MoFo Associate Sees a Familiar Face During Her First Appellate Argument: Justice Breyer
When Morrison & Foerster associate Diana Kim got the opportunity to make her first appellate argument earlier this month, she leaped at it.
The case was a meaty one. She would be arguing to uphold a $15.5 million verdict that a pro bono trial team at the firm helped win alongside co-counsel at the Center for Justice and Accountability and Dentons U.S. last year for three Haitian nationals under the federal Torture Victims Protection Act. Jurors found that the clients—David Boniface, Juders Ysemé, and Nissandère Martyr—had suffered politically motivated torture under former Haitian politician Jean Morose Viliena, who fled to the U.S. to avoid responsibility for his crimes.
About a week before the argument, Kim got word that her first argument opportunity would be perhaps even more momentous. When the First Circuit announced the three-judge panel that would hear the case, the line-up included retired U.S. Supreme Court Justice Stephen Breyer.
While the presence of a former justice would be remarkable for any debut argument, it was downright uncanny for Kim. Prior to joining MoFo two years ago, she spent two terms at the Supreme Court clerking for Breyer.
The Litigation Daily caught up with Kim to discuss what it was like making her maiden argument before her old boss.
The following has been edited for length and clarity.
Lit Daily: How did this particular argument opportunity come your way?
Diana Kim: This case has been a long-time pro bono case for a MoFo trial team led by Bonnie Lau, along with co-counsel from Dentons and Center for Justice and Accountability. They brought the case to trial and secured a jury verdict on behalf of our clients, and I'm part of the MoFo appellate and Supreme Court practice group. So when the defendant appealed the judgment against him, we were happy to jump in and help try to help preserve our clients’ win.
I had the privilege of drafting the brief, working together with the MoFo appellate and trial team and also with co-counsel. So they were all very supportive of me doing the argument because of my work on the brief and my knowledge of the case, even though it was my first argument.
One thing that's really great about the MoFo appellate group is that they really look for opportunities for oral argument for all of the attorneys in the group, including associates like me. So I felt like the entire team, including both the MoFo partners and our co-counsel, were really supportive and confident in letting me do the argument, even though it was my first time. I'm really grateful for the opportunity and for their trust, and it was such an honor to represent these clients in a case that was so important to them.
So, when did you find out that Justice Breyer was going to be sitting on the panel? Had that been even something you even contemplated as you were beginning preparations for this argument?
We only found out that Justice Breyer would be on our panel—really, any of the panel members—the week before. I think the First Circuit typically releases the information one week before the argument. So it was a total surprise for us. We were generally aware that retired justices can sit by designation, but we had no idea that he'd be sitting for our case.
Got it. Walk me through your preparation. What did you do to get ready for this argument?
Since this was my very first argument, I started by talking with each of the appellate partners in the MoFo appellate group to ask them about their preparation processes: What advice did they have for someone who's doing it for the first time? Collectively, they've done so many arguments and have so much wisdom and experience. Everyone's process is a little bit different. I wanted to combine all of their different perspectives into one process since it was my first time, and I wasn't quite sure what was going to work well for me.
I reread all the briefs, the record, the cases that were cited. I tried to think of the kinds of questions that the judges might ask and the best answers to those questions. But I also tried to think about what affirmative points I wanted to make within the limited time. One thing that was important for me was practicing saying it all out loud in different ways. It's one thing to have all the knowledge in your head, but it's another for it to come out of your mouth the way that you want it to sound—in a way that's organized and clear. So for me, that involved a lot of talking to myself. And our appellate group has a very helpful practice of doing moot courts to prepare for the arguments. We have colleagues who are new to the case, who didn't work on it before, read the briefs fresh and ask the hardest questions they can think of. It's helpful to get that outsider, fresh perspective. Especially for someone like me, who's never done it before, it's helpful to practice in a setting that resembles the actual argument so you can simulate some of the nerves and the formality of the experience.
In going around to other members of the practice, what tips did you bring into your own practice?
One of the tips that was pretty universal was to say things out loud. I think everybody said that was part of their process—to practice what the words sound like in your mouth. Another unique tip that I got was to go and listen to the arguments earlier in the week, to get a sense for the courtroom and the space, to feel comfortable in that place and also to see the judges in action on the bench. So I was able to watch a couple of the arguments before my own argument.
Some of the other helpful advice I got was that the way we think about oral advocacy is different from the way we think about the written briefs. You're not just trying to repeat the briefs out loud. You're often pulling out the one or two best points to be responsive to the questions, rather than just trying to repeat your brief.
So as someone who worked with Justice Breyer at the Supreme Court for two years, what was it like to see him in action on a three-judge bench? Did his approach at the circuit court look different than he might have performed during arguments as part of a larger bench at the Supreme Court?
So, as I mentioned, I actually went and watched the oral arguments a couple of days before mine. So I had actually already seen him on the bench the Wednesday before my argument. In all the cases, he was an active and engaged questioner, which he's always been. You could tell he was really well prepared for all the cases. He asked thoughtful questions of both sides, as did the other members of the different panels that I saw.
You could also sense that he enjoyed being on the bench, and that he enjoyed engaging with the advocates and the other judges on the legal issues. So in that sense, he was very much the Justice Breyer that I remember.
How do you think the argument went for you?
I was very excited and nervous, as you can imagine, because it was my first time, and especially nervous, because I knew that he would be there and I wanted to do a good job. But I felt well prepared, and I felt, in particular, very well supported by the MoFo appellate group, by the trial team and by the co-counsel. So, I think I made the important points that we wanted to make. Of course, I also felt a little bit relieved when it was over. But overall, I felt good about the experience, and I would be excited to have more opportunities to continue doing oral arguments in the future. It's really an honor and a privilege that my first argument was in front of Justice Breyer. I just feel lucky to have had this special experience.
