was a crazy talented time. While I was at O'Melveny, I got to work on two trials. That's where it started.
That's great because that's hard to do at a law firm and as an associate.
Very rare. From there, I went to the U.S. Attorney's Office in Los Angeles. I should have mentioned I had a brief stint at the DOJ before I went to O'Melveny. Candidly, I didn't like it. I'm happy to answer the question as to why I didn't like that, but I wanted to be a trial lawyer. If you're going to go to DOJ, sometimes the trial opportunities are not as available as you might think.
That's what I was wondering about, the difference between a DOJ and a U.S. attorney's office and what experience you can get. I would think that there would be less of that at Main Justice.
There's no doubt that you have far more day-to-day court interaction as a line of a system than you do in Main. Now in Main Justice, there are some great opportunities that you cannot get anywhere else. I know law clerks who work at Main right now and they're having a great time there. If you want to be in the trenches, which is what I wanted to do, being a line AUSA in a local office is the way to go. I got an opportunity to be a prosecutor and we can talk about that. Clerking, which was the original question, was important. Certainly, it is why I have this job. No doubt about it.
Why do you think that? Is it because of the experience of what you saw and what you learned from the clerkship and what a judge does, or do you think it's something more than that?
I think it's both. On the political scale when I was being sold, did it help to clerk for Justice Ginsburg? Yes. Did it help to also clerk for Judge Wallace, who is known to be far more conservative? Yes. I could be presented as a bipartisan pick because back when I got nominated, you had to be bipartisan.
It all depends on the era.
Now, it's a very different world. Back then, you needed support from both sides. I think having clerked for those two helped. It also helped me in terms of being a judge, understanding how to prepare, understanding what cases require far more preparation than others, and identifying those cases as early as possible because it's not just me. I have a whole team of people. I have a judicial assistant and I have four law clerks.
At some time in the year, I have an extern. It's up to seven people all working together to help me get my job done. The more information I can give them early, the more efficient the job is going to be, so it's going to be better for everybody. Having experience in seeing how Judge Wallace broke down calendars on various cases helped me in doing it.
I guess combining that with the experience outside the court system in managing teams and managing workloads, both of the firms and in the U.S. Attorney's Office, all of those inform each other too.
Some of the best training I ever received was in the U.S. Attorney's Office about how to be a responsible leader. One thing that is similar to the U.S. Attorney's Office to being a judge and dissimilar from private practice, in the U.S. Attorney's Office, your main incentive is to do a good job on the work ahead of you. You're not worried about the economics of it. At a law firm, there's always the incentive where we can make more money if we do it this way.
As a government person, there is no incentive. You want to try to do as best a job as you can. Law firms do fantastic work. I was a partner of Munger, Tolles. They do fantastic work, but the more hours that are paid, the more money you make. That's not true in the government job. Some of the efficiencies you can learn in terms of managing people, you learn more in the government than you would learn in private practice because the economics is different.
There's also a sense of service to the public that's similar to serving on the bench, which you wouldn't have in private practice.
Absolutely. We're not doing this for the money. Compared to the average American, I get paid very well. I have a wonderful retirement system. I don't have to worry about my retirement. If I get hit by a bus, my wife is taken care of because of the way my retirement works. That's all very lucky. You're right. Did I take a massive pay cut to take this job? Yeah. You have to do it because you want to do it for the right reasons. That's the same as being an AUSA.
I have a question. I've been thinking about when you were at O’Melveny and you had opportunities as an associate for trial work, which I had too when I was at IRL, which is also super rare. I was wondering how did that come about? What advice would you give to lawyers in law firms who are more junior about helping make that happen?
Some of it was luck because I had that stint for a year at the Justice Department, which did differentiate me from other associates. There was that. The other thing and this is what I would stress, is that if you want to do trial work, you have to say it.
Ask. I figured that was part of it.
Here's the other thing. If an opportunity arises, you cannot say no. Maybe it's not the most convenient time. Maybe it's a city you don't want to go to. Guess what? If you want to be a trial lawyer, you have to go where the trials are. If you are a West Coast person like I am, and maybe you're not very familiar with Brooklyn, New York in the winter but that's where the trial is, guess what? Go to Brooklyn. This is where Brooklyn became like the she-she place. This is like the old Brooklyn.
If an opportunity arises, you cannot say no.
My point is that you have to make yourself available. You have to do it because the best trial lawyers, will go wherever the trial is. If you're learning how to do it for opportunities, you cannot say, “I have this vacation planned.” No, you have to go. If you end up being a parent or you're taking care of your parents, there are certain times in life when it becomes more difficult to do that. If you're at the time of life when it's just you, whatever your partner is telling you, it's like, “If you're with me, this is the deal. I have to be gone for two weeks for this trial or a month.” That's the deal. If you want to do it, you have to make yourself available and you have to go.
Also, even if it isn't the most glamorous role on the team because usually, you're not going to be cross-examining the key witness or whatever it is, there's so much you can learn from watching other parts of the trial and being part of the strategy and soaking all that in. Even if it isn't your favorite task, still go because you might even get to do more if you do a good job on that.
Some of the most I ever learned about how to be a trial lawyer were the two trials I did at O'Melveny. Both trials were with former AUSAs, both very experienced and seeing how they approached witnesses, how they spoke to the judge, seeing how they dealt with the other side was valuable. The best way to be a trial lawyer is to work on a trial. Even if you never say anything in court, you are learning.
When I did my trial at IRL, it was the opposite way for me. It was like, “Do I not want to be a trial lawyer?” I'd so much rather argue the motions, talk to the judge, and write the jury instructions. If only there could be a job that just did that. People told me there was no such job, but that's not true. An appellate lawyer does that. That's how I found my way.
That's another good lesson. You do it if you want to see the experience, both to learn skills and to find out. You don't know until you do it whether it's something you want to do. What if you have this image in your mind for so many years that you want to be a trial lawyer or litigator, but you get in there and you go, “There are things I don't like about this. I need to make some changes.” If you didn't have that experience, you wouldn't know that until much later.
The thing I would add to that is don't be surprised if early on, your first trial experience is bad. I remember the first “trial experience" I had was at a training I did at the Justice Department. Looking back on it, I think some of the AUSAs who were doing some of the mock stuff were obnoxious and I didn't have enough experience to know that yet. I thought something was wrong with me. I was like, “Maybe I don't want to do this.” I then worked with the experienced AUSAs who knew what they were doing. I would say if you have some rocky steps to begin with, that's normal.
Advocacy Tips
That's called the learning process. Let's talk about your time in the U.S. Attorney's Office, what that was like, what cases you have worked on, and all of that.
I started in Los Angeles and that is a wonderful office to start your career. It's a hard office. I want to stress that. I think 6 or 7 law clerks there now in the U.S. Attorney's Office in Los Angeles. One of them left. He was Chief of Appeals and he left to go make a lot of money, but it was a wonderful experience. Understand at the beginning, it's hard. The hardest job I probably ever had was in general crimes in the U.S. Attorney's Office in Los Angeles.
It's hard, but the learning you get, especially in an office like Los Angeles, where you have every type of case imaginable. You have a major airport and you have all kinds of people smuggling monkeys in their pants. It's the craziest case you get in Los Angeles. You then have your complaints duties and you have over weekend duty. Back then it was with a pager. Now I'm sure it's with a cell phone. It was a wild experience, but very valuable in terms of learning.
The long-term benefit of being a federal clerk at any level is an amazing and invaluable learning experience.
I then transferred in 2004 to the U.S. Attorney's Office for the Southern District of California, which is San Diego. I had always wanted to be in San Diego. My wife is from San Diego. My grandparents at the time lived in San Diego. I clerked for Judge Wallace in San Diego. I always wanted to be here. I transferred and I was in the major fraud section. I worked on public corruption and major fraud cases. I was in that office for about eight years.
I was in Los Angeles for three and in San Diego, for a little over eleven years as a prosecutor. San Diego is a very different office than in Los Angeles. We have the border. That's a big thing you have to do. Every U.S. attorney, that's the head person. I was an Assistant United States attorney, the head U.S. attorney. Every one of them has tried to figure out what's the best way to have an office that has to deal with the border and the current political climate, but still get interesting cases that maybe aren't always tied to the border.
Some of the border cases are fascinating, I want to stress that, but the U.S. Attorney's Office can do more than border cases. That varies from U.S. attorney to U.S. attorney. I was very fortunate. Candidly, I would probably still be in that office. This was 2012. I probably would still be there, but I was made the chief of the criminal division. Chief of the criminal division means you're in charge of all the line AUSAs on the criminal and all of the criminal prosecutions.
If you ever get involved in management, you'll quickly learn that the good ones, you don't have to spend the time on. You have to spend time on low performers. Quickly, I learned my job was more of an HR job than it was being a lawyer anymore. HR is very important. I don't mean to demean HR, but I did not do what I did with my career to make sure people are showing up to court or why are you showing up to work late or viewing this paralegal's work. You're rating her and you're dating her.
In management, you spend more time on low performers than on the good ones.
You cannot be rating and dating, but that's what my job became. I realized that I needed to leave. I needed to be done. That's why I started asking around about law firms because I knew at that time I was 39 years old and I knew that if I was ever going to make a big play, this would be the time to do it based on my career. I love being an AUSA. My daughter volunteers at the U.S. Attorney's Office during the summer. I'm a big believer in the office, but being the criminal chief or any management position can be a real challenge.
It's so different. It seems to happen that way. People who are good at doing the job get promoted to some management role. It doesn't necessarily mean it's the most enjoyable thing for them because they like doing the job, and that isn't what you end up doing when you're in a management role as much. You get rewarded for doing a great job with something that may not be a reward to you.
That is a very fair statement.
It was close between the time you went to Munger and then you were nominated for the bench.
It was a very tight window and not expected. I had put in for the district court down here in San Diego in 2009 while I was a line AUSA. I was very young when I did it. I was only 37 or 38 years old, but some people encouraged me to do it, so I did it. I didn't think I would get it, but someone gave me great advice.
They said, “You're not going to get it, but if you do a good job in the interview process, later on in life, that could help you because you might meet these people again if you put your name in the ring.” Justice Kagan did not get the Supreme Court position the first time. It was the second. I did not get the district court position.
I figured candidly that I would be a strong candidate for that position down the road when I was a little bit older. That was in 2009. I joined the Munger, Tolles law firm at the very beginning of 2012 and I was there. At the beginning of 2013, Obama had won his second term and there were openings on the district court. I was asked like, “John, will you put in?”
It was more of like, “You should put in. You got a real shot here.” I said, “No, I will not.” They're like, “Why not? You put in for it before.” I said, “I just started in this law firm. I've only been there for a year. I don't feel comfortable going on that track. What am I going to tell clients? It doesn't make sense.” They’re like, “Okay.”
The next week, a judge contacted me about the Ninth Circuit. I said, “I'm never going to get that job either, but maybe I'll interview and I'll do a good job. If another district court slot comes along maybe 4 or 5 years from now, then I would feel comfortable. I would have been at the law firm long enough and I could do that.” I put my name in for it.
It happened.
That was not the plan. Financially, it would have been a lot smarter to wait because, in the two and a quarter years in private practice that I spent at Munger Tolles, I made more than my entire year as a prosecutor in those two and half years. Financially, it would have been smarter to stay. If you want the job I have, you cannot tell President Obama, “Barack, get back to me in a few years. I have to make some more dough.” You cannot say that. It's now or never. It's you or not. I said yes and I'm here today because of that.
I love that thought process. You're saying, “It's very unlikely to happen now, and so I'll do it.” That's such a counter to what you think most people would say. “It's a good shot, so I'll risk it.” You're thinking, “This is for the future. It's good.”
I never imagined I would get this, but the advice I received was very good. I'll take a minute and talk about that. Early in your career, I'm not saying if you've been a lawyer for two years, apply to be a federal judge. I'm not saying that. If you put your time in and you've been a lawyer for 10 to 15 years, you may be on the young side. You may be late 30s or early 40s.
If you apply to be a judge at that point, you're probably not going to get it. The key is to do a good job in the interview process and the application process. That's the key. I'm not saying go up there unprepared half-assed and drop off an application last minute. Do not do that. Treat it as a professional opportunity to learn and to meet people. If you do that and you put the effort in to be prepared and so forth, then that can lead to stuff.
Maybe not then, but the next time. I'm sure when Justice Kagan went through the process for the slot that ended up going to Justice Sotomayor, Justice Kagan was incredibly prepared for it. She didn't get it. She got it the next time. A guy named Derrick Brent gave me that advice. He was Senator Boxer's counsel. That was great advice and I've passed it along ever since.
It also puts you in a good frame of mind that creates humility and prevents arrogance during the process. There's an openness and curiosity. Maybe you're more relaxed about it because you're like, “It's not make or break this time. This is for a long-term view.” Maybe you'll end up doing better in the process because you're more relaxed, but also keep that, “Just because I'm applying and I think I'm a great candidate doesn't mean it's going to happen.” It’s having that sense of humility in the process.
I will say when I interviewed for the district cohort, there were two committees. The first committee was the Boxer Committee. The second committee was the Feinstein Committee because there were different slots. I did not do well with the Boxer Committee the first time I interviewed for it or something like that. Looking back on it, I didn't do well. When I interviewed for the second time for Feinstein, I learned from the mistakes I made during Boxer, and I did extremely well in the Feinstein interviews. It looked like I would get the district court position at that age, but politics happened. It didn't work out, but there was a progression between the first set of interviews and the second interviews. No doubt about it.
That's so interesting that you were conscious of that you're like, “I did a lot better.” You had been through it once. As you said, the first trial is not necessarily going to be great. The first interview was not necessarily great. How has it been being a Ninth Circuit judge on the court that you clerked for?
I have been ten years if you can believe it.
I cannot believe that.
Our court has changed quite a bit. When I first came on in 2014, the judge Michelle Friedland and I were both partners at the same law firm. Both have kids about the same age. We're very close. We're within a year of each other age-wise, so we have a lot of similarities. We were the two young kids on the court. We were the ones who had little kids.
That's how I came in on the court. You had some very strong personalities on the court who were very senior. You had Alex Kozinski, you had Steve Reinhardt, you had Harry Pregerson. These are very big personalities, very big people. When you start on a court like that and your number is 28 and 29 in seniority, you're trying to figure out how does this all works. Harry Pregerson was old enough to be my grandfather, not my parents but my grandfather.
Just a quick aside, I was very fortunate to get to sit with him a number of times. He is truly an amazing man. I cherish the time I got to spend with him. My wife spent time with him. That's the court I came on. That is not the court I'm on now. Now I'm one of the more senior people on the court in a short amount of time. I always say that Judge Friedland and I were confirmed in 2014. There were no new judges added to our circuit until 2019.
For a long time, you were.
For five years, we were the two young people. Since 2019, I think we've had eighteen people added to the court. It is a dramatic change. I happen to think our court right now is in a good place. A lot of the newer people have infused a lot of energy. They have a lot of good ideas and it's been great. We needed an influx of new people. It's been good. Candidly, there were some people down the court for a long time and it was their way or the highway. They're not here anymore. It's a breath of fresh air. I'm very happy with where the court is right now.
That's a good point. The panels are the collective perspectives of the different judges, but the court itself has its own dynamics and administration and all of that. Just like with any organization, it's good to have new perspectives and new energy. People who are coming in are energized to do things and to think about things differently. Why don't we do it this way? It's good for an institution to have that.
Some of our newest judges have had some great ideas. Judge Bumatay is someone who, in cases, I have disagreed with quite sharply. He's one of the most creative energetic guys and has a lot of interesting ideas. It's great that we've had someone like him come on board. It's a different court. My process on the court, I've been very thankful. I've had a pretty stable run and had good law clerks that help. I haven't had to fire anyone or anything like that. That has made my job a lot easier.
I have to say this and I’m not being very articulate about it. The best part of this job is the law clerks. They could make it the worst part of the job. They could do that pretty easily. I haven't had that experience. The reason why I like this job and why I continue to like this job is because of law clerks. They are the ones that make this job worth it.
You have the opportunity to have a special long-term relationship with them as well and see them blossom in their careers and be part of that blossoming for them to help them see opportunities and help them grow. I think that keeps us engaged, being able to have that role in people's lives and careers.
It's an obligation on my part. It's an obligation I take freely and happily. My job is to make sure that they do as well as they can when they're done. Part of my job when they are clerking for me is to teach them lessons. If they're maybe not going in the right direction, my job is to make sure they are. Rarely, but sometimes I have to have to talk about, “You try this at a law firm. That's not going to work. Part of my job is to get you ready for your next job.”
Yes, true.
Even though I might be allowed to let something slip because I can get stuff done in a certain way, other people are not going to let me do that. I have to point that out. That's the rare conversation. The better conversation is, “Let's talk about what you want to do. You want to work in this law firm. I know this guy there. Watch out for this guy.” The most fun part is when they call me and say, “I got this job,” or “I'm having a baby.” I recently had a law clerk contact me and say, “You mentioned a judge where you had college savings accounts for your kids. Can you explain that to me?” The thing I enjoy doing is talking about that stuff. I get to do that. I have now ten years as a law clerk.
You have quite the history there.
I can claim credit for everything. That's what judges and lawyers do. That's the part I enjoy. The law clerks are easily the best part of the job.
Two things in that. I felt that way about my clerkships. I learned how to think like a lawyer and where to find things in law school, but I learned how to be a lawyer from my judicial clerkships because they were at such a high level and they trained you how to do things. They were so conscious of your future, and they had such a personal investment in that like, “We want to make sure that you are the best you can be, that you have the best skills and that you develop fully.” There are so few times when you have that sense that somebody has your back in a personal individual way than you have with a new judge.
Some of it is because it's in our self-interest. The better all the law clerks do, the better law clerks are going to be in the future. It's not purely all.
There’s that, but is that feeling or that sense of when you call for advice about anything, whether it's college savings accounts or whatever, you're going to get an honest perspective that is at least intended for your best interest. It happened very often.
I want that and I don't charge.
You don't charge.
I do want the absolute best for all my law clerks. There's no end to doubt about it. Sometimes it's helping them figure out what is the best. In terms of mentoring them, there is a mechanical as I call it like, “This sentence could be better if it's written this way.” There's that, but then there's also watching how I conduct myself. For example, whenever we're on the calendar, I always make sure in the evenings to ride the exercise bike. No matter where we are, I do that. Judge Wallace does that. Why did he do it? He's 96 years old and he's still hearing cases.
That's pretty good. Longevity.
I do try to teach the law clerks things like that in terms of being a responsible parent. It's very easy in this line of work to not be a responsible parent because the clients will keep calling and the business will still be there. That candidly is something that my father struggled with. He did not have that in terms of parental role models. His family was a complete mess. It's amazing how well he did coming from where he came from, but he struggled with that.
I try to instill in the law clerks, “Work is very important, but your kids have only one dad or one mom. You can never forget that.” My mom was the one who raised my brother and me. She was the one who was always helping with the homework. She did all of that. I take that to heart. I try to teach my law clerks that. Kids work hard in school. Work hard in your job, but there are other things that you need to take care of. The work cannot always trump those things.
This is hard in the law. As you observed at the outset as a young person, it's hard work.
It’s very hard. I'll use you as an example, MC. I don't know if you're still doing the MMA stuff, but you used to go to a gym and fight people.
Yes, this is true.
Are you doing that because you want to become a professional fighter? No. You're doing that because you understood that you needed to do something else than this line of work. We can talk about whether MMA is the wisest thing to do.
Probably not.
Maybe not. I boxed, so I'm as guilty of it as you are but you found that you needed to do something completely different. It's the same thing.
I remember my coach who coached professional fighters. He said, “You have more heart than most of the pros. They may have more skill, but you have more heart. If I ask you to do something hard, you do it like, ‘I'm going to go through this.’ You workout harder and you do better out of heart.” It was interesting because I was like, “What an interesting thing that you discover about yourself doing different things.”
As a quick aside, unfortunately, fighters with hearts are usually the ones that get hurt.
I'm not recommending getting in the ring with that, but as far as you're doing it to stay in shape, that heart is good because you're persistent.
Well said.
You do hard things without a second thought like, “I'll do that. It was hard. I wasn't supposed to be able to do that. It's good that you didn't tell me beforehand.”
That was very true. Fighting sports like boxing and MMA, because it's just you, it teaches you what you're made of. To our viewers out there, I'm not suggesting you go in the ring and start getting in fights with people, but the training you get in a martial art or MMA, boxing, kickboxing, or jiu-jitsu is different than any other sport because it is just you. There are no timeouts and they don't sub someone in. Are you going to make the two minutes or not?
Clerkships And Externships
That's so true. The other thing similar to that which I enjoy too is rowing. Especially if you're rowing in a single and not the team, it's all you. Stick it out or not stick it out. That's the deal. I guess that's the similarity. I hadn't thought about the similarity between those two sports that I enjoy. Let's talk about in terms of clerkships and externships. What should people consider if they're applying for those clerkships or externships, and how should they look for those opportunities? They are quite formative and they can be great.
I'll start with externships. I think externships don't get a lot of press.
They don't, but they're so helpful and they can also help you discover whether you want to clerk. That's what I did. I externed for Judge Dorothy Nelson on the Ninth Circuit because I wanted to see what it was like to be in a clerkship role.
For those who may have never even heard of an externship, not all judges on the federal side offer them. I'm going to speak about the federal side because that's what I'm familiar with. A lot of them do. Hopefully, law schools and career offices have information about them. The information on externships is not as good as it should be. You have to ask around. There's nothing wrong with calling the chambers and asking if they have externships. Generally speaking, externships are done while you are in school.
They could be done either during the school year and some schools offer credit for it, or they could be done during the summer. I have done both. For externships, I cast the net a little wider. I'll talk about clerkship hiring a little bit, but clerkship hiring is crazy competitive. I may get 300 or 400 applications for three slots. I do have four law clerks, but I have a permanent clerk, career. Three that turnover every year, so 300, 400 for three slots. Crazy competitive. Externships are not nearly as competitive. There are some years where I'll get 4 or 5 applications.
Really? That's so disparate between the two.
It's a surprise. Unless the law school is covering your expenses, externships are not paid. Right away, that can be tougher. Plus, I'm in San Diego. We do have law schools in San Diego, but we don't have nearly the quantity of law students in Los Angeles. To ask someone to come to San Diego, which is very expensive, hopefully, the law schools give them a stipend. There's no stipend. It's tough. I get all that. We have had students from the local law schools be externs. That might be an easier way.
I cast them that much wider. I am not looking for necessarily a super duper academic star who aims for a clerkship. I'm looking for someone who maybe could benefit from the opportunity. You have to do well in school and all that. I'm not going to take someone here to flag it off, but you might be at a school that maybe you don't think is one of the top schools according to U.S. News and World Reports. For externships, it doesn't matter to me. I cast a very wide net. I've hired externs who are outside the top 100 law schools. I've done that and they've done a very good job.
An externship will vary from chamber to chamber, but in my chambers, I treat them as law clerks. The assignments they're going to get are going to be the toughest assignments. I understand they're usually either finishing their first year or second year of law school. We're not saying paint Guernica here but maybe a little simpler. Maybe more of the coloring style. The fact is that you are still doing work that is shared with other chambers. You're going to work on a bench member, which is going to be reviewed by plenty of people, so don't worry. That is what is said to the other judges.
We also have a program here where as an extern over the summer, and sometimes during the school year, you present cases to a panel of Ninth Circuit judges. We have cases that are called screener cases, which are briefed but not formally argued but they're still presented to a panel of judges that have to decide what to do in the case. We have externs present those. You get up in a courtroom and you address three judges and answer their questions. It's a great experience. I think other judges have similar programs.
That's very cool. I didn't realize that. That wasn't the case when I externed, but that was a long time ago.
This is a relatively new one. I think the advent makes it easier to bring in judges for an hour to present cases. Externships are wonderful. I understand the financial issues surrounding them. That's something that everyone has to make their own decision on. Externships are good, but they're not paid.
Clerkships to me are an absolute no-brainer. I understand that for some people, there is financial pressure because a clerkship does not pay what a job in a law firm does, but the long-term benefit to being a federal clerk at any level, to be a federal clerk for a bankruptcy judge, for a magistrate judge, and it could be an immigration judge, it could be the Veterans Court, there are all kinds of things you can do. It doesn't have to be for the Supreme Court or the Ninth Circuit.
It's an amazing experience and invaluable in terms of learning. The process varies from judge to judge. You can talk to your law school people about this. There's the hiring plan. There are the judges who are not on the hiring plan. I'm not going to go to all that level of detail, but if you've got a shot, go for it. In terms of where to apply, you may have geographic limitations for family reasons, but if you're at that stage of your life where it's just you, do not limit yourself to a particular jurisdiction. If you got a shot to clerk for a federal judge, take the shot.
With that being said, there has been a lot of recent press about some judges misbehaving. Misbehaving is probably too light of a word, but it's a horrific experience. The idea is that you want to do as best as you can. I know there are projects trying to collect information on them. I'm not going to vouch for them or not vouch for them, but it's okay to have a challenging year. If you've heard murmurs or however this network is being established, do take that into consideration. I'm not endorsing any particular service, but a year is a long time. It can be a short time or it can be a long time.
It's very important that you work for someone who treats people professionally. I think sometimes the law schools have not emphasized that enough. I try to treat my law clerks the way I want to be treated. I have two pretty good mentors, so I treat them the way Wallace and Ginsburg did, a little less formal than Judge Wallace. He's still a very formal guy. It's a fantastic opportunity. Do not limit yourself by geography. Don't do that. It's a great experience.
If you want to be in California, for example, and they have a chance of a California Circuit, go for it. There are great judges all over the country. One of the nice things about the Ninth Circuit is we sit with visiting judges from all over the country. I've sat with judges from all over the country. It's some guy from Florida. He's fantastic. Judge Marbley up from Ohio. I've been to Ohio once in my life. He's a great judge. I would tell anyone to go clerk for that guy. I encourage people to not limit themselves by geography. If you have an opportunity, go for it.
That is generally good advice. Don't have the blinders on too much. Be open to other opportunities. Especially in this context for clerkships, they're very competitive as you noted, and particularly competitive in beautiful locales like California where people are like, “I can live in sunny California for a year,” from all over the country applying. It's good to have an open mind about that.
It's a great opportunity. People worry about the money. It's one year. If you're worried about money, you can make that back very quickly.
If you're going to a firm, a lot of the firms have a bonus when you arrive. You can get a clerkship bonus so you can make it up in part very quickly, and it is one year. Think about that in terms of you'll never have that opportunity to be in seeing how a judge or a panel of judges decides things. It completely changes how you think about your practice as a lawyer. You'll never have that opportunity and that perspective again. The value from that perspective is so great. That's what the firms recognize too.
If it's not the right time when you're in law school to apply, there's nothing wrong with applying once you're in the working world.
That's a good point because I did that. It wasn't as common when I did it, but it is more common. It isn't like use it or lose it. If you don't have your clerkship right after law school, you'll never have an opportunity to clerk again. That has changed.
It's far more frequent now that judges are even expecting private practice or government experience for a few years before clerking. That was certainly not true in my generation. I think our generations are similar. It happened, but it was odd that it happened. Now it is pretty common.
That's good to point out in the context of it. For whatever reason, it doesn't work or cannot work for me, whether it's financial or not. Don't give up that possibility in the future because it's much more likely now that it will be the case. When I clerked for Judge Fernandez, people were like, “You're doing what?” after you've been in a firm for a while and had another clerkship, but now that's so much more likely to happen. Let's talk about advocacy maybe a little bit too for those who are in practice. What would be your top tip for either oral advocacy or brief writing?
I'll give you two. In terms of oral advocacy, be prepared. I mean, please.
You're very prepared, I will have to say. Plus, you have your technology access, which is a little intimidating, but you're on it on the bench.
That's why you need to be prepared as an advocate. I'm a pretty easygoing guy, but the times I've gotten annoyed are when an advocate will say something and I'll say, “I don't remember reading that. Can you direct me to the record where that is?” They have no idea where it is. That happens sometimes. Come on, know the record. The biggest thing you can do as an advocate in the appellate argument is to know the record. I got law clerks helping on the law and they're going to help me with the record too, but this is your case, so you have to know. That's number one.
Brief writing is number two. Understand the volume of stuff you have to read. It is thousands and thousands of pages. Is it going to help you if you meander in briefs and you cannot write a coherent sentence and it goes on for half a page, just one sentence, or the briefs that are under the word count and nail it? Those are far more persuasive. When I open briefs and I see it under the word count, I'm already happy. You're already going on the right track.
It doesn't mean you cannot make the arguments you want to make. Briefs should not have nine arguments. That's a bad sign. Three to five is usually what they say. That's true, but even if you're teetering on five as opposed to three, take the time to think about, “Do I need this citation? Do I need this sentence? If I do need it, is there a way I can make it shorter?”
One thing I learned from Justice Ginsburg, and I'm not saying this is for everybody, but she would agonize over every word in a sentence. Not everyone is as equipped as she is, I'm certainly not, but I did take that lesson of thinking about whether there is a way we can make this more precise. Is there a shorter way to say it? I do think that's a good practice. We read so much stuff. If you have what a judge could say a flabby brief, it's not great.
The more crisp your thinking can become as you're refining the arguments too. It helps you convey things more sharply.
What I'm saying is not some government secret. Many judges have said this. I'm sure you've had many judges on this show say this. It is true. It's baffling at times that lawyers don't seem to understand it.
There's this sense of the more I say or we've had our full say if we go up to the limit and all of that, but it's about persuasion and effectiveness, and thinking about who and the context in which the court is reading this. How many other cases there are, how many other things are being read, and helping orient the court to where I am now. What is the subject matter? What is this case about? It’s very early in the brief too so you can ground in the case and move forward. It's also the point of having more time. If you went through more drafts and started with those drafts earlier as an advocate, then you have time to do what you're saying. Justice Ginsburg was able to agonize over the right group. We were able to trim this down to the essentials.
That is key. The hard part is not the writing. The hard part is the editing.
The hard part is not the writing; the hard part is the editing.
That’s one of the biggest takeaways that my students in the clinics that I teach have. It’s how many drafts. I give them their schedule and there are at least 3 or 4 drafts of the brief scheduled into the schedule before we're finalizing it. That's to put in from the beginning. We will be doing many drafts, perhaps more than this, but that's how you come out with an effective brief.
It's so great that the Ninth Circuit has the clinic program and has the law schools argue. It's such a great experience for them. I feel the same thing about that clinic experience as about a clerkship or an externship. It's so invaluable to have gone through that process. Even if you don't end up being an appellate lawyer, you've had this opportunity to fine-tune your oral advocacy and your brief writing, and to have an experience arguing before the Ninth Circuit that early in your career. It is so helpful. It's such a great service to the bar, to the profession, and to the students.
I agree 100%.
Lightning Round
I typically end with a few lightning-round questions. I'm going to ask the first one. Which talent would you most like to have but don't?
I cannot cook and I feel bad that my wife is always cooking. There you go.
You contribute in that way. Which trait do you most deplore in yourself and which trait do you most deplore in others?
In others, it's a lack of preparation. What I mean is that when the lack of preparation comes across as not being respectful to others. Everyone else has done their job and you haven't, and we're all waiting for you to do your job. I always find that bad. For myself, sometimes I need to shut down my mind. My mind is always thinking. It would be nice sometimes to be able to turn that off a little more. As I've gotten older, I have started to play video games. I do think that is a way to do that.
That's interesting. I usually go for a walk in nature or something like that to get outside myself. I find still that in the back of my mind, I’m still processing things, no matter what. It's hard to stop that but you can come back with an answer to a problem that you couldn't solve beforehand. There's something positive about that.
One thing I have done is run a lot. When I run, I listen to podcasts and I use the podcasts about movies because I love movies and I listen to them. That is one way I can turn off that part. I'm always thinking about something and sometimes it'd be nice to not always be thinking about something. It’s just the way I'm wired.
It's like a system. There's a program running in the background at all times, even if it isn't front-conscious. Who are your favorite writers?
In terms of overall, I've always been a big fan of Gore Vidal. I am not a big fiction reader, but I think I've read almost not everything he's done, but a lot of what he's done. I think he's a fantastic writer.
What do you like about his writing?
He writes dialogue very well. He's a real student of history like his book Lincoln and Julian. There are a number of very good books. He's the one that always jumps out to me as a good writer. If you think more like legal writers in terms of style writers, I always like Rehnquist. I thought Rehnquist was a fantastic writer and a guy who got to the point. He was the biggest doctrinaire guy. When he was the great dissenter he was, he became the majority guy. Maybe not as much, but I always thought he was a fantastic writer.
As a law clerk at the court, he was a fantastic Chief Justice. I don't mean to say this to suggest the one now is not, but I never worked under that regime. Rehnquist was fantastic and so respected by the members of that court. Justice Ginsburg thought the world of him even though in some big cases, they were on opposite sides. She thought he was a fair guy who ran a good conference. I've always respected Rehnquist and his writing ability. He’s fantastic.
I was thinking about that. If you're mutually respectful and you run the conference that way, then you're going to have some good collegiality on the court too.
He did a great job with that.
Who is your hero in real life?
I would say a combination of my mom and my grandfather. My mom was in a tough spot, candidly. She had two kids, seven and three years old. She was a housewife and now she has to figure out what she is going to do with these two kids. I've always had my mom, and the fact that she was able to do it at a young age, I've always had tremendous respect for her for that.
The other one I think is my grandfather. My grandfather is Harold Agnew, my mom's father. He worked on the Manhattan Project. He was always there for us, no matter what was going on in our family situation with the divorce and this and that and the other. He was always there for us. He was a hard ass. He was a Depression guy. He was a Depressed and World War II guy. He was not someone who was, “How are you feeling?” He wasn't one of those guys.
There's a stoicism from that.
That's honestly what we needed. We're very lucky. Later in life, he got a little bit softer and my kids got to spend time with him.
That's a whole different dynamic in a relationship.
We're very fortunate that he was around long enough where my daughters who were born in 2004 and 2008 were able to spend time with a guy who grew up in Denver, Colorado in the ‘20s, when you had horse carriages. It was a very different world. I have held him very highly. Would I parent exactly how he did? No. He was what he was and he was there for us. He genuinely cared about his grandkids. He was there for us.
I can understand your list naming both of them. For what in life do you feel most grateful?
Probably my wife. I was very fortunate to have met her. I met her clerking for Judge Wallace. Another reason to clerk is you might meet your future spouse.
There you go.
She got me to San Diego and she has made my life easy all these years. That's the one I'm the most grateful for. I will say my kids are two good kids. I've been very grateful that they've both been good kids.
Isn't that nice to be able to say about your kids and that you like them, “They're good people.”
They're both good kids.
That's a good thing to be able to say as a parent for sure. Given the choice of anyone in the world, who would you invite to a dinner party? It could be more than one person and they could be with us or not with us.
One person I would love to talk to would be Robert Jackson. He was on the Supreme Court. He was also one of the prosecutors. Just to ask him what was it like. I would say Dwight Eisenhower. The architect of D-Day. I think people now view him as one of the greatest presidents we ever had. Just an interesting life. Also, Ulysses Grant. He’s not rated as one of our best presidents, but someone had to end the Civil War. He seemed to be the only guy who did it, but he had to make some awful choices along the way.
We may not have served alcohol at dinner if Ulysses S. Grant had shown up, but to get a sense of how he came to the decision that this was the right thing to do. The stakes were so high. Probably those three. We had those points in our civilization where things could have gone badly, and Eisenhower and Grant were central figures in making sure that we came out of them okay, and that our country was stronger afterward.
That's true. It is interesting how, especially in American history, people come at the right time. They may not be the right person for any other time or situation, but they were in that scenario. It makes such a difference to those pivotal people who have pivotal points. Last question. What is your motto if you have one?
Do I have a motto? It might sound Christ-like, but treat others the way you want to be treated. That is it. I try to do that with my law clerk. I try to do that with the public. Nothing too fancy, but that's what it is.
I was wondering if you would say that because you embody that, but I didn't know if you were conscious of it. I was like, “Yes, he is.” There's a lot of alignment between what you said and how you operate.
I genuinely try to do that. Sometimes I'm on the phone with customer service for an airline and it's tough.
It's hard to remember.
I try.
It’s not to say that there won't be times that try our souls and maybe we're not our very best, but it's good to have a North Star for how to act.
Well said.
Judge Owens, thank you so much for joining the show. It's been enjoyable. It's interesting, especially for our law student who hopefully will be applying for externships now.
Please send them my way, 21 West Broadway in San Diego.
There you go. It sounds good. Thank you so much.