Laurie Earl

Judge
Written By Third Boxcar LLC

00:49:19
 

Watch Full Interview

 

Show Notes

Laurie Earl, Administrative Presiding Justice of the California Court of Appeal, Third District, joins the podcast to share her career journey from the public defender and district attorney's offices to Presiding Judge of the Sacramento Superior Court and now Presiding Justice of the Court of Appeal. She describes how mentors nudged her along the way and provides insights into judicial decision making and effective advocacy in the trial and appellate courts.

 
 

About Laurie Earl

Justice Laurie M. Earl was appointed to California’s Third District Court of Appeal by Governor Gavin Newsom in November of 2021 and unanimously confirmed by California’s Commission on Judicial Appointments on January 6, 2022. Prior to her elevation to the Court of Appeal, Justice Earl served as a Judge on the Sacramento County Superior Court between 2005 and 2021, where she presided over civil, criminal and juvenile dependency cases. Justice Earl also served as the Sacramento Superior Court’s Presiding Judge between 2012 and 2013.

Justice Earl has served on a number of statewide committees, most notably she served as Chair of the Judicial Council of California’s Trial Court Presiding Judge Advisory Committee (2012-13) and Chair of the Judicial Council of California’s Trial Court Budget Advisory Committee (2012 – September, 2015). Upon appointment by the Chief Justice of California, Judge Earl has served as a member of the Commission of the Future of California’s Court System (2014), as a Special Master to the California Commission on Judicial Performance (2019) and as a member of the California Supreme Court’s Jury Selection Workgroup (2020). Justice Earl teaches Criminal Law Pleading and Practice at her alma mater, Lincoln Law School of Sacramento and has been an instructor of judicial education in both criminal law and ethics courses.

Justice Earl has been recognized as Alumnus of the Year by Lincoln Law School of Sacramento, as Judge of the Year by both the Capitol City Trial Lawyers Association in 2010 and the Sacramento County Bar Association in 2013. She received the Founders Award from the Sacramento Lawyers for the Equality of Gays and Lesbians (SacLegal) Bar Association in 2013. Also in 2013 Judge Earl received the Judicial Council of California’s highest recognition, the Ronald M. George Award for Judicial Excellence, in recognition of her leadership in working with trial court judges and executive officers in developing a methodology that changed the way state trial court funding is allocated to each of the 58 trial courts.

 

Transcript

I'm very pleased to have on the show Presiding Justice Laurie Earl from the Third District California Court of Appeals in Sacramento, California.

‐‐‐

Welcome, Justice Earl. 

Thank you for having me. I'm excited to be here.

I'm excited to have another amazing female presiding judge and justice in California. We have a number of wonderful PJs who have appeared on the show. People will enjoy knowing about your story and journey to the court of appeals as well. Usually, I start from the beginning, at least in terms of law, as to how you became interested in going to law school, what you thought you might do with a law degree, and how that came about. 

Justice Earl’s Journey Into Law

I like to say I stumbled into the law. I was probably in my junior year in college at Berkeley, and I was interested in some type of sports medicine. I played athletics growing up. Both my parents were athletic. I wanted to stay involved in that, but I quickly realized I could not pass chemistry. I was struggling with that. Do you know how you can take a class, drop it, and not get penalized? I did that a few times with chemistry and decided, “Maybe I should look in a different direction.”

I stumbled into a business law class. I took it with a friend who I always considered way smarter than I was, and I got a better grade than her. It was more intuitive for me than the sciences. I liked it. I was challenged by it, but it made sense. I decided I was going to pursue more classes and eventually decided maybe a law degree was the path for me.

Some aspect of prerequisite science has often been the downfall of those who thought they were going into medicine. They’re like, “Maybe or maybe not.” I liked physics. Biology was a little bit hard for me. There's always something where you realize, “Maybe this isn't my path, something where I can contribute a little differently.” It is about being open to that, too.

I should have known in high school, because I gravitated more towards grammar classes and English classes. My favorite class in high school was American literature. You could pick any American author and read about them and write papers. I picked John Steinbeck who was my favorite. I did so much better in those classes than in any of the Math and Science classes. I momentarily forgot that when I was in college. 

I think about my friends, those of us who ended up going to law school. Probably most of us were in the English and History classes and things like that more than others. That's okay. That's what college is about. It is about exploring different things and seeing where it goes. I also liked what you said about, “It was intuitive to me to some degree.”

It made more sense. I know not everybody thinks that about the law, but to me, it does make sense. I've gotten a better handle on that since in the job that I'm in, which I know we'll talk about. I've been able to step back and say, “What would make sense? What would be the fairest way to resolve this? How should the lobby be, if I'm interpreting and getting at a crossroads?” My brain seemed to accept it better than in the other direction.

Sometimes, you can see patterns. Some of it might seem obvious to you, but others don't see them. That's when you know you're at your sweet spot, too, where you go, “I see continuity and a pattern to this,” and it may not be obvious to others. That's something to start to work with. It isn't hard work on top of all of that to succeed, but it does give you the sense that you're in the right place for you or in the right arena, at least.

It's interesting because I have two sons in their twenties. One is getting his Master's in mathematics and going to be a math teacher. That makes sense to him, and it comes very easily for him. I have another son who's in film. He's artistic and creative. You're right. They see different patterns than I do. Until they found what fit best for them, it was a search of, “Where am I going to be happiest?” I hope we all get to that point as long as you don't have too high expectations for yourself and you're able to pivot.

The pivoting is important. If you're not in your best place, do not get discouraged by that. Move forward and say, “Let me try something else.” My dad was an engineer. He said something like, “Zero is a very important number.” I hadn't thought about zero as being an important number in that way, but maybe your son who is into math can figure this out.

He was like, “You couldn't get above a single digit. You couldn't go to the moon. You couldn't do all of these things. Zero is a super important number. That's how we get to certain places.” I thought, “That is a mind that works very differently from mine because 0 is 0 to me. To him, he recognized the importance of how all this fit together.” We all think differently, and that is a beautiful thing. That's how we collaborate and create innovative solutions to things.

That's right. 

You decided, “Law looks like a good neighborhood for me to be in,” and then you went to law school in Sacramento, right?

Overcoming Law School Setbacks And Finding Her Path

I did. I had gone to junior high and high school in Modesto. I was familiar with the Central Valley. I came back to the Central Valley to return to law school. I started at McGeorge Law School, which is UOP's law school, but I only made it a year. I was very immature. I was not ready to buckle down and be the student that a student in law school needs to be.

I did not return to McGeorge after the first year. I was told, “No, thank you. We're not going to invite you back,” which was a difficult and humbling experience. I drove home with my car packed full of my belongings to my family home in Modesto and had that heart-to-heart with my parents. The next day, I drove right back up to Sacramento and had an interview with the dean at Lincoln Law School and said, “This is where I want to be. This is what I want to do.” They were skeptical because my track record was not all that good, but they welcomed me in.

Lincoln is a night school. Meaning, they don't have a day program. I worked during the day and went to school at night. It took me a little bit longer to get through law school, but I did it. I was very grateful for that opportunity to pivot, knowing this is exactly what I wanted to do. It was time for me to maybe grow up a little bit. 

That's a lot of good self-awareness in you, saying, “If you want to do this, you're going to have to buckle down and do it,” but also, the folks who saw potential in you as well in that. There are such important moments where people see things in us sometimes that we don't see yet, and they give us that opportunity to shine. 

I agree. You're right that sometimes we don't see in ourselves what others do. When we reach that potential that others are aware of, it can be an eye-opening experience.

You're like, “I never saw this,” and there'll be people from years back that will say, “It was obvious to us that this is where this was going to go.” You're like, “It might have helped if you'd told me.” They usually say, “You have to figure it out on your own.”

Especially as a parent, I agree with that. You can't tell someone who they are or what they should be.

That's true, but afterwards, you're like, “It might've been helpful. A little pathway somebody could have shared with me.” You're right. It's part of that journey of discovering that for yourself. That's how you do it. You wish, in retrospect, maybe there was a shorter path. I have experience with the evening students. I've taught for ten years in various law schools, and the evening students are pretty cool. You know why you're there. You're working and you're there, so you're committed and usually have some kind of mission or vision for what you're doing. Everyone brings such interesting perspectives from their other careers to the enterprise. I enjoy teaching those evening classes the most.

When I went to law school, I was almost directly out of college. I was probably one of the youngest in the class. For most of my peers, this was their second career. They decided that maybe the law was always something they desired, but for one reason or another, they didn't think it was attainable, or they decided halfway through one career, “This is what I want to do.”

Many of them were raising kids and working full-time during the day. I did work during the day, but I had the luxury of being able to fall back on my mom and dad as long as their patience would last with me. There was stress, but different stress. I have a lot of admiration for people who decide that they're going to go to law school on top of their full-time day job. That's hard.

I have a lot of admiration for people who decide to go to law school on top of their full-time day job. That's hard.

I have to admit. I am a student now, too. I'm getting an LLM degree while continuing in my practice. I know firsthand how challenging that is, even though I've seen it from the other side in my students. It's challenging, but you've got to keep growing and expanding your knowledge. It doesn't stop.

It was the best environment for me because the class sizes are a little smaller and I had more access to the professors than I did at a larger school. For me, it's what I needed. Although it turned out to be five years of law school, I didn't mind so much because I felt a little bit more connected to the experience.

That's interesting. That's important to know, too. You think about that in choosing an undergraduate what size school or program feels most comfortable. That's a good point. You're the same person learning in different environments. Thinking about that in terms of the smaller class size and whatnot in law school as being something you think about when you're selecting which school you go to is something people should think about.

I agree.

You're very scrappy so far, as far as I hear. I love that you pick yourself up, dust yourself off, and go down another path. You're back in your home area and decide you are going to practice there, too.

Gaining Experience In Civil And Criminal Law

In my first two years at Lincoln as a law student, I had a job as a bartender. That was so much fun. I was working Friday, Saturday, and Sunday nights because I was going to school Monday through Thursday. I'd always try to Friday when I wouldn't have class. That was so much fun, but after a couple of years, I realized that I probably needed to get some experience in the field that I'm going to enter. It was with a heavy heart that I left being a bartender and all the attention I got from that.

I went to work for a small civil firm here in Sacramento. I was in my third year in law school. There were only three attorneys in the office, and they practiced a family practice. They did a little bit of everything. It was a great place for me to land because the people were so nice. I did things you do as an intern or a legal research assistant. I was getting paid, which was the good part.

I was drafting interrogatories. I was reading through depositions and categorizing those and creating keys for my bosses who were the various attorneys in the office. I was watching them, following them to court, and that type of thing. There was one other student who was with me. She got me the job. She was a friend of mine from McGeorge. When I said, “I probably need to get a job in the legal field,” she said, “Let me see if they'll make room for you,” and they did.

I loved it, but I quickly also realized, “If this is what civil law is, this may be a little boring for me.” I realized that what you do as a legal research assistant and the type of assignments you get are not at all what you do as a lawyer. It was a little slow for me, so I decided I wanted to try something else. I went over to the district attorney's office and said, “Will you hire me?” They said, “We will, but we can't pay you yet.” I said, “Okay.” That was good enough for me. I convinced my parents that I had enough money in savings that I could do it for a while.

I worked for about six months for them. I was assigned to a regular attorney who was working on a huge sexual assault case, and I loved it. When that was up, they said, “We don't have the money to pay you. You'd have to go on unpaid status again.” I said, “That won't work anymore.” I went across the street to the public defender's office, which agreed to hire me. I switched to that side of the aisle. It turned out to be a good move. 

That's great. That's the value in having the experience in different arenas in the civil firm. Even though you weren't doing the sexier parts of the job, you could see what was involved and figure out, “Is this the kind of pace that works for me or is it something else?” I was thinking that your bartending experience was probably a good experience in relating to people. That seems like something that would be helpful in the criminal realm, especially in a public defender role. I don't know why, but it would be helpful. 

I think everyone benefits from having a job in the food service industry. My kids have both done that. There are tough lessons there. You learn a lot about people, patience, negotiation, and how to de-escalate a situation when you have a customer who's unhappy. I do think about that. My friend and I, who worked in the DA's office with me, used to say about maybe an opponent on the other side who we thought was a little bit unreasonable, “They've never flipped burgers for a living. They don't know what we know.” To get screamed at by the customer is something you carry with you.

That is true. I did not work in the restaurant industry, but I certainly worked in a variety of jobs where you had to learn how to de-escalate and whatnot when I was in college.

Food service, restaurants, clothing, retail, any of that. 

It's all very good. It’s a good experience for other things and humbling. It's good to have that. Your practice prior to the bench was criminal in large part, right? 

It was. I started at the public defender's office as an intern. You're assigned to any attorney in the office. You could ask for some assistance on a motion that they were working on or something quick that they needed, like, “I'm going back to court at 1:30. I need you to find this for me.” That was good. It got me to understand criminal law and learn those skills of research and a little bit of writing.

It was mostly memo writing, briefing, and that kind of thing. It wasn't anything that when I was an extern that I would submit to the court. It would go to the other attorneys in the office. I did not pass the bar the first time. I was about five points shy. The county had a policy that you could not stay on if you hadn't passed the bar, so I went to work for a civil firm and took the bar again. When I passed, I returned to the public defender's office and they hired me as a lawyer. 

Tell me. What did you like most about practice?

The Energy And Strategy Of Criminal Practice

The criminal practice? It was the energy you get from being in the courtroom. Things move very quickly with your opponent. It's almost like a chess match. You try not to react. You try to anticipate. When you do react, you want to make sure that you have a strategy. It was that whole energy. I often describe it as how an emergency room must feel for doctors. It's the constant moving back and forth.

There is a little bit of chaos, but controlled chaos. I liked that even though I was in this arena on my own case, I would go back to the office and I had 40 other people that I could talk to about what I had been involved with and what comes next and help me strategize. It felt like a team. That whole energy was fun and exciting for me.

It is different. There's the triage aspect to some of it, it seems like anyway. It's a very different pace than a civil practice or an appellate practice.

It's not for everyone either. I certainly meet a lot of people that that is not what they want to do. They don't want to be in the courtroom. They want to be digging up the one case that's going to make a difference, distinguishing cases, or helping strategize with the attorney that's going to go into court. I  understand that.

It’s getting this exposure and experience to things, saying, “This is where I thrive,” or, “This is what I enjoy as opposed to something else.” Somebody might enjoy finding that one case that changes everything, but somebody else might not enjoy that at all. The other thing I've seen from good trial lawyers, and especially those who have come from a public defender background or prosecutor, is that they read the room well.

They’re good in terms of reading how everyone's interacting, where the judge is at, and where the counsel on the other side of the aisle is at, and making these split second decisions that were the right decision to make. It's taking all of this at once to say, “I plan to do X, but I'm going to do Y instead because that's how I read this. This is the way to go.”

You're right. That comes from years of jury selection and trying to determine, first of all, who likes me up there on that prospective jury panel, because they have to like me, and who's going to get along with each other. Is there someone in the group who perhaps won't get along with folks? You have to figure that out. It comes from that, but also reading, “Where's the judge headed in this one? Where do I think my opponent is going?”

It's a little bit of intuition, but it's based on experience getting to those conclusions. It’s the right approach to take, but it might not have seemed like it when you first went into court, and being open to those kinds of changes. It's a special set of skills in people who have that kind of experience that I've seen. 

You're right. 

They enjoy it. When I'm an appellate lawyer consulting in a trial, I'm like, “This is a little bit too much chaos for me.” I like a little more order. My friends who are great trialers are always like, “This is fun. Go with it. It will be a wild ride, but enjoy it.” I'm like, “I'll try, but I like a little more order in my things. Can I go back and research something?”

It's all about your level of comfort.

It's worth being there to see them operate at their best level. It's always inspiring to see people do their best and do such an amazing job. It's worth it to me to see them do that, even though it may be a little bit wilder ride than I'm used to. Tell me then. How did you decide or think that you wanted to become a judge?

Transition From Prosecutor To Judge

I was at the public defender's office for about six years. I think you know that I then switched to the district attorney's office. That was a decision I didn't take lightly. It takes a very special person to be a career public defender. You deal with a lot of tragedy. You deal with some pretty frightened and unhappy folks. They sometimes take it out on their lawyer. I was ready to do something different, but I didn't have the financial means to be able to go out on my own, so I went over to the Sacramento County Public District Attorney's Office and proceeded to practice over there for the next ten years.

It takes a very special person to be a career public defender. You deal with a lot of tragedy and some pretty frightened and unhappy folks who sometimes take it out on their lawyer.

I didn't think about being a judge. It wasn't something that ever crossed my mind. I didn't even think about how one becomes a judge. I was happy with what I was doing, and I didn't aspire to do anything else. I thought, “People who were judges didn't do what I do. I don't know where they came from, but I don't think they were in the DA or public defender's office.” I didn't know.

At the end of my career as a district attorney, I was prosecuting homicide cases and did a trial in front of a judge. It was a multiple defendant jury trial. When it was over, the judge called me back into chambers after the sentencing and said, “Have you ever thought about being a judge?” I was like, “No, I haven't.” She encouraged me to apply and said, “I think you would do a good job. Your experience on both sides of the criminal system would be helpful.” I walked away, and then I went back about a week later and said, “No, thank you, but I'm good.”

Almost a year to the day later, I did another homicide trial in front of her. She called me back to the chambers again when it was over and said, “Have you given it any further thought?” I said, “I think I'm ready.” I had reached a point in my career in the district attorney's office where I was either going to make the leap to be a supervisor or I was going to do something different.

I couldn't imagine not having my own cases and supervising other people, so I decided that I was going to make the leap into being a judge. I knew nothing about how to do that, but I figured that out pretty quickly. The process is a bit daunting, but I was fortunate to have people on the bench and within the community that supported me. I jumped in, and about eight months later, I got that call that said, “You've been appointed.” I was thrilled and have loved this job ever since. 

Did that answer surprise you when the judge asked you the second time, “Have you given this further thought? What do you think? Did you answer that in the moment and realize, “I'm ready,” or had you thought about that?

I thought about it for a while, but then I had two young kids. We were crazy. I was in trial all the time. When she said it again, I was like, “Yes.” It was yes because I was already starting to see that my time doing homicide cases was going to come to an end here. I've been doing it for 3 or 4 years. It's hard work. It's emotional work. I had to go somewhere, and where was I going to go? I already knew change was coming. I didn't know what it looked like. 

I asked that because it does make a difference. Some of my thinking behind the show was that so many stories I hear are like that, where someone sees something in you and says, “Have you considered applying to the bench?” I thought, “What if someone doesn't do that for someone who would be good on the bench? Maybe these conversations and stories could be that nudge for someone as that judge was.” I think a lot about those kinds of things. Sometimes, it has to be a couple of times because it isn't the right time in your life for reasons that it makes.

That's awesome. There aren't many people who have been a presiding judge and a presiding justice, leading the trial court and leading your appellate district and division. That's a pretty cool combination. Do you think your experience leading in the trial court has helped you or given you some skills in leading the appellate district?

I do. The appellate court is very different than the trial court. It's hard to explain how different it is. Even though you're reviewing the same cases you used to preside over, you're looking at them through a different lens, so it's different. The one thing that I don't think is all that different is the administrative aspect of it. A lot of things that I had touched on in the trial court, like budget, technology, and human resources, were things that I was called upon to assist in here in the appellate court. That was the one thing that was familiar to me.

I say that because my work as an associate justice on the court, reviewing cases and writing opinions, was very foreign to me and took a lot more to learn than you think you'd have to. The administrative stuff, I was like, “This makes me feel comfortable. I'm familiar with this.” It was helpful. I am also blessed by a very good management team over here on the appellate court. We have a managing attorney and a clerk of the court that's also the court executive officer who has been here a lot longer than I have. I rely on them a lot, and it's comforting. 

It's great to have a good team. That's always helpful. That's so funny what you said. You were like, “That was the part that was familiar to me.” How would you describe the difference between your role as a trial judge and your role in the court of appeals?

Differences Between Trial And Appellate Court Roles

I have more time as an appellate justice to think about cases. It's almost unfair to the trial court that you have these Monday morning quarterbacks that are looking at your game tape from last week and saying, “You shouldn't have done that.” I have more time. That's how it should be when you're reviewing a case at the next level, having the time to think about the issues to dig into the law and the distinctions within the law.

I read cases very differently now than I used to as a lawyer. In the trial court, you are called upon to make these decisions quickly sometimes. You are reading cases on a fifteen-minute break, over a lunch hour, or in between meetings, and you're looking at, “Are the facts close enough? What's the rule?” Here at the appellate level, you're focused on, “For the rule to apply, these facts, if they're not similar, does that matter?”

I'm looking at them differently than I used to and with much more time than I was afforded as a trial court judge. I have plenty of colleagues who did not serve on the trial court. It is a benefit to have served on the trial court before coming to the appellate court to understand what happens and understand the energy in the room. You read a transcript. It's a cold record.

It is a benefit to have served on the trial court before coming to the appellate court, as it helps you understand what happens and grasp the energy in the room.

Still, you get a sense. I do. Even though it's the cold record, you still get a sense of what's going on and what led to certain things, especially if you were on the bench in that position before.

Certainly, there are fabulous judges who didn't serve on the trial court, but you get a little bit of an edge if you did. To me, it's a perfect segue from the trial court to the appellate court. We host externs. One of the things I'm proud of here is that we've started an extern program. I tell the externs that we get the benefit of time, we get the benefit of having three people who review the decision to make sure that there's no error, and we get the benefit of our experience. I don't think you can take those for granted. 

I thought your description of the difference in terms of how you look at case law between a trial judge and an appellate judge was right on. I think of that in terms of advocacy at different levels. What is the judge looking for? The judge is like, “I have half an hour. I need to decide something. Give me the rules of the road.” That's such a different scenario than you have at the court of appeals.

Most people who were on the trial bench and on the court of appeals will say that a difference, too, is that the buck doesn't stop with them. They do have colleagues. You need to talk about things and reach decisions together. That can, at least in the short-term, be like, “That's what I used to do. I decide and move on to the next thing,” but that's not how things happen on the court of appeals. 

That was a big difference. For better or worse, in the trial court, you're making the decision on your own. You are pulling the trigger very quickly sometimes. You've got to move on to your next case. I see our work as providing guidance to litigators, attorneys, and parties, but when I write a case, I'm conscious of who the other members of the panel are who are with me on this case. I have to first convince them that this is the correct position before we share it with anyone else. That adds a little bit of pressure. I wasn't good at it at first.

That's a whole other set of skills.

To try to add depth to your writing and to dig down a little bit can be challenging. Certainly, you can learn it, though. I'm an example. I'm not perfect, but I'm getting there. Not towards perfection, but at least getting competent.

That's the thing. If you weren't still learning and growing, then you'd be off to something else. As long as you're still doing that, there's still a lot of meaning and value to the works.

That's why I hit that fork in the road as a criminal prosecutor. I knew that I was going to need to do something different to be satisfied and to continue to grow and to continue to learn.  

I'm the same way, but I can see it in you. That's how you reach your full potential. It's pretty neat. I think about appellate practice, too, from an advocacy perspective, but also from the bench perspective as placing the case in the field or stream of the law. You're also concerned about the impact on others and the impact on the law, not just the individuals in your case. I think about this when I'm teaching students or preparing them to argue in appellate court or for a moot court.

The kind of questions you have when you're on an appellate bench are different from what you would have on the trial bench in terms of line drawings or what the potential impact is on other facts that aren't in front of me as well. It is thinking about a bigger picture and saying, “The test that you're asking me to adopt, is that a workable test? Is that something that trial judges can implement or that makes sense in this area of the law?” There are so many other things that concern an appellate judge that you wouldn't have on the trial bench.

On the trial bench, you're doing what you're told. On the appellate bench, you have a little bit more discretion because we're interpreting the law more than applying it. As a trial judge, you're applying the law. As an appellate justice, you're applying it, but you're also interpreting it. When you wonder, “Am I interpreting this correctly?” It's that 30,000-foot view. At the end there is like, “Is this correct? Is it fair?”

There certainly are outcomes where I look at it and go, “I don't like this case. I don't like this law,” but I still have to apply it despite that. You are looking at, “Is this going to be clear to the lawyers that are going to need to follow it and the trial judges that need to follow it, or am I out in left field on this and need to come back to the middle?”

There are a lot of factors that you consider. Some of them are easier than others because you think, “This is the law. There are 50 cases on this issue. I don't need to publish this one because I'm  applying what everybody else has done.” Every once in a while you get that case where you’re like, “This looks like an issue that hasn't been written on before. Here we go.”

You're like, “Wow.” Sometimes, there are odd interstices that you're like, “No one has written on this?” They hadn't, so clearly, some more guidance is needed in these particular areas.

That is sometimes surprising to me because you think, “How many years have we been doing this and nobody has written on this subject yet? We must be missing something.”

You're always like, “There must be something out there I haven't found yet.” Sometimes, that's not true. It hasn't happened. That set of facts hasn't come up in that. It hasn't highlighted or crystallized that particular issue in that way. What kind of advice or top tip would you give for brief writing on the appellate level or oral argument? 

Brief Writing And Oral Argument Tips

For brief writing, I certainly think shorter and to the point is better than the number of pages. You think about human nature. How long can you hold someone's attention? I think shorter and to the point. You have to acknowledge case law that's against you. Instead of ignoring it, you have to acknowledge it and distinguish it.

I'm a very structured person, so I like briefs that flow, lead one into another, and don't bounce around on me or where I have to go back a few pages to understand what we're talking about. I like that structure. It's what we learned in law school. It's IRAC. I don't know if you teach it this way, but some schools are teaching CRAC. You start with the Conclusion and end with the Conclusion. You do the Conclusion upfront, which is how we write our opinions a little bit, so the reader knows upfront where we're going.

I tell you where I'm going to go, and then I'm going to show you how I got there. That's where we went.

When we think about law school and we were like, “IRAC,” and pulling our hair out, that's what it is. You identify the issue, identify the rule, and apply the rule to the facts. That's the key to good writing. For oral argument, I don't think every case needs an oral argument. A good oral argument is to assess that the judges know the issues, but maybe not too well. I wouldn't be so elementary that you offend the judges, but it doesn't hurt to go through, “This is what the law is, and this is why the law's important in this case,” and not presume that we all understand every point you've tried to make in your brief.

The oral argument could benefit from being a little more educational without presuming that the judges understand every point you're trying to make, because sometimes, I don't. Sometimes, we get into an argument and I walk out and go, “I got that one wrong,” because I see they've made a point and I was looking at it from a different angle, but that's not how they want me to look at it. I don't think you can be too presumptuous. 

That's right. Sometimes, there are parts of the record where somebody will refer to something in the record, and you're like, “That's how this went down? That's how this fits together? That was not clear or didn't jump out from the briefs.” That can change how you view things, too. It's an opportunity to have the last conversation with the court and to clarify positions, arguments, or parts of the record that are pivotal. It's such a different thing to prepare for an argument than to write the brief. You discover tighter ways of presenting things and go, “What is the pivotal factor or issue in this case?” You pair away all the stuff that isn't in order to discuss the important things, that argument.

I don't always appreciate when briefs cite cases as an analogy, but the facts of the case that they're citing are so very different from the facts before me. I realize sometimes you make your argument and hope that someone latches on, but we can see through that pretty quickly because we read these cases, especially the ones that are the strongest for the party's position.

In most cases, I assume that if you don't cite it and it's a challenge for you, the court will find this. It's not like you're not doing yourself any favor by not discussing this. Come out and distinguish it or whatnot. Especially the court of appeal with the staff and the justices, the cases that are relevant will be found, so better to address them in your brief.

You have to acknowledge it. Don't ignore it.

To be an ostrich. It's not helpful. In your journey, you talked a little bit about the judge who recommended that you consider applying twice. Were there other mentors, sponsors, or people who helped you along the way? What did that look like for you?

Mentorship And Influences In The Legal Journey

I grew up in a family where there weren't lawyers, so I didn't have a lot of contact with people who were lawyers, but my dad had a very good friend who lived down the road from us, and he became a federal judge. He was a lawyer at the time, but he became a federal judge up here in the Eastern District. He took me under his wing. I was able to talk to him about the process of law school, and when I took a job in the public defender's office, his tips on effective advocacy.

I made a point when I was a lawyer of going to court and watching other lawyers who had good reputations. We all learn by watching how everyone else does the job that we want to be successful at. I would go over and watch. You don't have that opportunity as a trial judge to go sit in other courtrooms except at the beginning when you're in training.

One of my good friends is the former Chief Justice, Tani Cantil-Sakauye. She was a good mentor for me. When I joined the Sacramento Superior Court, I missed her by about 3 or 4 months. She came over here to the Third District, and then she was gone from the Third District by the time I got here. We've kept in touch along the way, and I've been able to pick her brain. I did cases in front of her.

For me, doing cases in front of judges, when you decide to become a judge, you know who you want to emulate, who you do not want to emulate, what you liked about that judge's interaction with members of the community, other lawyers, or their own staff, and what you may not have appreciated about that interaction. Everybody develops their own style. We learn it from other people who have gone down that path before us. 

The former chief justice is amazing. She's a beautiful person but also such a good leader of the judicial system in California.

I had the opportunity to observe that as well. I was on judicial council committees when she was the chief. I was able to observe that and learn from her in that role as well, which served me in my administrative capacity both here and at the trial court.

She's a great example of that leadership on that level. What a good sounding board, as you were going through the process as well. That's right. Whether you're a practicing lawyer or a judge, there are certain things that you see in how others practice their craft that you’re like, “I like that. That is great.” Either that works for that person and I would never do that or that fits. That is authentic to me. That seems like a good thing that I could do as well.

I was thinking when you were saying that you're able to watch good lawyers in action. I remember a couple of years ago, I was consulting on a trial in the district court. Apparently, it got out that the lawyers were good on all sides in this particular thing. When it was closing argument, the whole audience section was filled because all the externs and the law clerks had been told, “Come down. Argument is happening now. Do you want to see it?” It was so cool.

I was like, “This is an educational experience for everyone in the court.” I was proud and happy for the trial lawyers. I was like, “That signal went out.” All the judges said, “They're doing a good job. Go see them if you want to get some experience watching some good lawyers.” I was very proud of the lawyers on both sides in the case that happened.

When I had externs on the superior court, all the judges who had externs would communicate and say, “Does anyone have anything going on in their courtroom that might be worth watching?” That was always so important to get those law students in there to sit in arraignments, watch an arraignment calendar, and see how that works.

It's that educational part that everyone's working towards fostering the clerks’ and the externs’ education. It's a good thing. When would you have that opportunity to do that again as a practicing lawyer or if you're on the court? You can't do that. It's a beautiful opportunity I'm glad people take. Thank you so much for joining the show and sharing your journey. I usually end with a few lightning round questions. My first question is which talent would you most like to have but don’t?

I'd like to be able to sing.

Does your son sing? You said he's in the creative realm, but not that.

No, but he produces movies or short clips.

Who are some of your favorite writers? You mentioned John Steinbeck.

John Steinbeck is probably one of my favorite authors. Also, my favorite book is A Prayer for Owen Meany. I have to think about who that author is. He also wrote The World According to Garp. His name escapes me. I’m ashamed to say I haven't done a lot of pleasure reading since I became a judge. I had a juvenile dependency assignment as a judge that made me suck that out of me because I was reading so many social studies reports ahead of my calendar that I had no time. I listen to more podcasts than read. 

I always think good writing is good writing. When I can, I try to read other non-legal books because I feel like that helps me with my own writing. I learn new things from it and apply those principles. It can be hard. I remember in law school, that was a blackout for the first two years. There was nothing except what I had to read for class.

I was in a book club and then I became a judge. I was like, “I can't do this anymore. I have too much going on.”

It's hard. The book clubs at least keep you going in them, and then you feel guilty if you're not ready for them. Who is your hero in real life?

My wife is one of them. My kids are one of them. My wife was a middle school teacher. She started as a social worker, and then she was a middle school teacher. She retired. We undervalue our teachers here in this country. It's always inspiring to watch her and the work that she's done. My kids are my heroes because they're so comfortable being themselves.

That's cool. For what in life do you feel most grateful?

Probably my family. They mean the most to me. They offer me the most support. They have seen all my blemishes, and they accept me anyway, so I would say my family. 

Here's a fun one. Given the choice of anyone in the world, living or not, who would you invite to a dinner party? 

The artist Pink! I would like to sit down and have a conversation with her.

She's very authentic, also.

I would love to sit down and have a conversation with her.

When you said it, for a minute, I was thinking that it is a good fit. I think you're both very straightforward and genuine. That would be an interesting conversation. If I ever interview her, I'll connect you.

Thank you. 

That sounds good. I'm like, “You have to have dinner with Justice Earl.”

There you go.

Last question. What is your motto, if you have one?

You only live once. You should take advantage of the time that you have to pursue what you like. If you don't like it, don't spend too much time doing it. 

That's good, practical advice for living a joyful and meaningful life. That's a good one. I like that. Thank you so much again for being part of the show. It was fun.

Thank you again for having me. It was fun. I look forward to tuning in to the show some more.

Thank you.

Third Boxcar LLC
Next

Janna Lewis