Earlier this year we spoke with Jean Dubofsky, of Boulder, Colo., who, in 1979, became the first female justice on the Colorado Supreme Court. She returned to private practice in 1988, and is now in the midst of winding down her storied career.
Below is an audio excerpt of what Ms. Dubofsky learned as a judge on the Colorado Supreme Court, and how those lessons played into her subsequent role as an appellate lawyer.
Here's the transcript:
Because you watch for long enough and you see how cases get resolved. And these are resolutions not just by one person-those are harder to predict-but by a group of people. And normally you'll come up with something that is not on either extreme, and usually closer to the middle, so you begin to see where compromises are made, and after a while people deciding things in groups tend to not push their own personal views quite as much.
This may not be true of the U.S. Supreme Court right now but certainly when I was on the Colorado Supreme Court people looked for ways to accommodate. And an opinion written by one person might very well include ideas from others. And so the cases resolved in a fashion that, if you thought about it, usually made sense. So my theory, in practicing appellate law, has been, in putting a case together, trying to figure out what is the more likely way a court is going to rule in your favor? And there's lots of rules of the road. Like: You don't usually raise questions of fact on appeal; you don't say that the trial court was wrong in terms of interpreting what witnesses said or their credibility, and you don't usually try to go against a trial court's findings of fact. That just doesn't work.
But you do have to find some legal issues that are significant enough for the court but at the same time you've got a good theory going for you. This isn't just a rule, some case you picked out and started quoting, you understand why the rule was developed. So from my standpoint you go back and look at some of the treatises, and figure out where the rule you're talking about came from and why. Then you can start putting together an argument that you can make appealing to a court. You can make it appealing in the sense that they're not going out on a limb in order to rule your way.
Our entire Q&A with Ms. Dubofsky, "Lone Ranger," can be read here.