How Appellate Law Works and the Power of Oral Argument

0:00:01 – Announcer

You are listening to the National University Podcast. 

Kimberly King (00:08.558)

Hello, I’m Kimberly King. Welcome to the National University Podcast, where we offer a holistic approach to student support, well-being, and success: the Whole Human education. We put passion into practice by offering accessible, achievable higher education to lifelong learners. 

On today’s episode, we’re talking about appellate law, and joining us is Justice Patricia Benke, one of California’s most respected jurists. She served for more than 35 years as an associate justice on the California Court of Appeal, becoming the first woman appointed to the Fourth District, Division I, and at the time the youngest person ever appointed to a California Court of Appeal. Throughout her distinguished career, she’s authored hundreds of appellate opinions, served on the California Supreme Court by special appointment, and helped shape the administration of justice across the state.

Today she continues her work as an appellate attorney, mediator, arbitrator, and law professor, sharing decades of legal wisdom with the next generation. And we are honored to welcome Justice Patricia D. Benke to the show. How are you?

Justice Patricia Benke (01:19.074)

Thank you, I’m fine this morning. I appreciate the invitation. 

Kimberly King (01:23.214)

Absolutely. I’m looking forward to hearing from you. Why don’t you fill our audience in a little bit on your mission and your work before we get to today’s show?

Justice Patricia Benke (01:31.704)

My mission and my work. I retired from the Fourth District Court of Appeal in 2021 in July, but there is no such word as retired. I really decided quite early that I was going to continue on with assisting the appellate process in California. And so, I joined the appellate the appellate retired justices program. And worked wherever there was a vacancy and the court needed me. 

And then I took my bar number back and began working with my current employer. It is an appellate specialty group, a complex appellate litigation group, and doing ADR work. Now throughout that entire process and going back to 2009, I have been a professor and I’ve been a professor here at National University. The reason for that is, I think of all the things that I have completed, teaching is what I value most. I told my husband that it’s the only thing I do that when a class is over, I feel really good. You know, it’s energizing. Yeah. And helping students find that path that is sometimes instant- is something that that is very important to me. So what I hope I’m doing is bringing all of that experience to those who are looking for that pathway forward.

Kimberly King (03:13.046)

I love that you said that because I feel like sometimes, you know, we need them, they need us, but sometimes it feels good when we need them as well and we’re learning, constant live- learning.

Justice Patricia Benke (03:24.142)

Absolutely. And it’s interesting that the that the term “mission” is used because, I think, I think that my personal feeling is that a good professor is -which I hope I always am- is on a mission. It really is a calling, if you will. And I can’t imagine not teaching, no matter what I would do. And I have my bar number back now so I can work in the private field. But- that love of teaching and what we’re talking about here, those connections exist through everything I do.

Kimberly King (04:09.56)

Good for you. Well, today we’re talking and we’re taking a look inside appellate law. And really first question, what functions does the briefing process serve? Let’s go back and go through this for students. 

Justice Patricia Benke (04:23.148)

I think it’s important to understand w what we’re discussing when we talk about the appellate process. And the way I explain it is, is like a triangle in in government in California. And and it is the court system, it is a court system that has within that triangle, lots of trial courts. And everybody is familiar with what a trial court is. And and if you if you want to appeal what happens at trial because you don’t think it was just, or you believe there was a problem with instructions to the jury, you appeal. 

And that appellate process is one rung up, if you will, in that triangle there were about- in California- one hundred appellate justices statewide. There were about one hundred and they are appointed by the governor. And then above that, say you don’t like what the appellate court says, you can request to be heard by the California Supreme Court, which is at the tip top of that triangle. Very limited number of cases get there. You have no automatic right to go to the California Supreme Court. But generally speaking, you do have an appeal from the trial process. So that’s what we’re talking about, is that narrow band, if you will, within that triangle. That process is the appellate process. 

Now when you have a case that you’re unhappy with at the trial level, you appeal and you have a brief time to file that appeal. It goes to the appellate court, the jurisdiction that you are in, and the court immediately sets a schedule. So you brief the issues. There is a response time available and a time to respond to the response. And then there is oral argument. If you request oral argument, it’s heard orally by the court in whose jurisdiction you have happen to be. So that is the appellate process. 

The briefing within the appellate process is very specific. It is the written form of your arguments. And it is the first step of how an appellate process begins. You file briefs, you have you have times within which that briefing must be done for the court. When it’s all done, then you get a chance to oral it- orally argue it. And that’s really the focus of the appellate the direct appellate process.

Kimberly King (06:56.97)

Interesting. Thank you for explaining that. That was very easy to understand.

Justice Patricia Benke (07:00.534)

It’s necessary background.

Kimberly King( 07:02.272)

Yeah, yes. So does the composition of a panel state matter characteristics of an individual justices? So I don’t know if that comes across the way I I’m asking, but does the composition of the panel matter?

Justice Patricia Benke (07:15.756)

Yes, because every court is of course in a different place in the state. It is populated, if you will, every court by individuals who have been appointed by the governor. In California there is no election.

Kimberly King (07:31.22)

okay. 

Justice Patricia Benke (07:32.96)

As perhaps in other states. In California, you are appointed by the governor. Every twelve years, generally speaking, you are on the ballot, yes or no. You get one more yes, then no, you’ve got another twelve years. That’s how that process works.

Kimberly King (07:47.181)

Wow.

Kimberly King (07:50.786)

Good job security. Right.

Justice Patricia Benke (07:53.748)

Is, because I was on the appellate court. I was appointed when I was thirty seven years old, which is pretty pretty young for the appellate court. And three terms later, I was there for thirty six years.

Kimberly King (08:05.61)

Wow. Yeah.

Justice Patricia Benke (08:07.496)

And that’s what I retired from. But I was very young when I was appointed.

Kimberly King (08:11.434)

And yeah, I remember reading that that you were the youngest and female here and charging up ahead. So wow.

Justice Patricia Benke (08:17.794)

Well, yes, and I I I don’t want to avoid your question. As you can see from a map of the appellate courts in California, there are districts and in every district, for example, in San Diego we are the fourth district court of appeal, division one. Division two is in in the Riverside, San Bernardino area.

And division three is in Orange County, everything south of LA. Okay. Division one is in San Diego, and that’s where I sat. We had ten justices. Other courts have different numbers. And so who gets appointed, what their interests may be and their background vary.

Kimberly King (09:05.28)

Interesting. Thank you for and I didn’t realize the difference, I mean, here in California and then across the rest of the United States may be different. So thank you. I’m I feel like I’m in school right now. Does each judicial chambers operate in the same way when processing an appeal?

Justice Patricia Benke (09:23.298)

No. They do operate the same because there are rules of court that require briefs be filed at certain times, responded to, or a argument takes place at a set time. But the way a court operates varies from district to district. In the fourth district, Court of Appeal, Division One, where I was, I had two chambers attorneys. These are not clerks, these are career attorneys.

And everybody on our court has two. Everybody may be different throughout the state. There are a few districts that have three.

We have a central staff, so that differs. And we all use our staff differently. Every chambers within the district operates differently. The ability for me to work with my staff and not have to worry about how anybody else on the court is thinking or working ends at my chambers door. Okay. Once you come into my chambers, I’m fond of- I like saying that- because once you enter my chambers, my attorneys are my attorneys. They are not attorneys for the court.

Kimberly King (10:38.978)

So with that being said, had- did your the the whole time you were an appellate judge, did you have the same amount of attorneys? Were they yours the whole time? 

Justice Patricia Benke (10:50.206)

It’s a good- it’s an interesting question because when I was appointed, I immediately went to my colleagues, some of them I’d worked with in the past at the Attorney General’s office where I was just previous to my court appointments, and I asked one of the attorneys there, will you come on board and be one of my two attorneys? I took an attorney that was already there, my predecessor’s attorney. We did well together in discussion and I offered him a job. So I had two attorneys. I also had a then-secretary, and that evolved over time into essentially a paralegal type of position. And she worked only for me. So within that chambers, physically within my chambers, we were a family.

Kimberly King (11:38.068)

I love that. For the whole super time.

Justice Patricia Benke (11:40.578)

Yes, and I kept my attorneys, they retired before I did. And you know, collectively they had about one hundred years of appellate experience. Yes. And so those were my attorneys the full time I was at the court.

Kimberly King (11:55.18)

That’s might sound like a dream position, you know.

Justice Patricia Benke (12:01.048)

It is. I was considered for the California Supreme Court twice. And I can remember one of the sitting justices coming to visit and he came into my chambers and he said, you know, don’t feel badly if you don’t get this because you’ve got the best job in the world right here.

Kimberly King (12:15.694)

And especially you said San Diego, which yeah- Always sunny and seventies here for the most part.

Justice Patricia Benke (12:21.806)

And then what what happens, and I don’t want to lose these links for you, what happens is I get a certain number of cases a month to process. I’m what’s called the lead justice. My staff prepares an opinion. And I work with them, then we circulate that opinion. We may have oral argument and we work three justices on a panel throughout the stage.

Kimberly King (12:26.413)

Yeah.

Justice Patricia Benke (12:50.92)

So I offer that opinion to my two colleagues. They all agree with me, super. It just goes right through. We all sign off on it. We may have moral argument and discuss it some more. If they don’t agree with me, then we are shuffling. We are trying to find out what is the disagreement? How can we agree? Can we agree? And if I suddenly, which I have, more than once, found myself a minority on that justice panel, then I might write a dissent or a concurring opinion, and one of the other three writes the opinion.

Kimberly King (13:30.83)

Okay. It is truly like a family though, because we all have family arguments too, so if you don’t agree?

Justice Patricia Benke (13:39.049)

That’s very neat because you have three chambers with their own attorneys working on this case.

Kimberly King (13:48.0)

Interesting. I love the thank you for letting us see inside your world here. Is there value to oral argument?

Justice Patricia Benke (13:55.59)

Yes, there there absolutely is. And then and that question is asked frequently of by counsel, you know, when should we not ask for oral argument? And you get fifteen minutes to argue and then the other side argues for fifteen and you get whatever time’s remaining to respond. But it is generally felt that you should always ask for oral argument.

Especially in criminal cases where you have a sentence that may be maybe at stake. You want to be able to see, even if you stand up and say, you know, I’m here in case the court has any questions. And they look at each other, we’ll say, No, we don’t, thank you very much, and you sit down and that’s the end of oral argument. 

Oral argument can change a case because we come out, all three of us on the panel come out. And we have the tentative opinion in our hands. And we listen to counsel and and very often, depending on the interest predilections of the of the panel, we go back and talk about the case right after oral argument. Not with our attorneys, just the panel. And it has happened that a panelist may say, Well, we’re talking, wait a minute, why don’t we-?

Kimberly King (15:22.892)

Yeah.

Justice Patricia Benke (15:24.212)

And that will shift maybe what the decision is. And that’s happened a couple of times of note. One of those times that I’ll share, I had a when I was fairly new to the bench there, one of our senior justices was on the panel, and I’d written the opinion. And one of the things requested was that the- was a DNA test.

Which we it was like a throwaway argument that was made by counsel. Appeared at oral argument. We got back, we were talking about the case and what we call the robing room, and we said, Okay, we’ll do an- we’ll order a DNA test. And guess what? We ordered the DNA test and the conclusion was that this particular person who had been in prison for ten years could not have done the offense.

Kimberly King (16:14.831)

Oh wow. wow. So important.

Justice Patricia Benke (16:17.398)

Several times where you, you know, you have a lot of power. Sometimes I I say we did things because we could. And I had a case, another case, for example, where the where the attorney in my chamber said they can’t win, they’re suing the governor. The governor has nothing to do with the sentence. And so there was gonna be a loser. But he said, I don’t think this is a three strikes case.

The defendant was back in another state and I said, Well, go check it out. Came back three days later and said, You know what? I don’t think that’s a third strike in California. It was a person who was in prison. And so we said, Okay, what do we do? We don’t have this argument before us. So within that panel of three, we picked up the telephone and called the defense agency that handles the cases and said, We got one for you. And that was another individual whose sentence was shortened.

Kimberly King (17:19.778)

Wow. Wow. It’s-

Justice Patricia Benke (17:22.232)

That’s what happens in that very fluid three justice process.

Kimberly King (17:29.144)

Wow. That’s amazing. Well, yeah, it’s it’s and that all started when I asked you about the oral argument, but again, extending that. So are there times when an oral argument should not be requested?

Justice Patricia Benke (17:42.38)

I can’t think of any. I think if the other side concedes, perhaps, and- but offhand no generalities on that one.

Kimberly King (17:53.262)

Okay. Well, so and it sounds like it should kind of always it just really extends, you know, all of the the information that is available. When should an oral argument be requested? Always?

Justice Patricia Benke (18:07.702)

I I think so. I think so. It’s a it’s a very dramatic process. We’ve had attorneys, very seasoned attorneys appear, brand new attorneys appear. We’ve had very fine new attorneys faint in front of right in front of the panel, they didn’t have breakfast, very nervous. There are definite lessons. One of the things that we want to see at a oral argument, and people’s eyes roll back when I say this- is it is not just adversary, because it’s always there. You always have a client, but you are a special type of friend to the court. If we’re asking a lot of questions, it’s because we’re having problems maybe making a decision. 

And scrupulous honesty and integrity is absolutely demanding. Well, I’ve had, you know, when I first started, I had I sat on a case involving an attorney who footnoted the opposition cases and the panel went nuts. They issued an order to show cause and said, You gotta come back and tell us why you didn’t discuss these cases that were against you. And she did. She came back the next day. She was a brand new attorney. And in the in the in the back seat of the courtroom were a line of a row of individuals who were obviously partners in the firm.

Kimberly King (19:17.398)

Really?

Justice Patricia Benke (19:33.826)

They wanted to hear what she was going to say. And she did she served herself well and she went on to be one of the finest appellate attorneys in San Diego.

Kimberly King (19:43.374)

Oh, really interesting. But Trial and Error, right? And yeah, that’s I bet you have seen your share fate in front of you and and but the hard way. What- can you talk about the role of chambers attorneys?

Justice Patricia Benke (20:01.762)

They are your family. They are your alter ego. They are the individuals who stand on the front line of research. They are experts. Experts. Okay, indicated. I I had two people with with a hundred years cumulative experience. One of them an expert on the computer. The other one had to have that book or books in his hands. Yeah. And both of those processes, I tell my students, operate very well.

Kimberly King (20:06.604)

Okay, yeah.

Justice Patricia Benke (20:31.254)

They’re very personal. And and I guess that’s that’s what I would say. They were my attorneys, nobody else’s. They didn’t go into another chambers and discuss a case without my permission. And I would never call on another attorney from another chambers to come on in and talk to me. That’s not how it works. 

And that preserves the independence of each chambers. And if you if you did would look into the processes in the United States Supreme Court, they’re identical. It is my chambers and you know, they’ll come in every once in a while. They would come in and say, you can’t write this. How could you put this in an opinion? And so I listened to them. If I had something troubling me, like my attorney who said, I got a problem with whether this is a third strike, they’re your conscience. They are your sounding board. And they are the first line of research.

Kimberly King (21:31.266)

So what role do chambers attorneys play in processing the appeal? You may have talked a little bit about this just a little bit ago, but yeah, so but again it-

Justice Patricia Benke (21:40.8)

It depends. Every chambers is different. For me, they read first. They read the briefs first. They made decisions and made recommendations to me. I never told my attorneys, go out and find this for me. This is what I want. I wanted to always know what they found. And was directed by that. Other chambers might be different. At the outset, a justice might spend a lot of time in the briefs themselves, and say, I’ve decided and this is what I would like you to do. And and my process was a little different. That mix, that salt and pepper mix, is what makes the process work so nicely.

Kimberly King (22:23.34)

Right. Yeah. It’s kind of you you cover all your bases there obviously and you’re getting all of that research in there. So summarize what the appellate process looks like. You’ve been doing such a great job behind the scenes and you know, kind of opening the window to your world. But is it is there kind of an easy way to say this is the process?

Justice Patricia Benke (22:44.952)

There really isn’t. There are general rules that must be followed, time restraints and so forth. But each justice brings a unique background to the court, and a unique view of how to use staff. And in some individuals that I’ve worked with long time ago, especially Royal Hart, they added an element that maybe some of us didn’t see in a case. And it’s very fluid and creative. And it’s very creative.

Kimberly King (23:18.604)

Yeah, yeah. What so what makes a compelling legal argument and I guess what is the role of synthesis?

Justice Patricia Benke (23:26.776)

Well, synthesis. That’s an incredible word, and I wish we taught it. I wish we taught synthesis. I put together a couple of classes. I have been involved in their development. And one of the classes was a basic research class. Really, a wonderful format. And there was one part at the beginning that I insisted synthesis take place.

And that it be explained to students, that it is the taking of two concepts and putting them together for a third. It’s a very creative process. And it’s not the way we necessarily, not we at National, but it’s not necessarily something we emphasize. For me, it’s the heart of the law. If you have a case and and I’m asked this question what makes a really great appellate attorney?

And I will always have the same response. It’s the attorney who goes into court with five cases dead set against them and walks out the prevailing party. And that’s because they synthesize. They can put those cases together and they can create yet another type of case with a different result for pronounced reasons. And that’s what synthesis is.

I used to do that teaching and stop me if I go on, but I feel so strongly about this synthesizing. When I taught on site and I taught legal writing, one of the first things I would do is give my class five small cases and say, IRAC them. IRAC is look at the issue, the rule, the application to the facts and conclusion. And they loved it. We can do that. Come up with five IRACs. 

And then I say, put them together for me in no more than three sentences. And an hour and a half later, they are still working at it. Every once in a while you see someone’s eyes twinkle and they got it. And they never forget it. And then we put them up on the board. Okay, I synthesized this. This is historic. We’re looking at historical analysis. Here we’re looking at the development of the law analysis. We put them on the board and I say, let’s vote.

Justice Patricia Benke (25:48.8)

And usually the class will pick out really what the the what the finest one probably is. But I will then ask them which one is correct. And they pick. And I tell them they’re all correct. Just that some are more useful to the court than others.

Kimberly King (26:07.384)

What do you find in that instance d that all of the students pick the same one, or is it kind of like a swarm?

Justice Patricia Benke (26:13.752)

They’re they’re scattered, but they gravitate. They can tell which one is a synthesized, if you if you will. Then I collect the papers and I throw away.

It was simply an exercise in thinking. Andthey have to really work at it. But you know they get it.

Kimberly King (26:32.012)

And they it stays with them too. They probably watched-

Justice Patricia Benke (26:38.238)

As difficult as that is, once you get it, it’s simple. Put them together, you come up with something creative. That’s why the one with five cases dead set against him can walk out prevailing. Because he can look at the statement of facts or she can look at the statement of facts and say that’s different. It needs to be treated differently. This is a minor, it’s not adult an adult. Those kinds of things.

Kimberly King (27:02.114)

What a gift you are to your students with your lived experiences and your expertise and really you know keeping-

Justice Patricia Benke (27:08.942)

I throw their responses away because the truth of the matter is some are just more useful to the court.

Kimberly King (27:15.35)

Right. But now they have the methodology there behind that which

Justice Patricia Benke (27:18.51)

Yes, and it’s hard. They have to really work at it. But my message is always they can do it. This is not something beyond the skill of students. They do it all the time. I asked them, How many of you have more than one child? Have you ever had to put their stories together and come up with the truth? One of one of my best students was a nurse.

Kimberly King (27:27.192)

Yeah.

Justice Patricia Benke (27:45.868)

And she came up to me, this was years ago, and said, I can’t do this and I asked her what she did. And she said she collects all the documents from the doctors and she summarizes them. Synthesis. She does that all the time.

Kimberly King (27:57.59)

Yeah. That’s so interesting. I’d like that you spent some time on this too. I think that’s so important in life, right? 

Kimberly King( 28:08.61)

What is there what if there is no authority in an argument being made? 

Justice Patricia Benke (28:14.414)

Synthesize. (Kim: Go back to synthesize.)

Actually when it comes in as so important. It’s when you read the cases and you say, and I had a case, I don’t know if it’s final, so I shouldn’t get too detailed about it. But there was no law. But there was really solid law having to do with trains. And this case involved a gigantic truck. And there was no law on anything but trains. And so what would one do?

One would say there is no law on point. However, knowing my panel, I know they’re going to be very sympathetic to the fact that this accident killed thirteen people. There were people who were very, very much harmed. They’re going to be sympathetic to that. They’re going to look for a way to listen carefully to what I have to say. And I would say there’s no law, but you really should treat this like a train, shouldn’t you? 

Kimberly King (28:58.389)

Mm-hmm.

Justice Patricia Benke (29:17.332)

The response was a very fast yes.

Kimberly King (29:19.852)

Yeah, yeah. Semantics.

Justice Patricia Benke (29:22.744)

And that’s the beauty of the law. That really is why attorneys practice appellate law.

Kimberly King (29:31.662)

I’m so happy to hear, you know, and it’s probably never something I’ve done a deep dive in. So again, ha having you here explaining everything and really you know, I it is so interesting and I feel like what a great opportunity for young attorneys going in to start practicing.

Justice Patricia Benke (29:49.922)

Thank you. I love it. I would like to say a word at some point about AI. Especially generative AI because I think it’s crucial, and I teach this in every course. AI is a wonderful tool. When you are doing work within a court system, you must read every single case that you rely on. There is instance after instance of attorneys who use AI, and AI hallucinates. 

Kimberly King (29:55.682)

Yeah.

Justice Patricia Benke (30:19.594)

It will give you cases that don’t exist. And when a court finds that, it has begun- the court system has begun sanctioning very heavily attorneys who are citing cases irresponsibly to the court. One of the last ones that I heard about was up in Oregon. It was a California attorney. He was fined $100,000. Ten thousand dollars because the court had to do extra work.

Kimberly King (30:43.548)

Oh my lord, wow.

Justice Patricia Benke (30:47.252)

Ninety thousand because the opposition had to undo it.

Kimberly King (30:50.26)

Oh my goodness. Wow.

Justice Patricia Benke (30:52.47)

So be very, very careful with generative AI. We’re working on it within the appellate system. right now, I don’t know that there is a uniform policy, but if you’re using AI, many courts require you tell them and never, never cite or rely on a case that you have not read.

Kimberly King (31:11.342)

Well, I think in and in general, I mean, right, that’s that should be one on one. But I mean, a lot of times, you know, I guess people use AI and they don’t fact check it. They just let it go and off it runs. 

Justice Patricia Benke (31:23.704)

Hallucinates. It hallucinates its own.

Kimberly King (31:27.342)

Well thank you for bringing that up though, because that is so relevant right now that we’re all dealing with. And it can be used for good, but yeah, yeah, guardrails.

Justice Patricia Benke (31:37.478)

Definitely. I’m not saying never use AI. It’s a tool that you know people use as a template and that’s super, but not to the court. Be sure that you’re citing.

Kimberly King (31:46.924)

Yep, one hundred percent. So what skills should be demonstrated or are needed in appellate briefing and argument?

Justice Patricia Benke (31:54.626)

Research. I think being able to research and National does a wonderful job of being sure that its students from the get go in all the writing courses are signed up so that they learn to use Westlaw and Lexus. And that is the better you are on that, the you know, I had one attorney, that’s all he used. He was on the computer a hundred percent of the time. So that the research skills, the writing skills, and the analysis skills.

So that core the core three or four courses where students are learning to write and to think and to analyze, that to me, is the appellate, that’s a heart of the appellate process.

Kimberly King (32:37.294)

Critical thinking which seems to have been missed in some I don’t know, in this generation coming through now, I think in just in general. Maybe that’s way too general for me to say-

Justice Patricia Benke (32:47.31)

Well it’s dangerous because that’s something that I don’t think AI does quite yet. It doesn’t quite synthesize all on its own.

Kimberly King (32:51.98)

Not yet. No. Right, right. And just you know, I think people and that are curious, that have questions that want to learn and like you said, the research and the analyzing and all of that, but just being able to have the conversations which, you know, we know,  yes, you also can be that in the computer doing your research and everything, but then being able to

Justice Patricia Benke (33:17.494)

That’s part of my mission. My part of my mission is to instill in every student the idea that they can do it. So much talent, and this is why I love National. So much talent goes unnoticed. Unrewarded. I had a student – oh that was a number of years ago when we were on site, and I he was getting a low C and teetering on a D.

Justice Patricia Benke (33:46.45)

And I said, You know, you’re a very fine writer. And he just stopped and said, Nobody ever told me that. None of my professors, not anybody in my family. Am I really a good writer? And I said, Yeah, you just have to get organized. You have to learn to put your thoughts together. And so that helps. I’ve had students one student brought me a- I said, please explain all the actors in the courtroom.

Kimberly King (34:02.04)

Yeah.

Justice Patricia Benke (34:14.262)

And he he said, I’m not really good at it, but I produced this for you, which was a cartoon. It was art. It was everybody in their spots with the bubbles. And I said, I’m gonna give you credit for it. This is very original. But when you apply for a job, you can’t give a cartoon. You have to learn to do it.

Kimberly King (34:35.069)

Right. But I like that you gave him credit because it was the way he was able to communicate it to you.

Justice Patricia Benke (34:39.438)

Absolutely. And it was empowering. But it’s this idea that everybody has talent, and so much of it is unrewarded. And it’s even unnoticed. The system doesn’t even allow it to be noticed. I told him he’d be a terrific in-court artist, you know, those who do that. But you better learn to write the application for it.

Kimberly King (35:03.894)

Yeah. What are some of the most important words of advice from you for preparing briefs?

Justice Patricia Benke (35:13.016)

For preparing a brief… Patience. Every word has meaning. When you are writing, and I I tell this to my students, it’s agony. You know, you call me and tell me this is so hard. It is just awful. It’s so hard. I’m gonna say, Yeah, you’re right. That’s the process of writing. Yeah. And simplicity, clarity, are at the top of the list, of course, and the ability to research, however you research.

I’ve had cases where I am stumped and I cannot find a recent case that I know came from the California Supreme Court and I could not find it. And I will whisper to them, Google it. No, don’t go to Lexus yet. Google it and you know it popped up. An article that an attorney wrote, because law firms do this, they have their attorneys write on topics. And he wrote about this case because he was the attorney on it.

Kimberly King (36:11.923)

Oh wow.

Justice Patricia Benke (36:12.5)

Instantly I had the citation, the name, and then I went to Lexus and Whistlaw. Yeah. So use everything, use everything. Just know what’s proper and not proper to cite to the court. It was quite astounding. I was surprised even myself. I mean there it was, in two minutes.

Kimberly King (36:33.07)

There it was.

Justice Patricia Benke (36:36.706)

Plus his view, which was very helpful.

Kimberly King (36:40.114)

Oh that’s great. That’s good advice. What are the important words of advice for presentation of appellate arguments?

Justice Patricia Benke (36:47.842)

Simplicity. You only have and I think one of the one of the things that I pull away from practical experience now in retirement is over preparing. And I know as an attorney, you don’t know what’s going to be asked. But you’ve only got fifteen minutes. So know what you’re going to say out of the gate. I’ve heard arguments, we do mock arguments, and I have more than once said, Whoa, wait a minute, you don’t want to say that first. Here’s what you want to say first. Here’s what you want to what you want to emphasize and be organized and and be able to put all your notes down and respond. 

Because you don’t have time to look it up in 15 minutes. Maybe less than that, because you have 15 minutes total. Your opening argument, if you’re the appellant, you may take 10 and save five to respond. And so you may get a panel that can’t stop asking questions. 

And you know, and never challenged the court. You know, very famously one of my colleagues was asked a question by the attorney and who said, I you know, I’m I I can’t really answer that or I don’t want to. And he leaned over the bench and said, Indulge me. I asked the question. Which he answered.

Kimberly King (38:09.634)

Yeah. Yeah. Interesting.

Justice Patricia Benke (38:13.784)

That’s and that’s pretty much it is know your case well enough that you can respond to questions. Nobody’s out to get you in oral argument. We need your help.

Kimberly King (38:24.844)

Right. So like yeah, you’ve got to be able to answer on both sides. And that’s one thing I I say a lot to my kids who are in their twenties now, but I was a speech communication major back in the day and we would come in, this was before computers and Google and your cell phone, but they would the professor would say, Okay, you have five minutes to, you know, look over your subject matter, then present, and then halfway- two and a half minutes in, they said, Now you’re arguing on the other side and I think that’s also a lost art is to be able to know just in general too. You know, I I know with politics as heated as they are, but sometimes we just need to look on the other side too and be able to-

Justice Patricia Benke (39:05.272)

And see that again is a form of synthesizing. It’s putting it together. Putting it together for an instant presentation and invitation to ask questions. And if there are no questions and you’ve heard the appellant and you’re responding, and you have nothing to add, then don’t. Always be professional. If you say something in a brief that is unprofessional, or snarky, if you will, we’re gonna see it immediately.

Kimberly King (39:32.258)

Yeah.

Justice Patricia Benke (39:33.006)

I remember preparing a case for oral argument, helping with it, and having one of the attorneys who I was assisting say, What did you think about that statement, these statements and the attitude? And my response was, Do you mean the one on page fifty?

Kimberly King (39:48.665)

Oh no. Yeah.

Justice Patricia Benke (39:52.512)

It’s and my response in predicting was that’s going to be asked at oral argument. Why did you write and that way? And I listened to oral argument. The first or second question from the panel was, you really should improve the tone and pick it up.

Kimberly King (40:11.104)

Yeah. And that probably is my next question is what practices should counsel avoid at oral arguments- that tone, right? Yeah.

Justice Patricia Benke (40:18.21)

Right. You’re there to assist the court and represent your client.

Kimberly King (40:21.91)

Yeah. And be-

Justice Patricia Benke (40:24.064)

And create a body of law. Help create a body of law. When you think about that, that’s amazing. It’s not hard. I used to take my students into the courtroom at the end and allow them to make an argument right there in the court. And some of them and watch oral argument first. And I had one student say, I can do that. I can do that. And my response was, Yeah, you really can.

Kimberly King (40:47.724)

Yeah. that’s great. Wow. Well, like you said, you are such a gift to your students and I’m sure they absolutely-

Justice Patricia Benke (40:55.566)

I think I think the magic is they know it. I really, really you know, so much of my existence, not just in retirement, was to- I looked at my mother, who was you know, raised in a culture where women were not expected to do anything. What a smart, beautiful woman she was without a chance. And I look at all of her talent.

Kimberly King (41:22.776)

Yeah.

Justice Patricia Benke (41:25.558)

And all of the talents that walk into a classroom. And where is it? You know, and Martin Luther King gave a speech before the most famous speech. And it was be the best you can. That was the whole theme. If you push a broom, be the best broom pusher in the world. You will be recognized. You will be famous. You can move to the next step. Always do, always do your best. And as a professor, finding that in every student that you can, if you have the time to do it, is the mission.

Kimberly King (42:02.978)

You give them so much hope and be you believe in them. And I think that’s also missed in so many opportunities today as well. And I really love your passion. It comes right through. And I would love to have lunch with you one day. I’ve Yeah no, this was so interesting. Thank you so much. This was we really appreciate your knowledge. And if you want more information, you can visit National University’s website at NU.edu.

Kimberly King (42:31.532)

And again, thank you so much for your time today. 

Kimberly King (42:37.09)

You’ve been listening to the National University Podcast. For updates on future or past guests, visit us at nu.edu. You can also follow us on social media. Thanks for listening.