Interview with Magistrate Judge Michelle M. Pettit

The Southern District of California appointed Judge Pettit in July 2023. Before joining the bench, she worked as an assistant U.S. attorney for more than 15 years, prosecuting several areas of crime including national security and cybercrime, fraud, drug-trafficking, and child exploitation. Judge Pettit received a Bachelor of Science with distinction from the United States Naval Academy and graduated from Vanderbilt University Law School in 2001.

In this interview, Judge Pettit describes her path to the federal bench, her experience as an appellate and trial judge in the military, and her views on what makes a successful advocate. This interview has been edited for brevity and clarity.

Q: Let’s start with your background and go through the transitions that you’ve had in your career. It seems like your experience in the Navy really impacted everything that you did after.

I started my career as a Surface Warfare Officer when I was commissioned in the Navy, but I knew by the time I graduated from college I wanted to be a lawyer. At the Naval Academy, I had a law professor who taught First Amendment law, and she was an inspiration for me. She served as a law clerk for Chief Justice Warren Burger, and she would tell great stories about her time on the Supreme Court; she made the law come alive. I decided at that point I wanted to be a lawyer, but that was not an option directly after graduating from the Naval Academy. So I researched how to become a lawyer, and I discovered the Law Education Program where active duty officers could apply for a program to attend law school and become a Judge Advocate General. I set my sights on that path.

I was fortunate to be accepted into the Law Education Program, and the Navy sent me to law school. That was the best deal ever, because I was on active duty, being paid to attend law school. After graduation, I became a legal counsel for the Navy’s personnel office, practicing administrative and personnel law, which is a very niche area of law in the military. I then became a prosecutor, which is when I really fell in love with the courtroom.

At the time, my husband and I were living in San Diego, and we decided to stay here to raise our family. Therefore, I left active duty, transferred to the Navy Reserves, and started to apply to local jobs. At that time, the U.S. Attorney’s Office was coming off a multiple year hiring freeze, and I was fortunate enough to be hired in the Criminal Division. I thought I might want to be a judge after my experiences as a trial attorney in the Navy, so I took the opportunity in the Reserves to apply to be a Military Judge. I was selected and was able to serve as an Appellate Judge and a Trial Judge in the Navy Reserves before I ever applied for a position with the federal courts. I was an Appellate Judge for two years, and then I was the Chief Trial Judge for the Reserves and the Commanding Officer of that unit for two years.

From there, I went back into a traditional Reserve billet as the Commanding Officer of the legal office in Japan. But then I received a phone call in early 2022 that Navy leadership needed to recall me to active duty to serve as the Circuit Military Judge in Southwest Judicial Circuit for fiscal year 2023. Shortly after starting that position, I became the Circuit Judge for the Northwest Judicial Circuit as well. One other judge and I were covering the entire West Coast for a while, which was a heavy caseload. Most of the cases that went to trial involved sexual assaults offense, but we also handled other types of cases, such as thefts, drug use, and fraud.

Q: When did you apply for this Magistrate Judge position?

The applications were due at the end of 2022. The final interviews before the District Court Judges were in February 2023, which I distinctly remember because I was in middle of my first contested trial since returning to active duty as the Circuit Judge. I had to put the jury on an extended recess to allow me to attend my interview. After being selected for the position, I requested to leave active duty a few months early to start this job in late July 2023.

Q: Is that the only time that you applied to be a Magistrate Judge?

Oh, no! I applied multiple times over several years.

Q: How did you find the transition from advocate to neutral?

It felt natural to me. One of the reasons I applied to be a Military Judge was to have a chance to try the work before I applied for a fulltime position. I think a lot of people assume they would enjoy being a judge, but it can be harder than people think. Particularly as a trial judge, sentencing can be gut wrenching and emotionally difficult. And when you’re coming at it from a neutral position, where you’re considering all sides of a case, you often see heartbreak and pain on both sides, particularly in the criminal context. Some days are very heavy, and I was fortunate enough to experience that to know if I was suited for that type of work. I have found I enjoy being in that neutral role because I can understand and empathize with both sides.

In military courts, more than in the federal court, the judges see themselves as trainers. They spend time training and mentoring attorneys, particularly because junior counsel are handling the cases. That was a very rewarding aspect of the job for me in the military. I love the mentorship role and passing on to the next generation the things I’ve learned through litigation. I think my best teachers when I first was a trial attorney were the judges that I practiced in front of, and the best judges were the ones who taught from the bench, meaning their rulings and their comments on the bench were meant to sharpen my practice and make me better. I always looked up to them and appreciated their feedback because it made me a better advocate. I have enjoyed doing the same.

For me, moving to the neutral role also felt natural due to my work as a prosecutor. I think the best prosecutors are the ones who look at all sides of a case, who truly dig into the equities for the defendant. If you do that job well and dig into all sides, you do find yourself at some point taking more of a neutral role. As a prosecutor, you are obviously an advocate when you step into the courtroom, but when you are negotiating a plea and making decisions about the case, there is some neutrality that you bring to the process as you try to reach the goal of fairness and justice.

Q: Have you found an opportunity to mentor and teach as a Magistrate Judge and mentoring?

Yes, as to mentoring. And there are avenues for teaching through the different legal organizations. When I am called on to participate in different programs, I always say yes, because I feel that’s what I should be doing to pass on my experience. I hope when I’m interacting with counsel, I am being a clear communicator on the record. It can be dangerous as a judge if you speak all your thoughts on the record, particularly when you have my personality trait of needing to verbalize various ideas to problem solve. But I also think it very helpful if I highlight for counsel the things I find or don’t find relevant or significant to help them evaluate their own case.

I consider myself a teaching judge, and I hope that comes across in a positive way. As an attorney, I felt receiving feedback from the decision maker was in valuable. I always loved it when judges gave tentative rulings and shared their thought process of how they arrived at their decision because it allowed me to correct any misunderstandings of the law or the facts. It also gave me a roadmap of what was important to the judge to help guide my analysis of the case. I try to do the same for counsel in my cases now.

Q: What would you say has been the hardest or most challenging part about being a Magistrate Judge?

I become frustrated when I think a civil case is ripe for settlement, but it does not settle. At the beginning of every case, I try to evaluate whether the case can likely settle or whether it needs to be tried. Some cases need some discovery for all the parties to understand the facts of the case and conduct a risk analysis related to continuing the litigation, but many cases should resolve early. It is often hard for litigants to pull themselves away from the emotional aspect of their case and look at the litigation from a business perspective. I try to get litigants to set aside their emotional attachment to their case, but sometimes the counsel or clients are not willing to move off their fixed position, which becomes a barrier to settlement.

In those circumstances, I become frustrated with myself and ask why I cannot move the parties in a reasonable direction? What am I not saying or trying that might remove the barrier to settlement? What new strategy could I try? I find that to be the most challenging piece of it for me.

I have started a practice where I often conduct pre-calls with counsel before my settlement conferences to determine what would be the most effective approach to crack the case and what is most meaningful to the client. That gives me homework so I can be better prepared for the conference. I spend a significant amount of time in my settlement conferences trying to connect with the clients to help them understand I do have their best interests at heart. I am trying to find a resolution that works best for both sides. My hope is to educate them, so they understand the process and the real risks of what they are facing if they continue with the litigation.

Counsel will often hear me say, “stop drinking the Kool-Aid of your case.” Everybody does it. Every single litigator, no matter how good or experienced, will think their case is the strongest case. But inevitably, there is never a case where it’s as strong as you think it’s going to be. Parties need to be open and honest about the risks they face in their case to not be caught flat-footed in future litigation. My goal is to push the parties to a place where they understand and accept the reasonable risks to come to a settlement, and I am disappointed when that goal is not achieved.

Q: What surprised you most about being a Magistrate Judge?

I did not appreciate the difference between the pace in state court and in federal court for civil cases. I’m surprised by the amount of pushback I’m receiving at the Case Management Conferences when setting the dates for the scheduling orders. While I am following the standard schedule provided in federal cases in the Southern District of California, many parties are asking for significantly more time to complete discovery, which I do not have room to give them. They often tell me their state cases are not moving as fast when asking for more time. I find myself managing those expectations, which is not what I had expected coming from the criminal law arena where all cases move much faster.  

As a Magistrate Judge, I must keep cases moving to make sure everyone stays within their deadlines. That often makes me the bad guy, particularly when a case is filed in state court and then removed to federal court where the plaintiff is not prepared for shorter deadlines.

Q: What’s your favorite part about being a Magistrate Judge?

Getting to connect with a whole new group of people in different ways. My brain is wired to be a problem solver, so I am always thinking through avenues to overcome obstacles. How can I get to the end result that is the best resolution? I find, as a judge, I have the opportunity to help parties reach the best resolution by thinking creatively and out of the box. And I really enjoy doing that.

Q. Do you miss advocacy?

I thought I might, but I really don’t. It was fun being in the know about cases and investigations and to dig into facts where I felt like I was doing something good to help protect the community. I miss that piece of it, but for the actual advocacy, I always found myself approaching my cases in a more neutral way. My significant time in the courtroom as a prosecutor has filled up my cup. I always said I did not want to start applying to be a judge until I felt I had enough experience and the trial bug in me had passed. I have had enough trials that my trial bug is satisfied, and I was ready to move on.

Q. Do you have any advice for written submissions, civil or criminal?

When you write something, read it and proofread it. I can tell when somebody has not spent enough time with their written work because there are many errors that stand out. Everyone’s going to make mistakes, and there will be errors in filings, but when the errors jump off the page or the law is stated incorrectly, it communicates to me the attorney has not read what they filed. That’s a pet peeve of mine. I’m also trying to be a more concise writer, and I always like reading a good piece of writing that is very concise and gets directly to the point.

Q. What about advice for oral argument?

Only argue about what really needs to be argued. If you’ve properly briefed your arguments in your motion, then you don’t need to spend significant time making oral arguments. I typically give tentative thoughts at the beginning of a hearing to help the parties focus their arguments. I always find it interesting when I give a directed and focused tentative ruling and then the counsel launch into arguments that cover everything they argued in their papers. It makes me wonder if they heard what I said and the focus I requested. Your oral arguments should focus on arguments that may persuade the judge or change the tentative ruling. With that said, for junior counsel, I’m happy to give them room to make a comprehensive oral argument for the experience, and I will not cut them off. Even if it’s not a perfect argument given the counsel’s inexperience, it is a great opportunity to make arguments in a low stakes environment. But for senior counsel, I’ll sometimes cut them off and remind them to stay focused on what may move the needle in their case.

I love it in settlement conferences when a junior counsel will make most of the arguments and present the facts of the case while the senior counsel sits back. It’s good training, and we should encourage that. And candidly, the junior counsel often know the facts better. If they wrote the briefing, let them make the argument.

Q. In the Southern District, we have early neutral evaluation conferences. Do you have advice for ENEs?

Be prepared to dig into the facts. I find that some counsel don’t spend enough time preparing for the ENE because they think it’s just a check in the box. Given the early stage of the case, they claim they don’t have all the discovery they need to evaluate their case. That’s why I often conduct pre-ENE calls to warn the parties I’m going to dig in and they need to know their case. I typically give counsel homework to prepare for the ENE, and I will ask for homework in return to be the most effective I can be for the parties. In an ENE, counsel need to be prepared for me to ask very fact specific questions to test the potential discovery in the case and assess the assumptions that either side are making.

I find that helpful in two ways. One, it may cause litigants to understand the benefit of an early settlement. It also assists with creating a roadmap for discovery when a case does not settle at an ENE. If the parties can front load certain discovery issues, it may break the roadblock to settlement early instead of spending all the time and money completing full discovery. Sometimes after an exchange of a few documents or consultation with an expert, the parties might be able to meaningful engage in settlement discussions. I ask those fact-based questions to identify what is really in dispute and then focus on how the parties can resolve those disputes sooner.

Q. Do you do follow up conferences if you’re not able to settle at the ENE?

Sometimes I will conduct a continued ENE. If it’s going to take more than two months or so, I won’t continue the ENE, but then I will ask the parties if they want to set the mandatory settlement conference earlier than we normally would. In some cases, I will set an earlier date for me to check in with the parties to see if the discovery they have completed allows them to meaningfully come back to the table to discuss settlement. I try to be creative to figure out a better, quicker, or more efficient path to settlement, so nothing is off the table.

Q: Do you have a preference to hold your ENEs remote, in person, or on a case-by-case basis?

I love them in person. I allow remote. My chambers rules set remote as our default because I am finding most parties prefer remote hearings. I personally love them in person to better connect with everyone, and I would hold every conference in person if the parties want that. I have also held some conferences in a hybrid method where one side was in person and the other side was on Zoom. That causes some complications when it comes to the handling the Case Management Conference at the end if the case does not settle, but we have worked through those issues. I’m open to anything that will settle the case. If the parties think an in-person conference will more likely result in a settlement, then I encourage the parties to facilitate an in-person meeting. But I also realize flying somebody across the country, for example, to attend a conference might not be the most cost-efficient way to handle a conference, and a remote hearing might be better.

Q. What makes a lawyer a successful advocate?

A couple of things: humility, empathy, and having a strong command of the facts of your case, particularly when making arguments before the Court. You don’t have to be the most eloquent in your arguments or your writing, but if you know your facts and your client, it allows you to be a better advocate. The court is going to look favorably on lawyers who quickly respond to any of the questions asked and show they truly know their case. I have had some conferences where the attorneys lack understanding and reasonableness and don’t appear to know their case; that’s a detriment to their client. It’s usually obvious, or at least with a couple of questions it becomes obvious. And I think they lose the trust of their client too when that happens.

I understand at the early stages of the case the attorneys may not have spent enough time with the case digging into the facts because they want to be respectful of the hours they are billing their client. But I still believe attorneys serve their client better and are quicker to come to a resolution when they have a good handle on the facts of the case, and they are very candid with their clients about the risks of trial.

Q. We’re fortunate that the Southern District is very civil and a very professional place to practice. Can you speak a little bit about the importance of civility and professionalism in our District?

I think it’s everything. No matter what you think about the other side or the other side’s case, if you’re not civil and you don’t get along, it is such a detriment to the clients, whether you realize it or not. Often when the parties display a lack of civility, they fight over silly things and waste time and money over issues that really don’t matter. When you can rise above it and be professional and civil, no matter how poorly you’re treated by the other side, you’re going to come across better to the court and you will receive more deference. Even if you don’t want to be civil and professional, doing so is better for your client and creates a better result.

Q. Do you have any advice for lawyers who don’t typically practice in the Southern District?

Read the local rules and chambers rules. (That includes local attorneys as well.) Everyone needs to read the rules. And it’s also helpful to obtain some background on standard procedures in the District, including the expectation of collegiality and civility. I know from my own experience dealing with attorneys and judges in other districts that we do some things differently. Even though San Diego is a big city, we have a small-town feel. Everybody knows each other, and you can quickly ruin your reputation. If you are not professional and civil, it just doesn’t fly here. I do think when attorneys are starting to practice here, it is good for them to understand the dynamics, make sure they understand the rules and try to follow them, and be very professional and civil.

Q. Is there anything else that you would like our readers to know about you that we haven’t talked about?

I am open to creative solutions. I’m here because I want to help. I’ve been in public service my entire professional career because that is my calling. I want to resolve things in the best and most efficient way possible. I know everybody is not going to walk out of my courtroom happy, but if they felt like they were heard and their arguments considered, I have done my job.

And I truly want feedback. I consider feedback a gift. If someone feels like they have not been heard, I do not understand them, or I am too deferential to one side or the other, I want that honest feedback. I know people are shy about telling the court anything that may appear to be critical, but I cannot improve myself and understand how I am being perceived unless I am told. There is always room for improvement, and we are all a work in progress. Even if the parties don’t agree with my decision, I want them to know I have heard and fully considered their arguments and my ruling was well-reasoned. That’s the most important thing to me.

Interviewer Information: Jenn French interviewed Judge Pettit in June of 2024. Jenn is a partner with Lynch Carpenter, LLP, where she represents plaintiffs in complex class action litigation involving privacy and data breach, employee wage and hour, and consumer protection. She serves on the Litigation Section’s Executive Committee and as the 2023-2024 Chair of the Federal Courts Committee.