From The Bench

1 In oral argument, what is one thing lawyers who appear in front of you should always do?

Answer every question directly If a question calls for a yes or no answer, respond with a yes or no and then explain If you cannot answer yes or no, say so and explain Once you answer the question, then pivot back to your argument

2. Is there anything lawyers should avoid during oral argument?

Do not guess at an answer Prepare so you never have to say, “I don’t know ” But it will happen We understand And we prefer candor over creativity Apologize, offer to provide supplemental briefing, and move on You have not lost the argument You just did not know the answer to a question

3. What is your biggest pet peeve in written motions?

Not asking for specific relief and not getting to the point Do not bury the lead

4. If you were to recommend one book to a young lawyer (fiction or non-fiction) regarding the legal profession, which would it be?

As lawyers, we must accept our limitations We cannot control what has brought someone to our offices Rarely is it a happy event But we can control how we respond Though the book titles reference males, the books discuss universal concepts of value to all humanity

With that, I offer two books: A law clerk (J William VanDehei) gave me a copy of The Little Prince by Antoine de Saint-Exupéry I recommend it as a short but insightful journey Many of our clients feel they are little princes And many lawyers do too We all need perspective

I also recommend Man’s Search for Meaning by Viktor Frankl It explores the effects of trauma, helps us reflect on our own lives, and lets us see how we can be there for others

5. Who is your favorite Supreme Court Justice and why?

I cannot answer that question with one name (see Answer 1) because my answer depends on why a Justice is my favorite best writer (Kagan), most direct effect on my life (O’Connor and McGregor you did not specify which Supreme Court), most inspirational story (Sotomayor) I will go with inspiration for the moment I have used Justice Sotomayor’s books about her life to inspire young people to pursue their dreams, particularly if they are considering a career in the law On the juvenile bench, I gave copies to young people, many of whom had never been given a book One of those young people recently attended a Legal Futures event put on by the Arizona Supreme Court’s Commission on Diversity, Equality, and Justice. She won a signed copy of the book, and she hopes to pursue a legal career.

When Justice O’Connor was appointed, she did the same for so many young people, particularly women. I remember her appointment, but I had no idea it would directly affect my life. She hired Ruth V. McGregor as her first law clerk. And after her appointment to the bench, Judge McGregor hired me as her law clerk. I also appreciate the keen insight and focus both Justice O’Connor and Justice McGregor brought to the bench. And Justice O’Connor quoted a Broadway musical in an opinion.

JamesD.Smith,Esq. Osborn Maledon

“May I offer you some advice?” Often, someone asking that question leads to eyerolls because it is about to lead to an insultorathreat Butthiswasasincerequestion,andIwas happytoaccept.

A high school-age girl who is a great swimmer is another regular at the pool. You see the same faces there and everyoneisfriendly,soitisn’tasifatotalstrangerposedthe question She saw a flaw with my head position during butterfly and offered some advice I’m 53 years old In my bestdaysinhighschoolmystrokewasn’tassmoothashers, soIwashappytoacceptherinput Andshewasgraciousto spendafewminutescoaching

Welawyers andImeantheolderfolkslikeme,inparticular needtobebetteraboutacceptingadviceattimes.Wecan’t assume that we know everything about how a case or argumentwillsoundtoajudgeorjurysimplybecausewe’ve been living with the case for months or years After all, your jurywon’thaveyoursameexperience they’recomingtothe case fresh, too Take the input from your colleague, spouse, orfriend Maybethey’llhelpyouthinkofwaystobetterreach youraudience

When we’re living with a case, we can lose the neutral perspective that an outsider brings. When I’m swimming, I certainly*think*Iknowwhatmystrokelookslike.Nomatter how certain I am, however, someone viewing from the deck or another lane sees other aspects that I’ll never see That viewcanbeinvaluable

And just as that high schooler at the pool had valuable insight,don’tthinkthatonlygrizzledveteranhassomething toshare. Lately, I’ve been astonished at the perceptiveness and intellect of young lawyers I’m encountering. I doubt I madethesamecontributionsattheirage.

Last, use every mistake as a learning opportunity. I’d been making the same mistake with my head position for a long time NowIcanfixit,though,andhaveabetterstroke Life as a lawyer can be similar Trust me we all identify questions blown at trial, ways we could’ve improved a deposition, or arguments in briefs we should’ve rephrased You don’t want to dwell on them forever, but they’re often the most powerful and important lessons we can learn to improveourpractice.