Episode 176: Patricia Benke
Former California Court of Appeal Justice; Author; Professor; and Counsel at Complex Appellate Litigation Group.
00:55:34
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Show Notes
Legendary former California Court of Appeal Justice Patricia Benke, now in private practice at the Complex Appellate Litigation Group, shares her journey to the bench, tips for effective advocacy, and how when one door closes in your career another one opens. Don't miss this reservoir of wisdom that will undoubtedly inspire you to persevere, regardless of the obstacles on your path. Tune in for an episode that transcends legal insights, offering a compelling narrative of creativity and success.
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About Patricia Benke:
Patricia Benke, now Of Counsel at the boutique appellate litigation firm the Complex Appellate Litigation Group, served as a Justice on the California Court of Appeal for 35 years.
She spent most of that time as an Associate Justice in Division One of the Fourth District Court of Appeal, based in San Diego. She also served as a Temporary Justice in Divisions One, Two, and Three of the Second District, in Los Angeles. Additionally, during her tenure, Pat was appointed temporary Chief Justice of a specially constituted California Supreme Court when the entire Supreme Court disqualified itself in a case involving the sale of the Supreme Court building.
She was the youngest appellate justice in California when appointed, and the first-ever woman in her Division. Pat heard thousands of appeals and issued hundreds of published opinions during her career as an appellate justice, many of which addressed significant civil and criminal issues affecting millions of Californians. The Chief Justice appointed her to the Judicial Council, the statewide body charged with improving the administration of justice in California. She was also appointed a Special Master to the Commission on Judicial Performance, in which she investigated high-profile claims of judicial misconduct. Pat was twice shortlisted for the California Supreme Court.
In 2019, the San Diego County Bar Association named Pat a “Legend of the Bar.” In addition, San Diego’s Earl Gilliam Bar Association, representing Black lawyers, awarded her its first Napoleon A. Jones award for Judicial Excellence and Commitment to Diversity and Community Service in 2011. The San Diego Appellate Inn of Court has also named her a “Special Master,” based on “superior character, ability and competence.”
Prior to her appointment to the appellate bench, she served as a California trial judge. Before becoming a trial judge, Pat was a California Deputy Attorney General, practicing in the Appellate section. In that role, she drafted hundreds of briefs and argued scores of appeals throughout the state. She also helped prepare two cases heard in the United States Supreme Court.
Pat is also an award-winning novelist. She is the author of the popular Judith Thornton series of legal thrillers, and her short story Qudeen the Magnificent was awarded First Place in the Short Story category by the San Diego Book Awards, while her collection of the same name was deemed a Finalist by the national Eric Hoffer Awards.
Transcript
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, women law students, and women leaders. I am very pleased to have on the show my colleague, Patricia Benke, who is amazingly experienced and a former Court of Appeal Justice on the Fourth District Justice in California.
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Welcome, Pat, to the show.
Thank you very much for inviting me.
I’m so excited to have you share your journey to the bench, your early appointment to the bench, and also what you’re doing after the bench. I want to start first with, how did you decide to become a lawyer? What inspired you or what made you decide to go to law school?
My father. I always wanted to go to law school. Even when I was very little, we used to have these wonderful arguments, if you will, or these intellectual arguments, if you could, for an eleven-year-old with my dad even when we totally agreed. Coming from an Arabic community, women were not the standard bearers in their families. Normally, it was the eldest son. My father decided that my brother would be a better football coach, which he turned out to be, and I went on to law school. That’s where the first little seedlings of wanting to be an attorney started.
I took a little journey when I was in college because I fell in love with journalism. I was working at the public television studio on campus, and I fell in love with it. That was the only time in my life that I said, “I want to do something else.” The man I was working for who was my mentor for years, and I’ll never forget it, went over to his desk, picked up a magazine, opened it up, and said, “Look at where the women’s names are in the index and the staff of this magazine. There’s one down at the bottom. It’s going to be like that for fifteen years. I advise you to continue going to law school. If you don’t, I’ll fire you.” He would’ve, so I went on to law school. It was quite an interesting time in my life.
That’s amazing. There are two things in there that really caught me. The first thing was your father and the role that your father had in nurturing you and suggesting that might be a path. That’s something that a few folks have talked about on the show. That certainly was my experience, having a father who saw no limits and said, “Here. You would be good at this,” or not even suggesting there might be a barrier to doing that. That helps you move forward. This second story of your mentor saying, “You might think about a spot where there are more opportunities right now for women,” was that timing question.
Sometimes, you have no control over it. It happens. The horses run by and you get on them. If you don’t, you wait for the next one. It was very interesting from that point in my youngest memories to KPBS, which was the public TV station in San Diego.
I wonder how that interest though in journalism has come out throughout your career, your interest in people, and your curiosity. I see curiosity in you.
I’ve always wanted to write. I’ve always been a writer. I journaled when I was six years old. I loved the creative aspect of writing and the intellectual part of it as well, the synthesis that goes into putting concepts together. It was really a dedication to the process of writing, which is a very intellectual and mental process. I teach and tell my students, “If you can synthesize, you’re halfway there.” It’s a difficult thing to learn. It was pounded into me when I was very young.
If you can synthesize, you're halfway there.
That’s a great part of your journey and your story too, the writing. Sometimes, people feel like once you’ve chosen one path, you can’t do multiple things with your skills and talents. If I decide to go to law school and become a lawyer, that means that somehow, if I’m interested in being some other kind of writer, I can’t do that. I’ve chosen this path, and that’s it. You have experience of writing all different kinds of things.
That’s an important comment because every individual has something they do really well that’s inside them. That runs across disciplines. I remember somebody telling me that writing is a technical thing and you can be a writer in multiple areas of study and work. A writer is a writer. A writer will always be a writer.
I remember that. I had some early midlife sense of, “Maybe I should have been a writer.” I was like you. I was very interested in creative writing and things like that. I took classes in short story writing, creative nonfiction, and all of that, thinking, “I’m going to get my chops going in this arena.” What I noticed was what you’re saying, which is that good writing is good writing across all genres, but there are different techniques that you can borrow or adjust across different types of writing. There are way more commonalities than not across those genres. I learned a lot from taking those classes on how to be a better writer of legal briefs.
That’s what I tell my students. I do have students who ask me all the time, “What is good writing?” I tell them exactly what you’ve said. I’m like, “You take your time with it. I can’t teach you to write at this level of education, but I can tell you good writing is good writing. Don’t worry about whether it’s persuasive or whether it’s objective, which is the way things are taught. Write well and you’ll be objective.” It’s been interesting also. Many of those little pieces fit together so well.
You were guided away from journalism to, “Stick with law school and see where that goes.”
It was terribly abrupt. It was like, “Tomorrow, you’re not coming to work.”
You were like, “I have this,” and they were like, “No. Go here.”
That’s right.
What did you decide to do with your law degree? How did you decide to start out practicing?
I’m fond of saying this, and I’m sorry if I’m repetitive. People have heard this before. It’s the Forrest Gump syndrome with me. I graduated from law and didn’t really have an idea what I wanted to do. At that time, women were not being hired in San Diego. I worked for a very fine firm as a clerk when they were called clerks in an exceptional law school. I was told before I even sat down for the interview, “We are not hiring you, so enjoy yourself. This is a great resume item for you.” I said, “Fine. That’s okay.”
When was that? What timeframe was that?
That was here in San Diego.
‘70s or ‘80s?
That was the early ‘70s. I graduated in ‘74. That was happening right then. I can remember going in for an interview at a smaller firm. I thought the interview was wonderful. I gave them my resume. I walked into the house and the phone rang. It literally was a minute after I got home. One of the partners said, “We wanted to tell you that your interview was terrific, but you’re not going to be hired. You won’t make it through the process. We are not hiring women.” They were very forthcoming about it. I said, “Fine,” and hung up the phone. I didn’t think a wit about it. That one wasn’t going to work out.
I finished up the semester. At the end of the semester, I walked into the law review office one morning and our editor said, “You missed the interviews with the state attorney general’s office doing appeals. They’re looking for deputy attorney generals.” I didn’t know if I was going to wear a badge. It was a deputy attorney general.
He suggested I call them, and I did. I talked with a gentleman who became a Superior Court Judge in San Diego. He was a very fine judge. He said, “Why don’t you come in anyway?” I went in and I was hired. I went through the process and then quickly joined the force there. I did criminal appeals. They were expanding. That was the time the Attorney General’s office was really new to San Diego. Women were a group of seven.
That is really early. I was asking about the timing and the timeframe because the hiring whether by the attorney general’s office or a more local government entity is a common thread, especially in California. Elsewhere in that timeframe, I think of both Justice Ashmann-Gerst and Judith McConnell. A lot of folks have that story of the best experience that you could get was in various roles in government.
It was an amazing experience. As a writer and somebody who loved writing, being in the appellate section of the criminal law department was wonderful because, at that time, the Attorney Generals were allowing you to create your appeal and run with it.
That’s great. What great training.
You learn to shape issues to move them through the system. I was in the California Supreme Court arguing a case after one year of being an attorney. It’s because I worked the case. It was a case in People v. Jaramillo. It’s still out there. It was a case in which I shaped the issues. Cal Supreme took the case and I went with it. I had that wonderful experience very early in my career.
That is really great. I had a thought. My experience may be at a different time, but it’s still the same experience. I had no idea that there was such a thing as you could do appellate law or that you could write. For people like us who love writing and go to law school, I didn’t know there was such a specialty that you could do. It sounds like you were in the right place at the right time for someone suggesting, “You might consider this.” I had no idea there was such a thing there.
I fell into it because it was writing. It employed some of the elements of what I did not want to do, but it created lasting friendships. It was a wonderful teaching opportunity for me to be able to work through transcripts. That experience came in so handy at the court of appeal level once I ended up with a very large case here in San Diego.
Both of my research attorneys were conflicted. One of them was a direct conflict. The other one, we argued the whole time about it. I finally said, “You’re going to do a memo. I’m going to write the brief.” I wrote the memo brief for our court. I could do that because the skills of looking through the record, pulling out what’s in the record, and having that creativity are important aspects of writing.
I’m interested that you’re discussing how creative writing enters into it. It does because how you put issues together and how you frame an issue and argue it is so critical. I wrote that big opinion all by myself with a little bit of help from attorneys writing memos. It was the culmination of many aspects of what I’d done up to that time.
Exactly. That’s such a common thread. I feel like when you look back, you can see the threads. They all come together in this beautiful tapestry that makes complete sense in retrospect. At the time, you were like, “When a great opportunity comes by, I’m taking that. I’m taking the next opportunity.” You may not see how they all fit together at the time it’s happening, but afterward, you’re like, “That makes total sense.” The skills were building on each other and one role was informing the next. It seems natural.
Culturally, it was a period of growth. Within a few years, the series of women going through law school increased dramatically. There were fifteen women in my law school class. Judith McConnell had graduated. She was two years before me. They were real pioneers. These ladies were opening these doors for those of us who were about to come through. Within a relatively short period of time, the numbers in law school dramatically changed.
I was surprised. I learned from talking to guests on the show how rapid that was from the ‘70s into the mid-to-late 1980s and how there was such a big change in that time period. Even the difference between being in law school in the early ‘80s and later in the ‘80s was so dramatic. Having lived through that time, I didn’t realize how close it was to there being fewer women and many more of these, “We’re happy to interview you, but we’re not interested in a longer-term position for a woman lawyer.”
Also, even clerkships. There were some judges who were known to interview women and want at least one woman for a clerkship. Otherwise, it was relatively limited. I can’t even imagine that being that wasn’t my experience a few years later. I’m so grateful that it wasn’t. I didn’t even think about it. Hearing the stories, I realize what a major time of change that was for women in the profession.
The state agencies led the way they were the first to be very open. In fact, when I was at the state attorney general’s office, I was pregnant with our first son. Dan Kramer, who’s a legend within the office, said, “We want you back. You’ve taken eight months. Bring Michael along with you.” What a wonderful concept, but that lasted one day. We went and found someone to help with Mike at home. It was great, and it was wonderful to see.
I remember being interviewed for one of the positions in the Superior Court. The representative from the governor’s office was interviewing me. I said, “I’m pregnant.” He said, “Don’t ever apologize. Why are you apologizing for this?” It was so different. The door opened, and some of us walked in. It was nearly magical. It was one of those times in the development of the law when there was a generational change as well as a change in what the bench looked like.
That’s interesting. That’s why I wanted to ask next. What were you enjoying in the Attorney General’s office and the opportunities there? What made you think, “I’ll apply for the bench.”
The clerk of the court of appeal many years later before he retired said, “I remember when you came in and you said, “I want to sit on this court.” I couldn’t remember that. I would never make such a bold statement. I could not have said that. What happened was another one of those coincidences. George Deukmejian was the State Attorney General. He became the governor. He went right into the roles in his office to fill what then was, by estimate, 65% of the bench. He reached into the office, took those who were pretty much middle management, and put many of us on the bench.
I was in the first group that came through for what was then municipal court. Dan Kramer went directly to the Superior Court, and they moved us along pretty rapidly through the ranks. I can remember I was on Superior Court and my name circulated for the California Supreme Court because there was a change in the court structure up there.
I can remember the newspaper articles throughout the state announcing that woman 37 was on this list. That was the headline, Woman 37 in the Mix. I’d already gotten informal contact. It was, “This isn’t yours. This isn’t going to happen. Wait for the next one because it’s the court of appeal that’s opening up.” That’s exactly what happened. As governors do, they move people along. The system moves people along, and I was part of that.
Governors move people along. The system moves people along.
There’s a good thing to consider, which I know some of my friends on the bench have experienced as well. It is being open to the opportunities but having your name circulate for one position. It may not be the position that you end up being offered, but it gets you circulating and gets you moving. The next one is the one that you’ll be offered the appointment for.
The second time my name circulated, which was about a couple of years later, it pretty much came down to Joyce Kennard. I didn’t know Joyce at the time. She became a wonderful friend. She is an incredible writer. I’ve never seen anybody on the bench write with such a studious focus. It was a great time. That was a serious one. The first one, no. I had a ball. The press was following my family and me around. They were like, “They are going to put another woman on the bench maybe.” It was great. I enjoyed myself.
That’s really good. Justice Kennard was so gracious, kind, and a lovely person. She was always very personable to everyone that she talked to.
She is a great lady. She truly is.
She treats everyone as, “I’m curious to learn about you, relate to you, and get to know you.” It’s a nice quality to have. You had appellate experience and then you’re on the trial court, and then you get to the court of appeal. Did you feel prepared for the trial court since you had the appellate experience? That was really unusual at that point in time because one of the maxims, especially then, was, “You have to have litigated. You have to have been in trial to be on the trial bench.”
That’s not necessary, but it certainly is helpful. My background is not in trial. When I was on the bench, it was not in trial. I had a very steep learning curve. I was in family law for a year because that’s what we did. We recycled books through the family law department, so I learned a lot. I wrote. I still practiced my writing. If the attorneys were coming in, it was important to me how they laid out the issues. It was important for me to write my feelings about the case and my logic for the case so that counsel could see it. That was still a skill that I was employing and enjoyed. I knew all along that was where I wanted to be. It was in the appellate court. It worked out with slight detours. It was remarkable.
When I didn’t work out for the California Supreme Court the second time, which was very serious, I remember leaving my chambers. My judicial assistant was there and everybody was digesting it all. I said, “Don’t worry. While I’m gone, something really great will happen.” A book agent called me. I wasn’t there, but she called me and said, “Would you like to write a book?” I thought, “That’s terrific. Sure. Come on over.” That started my fiction writing.
Did she call about writing a fiction book?
Yes. The reason that happened was that after I did not get the Supreme Court appointment, a newspaper reporter called me and said, “Can we come in and see what you’re doing now?” I said, “Okay.” They took these wonderful photos of me in my chambers. All that appeared in the newspaper in the local section. It was a picture of me sitting in my chambers and the caption underneath said, “Justice Benke is doing A, B, C, and D and getting rejection notices from publishers.” I thought, “Oh my God.” I was so embarrassed.
She read that, and then she called me and said, “Do you want to write a book?” She went through the editing process and we met for lunch. She handed me the manuscript and said, “It’s ready, but I’m not staying in the business anymore. I don’t enjoy it. I’ve got someone in Fullerton for you to talk to.” I talked with her. She took the book, and then two months later, it was sold. That was my first book.
This is such a great story. This is so bad. This is awesome. I love two things about the start of all of this, and then the whole thing is amazing. Your reaction to something that’s pretty disappointing that didn’t work out was like, “Don’t worry. Something great will come. One door closes and another door opens, and we’ll see what that is.” It came from an article that you would say, “I wouldn’t really want that under my name.”
I was so embarrassed. It was this wonderful photo of me with my hands in my lap sitting in my chambers.
That’s the caption. All press is good. That’s what they say. In this case, they were. She said, “I want to be the one that says yes to your manual.”
She did that for me, and that resulted in a two-book contract. I already had a concept of what I wanted to do. I did four books with the same characters.
Tell me about the book.
Each of the books took on a societal problem. The first one was the death penalty. The second one was I dealt with Taggers who write on buildings or on bridges. The third one was the field workers and workers in the field, which I loved. That was the one I fell in love with, the Oaxacan culture. I went into the canyons. You’d enjoy it. It was my chance to be a journalist. I went into the canyons with a journalist friend who spoke. He was my translator.
The fourth one, I was tired of it. I said, “I want to do something else. I want to write a different kind of book.” I was going to set out to write the one great Arabic girl story, what women went through in the Arabic culture moving West. It was going to be the greatest. You always have those wonderful feelings. You’re like, “This is the epic.”
I wrote it. It was 600 pages long. I gave it to my mentor who is still a dear friend. He read everything I wrote and said, “This is the most awful thing I ever read. You really need to reshape this. Write it in a first-person.” I was downcast because I did this at night. I don’t sleep very much. This was my career at night. It wasn’t even a career. It was fun. I chopped it up. I cannibalized it. Out of that came twelve short stories, which is the latest book that I self-published.
When I wrote it, nobody was interested in the Middle East, let alone girls. Nobody knew what Aleppo was and the bombing going on. I said, “I’m going to publish it myself, which I did.” It had a wonderful existence. I was very happy with it. One of the reviewers from the San Diego Union picked it up and wrote a lovely review. He included it in his Books of the Year. That was the last thing I wrote.
Each of those stories is about an Arabic girl, about 11 or 12 years old. They were unrelated individual stories. It begins with the Arabian horses. If you’ve seen Ben-Hur, and everybody has seen Ben-Hur, those four Arabian horses that come into the tent, that’s exactly how they were treated. I learned so much about parts of the culture that I had no idea. I came to love the art and music. It begins with a girl coming over on a big ship alone to New York. I want to get back to it someday.
That’s amazing. The question of self-publishing, independent publishing, or publishing through a traditional publisher is there are so many different considerations for that. Sometimes, it’s the right thing to self-publish or independently publish. You can still get great distribution. It doesn’t really impact.
When I left the series I was writing, I was told by my agent, “You’re going to have to start over. You can’t leap from that to that,” and I did. I had to start over. The publishers weren’t interested in what I was writing. As I had learned in my career, I didn’t care that much. I wanted to sell it, but I wanted to write it.
That’s really neat. The initial series you wrote reminds me of Patricia Hunt Holmes who was one of the first women partners at Vinson & Elkins in Texas. When she left the practice of law, she started writing as well. She has written some books that cover human trafficking concerns. She does the same thing to try to raise consciousness about different issues that are going on and tells them in a more entertaining format so people can learn.
It was such fun. I can remember going into a restaurant and meeting with taggers. They were three young boys who were on probation. They did not know I was a judge at the time, and I didn’t ever advertise that. They were telling me, “We have this condition and this one, and we ignored them.” I said, “Can you stop?” It was so much fun. It was journalism.
That’s so neat that you were able to incorporate that into the writing and then to incorporate the writing.
It was amazing. I remember going to pick my youngest son up from school and I said, “Your mom sold a book.” He looked up at me and said, “Now I’m proud of you.” I’ll never forget that. He was so tiny. He looked up and said, “Now I’m proud of you.” My name circulated for the California Supreme Court. If he was, maybe there’s a kernel of truth in that.
That’s something I understand. That sounds good. That’s amazing. That’s really cool. It takes a lot of energy, fortitude, and passion to do that. It’s a lot of work on the bench, and then to have that, you have to be passionate about it to put that kind of energy in.
You have to be able to stay up late. I wrote the best creative writing of my own in the evening when there was no noise around me. You have to have the ability to sit in one place for very long periods of time and write the same sentence over and over. I wrote my introduction to my short storybook. It took me a year and a half. I kept coming back to it. Finally, I was writing what I had written a year ago and said, “I must be done.”
Exactly. You’re like, “I’ve come full circle.” It’s like when you’re doing legal research. You’re like, “I’m finding the same cases. We’re done.”
For me, it’s the same kind of process.
You’re like, “We’re back there. We are done.” Did you have any sense at the time that you were writing the books that the more regular immersion and the creative writing process had an impact on your writing of opinions or your legal work?
Not really. It’s such a different kind of writing. It’s the personal part of it. The emotional part of it has really no business for me. It was very easy to separate out the hearing of cases. The compassion and the level of caring that goes into bringing out human emotion and motivation were helpful on the bench. It was one of the smallest cases. It was small in the sense that it was going quickly through the moving department.
I’ve had a couple of big cases. I had the Soledad cross case and big constitutional issues. I wrote them myself. It was a case involving a man who came in and the social services were about to take his child from him. It was clear in listening to him that he simply didn’t know how to take care of a baby. His wife had left him. He had the child, and he wasn’t working.
I remember talking to him. I’ll never forget it. I said, “I’m not going to make any rolling today. I want you to go home and I want you to sit next to your child when your child is sleeping. I want you to understand that five years from now, you may not be able to do that. That little girl is going to be gone. Leave and come back. I want to see you again in a month.” He came back. He was wearing a suit. He was wearing a tie. He was with his attorney. He had his list of contacts that he’d made. He had a couple of them that had yielded some work. I said, “That’s great. I told you I would dismiss the case. The case is dismissed,” and I sent him out to his child.
When you write particularly what we call fiction, it’s coming from someplace inside you. I went to a couple of conferences where they were put on by certain attorney groups. The goal was to find out, “How do we find how judges think? How do we get that best angle In this case?” They’re giggling. For me, there’s no such thing. How do you encapsulate that kind of connection? I love it when it happens. All judges have had it, and attorneys do too, with somebody who’s standing in front of you who is a human being and has human issues that the law books don’t take care of. That’s a quality that you can’t capture and talk about at a conference. Maybe you can in a writing conference.
When you write fiction, it's coming from some place inside you.
That’s right because you’re talking about character motivations and whatnot. That has a lot of layers to it. You’re giving someone the opportunity to discover the reason why they need to do these various things for a greater purpose or a greater love.
It’s an element that comes from inside you. For me, being a good judge meant and means tapping that in whatever you do. It is the ability to step back. In my friends on the bench who came in after me, lady judges, I’ve seen that ability to do that. It’s to step back and say, ‘We have all of this, but what’s really at stake here? What are we talking about? We’re talking about this.” I’ve read some briefs that are wonderful because that’s what they start out doing. They’re like, “This case is about this.” I call it the macro and micro view of a case. In micro, you get into everything. The macro is the big picture. Keeping that in mind is so important.
Being a good judge means tapping into the ability to step back in whatever you do.
That is so important. You have to get above things to look at it and say, “What is the pivotal point? What is this case really about? Where does the decision in this case pivot?”
I had a case as a justice. It had been a case that hung on for some time. It was very complicated. It survived the past two research attorneys who were working on it. They went on to other things, but the case remained. It was a mega case involving purchasing a big car dealership by somebody who lived in the Middle East. I sorted through it. I worked with another attorney. I stepped back and said, “This person didn’t want to do it anymore.” In looking at how it got put together on paper, that’s pretty much what it turned out to be. The ability to do that is synthesis. That’s another whole topic.
That’s interesting though, what you talked about. It also reflects a couple of other things though. One is the ability to pull back and observe, which you have to have as a writer, especially as a fiction writer. You need to be able to observe what’s happening and not be a part of what’s happening in order to do that. You have to have some distance.
The other thing is you have to really listen to people and the circumstances. It could be in the trial court and listening to someone so that you can give them the opportunity to discover for themselves why they should do this. It’s like, “Why is this something important to you and your own motivation?” It’s the same thing. You were talking about the decision. When you’re looking at the case, like, “Why is this happening? What’s going on here?” That impacts how you view the whole case, how you view the claims, and everything. It’s so important to be able to do that.
Also, how attorneys approach their job in court. I always say, “You’re an advocate,” but at the same time, appellate attorneys are a unique group because they are not only advocates. They’re also friends of the court. They’re not amicus, but they’re friends because they’re there to help the court sort it out. If you come prepared with five pages of notes and you get the first question after one sentence, and you never get to your notes, then that’s what your job is.
I teach legal writing as well. I’m asked, “What makes a really great appellate attorney? What characteristics?” I always say the same thing. It’s the attorney walks into court with five cases dead set against them and they walk out the prevailing party because they have taken those five cases. They have put them together. They’ve synthesized them. They’ve analyzed how their case fits into that rubric. We’re always looking for rubrics. We’re like, “How do these all fit together? Do they? If they don’t fit together, what can I do to do that? How can I help the court put them together?”
Exactly. We’re advocating for our client, but we also have an obligation to the law and the court writ large, which is, “How does this case fit within the existing framework of the law where the law is developing?” I think of it as a stream. It’s a moving stream. The law itself is. You need to explain where in that stream your client fits and why.
Whatever you’re asking the court to do as a legal matter either properly changes the law for others or directs it in a way that is appropriate both to the law and whatever we want to achieve. Putting a rock here and having the stream continue the way it is is exactly what we should do and why it makes sense not only for our client but for the law overall. I see that as both. You have to have both perspectives.
It’s a personal priority with me because that’s exactly how I view the appellate process. It is the creation. It’s taking what’s there and making whatever it is it’s involved in better and more clear. That is an adversarial process, but at the same time, it’s an intellectually creative process.
It’s both. You need the adversarial part to test the boundaries and to test things. Largely, it has that role. That’s an important one to be able to test.
It comes from that advocacy for your client. I’m not saying you do something different than your client might need you or always the advocate for your client, but it defines your client’s position and what you’re working with legally. Attorneys who understand that is how you help an appellate court can understand where the court is going, and they haven’t even mentioned anything yet. You can tell by the first four questions what’s bothering the court. That’s when you put your notes down and go to item 55. You’re doing that. That’s why I love teaching so much. I’m teaching law students how to do that. It’s difficult.
When we were on site, I’d look out there over all those happy eyes. I would say, “There are five cases. I want you to read each of them. It will take about five minutes for each. I then want you to IRAC them,” which is the process of analysis. They were so happy they did it. They were done. I said, “Take them and put them together, all of them, in two sentences for me.” There was this pause. An hour later, they were still working on it, but every once in a while, someone would look up and the lights would go on. It was, “I got that one.” For me, that’s a wonderful thing, passing this on to those who will be in court.
That’s such a great way of highlighting what you’re talking about. There’s another level. There’s a technically fine level of analyzing an individual case, but then, it’s how you put those all together. That’s the court’s job. It’s, “How do I harmonize all of these things? Where do I go with this?” You help the court by doing that, but also the whole other level of advocacy to do that.
Especially at the appellate level, we listen to each other. I can remember one case I had that was an appeal. The individual had been in prison for almost ten years. It was habeas. He made the argument that the governor owed him money because he was improperly imprisoned. We dispensed with that pretty quickly. It was a civil case.
One of my colleagues came in. I was relatively new on the bench. He said, “When he went to prison, we didn’t have DNA testing. His fifth request is that we give him DNA. Let’s go ahead and do that. Why not?” I said, “Thanks for coming in. That’s a word of wisdom.” We tested him and he could not have done the crime. He’d been in prison for ten years. It got some press coverage. That gentleman had been in prison for ten years, and all it took was somebody on the court of appeal to say, “What does the system lose by listening to what this man is saying and giving us a chance to do what we’re supposed to be doing?”
That’s a really important point there, which is to allow the courts the opportunity to do the right thing if that’s what it turns out to be.
Always. My philosophy, and I stuck through it through 34 years on the bench at the court of appeal, is I never once can recall telling my attorneys, “Please go research this. This is where I’m going.” I always told them, “Go research it. Come back and tell me what you have found. If I agree with it, we move ahead. If I don’t agree with it, something’s wrong. There is some reason why my brain is not accepting this. What is it?” I did that.
There are a couple of cases that I can recall. It was the same type of thing where a three-striker was making his legal arguments in the court of appeal. One of my attorneys came in and said, “Judge, I don’t think this is a third strike. It happened in Michigan. I don’t think it’s a third strike for California.” I said, “Go check it out.” He comes back and says, “It’s not a third strike in California.” You’ve got somebody making an argument, but being open to listening, even to the smallest argument being made, is what that concept turns on. To do it in a way that impacts in a really positive way and creative way for the law is the art of appellate work. That’s what I call it. It’s an art. To me, I enjoy it.
I enjoy it too. There’s a lot of art, and I like defining what that is. You’ve helped explain that a little bit. Sometimes, when you do that, there are so many intuitive jumps that you make that it can be hard to explain to someone else what that looks like.”
That’s why I go to conferences. I don’t think at the appellate level you can define it. It’s innate in somebody who has been at the appellate level and loves it. There are lots of reasons why that happens. The gentleman whose place I took on the court of appeal did not enjoy it at all. He was very much a trial attorney. He knew the art of trial and it wasn’t meshing for him. That’s a very integral part of the system as well.
The love it part, that’s right. The variety of things you can do in the law and how you can use your law degree are almost infinite. It is finding the thing that really does it for you, and maybe there’s more than one thing, and having that spark and going, “I’m excited to deal with these challenges every day.” For some of us, that’s appellate work. For somebody else, it’s something else. It’s the importance of having the love and the respect for it in a way. That’s how I feel advocating. I want to have respect for the law in the system.
It’s an immense respect for the system. There are women who ask me, the women who are in classes of mine and that I talk to, “What should I do? Where should I go?” Go where your heart is. Go where you’re going to get up in the morning and you can’t wait to get to your office. You get up in the morning and say, “I have time to spend with my children this morning because I have picked where I want to be.” Never ever feel that what you do has to be imposed on you by anyone or any system. That’s advice for anybody, but particularly for women who have multiple identities. Men do too, but women certainly do.
We have a lot more. It ebbs and flows what those are when our lives change as parents get older, as kids grow up, and all of these various things. It’s very fluid.
I respect that one should balance what’s in your life and not feel sorry about it. There are no expectations. Do your best and that will always be enough.
Do your best and that will always be enough.
That passion part is really important. Sometimes, you need exposure to things to find out you’d be passionate about it or to be open. What I love about you and your various stories is there’s always curiosity, like a readiness for different things, to be open to the possibility of something instead of being closed to it. If you don’t know what appellate work is, you could be like, “That sounds like something I would like.” That’s so important in life because there are a lot of doors that open. Sometimes, you don’t see that because you’re so focused on another door not being open.
That’s true. I’ve used the analogy of horses running by. If you decide not to get on one, it may not run by again. You may be lucky and get to make that decision again. I can remember one of my students, a lady, in my class when we were on site. This was many years ago. She came up to me after classes in one of my legal writing classes and said, “I don’t think I can do this. I’m an older lady. I’ve had a career.” I said, “What do you do?” She said, “I summarize medical reports for doctors and make them one.” I said, “That’s terrific. You’re going to do fine.” She graduated first in class when she understood that her ability to do that was something she could apply. She wanted to apply. She wasn’t aware she could do it.
Exactly. That’s an important thing too, the translation of skills. Even though they’re called something else or there’s a different label around them, if you can see how that skill is useful to something that sounds very different from what you’re doing, that’s how things move forward. The building of skills on top of each other and applying one skill to a new setting, it’s important to think about it that way.
It’s exactly that. I love teaching because it keeps me connected to people out there. Every once in a while, somebody will ask me, “What should I be doing?” I say what you said, “You do what your heart’s telling you you should do. If you want to try it and you’ve never had a chance to try it, I can help you.” I have somebody in one of my classes that if I had to write a letter of recommendation, it’d be one line, “The best student I have ever had.” That’s the kind of thing that you hope is not retrospective.
Dostoevsky once said this. It was one of his characters. It was Crime and Punishment. He said, “It isn’t what I did that I’m bothered by. It’s what I didn’t do that I’m bothered by.” If you’ve always wanted to be an attorney and life got in the way, take a couple of classes. See if you really do want it because you can do it. I’m like, “Why are you there? You’re telling me you want to be over there. Why don’t you try it?”
Teaching is a mission. You have to have a mission. You have to really want to help people. I’m not sure where it comes from. I’m not talking about me. I’m talking about people that I know in the appellate process who can write that into these complicated problems. They write simplicity into them as well as helpfulness and wisdom. Wisdom is at the top of the pyramid. There’s smart, really smart, brilliant, and then wise. That, to me, is the top of it. You’ve got to step back and always ask. I always ask.
I was a guest at the Supreme Court once filling a vacancy. It was a death penalty case. It was argued by the attorney. I asked him, “If you get what you want, then what does that mean for your client?” He was astounded. He said, “I hadn’t thought about that. I hadn’t thought about if I win this case for my client, how that protects my client.”
From that standpoint, I’m always thinking in cases, “What’s the result of this?” That’s the mosaic of how you put the arguments together in terms of disposition in the case, or, “What do I want to achieve?”
It’s easy to get carried away. It’s easy to get folded into an issue and want to win it. At the appellate level where you’re creating law and it’s in books behind you, that’s important because of legal concepts. They’re decisive but precedent. Precedent has to be a good precedent to make more precedent. To me, that is a particular way of thinking. There’s nothing that says everybody has to love it, but there is a core of people who do love it, thankfully.
Even thinking about disposition, would you get a new trial or would you get a potential judgment in your client’s favor? Those are two very different results.
That’s right. If you get this reversed, do you really want to do it again?
Exactly. I’m like, “It would be nice to end it here in our favor, or does it mean we have to go back with all of that energy, money, time, and emotion that go into the trial? Let’s think about what kind of disposition we can get and what we argue for.”
As I get older, that’s a philosophy that filters through my thinking more so than it ever has before. How do you keep things simple? How do you keep it wise for these parties?
Is it wisdom from experience? Where does it come from?
It comes from inside. Experience is very important to nurture that, but it comes from what your background is. I can think back to my childhood. I’ve thought this way for my entire life in one form or another. I’m like, “Why? Why is this? Why is that? How can it be better?” That’s something that comes from personal experiences. It comes from teaching. It comes from your parents. It comes from adversity and success.
My father was the person who moved us. He made the decision to pick up our family because he couldn’t find work and move to California. I got plugged into the education system in Pasadena. There were teachers there who reached out and said, “You do this. You need to do this,” which is what a good teacher does, but the whole system was geared up for this influx of immigrants and people moving across the country.
My parents were immigrant parents even though they were born in the United States. It was highly influenced by gender and by what women were expected to do and not expected to do. I didn’t thank my father enough for saying phooey on that. He was like, “She’s really smart.” Whether I was or not at that age, I have no idea, but he believed that.
That’s pivotal.
It’s interesting. My brother went on to be a very fine football coach.
I love that. It both worked out according to their talents, skills, and all of that.
My grandfather was always squinting at me. He didn’t speak English. I wrote a chapter into one of my books. I’ll have to go back and see where I put that. It was this intellectual gender argument going on between my grandfather and me.
Typically, I end with a few lightning-round questions. I wanted to ask this first, which talent would you want most to have but don’t? You have a lot of talents.
Thank you. Screenwriting. It’s another lifetime that I might want to be.
Probably in this lifetime, you could still do it. You have so much energy. That could be the next thing. Who are some of your favorite writers?
I haven’t read any of the old classics in a long time. I’m not sure. I read everything I can. I love magazine writing. I should like mysteries, but mysteries aren’t really high on my list. I love short story writing, and those come from everywhere. They don’t necessarily come from established writing.
I love short stories as well. There is such a particular craft to them that’s amazing to see. You have to be very precise and concise. Some people can’t write short stories, and some people are great at writing. Jhumpa Lahiri is amazing. Nancy Packer who used to teach short story writing at Stanford is amazing. She is also a great short story writer. It takes a special writer to do that. I appreciate the technical skill that it takes to do that and then the great storytelling that happens along the way. Who is your hero in real life?
My husband. I have to hand it to him. He manages everything. He is there for anything that I need. With a whirlwind life, it’s important to have somebody who really believes in what you’re doing and is there to support it.
I agree. Having a solid foundation, rock, or someone to return to is really important.
My sister and I are extremely close. She lives in Orange County. We went shopping virtually over the telephone. She walked around the store and sent me pictures.
I like that. You could weigh in. You’re like, “Thumbs up,” or, “Thumbs down.”
There’s nobody I like having dinner with better than her or would want to.
That’s a great thing to be able to say about your sister. That’s awesome. For what in life do you feel most grateful?
I can’t sort it out. My life has taken quick turns that I’ve had no real control over. They happen. I’m blessed. I have no one thing.
Your story is pretty amazing, all the different places you’ve been and the places you’ll go. Given the choice of anyone in the world, living or not living, and it could be more than one person, who would you invite to a dinner party?
It is my mentor who died a few years ago. He was a friend of both me and my husband for decades. He was a producer at KPBS. I remember him arguing and saying, “That’s what’s happening.” Somebody would say, “Why?” He’d be like, “It’s because I’m in charge.” He was an honest, wonderful journalist and truly somebody with life experience. To me, that’s what a mentor does. They help you not just with the skill.
Exactly. This is the last question. What is your motto if you have one?
I don’t. My favorite words are patience and kindness. To be kind and not be cruel is so important, particularly for decision-makers. When you know you’re going to point C and that’s where you’re going, whether you get there by A or you get there by B, that’s what you’re going to do. Be kind in the process and pick the road that is going to be beneficial to everybody. That’s you, the system, and the parties. That’s kindness. Cruelty is one of the things that I wouldn’t say is a deplorable thing to me, but cruelty is something that I have in my lifetime that I have the least patience with.
You have a strong interest and faith in humanity.
That’s a wonderful summary. I don’t think I could have said that any better. Humanity is in everything that we do. That’s our goal. That’s our dedication, particularly judges. The role in society of judges at whatever level is especially that, whether it’s a gentleman coming in because he doesn’t know how to change his children’s diapers or it’s because some mega issue is hitting you. That’s the motto.
Humanity is in everything that we do.
That’s beautiful. I took that from all your discussions. I was like, “Yes.”
Thank you. You summarized it for me.
Thank you so much once again for joining the show and sharing all of your wisdom and insights.
Thank you so much for inviting me. This is a wonderful series. Thank you.
Thank you.