While emerging technology has created new opportunities for the way both lawyers and the public interact with the judicial system, judges haven’t been left behind. On today’s show, Judge John Owens of the 9th Circuit Court of Appeals joins Todd Smith and Jody Sanders, along with special guest co-host M.C. Sungaila, to discuss just how technology has helped from a judicial perspective. Judge Owens discusses how judges can embrace technology to better engage with attorneys at oral argument and prepare more efficiently to decide cases. He also offers tips to attorneys who are faced with tough oral argument questions and stresses the importance of preparation. Finally, he shares stories about his federal appointment process and, with M.C. Sungaila, provides a behind-the-scenes look at how the 9th Circuit operates.
Listen to the podcast here:
A Judicial Perspective on Using Technology at Oral Argument | Judge John Owens
We’re lucky for a couple of different reasons. First, instead of our usual one guest format, we have two guests. We have a friend of the show and past guest, M.C. Sungaila, who is the appellate practice group leader at Buchalter in Orange County, California. We also have Judge John Owens from the Ninth Circuit. Before I make our introductions, a little bit of housekeeping. M.C. is a California lawyer, but we’re going to admit her as podcast VJ and make her an honorary co-host of the show. M.C., Judge Owens, thank you so much for joining us. We’re glad to have you here.
I’m so happy to be here.
M.C., a lot of our readers probably know a little bit about you, but if you want to briefly introduce yourself, and then we’ll let Judge Owens talk a little bit more about his background.
I’m the chair of the appellate practice at Buchalter. I’ve focused on appellate law for over 25 years. I previously clerked on the Ninth Circuit as well as in the Central District of California. I’m passionate about growing the next generation of appellate lawyers and giving them opportunities which we do at Buchalter through the Kaufman Appellate Fellowship position. It tries to give folks opportunities for an appellate practice who might not otherwise have them and then to launch them into clerkships if that is what they’re interested in doing.
You can read one of our past episodes, where she discusses the fellowship program in more detail. Judge Owens, thank you for joining us. If you’ll share with our readers maybe a little bit about yourself.
I was born in the District of Columbia, but I was in California from the age of three all the way until now, with a brief detour in the late ‘90s to clerk in Washington, DC for Justice Ginsburg and working for the Justice Department there. Most of my career was spent as a federal prosecutor in Los Angeles and San Diego. I did end my lawyer career as a partner at Munger, Tolles & Olson. My best tie to Texas is that when I was in college, I worked for the Golden State Warriors. When I worked for them in the early ‘90s, there was a young and good assistant coach on the team by the name of Gregg Popovich. I didn’t know him well but he was always friendly. He’s different from the Gregg Popovich you see now during the NBA broadcast who doesn’t want to talk to anybody. He was friendly then. It was clear back then that he had a good rapport with players where he could be tough on the players but they liked it. That’s always a tough balance to maintain as an NBA coach. Clearly, he’s been able to do it. That’s my one tie to Texas.
I imagine there are probably not too many Federal Circuit judges that worked for the NBA.
I can’t think of any. Mylyn Smith at the Ninth Circuit was a good basketball player when he was in high school. I should add that I was a law clerk for Judge Wallace on the Ninth Circuit. I was nominated by President Obama in 2013 and was confirmed in 2014. I’ve been on the job for several years. Not as long as Judge Wallace who’s been on the bench for many years. I’m not the new guy like I was when M.C. first appeared before me many years ago.
One of the things we like talking about here is the judicial selection and the different approaches. Do you mind talking about the nomination process?As a federal prosecutor, it felt wrong to try to align with one philosophy or political group. Click To Tweet
It was the 2013 to 2014 window. It’s different from now. When I was nominated, you had to get 60 votes. Part of the reason why I was selected was because the Democrats thought I could get some Republican help because back then they did not have 60 votes. The Democrats had 50 or something like that, so you need to get help. When they nominated me, they were thinking, “This guy had his prosecution background.” I never belonged to any advocacy groups like ACS or Federalist Society. I never did any of that stuff.
I felt like as a federal prosecutor, it was wrong for me to try to align with one philosophy or political group because then they can say, “You’re only prosecuting because you’re with this group.” I never did any of those things. That was a plus because they needed to get 60 votes. When I was nominated, it was interesting. With certain senators, they’re willing to listen to us because I was nominated to a strange slot.
Here’s the story behind my slot, and every judge has a story about their nomination. I was nominated to a slot that had been open for twelve years. It was what they call the Judge Trott slot. Judge Trott was a legendary judge in the Ninth Circuit. He belonged to the band, The Highwaymen, who sang the song, Michael Row the Boat Ashore. He was a terrific prosecutor in Los Angeles. He was viewed as a California judge. When he was confirmed, he was in Washington, DC at the time working in the Reagan Justice Department, but he didn’t return to California. For family reasons, he went to Idaho.
When it was time for him to go senior status, the Idaho senator said, “We get to have a say in who’s nominated here.” The California senators said, “He’s a California guy. Just because he moved to Idaho, doesn’t mean all of a sudden Idaho gets to pick.” There was a standoff between the Idaho senators and the California senators for many years and it was never ever resolved, so the slot sat empty. Over the years, there were people who were looked at to be put into that spot. Andrew Guilford, a great district court judge in Orange County, California who retired, was being considered once upon a time for that slot but it didn’t pan out, so it sat empty.
Now it’s time. They’re looking at me and also Michelle Friedland, who’s a Ninth Circuit judge. They’re looking at the two of us and they said, “We’re going to nominate Michelle Friedland to the open California slot, which was vacated by Judge Fisher. John, great news, we’re going to nominate you for the Trott slot, which was the messed-up slot.” You can look at it 1 of 2 ways. You could say, “Now I’ve got a real fight because the Idaho senators will not be happy with that.” They expressed on the record they were not happy with this, or I could view that as an opportunity. Had that slot not been messed up, I don’t think I ever would have been nominated.
Because there was this political impasse, I had an opportunity that otherwise I probably would not have had. I still have the challenge to get to 60 votes. There’s the whole idea of like, “Do you approach senators on the other side? Do you not approach senators on the other side?” The people in the White House are telling you one thing and the people in the Senate are telling you something else. It’s interesting how many people have gone through this process.
One judge on the Sixth Circuit who was the law clerk at the court the same year I was, he had the same analysis like, “Do I talk to people? Do I not talk to people?” All of a sudden, the Democrats changed the rule. You didn’t need 60 votes anymore. You only needed 50. I went from, “I don’t know if he’s going to get confirmed,” to “He’s going to get confirmed.” Had they changed the rules before my nomination, I would not have been nominated. It’s one of those rare times where the politics were at a certain point at a certain time, and that’s how I was able to get through.
For the Texas folks, that debate over the Trott slot was real and long-standing. It seemed highly unlikely that California would win out in that regard because otherwise, there wouldn’t be anyone representing Idaho. They all feel a little like a stepchild to other states in the Ninth Circuit where there are a lot more judges. It was a real issue. When Judge Owens was saying, “I wasn’t too sure,” that’s right. There was a reason nobody ever got nominated for that before because no one was willing to go to the mat, stand up and say, “We’re going to nominate someone and we think this is a California slot.” It looked like a tough road until things turned there.
That is an interesting turn of events and it’s nice for you that you got through it. Now you have Article 3 status. I imagine there are no complaints at this point.
I have a good job, explaining to my daughters that I don’t have a boss. I could be fired but I have to do something bad to be fired. I try to explain to them that that’s not how most jobs work. That’s always a discussion in the house, “Daddy’s job is not a normal job.”
In listening to that description that Judge Owens was giving, I was thinking that there’s a good lesson in there in terms of mindset too. You can see a problem as a problem or you can see a problem as an opportunity and try to do something with that. That’s an important thing to highlight for people, especially newer lawyers who might be reading.
The other thing I’ll say about the process was, I put in for the district court a few years before in San Diego. When I did that, I was only 37 or 38 years old. I didn’t want to put in for it but someone who worked for one of the senators said, “You should.” I said, “I’m never going to get picked. I’m 37 or 38 years old. I’m not going to get nominated for the district court.” The guy said, “You’re right, you’re not.” I said, “Why am I putting in for this?” He said, “Because if you do well in the interview process and the committee process, you’re going to meet people. You’re going to make impressions on people. That’s going to help you down the road. You never know when, but it will.”
That was some of the best advice I ever received because I did not get picked to the district court, but a few years later political winds are different. Times are different. There’s a new person in the White House in charge of selecting judges and they have a certain priority. I had made a good impression before. It just wasn’t quite the right fit. They needed a 7/8 and I was a 3/4, so it didn’t quite fit. The next time around, they needed a 3/4, and then all of a sudden, it worked. It was only because I made a good impression before. Had I come in cold for the Ninth Circuit and never gone through the process before, I wouldn’t have gotten picked that time.
In your career before going on the bench, did you do trial work or appellate work, or a little bit of both?
Mostly trial work. One of the nice things about being in the USA, in Southern and Central districts in California is you do your own appeals. I argued a number of appeals before the Ninth Circuit. My first argument was a huge loss from the government. It was the constitutionality of one of the early DNA collection statutes. Now, DNA collection is standard and it’s the norm. People view it as a good thing because it’s accurate. We want law enforcement to be accurate, but there was a time when certain groups did not want the collection of DNA at all. They were afraid of what the government would do with the information.
I had a case that came out of a supervised release revocation of all things, which is minor in the scope of things. It’s a minor procedure in the federal system, but the guy refused to get his DNA taken. I had to argue why it was constitutional for the government to acquire it. A panel 2-1 said the DNA collection statute was unconstitutional. For the entire Ninth Circuit, 60 million people, all of a sudden, DNA collection under this federal statute was struck down. I had guys from the DA’s office in Idaho calling me. Montana called me, “What have you done?” That was rough. Judge Whitehouse was on the panel, so I knew it was going to be a tough road on that one. The Ninth Circuit came around en banc and upheld the statute. Ultimately, we prevailed. For your first argument before the Ninth Circuit to have DNA collection struck down for 60 million people wasn’t the best foot forward.
You got through it. It worked out okay for you. You mentioned en banc. Before we transition into oral arguments, this is a total inside baseball question. I’m curious about how does that work at the Ninth Circuit with so many judges?
This is a great question because, unlike every other circuit, we do not do full en banc. We have 29 active judges but we only pull eleven for actual en banc decisions. One of them is a constant. One of them is the key. You have to look at it as we pulled 10 of 28. That’s how it works. The odds are for an en banc, I will not be involved in it. It’s a relatively low chance I’m going to be involved in it. It’s 1 in 3 that I’m going to be called for en banc. There have been a lot of people who have argued that our en banc process does not fully represent the court. There have been all kinds of studies back and forth on this.We want law enforcement to be accurate. Click To Tweet
You can have some statistical anomalies because you could have six members of the court deciding a case for the entire Ninth Circuit because it could be 6/5 decisions. Statistically, that is possible. There was one time before I was on the court where they upped it to fifteen judges on the court, but that apparently didn’t resolve the issue. That’s one of those complications of having a circuit this large. People have talked about having the super en banc or the full en banc of 29 judges. We do have facilities to make that happen. We do have courtrooms that can hold that many judges. It is tough to get a word in when there are eleven. I cannot imagine getting a word in there if there are 29.
It would be like an oral argument in the round surrounded by judges. It’s tough enough when you’ve got nine on our Supreme Court here in Texas, but that would be something to see.
To be clear, though, about who votes to hear en banc, all of the active judges can vote for that, but then who ends up being on the en banc panel is much smaller.
Here’s how that’s decided. If a case is called en banc, all 29 judges, absent recusals, can vote. If the case gets enough votes to go en banc in the majority, usually it’s fifteen. If there are recusals, it can be less than that. What they do is they have like an old bingo deal, the wooden box. They turn the box like a bingo caller and they pull out names. Even in the modern age, that’s how they do it. There’s a poll or a draw and it has to be witnessed by a Ninth Circuit judge. When the en banc message goes out, here’s the panel draw witness by some judge. That draw is done in San Francisco. One time, I witnessed the draw. I happen to be there and they said, “Do you want to do this?” I said, “Sure.” My chambers are in San Diego, California, but the court operations are in San Francisco, for example. That’s how you do it.
I’m not in federal court all that much, but once you’ve had en banc, I assume there’s an opportunity for an en banc rehearing or reconsideration. Do the remaining judges get to vote on whether to take the matter up on rehearing or reconsideration after the en banc opinion?
Yes. I don’t think that’s ever happened. Certainly, there have been calls to rehear the full en banc. That has certainly happened, but I don’t think we’ve ever had, as far as I know, the full 29 judges in the room like we discussed, though there is a procedure. People get their en banc decision. They say, “We’re not happy with it. We want a full hearing en banc,” and then the whole active court votes on that again, but that’s very rare.
There’s a little check and balance on that potential 6/5 opinion coming out on en banc, and then you’ve got this nuclear option that worst comes to worst. I’m still trying to get my mind around that, but maybe we should move on.
If a majority decides not to rehear en banc, there seems to be a renewed vigor with regard to separate opinions and dissenters from denial of rehearing en banc. There was one that had multiple opinions in that regard. That seems to be increasing, but maybe I’m just noticing it more.
I looked at the statistics, and the number of cases going en banc over the last few years in the Ninth Circuit has remained fairly constant. There is not as huge an uptick there, but the number of dissents from the refusal to go en banc is way up. The new additions to our court in the last couple of years have been active in writing dissents saying, “Supreme Court, you should take a look at this case.” Certainly, there is a direct statistical correlation between the change in the court’s composition and the uptick. There is no doubt about that.
Why is that? Part of it is reasonable to assume we have some new members of the court and they have some things they want to say. A second factor is that when you first start on the Ninth Circuit, you start with no cases. It’s not like in the district court. In the federal district court, your first few years are the worst years of your career because what happens is if you’re new, the more experienced judges will dump all the cases they don’t want right on your head. It’s like picking up the lunchtime cafeteria high school trashcan and dumping it on your head. That’s what happens to you as a new district court judge.
On the Ninth Circuit, that doesn’t happen. Cases are not dumped on your head. When you start the job, especially depending on when you start, your docket is light. If your docket is light, you have more to do. If you have more time on your hands, maybe you’re going to look at other people’s work a little more closely. Maybe you’re going to want to write separate things about what they’re doing. It’ll be interesting to see a few years from now if this collection of judges is still writing actively in the en banc process or will the other work occupy more of their time. We’ll have to see. It’s probably a little of both.
There are different approaches or personalities in coming on the bench. Some people are a little more reticent to see how everything shakes out before they become publicly engaged in that way. Some of the newer folks, personality-wise, on the Ninth Circuit appointments, I would put them in the not shy at all category. That’s also part of it.
This is another internal operating question. In a circuit that’s so large, do you hear cases from every state in your jurisdiction?
Yes. My chambers are in San Diego, but I have what we call a western state docket. We hear everything. I could be assigned to calendars in Seattle, Portland, Alaska, Hawaii, San Francisco, Pasadena, Phoenix or Las Vegas, any of those places. When you hear cases in Portland, they tend to be cases from Oregon, Idaho and Montana. You’re not going to hear an Arizona case in Portland. There are some geographic restrictions based on that, but not based on where I go. I can go to any of those places.
One of the things I’m liking about the circuit is that we are expanding in this respect. We’ve had many cases from Arizona for many years but we didn’t have a court in Arizona. The people in Arizona would have to travel to California to have their cases heard. I never liked that. Why do Pasadena and San Francisco have a monopoly on these things? That’s changing. We are now hearing more and more cases in Arizona every year. We’re now hearing cases yearly in Las Vegas. These are things that I like because our circuit could be represented as a circuit, not towards the West Coast because we’re more than the West Coast in our circuit. I’ve been happy to see that change.
I always like going to Phoenix, but maybe not the July calendar in Phoenix. Phoenix is a huge city and they have the right to have their cases heard there as much as anyone else. We’ve even heard some cases in San Diego, which used to never happen. We have four active Ninth Circuit judges in San Diego. Judge Wallace who’s senior would make it five. We have more active judges in San Diego than we do in San Francisco if you can believe that. When people were nominated, I lived down here and other judges are down here. We don’t have to be in any particular city. The demographics of the Ninth Circuit are changing. Southwest Arizona is growing like crazy. Nevada is growing like crazy. Those places need more representation in terms of where courts are being held. I’m happy about that.
I wanted to follow up on the court’s calendar where the argument was held in the cloud still.
It hadn’t been internalized for me that 60 million people live in your circuit. You’re essentially deciding the law for about 20% of the nation.
It’s a big responsibility when you think about it. When I do presentations for elementary schools, we put up a map of the circuit and we talk about how it makes at least 60 million. It’s the population of the UK. That’s what we have here. In terms of the revenue generated by the Ninth Circuit, and I don’t mean by the court but by the states in the court from the federal economy, it’s massive when you consider the tech companies alone that are located in California.
Texas is similar. In your area of the country is where it’s at. I’ve never done this math, but I imagine you could take a lot of the states in the south, add them all together, and they’re nowhere close to the production in terms of the economic impact that Texas has, so California and Ninth Circuit is similar. To M.C.’s question about what does argument mean these days, that’s a great question because, during the pandemic, we didn’t close for business. We stayed open, but what staying open means is a little different from what you might expect. We were not open like Walmart. We were open in the sense that we had arguments. We had a little bit of slippage the first month where COVID caught on fire in March of 2020. After that, we did not have a downtick at all in arguments.The demographics of the Ninth Circuit are changing. Those places need more representation in terms of where the court is being held. Click To Tweet
We did everything virtually by Zoom. We are going to be reopening for business the old-fashioned way. It’s tough as an institution to try to make plans because plans that made a lot of sense in June of 2021, all of a sudden, in July of 2021, it’s like, “That seemed like such a good idea before.” I can’t say what the exact timetable is, but we have had judges back in the courtrooms to have arguments. It’s weird because we go into courtrooms but the lawyers are appearing virtually. We’re trying.
The one thing that is going to be complicated is if the kids are not back in school in the fall, and I have every reason to think they are. If they are not back in school, it makes things so complicated for everybody. If the kids are back in school, it’s going to be a lot easier. Are we going to require lawyers to wear masks while they argue? I don’t think so. But in the District of Hawaii, for example, if you’re not vaccinated, you have to wear a mask in the courthouse. Either you’re vaccinated or you wear a mask when you’re walking around the building. I can see courts doing similar things.
I’m not a scientist or an epidemiologist, but this uptick of cases that we’re seeing has us all worried because we don’t want to go back to where we were before as an institution. We want to get back and do things. That’s our hope. You guys know as much as me. Someone’s going to read this conversation in August of 2021 thinking, “Were they off? They were crazy to think they can go back into court.” That is our plan.
Did your court do remote oral arguments before that or was it all new for the pandemic?
Sometimes we would but not frequently. In the past, what would happen is lawyers were expected to appear in person. Every once in a while, a lawyer would say, “This has come up. Can I appear remotely?” We would say yes. Generally speaking, everyone appeared in person. Absences are rare exceptions. There’s one judge, Judge Gould, who for health reasons cannot travel outside of Seattle, so he would appear remotely. I’m sure, M.C., you’ve probably had arguments before Judge Gould where he appeared remotely.
Generally speaking, the judges and the lawyers were there in person. A nice thing about our circuit is we were way ahead on the technology. We’ve been live streaming arguments longer than I’ve been on the court. I like to do a great job with it because they had a lot of experience with it. It wasn’t like somebody in the court didn’t know what to do. I know in California, they were still debating what platform to use.
There were telephonic arguments. That’s how it was for most of them for many months.
Telephonic arguments, very early in my career, I had one of those and it was awful.
Nobody likes them. The lawyers don’t like them. The judges don’t like them.
It was bad. I remember it was late 2004 that I had one and it was not good. We’ve done a good job on the technologies to make things move along smoothly.
I had arguments early in the pandemic and everything was smooth and well done. Everybody was ready for it. The Ninth Circuit was quite ahead of its time in that regard.
What percentage of cases does your circuit hear in oral argument versus submission on the briefs?
There are two different ways you can define that question. We have thousands of cases filed every year. I forget the statistics but it’s a lot. There are two tracks for cases. One track for cases is cases are resolved by a panel of three judges. In a short week, they hear a lot of cases presented by staff attorneys from the Ninth Circuit. None of those cases gets an oral argument unless we get one and we say, “This case deserves an oral argument.”
A large percentage of the cases in our court go in that direction. Of the cases that are set for argument, normally, between 25% to 40% of cases are submitted on the brief. That’s just a rough estimate. M.C., you may have a different take on that, but it depends on the panel. When I first started on the court, Judge Reinhardt wanted argument in every single case. Every single case will be argued, so you’d have 30 arguments in a week.
It just takes one member of the panel who wants an argument to have arguments.
Thirty cases argued in a week is way too many. The composition of the court has changed and you’re seeing more judges open to submitting certain cases. Now we’re seeing 15 to 20 arguments a week. Twenty is still a lot. I don’t want to undersell that, but 30 is too many. My law clerks have told me this. They say, “Judge, you are better when you have 2 to 3 cases a day as opposed to six.” Especially by the last day of the week. If you’re on case 28, that is tough.
If you’re a chef and you have to prepare three plates, you’re going to do a better job than if you have to prepare six. There are judges who disagree with me on that. There are judges who still think everything should be argued. I happen to disagree. I don’t think the oral argument is the most important thing. The briefs and establishing a record below are more important than what you’d tell me in 10 or 15 minutes. Oral argument is still important and it has changed my mind in cases. I have gone into a case thinking one way and oral argument changes it, but that is rare.
It’s far more likely that when I come into oral argument, I have made up my mind. I keep an open mind and I ask questions. A lot has happened before oral argument and it’s tough to talk me out of it at the last minute. It can’t happen. I’m not saying to never do oral argument. Of course, do oral argument, but for lawyers, you can’t save a bad brief or bad record by being good on your feet. I’m sure you’ve had other people on your show that tell you guys the same thing. That is very true.If you're a chef and you have to prepare three plates, you're going to do a better job than you would having to prepare six. Click To Tweet
This is a nice segue into the topic that M.C. approached us about when she suggested that we have you on the show. It had to do with oral argument, not specifically the mechanics of it, but more with the use of technology in an oral argument. M.C., feel free to chime in and help lead the discussion here. From what I understand, Judge, you’re quite the legal technologist when it comes to looking at materials on the bench using an iPad and that sort of thing. I wanted to also mention that this is important because one focus of our show is how to use technology in law practice, specifically appeals, but we don’t see it or don’t hear about it much from your side of the bench. It’s interesting to us to know how you use it. We’d love to know about it.
In some respects, I’m very old fashioned. In some respects, I’m very cutting edge. How am I old fashioned? If we circulate an opinion in chambers, a number of chambers will use Microsoft Teams and SharePoint. They’ll have circulated opinions with the bubbles and the comment bubbles. You can say yes or no and all that kind of comment stuff. Generally speaking, I don’t do that. Sometimes, law clerks will have a little bubble for me to read. I do the old-fashioned mark it up. I’ll read it and mark it up. Here’s where the technology comes in. I almost never mark up hardcopy. Everything I mark up is on the iPad. I use GoodReader. I’m not endorsing it. I’m a judge. I review the opinion on my iPad and I mark it up as if it were pen and paper.
In terms of argument, which is what you’re getting to, I’m a big believer in using the iPad. There are different technologies used. On the Ninth Circuit, many of us use bookmarked PDFs where you have a table of contents on the first page. It has all the cases and all the various documents. You simply click on the case and that jumps you right there. I was speaking to Judge Higginson out in New Orleans and they have a different way of doing it. He’s a real technology guy as well. He has a way and I don’t remember exactly how it worked, but his way looked good. It might be that they hyperlink directly out of the brief, which we don’t do. They’ve been working on the capability.
The reason why I like doing that with the iPad is because you’d see judges come in there and they have gigantic stacks of paper. I don’t do that. I come into court with an iPad and that’s it. Everything is on there. The nice thing about having the iPad in the courtroom is that if the lawyer starts talking about some case that hasn’t been cited, I have Westlaw on the iPad, so I can go directly to it. I also can message my law clerks. If the lawyer gets up there and says some crazy thing, I’ll text the law clerk and say, “What is that guy talking about?” They’ll say, “If you look at page five of his brief, he makes the argument there, but now it’s different.” I can get immediate questions answered by the law clerks during the argument so that I can come back with a question for the lawyers.
It reminds me when on the Supreme Court, for example, Chief Justice Rehnquist who was, in my mind, the smartest guy in the building when I was a law clerk there. A lawyer would say something about a case and you’d see this puzzled look on his face. He would motion over to one of the clerks and they have these clerks that are at argument who will run and bring them books. He could tell he was confused. He would do something and would raise his finger. The clerk would come over and he’d pass the clerk a note. The clerk will come back with the case and he will read the case and say, “Counsel, that’s not what this case says. You are incorrect in your characterization of the Rock v. Arkansas case.”
I can effectively do that through the iPad. I don’t have a runner behind me who can go pull books, but I have the same capability with the iPad. I’m more prepared that way. The iPad is certainly a lot easier to travel with. All I have is that. What I’ve been doing is I have an old iPad and a newer one. During COVID, I got a newer one. It’s what I’m using for this broadcast, but I still have my old one. What I’ve been doing is using the old one as what you think of a traditional notebook at argument, which has all the case materials. I have the new one which I can message with the law clerks, and then also Westlaw. I can look up cases very quickly.
That is handy because lawyers will say all the time, “Is there a case that says this?” They’ll give you some citations that are nowhere in the briefs. In the past, you just let it roll, and then afterwards, you’d figure out, “That’s not what it says.” Now, right then I can say, “I read this case and that’s not what it says. Tell me where in the case it says.” The moral of the story is that as my generation of judges becomes more comfortable in technology, as lawyers you’ve got to be even better than you were before. In the past, you could throw out some case citation and maybe we look at it or maybe we don’t, but we certainly aren’t going to be able to verify right then. Now we can do it right then, so you better be ready. It’s being live-streamed so your client is going to be able to see it live or on the YouTube playback. They’re going to be able to see that you tried to flow one past us and you were wrong. You better be ready. That’s all I can say.
They wonder why lawyers have to spend so much time preparing for oral arguments. To all you clients out there reading this, this is why. You don’t know what a judge is going to throw at you during an argument. Maybe you misread the case or maybe you didn’t or maybe the court skimming the case rather quickly missed the short paragraph that made the point that you saw as the advocate. That does speak to one, you better be careful as an advocate because the technology makes it that easier for the court to call you on it. Secondly, being prepared in advance and making sure that you’re forthright with the court in your representations about what the record and the cases say. The information is more readily available to call you on it if you’re stretching the facts a bit.
I’m glad you raised that, Todd. I’ll tell you my pet peeves and this goes directly to that. We talked about how there are certain weeks where I used to have 30 cases in a week. There was nothing that made me more angry than on the last day of the calendar, we have case 28 and I knew the facts or the issues in the case better than the lawyer did. That should never happen. I’ve got 30 cases this week and you’ve got 1 or maybe 2 before us this week. Two is rare. You have to be the most prepared in your case. It’s your case. It’s not mine.
That means that when you’re mooting for an oral argument, your moot has to be harder than anything we ask. Think about it, you have to put yourself in a tough position getting prepared for court. Hopefully, it will be relatively easy. When you’re getting ready for a boxing match, the three-minute rounds, you spar five-minute rounds to get yourself ready for three-minute rounds. The same is true with getting ready for oral argument.
For clients out there, if your lawyers need time to prepare, they need the time. Trust me, it is a legitimate expense because you have to be the most prepared. We’ve seen that. I’m a fairly easy-going guy, but the times I’ve gotten upset is when a lawyer will say, “This report said this.” I’ll say, “Where does this report say that? Why don’t you have the district court order in front of me? You’re appealing that order. That’s why we’re here. We’re here because you didn’t like what the district court said and now we’re here and you don’t even have the order in front of you?”
This happened one time. It was an advocate on behalf of the State of California. She was making some argument, “You have to affirm because of this.” I said, “Where is that?” She said, “Well, I don’t have it in front of me.” We gave her a copy. Judge Fletcher said, “Here, have my copy.” You can’t do that stuff. Be prepared for oral argument. You have to be the most prepared in your case. If you’re the second most prepared, that means you’re already at a deficit. If you don’t get ready, you’re giving up fourteen points. We’re starting the game and you’re down fourteen to nothing. Don’t do that.
That raises a question, what do you want to see from an advocate if you stump them with a question that they don’t have, it’s not in front of them, or they’re not sure about it. What’s the good answer for that?
The good answer is to be honest that you don’t know and that you will get back to us. There are different ways you can get back to us. For example, if you are the appellant and you’ve saved time for rebuttal, I am totally fine with you saying, “Your Honor, I’m not sure exactly the answer to that question, but when my opposing counsel is arguing, I’ll figure out that answer and in rebuttal, I’ll get back to you.” That is perfectly fine, or to simply say, “Your Honor, I’m not sure yet. I’m running out of time. What I’ll do though is I will submit a 28(j) letter on the federal side which is supplemental authority to answer that question.” I have no problem with that.
It’d be best to know the answer, but there are going to be times where we’re going to ask out a wacky question that you’re not prepared for. What you don’t want to do is guess or make something up because we will figure that out and that is not good. The advocates always appreciate when you are prepared and straightforward. Those are the ones. I’m sure you guys have heard this a million times, answer the question we asked, not the question they want us to ask, and there’s a difference.
In the digital age, it’s scary. You can make an honest mistake in an oral argument I suppose or you can not anticipate the one question that you get stumped on. If you go so far as to say something that’s not completely honest or forthright, not only are you losing credibility with the panel or, worse yet, the en banc court, but it’s captured for posterity. In the Fifth Circuit, you’ve got audio recordings that are released publicly, but there was at least, for a time, maybe it’s ongoing judge in the Ninth Circuit. You mentioned YouTube as another possibility. The last thing you want is an opposing party or someone who has something negative to say about you circulating a video clip of you being captured on video being dishonest with the court.
Every argument we make is archived on YouTube, so you can go back if you want to see how M.C. does or if M.C.’s pitching a client. If M.C.’s like, “I have a lot of experience from the Ninth Circuit,” they can go and watch every single one she’s done since 2011. You better be prepared.
What I want to know now though is, has M.C. experienced this from the counsel table? I assume it was opposing counsel that would have been called out in this way by Judge Owens or someone equally capable. Looking at the Westlaw case, you know firsthand, M.C., because you brought this to us that Judge Owens uses this technology from the bench. From your perspective, what does that look like? How has that impacted your oral arguments?
He’s so fast. He’s so on top of it. Sometimes, he’s faster than the advocates in finding the page number for a record cite. From an advocate perspective, it’s beneficial because you’re getting an immediate response. It’s not beneficial if you gave the wrong page number or you misrepresented something. That’s painful on the spot. It is helpful to have real feedback. He’s going to be looking at that paragraph or whatever you’re talking about in the record or in the case, and then you can have a dialogue about it then. Instead of the judges going back and talking about amongst themselves and maybe not engaging.
I always feel like we want to have the opportunity to engage with the judges who are deciding the case. If there’s an issue that comes to mind, you want to be able to respond to it at the time. This way, it’s real time. It can be daunting, but it’s also helpful in that way because if there is some discrepancy or some question that you want to talk about to say, “In this context, it means this.” You can have that discussion then. He is so fast at finding things. That iPad is amazing, plus there’s the lifeline to the law clerks. A couple of times, he’s like, “I found the page.” Even before, I’m looking down looking for it. I’m grateful for that.For lawyers, you can’t save a bad brief or a bad record by being good on your feet. Click To Tweet
I want to add to what M.C. said. As an advocate, you certainly want your arguments made before we sit down for a conference. We conference every day after the case is argued. If you don’t have a choice, send us a 28(j) letter and we’ll consider it. If you think about the decision process, it’s easier to influence us before we have sat down, the three judges, with no one else to talk about a case. The notes for that day are written up by the presiding judge as opposed to after that when we come to some agreement between the three judges, the notes are circulated. A week later, a letter shows up and says, “Remember the argument last week? Remember I said this? Actually, it’s that.” If you’ve got to send it, you’ve got to send it. You can do that, but it is always better to get that in before rather than later. It’s the way decisions are made. For the political scientists who study this, it’s better to get it in before than after.
If you’re technologically proficient as an advocate, hopefully you’ve prepared your argument properly. Let’s say your opposing counsel is the one getting called out, if you’ve got Westlaw on your iPad, in the question if there’s something to add to the court’s questioning or analysis, it seems like that would be a good opportunity. Yes, it’s real time and that is daunting, M.C., because most of us have gone in with our preprogrammed outline in our head. We know what questions we can anticipate reasonably, but there’s always going to be something that’s going to be a surprise. Having to flush out and maybe distinguish a case that the court has called out and question the opposing counsel about does speak to the advantage of having that technology at the counsel table with you as well. Don’t you think?
Yeah. It’s more helpful than the big binders can be looking for things, but sometimes that’s how I visually remember where things are, which cuts in the middle of the page. I can find it better that way than through the iPad. I’ve noticed from doing the remote arguments and the Zoom arguments that so much more is seen on those. How you use notes and how you use extra materials is different. Even not having someone next to you passing a note if there’s something going on when you’re waiting for rebuttal saying, “Look at this page of the record.” You have to be more self-sufficient. That person can’t be on camera on Zoom with the Ninth Circuit as well. I don’t know if Todd and Jody have had similar experiences with the remote arguments, but it’s impacted how I do argument and how much has to be in my head and much less looking at anything, whether it’s an iPad or a piece of paper.
Judge Owens, I know you don’t want to recommend anything, but do you have apps that you find particularly helpful during an oral argument?
I’m not going to endorse anything, but the reader I use is GoodReader and that’s the reader that the court gave me. GoodReader is a program that is useful for briefs and so forth. It’s not a researching tool. It’s more organizational. When I look up Westlaw stuff, I do not use the Westlaw app. I go straight to the internet version of it. That’s the version I’m the most familiar with. I am an older school Westlaw guy. I used to know all the little abbreviations you would type in. Focus might have been a lectern term, but all these little things you could do, I’m more of a fan of that. I still use some of those terms. To find things, I’ll look for this word within 25 of the same paragraph as that. I tend to still find that more accurate than the Westlaw algorithm. Those two are primarily what I use. They’re fast and they’re useful.
I’ll chime in on that issue too. GoodReader is a well-known reading app. You can mark up and highlight text. I use PDF Expert. I’m an iPad Pro user and I’ve used it at the lectern at argument. PDF Expert is an equally good product. Some people, myself included, prefer it a little bit. Although it’s just a matter of taste and choice. I don’t think one is so far superior to the other either way. I like it in part because I’m a Mac user, except for when I joined a firm that made me get a PC. If you’re logged in to the same Wi-Fi network and you’ve got a Mac and your iPad right next to it, then you can instantly load documents and move documents between the different screens. That was always a plus for me before, maybe less so now. I’ll give my chime in there for PDF Expert. For anybody who hasn’t experimented with using the iPad in this way, it’s another one worth checking out.
It’s probably way more old school, but I use the app that’s been around forever, that iAnnotate app, to annotate the PDFs and send them off.
Sometimes old school is good.
Do you have real-time access to the record on your iPad when you’re up there?
Yes, that’s one of the great things about the bench books. We’ll have the law clerks pull out everything from the excerpts of record that should be relevant. There are always surprises. There are always going to be times where the parties reference something that wasn’t highlighted in the brief. In that case, it is difficult for me to access the district court record from the iPad from the bench, but the law clerks can then email me those. The answer is yes. Hopefully, it’s in the bench book that we discussed. The bench book has the brief, cases, memos, and then the relevant parts of the record. If there’s something missing, there was a way to get it, so that’s helpful.
In the Ninth Circuit, we file excerpts of record so it’s not everything, but they’re big. Those are on my iPad as well. I have the bench book, which is the focus materials, but then I also have all of the excerpts of record on there. If you have to find a particular page and the documents are OCR searchable, the iPad is great. If they’re not OCR-ed, trying to find page 900 on an iPad is not great. That’s where paper is better. I’m a big believer in the iPad, but there are certain limitations.
If the documents are searchable, then I’m at a huge advantage because I can just type in the word and I go directly to that page. That’s why the iPad is great. What M.C. was referencing are the times when someone will say, “The district court said this,” and they’ll use a certain word and I’ll say, “Are you sure they used that word?” They’ll say, “Yes.” I’ll say, “I searched the entire document and that word never appears. Can you show me what page it appears on?” They’ll say, “The district court didn’t actually use that word. They used this other word.” I’ll say, “I just want to make sure.” That’s where the iPad can hold the lawyers accountable for what they say. You got to be precise in what you say. Especially with an abuse of discretion review or a clear error review, words matter and that’s where the iPad helps us to focus on the district court.
To be clear, most of the judges on the Ninth Circuit, whether they use them as actively as Judge Owens or not, they do because they’re generally traveling and don’t want to be shipping all these boxes and materials everywhere, although some of them still do that you’re traveling with iPads and reading the briefs on the iPad. How they further use them is a personal choice.
We are seeing more and more judges come to the bench with an iPad and not the huge stacks of paper. There are still some that do use the stacks of paper and they’re often organized. They have their own way of doing it. When I started several years ago to now, we are seeing far more judges being comfortable with the iPads because, in private practice, that’s where you’re coming from. All the lawyers are like that or some version of a reader. Everyone likes that. That was not the case when I made the transition in 2014. Some partners at Munger, Tolles & Olson had iPads, but most didn’t. I have to think now almost all of them have some rigor and therefore it’s easier. I never had an iPad until I became a judge, so it took some time for me to understand how to use it. If you’ve been using it for ten years, you’re certainly not going to come to the bench and not use it.
As a practitioner, it’s one of the more indispensable tools in my toolbox. I use mine every day. Judge, that’s great to know your perspective on this and how you have implemented the iPad into your experience in oral argument from the bench. Have you noticed an uptick in practitioners using the same sorts of technology when presenting arguments to the court?
Yes, there is no doubt about it. They still bring the papers that they filed. You want to have copies of what you brought with you to court. Generally speaking, they rely more on technology. When I first started, I remember very rarely would a lawyer bring a laptop computer into court. It would happen sometimes but they were rare, and then it wouldn’t work. All these things would happen. It was a mess. That’s not true anymore. People are more comfortable with it.
As judges, we are more accepting. In the past, if it’s all about a computer in the courtroom, some judges might think, “You’re not paying attention. What are you doing? Are you playing games? What are you doing with that thing?” Now, judges understand it’s more part of the job. Judge Tallman on the Ninth Circuit brings his laptop on the bench and he types during an argument. He has almost a transcription of what the party says, which is great when you’re at the conference because he has a transcript of what was said. When they saw judges doing those kinds of things, it became more acceptable for people to bring technology into the court.
I’ll give a shout out to another friend of the show, Jeff Richardson, who writes the blog iPhone J.D. Jeff uses an iPad, he practices in the Fifth Circuit as we do. Jeff maps out his oral argument on his iPad. He uses Good Notes, which is a companion app to Good Reader. He’s elaborate in how he does it. M.C., he draws all his diagrams. He knows where everything is spaced on the page. Sometimes, he will do it using a hybrid approach where he will use a color printer in his office and print all that out and take that document to the lectern with him.You have to be the most prepared in your case. If you're the second most prepared, that means you're already at a deficit. Click To Tweet
In part because you don’t ever know when your device is going to bite the bullet at an inopportune time. It’s more of a failsafe for him. I’ve heard him talk about using the device at the lectern. This is the problem, 12.9 inches in my view isn’t big enough especially as I get older and my eyes start to fail even more. I have done it and it is a challenge but you do have to know your case to feel comfortable walking to the lectern with nothing but an iPad. It’s been a little intimidating the times that I’ve done it, but I’ve carried it off. You can still use paper though. This is coming around to that point, even if you map it out in the way that Jeff does, you can still use paper and have it at the lectern with you. You don’t have to strictly rely on technology during the argument.
If I were still an advocate, I would bring paper up to the bench. I would bring both. Hopefully, I don’t need to look at either one. I would have the paper in front of me and I would have the iPad to the side. When I used to argue, what I would do is take two legal-sized folders and I would attach them in the middle. It’s like a trifold. I would have case law on the left and record in the middle and on the right. I would take it into the courtroom and it’d be like one folder. You open it up, and it was actually pretty big. It’s three gigantic legal-sized pages.
When I would argue cases, I would almost never look at it at all. It would be the times where they would say, “What case says that?” I could say, “On page 729 of this case.” I actually looked like I knew what I was talking about. As an advocate, for the reasons you said, Todd, I would not go up there and rely on an iPad with no notes in front of me because, all of a sudden, you get a system update in the middle of an argument.
Sometimes, some weird thing will happen where an iPad will start making noise or someone does find your phone or iPad so you got to turn it off. You want to have paper there but the nice thing about the iPad is it eliminates the need to necessarily bring all of the excerpts of record on the bench with you. That looks clumsy and you want to look a little smoother and slimmer than that when you go up there and calmer. A combination of the two is the best way.
Todd, I’m glad you said about your eyesight because I have to remind my colleagues and associates. If they’re doing something for me for argument, I’m like, “16.5 font. Older eyes, I’m not going to be able to read that.”
I turned 50 in 2021 and I still don’t wear glasses. I’ve noticed reading the fine print on a bottle of Tylenol, that stuff, I can’t read anymore. I hold it too far, but then because the print is so small. If you hold it too far, you still can’t see it.
I also like to do the same kind of thing. I like to have the key things available. If there’s a particular case cite, quote, or something from the record to use, it’s there. You’re directly responsive to things. I always try to think about themes or the different ways questions could be asked or larger themes of questions. I’m a big fan of charts. I like to chart things out, big font and charted out so that I can look down quickly. “For this point, these are the best citations,” or “These are the best responses to this kind of question.”
Honestly, those charts have saved my bacon many times. A day or two before the argument I’ve happened to figure out some angle that a judge might be interested in and here’s the answer to that, even if it wasn’t directly put together that way in any of the briefs. Being able to flip to that chart when that question comes and go, “Yes, right here, Your Honor. This is the key money point.” I have seen times where that made a difference like, “That’s in there. I’m going to view this differently.” I’ve been using that as a resource where you’ve already gone through and thought about all of those things and have it for the reasons that Judge Owens was saying, which is to have the answer for people.
We were coming to the point, M.C., where I was about to ask Judge Owens for a tip or a war story. I’ll give you an opportunity too to present another one if you would like, but that’s a great tip too. Judge, our tradition on this show as we get ready to wrap our conversation up is we like to have our guests offer a tip or a war story if they can share one. Since the theme of the day has been oral argument, if you had something in addition to the points that we’ve gone through, we’d sure love to hear it from you.
I’ll go back to what I said, you’ve got to know your case. You have to understand what the judges are going through that week. I don’t want to say, “Boohoo, poor Federal Judges.” We have a great job. Jobs as lawyers where you’re dealing with clients, deadlines, and judges is far harder than what we have to do. All we have to do is decide our case. Think about that. If you think about it, all we have to do as a judge is we have to decide the cases in front of us. That’s it.
We don’t have to worry about the lease on the building. We don’t have to worry about how much are we going to pay these associates? We don’t have to worry about any of that stuff. Is this client paying their bills? Is this client a slow pay? Are my partners going to allow me to bring this client in? Is it going to cause conflict with all these other cases we have? This would be great for me professionally, but may not be great for this technology company that the firm’s represented for ten years.
I don’t have any of those headaches. I don’t have to worry about who’s making partner. I don’t have to do any of that. All I have to do is decide the case and go on to the next one. In that way, I have the greatest job as a lawyer you can have. All I’m doing is looking at the law. For advocates, that is what we’re doing. If we have to do it 30 or 25 times a week, you have to understand that we’re doing our best to be as prepared as we can in every single case. If you are less prepared than we are, that is a bad sign.
I’ve never really lost my temper, but the rare times where, “I didn’t know he was like that,” that comes out, “This lawyer is not prepared.” I’ll flesh out the example I was talking about. We had a case where we had two major New York law firms involved. You can imagine how much they’re charging for this oral argument by the hour. The guy was appealing a district court order. It was a trademark case. He made a comment about what the district court did. That’s when I said, “Where did the district court say that? Where’s it in the order? I’m not finding it.” He literally said, “I don’t have the order in front of me.” That, to me, was so shocking because how much is your client paying for this appeal? How much are they paying you for this? The whole appeal is about this order and you don’t have it in front of you. He ended up losing.
I’m not saying that’s the reason why he lost, but that didn’t help. That story has happened enough times, which makes you wonder what some of these lawyers are doing. Because we’re doing our best and we’re on case 27 to 30. For you to not even have the order in front of you that you’re appealing, come on. That’s the main thing. As an advocate, what we want is someone who answers the questions that we ask. The vibe we want is someone that’s almost like we’re in a huddle, and they’re helping us figure out the answer. They’re an advocate, they’re not a judge but if the vibe they give is, “I’m here to help you guys. This is a hard case. I acknowledge it’s a hard case but there is an answer. I’m going to help you guys get there.” If that’s the vibe we get, that’s an advocate that’s helped us.
The advocate that’s tap-dancing up there, not answering questions, and doesn’t have the record in front of them, bad. It’s no secret. It’s the axioms I’m sure you’ve heard again and again and they’re true. The best-prepared lawyer is the one who is going to be most comfortable being a helper to us. If that’s the attitude you can bring into the courtroom, it helps us. He still may not win because he may have a terrible record, but you’re going to increase your chances as an advocate if you have that vibe, that comfort level. That comfort level only comes with preparation. If you’re not prepared, you’re not going to have that level of confidence and comfort to have that dialogue with the judges.
I appreciate that perspective, Judge. Let’s come at it from the advocate perspective one last time, M.C. Did you have any other tip that you would add to what the judge offered up?
I liked that last analogy to having that vibe of being part of the team and helping decide the case and providing the information that’s important to do so with a focus on advocating a particular result for your client. That’s a great way of putting what we always say about arguments. The best arguments are dialogues, conversations and discussions of the issues and where you need to go. Especially with hard questions, being ready for those because that’s where the judges are going to have questions. Not sure what to do about, “This is the nub of the issue in this case, and how do we deal with that?”
It’s been so great to visit with you. We’ve gone a little longer than we usually do, but the conversation has been great and informative. Thank you, Judge Owens, for being with us, for reaching out beyond California over here into Texas, and for sharing your experience with us. M.C., thank you for suggesting that we talk with Judge Owens, and also for participating in the conversation with us. You’re a good friend of the show and you’re welcome back anytime.
It was a lot of fun.
Thank you so much.
- Judge John Owens
- M.C. Sungaila – past episode
- Kaufman Appellate Fellowship
- Munger, Tolles & Olson
- PDF Expert
- iPhone J.D.
About Judge John Owens
John Byron Owens is a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit. In 1993, he graduated with a Bachelor of Arts from the University of California, Berkeley.
He earned his J.D. from Stanford Law School in 1996, graduating first in his class and earning the Stanford Law Review Board of Editors Award. After law school, Mr. Owens clerked for Judge J. Clifford Wallace on the United States Court of Appeals for the Ninth Circuit.
The following year, he clerked for Associate Justice Ruth Bader Ginsburg on the United States Supreme Court. After these distinguished clerkships, Mr. Owens worked as trial attorney in the Department of Justice’s Office of Consumer Litigation (now Consumer Protection Branch) from 1998 to 1999, and as a litigation association at O’Melveny & Myers LLP in Washington, D.C. from 2000 to 2001. In 2001, Mr. Owens became an Assistant United States Attorney in the Central District of California. He transferred to the Southern District of California in 2004. In 2008, he was named Deputy Chief of Major Frauds in that district, and he was elevated to Chief of the Criminal Division in 2010. In 2012, Mr. Owens joined the firm of Munger, Tolles & Olson as a partner.
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