January 8, 2013

In an in-depth interview, Chief Justice Tani Cantil-Sakauye gives insights into her judicial philosophy and offers practical advice for advocates

Yesterday, The Recorder published this in-depth interview with Chief Justice Tani Cantil-Sakauye, in which she discusses a wide range of topics. Now entering her third year at the helm of the Supreme Court, and as head of the nation’s largest court system, the Chief discussed the challenges facing the judicial branch and her approach to solving those problems. (For the Chief’s discussion of her efforts in this regard, check out this video.)

Most importantly, for our purposes, the Chief offered some useful information bearing on practice before the Supreme Court. She explained that, especially since joining a court that regularly confronts difficult questions with “‘no clear-cut answers’” and little controlling authority, she has developed a judicial philosophy characterized by restraint. She described that philosophy in the following terms: “‘Proceed with caution, and the law should develop incrementally. Because we cannot know a permutation of the law under what facts it will come. So we don’t want to speak broadly, too generally. And I want to tether our opinions to the statute we’re talking about, and be careful about what we might be saying as it affects other statutes or case law. I realize the impact, so I’m more careful, I suppose.’”

Regarding best practices for brief writing, the Chief offered the following good advice: “‘[B]e direct, be clear and give us road maps where you are going in terms of why you are citing a string of cases. Accurately represent the record because we read every word of it. And it doesn’t assist to disparage the trial judge or court of appeal panel. Start with your winning arguments. It helps if you can logically arrange your arguments in the brief writing so that we can see the whole picture unfold. [¶] . . . [I]f you want us to remember salient things about your case, it should be written in a way that is direct. Doesn’t cloud the issue. Doesn’t hide the issue. Doesn’t misrepresent facts. And leave out the extraneous. I know it might be hard to figure out what that is, but it’s about being relevant.’”

The Chief also shared some of the traits she appreciates least in brief-writing and oral argument. For briefs, she counsels avoidance of “‘any kind of colloquialism or slang.’” She also does not appreciate long sentences that are difficult to decipher. For both brief-writing and oral argument, she recommends that counsel avoid analogies. With regard to oral argument, in particular, the Chief remarked: “‘I think it’s a waste of oral argument to start with analogies and stories that aren’t about your case. We’re here for the facts and the argument and the law. Sometimes counsel will start with an analogy . . . but I don’t find that helpful. . . . [¶] . . . [Y]ou are looking up at seven people who’ve read the facts, know the law, and have five other cases. And they’re really not on for an analogy right now, in my view.’”

Finally, when asked for advice for new lawyers, the Chief touched on subjects all appellate advocates should keep in the forefront of their minds: the standard of review and preservation of the record. The Chief observed, “‘[O]nce you know the standard of review, once you know to make a good record in the trial court for the court of appeal, it guides . . . how you might research a case and it guides where you might decide to challenge a court of appeal opinion. [¶] You need to know the standard of review. If it’s de novo, it doesn’t help that you’re arguing the facts. So I think it can put the great puzzle of the law in place if a new lawyer reads enough of the standards of review, making a record, and where their best argument for success lies . . . .’”

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