by Elise Spenner
Hannah Mullen is a staff attorney at the Council on American-Islamic Relations Legal Defense Fund (CAIR-LDF) working on public-interest litigation. Prior to joining CAIR-LDF, Mullen clerked for Judge Merrick Garland on the Court of Appeals for the District of Columbia Circuit and spent two years as a fellow at the Georgetown Appellate Courts Immersion Clinic. Mullen graduated from Harvard Law School and Harvard University, where she was a four-year varsity lacrosse player. Our conversation focused on her decision to pursue public interest work, her understanding of “doing good” as a lawyer, her preparation strategies for oral argument, and her voracious reading hobby.
What were you like as a high school student?
I was very focused. I was very motivated. A lot of what took up my time was lacrosse. I was a very serious lacrosse player. I ended up playing Division 1 lacrosse in college, and I went through the recruiting process in high school. So my life was sort of divided into hours spent playing sports and thinking about sports, and then what I could dedicate to school and extracurriculars. So I don’t think I’ve ever been as busy in my life as I was in high school. Maybe in college. But since retiring from year-round athletics, I think things have gotten pretty relaxed, even as a law student and now as a litigator. So I was a very busy high schooler.
I play soccer — probably not at the level that you played lacrosse — but it’s definitely a big time commitment. What did it feel like once you started law school, and you didn’t have to play a competitive, year-round sport?
It felt like I had a lot of free time. There’s sort of this culture in 1L that it’s the hardest thing you’ve ever done, and you’re so busy, and there’s hours and hours of reading every week. And I felt like the odd one out because I felt like I had a ton of extra time. You spend a couple hours in class. You can do your reading whenever you’re not in class. And then I wasn’t spending three, four hours a day chasing a ball around a field. I wasn’t going to the training room before and after to get my injuries worked on. I wasn’t on a bus every weekend driving around to different games. So I thought 1L was downright luxurious from a scheduling perspective.
You said you play soccer seriously, and I actually think jocks get a little bit shortchanged in culture in some ways, defined in opposition to people who are academically serious. I actually think my background as an athlete was a lesson in time management and having to look ahead days to weeks to see when I would have time to study for tests, and I’d have to start my papers early, that sort of thing. Because all nighters are not an option when you have a big game — or even just practice is hard. And so I think that skill set has really served me well throughout college, throughout law school, and now as a litigator. So justice for the jocks! I think you’re learning a lot of really important skills that will serve you well in the future.
I totally agree. In high school, a lot of people quit their sports to focus on academics, and that’s upsetting to me. I’ve tried to retain some semblance of balance by playing soccer, and it really helps.
And it’s good to be a well-rounded person. I try to be a well-rounded person, now. It’s healthy to not let yourself become totally consumed by one thing. I wouldn’t want to work 100 hours a week. I value other things in my life, and I think excelling in multiple things at once can sometimes be helpful. Because, maybe you didn’t do as well as I wanted on a test, or you’re really struggling with something academically; you can go and have a great workout in the morning and feel really good. Or vice versa: practice did not go the way you wanted, you dropped the ball in a drill, and coach yelled at you — but you can go hit this paper out of the park. You know what I mean? That kind of balance can be really healthy.
I’ve read that you didn’t know you were going to be a lawyer until after high school. What were your early career motivations, and then what pushed you towards the law?
I was very interested in history and English and politics. I’m a very verbal person and sort of politically inclined in terms of caring about the world and wanting to help people, but I wasn’t 100% sure that I wanted to be a lawyer. It was somewhat like I was trying to rule out being a lawyer or test it against other hypotheses. Both my parents are lawyers; my grandfather was a judge; I have lawyers all throughout my family tree. So I didn’t want to just default to something that seemed obvious, or modeled for me over and over.
I was interested in politics, so in college, I worked on a Senate campaign in Virginia over the summer. I worked at a nonprofit over the summer; I wrote a senior thesis and spent a whole summer researching and writing that, sort of dipping my toe into the possibility of getting a PhD. But ultimately, throughout that trial and error period, nothing totally spoke to me the way that I thought law school and being a lawyer might. I kept circling around the conclusion that now seems inevitable in hindsight, that it made the most sense to go to law school. I didn’t want to just default to something because my parents did it, and I thought I’d be good at it. I really wanted to make sure that there wasn’t something else out there that might be a good fit.
Obviously, your grandfather was a judge and your parents were lawyers. How did you deal with the fear that you were going to be in their shadow, or that you had to live up to certain expectations?
That’s such an insightful question. I think for my parents, once I figured out I wanted to go to law school. I knew pretty early on I didn’t want to practice in the same fields that they practice in. Just didn’t seem interesting to me. They’re very good at what they do, but that’s not for me. So I didn’t have as much of that concern with my parents. I think with my grandfather — and just so your listeners have the context, my grandfather’s Justice John Paul Stevens — it’s kind of like deciding that you want to be an astronaut, and your grandfather being Neil Armstrong. He was such an extraordinary man that it almost takes the pressure off a little bit. There’s no universe where I am going to be — and of course, I’m biased — one of the greatest legal minds of my generation. I’m just a lady trying to litigate cases. It’s such a high level that it would be absurd to aspire to it, so it almost frees me up. If he was a really celebrated civil rights litigator in the federal courts of appeals, maybe that would be a closer analogue, but he really just is on this whole other plane.
And It helps that we don’t share a last name, for example. I kept that relationship fairly locked down in law school. And then actually, when he passed away, I eulogized him, and that was the first time that my name and his name were Google-able, if you will, in the grandfather and granddaughter sense. And since then, it’s become a little more out in the open.
But yeah, It’s just: He’s an inspiration, and he’s amazing. Sometimes I get to cite his opinions when I’m advocating for my clients, which is like a very emotional thing, because he was saying that defendants’ rights should be protected, and then I get to cite that or whatever it is. That’s very meaningful, but I hope it would be absurd for people to hold me to the standard, to be as extraordinary as my grandfather. And so I try to release myself from that kind of pressure.
That’s nice. He can be an inspiration but not the expectation, like you have to be this or you fail.
Listen, if people have that expectation for me — sorry, guys, not gonna happen. You’re going to get what you’re going to get.
I talked to Brian Wolfman about what constitutes doing good as a lawyer and whether you can find a place where you don’t just feel like you’re reinforcing the system. How did you convince yourself that you could be a lawyer and do good at the same time?
My understanding of what doing good as a lawyer would be changed really radically in law school, actually. So I came in with one understanding, and I left with a very different one. I entered law school in the fall of 2016, around Labor Day weekend. And in the Obama years, I saw the Obama Solicitor General, Don Verrilli, stand up and defend Obamacare. Those were the years of Obergefell and these big, from my perspective, wins at the Court, where the model for the gladiators at the Court was you work at DOJ, you work at white shoe law firms, and you do that cycle back and forth and really polish your resume to be perfect. And then you get to go fight and win that huge battle that affects millions of people’s lives for the better.
So that’s what I was thinking. That was my holy grail: If everything works out perfectly, maybe I can be up there in 40 years arguing some amazing case to defend a government policy I really believe in. And I think that was substantially challenged in the fall of my 1L year when somebody was elected who did not share my values and ended up over the next couple of years really doing violence to the institution of DOJ, really challenging the idea of an apolitical bureaucracy in the federal government where, for good or for ill, you stay throughout administrations.
And I think I got more sophisticated as a legal thinker and just became more educated in taking classes like administrative law and federal courts and civil procedure. And even absent my sort of top level concerns about what the political policies I would be defending as a government lawyer might be depending on the administration, I think I got much more uncomfortable with the day-to-day litigation that I would be asked to conduct: think about immigration policy, tort cases against the federal government. For example, a federal employee runs over someone in their Park Ranger truck, right? I think the victim should get paid. I’m a plaintiff-side girl. That’s how I relate to the world. I think I realized that I was more out of step than I thought with the workaday litigation that I might be doing if I got the job I thought I really wanted at DOJ.
And I didn’t work through all that until my clerkship year, until after I graduated. It really took a couple years to turn that ship pretty slowly and realize that maybe suing the government was a better fit. That’s what I do now, and I like it a lot.
I’ve talked to a lot of lawyers, and immediately after clerkships, the two options seem to be government work or a law firm. Do you feel like there is a lack of awareness around the public interest option — that you can sue the government instead of working for them or working at a white shoe law firm?
I think so. And I think it’s a combination of different things. Government and big law firms are always going to be there. They hire in classes of graduates every year. They have summer programs; they’re big organizations with big, systematized hiring. So it’s very easy for the law school career office to hold an info session and say, “Hey, if you’re interested in summering at DOJ, or at a state AG’s office, here are the things you need to do. Here’s the career fair they’re going to come to.” Same thing with big law, obviously — very systematized hiring. So both for the infrastructure of the law school career offices, and just for risk-averse law students who like to know when to put on a suit and show up to something, it’s pretty accessible.
It’s no one’s “fault.” Public interest is just a lot more catch as catch can. The organizations are small. Hiring happens when the funding comes through or when somebody who’s in a position leaves. You’re not farming in these big classes of civil rights lawyers at any given organization. And so that just makes finding those job openings and interviewing with them trickier from a scheduling perspective. It’s also a really hard way to start a career because generally, public interest lawyers are expected to do one, two, three, four — goodness I hope not — fellowships before securing the staff attorney job. That’s financially precarious — those fellowships do not tend to pay well — and it can be geographically challenging; you’re jumping all over trying to find different jobs. If you have a family, or if you’re just like, “I’m a grown up, and I can’t keep packing up my stuff and moving every year,” that can be really hard.
I think there’s sometimes the temptation to blame law schools for not facilitating public interest hiring, and I think it’s right that they could put more resources into it. But it’s also just a much slippier, more heterogeneous thing that’s harder to help people get into.
You clerked for Judge Garland on the DC Circuit, which seems like preparation for government work. What convinced you during that time that this wasn’t what you wanted to do?
You’re right, I got hired into my DC circuit clerkship when I still thought that I wanted to be a government litigator. And it was like a perfect fit for this job that I ended up not pursuing. Still a fantastic year. Loved my judge. Learned a ton.
But I think really, it was the process of literally submitting applications and picturing myself in the role of a particular job. I went through several rounds of interviews for a DOJ office before I withdrew my application. And so sitting in the office, speaking with the attorneys, thinking about the kind of work that would be on my desk as a lawyer in that position and realizing: “That doesn’t make me happy. I’m not excited about that.”
I went to a happy hour with somebody who was a government attorney at the office I was interested in. He had previously clerked for my judge, and I was like “Hey, I have an interview, can we talk about it?” And he asked me, “Are there categories of cases that you wouldn’t be excited to work on as a government lawyer?” And I think he was expecting me to have one or two, and I listed like five. And he said, “Hannah, I don’t think you want to work there. You can’t have a laundry list. Of course, you can have a couple where you say to your boss, ‘I’d rather not work on a death penalty case.’ But you really can’t show up with pages and pages of different categories and only work on defending regulations you think are good.” And I was like, “That’s a really good point. Thank you for highlighting that for me.” So I had to get pretty far down the road of imagining myself in those roles before it broke through that it wasn’t going to be right for me.
Even if the clerkship wasn’t exactly the perfect fit for what you ended up doing, how did Judge Garland influence your writing and your general methodologies as a young lawyer?
Sure. Judge was so great. I think the first thing about my clerkship that’s true about every clerkship — and then I’ll get more specific — is just being in court. You read dozens and dozens and dozens of briefs throughout the year. You listen to all the oral arguments, and you really get in touch with how your judge thinks. And the briefs and the oral arguments expose you to just what good and bad advocacy looks like. You see a ton of advocacy. Most of it is fine. Even in the DC circuit, people love to say it’s such a fancy court, there are such high-quality litigants. There are some high-quality litigants. There are some serviceable litigants, and there are some litigants who aren’t particularly sophisticated.
And so I think it was actually very powerful as a young lawyer to look around and go, “I could do this. Yeah. I could do as well as that guy. That guy’s been doing this for 20 years. I could stand up and speak in complete sentences that are at least as articulate as that guy. I could write a brief at least as convincing as this brief.” It really made the whole exercise even more accessible. The appellate bar is like a little self congratulatory in communicating that “Oh, only people with the biggest brains can possibly write in these paragraphs.” Like, you’re just reading and writing. It’s okay. And actually getting to see the exercise in action, I think was powerful in reducing imposter syndrome.
And then, in terms of Judge Garland, he’s just a very focused thinker. Some judges will have their clerks write bench memos that are dozens and dozens and dozens of pages and really cover every possible issue within 100 yards of the case. Judge would have us write three page memos. We had to ask permission to go over three pages. And they were to focus on the most important aspects of the case and what we thought was going to be dispositive. And then he would come and just talk to us about it. And we would go through different things and, in that process, I might run down certain other less top-line issues that he thought were going to be important, or that he wasn’t sure about, but I think it really helped me focus on what was going to dispose of a case.
That’s really helpful as a litigator. There might be 12 issues in the case, but if you lose this first one, you’re toast. Also, he helped me think about how to allocate word count and how to allocate resources. He was very sophisticated in understanding that not all issues are created the same. When you’re in law school, you write as many words as you can about every issue if the exam isn’t word limited, and he helped, I think, bring a level of focus to that popcorn-style of analysis that you sometimes come out of law school with.
It almost seems like having those conversations prepared you for oral argument, or made you comfortable going back and forth with a judge.
Not necessarily in the sort of rhetorical style or the form — the conversations with Judge Garland were conversational and you’re sort of batting things around — but it definitely helped in that you’re talking to a judge right, and you want to be as articulate as possible and show that you know the record, that you know the cases, and that you’ve paid attention.
It also is a window into how he’s thinking about the case. This is such a mortifying memory, but in my first memo ever, I very confidently recommended throwing a case out on standing. And then I realized after he had read the memo and been like, “Yeah, this sounds right to me based on the materials you put in front of me,” that I’d read the wrong affidavit. I literally relied on the wrong part of the record. And the plaintiffs obviously had standing; it wasn’t even close when you looked at the correct affidavit that they actually submitted. I was mortified. It was the first thing I turned into him. I was like, “It was a mistake to hire me; he’s going to think I can’t do this job,” and I slunk in tail between my legs to tell him. And he just said, “Okay, thanks so much. Good to know, just send me an updated memo when you’re ready.” And went back to work.
I think that was also helpful. Judges, they’re just trying to get it right. They want to know what they need to know so they can move forward and get to the right outcome in the case and these things that can sometimes seem catastrophic — as a law student when you’re cold called, or as a clerk, if you whiff a little bit on something with your judge, or even in an oral argument, if you misspeak and you have to go back and correct yourself — it’s okay. Not every half second of an interaction with a court or a judge is a referendum on whether you’re going to win or lose or whether you’re a good lawyer. And I think just as a clerkship demystifies the briefing and oral argument, it also demystifies judges. They’re people, they’re trying their best, and they’re going to extend grace to you as long as you are upfront with them, generally speaking. So that was also helpful.
In talking about oral argument, you’ve said that you put together an outline binder and then you argue the case outloud to yourself. Tell me more about your process to prepare for oral argument. How do you think your processes differ from other lawyers?
Yeah, so they definitely differ from other lawyers. Every lawyer, through trial and error, and what feels right to them, comes up with their own oral argument process. I’m a maximalist. In high school and college and law school, when I was outlining for exams, my outlines would be 100+ pages long. The process of making a very long document is really helpful to me in preparing, and then I pare it down over time and make shorter versions and that sort of thing. Some people find that totally overwhelming, and it freaks them out to even think of doing something like that, which is a good sign that they shouldn’t do it that way.
But something that gives me confidence, and I think can be very beneficial to the judges when they’re asking me questions, is that I just want to know everything. I want to know all this stuff. I want to know all the key parts of the record, including citations, so that I can point to the judge and say, “Judge, you really want to look at page 51 of the JA,” because that level of specificity can be really helpful, both in giving you as an advocate credibility and just making sure they actually read it. Their clerk scribbles down page 51, and they print it out for the judge, and it’s waiting for them on their chair when they get back from oral argument. So the record. The key cases. I’ve had oral arguments where I have my binder open to a key case, and the judge clearly has printed out that same case, and we’re going through line by line of a particular key paragraph. So I really want to have that ready to go. And then, of course, I want to know the substance of the briefs and the arguments.
Once I’m relatively happy with the material that I’ve reviewed and where I am in terms of my understanding, I just start talking. Just talking and talking and talking constantly. I’ll put headphones in when I’m walking the dog and talk, so I look maybe like I’m talking on the phone and not talking to myself. I walk around the house just constantly because I don’t ever want the first time I say a thought to be the first time I say it out loud. I’m not trying to memorize. You don’t want to sound like you’re giving a speech or sound canned; you’re just testing it out. I’ll say a sentence, and if I don’t like it, I’ll say out loud, “Oh, no, that doesn’t work.” And go back to the drawing board and try to answer another way. And then as I’m doing that, I’m changing the substance of the written outline to better reflect what I think works.
Many advocates — I think most high level advocates — record themselves, and play it back. I don’t do that. That would give me the craziest anxiety attacks. I would freeze up. I hate listening to myself back. So I don’t do that. Because I know that it would ultimately be detrimental, but many people do that, for example. But it’s fun. You just walk around talking to imaginary judges in your head for a couple of weeks. It’s great.
You mentioned being able to pick out specific parts in a brief or in an opinion, down to the page number. Does that require memorization? How do you retain information to that level of granular detail?
That’s where the outline comes in. What I actually carry up to the podium with me after a couple weeks of preparation is a small binder. And when you open it up like a book, those two sheets of paper are all that I have for one issue. And then I turn the page, and the next two pages are for the next issue. So once I’m on an issue, I don’t have to be flipping around. And within those two sheets, for any given issue, I’ll have a couple full sentences if I’m transitioning to a new subpoint, and I just want to have that there in case my mind goes completely haywire. But other than that, it’s mostly relative shorthand, including those specific page and opinion cites.
I don’t hold myself to memorizing those exact numbers. I usually do, just by dint of how much I’m repeating them, but I’m talking to the judge, making eye contact, and I allow myself to look down. So if I’m saying, “Well, judge, as we discuss in our motion for summary judgment, you’ll see on JA 52,” and I check down and I check back up, and I’ve got that there waiting for me. And I’ll typically have, as insurance, in case I get asked about them and want to be really precise, the most important passages from cases and the most important parts of the record also in that slim little binder. So that if they really want to go back and forth about an affidavit in the record or something like that, I can actually open to it and be as precise as I can with them.
You seem okay with not being perfect, with looking down, or stumbling, or just asking the judge for a second. Do you think there is an overemphasis on having this perfect style with flashy rhetoric?
I absolutely agree with the premise of your question. I think I came to that realization as a clerk when I was in the court of appeals, as opposed to at the Supreme Court. I think the Supreme Court is sort of a different animal. It’s related, but it’s a different exercise than litigating in a court of appeals or certainly in the district courts. And as consumers of high-level appellate advocacy, we generally think of Supreme Court arguments. And there, advocates bring up maybe one sheet of paper. You would never be flipping through a binder to get to the text of a previous opinion. There’s so much emphasis on being as smooth as possible, having this amazing, smooth rhetorical style.
And that’s how the Supreme Court has evolved. But the courts of appeals are bound by precedent. They’re bound by their past precedent or bound by the Supreme Court. They’re often very cognizant of their sister circuits and wanting to stay in step. And so there tends to be a lot more emphasis in the federal courts of appeals on the record. The Supreme Court is not sometimes quite as interested in the specific contours of the record in that particular case. And also on precedent. The Supreme Court, sometimes, decides they’re interested in precedent, but they don’t have to be. Because they’re the Supreme Court, and they can make whatever rule they want. Whereas in the federal courts of appeals, they’re actually constrained and so that level of precision, of “Your honor, I actually think this case turns on page 71 of your opinion in Smith v. Jones, and if you’d like me to turn to that, I will,” or “I’d like to quote very precisely” can be really, really helpful. And it’s very common. You don’t look amateurish if you’ve got your notes up there, and what I try to convey when I do things like that is precision. Your Honor, I’m not just up here shpeeling about what I think the law should say. I’m pointing you very specifically to why I think my client wins, and I’m trying to be helpful to you. And so I think that can be pretty effective, and I certainly feel more comfortable as an advocate and more confident as an advocate being as precise as I can just so that they know I know what I’m talking about.
How nervous or stressed were you before your first oral argument? And do you think there’s anything you did that helped you feel less stressed or, on the other hand, was unnecessary?
I mean, this is such a teacher’s pet kind of answer, but seriously, the most helpful thing you can do is prepare. All of my oral arguments so far — I’ve had four oral arguments in the courts of appeals — have been as a fellow at the Georgetown Appellate Courts Immersion Clinic. And so I was immensely well prepared. I had three moots before each oral argument, moots with incredible advocates, with the students who helped write the brief, and Brian, and my co fellow Maddy. And I felt, and it ultimately ended up I think being reflected in the oral argument, that I thought about all the hard issues. I wasn’t afraid that there were landmines out there that I hadn’t thought of that I was going to stumble into during the course of the oral argument. So that feeling of, “Maybe there’s something I haven’t thought of, maybe there’s something out there, but I’ve done everything I reasonably can to prevent that. I haven’t left anything on the field in terms of preparation” helped soothe me.
And then I’ve developed a very specific routine, and I know every advocate has their sort of pregame. This is another athlete thing. It’s game day. You want to get a very good night’s sleep, both the night before and the night before the night before — the 48 hours before sleep is very important. And then for dinner the night before, I have pasta, a small glass of white wine, and I go to bed early because that’s very unlikely to upset any part of my system. I am carbo-loading for a very stressful day ahead.
And I try not to cram in the morning. I try not to psych myself out, which is something I would do with exams, just let myself off the hook that morning. I’m generally nauseous because I’m so nervous, but I pick at a Greek yogurt so I’m not in danger of passing out at the podium.
And then I just trust myself. I say my intro a couple of times, so I get my rhythm. Really, in my experience, the most similar thing I can compare it to is a big game, because I didn’t do debate or Model UN or anything like that. You’ve done your practice, you know your plays, and you just warm up and then you go out there. It’s emotionally very similar in that when I was an athlete before a big game, I would be terrified. I would hope a blizzard would come out of nowhere, and the game would get canceled. Like, terrified. But once you walk on the field and the ref blows the whistle, you’re fine. You’ve got the muscle memory, you’re in it. You’re having fun, the adrenaline kicks in. And oral argument is the same way. I’m very nervous during the morning, and in the hours leading up to it, but then, once you say your intro, and the judge asks you your first question, you’re in it. It’s the muscle memory from all the moots and all the practice. So my biggest hurdle is just literally getting to the podium. And then I’m fine.
In some ways, that’s nice to hear. I run cross country, and I get so nervous for the meets, in a similar way. But I don’t always feel that way about tests or big projects. It’s scary, but I almost want to find a career where I care so much that I am terrified before I go and do it.
I do sometimes have this sensation of like, “There are people who don’t feel this way, emotionally at work. I don’t have to put myself in this crazy emotional situation.” But the feeling afterwards, hopefully just like athletics, when things went roughly according to plan and your preparation shone through, is amazing. It’s the best feeling in the world. The celebratory lunch afterwards where you did everything you could do. So the nerves on the front end are, hopefully, balanced out by a feeling of accomplishment on the back end.
I’m not sure if I’m understanding this perfectly, but you’ve mentioned that your preparation changes a little bit depending on the court that you’re arguing before or the judges. Could you explain that?
The core of the preparation remains the same, but there are a couple nuances in different courts of appeals that affect my preparation on the margins. The biggest one is the court’s philosophy toward timekeeping. So universally, in every court of appeals, you’ll get a notice before oral argument that tells you how much time the court has allotted you for oral argument. Typically, it’s 15 minutes for your standard case. If the court perceives the issues to be a little more straightforward, you might get 10; particularly complex, you might get 20. That’s sort of the average, although courts vary. And in some courts, in the Seventh Circuit, for example, where I’ve argued, 15 minutes means 15 minutes. You will get “thank you, counsel” at 15:30. You can finish your thought, but you really have to be done.
In a court that’s pretty sensitive to timekeeping, I still want to know all the issues, the breadth of my preparation doesn’t change, but when I’m doing the speaking part and when I’m in the moot, I’m thinking about how to get to the issues I want to talk about as quickly as possible. I’m practicing more aggressive pivots to get out of places that I don’t want to be or that aren’t helpful to me, and to get to my points that I want to make and my strong ground. So I’ll try to take the reins a little bit more — to the extent I can. I mean, if a judge wants to talk about an issue and is firm about it, I will be talking about it. But in my preparation, I’m thinking more about how to steer.
Whereas, in a court like the Third Circuit, or in the DC Circuit, where I haven’t argued but I clerked, the judges are much more lenient with time. 15 minutes can mean 15 minutes if the judges have gone through all the issues that they’re interested in, and they’re kind of done with you, or it can mean an hour, if they’re just going with you and they’re interested. That happened in my third circuit argument. I think I talked for an hour or so. So 15 minutes doesn’t mean very much at all. In preparing for an argument like that, I can be a little more relaxed in the pivot. My answers can be a little longer. I can throw in an extra detail or two without feeling stressed that I’m eating up too much time.
It’s very marginal. I don’t want to exaggerate how much of a difference it makes, but if I’m mooting somebody else, for example, and I’m not familiar with the circuit court, the first question I ask is often “Do you know how strict they are on time?” Because it often affects the feedback I give as a moot court judge. If somebody is giving relatively long answers, and they’re in a court like the Seventh Circuit or the Ninth Circuit, I’ll tell them: “I think you want to tighten those up. You’ve made your point, you’ve said the most important argument. I’m not sure you need to go into those three sub arguments. The judges already understand why you went on that point. And if they don’t, they’ll ask you a question.”
That’s the other stylistic thing. In a court that keeps shorter time, I try to give a relatively short answer that I think covers it and then check up with them and see if they have questions. And if they’re convinced, then I just move on to the next thing.
And to jump off this a little bit and answer a question you haven’t asked, one of the hardest things to do in oral advocacy, but I think can make a difference in how effective your argument is, is how you think about questions. I think folks who aren’t as confident in oral advocacy don’t want to get questions. They just want to say what they prepared and sit down whereas I think there’s data in the questions. They’re telling you what they care about. They’re telling you if they’re convinced or not by your arguments. Questions are incredibly valuable to you as an advocate, assuming you’re prepared and nimble enough to deal with them effectively. I want to know what the judges think of my case. If they’re totally sold on argument one, but they have a lot of questions for me on argument two, I want to know that so I don’t spin my wheels on argument one selling them something they’ve already bought. And so that’s also something I tried to think about.
To do that, it seems like you have to be really flexible. And you have to be okay with abandoning your game plan mid-argument, tossing something out because it’s not going to help you.
Yeah, I think you just have to relate to it as a conversation rather than a speech. I think one of the hardest things to do as an advocate, that I’m definitely still working on, is knowing when to give up on something. For example, I’m certain I’m right that the reason we win on issue one is Argument A. Argument A is binding precedent; it’s dispositive; we’re right about that. But if the judges aren’t buying that for whatever reason, and I can get what I need for my clients from Argument B — even if I don’t think is as good a read of precedent, I think it’s kind of a weird way to think about the law — embrace it, just go with it. Forget about Argument A, who cares about Argument A, we’re all about Argument B now!
You have to take yourself out of the mindset of, “I want to be right,” and just go for “I want to win for my clients.” It’s whatever those three people find convincing on that day, and if they’re telling you that they prefer Argument B? Okay. Fine. We’ll go with it. So you’re right, you have to be really flexible. And the northstar, the thing that you’re focused on, is: How do I get my clients the relief they want? And if it’s kind of an odd outcome that’s parceled together from different reasoning but the judges like it? Cool.
Gosh, that’s hard. I feel like I’ve internalized not just having the perfect answer but also needing the perfect reasoning. But your explanation doesn’t have to be perfect. It just has to be accessible to the judge.
Yeah, and you kind of practice your pivots: “Your Honor, I really think that Argument A is the best reading of precedent, but to the extent you disagree with me, I’m happy to talk about Argument B.” You preserve it, it’s in there, it’s in your brief.
The other thing is, sometimes I think that advocates feel a pressure to touch on every argument in their brief, every heading. But you’ve submitted your briefs. They’ve read them. Oral argument is for what the judges want to talk about. And if they’re all set on an issue, maybe you bring it up for 45 seconds just to make sure you’ve gotten it across at oral argument, but you’re prioritizing what they find interesting and what they’re struggling with so you can help them. It’s not a speech competition where you have to get through every part of your outline. Which is, again, a kind of flexibility that can be hard because you feel like you’ve missed something or haven’t gotten out everything you want to say. But ultimately, they’re in charge, not you.
I’ve asked a lot of questions, but I can’t stop wondering: How do you read 100 books in a year? I know Libby is great for audiobooks and Kindle, but that’s still insane. What do you like about reading so much?
I’ve been on an interesting reading journey of late. I read a lot as a child. My mom would take us to the public library and we would bring these huge baskets, and we would literally fill them up with all the different serieses: “Nancy Drew,” “A Series of Unfortunate Events,” all those pre-teen books. But once I got into college and law school, I was in very reading-heavy disciplines. I studied political science, and obviously, law school is very reading-heavy. So I would read for pleasure occasionally, but I really fell off. And when I graduated, during my clerkship year, all of my co-clerks were voracious readers. My then-boyfriend, now-husband is a very good influence; he’s a voracious reader; my mother is as well. So I realized that I didn’t have the law school excuse anymore. I’m working, and in a world with appropriate work-life boundaries, that doesn’t eat up all your existence, the way law school frankly did — in law school, I worked from the moment I got up to the moment I went to sleep for 2L and a portion of 3L, at least. So I was like, “I should get back into this.”
The Kindle-Libby connection has been huge. When you’re relatively busy, and it’s a trip to physically go to the library, or you have to buy a 100 books a year — which I couldn’t do, it’s extravagant, and I’d have nowhere to put them — hooking my Kindle up to a library card has been incredible. And it’s organically reduced my other screen time-based things in terms of TV shows and movies. I didn’t set out to do that, I just realized that I feel more rested and refreshed and I just feel better when I’ve been reading. So I started trying to do 100 books in 2021, and I did it again in 2022. And it just makes me happy. It’s really fun. And I love talking about books with other people. I have a couple friends who I trade recommendations with, and we’ll have a phone call and catch up about our lives and compare notes on books we’ve re-read. And I’m very glad I’ve revived that part of my life, because I didn’t realize how happy it made me until I started doing it again.
It was also very affirming to hear that you’ll read two or three fiction novels in the span of one non-fiction book. My family thinks it’s crazy that I read more than one book at a time, but I like the variety!
They can be so different! That’s the thing: I don’t necessarily just have an urge to read. I’ll want to read my fiction book or my nonfiction book. They’re such different intellectual exercises, the precision of a nonfiction book versus immersing yourself in the world of a fiction book. So I experience them as very different. It makes so much sense to do a fiction or a nonfiction at the same time, or even two very different fiction books, because the emotional experience, what you need from that particular hour before you go to sleep, could be very different. I never read nonfiction before I go to sleep. That never happens. I’ll read nonfiction on the weekends when I’m sitting up in a chair and drinking my tea, whereas fiction is when I’m sprawled in bed or on the couch and I sort of want to go somewhere else. So I completely defend the multiple books at the same time.
That makes me feel better. Last question: I know you’ve secured the coveted staff attorney role, but what does the immediate future look like for you? What are your goals?
I think stability. I graduated from law school in 2019, clerked for a year, and then was a fellow at Georgetown for two years, and now I’m at the Council on American-Islamic Relations Legal Defense Fund, or CAIR-LDF for a much-need acronym. And I’m loving it. It’s really rewarding; I’ve gotten to branch out from being an appellate specialist to doing trial work and trial relations and doing intake and just becoming a more well-rounded litigator. And I really like it. I don’t want to hunt for a new job for some time. So I think medium term is definitely at CAIR, growing as a litigator and enjoying my colleagues and our amazing clients — and, our 100% remote, work from home set-up which lets me cuddle with my dog whenever I want to!