Barbara M. G. Lynn
01:07:49
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Show Notes
Former Chief Judge of the Northern District of Texas and Chair of the ABA Section of Litigation, Barbara Lynn, sits down to share insights from her storied career as a trial lawyer and federal judge. Recently retired as a federal judge and now a partner at Lynn Pinker Hurst & Schwegmann, Lynn discusses the importance of mentors, the role we can all play in training the next generation, her path to the bench, advocacy tips, and her new role as mediator and trial strategist.
Relevant episode links:
Judge Barbara M. G. Lynn on LinkedIn, American Inns of Court, To Kill a Mockingbird, Amanda Gorman's Website
About Barbara M. G. Lynn:
Hon. Barbara M. G. Lynn (ret.) brings more than two decades of distinguished federal judicial service to the firm. She served as a Senior United States District Judge for the Northern District of Texas. She was appointed to the federal bench by President Bill Clinton and confirmed by the Senate in 1999. In 2016, she made history as the first woman to serve as Chief Judge of the Northern District of Texas, a role she held until 2022. She assumed senior status in 2023 and retired from the bench in 2025 to join the firm as a partner.
A summa cum laude graduate of the University of Virginia, Judge Lynn earned her law degree from Southern Methodist University School of Law, where she graduated first in her class. Before her judicial appointment, she practiced at Carrington Coleman in Dallas, where she was the firm’s first female associate and later its first female partner.
Judge Lynn has long been a leader in the legal community, serving as Chair of both the ABA Section of Litigation and the ABA Judicial Division, and as President of the American Inns of Court Foundation. She is widely recognized for her integrity, her unwavering commitment to the rule of law, and her dedication to advancing women in the legal profession.
After stepping down as Senior Judge for the Northern District in June, effective Sept. 1, she joined the Dallas-based litigation firm of Lynn Pinker Hurst & Schwegmann LLP. The firm of more than 40 attorneys was founded in 2003 by Judge Lynn’s husband, Mike Lynn, and has built an impressive record of success in a wide range of high-profile commercial litigation.
Transcript
Welcome to the show, where we chronicle women's journeys to the bench, far and beyond, and seek to inspire the next generation of women lawyers and women law students. I'm so pleased to have someone as a guest on the show. I know her as Judge Barbara Lynn, but she is back in practice after serving as the Chief Judge and as a district judge on the Northern District of Texas. I can't help myself. I still say Judge Lynn. Welcome, Judge Lynn.
Thank you. It's such a delight to be here with you, MC.
I'm so glad because I've also personally admired all of your service through the ABA and your bar work as well. It's wonderful to have you here because you contribute in so many ways to the legal profession.
Thank you.
How Judge Barbara Got Into The Law
I wanted to start out first in terms of how you got to the law. How did you decide that you wanted to go to law school and become a lawyer?
It's a funny story. I used to watch Perry Mason when I was a kid. It's not the Perry Mason of today. I knew that the person actually solving the crimes was Perry's secretary, Della Street. I could never figure out why Della wasn't getting all the credit. It looked like a good job if you could meld Della Street and Perry Mason. I thought that would be a good job. Probably, most lawyers' extracurricular activity in high school was speech and debate. That was mine. I loved the opportunity to compete in speaking competitions and in debate competitions. It seemed that the best outlet for that was to go to law school.
Some champion debaters turned out to be quite good litigators. Some of our previous guests also engaged in that in high school.
I did a little poll, and the number two extracurricular activity in my non-scientific poll for lawyers was people who hosted a radio show. It might be a radio show or a podcast, but I had a radio show in college. I had both of those as number one and number two extracurricular activities.
That's so interesting. I briefly DJ'd in college with a friend of mine.
Jobs where you can hear your own voice.
I guess where you're engaging. Yes, exactly. There's a little bit of extroversion in that as well. That fits. You went into litigation when you first entered. You are of a time in entering when it was a different kind of challenge to get a job, too, as a practicing lawyer.
I and a number of my colleagues were involved in litigation against some Dallas law firms that were not quite as enlightened at that moment in time as they became later on.
I knew about that. I'm glad you mentioned that because I thought there were challenges. That says so much about you in terms of being willing to take on those challenges for others as well, having that kind of teamwork, having that challenge to begin with, and having a lot of courage to do that.
It is with others. It was not an easy decision, but we took what we were learning and what we thought was right. We thought, “We can't just sit here, let this happen, and not try to prevent it in the future.” It was group courage.
Building A Successful Litigation Career
It is sometimes helpful when you have that. Also, there's that same collegiality, but also building coalitions, lifelong friendships, and professional relationships from that, going through the fire together. Despite that, you still had a quite successful and amazing litigation career before the bench as well. I wonder if you can talk about that a little bit and what kind of cases you did, trials, and things like that.
I should start out by saying I was very fortunate that through a funny set of coincidences, I became acquainted with Carrington, Coleman, a firm in Dallas, and a number of the partners in the firm, in particular. I ended up with a summer job after my first year and another summer job after my second year. I ended up going with the firm.
Unlike some of my colleagues who were not getting offers because they were women, I was fortunate that I did get an offer from the firm I most wanted to go to, and I spent my whole career as a lawyer before I went on the bench there. This was a firm that prided itself and still does on excellent academic performance, good writing skills, and substantial involvement in the bar and in the community. Those were things that were all modeled for me.
I will also say that I regard Jim Coleman, the senior lawyer for Mr. Carrington, whose name is first in the firm. He was quite elderly when I joined the firm. He was still around, but he wasn't actively practicing every day. Jim Coleman was the senior lawyer in the firm. I've always said that if Atticus Finch were a real person, he would be Jim Coleman. It demonstrated such a strength of character and such a pride in the profession. As a profession, he set that tone for me. He was also a feminist.
I mentioned our litigation. Jim found out that I was going to testify as a witness. I wasn't hiding it from him, but I hadn't told him about it either. He heard about it, so he came down to ask me if I wanted him to go down to the courthouse with me. In every way one could display support for another person, he did that in front of the judge and the lawyers. He sat there and then gathered me up, and we left together. That's an example of the support I got.
Early on, a client said to Jim, “I don't want any women working on my file.” Since I was the only one there, I did take that personally. It was directed to me only. Jim told the client when he could come and pick up his file. He fired the client, which was a remarkable thing to do and showed support in the most tangible way. The compensation structure at that time was lockstep. That's an antiquated term now. Probably, most people practicing law today don't even know what that is.
That system, where people at the same level made the same amount of money, had the effect of discouraging competition among the lawyers for clients. It was the fondest wish of every partner for the client to build a bond with the more junior lawyers so that they would “take the client.” Jim was so proud of that when I did that with his clients. I was like, “This is weird, but great.” I developed a lot of business of my own through that generosity of spirit.
I did just about every commercial litigation you could do. I didn't have any antitrust work to speak of. I had very little securities litigation to speak of. Other than that, I had a broad base of litigation. I tried a lot of cases. I'm in the American College of Trial Lawyers. This was because they gave a lot of good opportunities to junior lawyers.
We represented General Motors, and General Motors was trying very small cases. That gave me an opportunity when I was a young lawyer to go to court. We also represented law firms. When I started at the firm, there were traditional malpractice cases, and that continued. As time passed, law firms were sued as employers for various labor-related matters. I would say if I had to define one specialty I had, it would be representing lawyers.
It's a great opportunity, the way the firm was organized to encourage people to spread the wealth and have newer lawyers get the experience that's needed to carry on the trial work that the firm could do. When I started as an appellate lawyer, we had some of those cases, too. We had some of those cases where you can have the newer specialist work on them and get the full experience. I found it's harder to have that now than it was in the past to have those kinds of opportunities.
Lawyers need to be creative about potential opportunities. One thing I tried to do as a judge is to do my part to create those opportunities and to close the loop with the firm. Many of the firm lawyers were very active in bar work locally, statewide, and nationally. Jim Coleman was one of the founders of the Section of Litigation of the ABA. I eventually became the chair of that. That history of involvement with the community and with the bar was present. I regarded that because of the way I was trained with an obligation to serve the profession.
Lawyers must be creative about potential opportunities.
It's nice. That's part of your DNA, perhaps, reinforced through the firm. It seems like it's a good fit because you enjoy the range of services. It's nice to see that by example, and also have it be part of the culture of the firm.
I'll tell you a funny story about that. My husband and I figured out, and my husband is a lawyer, pretty early on that by getting active in the bar nationally, we could go to great places on the firm nickel and then stay longer for a vacation. We were doing good, having fun, and enjoying it all at the same time. The firm made it clear, and they knew what was happening. They were okay with it, as long as we would be active in the organization. That was true for my firm and my husband's firm. We both did that. We both were very active. All these years later, we're both still active.
Applying For The Federal Bench
Once you start doing that, you realize that you feel the value of it with all the people that you've met as well. After that, you joined the federal bench. Tell me about that. What caused you to think about applying? How did that come about?
It was 1993, when I had been practicing for about seventeen years, that I thought, “I think I would be good at being a judge. I have the right disposition and love the law. It would be great to see great lawyers in court.” I put in an application. In Texas, there's a committee. You put in your application, and then the committee does its work. It's ultimately the President's decision, but there is a process in Texas that has been in effect. It had some changes, but essentially, this had been the process for many years. I was not successful in that effort. Another person was selected, but that person ultimately was not nominated.
A couple of years later, I was called back to reapply. I decided not to. I had moved on in the firm. I was moving up in firm management. I loved the firm and loved practicing law, so I said no. My husband had started his own firm. The timing didn't seem appropriate to leave a steady job and go off to another job where you would make substantially less. I put the idea back in the closet and kept on practicing law. Without boring you with all the details of it, late in 1998, I got a call from a congressman in my area whom I had known for many years.
There was a nominee for another position pending, but he had run into some stumbling blocks, not based on anything wrong or anything personal. There was essentially an impasse between senators. Unbeknownst to me, he was withdrawing his name from consideration. I was asked by the congressman, because we have a Democratic President and Republican senators, whether I would allow him to suggest me to the President. It took a couple of weeks for me to decide. It was a very attractive job that I had been interested in, but it was weighed against a wonderful job that I already had with wonderful lawyers. I love practicing law, so it took a couple of weeks. I decided, principally, to reflect on the service it would represent, to put in for it.
I asked that question because it's not always linear or immediate. That's another example of that. There are certainly some prior guests who have said, “We applied multiple times before we actually got to this point,” or have similar scenarios to what you described in terms of the timing in life for them, where they were in their career, and whether it made sense for them to do that or not. Was there more they wanted to do? It's valuable to talk about that because that's how there are so many other things that go into that decision-making.
For sure, and there's luck associated with getting a job like the one I had and retired from. The moon and the stars have to be aligned properly. I knew one of our senators, but not the other. There were people you had to meet. As a coincidence, I was with someone I've known for many years, a very influential lawyer in town. He was reminding me that he had introduced me to a person who is a conservative member of our community.
I knew him in the most cursory way. He had a very negative impression of me for some reason and was not supportive of me. This lawyer made a date for us to meet and talk. He guided this. He made a believer of this guy. He was my strong supporter forever, and thanked this lawyer for taking the initiative of making that match. Had that not happened, or had I not known a lawyer who knew this person well enough, my nomination might have been scuttled. That was fortuity. That was a kind thing for someone to do, but fortuitous that he was available and willing to do it.
There are so many times in our careers when that happens, where we don't even know that it happened. Somebody stepped up, did something nice, and put our name in a room. Once you're making decisions yourself in those rooms, you realize, “This didn't just happen. Somebody must have said something. I don't know who it is, but the only way I can pay that forward is to do that favor for somebody else.” That's true, what you're saying. It's sometimes the most unlikely people who step forward and decide they want to help facilitate your appointment. This is something I never would have guessed, but you're like, “Okay.”
It's a great job, but there aren't that many of them. Young lawyers talk to me. “I want to be a judge.” You can run for office, and then you can influence the outcome, but for an appointment, as I said, it's the moon and the stars. Timing is everything. You need to have a plan B. I've thought about how my life would have been different had I not been a judge. I would have had a wonderful, successful career as a lawyer with lawyers I loved. I was still the chair of the Section of Litigation.
I had a great job. I'm thrilled I had it, but I didn't put all my eggs in one basket. That was a long year of maybe yes, maybe no, and I never thought of it as the world is going to come to an end if I didn't get it. I did get it the first time, and so there was no sure thing that I was going to get it the second time. I admire people who have been on your show who have done it more than twice. I don't think I had it in me.
One of the Hawaii Supreme Court justices said how many times she had applied.
That's more intestinal fortitude than I've got.
Serving As A District And Chief Judge
That is a lot because there's a lot that goes on in that process, a lot of checking you out, and all of that stuff. That can be hard to go through. You were a district judge for many years, so maybe we can talk about that, what you enjoyed the most about being on the bench, and then the difference between being a Chief Judge, too.
It was a fantastic job. It was interesting for 25 years. There's so much variety to it. After you've done the job for maybe ten years, you feel like you know what you're doing. You feel like you pretty much know the law. The law changes, or there's a new law. Your law clerk walks in with a brand new case under the umpty ump. You have no idea what that statute is or means. Technology advances. You never settle in and know everything.
You develop your process, but it's never that you become an expert on everything that you encounter. It was a great, stimulating job. I vowed that I was never going to let it make me a resident of the ivory tower. I didn't want to live my life like that. I was very active in the bar for more than twenty years. I knew lawyers. I couldn't recuse myself every time a lawyer I knew walked in the room because I'd never have anything to do. I wanted to continue to be an active member of the bar, so I did it.
You can never be an expert on everything you encounter.
I tried to be the judge I wanted to be, not the judge someone else thought I should be. I'm a very small example. When I got to the courthouse, I asked someone if it was okay if I drank coffee on the bench. Someone said, “Absolutely not.” I said, “What will happen if I do it?” “I don't know,” they said. I said, “We'll see.” Nothing happened until the day I spilled my coffee all over the original exhibits. My courtroom deputy said, “Judge, you can drink coffee on the bench, but the coffee goes here and the exhibits go here. Otherwise, your coffee privileges will be revoked.” That was good advice and counsel.
I engaged with the lawyers. I told some funny stories to the lawyers. I tried not to take myself too seriously all the time. I didn't assume somebody else's robe, meaning I was my own self. I took good advice. Barefoot Sanders, my judicial mentor in particular, gave me wonderful advice all through his and my overlapping careers until the day he died. I am his successor in the organization. I learned a lot from him and from my colleagues. I knew a lot about the law. I knew what a good judge should look like, but there was a lot to learn about the process and what was expected of you.
I had some funny things happen because I was a novice. That made for good storytelling. It was a very interesting job from beginning to end. It was made more fun by the fact that I didn't have to give up my involvement in the bar. Even though people think you have to, and a lot of people do, I didn't, and nothing bad happened.
It's a little bit less at the trial level, but certainly at the appellate level, there's that ivory tower aspect. Those I know who joined the bench were like, “I miss being out and about, being able to meet with people, and being in the middle of things.”
Let me make one point about that. Two things. First of all, I'm not sure you know that I sat a lot with the Ninth Circuit. I believe I sat seventeen times.
I didn't realize it was that often. I knew you had.
That was great. That was a wonderful experience for me and for my law clerks. I was the President of the American Inns of Court. My successor, the current President, is Judge Callahan of the Ninth Circuit. The Vice President, who presumptively will be the next President after Judge Callahan, is Judge Krause from the Third Circuit. The American Inns of Court is a particularly good outlet for appellate judges who may be limiting their bar involvement because the American Inns of Court is an organization that is devoted to civility, professionalism, ethics, and excellence. Many circuit judges and some Supreme Court justices have been quite involved with the American Inns of Court. That's good for them and wonderful for the organization.
Judge Callahan is another person who is involved in everything.
I adore her. She is so fun and so great. I met her as a visiting judge. That's how we first met.
Some people know that the district judges can sit as visiting judges on the circuit courts, but it doesn't have to be your circuit.
No. I've sat a few times with the Fifth Circuit, but I've sat many more times with the Ninth Circuit. For me, this started because the Ninth Circuit was in pretty dire straits with its cases and the number of judges. I hope this doesn't sound egotistical, but I have reason to believe they cherry-picked some people who they thought had good references.
I was wondering about that. I was like, “How did you get on that revision list?”
I was suggested by someone who knew me. When I expressed great enthusiasm for it because I enjoyed doing it so much, they kept inviting me back. Lo and behold, one of my children relocates to San Francisco. At that point, I started sitting only in San Francisco.
I was going to say, “Not as many Pasadena sittings.”
Yes, correct. I did sit in Pasadena because it was the location and time at the time when I could do it, but I sat mostly in San Francisco.
I know because I've seen you. I teach in our Ninth Circuit Clinic at Loyola. I know I'm seeing you on a couple of those clinic circuits of sitting, which is so nice that the court does. The students have this amazing experience before they graduate, to say they argued a case. The court and the professors are helping the students get a leg up in terms of their experience. If I'm a partner in a law firm, I'm like, “You already argued a case.” That makes it much easier for me to advocate for you to do more things for clients when they ask, “Have you ever done this before?” “Yes.”
It's a fabulous program. I'm all for it. I was touched by the enthusiasm of the judges on the Ninth Circuit for that program. It is not just the program in the abstract, but their approach to it, specifically, how they handled it with the younger lawyers and law students.
They get a real experience. They were asking real questions of the real case that needs to be decided. They treat those students with respect. It's neat. It wouldn't work without the court's investment in it. It's so essential to that working. It's a good give and take, and what both the court and the students achieved.
Providing Opportunities For Junior Lawyers
Can I talk a little bit about young lawyers relating to that? It is not because of that program, but along with it. I've always been a big advocate for doing what judges can do to give junior lawyers an opportunity to argue in the trial court. I didn't have anything to do with this program in the Ninth Circuit, except to observe the students who preceded my involvement. I adopted a rule that I would give oral argument to a case where I might not, if a junior lawyer, meaning years of experience, not age, would argue.
I always said to everyone, “This is not the junior varsity argument. This is Barbara Lynn, warts and all, the real Barbara Lynn asking you a lot of questions, pressing, etc.” Those opportunities are so scarce that I treasured the opportunity I had to give those opportunities. I would say, 9.5 out of 10, the younger lawyers were fantastic. They recognized what a wonderful gift they were being given. They treasured it and prepared accordingly.
I had one case I can recall, a deer-in-the-headlights moment for a younger lawyer. I invited, in a kind way, the more senior lawyer to join in the argument. I didn't embarrass the junior. This happens. The person could clearly recover, but not right at that moment. I've encouraged colleagues all over the country to try to do the same, because these opportunities are scarce and have gotten more scarce since I started practice.
It's one of those things that can help the partner who wants to provide that opportunity. The judge says, “Otherwise, I'm not getting this at all.” Our colleague argues this.
I've always said, when I've talked about this to more senior lawyers in a firm, “I'm giving you the right to say whatever you want about me to your client. You can blame it all on me. You can use any adjectives you want to describe me. Just make it happen. I don't care about what they think of me for making it happen. Let's make it happen.” When it does happen, they're going to see what a great idea I had.
Especially in that setting. You're not guaranteed an argument on that. You're going to get one, which is nice. A lot of the people who are arguing in that scenario have a lot of background because they've probably worked on drafting the motion or whatever.
I remember before I implemented this as a formal policy, a more senior lawyer was arguing something. I could see a lot of tapping and no passing. I said to the lawyer, “Mr. Jones, the cavalry has arrived. They're right behind you. Why don't you let the cavalry come up with you?” The younger lawyer knew the answer, and the senior lawyer didn't know the answer. I've had occasions where there's a big issue, and the client is worried and concerned. I've let them split. It doesn't have to be the whole argument. It can be a piece of the argument in claim construction or in patent cases. It can be a claim. It can be two claims. It can be a minor witness in a trial. I did something that some people would think is too heavy-handed in a trial. May I share that with you?
Sure.
I had a case where there were two women lawyers who were arguing all the legal matters during the breaks, early in the morning after court. They were doing all the arguments. They were great. It's a very good senior lawyer, a lead trial lawyer on the defense side. I kept saying to the senior lawyer, and I'll call him Joe, “Joe, when is Sue going to have a chance to take a witness?” Brush off, brush off, brush off, but I was relentless. All of a sudden, Sue was never seen again. Everything at this point was argued by Mary.
Finally, Mary gets a witness. She does awesome. Joe says, “Okay,” to me. I say, “Mary was so great. You should give her another witness.” He gave her another witness, and they prevailed. A couple of months later, I was in their town. I called Mary, and I went to lunch with her. My first question was, “Whatever happened to Sue?” She said, “She was afraid you would get her a witness, and she didn't want one.” I said, “What happened to you after the trial?” She said, “I made partner based on my experience primarily in that trial.” Did I cross the line with some not-so-gentle prodding? I don't know. I don't think so.
That's funny. I like the response. “Is that good?” You're like, “It's a good start.”
It all worked out.
That is funny. She didn't want to do that. She wanted to argue the motions.
If you got offered a witness, MC, you would take it.
Yes, figure it out. Study up beforehand. That's funny. I also like that they were so confident that you were going to make it happen that the one who didn't want it felt like, “My only way out was to not be here, because I know eventually she's going to prevail.”
Yes, that's right.
I like that. That's so cool seeing your persuasion coming forward. It's so important to have opportunities for people to get experience and to play some role in making sure that happens.
We don't want to have someone become a trial partner in a law firm that has never had a trial or examined a witness. We're in danger of that happening because there aren't that many trials.
Why Lawyers Must Pay Attention To The Judge
Just helping that along is a good thing. What advice from your time on the bench would you give to litigators?
The number one most important thing is to pay attention to the judge, what the judge wants, how the judge wants to be approached, how the judge wants papers to be filed, how the judge wants to deal with the jury, and most importantly, what the judge wants to know. Twenty-five and a half years later, I still had cases where I would ask a question in oral argument, and the lawyers would ignore it or act annoyed that I had interrupted their planned presentation. I get it. I was a lawyer. I remember being a lawyer. My husband is a trial lawyer. I know all the difficulties and hardships associated with being an active trial lawyer. I know how much people prepare.
Lawyers must pay attention to the judges. Be sure to know what they want, how they want the papers to be filed, and how to deal with the jury.
Nothing matters more than what your decision maker wants to know. It doesn't matter if they're occupying left field or Mars. It is the job of a good advocate to bring the decision maker to the point where they will decide the matter in your favor. Being resentful or dismissive of something that gives you an opportunity to peer into the brain of the decision maker is a gift from God. It should be received with a sense of gratitude, not annoyance.
Otherwise, there is the mystery being up there who is looking at you with not a clue of what they're thinking. When they open their mouth and say something, no matter how foolish you think it is, it tells you where they are. As I said, whether it is left field or Mars, you would not have known that's where they were until they told you so. Why lawyers are acting miffed about this is beyond me. It is a gift to an advocate. That would be my number one guidance.
That's true. I always say that to my students on appellate argument, for sure. “Please, have it not be a cold bench.” You want the questions so you know which issue they're interested in, how you can help them, and where you can help show them things in the record. That's true at whatever level of court you're at. Sometimes, people are so fixed on how they want to present their case and what they think is important that they have tunnel vision. They're like, “Wait, you're interfering with how I'm going to do this.” No, you're not.
If the advocate believes that the judge's arguments suggest something irrelevant to the conclusion that the advocate is arguing, one can respond in that way without being insulting or demeaning to the questioner. “Your Honor, that would be a completely relevant issue to this argument, but for one thing that I want to emphasize.” That's perfectly fine. I had so much more fun when I was engaged with the lawyers. They should be having more fun when they're engaged with me. Throw away your prepared remarks. This is someone who, most of the time, is asking questions because they've gotten in the weeds where you want them to be.
They should say, “Hallelujah, nothing is more fun than a hot bench.” I use that even if they're one person, not just an appellate bench. I had some of my best moments in court when a great advocate would take me on and disagree with something that I suggested. It was because I didn't ask questions. I would make a comment. I embraced the idea of them trying to persuade me that my initial thought was incorrect. You can do that in a respectful way. It's important to do it in a respectful way. Judges do not like to be insulted, and it happens. It happened. It takes a long time to get that washed out of your brain.
I do think that engagement thing is important. The court is engaged, but you're also engaged. That does make it more fun as the litigator, too. As a lawyer or as a decision maker in a case, either way, I would rather engage. Let's find the weaknesses in this position or different arguments to make. I'd rather work that out than not. You want to get the best reasoning and the best results. That's partly how you do that. That's a good point. Some of the things, the way you described it, the reasons for it are helpful. Sometimes, people go, “Yes, we have to answer the judge's questions. Fine.” It's not understanding what that's about and why it's important in the process.
You have much more experience than I do from my Ninth Circuit experience with appellate judges. My sense is, and I've seen this myself in the Ninth Circuit, but I've seen this happen on the Supreme Court, too, there's nothing worse for an advocate than when another judge says to the advocate, “You didn't answer the judge's question.” You've dropped two people out of three, perhaps. That's bad. I've seen that happen at the Supreme Court, too.
Keeping Track Of The Bigger Picture
They're like, “That was a question that was important.” It was important for this judge in the decision-making process. We make sure that we get that answer because people care about the process. The judges care about the decisions and the process. It's not to be rude or annoying to counsel, even though it might be. I wonder now that you're back in practice in part, how do you think your experience on the bench would impact? Do you think there's something that you think about in the past that you did as a litigator that you're like, “I would not have done it that way. I now have insights into things. I would have done something differently.” Is there anything that jumps out at you like that?
I treasured having the opportunity to be a trial judge and an appellate judge. When I first started sitting as an appellate judge, and then I came back to the trial bench, I was a better trial judge because I knew more about how important my record was. When I was an appellate judge, I was much more sympathetic to the trial judge. There were times when trial lawyers were always saying, when they lost on appeal, “Those guys have never tried a case.”
I was very mindful of that. When I sat with judges who were not previously trial judges, I brought that trial perspective. It's too long ago that I was a lawyer to know what I would, and I was a younger lawyer. I feel like my experience of 48 years of being a lawyer and a judge, about an equal amount of time with each, made me a better lawyer by far. I would approach a matter differently than I did as a young lawyer. You have to keep track of the big picture. You can't fight every fight. You've got to watch out for the meaningful issues. You've got to let some things roll off your back as a judge and as a lawyer. You can't rise to every insult.
You can imagine that when I was a junior lawyer, I had a lot of insults rolled my way because there were lawyers who were trying to get me off my game. I can think of one example where it worked. That example, these years of experience, I would have done what I saw a great lawyer do when another lawyer, a man, and another man, a more senior guy, was trying to get the more junior guy off his game. He acted like the other guy was invisible. That was the best approach that I should have taken. I learned that you have to stay focused. You can't take every bump in the road so seriously that you lose sight of the process and the fun of the process. You don't win every battle in the war. You can't overreact to that. Those are lessons that I learned.
That's the selection of you keeping your eye on the big prize of winning the war and being able to step back from everything. We're competitive. We want to win everything, but am I still able to achieve the big goal?
It is not to sacrifice your integrity and professionalism in the process either. Winning at all costs is not a motto that any lawyer should subscribe to. You have pressure from clients and competition with other lawyers to be relentless all the time. Law practice should be fun. There's nothing wrong with going out for a drink with the opposing lawyer. I've always said to junior lawyers that I trained as a lawyer. You're like a gunslinger. You're not literally killing anyone, but you're hired to be the gunslinger and win the trial. You don't hate the other guy. If your client hates, has disdain for, or has strong feelings against the other lawyer, you don't take that on personally. I always said if I couldn't tell my mother what I did, then I shouldn't do it. That was a pretty good way to live your life.
That's a good test. Also, there is civility and collegiality within the profession. Yes, we're going to fight hard in court, but not in a gratuitous way. That doesn't mean we can't meet for lunch or something else afterwards and have collegiality outside of that. That's important.
That's the American Inns of Court view. That's my view. That's why I got involved with the Inns of Court. We need to stick to that. If you're in a small town and you don't know anybody but the opposing lawyer, then go out to dinner with them.
That's helpful. Your comment about sitting on the appellate court and then going back to the bench of the district court, and bringing that experience with you, our entire career, we bring all of our various experiences back with us. The one good thing is that we keep learning. We keep growing and learning. We learn new things by being in that position and seeing, “I'm thinking about this differently because I'm thinking about the record. I'm thinking about other things because I've reviewed those now in other cases.”
It enriches how you do your cases in the district court, too. That continual learning and growth thing is an important thing, too, for us. That's one of the great things, especially when our practice is pretty varied. If you're a trial lawyer or appellate lawyer who does a lot of different types of cases. What I love about it is that I come in tomorrow, and I don't know what case I'm going to be working on for appeal. I love that.
The variety is awesome, and it makes the job continue to be fun.
Going Back To The Legal Practice
It keeps like, “I'm going to learn a new area of law. I'm going to learn everything about this particular appeal.” It is helpful in most cases, unless you're in a specialized court. The judges are getting a range of cases every day, too. It's helpful. You're in that same role that they are. Tell me about you. I think this is now your second official day in the law firm. I guess you can't tell me everything that you're working on because you just started. Where do you see your talents being applied now, back in practice?
I'm handling a number of mediations, including a large mediation that one of my former colleagues asked me to handle. I was actually in the office a few weeks before my start date to get going on that. I'd like to do trial consulting. I'd like to help lawyers formulate strategies for hearings and trials, mock their cases, give them my reaction, and tell them how I think something will play before a jury. I think I'm good at that.
I tried a lot of trials. I can help lawyers in the firm and out of the firm. I'd probably do some arbitrations if they come my way. I would love to do some corporate and government investigations. If I'm retained in those matters, I'm going to continue to mentor young lawyers here and elsewhere. It is anything that comes down the pike, but I'm not likely to go to court and argue. I'd rather rest on my laurels.
Answering Lightning Round Questions
Those are pretty nice laurels. They're good ones. I can see that. Also, you have such a wide-ranging experience that the prism through which you see the cases is multifaceted. There are a lot of things that you might see that others might not, looking at a case from a big picture perspective and a strategic perspective across the life of the case. I can completely see where that's the sweet spot of your value add at this point. Plus, it sounds like a lot of fun to do that. Do things that are fun, like you said, at this point. I'm going to usually end with the lightning round. I'm going to dig into those. I'm going to ask your judicial hat a little bit in terms of your top tips for brief writing, whether it's at the district court or on appeal.
Whenever I got a motion for an extension of page limits, I knew that I was going to be reading the same thing two or three times. It's maybe one out of ten times that somebody needs more pages. They're not called briefs out of coincidence. They're supposed to be relatively brief. If it's too long and too complicated, we're not going to get it. Judges don't have just one case. You want to get their attention with good, clear, not ponderous, well-presented writing. Proofread. I've been saying this for 25 years. When lawyers started a brief by misspelling my name, which is a pretty easy name, they had me annoyed at page one. That is not good. Proofread your work.
Court briefs, as the name suggests, must be short. If it is too long, the judge cannot read it.
You wonder what else is not quite right.
That's exactly what I was going to say. If my impression of you from the first page is, “This is not a careful lawyer,” then I'm not buying what you're saying. It is important. Be concise and be accurate. If God forbid you make a mistake, correct it as soon as you know you made it. That's okay. People make errors, but if three months pass and I first hear about this mistake, which I probably already caught at the oral argument, I'm going to think less of you. That's it.
Similar question for oral argument.
I did say before that it is critically important to answer questions and pay attention to the judge. If you see the judge distracted, say something interesting. I don't suggest knocking your books on the floor. I've done that myself to wake up a sleeping juror, but I don't think you should try that tactic with a dozing judge. Say something interesting. That's going to pump the judge up, even if it's using some language that is going to sound attractive to the judge. Be concise. You don't have to use your complete argument time. When a lawyer stops talking before the time has run, that makes an impression. “Maybe this isn't as complicated as I thought.”
Don't ramble on and repeat. It's the flip side of the same issue about don't repeat yourself in briefs. Don't repeat yourself in an argument. Critically important, if there's a bad case out there, whether your opponent has mentioned it in the briefing, or if you're aptly in the argument, you better deal with that because whether they've mentioned it or not, I'm going to find it. Lawyers who leave that on the table, bad idea. Federal judges have law clerks. They're researching again because experience tells us that the lawyers do not thoroughly research the issues. A bad case is going to be found. A good advocate will tell the judge why it doesn't kill their case.
The ostrich principle does not work in that scenario, especially where you have robust law clerk support and all of that. In any event, the judge wants to find all the relevant cases and decide things properly. You have to assume that, even if the other side didn't cite it, you found it. Those are important things. Which talent would you most like to have but don't?
I would like to either be a good dancer or have my husband be a good dancer, then he could drag me around, but we're both mediocre.
There you go.
He'd be okay for me to lead him if I were a good dancer, but because we're both mediocre, neither one of us is going to lead.
That's what I was going to say. Whoever is the best could handle that and be a good follower. What is the trait you most deplore in yourself? What is the trait you most deplore in others?
Impatience in me. Obviously, a judge has to be patient. I've improved dramatically, but I'm still fundamentally an impatient person. I have to hold my own hand so I don't honk at the guy in front of me. The trait I hate most in others is rudeness. There's a lot of it in the world. People are rude and lacking in compassion.
It's nice to see that when people show it. It would be nice to see it more. If you could wake up tomorrow having gained one quality or ability, what would it be? It might be patience, but it could be something else.
I would like the ability to wind the clock back about three minutes.
That's a good ability.
If I inadvertently said something that, after it came out of my mouth, I wished I hadn't, I would like to roll the clock back and undo it. It doesn't happen often, but everybody has had those moments where they said something that was badly received. You want to undo it and go back.
I like the three minutes because that's enough to solve those things where you go, “That's not what I meant,” or it's perceived a certain way. You're like, “I don't want that person to have that response or whatever.” That's the right amount of time.
I know we're at the end, but I'm going to give one quick example of this. Early on in my career on the bench, before lawyers had time trials and were avoiding asking questions like this, a lawyer asked a witness where he went to high school. He said, “Miami Norland Senior High School.” I said, “No way,” because that's where I went to high school. There was this moment where my brain was saying, “You talked out loud.” I had this image in my head of me with my many abilities as a judge, that I needed the one who put the words back in my mouth. Spontaneity for a judge is not good. I only needed ten seconds, not three minutes.
That was a short one. That was a little bit to bring that back. You can think it. Don't share it. Who are your favorite writers?
I'm a sucker for legal fiction. I love Scott Turow. I love Harper Lee for To Kill a Mockingbird. I could list others. I read much more generally than that. I love Malcolm Gladwell. He's fascinating. His observations are great. I love the classics too, but I'm a sucker for a good legal thriller.
Who is your hero in real life?
I don't regard her as a hero, but she has wonderful qualities. That's Amanda Gorman, the young woman poet. She's brave. She's so observant. She shows a level of empathy that is needed today. Hero is not quite the word I would use to describe her, but she is an outstanding person. I regret to say that I don't think there's much heroic activity going on now. If I were looking at heroic figures, they would be historical figures. Abraham Lincoln, by way of example, is a heroic person in that traditional sense.
I will give one example, although I don't know the person's name or the hero. Without hitting all the details, my very close friend hiked Mount Everest. He was caught up in one of the tragic events where many people died. He almost died. He was rescued off the mountain by a person from Nepal who was a helicopter pilot. He flew up there to rescue people, the second-highest altitude helicopter flight ever. My friend, Beck, thought that someone else was more seriously injured than he and insisted that this person take the first flight. This guy came back and got back.
He had the second and third-highest altitude flights. My children were relatively young when this happened. They brought this guy from Nepal and had a party for him. He won an award at the Smithsonian. I brought my children there to say our friend Beck did a courageous thing hiking Mount Everest, but he wasn't a hero. This guy was the definition of a hero. He jeopardized his own life to save a stranger. That's a heroic act. I can't cite his name, but I remember that very well.
That's amazing. Your friend was so lucky.
Yes, he was.
There was maybe a little divine intervention in that, too. Who knows? I like that definition, though, in terms of sacrificing for another. For what in life do you feel most grateful?
My family. My husband, my children, my mother, who is still alive and kicking, and my friends. I have a very rich life, enriched particularly by my friends and my family.
That's so wonderful to be able to say. It's such a good circle. Good friends are special. The dinner guest question. Given the choice of anyone in the world, with us or not, who would you invite as a dinner guest? You can invite more than one person.
I'm going to invite Amal Clooney. I'm going to hope that she brings George to dinner, too. If I have to have dinner with only one of them, I'm going to have dinner with her because she has led an interesting life as a lawyer and a citizen of the world, and advances and advocates for civil rights in the world. I'd love to have her to dinner. P.S. Bring George along. He's welcome as well.
I like that. Last question, what is your motto if you have one?
Ask for what you want, or you'll never get it. I tell lawyers this. If you want the judge to do something different than what the judge usually does, in a respectful way, ask for what you want and explain why you want it. The worst thing that can happen is you don't get it, and you didn't have it at the start. Be brave. Sometimes, things fall in your lap, but usually, you have to make your own fortune. You should be organized and a good persuader. Judges are set in their ways, but you can convince them to change. Come up with a good explanation and ask for it.
If you want judges to do something different in your case, do it in a respectful way.
Yes, especially if you have a good reason. Sometimes, people say, “That's the way we normally do it.” That's not my courtroom, so I do it this way. If there's a reason for it, sure.
One time, a lawyer asked me if I would switch the tables where the plaintiff sat or where the defendant sat. Nobody ever asked me that before. I thought, “Okay.” Sometimes, I change the wording of the jury charge when lawyers ask me. I did a lot of things where someone asked me, and I thought they had a good reason. I did it. Have courage.
Get In Touch With Judge Barbara
That's a good admonition for a lot of things in life. If you don't ask, you'll never know. Do it in a nice way, not a presumptuous way. Usually, that's more persuasive. Thank you so much for our conversation, for joining the show, and for sharing all your various experiences in the law. I am so grateful to have you be part of this project.
Thank you. It was so much fun. I appreciate it very much, MC. It's great you're doing it.
Thank you so much. Take care.