It was the night before my first oral argument since leaving the appellate bench, and I could not sleep. It had been more than eight years since I last stood before a three-judge panel. I knew the record cold even though I had been retained on appeal. The trial attorneys did their job making the record. Errors were preserved, proffers made so I would not have to argue the dreaded plain error. I knew the controlling cases from memory, good and bad. In fact, I wrote one of the opinions on the same issue. I knew my appellate panel. I was elated to find the trial judge who wrote the seminal cases sitting on my panel. Knowing that judges enthusiastically discuss their own cases in argument, I was relieved that I would not have to distinguish this judge’s cases away.
So why was I having so much trouble sleeping? Then it hit me. As a judge, I was a reputed “active” questioner. The give and take is not only intellectually challenging, but it has real value because it gives the panel an opportunity to clarify an issue or correct a misapprehension. With a “hot bench” (hot because a draft opinion has been written before oral argument, not because the panel looks great), I had seen opinion outcomes change after argument.
It finally hit me—I was fearful I would start throwing questions to the panel as I had done these past years instead of fielding them.
The briefing, though, did come easier to me because I know firsthand what appellate judges want in a brief: a succinct statement of only necessary facts, a reminder of the standard of review, and correct statements of the law without ad hominem attacks on the other side or counsel.
But even the briefing posed a few problems for me until I was able to regain my inner advocate. As a new judge, I had to make a conscious effort in opinion writing to become a neutral, allowing the facts and law to dictate the result. When I sat staring at a screen having difficulty writing, I forced myself to step back, knowing I might be slipping into result-oriented mode. We had a saying in my chambers: “When it will not write, it cannot be right”—it could not be correct because you are attempting to massage the facts and law to reach a certain result.
As I wrote more opinions, the neutral style of writing became second nature, so when I returned to practice I had to work to rewire my brain and recapture the passionate writing style that separates good briefs from stellar briefs.
But the most difficult part of my transition was determining where and how I wanted to practice. The practice of law had changed substantially in eight years. Trial lawyers were now routinely doing their own appeals because of the pressure to find and retain clients. I had to learn the current litigation trends. By the time an appellate judge sees a trend, it is no longer a trend. And then there is marketing. When I recognized that practice marketing is a lot like retail politics (a skill I had to learn in a state that elects its judges), the task became easier. I began attending more bar association events, volunteering to teach CLEs and write articles. I transformed political campaign literature into marketing materials.
And the best part of the transition was being able to work with clients again. Helping a client navigate through business or personal misery to reach a good result is why I still love what I do.