A Conversation with Ninth Circuit Judge John B. Owens

John Byron Owens is a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit.

Before becoming a judge, he was a partner at Munger, Tolles, & Olson in Los Angeles and served as an Assistant United States Attorney, first in the Central District of California and then in Southern District of California.  As an AUSA in the Southern District of California, he served as Deputy Chief of the Major Fraud Section and Chief of the Criminal Division. He previously worked as a trial attorney in the Department of Justice’s Office of Consumer Litigation and an associate at O’Melveny & Myers LLP in Washington, D.C. 

Judge Owens earned his Bachelor of Arts degree from the University of California, Berkeley, and his J.D. from Stanford Law School, where he graduated first in his class and earned the Stanford Law Review Board of Editors Award. After law school, he clerked for Judge J. Clifford Wallace on the United States Court of Appeals for the Ninth Circuit and for Associate Justice Ruth Bader Ginsburg on the United States Supreme Court.

In this interview, Judge Owens discusses his path to the Ninth Circuit Court of Appeals, his experience transitioning from advocate to judge, his advice for oral advocates appearing before the Ninth Circuit, and the importance of professionalism and civility in the legal profession. This interview has been edited for brevity and clarity.

Before joining the bench, you had a distinguished career in both public service and private practice, having served in the Department of Justice’s Office of Consumer Litigation, in two different U.S. Attorney’s Offices (including as Chief of the Criminal Division at the U.S. Attorney’s Office for the Southern District of California), and in two prominent law firms in Washington, D.C. and Los Angeles. What made you decide to become a judge? 

I was very fortunate to have great role models along the way, including the judges I clerked for, Judge Wallace and Justice Ginsburg.  Judge Wallace is on the Ninth Circuit and still sits on the court today (and even still drives himself to court). He was a fantastic role model and showed me how you can have a very long career as a judge if you keep yourself healthy (which he does a very good job of) and stay engaged. Justice Ginsburg, who I also clerked for, was obviously an important influence as well. Finally, I was influenced by the judges I regularly appeared before, primarily in the Southern District of California where I spent most of my career. Seeing how they conducted themselves on the bench and how they were admired in the community made me realize that being a judge was a good job and something I’d like to pursue.

Being a judge is not something I thought about in law school and while it at least crossed my mind as a law clerk, I never seriously considered it until later in my AUSA career. I understood how difficult it is to get the job and that it is based on chance more than anything else. Even when I was giving it serious consideration, I really thought that the district court would be my best shot. I was most familiar with the district court and spent most of my career there.

Given your initial interest in serving at the district court level, what made you more open to the appellate court?

I was looked at closely for the district court in San Diego in 2009-2010.  I didn’t get it and I’ve never known exactly why, but it ultimately went to Judge Bencivengo in San Diego, and it’s hard to imagine a stronger candidate for the district court than her.  Fast forward a few years and in 2013, I again was approached about the district court, but at that time, I wasn’t ready to apply. It had only been a year since I started as a partner at Munger Tolles, and I didn’t feel comfortable putting in for district court just a year after I joined the law firm. I figured there would be more district court openings in the future someday and that if I really wanted to pursue the district court later on, I could apply then.

A few weeks later, there was a Ninth Circuit opening advertised. I figured I’d never seriously be considered for it but was encouraged to put in. I decided to go for it, thinking I wouldn’t get it so it wouldn’t interrupt my career at Munger Tolles. I saw it as similar to buying a lottery ticket: “If I win the lottery, maybe I won’t work at Munger Tolles anymore, but I’m not going to win the lottery.”  I never thought it would happen and then it did!

How have you found the transition from advocate to neutral?

What was hard about the transition wasn’t so much the mentality – that is, not so much the perspective of ruling on cases and acting as a neutral – but the day-to-day life. That is the biggest change. When I was at the U.S. Attorney’s Office, for example, I would go down and watch a colleague give an opening statement or closing argument, and we would be excited if the jury came back with a guilty verdict or if the agent found the emails we’d been looking for or was finally able to decrypt the device with the emails. There was a lot of excitement. And in private practice, we were excited if the judge gave us a ruling that was good for our client. As a judge, I am no longer working as a team in the same way and figuring how to get the football across the goal line. That’s the hardest part of the job, not so much having to be fair and objective, as I have experience with that (including refereeing my kids’ games and calling fouls on my own kids)! The hardest part of the transition was the social aspect and no longer working as part of a team to get that goal. I of course still have my team and have law clerks who do a great job on opinions, but there is not that extra validation or risk. You can lose in private practice and you can lose as a prosecutor; I did both. That type of energy is different. When I have dreams, I will dream I’m still at a law firm trying to defend a case or that I’m a prosecutor working on a case and then I realize, “Wait, I’m a judge, I can’t do this anymore.”

The social dynamic of the workplace is different. My colleagues are my fellow judges and while you do sit together for oral arguments, it is not that often, so most of the time is spent working by yourself. I’m very fortunate to have outstanding law clerks, fresh out of law school, who are very smart and worked very hard to get where they are. They are the best employees in the world, but they are also half my age, so that’s another adjustment. While I also have a judicial assistant and a term law clerk who are at least closer to my age, my social group is different. At the law firm or the U.S. Attorney’s Office, I had many colleagues who had kids – not just the lawyers, but the staff. The scale is much smaller as an appellate judge and the day-to-day personal interactions are different.

That is a common theme that comes across when we interview judges – that being a judge can be more isolating, especially for district judges who don’t decide cases with other judges.

Yes, and I will tell you that district court judges have a much harder job than we do.  They have to make rulings on the fly and promptly decide motions filed late at night during trial. Jeopardy attaches in criminal trials, so they have to get it right. We have all the time in the world. We have colleagues and hold conferences after oral argument where we discuss the cases and my colleagues can persuade me they’re right. A district judge can’t just pause the proceedings to make a phone call and talk with other judges; she has to just rule. It is a much harder job.

What experiences have most influenced your approach as a jurist?

Before I was a judge, a family member of mine was sentenced and I had to attend the sentencing. I watched how the judge handled it and it wasn’t necessarily how I would have handled it, even though it ended up being a good result for the family member. It gave me a window into what it is like being in the courtroom and watching a family member being sentenced. As a prosecutor, you see that happen all the time but it’s a different experience when the person being sentenced is one of your own.  That shaped me in terms of really trying to be respectful and take these things very seriously when you’re on the bench. That doesn’t necessarily mean taking yourself seriously, but you need to take proceedings seriously. 

In a broader sense, I was influenced by my experiences working with Justice Ginsburg and Judge Wallace. I saw how hard Justice Ginsburg worked to get to the answer she thought was right. She never took a day off, never mailed it in, and was a very determined person. I also observed how Judge Wallace conducted himself; to this day, even after being a judge for 50 years, he is still professional and still keeps up with his work. The combination of having these role models and my personal life experience keeps me going in the right direction.

Over the course of your career, you have worked with and observed many lawyers, and now you hear appeals covering a wide range of subject areas, including criminal, civil, and immigration appeals.  Do you have any thoughts on what makes a good or successful advocate?

When it comes to oral argument, I think it’s always important to remember as an advocate why you are there. Why are you there? You are there to present your case obviously but also to answer questions the panel has. The panel has reviewed your briefs and the panel has reviewed the district court’s order. When advocates just repeat the arguments in their briefs, that’s not very helpful. Of course, you need to provide an overview and make your points, but it is important to answer the questions the judges have. I see way too many advocates running away from questions or answering different questions. What you should be doing is asking yourself how you can help the panel. Judge Wallace used to talk about advocates who make you feel like they want to huddle up with you and try to get to the right answer. If that’s what you convey to the panel, you’re doing well. You’re obviously still an advocate and should make the best case for your client’s position, but you’re doing well if the vibe you give off is that you’re just trying to help the panel and you’re being open with them and answering their questions.  

The Ninth Circuit recently returned to in-person oral arguments. What advice do you have for attorneys transitioning from Zoom arguments to in-person arguments?

Overall advocates did a very good job with Zoom arguments. The difference with in-person arguments is that you are “on” earlier; you can’t just have your camera off until you start speaking. Now you are in the courtroom so you need to remember that the judges can see you. Even if you’re not speaking, you’re still “on,” so don’t be checking your phone. There are some other differences too – for instance, you have to stand up for in-person arguments, rather than sitting down as you might for a Zoom argument. You also need to arrive at the courthouse early. With Zoom, if you had a 9 a.m. argument, you could join the Zoom mere minutes before. When you’re in person, you can’t show up at 8:58 a.m. for a 9 a.m. argument. That said, people did a good job with Zoom arguments and ultimately what made a good argument before COVID is still a good argument.

Can you speak a little about the importance of civility and professionalism in our courts?

Absolutely.  Of course, you should be civil and nice to people.  We learn that as kids; we all know that. Even putting that aside, it’s smart to be nice and it’s smart to be civil. Even if you’re not that kind of person, fake it. In the long run, the most valuable asset an attorney has is her reputation – period. If you get a reputation with the judges that you’re sneaky or that you’re a backstabber, that is not good because judges are like elephants and they never forget. And they’re like parrots; they talk to each other about the good lawyers and the bad lawyers and parrot what they hear from one another. If you come across as the person who is trying to help the panel and you’re not attacking the other lawyer, but you are reasonable and just trying to help us make a decision, that’s going to score the most points for your client.

This advice also held true when I was at the U.S. Attorney’s Office. As an Assistant United States Attorney, I was much more likely to consider seeking a significant sentencing reduction when dealing with a reasonable defense attorney. If the attorney made outlandish accusations in every case, I might not take the concern as seriously. However, if I was dealing with a defense attorney who was reasonable and would attack the prosecution when warranted but not in every case, and that attorney came forward and pointed out a problem, I would step back and really listen. I was much more likely to take the issue seriously and investigate it.

Ultimately, I really want to stress to everyone reading this that even if you’re not a civil person, it pays to be nice and it pays to be civil, especially if you want to have a more successful career. Also, if you ever want to be a judge, remember that lawyers have long memories. It’s amazing how many people are eminently qualified to be on the court but get shot down because of something they said or did 15 years earlier. It’s unfortunate, but it happens, so just be nice to everyone.

I would also like to give a shout out to a defense attorney I used to work with, Edward Robinson of Robinson Kardon. When I was an AUSA, Ed Robinson came to me and said he thought I had a problem in one of my cases, and he was right. I was willing to hear him out because he was reasonable and had a great reputation. As a result, he persuaded the U.S. Attorney’s Office to dismiss one of the charges against his client, a charge for possessing firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)) – a difficult feat in a case involving the discharge of a firearm. Ed Robinson is a great example of someone who is a nice guy and knows when to push and when not to push, a model of someone who exudes civility and professionalism.

Anything else you would like to add?

I just want to wish everyone the best of luck getting back in court. There is nothing more energizing as a lawyer than being in court. Let’s all be smart and let’s follow all the protocols of the courtroom so we can all be back in court and do this together.

Judge Owens was interviewed by Christian Andreu-von Euw and Allison Westfahl Kong on March 9, 2022. Mr. Andreu-von Euw is the founder of Tech.Law, a firm dedicated to the litigation of disputes concerning intellectual property, data security, and other technology issues. He is the secretary and past chair of the Committee on Federal Courts, a standing committee of the CLA’s Litigation Section. Ms. Westfahl Kong is a federal prosecutor in Los Angeles and the current chair of the Committee on Federal Courts. Any views expressed herein do not reflect the position of Tech.Law, the U.S. Attorney’s Office, or the U.S. Department of Justice.