Litigation

Interview With Judge Jill L. Burkhardt

Judge Jill L. Burkhardt

Before becoming a Judge, Jill Burkhardt was an Assistant U.S. Attorney in the Southern District of California, Criminal Division.  She started her career as an associate at Baker and McKenzie. Judge Burkhardt earned her Bachelor of Arts in political science from the University of Minnesota and her J.D. from Harvard Law School, where she graduated Cum Laude. In this interview, Judge Burkhardt discusses her path to the Bench, her experience transitioning from advocate to judge, and the importance of professionalism and civility in the legal profession.

What made you want to become a judge?

I wanted to be a lawyer since I was a little girl.  I never wanted to be anything else.  I did not know any lawyers and I never saw any tv shows or movies about lawyers when I was a child.  But I was the fifth of six kids, and I understood the frustration of a system where disputes were not decided on the merits.  One of my mom’s favorite argument-enders was, “If you’re going to fight over it, neither of you can have it.”  Although that was probably a good way to help kids develop conflict resolution skills, to me, it was just fundamentally unfair.  I wanted to be part of a system where each side presented evidence to a neutral decider and the person with the more meritorious claim prevailed.  

And even as a child, with my limited understanding of the judicial system, I saw being a judge as the pinnacle of a legal career.  So I dreamed of practicing law, yes, but also of one day being a judge.  As I grew up, my aspiration to be a lawyer never wavered.  And as I practiced law, as much as I loved being a lawyer, I held onto the idea that I wanted to be a judge one day.  

How did you find the transition from advocate to neutral?  And the transition to handling both civil and criminal cases?

I do not miss being an advocate.  The transition to being a neutral felt natural to me. 

That is not to say that I don’t sometimes miss aspects of my old job.  Before taking the bench, I was an Assistant United States Attorney and I had been a supervisor in the U.S. Attorney’s Office for many years.  Consequently, I was knowledgeable about most of the significant investigations in the office.  A hard thing for me about leaving the U.S. Attorney’s Office to take the bench was no longer being “in the know.”  It was a shock the first time I picked up the local newspaper and read about arrests resulting from a big federal investigation about which I had known nothing.

Jumping back into the civil world again also had its challenges, but in my opinion, handling both criminal and civil matters is one of the great advantages of being on the federal bench.  As to the transition, I had been a civil practitioner in a large law firm for six years at the beginning of my career, but I had been a criminal prosecutor for twenty years after that.  When I first took the bench and started handling civil matters again, I felt a little like an imposter.  I felt like I was bluffing my way through my first case management conferences and my first discovery disputes.  Fortunately, the litigators were very kind and never let on if, in fact, they thought I didn’t know what I was doing.

What would you say has been the hardest or most challenging part of serving as a judge?

It was a struggle to get used to the trappings of the role.  For months, it continued to be a little startling to see my name as the judge on pleadings or to hear people greet me as “Judge” in the hallways.  I still experience a little bit of discomfort in situations that call for me to introduce myself as “Judge Burkhardt.”  Even now, it feels a little pretentious.  

As far as the work goes, the greatest challenge is when attorneys are unprepared, or late, or submit poor quality briefs.  Fortunately, that is the exception and not the rule. 

What surprised you most about the role?

I wasn’t so much surprised as delighted that the job really exceeded even my very high expectations.  There is so much about being a magistrate judge that is wonderful.  It is intellectually stimulating, the work is interesting and rewarding, and the people you get to interact with—colleagues, court staff, and attorneys—are terrific.  And the chambers are nice, too.

On the negative side, and, again, this is the exception, not the rule: I was disappointed and surprised by the ways in which a few attorneys fall short of the mark.  It is mystifying to me that any attorney would fail to open and read a court order, relying instead on the summary contained in the docket entry.  It is disappointing when an attorney seemingly loses sight of the fact that he is participating in a court proceeding and addresses his comments directly to opposing counsel, or interrupts counsel or the court, or otherwise fails to show respect for the institution.  

What is the best part of the job?

The best part of my job is when I can successfully mediate the settlement of a case.  This is especially true when the parties themselves did not believe the case could be settled.  It is quite heartwarming when the participants display delight and gratitude for the Court’s service and the result achieved. 

What advice, if any, do you have for practitioners appearing before you in court?  Any specific advice for written submissions? For argument?

This is the same advice everyone gives, but it is critical advice: guard your reputation.  Do so by being prepared, always meeting your duty of candor, and conducting yourself with civility and professionalism.

What makes a lawyer a successful advocate?

Successful advocates establish and maintain credibility with the court and the jury.  Accomplishing this entails doing two overarching things. 

One is to do careful work.  This means being prepared. It means reading all of the court’s orders carefully.  And it means citing authorities fairly and accurately.  

The other is to conduct yourself with civility and professionalism at all times.  It means showing respect for your opponent, the court, and the judicial system.  

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

Being a lawyer is a stressful job.  So much is expected of us.  Most lawyers work long hours under tight deadlines, working on matters of great consequence.  The legal system itself is an adversarial system and litigation is sometimes, although not always, a zero-sum game.  It is not surprising that lawyers are tempted to exploit opportunities for advantage or perceive that their opponents have done so.  And in zealously advocating for clients, a few sharp words in a hastily drafted email can easily devolve.

But life is too short, and legal careers are too long, to spend one’s working hours steeped in toxicity.  Of course a lawyer feels justified in responding in kind to a perceived slight or act of incivility by the other side.  But is it a good idea?  Almost never. 

And here are a few reasons why not. 

(1) You may not be as objective as you think you are about whether the action to which you are taking offense is actually unjustified or inappropriate. 

(2)  Even if it is, it may not have been intentional and there may well be effective ways to de-escalate the situation, and disarm your opponent, rather than launch an arms race. 

(3)  Uncivil litigation is more expensive for your client and takes a psychic toll on you as a lawyer. 

(4)  In those rare cases when your opponent’s conduct actually is consistently inexcusable and the legitimate interests of your client necessitate bringing the matter to the court’s attention, you are much more likely to get the relief you’re seeking if your own conduct has been unimpeachable.  If your opponent can point to examples of your own inappropriate or uncivil conduct—if your white hat has even a few splashes of mud on it—you will likely have lost your credibility with the court. 

(5)  You never know what your next career move might be.  Whether you are applying for a job at a law firm, agency or company, or even applying to the bench, you never know who might have the ear of the person making the decision.  The more enemies you have made in your career, the more likely one of them will be in a position to cause you harm.  Conversely, there is nothing quite as impressive and persuasive as praise from attorneys you have opposed.


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