Kowal Law Group Logo
The California Appellate Law Podcast - M.C. Sungaila

M.C. Sungaila Reports Back After Over 100 Interviews of Women Judges & Attorneys at the Portia Project

Tim Kowal     November 22, 2022

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.

M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:

  • The “watershed moment” in the 1980s when Sandra Day O’Connor became the first woman on the Supreme Court, opening the floodgates for women in law.
  • The varied paths to the bench, taken by lawyers who never thought it possible.
  • A law degree doesn’t just mean one thing, and success sometimes mean failing at your first try, second try, etc., until you find the right fit.
  • The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion.
  • Appellate judges look at oral argument as another part of their process in preparing to make their decision. Don’t look at oral argument as just an isolated 30-60 minutes—that’s not how the panel sees it.

Then we turn the tables on M.C. and ask her the “lightning round” questions she asks of her Portia Project guests.

M.C. Sungaila’s biography and LinkedIn profile.

Listed to M.C.’s podcast, The Portia Project.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

TRANSCRIPT:

Tim Kowal  0:00 
Are you the advocate or looking for an outcome while we are looking for an opinion?

Announcer  0:10 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:21 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:23 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and uncertified podcast hosts. In this podcast we bring our audience of trial and appellate attorneys some news and perspectives they can use in their practice.

Jeff Lewis  0:35 
And a quick thank you to our sponsor casetext. Casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've had a case tech subscribers since 2019. I highly endorse their service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up a casetext.com/calp. That's casetext.com/CALP

Tim Kowal  0:58 
Jeff when we started this podcast back in the middle of 2020. And then for the first several months we we recorded episodes that I now refer to as the rudder guide in podcast form, and we got about as many listeners as that description might suggest, but then we brought on a very special guest to the podcast and that guest quadrupled the number of listeners that we got to the podcast. That brave first guest was MC Sun gala and we are delighted to welcome her back today. MC Sun gala is a distinguished attorney with three decades of appellate practice under her belt She leads the Buchalter law firms appellate practice out of Orange County in California MC is a member of the Board of Directors of the National Association of Women Lawyers. She is consistently ranked among the top appellate attorneys in the state patent She is a leader in the profession having served in leadership on Bar Association's and creating appellate clinics to improve the practice of appellate law in the state. Most recently, MC has launched the award winning podcast, the Porsche project, the Porsche project was recently recognized by the recorder and the American lawyer media international as a finalist in the 2022 California law awards for innovation and diversity, equity and inclusion. We're so pleased to have MC back on to talk more about the world of appellate law as it looks through the eyes of the Porsche project. Welcome to the podcast MC.

M.C. Sungaila  2:17 
Thank you so much, both of you for having me back. I really appreciate it.

Tim Kowal  2:21 
Well, we have to your podcast, the Porsche project has just been making ways we see it's been releasing so many episodes and gotten so many accolades. Well, we'll talk more about that in a minute. Tell us anything that I missed in the introduction that our listeners should remember about you and tell us a little bit about what you've been doing in your day to day practice.

M.C. Sungaila  2:37
Sure, well, I appreciate the introduction. That was very kind of you. And yes, I have been doing appellate practice for a long time, and I continue to enjoy it. I'll continue to do it. And so I wouldn't, one thing I really love about my practice is that it's really varied between the courts, I love to do an array of substantive areas. So that's what I love about appellate practice each time where the laws developing, you know, we're working in different cases in different areas. So I've had asylum cases in the ninth circuit through the Ninth Circuit clinic that I teach at at Loyola law school. I also am working on a case a brief right now in the US Supreme Court on inrae Grand Jury case involving attorney client privilege, and I'm working on a case in the Utah Court of Appeals right now involving civil procedure questions. So it's an interesting range. It always is.

Tim Kowal  3:29 
Yeah. So you're moving into into Utah law, you've mastered all of the California subjects. And now we got to branch out into other states. That's exciting. Yeah.

M.C. Sungaila  3:37 
Every once in a while, like, go go out of state. Yeah.

Tim Kowal  3:40 
Yeah. Tell us what's new in in litigation and appellate practice in California recently, and maybe talk about you seeing any any effects or any long lasting effects of the pandemic? How are things kind of settling down? Are we in for some long term changes? Are there more changes to be seen?

M.C. Sungaila  3:57 
Yeah, it's it's interesting. I mean, we're at least at the point where there's a lot more technology in the courts, you know, the courts of appeal, the State Courts of Appeal were, I think, really caught flat footed a bit in the beginning of COVID. In terms of oral argument, a lot of them were holding it telephonically for these first few months, which was a little challenging for everyone, I think. So it's nice to have that option, both in federal and state appellate courts to do that most of the courts are starting to come back a little bit, although I've heard that still, you can still make one side will make a request for a remote and then often not least, the argument will be remote instead of Live, which is I mean, we've gotten used to that a little bit so we can do either. Now we've expanded our toolbox. So that's good, although in the perfect world that in my view, I'd rather be in person and seeing all of the judges together on the bench and seeing that interaction. But you know, we're we've expanded and so we're able to devote this point I think the question too, is something that I've heard from the some of the podcast guests from State Supreme Courts and others aides is that fair, especially Chief Justices who are interested in the overall administration of their court system is that they really had a wake up call from COVID in terms of access to justice, having things be more available online, having more hearings available to be done remotely, especially for those who are representing themselves. But I think also for council represented parties. And that is something to where I think they were a little bit surprised about how much people were using, you know, off roading out of outside of the public system. So that was something that was a surprise to them. I think they hadn't realized yet jambs and other alternative service providers are, you know, they're pretty robust and had been robust for a while, but really seeing that impact, because I think that, especially in the state courts, the amount of work that was going through was just, you know, cut in half, I mean, criminal cases, were not proceeding civil cases really weren't people were either settling going to arbitration or mediation, finding some way to resolve their dispute. And they saw that, you know, they thought, oh, when will we reopen? We're gonna have this massive out, it's gonna be really busy. But a lot of people had resolved it in different ways. And it was kind of like, oh, we have competition, basically, which is how some of the chief justices have told me that we have competition to the public court system now in these private, you know, mediation opportunities, and we need to show up for people like we need to think about that. It's interesting to hear them say that so plainly, you know,

Tim Kowal  6:29 
good. Yeah. I'm sorry. Go ahead. Did you notice a surge in references to pro tem judges, we use that once or twice to have we got a reference but by the presiding judge of Los Angeles Superior Court to have a pro tem judge, a former LA Superior Court Judge, as it happened to preside over a trial in the early months of the pandemic of 2020, when we realized that we were not going to get a trial anytime soon. And we use that Pro Tem reference and it was very successful in order to get our trial heard. Oh, you got on got put on mute there. MC.

M.C. Sungaila  6:58 
I know, hold on one second.

Tim Kowal  7:02 
Okay, there knows we had a little bit of interruption from a canine friend in the studio.

M.C. Sungaila  7:08 
Exactly. So I think just chief justice to has indicated, you know, just recently, she said, Oh, we're gonna have retired judges and justices available as mediators themselves, you know, within this current court system, and otherwise, I think that's also a recognition of the usefulness of that, and that they want to, you know, be competitive in that way.

Jeff Lewis  7:28 
Interesting. You know, we were talking about the use of zoom and technology by the courtrooms. And one of the issues that erupted here in LA where the three of us practice is court reporter availability, shortage of court reporters, and the fact that it's not a print problem that could be fixed by throwing more money at court reporters, there just aren't court reporters to report all the hearings, and whether or not the courts are going to change their attitude, or maybe the legislature will change its attitude regarding electronic recording of hearings. Do you have any thoughts about that? Where the courts might be going?

M.C. Sungaila  8:00 
Yeah, I mean, that's a true crisis, that erupting right now courts are acknowledging it. And, you know, we as appellate attorneys are like, Oh, my gosh, you don't have a record? This is terrible. Right. Yeah. So So yeah, it's a real problem. But there's always been a tension, and it's largely been from court reporters themselves are the union's associated with the court reporters. But I've always lobbied against allowing recordings. So I don't know where that's going to land. At this point. It's always landed against automatic recording, and making sure that court reporters are able to report, but I don't know how you know, how you address this situation, which is really at a an acute level right now.

Jeff Lewis  8:42 
You know, for our podcast, we use AI and software to create transcripts of a podcast, it's not that hard to create a transcript or to correct it, if there's issues of the issue to see what my prediction is there certain departments like family law, writs, and receivers, and like where domestic violence issues are, where a lack of reporters going to come back in terms of settled statements being needed to be settled and doubling the workload on the court. And those particular courtrooms I suspect will drive the legislature to solve this problem.

M.C. Sungaila  9:16 
Yeah, well, there's a deep access to justice questionnaire, because in family law, you're talking about a lot of people who are self represented and may not have a lot of money to get, you know, talk to have the court reporter there and all of that to begin with. So the recording, that's a whole other issue.

Tim Kowal  9:29 
Yeah, I just so happened to have been recently poring through the legislative record back from the 1992 AB 2937. Bill, the one that killed two that would have would have reenacted the electronic recording statute. And, and most of the opposition was, as he mentioned, you know, fueled by the court reporter lobby, there were a lot of letters written by judges who said I don't want to have to manage putting new tapes in taking tapes out labeling the tapes, putting you know, running them back when someone says Can you Can I have that read back, then you have to rewind it and find the spot in the tape. And it was a big hassle. But now that we've all proven, you know, it's this is 30 years ago now. And now we all get shown that we can have full trials over zoom with microphones with cameras, we chose, we've overcome the equipment problem. And and obviously, this is not a funding problem anymore. We have the money. It's a question of availability. And so I think the technology is up to snuff now, and we don't have that labor issue, apparently, is not not an issue. So it seems like something's gonna have to be done at the legislative level.

M.C. Sungaila  10:31 
Yeah. And that and like I said, that access to justice concern is pretty acute for the courts to in they see that they want to be responsive to that.

Tim Kowal  10:39
Yeah. All right. Well, without further ado, let's talk about the Porsche project. Now, MC the last time we talked, we discussed your commitment to training up the next generation of appellate Attorneys, including through your firm's appellate fellowship, the Porsche project that you started takes that to the next level, it shows how women in the law have taken the next step to become trial and appellate judges, tell our listeners a little bit more about the the Porsche project, how you got the idea for it and how you got it started?

M.C. Sungaila  11:05 
Yeah, so originally, I had started work on a book of interviews and the stories, the paths to the bench of women appellate judges around the country. And so I had done a few of those interviews and turn them into, you know, essays and things like that, working with the judges. And the reason I decided that I wanted to do that. And the reason that the publisher was also on board with it was that there's not as many women appellate judges, as you might think, in the country, at both the state and federal level, there's, you know, maybe 130 140, there's not a lot. So there was enough to, you know, highlight in the book and not be too overwhelming. And also, I thought it was a good way to encourage people to apply to consider to apply to the bench themselves, and see the various paths that people have taken. Because I think that some people will disqualify themselves from applying for the bench at the get go, because they think I don't have the perfect background. I wasn't a prosecutor, I wasn't this, I wasn't that. And when you see going through all of the history of everything, even when we thought that was true, it really wasn't people have so many different varied backgrounds, and they bring those with them to the bench. And there's value in that diversity of experience also. So that was kind of my initial goal. And then in doing the written project, I found that actually, it was really fun talking with them, the judges wanted to talk, they want to have conversations, and then we turn those conversations into, you know, written products and essays. And that took a lot more time than I initially thought would happen for each interview a lot of back and forth. And I also thought that it lost something in the translation, that having that conversation, having that very sort of personable showing by each of the judges during the conversation, you've got a better sense of their personality of their purchase to things from the conversation than from a written product, which ended up being you know, neat, polished, and all of these things, but you didn't get the same sense from the conversation itself. So I kind of shelved that project as a book. And then during COVID, I started thinking about, Oh, maybe it could be a podcast. And then then I hoped for a while that somebody else would have this idea and do it and I wouldn't have to but nobody did. Well, I thought, Okay, well, first, you can't have a podcast unless people are willing to talk to you. So I reached out to about, I would say, 15 people initially, if they were willing to participate, you know, trailblazing judges, people who were doing, you know, significant work in public interest or other areas. And they all said yes, which was very kind of them. And so we wanted that. And I thought, well, you know, maybe they'll just be like a 15. And that will be it. But what happened was that each person really enjoyed doing the interview, I thought it was valuable both for themselves and some self reflection, but also that it was a valuable project, women lawyers and law students, and maybe even those, maybe thinking about law school. So they would immediately say, oh, Judge, so I recommend her and she would really enjoy doing this. And so the guests would immediately start connecting me to, to future guests. And and I know enough from my legal training, just to never say no to a judge and just, you know, be very respectful of all and it was such a great opportunity. I mean, at that point, I felt like podcasts, the mission of the podcast is, you know, something more important is happening here. I'm just the shepherding source of the podcast. And I'm going to carry it through as long as people want to do it. As long as they see value in it, I'll carry on so and then along the way from that was it got much broader to trial judges, all different kinds of judges, I thought I'm applying to the bench would be helpful to know becoming a judge is very different depending on which level court you're at how you get there, whether you're appointed or elected varies from state to state. So I thought there was kind of like a civics lesson in all of this as well about how the judicial branch is selected. And then I thought, well, if I'm in law school, I remember that I didn't really understand all the different things you could do with a law degree. And so I thought it would be a good career resource too. So I started reaching out to all the ways by Women who are leaving and an off the bench and a bunch of different ways to women managing partners, women who are chief legal officers or general counsel in women in government in different ways with their elected office or serving as public support or working at a policy position in the government, just a whole array of people who are writers now, you know, non legal things, leaving museums, just a number of different things. I thought that people knew all the various ways that the legal training was useful and helpful in their careers. Maybe they might go to law school, they might not. They might say, Yeah, I don't want to practice law, or I don't want to be a judge. But that doesn't mean that legal education valuable. Yeah, yeah. Yeah, that's

Tim Kowal  15:39 
one of the things that's so such a feel good recurring feel good moment and listening to the Porsche project is that there are so many different varied paths to the bench in the Porsche project, yes, are not limited to women on the bench. There are also prominent women litigators and law firm owners. And these are people that you would assume had it all mapped out from the start, you know, that they were valedictorian of their law school, they were, you know, editor of Law Review, they did everything right, you know, they aced everything they ever did. But that's not necessarily the case. Some of them got into, you know, didn't get into their dream law job, or they didn't get the clerkship and you know, but at some point, they decided, you know, I'm not meant for mediocrity, or just why not take that shot, they'll go in and get that elected seat for Judge, right? They make those connections, and they wind up getting the appointments anyway, or they or they go start their dream law firm job, and it's outside of the big law model. And so it folks focuses on all these types of stories that challenge, you know, that point to challenges that are specific to women like workplace discrimination, or harassment, or the special challenges of family. But many of the stories are just challenges and failures that are universal. Yeah, attorneys, people who are maybe jaded, they got their, their JD, their law degree, and then it wasn't all it was cracked up to be. What are some of the stories that stand out to you as being, you know, inspirational? Yeah,

M.C. Sungaila  16:54 
I mean, I think they're very human stories, I really appreciate that they're willing to be vulnerable enough to share that and to show their humanity as well as what they've succeeded in accomplishing. I think one of the larger stories that really struck me personally, because I hadn't really realized, I mean, I feel like very, very blessed to have started my legal career when I did, if it had even been five years earlier, or, you know, 10 years earlier that I went to law school, the amount of opportunities that would have been available to me would have been much more limited. I really didn't realize how, what a watershed moment, the early 1980s was in for women in the profession, the appointment of Sandra Day O'Connor to the US Supreme Court was really impactful. It caused a lot more women to be appointed to State Supreme Courts, as well. And it really helped open the floodgates for women in law school. And so listening to some of these stories, I was really kind of shocked that it was so close in time, like it had been the late 1970s, early 1980s, I would have had the experience that a lot of these judges, Supreme Court justices and trial judges had coming out of law school, like Chief Justice term of the Utah Supreme Court, who was told, you know, men on Law Review need only apply to these particular positions. I mean, that was just how they put their ad out. And so certain things were just not available to women to try. And we think about that as being so far back in time. But it isn't really a more time out like a lot of progress in 50 years, and even some of the judges California who said, Yeah, you know, mid 1980s, early 1980s, judges were a little concerned to hire women as law clerks, big law firms in Los Angeles would say, well, we'll hire you for a couple of years, but there's no way you're going to be in a partnership track, and you're not staying and to think about that now. Like, wow, that never happened. No, when I graduated in the 90s. So a big change in that timeframe. And so I thought, Hmm, that's very impactful to me. So I didn't realize how close it was in time, I think of it as being further back than I thought I didn't know about that. Certainly the current, you know, the, the new generation doesn't know anything about that. And so I thought, well, it's a little depressing to hear about that. It's also really uplifting, because people who experienced that as an entry point to their careers ended up becoming state supreme court justices. Nonetheless, as you pointed out to him, they found a way, right. So that's pretty exciting. If they can do it, and you don't have those same entry barriers in the same way, then what can you do? Like there's so much more that people can accomplish? And you don't see that as a positive change? So that's one thing that really struck me how much has happened and changed, right?

Jeff Lewis  19:30 
Hey, you've said often that your heart is into in pro bono and public interest work, and you've obviously flourished, doing that in a big, firm environment, and the podcast showcases attorneys who've managed to do pro bono and public interests work outside the big firm model that was surprising to us. Did that come as a surprise to you to learn of the attorneys who have managed to do public interest work under their own shingle? Are you aware of that secret I wanted to use the podcast as a way to kind of let the secret out that you can't do publicly Interested in pro bono work outside of the big firm context?

M.C. Sungaila  20:03 
Yeah, I do have a deep interest in in public interest and impact appeals in particular, I think for two reasons. One is sort of that's how I was raised in terms of service that you find ways to serve with your skills that you have, and especially appellate work, you can make such a difference with one case, that case can be helpful for the client, but also for so many others in setting precedents. So there's a special role, I think that appellate preventive can play and not as many people who can do it. So I feel that sort of obligation responsibility in that regard, I do intentionally highlight public interest lawyers, and those who are doing important work in that regard in a bunch a bunch of different contexts for two reasons. One is I want to show the array of places in which you can do that work to law students, so they're not too narrow about it. And second of all, because I want to encourage other attorneys to learn about in particular, the organizations that do this, and to perhaps volunteer their own time, pro bono, you know, to carry it forward and to do more of that work also. So those are sort of two of my two of my goals in doing that. And there are really great, just great public interest organizations doing interesting work. We've had human trafficking organizations on we've had a course PLLC here in Orange County, which is just so well known for so much of its public interest work in so many areas, and which was actually founded by the Orange County Bar Association. So that's kind of an interesting thing, just like public council in LA was an outgrowth of bar work. So there's that and then family violence appellate project, which does important work in the family law arena and domestic violence arena, in California appellate courts. So I just tried to highlight really all of those that I think are really interesting that people should know about the areas in which work is being done. As far as doing pro bono work as a private lawyer outside of a big firm, I think that's mostly what we think about is big, firm work. That's not exclusive. I mean, I can think of one person in particular, you know, Harmeet Dillon, who has her own firm, her own boutique firm, but then she founded her own nonprofit to do work that she thought was important in the public interest arena, too. And she has such a amazing story. In her podcast episode. She's really very frank about her personal life and personal challenges as she was going through law school, and you know, just amazingly strong person when you hear that story. Yeah, that

Tim Kowal  22:26 
made for a very interesting episode hearing about her. How she set up her shop and realized, you know, she was doing the work that she wanted to do, but how do you get funding for doing this public interest work? Well, you can just give it to my client, but that's not ideal, obviously. So maybe nonprofit, and she hired ethics attorneys and tax attorneys in order to do it. All right. And I thought, wow, that's, that's a smart cookie.

M.C. Sungaila  22:46 
Yeah, exactly. Well, I think it's interesting. I mean, I think she and I share that same view of like, well, okay, let's get something done. How do we do it? We don't know. But we'll figure it out.

Tim Kowal  22:55 
Yeah, well, on that subject, you know, the guests on the on the Porsche project are not just women who have landed on the bench, but have used their jadis. In other ways. That's kind of a recurring thing in the Porsche project is that a JD a law degree doesn't just mean one thing. If you don't find fulfillment, or your first job or your second job, or even your third law job, then maybe it's time to broaden your horizons. And MC one thing I learned about you that you've talked about on the podcast, as you learn that through through your kind of distaste for cross examination that taste for blood and drawing blood out of a cross examination witness that you know that that wasn't for you, you the area of appellate law a little bit better, it was more to your taste. I wonder if you could tell us some some of the unexpected, some other unexpected career paths that your guests have taken, even if they didn't, even if they wanted up on the bench? Maybe they took a winding road to get there that that you found interesting?

M.C. Sungaila  23:45 
Yeah, I think I think you're referring I'm not the only appellate lawyer who is said that had that same kind of story. That's the thing that made us realize that we were not trial lawyers, and we better find something else to do with ourselves so that we felt badly for the witnesses when they were being crossing things. And we're like, whoa, you know, that's, that's very different. Looks like a different kind of beast than trial lawyers, they have a different view of that. So yeah, that's apparently there's more than just me that had that kind of epiphany about going into appellate work.

Tim Kowal  24:14 
Yeah, that can make for a personality portfolio of the different parts of personalities that make for excellence in different areas of the law.

M.C. Sungaila  24:21 
Yeah, I was just like to kind you know, to people, even even people who may not have been truthful. Yeah. So but I just couldn't do it. But But yeah, but I love talking to judges. I mean, from, you know, my courtship. That's what I was used to doing. So it worked out well. Yeah, there's, I think there's a lot of twists and turns to all careers. And that's another thing you think like, you see the end result, you see where someone ends up, but you don't often get to see like, all of the, you know, meanderings that eventually got there. And afterwards, you look back and go makes total sense, but I'd be in this position given all of my experience in these other roles, and but at the time, it wasn't clear at all. The it's interesting to hear those stories but but where people have gone with it, I mean, I can think of Patricia hunt Holmes, who was one of the first woman partners of Vinson and Elkins in Texas. And then when she retired, she became well, she started out with a PhD and then was in academia, then she went into law. And then she decided she had enough experience to write, you know, to have meaningful books that she would write at this point. And now she writes about the intersection of law and fiction, to some degree, there's little, there's reality to all of her stuff, but like, you know, being a novels about young women and big firms and navigating big firms, but there's always like a murder mystery part of it. And she did one on human trafficking, which was a human trafficking victims story, but she used it to highlight how much her town her city of Houston Texas was really a hub for a lot of trafficking and to get some traction going into community to be proactive about it. So yeah, that's, that's interesting. And then there's there's some people who have ended up becoming, which is really something I think people think about thing museum directors, so people who have run legal nonprofit than moving to just a nonprofit sector. So with Jessie Kornberg, who runs the Skirball Cultural Center in Los Angeles, she was previously leading at Sonic legal organization, nonprofit in LA. And then prior to that, Ms. J. D, which is now really well known for women law students and new entrants, women entering the profession. So there's that and then Jessica Aronoff, who ran break cycle, which was a teen domestic violence organization. And then she moved to foundation work working for a private foundation. And then from there now is leading kitten Children's Museum in Santa Monica. So it's interesting also, it's interesting to hear a lot of them be very conscious about how they're training and the things that they learned are very helpful for them in their current roles like Jennifer friend who runs Project HOPE alliance for homeless kids here in Orange County. She was a big law partner prior to becoming the director of Project HOPE Alliance. And she's the most like intentional about saying this you know, what I use for my cross examination what I use from you know, organizing litigation and leading teams and here's how I use that now in board meetings or to persuade donors or to work on coalition's it's really interesting to hear someone be that conscious of how their legal training is helpful in a different setting.

Tim Kowal  27:29 
Yeah, yeah. And you recently had Molly Dwyer on your podcast, the clerk of the Ninth Circuit Court of Appeals. And I remember she said something to the effect that she realized she was a better organizer or her manager. Her organizational skills are better maybe than her legal skills, or she at least enjoyed doing that better. Made me think of MCU and I were at an awards dinner recently, where we're Presiding Justice leery of the 4/3 Court of Appeal was was accepting the sales award. And retired justice Aronson was there complaining about how justice O'Leary had once called him a quote crappy manager. And it all in all, in good nature, of course, but you know, attorneys don't always have the same skill sets. They're all you know, they could be excellent lawyers. But there's a lot more that goes into the law, the legal industry.

M.C. Sungaila  28:20 
Yeah, I think there's also a lot to learn from the people who are in different roles, like the clerk roles. I don't think you think about that. But a clerk is often a lawyer, you know, you don't think about that. So thinking about that is something that might be something you would want to do down the line. The other things I think a lot of guests who are in the business world so Clos or general counsel, they have a different view of how they made different choices in their career, maybe more intentional from the standpoint of what kind of skills they wanted to acquire and where they get those who they wanted to work with, like who they wanted their boss to be, you know, if they were a deputy in the in the legal department was the GC, someone who had particular leadership skills that they thought, you know, maybe they had a gap, and they wanted to learn as I thought this person was particularly good at that. It's interesting to hear that kind of thinking, because we don't think that way organizationally within law firms exactly the same way. So it's, it's interesting to hear those stories about why people made certain career moves. Right.

Tim Kowal  29:22 

Okay, MC, you've now interviewed over 100 judges and prominent female attorneys and and you've extracted all their secrets of effective advocacy. So now dish, tell us the secret. Well, when you ask your guests their tips on how to persuade what are some of their most common answers, what are some of the answers you found surprising maybe with with brief writing tips?

M.C. Sungaila  29:46 
Yeah, you know, I was thinking about this. If there are so many discreet tips that I think we've heard a lot, especially at the appellate round in terms of you know, some judges read the reply brief first, or they read all of the tables of contents across the board. So make sure that those are clear and helpful for them. You know, don't don't write too long, even if you have 50 pages, don't use them all. If you can use them last, you know, choose your issues carefully. They don't want to see a double issues. Three to four issues is fine. No, all of that is I think, was fairly consistent. I think that I think that there were two things that stood out to me like, overall, if you listened to all of those discrete comments, you know, what is the overarching difference or difference in perspective that the judges have, and which I particularly asked like Patricia Mallette, on the DC Circuit was one of the, you know, really well, with most well regarded US Supreme Court attorneys prior to joining the bench, and she was terrific. So I really asked her in particular, was there something you learned, like if you were an advocate, and you knew what you knew now being on the bench, what would you do different words as an appellate lawyer? And were you surprised by any? And I think what she said, really kind of encapsulates what I think the overarching view is different. And that's you, as the advocate are looking for an outcome. And we're looking for an opinion. And that means so many things, like we're we want to know how to write the, you know, both in a way that fits this case, but we're also thinking about the larger body of the law, are we going to disturb anything if we write this a different way? And so it's actually really helpful to have you tell us how we should write the opinion with be more intentional about that, because that's what we're looking forward. That's where we need help, right. And then, and then also, I think the other part of it is this sense of, of obligation of responsibility to the rule of law and to the law itself, that they don't, it comes out in different ways that we talked about frequently at the state Supreme Court level, which is, hey, I'm not just deciding your case, I'm deciding this legal issue for so many other circumstance. And I want to make sure we don't decide it in a way that is not something we saw coming. You know, in some other settings, we want to make sure we've considered this rule as a matter of policy, practicality, it's a good rule, not only for this case, but for other settings, too. And that I think, is part of part of this same kind of we're looking to write an opinion, we're looking to write an opinion that adds to the body of law. And so we think about that in so many different ways. We see it as advocates in terms of questions like, well, yes, counsel, I know, these are the facts of your case. But what about this hypothetical, but that's just like the tip of the iceberg in terms of how the appellate justices are thinking about it. And then also, I think, the role of oral argument, I think so much, we think, oh, you know, we'd like to think it makes a difference for probably, you know, maybe not in the outcome in so many cases. But particularly in courts where there isn't a conference before argument, I've heard over and over from the justices that they they're prepared, they're prepared, of course to go to argument, but they consider argument part of their preparation to the decision making to they want to hear what their colleagues are asking, you want to hear what the lawyers have to say. And they keep they try very hard to keep an open mind during that argument. And part of the decision making to them is hearing the back and forth hearing the other questions their colleagues asked, which might actually raise things that they hadn't thought about prior to argument. So even if it may not in the end, and up as far as we can see me as like advocates making a difference in the outcome. Their whole approach to it is is with that, you know, sense of as the advocate, your you got to be 110% prepared by their timestamp to the lectern, know, you know, the outcome you want and all of the different questions. But oral argument, those on the bench is one more part of that preparation to write in that opinion, which is their ultimate output. So they just have a different attitude towards that. And that's something that I've heard over and over in different ways, different appellate judges. So I think just being aware of that, like, what are they doing, like, in a very practical way? What is their job? And what are they focused on? What are they concerned about? I think that in itself will really impact how we do our job, like how are we going to make their job easier? Yeah, there's a lot of disparate ways. But I think that think keeping that in mind will really impact the decisions you make as an advocate.

Tim Kowal  34:17 
Yeah, you said a couple of things that I think are really next level thinking. And I think it really goes to what makes an appellate attorney different when we talked about what's so you said that from the judges perspective, they're thinking you the advocate, are looking for an outcome while we are looking for an opinion, how are we going to frame this opinion? I think that's that's subtle, but really significant. It kind of reminded me what we were just talking about a few minutes ago about as trial attorneys is really effective trial attorneys, you want to just gut that witness on when you're cross examining them. And so if you ask that same attorney, well, what do you want on appeal? Well, I want to bury my advocate and I want you to help me do it. I want you to say that their arguments are bad and they should feel bad. Well, no, we're not going to issue that kind of opinion. So you needed a different kind of perspective, a different kind of advocate to help us get where you want us to go? The Yes,

M.C. Sungaila  35:06 
yeah, exactly. Yeah, I think it really defines the difference between trial and appellate lawyers too, because we're conscious of that in a different way. It's focused on the law in the direction of the law. And, you know, making the court comfortable with this decision, not only in this case, but in other settings, it's gotten sort of confirmation on, which is always been my view of what we're doing as appellate lawyers. And I think about it consciously this way every time, which is where we have a case, which to me is or client, which is to me is like, you know, a pebble in the stream or a boulder in the stream, depending on how, how big how big the issues are. And we're looking to place that in this stream, this river or whatever that's going by, and we need to have an explanation as to why the boulder goes there. Like, why does that make sense in the stream of a lot. And if it changes the direction of the stream to do that, we need to have a good explanation as to why that, okay, and why that's where the stream should have been going all along, or something like that. And that, to me is always that conscious in the background of, we're a part of something bigger that our case is sports partisan and bigger. And that's something that the justices are conscious of, too. And that's kind of what I keep hearing from them is we're conscious of that we're very conscious of that by what we're doing. We just want to kind of do no harm with with the law in the in the bigger sense. And in fact, this stream analogy, I've run it through with a couple of different judges, and many of them have said, Yeah, that's exactly how I think of it. That's exactly how I think of what we do. Yeah,

Tim Kowal  36:41 
that's an excellent metaphor. I love that. And then the other thing that you said that I thought was really interesting about oral argument that justices will consider preparing for oral argument as part of their preparation for writing the ultimate opinion. And it reminded me of, you know, I was listening to one of your episodes talking about the subject of oral argument. And you and I, we discussed this the first time you're on the podcast about oral argument, and I have voiced the view that well, for for some cases where the economics don't justify it, preparing for oral argument is a big deal, because you have to review the entire record, review all the oral art, review all the arguments and issues, be prepared to answer any question about any argument or anything in the record. And that's a big undertaking. You don't just take, you know, just show up. And so sometimes the I might think about the jesting that my client waive oral argument. And and you said no, no, no, I can't imagine ever walking away from an opportunity to give, give the justices that one last unique glimpse into the case, understand the argument that if whatever I said, didn't work the first time, and I was reading an article or one of justice beds worth columns where he was making my pitch he was saying, you know, it's ironically saying the same thing that you just said, it's, it's so hard we go under undergo so much work to prepare for oral argument. Why don't you spare us advocates once you spare us every now and then by just waving oral argument? And and then we had justice Thompson on who said I can't imagine anyone ever wait waiving oral argument, at least show up?

M.C. Sungaila  38:07 
Yeah, he and I are aligned on that for sure. I mean, but as a lot of these, the judges and justices that I've interviewed, they've all said, also, I think there's something that we don't think about as we see it, but we don't think about it the same way. It's a consensus building decision making at the appellate level. No, one judge cannot just decide something if they do they're in the dissent, you know. So there's persuasion that's going on among the justices with the questions that are asked afterwards. And conference. There's a lot of that going on. And so there's a listening, but they want to listen to each other and the questions that they ask, and they want to ask questions of the advocate sometimes to get the other colleagues to think about things. You know, we've all had that sense. But we're like, oh, we don't think that question is really directed at me. It's really to have another colleague think about something in a different way. But all of that process, but we're all part of that process. But all of the judges on the bench and the advocates, then you see the value of argument in that way as well, because it's a prelude to they're sitting down and conferencing and thinking about issues. So the questions the colleagues asked are just as important to a lot of the judges I talk to, as you know what the advocate says. Yeah,

Tim Kowal  39:22 
well, and then going beyond the tips and tricks that you can get from listening to the Porsche project podcast. MCU said that what you get out of your interviews for the Porsche project is to know about the human being behind the robes, and many in our audience are busy trial attorneys. Why should busy trial attorneys pause to, you know, to try to get a glimpse and an understanding of who that person is beyond you know, underneath the robes?

M.C. Sungaila  39:47 
Yeah, I mean, I think there's something Well, first than what we were discussing before. I think it's interesting to understand their perception of the process of their role in the process and their perception of decision making process. Is the oral argument and the process with each other of, you know, interrogating the advocates and then persuading each other with regard to decision making. Also, I think all of that's helpful just to to have an understanding, and then where someone comes from. I mean, I think that there's so much interest in, you know, having a device diversity of experiences on the bench. And some of that is because we're saying, Hey, someone who is who was a prosecutor or someone who was a public defender, or someone who was a civil litigator, they come with different understandings of how certain areas of the law work, and they can share those with their colleagues, and it can impact their decision making. So I think it's important as an advocate to understand, you know, hey, where did these people come from professionally, personally, what kind of challenges did they experience kind of empathy? Would they have two different situations as a result, like a very personal level of empathy, just as a leader who mentioned there, she has such a deep experience on the trial bench, and as the presiding judge on the trial court that, you know, she said, when she thinks about just writing opinions, she's very focused on being clear. She's not just telling this trial judge what you need to do now, if we're remanding it to you, but she knows that all of the colleagues on the trial board are going to be scratching their heads and reading sort of a bill opinion, to say, Well, what should we do in our case? So because of that background, a deep background on the trial bench, she's thinking about that when she's writing opinions. How can I be clear about what this disposition is? So when you say, is it important to understand, you know, someone's background like, Well, I think that background plays a lot into and she's very conscious of this in what she's doing when she's writing opinions and how much direction she's giving to the trial judges?

Tim Kowal  41:42 
Yeah. Okay, one last question before I turn it over to to Zeus for our special lightning round. MC, you said that, that when you first started the Porsche project, your ambition was to capture on record the approximately 130 140 Female appellate judges throughout the country, it sounds like you're getting close to that goal. Will you? Do you intend to close the book on the project once you hit that goal, or or what's next after the Porsche project?

M.C. Sungaila  42:06 
Yeah, so I do I really, we have a lot of great participation by State Supreme Court justices. So by early well, by spring of next year, we will have voices sometimes multiple voices, Justices from 32 State 32 States Supreme Courts, in some cases, two or three justices from certain courts participating in the Bucha project. So I'm very excited about that level of participation. And the federal courts are also getting involved the Federal Circuit Courts, and I hope that some of our US Supreme Court justice as well for participate at some point and you know, more state supreme court justices. So I'm hoping that there'll be even more participation there. But also in the sort of wide array of things that you can do with a law degree or something else that comes to me, that I'll think of, we have legal design people, which is a new movement in approaching to contracts and a bunch of other things. We have international, I have an episode with international legal design experts, illegal tech founders of all kinds of different companies, which is something that you know, we all is helpful to learn about. So yeah, I don't know. I think that when I reach a certain level regard to the number of judges, which is thinking or reevaluate exactly how much more we'll do,

Tim Kowal  43:17 
yeah. Okay. All right, MC Sun Gala, we're gonna take you off now to a special lightning round. And I think you'll find some of these questions familiar, because some of them are lifted from the questions you ask your guests on the Porsche project. I'm gonna turn it over to Jeff to administer.

Jeff Lewis  43:32 
Yeah, you know, Saturday Night Live when they have returned guests, they get a special red jacket for return guests when you get invasive questions.

M.C. Sungaila  43:42 
No, I'm preparing. Like looking at these questions. I'm like, yeah, these are kind of tough. And I do this to these my poor guests. Every time I'm going to be a little more empathetic.

Jeff Lewis  43:51 
You'll get no such empathy from us. Yes. So um, see what talent would you most like to have?

M.C. Sungaila  43:57 
I would like to be able to play the harp or to plein air paint. Oh, that's a pretty specific but yeah,

Tim Kowal  44:04 
yeah. Yeah. I don't know about the harp. That seems hard.

Jeff Lewis  44:09 
With YouTube, you can learn how to do anything given enough time what trait you most deplore in yourself and others.

M.C. Sungaila  44:15 
Okay, so I think they're a little bit different. So in others, I really do for like meanness and treating those people perceive as being lesser than them, or if I were in some way with disregard or disrespect, so those things don't bother me and Ben have told me about someone's character. In Me, I wish that I had a better sense of time. I do a lot. But I always think that like whatever task Oh, that'll just take a couple hours. And it always takes more time than it does. So that I wish I were better at estimating that.

Tim Kowal  44:45 
That is my Achilles heel and time blocking. Yes,

Jeff Lewis  44:49 
absolutely. Yeah, absolutely. And who are your favorite writers?

M.C. Sungaila  44:53 
Well, I'm super eclectic. I have hundreds of books in my home and in my office, probably more than I could ever read although I understand from seem to lab that that's a good sign that you have this you know sort of level of humility. You can never learn it all or never learn everything's I hope that's good. Otherwise, it's just a ton of books that I may not end up finishing. But I really appreciate particularly chance of writing so terms of arrays and artfulness with language, so, and storytelling too, so I will put in that category, Nancy packer, who taught at Stanford and the creative writing program, she didn't write that much because she taught students but she has a couple of books of short stories that are like the most tightly beautifully written stories in that genre. And then Brian Doyle's mink river I don't know if you've read anything by Brian Doyle, but he is a really wholly unique storyteller and just a beautiful writer. And Jhumpa Lahiri. He's Interpreter of Maladies short story collection I've always loved that one. And also John O'Donoghue, who's an Irish Mr. Really liked his writing really powerful. Yeah, interesting.

Tim Kowal  46:01 
You know, that that these you like these writers for their turns of phrase, and that's something I look for as well just, even if the subject matter is not entirely surprising if the if it's told in a way with unique arresting turns of phrase that metal sells me.

Jeff Lewis  46:14 
And, Tim, I'm gonna task you with putting Amazon links in our show notes to those books.

Tim Kowal  46:19 
I'm gonna need some spellings and

Jeff Lewis  46:23 
all right, and who is your hero in real life?

M.C. Sungaila  46:25 
Yeah, that's a that's a tough one. Because I think I put them a little bit different. I mean, definitely my family like my mother, my parents, grandparents, I think about you know, my dad, who always like, firmly believed that his daughter could do basically anything. And I think about how important that is to having especially your father believe that and not limit you like, Oh, that's my girl child. So she can only do certain things. I really value that. And then my family and my grandparents came over many of them through through Ellis Island and did some really worked in steel mills did some really hard work so that their children could go to college and do well. So so that's pretty heroic in my book. But as far as law, it's the judges that I worked for the three judges and the dog who just had a bite. Well done this.

Jeff Lewis  47:18 
Yeah. Okay, and what person living or dead would you invite to a dinner party? Okay, so

M.C. Sungaila  47:23 
this one is super eclectic. I was trying to like narrow it down to one person. And I'm like, No, I'm just gonna have a whole part. You have all of these interesting people and have these discussions of like, okay, the Queen of England, she would be pretty cool. Winston Churchill, Sandra Day O'Connor, Ruth Bader Ginsburg, Thurgood Marshall, Professor Victor Hansen. He was really interesting historical perspectives from Stanford Law Professor Lewis litski, who's a friend of mine, but also is a really interesting thinker about First Amendment law. And my parents might judges that I worked for, and also some podcast guests who I really, really like and would love to have dinner with at some point. So the former Missouri Supreme Court Chief Justice in Covington, Washington, Supreme Court Justice Raquel Montoya Lewis, who was a tribal judge before she became a trial court and Supreme Court Justice has a really interesting perspective. And then who I mentioned already, DC Circuit Judge Patricia Mallette, who's just really remarkable.

Tim Kowal  48:19 
Yeah, the the IQ points represented at that dinner table would be staggering.

Jeff Lewis  48:24 
Yeah. And the final lightning round question. And, Tim, I'm gonna suggest maybe we rename this not the lightning round. But the final lightning round question is, do you have a motto for life? And what is it?

M.C. Sungaila  48:36 
Yes. So I think I have a few. And that is echoed by my dog. So to the I aspire G, which is really like my mom's the charity. Yes, he had a bone. And that didn't help either. So okay, so mottos for life. So I think there are two that I aspire to, which is really my mom's but she tries basically tells me every day, which is make this the best day ever. And also that every day is a new canvas, Keynote the way you want. And I think about that is like starting over and being fresh. And like whatever happened the day before, or wasn't great, you know, you have an opportunity to start fresh each day and to take that with a lot of grace and humility. So pretty simple things, but that's how I look at them. And what I actually engage in without having to aspire to or think about I think is the kind never give up. And if there seems like one approach is a dead end or it ends up being an ally, you just back out of it and go somewhere else find a new way. You know, there's a wall just find a way around it and persist.

Tim Kowal  49:38 
Yeah. Okay, great. Well,

Jeff Lewis  49:41 
you survived our patented lightning round, and perhaps we'll send a one of a kind Limited Edition above your way as a thank you for coming on the show and surviving lightning round with us.

M.C. Sungaila  49:52 
Awesome. Thank you so much. I feel blessed to have survived.

Tim Kowal  49:56 
Yeah, the turnabout lightning round. As these questions turn right back. walk around on her. And if you'd like to see those here those questions put to over 100. Judges and prominent women attorneys tune in to the Porsche project with MC Sungai. Left,

Jeff Lewis  50:12 
right. And as we wrap up this episode, I do want to share a bit of sad news. Just before hitting record on the podcast today, I learned that Judge Judy Cherlyn, formerly of the Los Angeles Superior Court had passed away. Judge Chirlane was the judge and the first trial I had over 20 years ago. She had a big impact on me early in my career, and I'm sure I'm not the only lawyer who will miss her her presence and wisdom. So I just want to share that sad news. Yeah, thanks,

M.C. Sungaila  50:37 
Josh. She she had a major impact on women lawyers in Los Angeles and also a lot of impact in her work with the Western Justice Center Foundation, which was started by Judge Dorothy Nelson on the ninth circuit.

Jeff Lewis  50:51 
And with that, MC, thanks so much for joining us. That wraps up this episode, we want to thank cakes, haystacks for sponsoring the podcast and each week we include links to the cases we discussed. Using casetext and listeners, the podcast can find a 25% discount available to them if they sign up at casetext.com/calp. That's tikkis text.com/ca LP and also look for links in the podcast to Amazon to all of the books that MC listed Tim's gonna find.

Tim Kowal  51:18 

That's right. And if you have suggestions for future episodes, please email us at info at cow podcast.com. And please tune in for future episodes for more guests cases and news. See you next time.

Announcer  51:30 
You have just listened to the California appellate podcast, a discussion and timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"A judge is a law student who grades his own papers."

— H.L. Mencken

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram