1. What do you like most and least about being a judge?
The best part of the job is working with law clerks. These young, excited, smart new lawyers work hard, inspire me with their enthusiasms, keep me motivated, and become something of a family for the year of their service and thereafter too.
For several years after getting on each of the two courts on which I have served, I would not have been able to identify anything to dislike. Surviving the selection process for a state or federal judgeship can make one simply grateful for everything thereafter. But as the years pass, some parts of the life of a judge can become tedious. The recurrence of the same issues in a large number of cases does drain the excitement from parts of the job. Yet excitement is not the test for whether a case has merit. Fortunately, the law clerks have not spent years facing the same issues and thus bring a fresh perspective to almost everything.
2. Identify one judge, living or dead, whom you admire the most and explain why?
I have admired many judges through the years. I have written a few times on the life and manifold contributions of former Chief Judge Charles Clark of the Fifth Circuit. Instead of repeating those comments here, I want to mention another judge whom I admire greatly.
My admiration for former Chief Judge Roger H. McMillin, Jr. of the Mississippi Court of Appeals is boundless. We were among the first ten judges elected to the court in 1994. Like most of us, he had never served as a judge before. Yet from the first, Roger revealed he had the intellect, the work ethic, and the temperament to be better than the rest of us in consistently reaching a sound result, then explaining that result with clarity. Our case discussions, the two of us sitting together in one of our offices, were the most intellectually satisfying part of my service.
When Roger became chief judge in 1999, he used his authority with a firm but careful hand. He worked through disagreements wherever they appeared, such as at en banc meetings, leaving all judges confident that their opinions had been fairly heard and considered. He respected his colleagues and treated them accordingly.
In my twenty years of service on two different appellate courts, Roger stands out as one of the wisest and most congenial of all the judges it has been my honor to have as colleagues. He retired in 2004 to pursue other opportunities, which have worked out well for him. Still, his departure from the Court of Appeals was a great loss for the court, and for me.
3. What three suggestions would you give to a lawyer about how to improve their writing?
The obvious answer may not count: Be brief. Why that constant advice is ignored is beyond me. I could say it two more times and get my three suggestions. Instead, I offer three others.
Be scrupulously honest in all that you write. Whether discussing the facts or explaining the law, do not hide what is difficult from your perspective. Judges will discover in your opponent’s brief what you have left out, or will learn from their own research. It is important that we do not also learn to have doubts about the reliability of your brief or your oral presentation.
Despite the admonition to be brief, add introductory phrases or sentences to explain the importance or relevance of what follows. If you are writing a statement of facts, explain at the beginning of that factual statement what is important. If the issue is who had control of the premises when a fire broke out, make sure the reader knows early in the facts that control is the question. That allows the reader to process and organize, and even remember, more effectively. If you begin discussing a precedent, from the first sentence of the discussion it should be clear how that case will be relevant.
Follow the usual rules for good writing, such as being direct, forceful, not using the passive voice, and all the rest. Read good books about writing. Writing is a key component of a lawyer’s set of skills, so studying the subject pays dividends.
4. What three suggestions would you give to a lawyer about how to present an effective case in your court?
I will respond to the question in terms of oral arguments. Know the record. If you were not the attorney in the lower court, work extra hard to become as aware as you would have been had you been involved in the case all along. It is not an excuse that helps your case to say you do not know the answer to a question because you only came in on the appeal.
Look forward to the questions from the judges. Listen intently for the likely purpose of those questions. The judges are telling the parties through the questions what they think is important, and perhaps on what issue the questioner sees the case as turning. Do not just respond to the question and then return eagerly to the prepared argument, but consider whether the question suggests shifting to a new emphasis in your argument in the time you have left. Such flexibility is a last-minute piece of the prioritizing an attorney must do in deciding long before the day of argument as to what parts of the case should be presented orally.
Treat opposing counsel, all parties, and the trial judge with respect. You need to consider argument as a professional discussion with the appellate court, largely free of emotion. Avoid at all costs hinting at disrespect of the appellate panel. One attorney, while arguing to a panel on which I sat, brushed off questions without answering them, was snide, and give every indication she considered some of the questions as irrelevant. As a former chief judge of the Fifth Circuit (not Judge Clark) once told a litigant who had the misplaced candor to say she thought a question was irrelevant, “just humor me.”
5. What is the hardest part of judging?
Were I a district judge, I would think sentencing would be the most difficult. As an appellate judge, I find that facing some new, esoteric area of the law presents real risks for me and those assisting me. Often the right answer in bankruptcy, or admiralty, or antitrust, will not be discoverable unless a understanding is gained of the legal context for the specific issue. A judge can be clearly wrong by failing to understand some basic legal principles of an area. Reading large sections of treatises and law journal articles can help avoid the worst of such mistakes.