Episode 56: Kimberly Anne Knill
Judge, Superior Court, Orange County, CA
01:04:40
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Show Notes
Judge Kimberly "Kate" Anne Knill of the Orange County Superior Court came to the trial court with experience both as an appellate advocate and a research attorney for the Court of Appeal. In this episode, host M.C. Sungaila and Judge Knill take a look back at her path to the bench and her love affair with the law. Judge Knill describes her experience as an advocate and a judge and discusses what inspired her to seek a position on the bench. Tune in for some great insights from an inspiring woman in the law.
Relevant episode links:
Orange County Superior Court, Pillars of the Earth
About Kimberly "Kate" Anne Knill:
Kimberly "Kate" Anne Knill
The Hon. Kimberly A. Knill was appointed by Governor Edmund G. Brown, Jr. to a judgeship in the Orange County Superior Court on February 27, 2018. She began her tenure in a criminal assignment and is currently sitting in a civil assignment. Most recently, Judge Knill served as an assigned justice with the Second District Court of Appeal, Division Three. Prior to her appointment, Judge Knill served as a chambers attorney in the Fourth District Court of Appeal, Division Three. Judge Knill also worked as a research attorney at the Orange County Superior Court, a temporary judge of the Orange County Superior Court, a writing instructor at Whittier Law School and the University of California Irvine Paralegal Extension, and a sole practitioner for 20 years. For 15 years, she was certified as an Appellate Specialist by the State Bar of California Board of Legal Specialization. She was counsel of record in 165 appellate cases, 14 published. Judge Knill began her legal career as an associate with McDermott, Will & Emery. During her time in private practice, Judge Knill handled multiple appeals pro bono for low income litigants.
Judge Knill is the author of several articles published by the California Bar Journal, Orange County Lawyer, Law360, Los Angeles Lawyer, and the Association of Business Trial Lawyers – Orange County.
Judge Knill served as the Chair of the State Bar Judicial Nominees Evaluation (JNE) Commission and as a board member of the Orange County Bar Association. She also served as the program chair of the Appellate Law section of the Orange County Bar Association, chair of the Mandatory Fee Arbitration Committee, and as a member of the Judiciary Committee. Since taking the bench, Judge Knill continues her volunteer service with the Constitutional Rights Foundation. She is also a member of the Board of Advisors for Pepperdine Caruso School of Law.
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 and women law students. I'm very pleased to have on the show Judge Kimberly Knill from the Orange County Superior Court in California.
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Judge Knill, welcome.
Thank you so much for having me. This is going to be a lovely day. I appreciate being included in your show.
We will talk about your career prior to the bench and your experience both on the superior court and sitting by designation on the Court of Appeal in California. I wanted to go back to the beginning a little bit in terms of how did you decide to become a lawyer and choose to go to law school.
I did not have anyone super close to me who was a lawyer, so I did not get a very good look at what that might look like if I was going to be a lawyer, but I did have a couple of distant relatives. One day, I did go to court and watch one of my uncles try a case, and then, unfortunately, I was involved in a car accident or two when I was a teenager. That resulted in a lawsuit where I was the plaintiff. I had a lawyer for that. I remember him. He was a very kind elderly gentleman that walked me through everything. That's when I first found out about lawyers and maybe what they do.
When I was in college, I was a Business Major, but I knew that that was not quite fitting for me. I enjoyed classes where I could write. I excel well in those types of classes. When senior year rolled around and all of my friends were getting jobs in the business world, I could not imagine doing it, so I thought, “This is it. This is where I need to take my own path,” and that's when I applied to law school.
Your first experience with lawyers was in the courtroom in litigation. Was that something that you thought that you wanted to do then say, “When I think of being a lawyer, I think of doing litigation or trial work,” or did you maybe consider other ways of practicing?
I never considered other ways of practicing. I did not even know they existed. I thought if you were a lawyer, you went into the courtroom. As a teenager, it was a criminal case that my uncle was a prosecutor, and then I had another aunt who was a family lawyer. She also was in court almost every day. To me, that's what it was. When I went to law school, I thought, “I'm probably going to wind up in court.”
As you can imagine, it takes time to build up an appellate practice from basically nothing.
I wonder because sometimes, people have other ideas. I had the idea that I was going to be an international lawyer, and then I found out in law school that generally involved doing transactional work, which like you, was not something I had in mind doing, so I thought, “We better retool that.” Sometimes, reality intercedes into whatever ideas you might have. You did go into litigation, but you also were involved in a specialized type of litigation. Both of us are in terms of appellate. How did you get involved in doing the appellate work as well as other kinds of litigation?
My first job out of law school was with a big law firm. I was in the civil litigation department. At a big law firm in civil litigation, you don't get a lot of trial work, but there's a lot of trial support, so that's what I was doing. In connection with that, every now and then, there would be a writ to the Court of Appeal, or I also maybe had the opportunity to write 1 or 2 appellate briefs during that time of my career. It was about six years that I spent with that firm. Of course, I liked the appellate work in law school. I was very involved in moot court and did a lot of competitions on the board. I already knew that I liked the appellate aspect of things, but in civil litigation, I did not get enough of that for what I felt was what I wanted to gravitate towards.
Did you intern, clerk, or work for any judges during law school or after law school?
I never did, and that's one of the reasons maybe we will talk about later why I have such a passion for accepting externs now in my chambers. It was not an opportunity that I had.
You were six years at a large law firm doing a number of things in litigation, including some appellate work, and then, you liked the appellate work. Did you leave to focus on that?
I did. I left the firm to focus on appellate work, and I became a sole practitioner. As you can imagine, it took some time to build up an appellate practice from nothing, so I phased it in over the next several years. Eventually, I became a certified specialist through the state bar. I was certified for the next fifteen years until my career went in slightly different directions. For those years when I was a sole practitioner, I would say 75% to 80% of my work was appeals.
I would say it would have to be. For those who are familiar with the certification by the state bar, that's a very rigorous process and it involves a lot of actual work in that area in addition to taking an exam, but it has to be a significant amount of your practice. It can't just be dabbling in it to meet the number of cases and experience you need to have to be certified.
They look at a lot of different areas of your practice and drill down and ask very specific questions about your experience. You have to give them case numbers, names, and so forth to prove what you have been doing. That was good, and I did that because I wanted to. At the time, there were not very many appellate specialists. It’s a different specialty from the state bar. The others are family law, trust in the states, and others like that, but appellate law, when you take the exam, it's the only certification exam where you have to choose a subject area. I had to choose either criminal or civil to be tested on the content of the law, but all in the context of an appellate procedural setting. I chose civil because I was more comfortable with that, but it was good. There probably are more specialists now, but at the time that I was practicing in that area, there were not very many, especially in Orange County. There was probably only a couple of dozen.
It's still a limited number within the state. It’s helpful to have that designation. That's pretty courageous to leave a big firm, start your own practice, and decide that you are going to focus on appellate work and develop that clientele. Are there any bits of advice about someone either starting their own firm or developing clientele in an area? How did you do that?
For one, I knew some sole practitioner attorneys who were excellent trial attorneys and wanted nothing to do with appeals, so that was a good mix. At some point, I even referred my clients that were going to trial to them and they referred their clients that needed appellate work to me. That’s one way, but as you say, that takes time. I also did a lot of work in the child neglect area. Those were appointed cases, and those come pretty consistently if you get your reputation to the point where everyone involved is comfortable. The Court of Appeal is appointing me as appointed counsel on those cases. Much of my work up and down the state, and not just in Orange County, was in that area.
What did you like about appellate practice as compared to trial practice or civil litigation?
As we both know, the facts are developed in the trial court through whatever means. It could be on paper, testimony, or whatever. Once that's finished and we are ready to move on to the Court of Appeal, we have a set record, and some people would call it a cold record. In some ways, it is because you are just reading, but all the pieces are already on the board. Now, it’s a matter of how we are going to present them to the higher court.
I enjoy that intellectual pursuit or intellectual exercise. I was really good at finding facts that matched up with law or vice versa from my so-called cold record. That process seemed more satisfying to me because I was not in the courtroom having to respond on the fly to evidentiary objections, motions, or a judge that was ruling one way when I thought he or she should rule the other way. All of these things that go on every day in trial, I did not feel like it was my skillset. I have tried cases. I can do it, but what I prefer to do is to take that record, massage it, and then work it into something that I want it to be and present a compelling argument to the Court of Appeal on why my client should prevail at that level. It was a more satisfying exercise for me as a lawyer.
I want to ask that because there is a distinction between those two different kinds of practice. As you said, there are some trial lawyers who were like, “I don’t want to be any part of that. Please, somebody else handle that.” There are others who like to do both and can see the value in both. It’s also helpful for people who think they might be interested in it to know the different skills that are necessary for it. Let’s put it that way. Writing is very important.
We used to call ourselves generalists at the court of appeals because we have to learn to know it all case by case as we go along.
Also, research. There are a lot of attorneys that don't want anything to do with that, and I completely understand. I have known some good attorneys that focus on other areas. For me, the writing and research were what I liked about the law. I learned that in my first year of law school. I did not know it before, but I learned that then and carried it through my career.
Another point that you mentioned that resonated with me was when you said people have the phrase of the cold, hard light of the record. There is life to that record. There is a story to be seen in it. That story needs to be told, and that's the job of the appellate lawyer to do that. Whether you see it as a cold record or not, maybe that partially defines whether you are an appellate lawyer or not, or whether you like it because it seems very powerful. It's cold. In some ways, you don't see things, but there's a story from all of it that comes through when you read the entire transcript of a trial.
You can get a sense of what's going on even if you don't have the visual, and then, you need to recreate that or create that into a brief that tells a compelling story and narrative to the court in a way that matters to that court in terms of determining the legal question that they are asked to decide. It’s a different thing, but when you said, “It does not seem cold to me,” I was like, “It does not seem cold to me either.” You mold stories out of different things, whether it's clay or something else. Here, we just use a different material to mold the story for the Court of Appeal than a trial lawyer would.
As you were explaining that, I completely agree. It occurred to me a lot of times that in a trial, we will have multiple witnesses and they will come in sometimes in whatever order they are available. Sometimes, they will even come out of order. As a judge trying to figure out all this as it goes and you are taking notes and so forth, the whole picture does not become clear until the very end, which is why we don't prejudge cases.
At a trial, we might have witness after witness, and each witness is telling a little piece of the story. Maybe it overlaps a little bit. Maybe one witness corroborates to another witness or does not corroborate to another witness, but with the appeal, you have everything. It’s there. You can read the very last witness that testified in the trial first if you want to, and then, as you are preparing this to the Court of Appeal, most people don't, or at least I tried not to, recite to the Court of Appeal witness by witness the same way unfolded in the trial court. I try to put together a more cohesive story for the Court of Appeal. I weave it all together into something that looks completely different.
You are putting it in an order that can explain like, “Here's what happened on this record.” You are telling the story using words instead of other visuals and things that you would use at trial. You had your practice and focused on appellate practice for some time. After that, was that when you became a research attorney at the Court of Appeal or was there something else that you did?
The first thing I did before I went to the Court of Appeals, I was a research attorney here at the Orange County Superior Court.
You were a research attorney at the court where you now sit as a judge.
That was about two years. There were lots of research and writing in that. That was my entire job. I worked for five civil judges on the unlimited general panels here. I then went to the Court of Appeal and was a chambers attorney there for a shy of two years before I was appointed to the bench.
That’s to distinguish those roles. You are a very experienced attorney when you took them on. That's very different from a judicial clerkship, which would be right out of law school, soon after law school, or maybe a few years into practice. These are positions that people will hold for some time, as we refer to, more of a career attorney position for at least a longer-term and not a short-term.
It’s not a clerkship or an externship. It's a career, as you said. You need some experience, or you do at least in our court. Some courts will hire folks right out of law school. Ours does not. You need a solid background in research, writing, and whatever area that the court is hiring you to serve. In my case, it was civil.
When you said five unlimited civil, my eyes went wide because I was thinking that is a whole lot of work knowing that each one of them has a lot of work, a lot of motions and things that need to be worked up. That's so much work having that be your first position. In a year or two out of law school, that would be overwhelming because you need to have a certain amount of independence and foundation to bring to that job.
I don't think it would work well, or at least not with the volume of work that we have in our court, to have that position right out of law school.
How was it being a research attorney at the Court of Appeal you have been an advocate, had argued, and briefed cases? Did you learn some new things when you were there in terms of thinking like, “I wish I had known this when I was an advocate? If I had known this, this would have been helpful. I would have been more helpful to the court if I had done things a certain way.”
I can't think of anything that falls into that exact category, but something you said reminded me of something. When I took the job at the superior court, that's when I first became neutral, so before going to the Court of Appeal, I had already been neutral. That's what I would refer to it now. I learned that was a shift in my thinking and my approach to everything.
It doesn't matter what court you're in. Any judge would appreciate it if people paid really more attention to the details when they're writing or arguing.
I'm sure you have had this experience where you pick up a brief, motion, or whatever it is of one side and you read it. By the time you get to the end, you think, “Slam dunk. You are right,” and you pick up the opposing brief, read that, and you think, “You are right,” and then you have to go back and forth. As a neutral, it was like that. You are weighing things all the time. If we have strong advocates on both sides, it is a very intense, and to me, satisfying at the end of the day experience. When I got to the Court of Appeal, I was pretty grounded. I knew what I was looking at. What fascinated me more than anything was how they made the sausage.
That’s what I was getting at. It puts you in that position. On a shorter basis, having the clerkship out of law school, you see at least how one chamber or one court’s decision-making process goes. That can be very eye-opening, and you don't have that outside of that. You don't have an opportunity to see that, so it's a great opportunity.
I will say from an insider's view, when I was a chambers attorney at the Court of Appeal, one thing that gave me hope and encouragement was that I saw how the justice has struggled with some of the legal questions that they have to decide. Maybe I thought I was the only one that sometimes struggled with a legal issue or could not fully wrap my head around it right away as fast as I would want. You get into a super-thorny issue, and I'm thinking anti-slap.
Some anti-slap cases are very difficult to figure out, but it does not have to be that. That's just one example. I see them in a conference or I see them come in and talk to their research attorneys and they are as baffled as the rest of us. It made me feel good, like, “This is something we all have to deal with. I'm no different than the next person when it comes to some of these thorny legal issues.”
There's a certain level of humanity at that level. It’s like, “We are all doing our best to get through this.” Also, there’s camaraderie like, “I'm not the only one that has to go through that feeling.” It always feels like that. In some of the complex cases where you have to go through the darkness to see the light, you are trying to reconcile pieces or figure out where the law is going or how a novel issue should be decided. There's a lot of back and forth and it can be challenging. You might think, “I don't think I'm ever going to figure this out or come out with an answer,” but then it happens. The light and epiphany happen. All is nice and worked out, but it can be challenging as an advocate or not for that period.
That’s where I was going with it. As an advocate, I had been through that many times, as I'm sure you have too, but it was comforting to know that the justices go through the same thing.
As I said, there is humanity. It also gives you faith. They want to do the right thing and are working hard to do that. You said you had two years in the Court of Appeal as a research attorney, and then you joined the superior court bench. What gave you that impetus to apply for a judicial position?
I had been serving as a commissioner on the JNE Commission. For California judges, most of us know that that's the commission to see who the governor wants to appoint to various judicial positions throughout the state. I remember vividly being a first-year commissioner. I was there for four years, but the first year, I was thinking to myself, “I cannot believe the scrutiny that these applicants are undergoing in order to possibly be appointed to whatever court they had applied to.” I was like, “I don’t want to go through that scrutiny. I don't know if I could pass. This is intense.”
I had that experience over and over again, but as the four years went on, I started to realize it's probably not quite as daunting as I originally thought, and then I saw hundreds of applications during that time. I could see the applicant pool. At the time, Governor Brown was very focused on appointing people from a range of different legal backgrounds and experiences. He did that repeatedly. I saw that happening, and then I saw the folks that were applying. I had in my mind that if you are going to be a trial judge, you should be a trial lawyer, and that's who becomes a trial judge. It’s trial lawyers. That is the true part of the time, but I didn't realize that there was a much bigger universe out there of people that the governor was not only interested in appointing but could serve a valuable place on the court.
That was a realization that came to me over a period of years. At one point, I remember where I was and what I was doing when I got the flash that I can do this. I was like, “I should do this. I should not self-select and make the decision myself that I can't be a judge or I should not be a judge. I'm going to let the governor decide that. I'm going to put my best foot forward. This looks like something that's a fit for me and that I'm going to enjoy,” so I applied.
A few people have served on JNE or similar types of vetting commissions. It does open your eyes to what the appointing body or the governor is interested in. You can see, as you said, the applicant pool, and it can give you that sense of like, “I can apply for that too,” because you might have in your mind, or even in the past, it may have been the case. Somebody with a certain number of trials or a certain type of experience is best positioned for an appointment to a particular court.
Either that criteria may have changed or that criteria may have never been the criteria. You just think it was in your mind. When you see that, it opens up your heart to those possibilities. Also, as a practical matter, it is a rigorous vetting process, but you have seen the process, so you have a better sense of like, “I know what's going to happen. I know how it proceeds.” At least that mystery is taken out of it. You know it's rigorous, but you have seen the process.
That was the short answer. I had many people encourage me along the way, but I'm saying that I did not hope to be a judge my entire career. It did not happen like that. For me, it was more recent.
When you're thinking about where you want to work, you need to have a conversation with the potential employer about what work-life balance looks like in that company.
That’s important for people to hear and know because I know there are some people like, “If I did not plan that from the time I graduated from law school, it might not be possible for me.” That's not the case. There are some people who do have that sense from the very beginning that it's something they would like to do, and other people grow into it or see that as, like in your case, the next evolution of their career and where they can grow and can best contribute at that point. In addition to your positions, which is common, it's not like you suddenly woke up and decided that you wanted to serve the public in some way because you were involved with bar associations and a lot of other community work before applying for the bench.
I was, and I very much enjoyed that time with the bar association and the Constitutional Rights Foundation.
That’s a common thread too. People interested in serving in some way serve in other ways as well. You can see that it's a genuine interest in doing that in your background. Now, you are on the court where you were a research attorney. How is that going? What do you enjoy about the job? Is there something different? Maybe you thought it would involve something else, but it looks very different or feels different.
Being a trial judge is very different from being an appellate anything, but I have also learned that not all assignments are created equally at the trial court since I have been here. We have lots of different subject areas that we deal with. I'm on a civil assignment, but I'm taking overflow cases from our probate panel. I enjoy learning the various areas that our probate handles, not probate. It’s guardianship, conservatorship, mental health, and some other things like that, but some judges are in an assignment where they do a lot of jury trials. Some judges are in an assignment where they do a lot of court trials. What I have found in my assignment, I do court trials, which I prefer, mainly because I get to write. Not every case requires a statement of decision, but a lot of them do, so this assignment fits that skillset of mine to where I'm able to write.
I also have not always been in this assignment, so I know what it's like to be in a jury trial assignment when I'm writing nothing. I’m just handling motions, objections, or paneling juries. Most of the time, that would be my job. Now, I would say that I have a good level of professional satisfaction, and I'm very grateful for where I'm located and where I'm serving, but of course, there's no guarantee that that will ever continue. I see the judges over in family law are similarly situated and that they don't have jury trials. They wind up doing a lot of writing. I see judges on other panels that have a lot of jury trials, so who knows where I'm headed with regard to that, but now, I'm very happy.
That’s an interesting thing to think about. One of the things that I was hoping to explore in the show was that when you say being a judge looks very different depending on what level of the court system you are at, whether you are doing trials or appeals. Also, the subject matter of the cases, you are in a different setting. You can be in a number of different moving assignments from civil to probate to a number of family law. You can have different assignments, and those are different substantive things that you need to adjust to as you are moving into the different assignments, so there's always a learning curve when you do that.
The point that you made is that when you are in those different areas, the work you are doing is different. I think that when people think of trial judges, they think of being in trial and having trials with jurors. It was important to point out what you did, which is you were like, “That's not the only thing we are doing. In some assignments and some areas of the law, we are not doing that at all.”
It's true, and maybe we will talk a little bit more about the appellate too, but there's a much wider range of subject areas that we handle at the appellate level than what I handle now or than what I handled when I was in private practice.
Let's talk about your sitting by designation on the Court of Appeal. That's something that happens in California when there's a vacancy in a particular division or district and they need help. They can call for help from trial court judges in different locations. First of all, how did your sitting by designation come about, and then what was that like?
I was invited to sit by designation up in Los Angeles.
That was by the presiding judge of that division, right? That's how that worked?
It was by the administrative presiding judge of the entire court. In conjunction with the presiding justice of the division where I sat, he chose for me to sit in that division, but maybe some of your readers might want to realize that all of the justices at the Court of Appeal level are all of the justices are appointed. They have to go onto the ballot to be confirmed for another term, but initially, they are appointed. Whereas at the trial level in California, you can be appointed or elected.
Up in Los Angeles where I was sitting, they had multiple vacancies, and those vacancies could be filled by trial judges anywhere in the state technically. That's why they were getting low on Los Angeles and were able to snatch me up from Orange County for a short period of time. That's what happened. I was invited to serve, and I did, and that was for three months. It ended a couple of months ago, but I'm still in the aftermath because you can't nicely shut the door to something like that. There's sometimes work that has to still be done.
You are working on opinions, or there might be rehearing or other things like that. You need to finish the case.
Exactly. The cases are mine. How did I like it? I loved it. When I was a chamber attorney in the Court of Appeal, that was down here in the Fourth District in Orange County in Santa Ana. To my surprise, there was a lot of difference between the two.
I was going to ask you about that.
Of course, I practiced in both courts as an attorney, but internally, at the court, there is quite a difference. Once I started to understand that there was a difference and I found my way, it was fantastic. It wasn't quite the same as if I was the justice that was sitting there. For example, I did not have a full legal research staff. I had a judicial assistant that was available to me, but she was also working with a lot of other judges sitting on assignments like I was, so it did not flow quite the same way that it would if I had been there permanently, but that didn't matter to me because I knew the work. I knew what I had to do. I knew the lifecycle of the case. I could do it.
I did have some legal research help on some of the matters, but I wrote a lot on my own. I was in my element. I adored it. I like about the Court of Appeal because they can have cases from any subject area. We used to call ourselves generalists when I worked at the Court of Appeal because, of course, we don't know it all, but we have to learn it all or learn to know it all case by case as we go along. We don't have death penalty cases, or at least we did not when I was there. Now, there are some limited habeas corpus petitions and death penalty cases that can be filed at the Court of Appeal. We did not have that when I was there and I did not have one when I was in Los Angeles either, but it could be anything other than that. It could be family law, trust, juvenile, criminal, civil, mental health, anything. I like that. It's very rewarding to be able to pick up a case and say, “This is something that’s a little bit new. Let's see where it takes us.”
We are all just human beings going through this life, trying to do the very best we can.
I like that about appellate practice as well. It’s very varied. Some people specialize in particular subject areas, but I like a variety of different things, different kinds of cases, and different areas of the law. It keeps it engaging and fresh to do that. You may have various assignments at different times in the trial court, but on the Court of Appeal, you could be getting appeals from any of those particular trial court assignments. You are all together on one calendar. From case to case, you are changing at the same time. From your experience sitting by designation on the Court of Appeal or as a trial judge, are there any tips that you would have for advocates in presenting their cases, arguments, or anything that would make your job easier?
Yes. The main thing I would say to people who are practicing in a court somewhere as a lawyer is to be true to the facts and the law that the court is reviewing. That might sound like an obvious statement, but it's something that people often stray from, so if you have a fact that you want to get before the court, make sure that it's exactly that fact, it’s exactly what the person said, or it's exactly what's in the record. Don't stray beyond what was testified to or what the contract says. Don't tell me what you wanted it to say. Don't paraphrase in a way that changes the content of what it actually says, but stay true to the factual record that you are presenting to the court.
Also, stay true to the law that applies. In other words, cite relevant cases. Make the court aware if there's nothing out there that's on point here, so you are arguing an extension of the law in this area or something along that line. Quote statutes and case law accurately. Be careful with your citations so that the court can rely on what you are saying. I want to be able to pick up a brief, turn to the citation, pull it up on Westlaw, and agree with whatever has been written in the brief like, “That is what the case says.” We can argue about whether or not it applies or it does not, or it should be expanded or contracted, or there's another case that differs or whatever, but at least show me that the cite you are giving me is true and there's some integrity there.
Everything you write and say to the court and every representation you make to the court, whether it be fact or law, make sure it's 100% accurate because then you develop the reputation of an attorney who is trustworthy. As time goes on, that reputation will serve you well. You don't want the court doubting the case you cited, the fact that you are citing or the argument you are making because you have a reputation of maybe not being super careful on attention to detail on those things. It's important. I have been with the courts for several years. I have seen advocates do this and not do this. It does not matter what court you are in. Any judge would appreciate it if people paid more attention to those things when they are writing or arguing morally.
It’s an across-the-board suggestion. It is not specifically trial court or appellate court. It's a good general rule of thumb for any court.
I agree. I wish I did not have to say it, but there's a reason why I'm saying it. It stands out when you have the advocates that stick close to that integrity.
I think about it in the appellate context. I know from working with trial lawyers, they know a lot more of what's going on or what happened in the case, and sometimes, their factual knowledge exceeds the recorded knowledge, so you say, “I know you know that fact, but it is not in this record. I can't say it. I can't say anything about that unless I'm asked.” I say, “It’s not in the record, but here's the fact.” That's one way things can get a little expanded at times at least on appeal and you have to reign that in, but this is a general integrity question.
It happens with the trial court too.
Does it?
It does.
I was wondering about that because I do think it's an honest thing. Someone who's living with the case for many years knows all of these various facts and things that they know from litigating the case, but it does not appear anywhere that you can see or that is in the testimony. I look at those as good faith mess-ups in some circumstances where you know this, so you think it must be in there, but it is not. Even in that case, it’s making sure that what you are saying is supported and it's in the record instead of something you just remember from one of many interactions you had during the case.
It's a skill that can be developed. It’s taught and maybe sometimes talked about. It’s taught in law school, but it's a good reminder.
That’s a good tip. In your time on the bench or previously, are there some judges that you have read the work or opinions of theirs? Are there particular judges that you admire?
I have to say yes. If you ask me which judge I admire the most from those I have worked with, I'm going to stick with those I have worked with and that I know personally. I'm going to have to say that at the very top of the list is Justice Lee Edmon in Los Angeles. I was able to work with her for a period of time in 2021.
She's very real and I like that about her. She's approachable, very smart, has an excellent work ethic, a good mentor type of person, writes well, analyzes well, understands the law, and has a great history in the legal profession as a woman. We need more women judges that are coming up and bringing to the profession the level of experience and professionalism that Justice Edmon shows. It was a pleasure to get to know her and work with her side by side.
She’s the presiding justice of the division that you were in, right?
Correct.
I first met her when she was state bar president. She was remarkable then in terms of her convening people around issues, being very empathetic towards people, and as you said, very open and engaging. She drove down from Los Angeles to Orange County to meet me for lunch when I was maybe a third-year associate out of law school. She was like, “I think you could be helpful to me on this particular assignment. I would like to talk this through with you.” She was the one who volunteered to come down, make the drive and meet with me to talk to me about things. I have not forgotten that. It was very impressive, so I can understand why she would be at the top of your list of people you would admire in the judicial position as well, given her history of doing that.
It's getting better. There are more women in this position, but there are still mostly men that are in the position of the judge, so when you come in as a woman, those that were on the rear frontier, and I know you have done some interviews with some of them, it's so impressive and inspiring, I was not in that generation. I'm in the next generation, and then, the generation coming up now, the externs that I like to mentor, have a different set of challenges that they are facing. I had a different set, and then some of the women on the frontier had a different set, but still, we are making progress. We are not at the point where there are as many women as there are men on the bench, so to find and see an example of a shining star on the bench who has come as far as she has and has the support that she has, it's very inspirational to someone like me who's a younger judge.
We may have seen this particular motion or this particular argument before, but there's always something new in court.
She has that nurturing aspect where she wants you to succeed and she wants to help elevate others in addition to doing really great work. You get the feeling. That's a good thing to see. You mentioned there were challenges of the pioneering women lawyers, and then, of course, our generation and then the generation after. When you think about the different challenges, are there particular things you are thinking of how those challenges play out in the different generations?
The first thing that comes to mind is balancing career and family. When I was a young associate, that was not part of the discussion of what was going on. There was not any talk about, “How are you going to balance work and family?” It was new work. You also have a family and you were supposed to do both 100% of the time, which I never quite figured out how that's possible.
I always tell my externs now, “Think about this going forward as you try to decide where you want to go to work in the law and consider lifestyle, work, and family balance if a family is important to you. It may not be, and that's fine too, but I'm asking you to consider these things because there is a law of physics that applies to all of us, and that is, we cannot be in more than one place at one time.
I cannot be baking cookies for my kindergarten class and arguing at the Court of Appeal on the same morning. It's impossible, so how are we going to deal with that as women? If you have both of those things that you want to do, you may not, so how are you going to do it?” That is a conversation that we are having, in my view at least. I talk about that with my externs that are here in law school.
Food for thought, think it through, and then, when you are thinking about where you want to work, have a conversation with the employer or potential employer as well about what work-life balance looks like in that firm, location, company, government entity, or whatever it is. I feel like we are coming closer to a point where we can talk about that openly without right away assuming that you are not going to be able to fulfill your role in the workplace because you are also fulfilling a role in the home.
I do not have all the answers. I don't even know if I have any answers on that issue, but I see that area evolving for women in the law, and I see law firms or even government entities allowing more flexibility. The COVID pandemic has probably helped in some ways because we are realizing what we can get things done from home, via Zoom, or some other platform. I still have hearings in my courtroom over Zoom. We realize that there is more flexibility than maybe some of us thought. I know it has been eye-opening for me. That will probably help women in the profession, is what I'm getting at.
I hope that's the case because it has been ultra-challenging, at least in the short-term. You are working at home and the children were not in school. There were all of these various things that people with young families had to deal with all at once, but women had extra challenges during the pandemic. Hopefully, the silver lining from that is what you mentioned, which they still got stuff done, did not suffer, work still happened, and it can be helpful to have that flexibility. Employers should consider that that’s a viable option where they might not have seen that before.
Many things now with remote work, you can see many firms are advertising for that saying, “It’s fine. This is a remote work opportunity. You don’t need to be in the office every day or even in this particular geographic location.” It leaves more flexibility for opportunities as well. You have externs. You mentioned earlier that you wanted to provide those opportunities for law students. Not all judges in the superior court have externs. Is that a choice that you can make or is that something that the court decides whether it wants to have student externs?
At our court, we have a very robust externship program. Participation by judges is completely voluntary. We have a handful of judges that like it and do it repeatedly. I ended up being one of those. I did not know I would be. I have benefited from the mentorship of others in my life. I still have a mentor, so it's very important, but also, as I mentioned, I did not have the opportunity to extern or clerk when I was in law school, so I want to provide that to other people. I dipped my toes in the water a little bit.
The first time, I only had one. I maybe did a couple of semesters like that and even in the summer, and then, last summer in 2021, I wound up having two. I found out that I liked those two at a time because there was a synergy between them. This summer in 2022, I'm having three, but it's because I see that their eyes light up when they get to see these different experiences. They have only talked about them or read about them in law school and then they come into the courtroom and are so happy that they are able to experience a wide range of cases. I send them out all over the place. I send them all over the county. I send them to different courtrooms so they can see different judges because we are all very different.
We are in different subject matters and also different legal areas, jury trials, or court trials that we were talking about before, but I always start with them in my courtroom for at least two weeks or sometimes three. They sit there every day and they have their notepad. They come in and we debrief at the end. I say, “How effective was this lawyer's argument when they said such and such,” or, “How effective was the response to that?” or, “What did you think about that self-represented litigant who was arguing this or that?” They learn what to do and what not to do. It’s a wonderful experience that I wish I had had, so I do that as much as I can. I give back.
I also help them with their writing a little bit along the way. It's not just observation, but a lot of it goes back to what I was saying too about the justices at the court and me getting to know them when I was a chambers attorney there. They are getting to know me and they are getting to know other judges. They are coming to the same realization like, “We are all human beings going through this life trying to do the very best we can. We are just people.” I have had so many of them tell me, “You are normal,” and I’m like, “I hope so.”
It’s good to know that there are people out there that you can approach. They keep in touch with me, and it is a delight when I find out like, “I got a new job,” or, “I passed the bar.” A lot of them come back to me and ask to swear them in. That is always a privilege for me to be able to do that. It’s honestly one of the most rewarding parts of my job. It always feels good to help other people and give back, and that's part of what I do there.
Seeing their eyes light up or seeing things for the first time and to be part of that experience with them is gratifying. When I'm teaching in different law schools, I know that it's great to see that. You see the light bulb go on or something that they are seeing for the first time and they are figuring out how it all works. It's nice to see that happen and to be part of that. You mentioned you were paying it forward in a way in doing this that you had been mentored and you appreciated that. Could you talk a little bit about that experience of being mentored and maybe who your mentors were and what that looks like? When you refer to mentoring, what kinds of things did they do?
One of the things that I tell my folks that I'm swearing into the bar is the very first thing you should do is find a mentor. Thankfully, I had more than one right out of law school, and these were partners that were in the firm that I worked at, so it was an obvious arrangement there. What I learned is some of what I have told you. It’s how to write with integrity. I learned demeanor, how to behave in a deposition, and how not to be scared when my opponent had a really good argument that I could not think of a way to respond to right away. They were like, “Don't be scared. There's a way.”
There were many times when I thought that our client's legal position had us backed into a corner. I would go to my mentor and say, “What are we going to do here? This is the argument.” We talked it through and sure enough, it was not near as dire as I had thought it was. It was just my first analysis. I learned not to be scared. There's always going to be an argument you can make, and there's a way to make it respectfully and thoroughly in your papers and when you are in court. I learned all the basics of being a good, solid advocate in my early years.
As time goes on, you reach new levels in your career hopefully, and not maybe in a new position but a new level in the same position that you are already in. Maybe now, you are handling a more difficult case, a bigger client, or a more difficult client, so as time goes on, I learned that I always needed to have somebody there for me to go to and bounce issues off. I have been very fortunate, and I'm so grateful for the people who have stepped up and done that for me at various times.
When opportunities come my way, I'm too scared maybe to walk through that door right away. It was almost the same with me applying to be a judge. When an opportunity comes my way, I’m like, “Do I have what it takes to do this? Should I do it?” Then, people that come alongside me encourage me and say, “You do. You got this. I will be there with you. I will be your safety net, but you can go forward. You step out. You do this. You got it.” I have heard that many times from different people over the years. It has given me the encouragement that I needed to move forward.
Focus on what we can control, focus on the positive, and keep going. Even in the face of adversity, keep looking forward.
When I got to the bench, it was the same thing. I knew I was not going to survive in this position if I did not have some very wise, solid even-keeled mentors to help me. It has proven to be the case. I needed those people and I still do. I anticipate that I will need a mentor until my last breath on earth, so I highly recommend seeking that out no matter what level you are in your career or life.
People have different experiences with mentors. Some people have lifelong mentors and sponsors who are with them at every leg of the journey, and then sometimes, there are mentors who come in for particular things. They are there for a certain period of time where they are very knowledgeable and they are helpful to you in navigating that particular challenge or that particular job, and then, they drift away and somebody else comes in to help. It can be different things. The quintessential one is your mentor throughout your career in highs and lows and all the different places you are.
Honestly, those early mentors that I had, I could reach out to now for anything and go back in time. Also, they would still be supporting me even though we are forward in time.
It gives you a sense of solid foundation from having that support. To be a lawyer or a judge is challenging.
I can remember saying at different times. You have probably heard this or said it, or maybe we have discussed it. You can't make some of this stuff up that we see in court. Sometimes, I see stuff in all the experiences I have and I have seen this particular motion or particular argument, but there's something new and I think, “I need to talk to somebody about this.”
It’s good to have people you can talk to you like that, have as a sounding board, and give some wise pointers and guidance. The best way to recognize and honor that is to do what you are doing, which is to pay it forward to someone else. You are bringing it full circle.
I hope so.
To close, I usually do a little lightning round of questions if you are ready.
I will try.
Which talent would you most like to have but don't?
I would like to be a songwriter. I would like to write ballads and meaningful lyrics that, when you get to the end, a story has been told.
A singer-songwriter position. That's wonderful. I don't know if I have ever mentioned this to you. There's this program called Girls Rock Austin, where they take young girls and form a band to go out and perform. They also write their own songs. It was this confidence training but also musical training. Every once in a while, they would have this women’s rock band for a weekend. You put together your band, write your songs, and perform.
One of my friends did this for her birthday, so I flew to Austin, Texas, and we were trained. It was all in one day. We got to try 2 or 3 different instruments and decide which one we wanted to play. We wrote a song. We had a lyric writer work with us. We wrote the lyrics and then we had to work out the music. That night, we performed at an Austin club. It was awesome.
That sounds amazing. I have never even heard of it.
It was so fun and awesome.
Could total amateurs do it?
Yeah. They were so nice. What was interesting was that I wanted to sing. I like to sing. I can sing. I was like, “I can do that. I don't know about any of these other rock instruments,” but I ended up being the drummer. I had never drummed before, but I could keep a beat and had an understanding of cadence from singing, so they said, “You are the drummer in this band.”
I have never done it before. It was so much fun. It’s still on my list of things I want to learn to do better. It was fun getting out of your comfort zone to do it, but then coming together with a bunch of women to make our rock band and then doing the songwriting and lyric writing was great. Also, the women who trained us were excellent musicians in Austin and had their own bands, so it was neat to meet them and work with them for the day. It was a great opportunity. I was thinking that you would like that because you could do the songwriting part for the day. That was great. Who are your favorite writers?
That’s a tough one. I had to think about it. My answer is going to be, at this point, Ken Follett. I don't know if you have read Pillars of the Earth. I have read it several times and I kept wondering, “Why do I like this story so much?” He has written some other things that I have read as well. I have not read his entire collection. I have read several, but this is my favorite.
Finally, one day, it dawned on me that I probably liked that book so much because it has such a strong female character. It’s this historical fiction living in a time that's so foreign to me. It's nothing like what we live in now. Even then, back in whatever century that book was written about, there were these strong women characters that face very different challenges than we do, but yet, not so different. I think that if I had to choose an author, he would be it.
One of our other guests on the show, Patricia Hunt Holmes, is in Texas and was one of the first women partners at Vinson & Elkins. She's retired now and is a thriller author. She writes legal thrillers, and of course, brings her background to it.
I like legal thrillers too, so I will have to look for one.
You have to look for her. Her first book had a human trafficking theme. She used it to bring attention to the fact that Houston is quite a center for that kind of activity and used it to raise that awareness to get more support for the organizations that work to prevent or help those who are victims of human trafficking. She has a second book. It’s a mystery with a woman who's an attorney at a big firm in Houston. She uses her background to write that. It’s neat to see someone who had a very full career in the law and then doing her writing now and is quite successful at that too. Who is your hero in real life?
This was another tough one. I don't think I have a hero in real life, but I have a group, and I would say people who have a heart for and rescue children. Doing abuse and neglect cases for as long as I did may have affected me in that way, but there are those that come in, whether it be a foster parent, someone who notices something going wrong and reports it instead of just turning their eyes the other way, or even what you were mentioning a moment ago with human trafficking, child trafficking, or sex trafficking. People who have children in their hearts and will go out of their way to do something to rescue a child, that person's going to be a hero for me.
Those are very caring and empathetic people who will do that. It’s nice to see that. For what in your life do you feel most grateful?
Not surprisingly, it's my children. My children are grown now, but being able to raise them was such a privilege and a blessing to me. The main thing I would take away from that is watching them overcome adversity and build their own character and strength. They are all very different people, so that is a delight because I can see different paths and approaches to life but still within the same framework of the character development and grit to keep going through things that have happened to them in their lives. That has been very rewarding for me as a mother. I'm very grateful that I have been able to be a mother.
Thank you for sharing that. Given your choice of anyone in the world, who would you invite as a dinner guest? You can invite more than one if you can't choose.
If I got to do that, I would have one more dinner with my grandmother.
Tell me about your grandmother then.
She was instrumental, as a word, but she was a very important figure to me when I was growing up. She didn't raise me, but she was there and filled in a lot of gaps. She dragged me around with her everywhere she went because she could. I learned things along the way. She did grandma things. She cooked for me, took me places, and was one of my biggest cheerleaders. She has been gone for a long time and my children never knew her, so that might be one opportunity if somehow, we could bring her back for one dinner. I would invite my kids to dinner.
Here’s the closing question. What is your motto if you have one?
I don't know that I have one, but I try to think, “What do I say a lot? What do I tell myself a lot? What do I tell other people?”
That’s what I was thinking. I was like, “What do I tell myself?”
What I say to myself and to other people who seem to need it is breathe. To me, that means a lot more than just breathing. It means a deep breath in and back out again. What expands from that is that everything has an expiration date. We have an expiration date. Something in our cupboard probably has an expiration date, but life experiences also have an expiration date. Seasons in life have an expiration date.
Focus on what we can control. Be positive. Keep going even in the face of adversity. Keep looking forward. Don't look back. Stay grounded. Breathe through any moments that are difficult, and realize that everything has an expiration date, so whatever it is you are going through, if it's not something you want to be going through, it will end.
We are going to try to enjoy the moment that we are in now to the very best of our ability by grounding ourselves and thinking through the fact that everything has an expiration date and realizing that tomorrow could be better if now is not any good, and if now is good, then let's sit in that, breathe, and say, “This is a good day. I'm blessed on this day. I'm grateful for this day. I'm going to enjoy this day because this might be my last day. I hope it's not, but it might be. For now, for this moment, let's breathe and enjoy.”
That is beautiful. Thank you so much. I feel relaxed and more at the moment from that as well. Being present and having that, “This too shall pass if it's a difficult time” mindset is wonderful. Thank you so much. That's such a great way to end. It’s something good for people to tell themselves and think about, especially when times might be challenging.
I hope so. I have enjoyed this time with you. Thank you again so much for including me in this new adventure of yours.
Thank you so much. I appreciate you being here. It was a joy, so thank you again.
You are welcome.