Episode 65: Ann K. Covington
First Female Justice and Chief Justice on the Missouri Supreme Court
01:07:10
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Show Notes
Ann K. Covington shares her trailblazing journey as the first woman on the Missouri Court of Appeals and Supreme Court, and ultimately as the first female Chief Justice in the state. She shares her journey to the bench and work in private practice both before and after her service on the bench, and her role as mentor to many women lawyers. Listen in to hear the wisdom this gracious and humble woman has to share.
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Relevant episode links:
Ann Covington, Dean Lyrissa Lidsky – Past Episode, Chris Durham – Past Episode
About Ann K. Covington:
Ann K. Covington
Judge Covington obtained the Bachelor of Arts degree from Duke University in 1963 and earned the Juris Doctorate degree from the University of Missouri in 1977. As a new lawyer she served as an Assistant Attorney General of the State of Missouri. She then entered the private practice of law in Columbia. In 1987, Ann was appointed to the Missouri Court of Appeals. In 1989, she was appointed to the Missouri Supreme Court, where she became Chief Justice in 1993. On the court of appeals and on the Supreme Court, and as Chief Justice, she was the first woman to serve. After retiring from the Supreme Court, she joined as a partner the international law firm of Bryan Cave LLP.
In 2009,The American Bar Association named Ann Covington as a subject for an oral history project, recognizing her as one of the Women Trailblazers in the Law. The project is housed in the Library of Congress. She is a 2017 inductee into the Missouri Public Affairs Hall of Fame.
Ann has served on the board of the National Center for State Courts, the Advisory Committee on Evidence Rules of the Judicial Conference of the United States, as well as a Vice President of the Conference of Chief Justices and a member of the American Law Institute. While serving on the Supreme Court, she and her colleagues were instrumental in instituting and seeing through to conclusion a number of significant judicial administration programs focused upon improving the administration of justice in Missouri, particularly in advancing modernization of the processes of the judicial branch and instituting statewide citizen education programs. Her involvement led to her serving as Chair of the Committee to plan the National Town Hall meeting on Improving Court and Community Collaboration. She continues to be involved in numerous activities to further recognition of the importance of an entirely independent judiciary.
Ann served for twelve years as a member of the board of directors of The Shelter Insurance Companies, in later years as its vice chair. She is active in the Missouri United Methodist Church and serves in a number of other voluntary board capacities.
Ann's other passion, in addition to law and her family, is higher education. A curator emerita of the University of Missouri Board of Curators, she has been deeply engaged in numerous aspects of the life of the law school since her graduation and was engaged in all aspects of the entire University of Missouri System governance while on the board of curators. The University conferred upon Judge Covington the Honorary Doctor of Laws degree in 2018.
Ann has two children, two grandchildren, and three great grandchildren.
Transcript
In this episode, I'm excited to join us the first female Chief Justice of the Missouri Supreme Court, Ann Covington. Welcome.
Thank you.
I appreciate getting to connect with you through one of our previous guests Dean Lyrissa Lidsky from the Missouri Law School. I love that continuity and connection between the different guests on the show as well. She's special to me. It's great to have that connection with you. Obviously, you have a lot of firsts in your background. You are the first woman on the Missouri Supreme Court and the first Chief Justice at a time when there were not many women on State Supreme Courts anywhere in the country. We'll want to talk about that and your journey there, but first, I want to start from the very beginning in terms of how did you come to the law? What did you think was interesting about it and how did you decide to go to law school?
I decided to go to law school, as I put it by default. I had an almost double major in English Literature and History in undergraduate school. I’m married after undergraduate school and always intended to do something else. What I intended to do was to get a PhD in English and teach in the academy. I had two children. I moved to Princeton, New Jersey, at some point at which I was able to further my education by going a director at the State University of New Jersey, Princeton, at the time. This was in the mid-‘60s. They did not admit women.
I furthered my education and got almost everything completed, but the thesis was when our first child Elizabeth was born and things continued to happen in that particular way. I had a second child eventually. Ten years after having graduated from undergraduate school, I decided it was probably all right for me to try to get my foot back in, but it appeared that I would find it very difficult to be employed if I were to get a PhD and teach at that point because the market was surfeited with people with PhDs in English.
I went down a mental list by excluding things I knew I was incapable of doing because I thought I couldn't go to med school because I don't think I have science. Not to go on and on about that, but when I say by default, I landed on law school thinking, “This might be a way that I could be intellectually engaged, help other people, and perhaps even get into the academy through the back door if I had a Law degree.” That was a very unintentional path, but that's exactly what it was
There are a lot of those who study English who end up going to law school. That's a path. That happens. You like reading and writing, and there's a lot of that in the law as well, but that's an interesting one in terms of thinking about going to law school, saying, “That's a different path, but it could also lead to my first path, which is teaching.” It does leave more things open. It seems like a good choice. There are a lot of practicalities to choosing what we ended up doing as well.
I'd describe my life as a series of, in many ways, happy accidents because I had no plan. That's one of the first incidences of that in particular.
When you got to law school, did you find out, “This was a good choice. I liked this?”
I did like it after I survived my first semester.
The first semester in the first year, very few people enjoy that.
I was used to writing complex sentences and our beginning sentences was adjective and adverb phrases. Learned various when we had practice exams. That is not the way to write as a lawyer. That's not the point at all. The adjustment was extreme in some ways, but I survived the first semester and enjoyed most of the classes. I didn't realize how dumb I was until the end of the first semester.
I've found the same thing in terms of preconditions and writing. I remember going to law school thinking, “The writing part is going to be good. I’m good at writing,” and then being completely deconstructed and reconstructed in my writing in law school. That is not going to work here. It’s a totally different kind. I have a question about law school. Were there many women in law school at that time?
No, there were only 10 in my class of 120. Two of us were mothers. Each of us who was a mother received a letter from the dean of the law school after having been admitted. It said, “Although you have been admitted to the law school, I would strongly recommend that you not accept your admittance because you have a family and you will not be able to do both things well.” The little sideline on whether there were many women in the class, there weren't many women in the class. In addition, those two of us who were mothers in our class were strongly dissuaded from going.
On the other hand, the person who was number one in our class, graduated number one, first in the class, was a brilliant law student, a woman. She became pregnant during our second year of law school and gave birth. He continued to be number one in class. Times were different at that point and the expectations were certainly different that we all did survive and carry were certainly set the standard by her not only becoming pregnant and giving birth but also by being first in the class.
That's very good for more women to come and to have that level of excellence is great. In terms of after law school, did you know what you wanted to do in terms of practice or with your law degree besides potentially teaching?
No, I had no idea. I was fortunate, though, that in the third year of law school, the associate dean could let me know about a position in the attorney general's office, writing criminal briefs for a third-year law student. I was able to do it because I can do it in the law school library. I did that. Each Friday, I had to go to the attorney general's office in the Capitol Jefferson City and pick up a new assignment. The following Friday, I return what I had done and pick up another.
Your life could be a series of happy accidents when you have no concrete plans, but that could be good too.
As it happened, the attorney general then, Jack Danforth, who later became Senator Danforth, was leaving office to run for the United States Senate and a new Attorney General, John Ashcroft, was elected. He was interviewed soon after his election in November of that year. I interviewed with him. We had a wonderful conversation.
He was an English major at Yale and I was at Duke. We had a lovely conversation about English Literature. Within a few days, before he had officially been sworn in, he was able then to hire. I accepted that position as an assistant attorney general, but I had no design to do that. It was one of those things that happened.
I've noticed a thread amongst women who were in law school or coming out of law school around the time you're talking about. Many of them went into attorney generals or district attorney's offices, and some said that was the best opportunity. You had the best opportunity to be hired, the best work, opportunity to gain skills, and that's where a lot of them went.
It was a real privilege to be able to do that. I didn't realize it when I accepted the position, but as you know, in government work, in particular, it's not unusual for the senior lawyers and the head of the division to give a new lawyer a file and say, “This is your case. Take care of it.” That was a good training ground.
There’s so much skill building, which is important all throughout your career, but especially in the beginning. You need to get out there doing things and get experience. You also were in private practice prior to the bench also.
I was. After a couple of years or a little bit before that, I had a very good friend who graduated from law school a couple of years later. At first, I felt it was almost frivolous, but it became more serious as we continued to converse about opening a law firm together. That we did. She and I had a two-woman law from the beginning of 1979. At that time, we were the only firm with all women. Two other women practiced law in Columbia and Missouri at the time. I then continued the practice in Columbia until I went to the Court of Appeals.
I can’t imagine there were many women-owned firms at that time and the whole experience of coming from government practice, not just private practice, but your own firm where there's a bunch of other responsibilities besides taking cases to trial and things like that with things you wouldn't have experienced when you were working for the government. You don't have to do all the firm administration things, bring in clients and all of that stuff. To me, that is probably drinking through a fire hose to do that.
Each of us had other relationships having lived here. Each of us knew other lawyers. Not all, but many of them were willing should we have a question about anything from a particularly challenging part of a legal issue, a procedural issue in the court or, even as you've mentioned, to management in a law firm. They were willing to accept our calls and help us. It was better than one might have guessed.
You had to be willing to make those calls on ask and admit like, “I need some help with this. I don't know.”
It is always difficult, as you may have also experienced when you're very much thought of as a woman, a lawyer when you prefer to be thought of as a good lawyer, it makes it extra difficult to ask for help sometimes. The graciousness of some of these gentlemen was significant enough to override some of our hesitations.
It's nice to know that because we talk about collegiality and civility in the profession. That's part of helping others in their careers and to be collegial with others in our practice geographically. That's what we aspire to, at least we hope. Tell me about you joining the Court of Appeals. How did that come about? Did you think at some point you wanted to join the bench or is this another happy accident?
It’s another happy accident. It never occurred to me. In fact, I felt completely inadequate, but throughout lives, people nudged me. I had a nudge. Somebody has reached out and said, “You should try this.” A couple of friends knew that there was a lot of interest in there being a woman on the appellate court in Missouri. They were interested in seeing that happen themselves. They encouraged me to apply. I had no knowledge at the time but learned soon after having joined the court that the women lawyers associations of both St. Louis and Kansas City had been strongly urging the governor to make an appointment of a woman for quite a few years.
I was the beneficiary of that without having known of their efforts. People who had come to know me at the attorney general's office and here in the practice of law in Columbia who made contacts then again nudged me, but no, it was never a plan. In fact, I thought it was just such a long shot that I could hardly bear to even force myself to try it, but I did.
It can be a bit daunting to think about that. You're not alone in that frame of mind of having someone nudge them towards that saying, “You should consider whatever position it is on the bench if there's an opening.” I feel like this show is part of that nudge for people. If they don't have someone individually who does that for them, if there's a story that resonates with them and they relate to, there'll be their nudge to apply and to put themselves in a possibility of getting a judicial position. That's definitely what I hear from most people.
It's good that you have that in mind too.
Most of my friends were on the bench, that's the story. Somebody reached out to them, whether somebody on the bench or in the appointments process tapped them on the shoulder and said, “You should consider this.”
I’m a beneficiary of that.
Once you were on, how did you like it?
I was overwhelmed. In the Court of Appeals in Missouri, there are three divisions in the Western District of which I was a part and there are eleven judges. It was difficult for them, I understand, to have a woman in their midst, having never had to deal with that before. Most of them were very gracious to me and ultimately, all of them were. Some of them didn't know what to think. I know from later reports that when one is the first woman in the room, that somehow the conduct among people who are gentlemen but sometimes don't always act that way, maybe modified a bit. It was a steep learning curve for me because I was not an appellate lawyer. I came from Columbia. At that time, the population was probably 70,000 to 75,000.
I didn't do a lot of appellate work at all. I hardly had done any. In that area, I wasn't somebody who was accustomed to appearing before that kind of a body, that judicial group. That was an adjustment. I was thrown into deep water, but there were what I call helping hands, even among those who thought, “I wonder if she's going to be all right. Is she going to be a real judge?”
One judge, in particular, Judge Fernando Gaitan, arrived there 3 or 4 years before I did. He was Black and also fairly young. It was he who took me under his wing and said, “We're different. Here are the ways that we need to be alert.” He had had some experiences that he shared and gave me a little idea of where the landmines might be. It was very lovely. We have remained friends ever after. How was it? It was good. I was there for a very short time before going to the Supreme Court, but I believe that when I left, every 1 of my 10 colleagues have become a friend and I think they respected me. It was daunting.
That story of someone reaching out and offering guidance or assistance, or even reaching out to others for that kind of guidance, is still necessary. When you join the bench, it's a whole new thing. Even if you had done appellate practice before, being on the other side of the bench is so different. It's necessary to have that. Judge Carolyn Dineen King, who's on the Fifth Circuit Court of Appeals, talked about that. She had a corporate practice, not even a litigation practice before she joined the bench.
She said, “I looked for who I thought was the sharpest best judge on our court. When I figured out who that was, I reached out to him and said, ‘I need some help. You seem to know what you're doing. You look at some of my draft opinions for a while.’” She said he looked at them and redlined things and went back and forth with them for one year until he finally said, “I think you're good unless you want me to look at a particular one.” It's the same level of graciousness and wanting to have someone reach their full potential that your story shows as well.
Those are important friends. I mean not to exclude any of the other gentlemen on the court, but because Judge Gaitan himself made such an affirmative step toward me that gave me a sense of comfort.
There's a level of kindness in that. People don't need to go out of their way in that way. You're always going to have some special connection because of that because he helped you as another human.
I have always suffered and still do from imposter syndrome. Wherever I have gone and done something I have not done before, I truly believe, “I'm not up to this, and it will become evident,” but even deep inside, I think, “I don't think I'll be able to do this.” It means especially much when somebody gives you a little confidence in that regard as well.
I think of it as when somebody sees something in you that you don't yet see and they see the levels you can reach and what's possible before you do. They're a few steps ahead of you in that regard. That's always neat because then you always feel seen to somebody saw you and what you could become. That's special. Quickly you went from the Appellate Court to the State Supreme Court. Was that another one where somebody niched you for that? How did that happen?
I'd been there a year when the vacancy occurred. I was at the Court of Appeals for only fourteen months, but that was definitely another call from a person or two saying, “There's the vacancy. We think you should give it a go.” I felt that I had not yet learned even to be a judge. It was because of their encouragement that I gave it a try.
That would be a daunting thing to apply for at that point. For most of my friends who have joined the bench, by the second year, I finally feel like I have my feet under me and I have some sense of what I'm doing, but that first year or year and a half are so challenging, and then to apply to another court at that time. What happens with the appointments and the benches is that there are moments, and that window will go away. That's the opportunity. You have to take it when it comes because you don't know when it will happen again.
I benefited greatly from my experience in the attorney general's office because then Attorney General John Ashcroft hired me for a permanent job after law school and became governor. It was he who was sitting as the governor who appointed me to the Court of Appeals and then to the Supreme Court. My work and I as a human being were known to him. That was a lot of combination of right place, right time, and as I always put it, wearing a skirt to work because of the woman thing. There is still pressure.
He's not going to be a governor forever. That's the time to do that to have someone who already knows and trusts you. It would be wanting to make historic appointments in terms of the first women in different positions. You'd want to be confident that the person you were pointing with someone, “She's going to do a great job. I just know it in my gut.” He worked with you, so he knew that.
I have been very fortunate. There are lots of blessings.
You became chief justice. How does that happen in the Missouri Supreme Court? Is that the fellow justices or an appointment?
It's rotation. It's a two-year term and the most senior person at the time or whatever time has that. I had not been there very long, but everybody else had already served by the time I became chief. It fell to my lap to do that. There's no election. As I laughingly said, that involves a couple of things. I'm not being pejorative about the title at all, but calling the meeting to order and then also being representatives for the same Missouri judicial branch. The Supreme Court in our state administers all of the courts. As the entity, our court was and the court remains the main connector between the judicial and the legislative branches.
Things could be a lot of combinations of the right place and right time.
The chief justice's role, whether it is directly administering the other courts or, in our case in California, we have the judicial council that does that as well, but the chief justice is also the chair of the judicial council. There's an interesting role with that. You can think of the chief justice as that's clearly an administrative role with regard to the court, the opinions and the casework, but there's also the representative role of the court system itself with other branches of government. There's also the administration of the court system generally.
There can be some innovations or changes in that regard and how the courts are functioning. I know that some courts now have various access to justice initiatives from that different types of court systems like diversion opportunities, criminal courts and things like that. That all comes from an administrative level of the court system. It's not just a figurehead position as chief justice in that regard.
There's an extraordinary amount of extra work, although as our court operated, all seven judges are involved in the administration. It's not falling on the shoulders of the chief justice exclusively. We were fortunate in that my predecessor was Chief Robertson and my successor, John Holstein, and other judges came to an agreement that we would work for continuity in the administration. That one personality or one way of thinking about how something should be done was not just instituted and went on for two years and then all of a sudden, the coin flipped and something else came along. We were fortunate to have a group who agreed that we would work as a team.
That's good because that's a level of stability in the court system and in initiatives that the court is pursuing. It creates more of the court as opposed to a persona of individuals who might be the chief at various points. How is it different being on the Supreme Court than on the Appellate Court? I think of it as an appellate litigator. Obviously, when I'm advocating in those different courts. State Supreme Court is much more policymaking, making law, there could be new novel issues that you're addressing, and that may be less likely in the Court of Appeals. I’m curious about your perspective.
As I know you already know, each state's constitution provides a little different structure or many of them do. The only direct appeals to the Missouri Supreme Court are from death penalty cases, construction of revenue laws and constitutional issues. For the rest of the cases the court takes on, we took on transfer, which is the same as cert essentially. The Court of Appeals in Missouri districts handle the lion's share of appellate decision-making, they themselves would refer to our court only in the event of there being a conflict between the districts, among the districts and the Court of Appeals, not between them along.
Let's say the Southern district is decided X in the case, and contrary to X is Y and the Eastern district is decided Y, and there's a clear conflict. In that case, those courts will take the initiative and transfer on their own to the Missouri Supreme Court. Otherwise, the court sits as a group each month and decides what cases to accept from the Court of Appeals decisions.
The other part we touched on that it's so different at the Supreme Court is the administrative function. Included with that is the necessity to deal with the legislative branch because they have the power of the purse. We do have some more stories regarding that because, as you know, the legislative branch is not always understanding that the judicial branch has nothing to trade.
That co-equal branch of government thing can be a challenge for them to grasp.
At the appellate level, all non-partisan judges, many legislators don't understand that we're not out campaigning alongside them. We don't show up at the Boone County Court picnic. We don't show up here and there, not understanding or wanting to understand that we're not permitted to do so. Most of all, when a decision comes down from the court that is contrary to their preferences, let's just say, sometimes retribution comes very swiftly. I ask them for more stories related to that, but there's no need to share them at this point. That's a major function of the Supreme Court to interact particularly with the legislative branch because they do have the money to keep the courts running.
That's a whole other set of skills you need to have in your toolbox to be able to do that graciously to let them know, “We're not your typical type of folks. We can't trade the various things you're used to trading. The states still need us. Please work with us here.” The substantive outcomes can be a challenge because, “You decided something we didn't like or it didn't help us politically,” but that's not the court's job.
That was always a challenge.
Were there terms on the Supreme Court? How did you decide that you would leave and do something else?
There are terms, although under the Missouri plan, what is on the ballot for retention, and for appellate judges, that's every twelve years for the Court of Appeals and Missouri Supreme Court. This is shocking to many people and I understand why. I decided very soon after I arrived there that I would not stay until the mandatory retirement age of 70. Here's why. Five of my six colleagues were within a couple of years of reaching that mandatory retirement age when I arrived at the court, and not one of them left on his 70th birthday happily. That registered with me very strongly deeply. At that point, I thought I will not do that because I want to be able to continue to work after 70. Taking into account again that at the time, I was 48. I thought, “What is my shelf life as a woman?”
It's very unusual for women to be in the practice in some ways, and certainly, not many women were on the bench at that point. I calculated backward from 70 and thought, “Probably I should try to get out of here when I'm 60.” I loved the work of an appellate judge. It wasn't easy to give it up. I stuck with that because even as I approached that time, I didn't want to leave. The situation hadn't changed enough that I felt confident that I would be able to continue to practice law. This is now a long time ago.
That's why I get it. I didn't tell anybody about it except my husband, but I made that decision very early on and then shared it with the court only about six weeks before I was planning to go. I did. The way I put it, I hoped somebody would call about another job. I know it's terribly odd and veiled, even though I try to explain it, especially when people don't understand the circumstances for women then. That’s the story.
I have a few questions from that. The first thing was when you said there weren't that many women, especially in the appellate bench, but I would say State Supreme Courts. Before we started this, we were talking about it. For context, how many other women mental States Supreme Court justices? There weren't that many.
No. I thought about this in advance of visiting with you. I believe there were only 6 or 7 of us. I could name quite a few of them on the Supreme Court, Courts of Appeals, state court system and the federal as well.
I want to put that in context for those reading because that crystallizes that that's quite rare. The second point is you said you made that decision early on. Two things came to mind. One was how intentional you were about what else you wanted to accomplish in your professional life. “If I want to do this, then I'm going to have to leave here.” It's like very intentional planning of what else you want to do and how else you want to contribute.
As before, I didn't know what I wanted to do, but I know I didn't want to have to stop working.
There's something about saying, “ I've noticed that if I were to stay the full-term, I wouldn't have that option of continuing to work. I want that option. Here's my plan.” Chris Durham is doing that now that she left the bench, but it was not common because people were not appointed as young as you and Chris were to have that option to say, “I've done a really good amount of time on the bench and now I'm going to do something else with that practice.”
That's much more common now as people who get appointed or getting appointed younger, and they have that third career or step after the bench. It's unique because not that many people were appointed at younger ages at that point in time. People did just retire. That was it. That was the third act. It was being on the bench.
That was usually what people, regardless of the so-called pinnacle, at least for some, but not necessarily.
You thought, “I hope somebody will call,” and somebody did.
I was fortunate because I felt that it was inappropriate for me to seek a new position while I was still sitting on the court. When I said, “I hope somebody would call,” that's exactly why I had not announced my plans, but I was fortunate to hear from law firms who asked would I consider joining them. That was fortunate and gratifying.
You'd made the transition previously from the government to private practice. At least you had that under your belt.
Although it had become very much a different world by the time I left the bench, I went from practicing law in a medium-sized town to a very big international law firm. I'm not sure that one can draw many parallels, but there are a few.
How was that? There's still a transition coming from the bench in terms of your use to being the neutral decision-maker and then you have to shift back to the advocate perspective after that when you go back into private practice.
That was difficult. It's my nature to weigh both sides of something. I have always been that way, but as long as the advocacy was something in which I believed, and I don't mean that as a social issue, but that it was a legitimate claim.
I know what you mean by that, but thanks for clarifying.
I came to be comfortable after a couple of years of practicing. It was very difficult for me to return to argue cases before the Court of Appeals. That was quite unusual. I have done that because I had many friends on the Court of Appeals throughout the state by that time because of my service on Supreme Court. To go argue before some of those mainly gentlemen by then, a woman now and then as well, was daunting. Finally, to return to my former court, Supreme Court, which required a two-year wait before one could do that. You could have heard my knees knocking all the way to St. Louis from Jefferson City. I feel inadequate every time I do something new. I had a feeling of, “I'm not up to this,” but it turned out I could do it.
What kind of practice did you focus on after you left the Supreme Court? It sounds like some appellate work.
Mostly appellate and occasionally might involve summary judgment assistance to newer lawyers, but people knew my name. There were corporate counsel around the country who called and said, “We take this appeal.” I did what a normal appellate lawyer does. I didn't do any criminal work at Bryan Cave, but I did handle a whole range of different kinds of issues in a field as any appellate lawyer does.
That’s what I love about that. It's not tethered to one particular substantive area. It's constantly interesting.
One continues to learn always in law. That’s one of the good parts of it.
Each state's constitution provides a little different structure.
In the appellate arena, it's always in areas where there are maybe someone certainty or novel issues because that's where people are going to appeal. If it were abundantly clear, they’re probably not going to challenge it. That keeps it interesting, too, because you feel like you are following where the law is developing. Do you have any tips for appellate advocates from your time on the bench and your time as an advocate yourself?
Starting with the brief, raise issues on appeal only those issues that have merit. Don’t waste time on things that are frivolous if you think just something might stick. Set forth the issue very clearly and the law that you believe applies to your issue. Apply that law to your facts. If the law isn't as you wish it to be, try to convince the court while the court considers tweaking the law. Also, always tell the truth.
That credibility part is important in being straightforward about things depending on the standard of review and conforming to that as well.
In oral argument, I would add, because I was focusing essentially on the brief a moment ago, listen carefully not only to your opponent but also to the judges' questions. Some lawyers I have seen who want so badly to get their points across failed to listen carefully to the court's questions and miss opportunities by doing that too. Sometimes, not always, judges’ minds change in oral arguments. I've seen lawyers miss opportunities to take the bull by the horns and say, “Here's where you're not understanding what I'm trying to say in my brief.”
Our argument is one of my friends was a great appellate lawyer and was also on the appellate bench here always talks about the oral argument as being something where you're not going to raise new arguments. However, you can certainly frame them in different ways or explain things in different approaches to the argument that you raised in the breeze because different ways of explaining things will resonate with different people sometimes, You can have that a-ha moment.
She experienced that herself. When arguments are made that way, she's like, “That makes a lot of sense.” That stuck with me when she mentioned that because I thought, “That's someone speaking from experience.” I had argued in front when she was on the bench and thinking, “That's a great way of saying it.” I think most advocates are a little bit puzzled when the court says, “You don't have to repeat what's in the briefs because we've read those. We know that.” People are, “What am I left to say?” That's part of it.
There can be 1 or 2 words, particularly from the court, that will cause a light bulb to go on that hasn't gone on previously. I would say never waive oral argument. If given the opportunity or urge to do so, unless you know it’s going to infuriate the court, always have an oral argument. Never waive it.
There are some courts that tell you whether you get to argue and you say, “Thank you very much, however much you let me argue.” When it's your choice, I can't imagine not taking that opportunity.
Many of my colleagues would disagree. I'm sure in your experience as an appellate lawyer have had a conversation with judges with differences of opinion about that.
As an advocate, it's your only opportunity to look eye to eye with the panel who's deciding your case, answer questions, clarify things and maybe have an a-ha moment for both of you in terms of how to explain what's going on in the implications of the decision. That's my only opportunity to have that discussion. It feels like I've fully advocated for my client if I do that and whatever happens, happens, but at least I've taken every opportunity.
You're well-experienced. I expect all of your clients are extremely fortunate.
I hope they think they think so in many cases. Thank you very much. What do you think about terms of mentors and sponsors in legal careers? In your case, your story has happy accidents, but there are also good relationships and connections that you have and where people have helped you, whether on the Court of Appeal bench or for your working with the attorney general's office. What does mentorship mean to you and what does that look like? In part because I think some people know in law school now that, “I'm supposed to have a mentor and I don't know that they know really what that means or what that looks like, like the different forums that can take.”
Part of your question is, “What is the definition of mentor?” There are many, in my opinion, definitions of that. That is exemplified in human beings who happen to nudge us or come and take our hands or to whom we go freely. My mentor has been not so deliberate. Sometimes people without it have been my mentors. I'm twisting what I think is your definition a little bit.
I know you're more interested in my judicial career. Beginning with my practicing law, I was watching a lawyer whom I knew was extremely well respected try a case in Columbia, Missouri, when I began practicing here. I knew he had a terrific reputation but was a complete gentleman, very soft-spoken, very thorough and clearly believed in his case. He gave me confidence that I could be a good lawyer.
I had tried a couple or three cases while in the attorney general's office, but many of those opportunities were front pagers. It had good settlement. When I saw Oliver being the gentleman that he is so effective through the week with a jury, it let me know that I could do that because I'm quiet. I know I'm well prepared and I care about what I'm doing, but my experiences of watching other dramatic people gave me a sense that perhaps I could never be effective in the practice, especially before a jury.
That experience shaped me significantly because I mentioned lacking confidence about all these things, but also, I am who I am and I didn't feel comfortable trying to be anybody else. That was a great step. While I practice at Columbia, people who are willing to answer questions and be helpful, the same with those who are my colleagues on the court.
Mentoring to me is so individualized. It is, “What does the mentee need? What can the mentor give?” Those relationships are formed sometimes without deliberation. Through other relationships, maybe having lunch for the person even not planned or walking down the hall to another judge's office and that judges and therapist somebody else, you go in and say, “I'm struggling with this.” I can identify many numbers of people who are that for me, but it depends upon the need. My need is a mentee.
Some people have an impression that mentoring only looks one way or that it's one person that is there for you and takes you through your entire career with a firm or whatever, and that can happen. There are also a lot of these kinds of moments and connections that are made and that are very individual and people can help with discreet things. That's still mentoring as well. I completely agree with your assessment of that and the stories you told about that. I just don't know that many people think of it that way. I'm glad that you clarify that.
Switching to my mentor role from being a mentee was meaningful to me with my law clerks and the young lawyers. When I went to practice at Bryan Cave, after leaving the court, I think that a number of young lawyers, women and men, both felt very comfortable coming to talk with me, closed the door and said, “This is worrying.” They understood that I would not talk. I would keep their confidence, not just the legal problem but this relationship with a senior partner or the fact that I'm a woman and nobody's asking me to play golf with the big clients, those kinds of things.
Being able to listen and say, “I lived through some of that. It'll be alright, and maybe I can help you,” or women and men both significantly have negative experiences and wonder about maybe even leaving the practice. The mentor role is a need met kind of thing oftentimes, and the relationships are sometimes accidentally developed.
It must be nice to have that feeling, but people trust you. They just sense that you would keep the confidence and that you would give them straight advice.
One of the best things that a friend can be is a person who can be trusted and to feel those who, even at the best of times, meaning ill or well may tell us something that they've been told in confidence and that's not productive. It destroys a bond of trust. “It’s a serious conversation we have here.”
It says a lot about you. People sense that and would come to you with some delicate things.
It’s something that I learned over time but don't talk about.
We talked about before in terms of true, real friendships that last and that you're able to pick up even with your years apart from someoneis a special thing, as well as trust and keeping confidences and things like that. It's nice to be able to play that role for people. What did you most enjoy about being on the bench and the practice?
It's hard to isolate one thing but I would say the intellectual rigor, the ability to take significant enough time to think things through and write very carefully, working with colleagues, working with the law clerks, being in that kind of relationship, the appellate relationship. Collegiality is not always easy to achieve, but working towards keeping that steady relationship doesn't interfere with the work at the court. I love those parts of being an appellate judge. In the practice, I probably liked best my time at Columbia because, not to sound like a Pollyanna, but I did a normal practice.
Back in those days, there was no appellate. It’s a fairly small town to specialize in. I did lots of different kinds of things that kept me awake all night because I figured all the time, “I wonder if I forgot this. What was going on?” The opportunity to assist a person work through a patch that’s rough, whether there could be a dissolution of a family, of a business partnership, or a criminal case, of all the kinds of things I didn’t practice, although those things took their toll on me because I’m a worrier, they were the most satisfying.
When Chris Durham was on the show, she talked about what she liked about the law. It was being able to solve individual people's problems, but also societal problems. It's a method or a tool to solve that. Your comment now reminded me of that, but it's a different perspective on that in terms of the very human aspect of that saying when things have got to a legal dispute, it's something that people haven't pinnacled to work out. It is a rough patch for those individuals who are going through that problem and being able to help them work to resolution and move to a less bumpy part of their lives is gratifying.
That's not to say that I didn't enjoy my practice representing. I argued $100 million and $200 million cases for General Motors, Walmart and other corporations while I was at Bryan Cave doing corporate practice. There are aspects that were satisfying, but not in the same way as the one-on-one with people who one sees in office in suffering.
It is the core that encapsulates what it is we'd like to think that we're doing when we're lawyers, that we're helping people. I got a little tingle on my spine when you said that. I was like, “That's exactly it.” Before I get to the lightning round questions, the last question is what kind of advice would you give to other women lawyers who might be considering applying to the bench or women who are graduating from law school and just starting in their careers? Do you have any advice for either of those folks?
As you and I touched upon earlier, things are so different for women and in a good way now, but I still see issues about law and life balance that young lawyers with whom I still have an opportunity to associate. From time to time, I’ll ask those questions and I would say, “Don't worry about that. There isn't any.” There's no perfect answer to that.
As to women, in particular, if something negative happens to you by act, deed or word, don't assume it's because you're a woman. I still sometimes see people with maybe over hypersensitivity to a slight or being ignored. I know what it's like to be invisible in a room. I think many women still have that experience. I'm not discounting it, but my point is only don't start out assuming that negatives are because you're a woman.
That's one little word with respect to those who would like to become judges and to see there are many ways of judicial selection in this country. In any case, comprehensively, don't be intentional necessarily about, “Here's my path,” but form relationships that are true relationships. No one never knows who we will meet, who ten years down the road will be in a position to lend a hand, or even, in my case, to think of you, the woman you never even considered yourself. Build relationships not intentionally to advance, but to become interested in other people and things that other people are doing, and try to be helpful as a normal human being would want to be. That's part of the way things happen, positive things.
A major function of the Supreme Court is to interact with the legislative branch, because they have the money to keep the courts running.
That's consistent with what I always think about with my associates or people on my team. I always say, “You want to get out there and be both because you're able to serve the community. That's an important thing for us to do,” but you want to meet people who aren't just in your hallway. Wherever you're working, you want to meet different people and experience the whole variety of relationships or opportunities that are out there. You never know where it will go, but it feels much better to be a part of the larger community and contributing to it than not. Don’t it for some specific reason, but just because that's part of it.
If you have a passion for whatever the activity or volunteer work may be, that shows and people remember. Knowing people down the hall is probably not sufficient.
Especially in our role as lawyers, we should be part of the community in whichever way you're passionate about doing that. It shows up in our pro bono commitments and so many different ways in a way that's not common to other professions. Thank you so much for doing this. I enjoyed it so much. You are a lovely lady. I wanted to ask a few lightning-round questions if you're ready to go for those. Which talent would you most like to have, but you don't?
I'd like to have the gift of gab, the ability to stand up and give a speech and not worry about it, but be the best speech giver that anybody could be.
What makes a good speech? A lot of it is listening to the audience or being receptive to the audience. That's part of it.
Also, believing in the subject, but I've had colleagues who could be stand-up comics or anything. I always thought, “I wish I could do that.” There were the chief of justice's speeches to the legislature and acted as if it's the first thing you've ever wanted to do in your life.
That is a special talent. There's a certain spark to being able to do that. Who are your favorite writers?
I love history and biography. Doris Kearns Goodwin and McCullough as historians and biographers. Tolstoy, Jane Austen, and a poet, Mary Oliver.
Mary Oliver is wonderful.
I gave that to our friend Larissa.
She got such beautiful turns of phrase, and was very warm. Who is your hero in real life?
My parents, each of them in a way, took such great care of me and hardly ever told me anything other than, “You can do that.” I was very shy and lacking in confidence, but my dad, in particular, had a message that was very gentle, but I understood it, “You can do whatever you want to do.” My mother also was encouraging. The only thing I remember her telling me I couldn't do any longer was she told me I had to stop playing tackle football with the boys. We had a neighborhood full of boys and I was a terrible tomboy. When I got to be about 6th or 7th grade, she said, “You're too old to do that.” Otherwise, my heroes are my parents.
I hadn't realized what a difference that makes, but especially as you said, when your father has that attitude, whether it's gently, quietly said, or you're encouraged to do whatever you want to do, that makes a huge difference, especially for girls, but for all. You don't always have that as the girl child. It's nice to have that. No difference at all between girl, boy, or whatever. You can do whatever you set your mind to. For what in your life do you feel most grateful?
Probably my parents for the way I was brought up and to have the guidance of my parents, my dad in the ways that I've expressed. My mother was a very playful person but a seeker and a doubter at the same time. She instilled in me that sense of hope. I would say face because there's a big question, mark. In the theological sense, she gave me that gift. I’m very grateful for that as well. I'm also very grateful increasingly as I age to have been born in this country, despite all the wart and difficulties.
Especially for women, there are still so many different roads you can take that still aren't open in a lot of other places. Given the choice of anyone in the world, who would you invite as a dinner guest or for a dinner party if it's more than one person.
I would invite my entire family for dinner. That's not probably what you're angling for. Having thought about it a little bit, knowing that he would probably ask, I would say Justice Sandra Day O'Connor. I had the privilege of spending time with her earlier on. There were so few of us women on Supreme Courts in the States. We had opportunities to do things on a national basis and interact with the Supreme Court justices. Later, Justice Ginsburg. It’s Justice O'Connor because of the way she conducted herself.
It's an unreasonable thought to say her name, to think her name, but she has walked a journey before leaving the bench with her late husband and then has progressed beyond that to many other things. I love the iCivics part of what she said, and I feel strongly about that. Now, she's also facing her own challenges. If she could fully participate, I would like to have dinner with her, which I had done more than once, but I would like to be able to ask her questions I was not comfortable asking her earlier on.
She's a favorite of mine too. I admire her and her approach to things. I was involved with her iCivics project from the beginning and it's such a great thing to do. For her to contribute in that way after the bench is amazing. It's carrying on well beyond her, which is what she wanted it to do. She's amazing. The first time I couldn't talk to her at all, I couldn't even form a word. I was excited to see her. When I got involved with iCivics, one of my friends said, “I'm having dinner with Justice O'Connor and a couple of other people. I don't care what you're doing, but you're going to be there. Whatever plans you have, cancel them. Tonight, you're going to be here at this place for dinner.” It was a wonderful opportunity.
She is so gracious, interested in other people, down to Earth and very easy to be with. I'm sure she made you very comfortable when you relaxed a little bit and could enjoy the conversation.
She is very interested in everyone else, learning about them and having an in-depth conversations about things. I do remember when I said, “Someday, I might like to be on the appellate bench as well.” She looked at me and said, “Why would you want to do that? Now you can do anything. You have all these other choices.” It was so cute. I was like, “I never thought of it that way, but that's a different perspective.”
You don't have to mind your P's and Q's quite so much.
It was charming. I thought that good different perspective. I'm like, “That is a sign of progress, isn't it? I'll think of it that way.” It was neat. Last question. What is your motto? If you have one.
I don't have a motto. I tried because you were gracious enough to suggest you may ask some of these kinds of questions. I could come up with one word maybe. It might be hope but that's not a motto.
What does hope mean to you?
Don't give it up. Be focused on that which is positive and try to be receptive to all the possibilities for good.
I think that it’s this light out of the darkness too. Thank you so much for doing this and you're definitely the light of my particular day. I have enjoyed this so much.
Thank you so much. I appreciate getting to know you a little bit.
Thank you so much for joining the show. I appreciate it.