From the Bench. What I've Learned

• Author: Mark Bennett
• Pages: 5-8

From the Bench

Published in Litigation, Volume 47, Number 4, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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MARK BENNETT

The author is a judge on the U.S. Court of Appeals for the Ninth Circuit, Honolulu.

I’m an old new judge.

In 2018, almost 40 years after graduat-

ing from Cornell Law School, I took my

seat on the Court of Appeals for the Ninth

Circuit and began a new phase in my pro-

fessional life.

I’ve had many adventures along the

way. Here is some of what I’ve learned.

None of it is rocket science.

First, my story. My plan was to set

the world on fire in math. That plan was

short-lived, as I had to leave college be-

cause of my very poor academic perfor-

mance. I then worked in a factory for a

few years. Though I enjoyed the job, to

lean on a line from the movie Cool Hand

Luke, I got my mind right. With a new

purpose and no more time to waste, I

went back to a different college, this time

majoring in government. Then, I went to

law school.

After law school, I clerked for the

best judge in the world—the Honorable

Samuel P. King, chief judge of the U.S.

District Court for the District of Hawaii.

After my clerkship, I was hired as an

assistant U.S. attorney (AUSA) in the

District of Columbia, starting out, as al-

most everyone did, in the D.C. Superior

Court Misdemeanor Trials unit.

At that time, AUSAs often tried a col-

league’s case that they’d never seen or

heard of until reaching the courtroom.

One of my first trial experiences began

that way. I arrived in the courtroom after

a different AUSA had picked the jury. On

her way out, she greeted me with “Good

luck, Mark. You’ll need it.”

I started looking through the file, but

the judge interrupted my reading. “Mr.

Bennett, you may not have noticed, but

I’m here, the jury is here, and the defen-

dant and his lawyer are here. We’d all love

to give you time to read your file, but we

don’t have the time to waste. So, I’ll give

you a choice—start your opening statement

in the next 30 seconds, or I’ll declare a

mistrial and end this case. Your choice.”

Well, my choice was obvious and my ca-

reer as a trial lawyer was off and running.

Within about 15 months, I had almost

50 jury trials behind me. In my career as a

trial lawyer, there were many more.

Lesson 1: Try Cases

So, I learned: If you want to be a litigator,

try cases.

Now, everyone knows that civil cases

don’t go to trial very often. But litigators

of every type, including appellate spe-

cialists, benefit enormously from first-

chairing jury trials. Through trials, we

learn what works in the courtroom and

what doesn’t. We learn from our mis-

takes. Everyone makes them; some can be

doozies. We can’t obsess over them, but

our goal should be to learn from them and

not to make the same mistake twice.

Also, if we are in court enough, we be-

gin to see the rules of evidence as an es-

sential part of our toolbox. And through

trials, we eventually lose any fear of go-

ing to trial. It’s critical to lose that fear,

especially when it comes to negotiating

settlements for clients. If we’re apprehen-

sive about going to trial, we’ll go to great

lengths to avoid trying cases.

The best way to overcome that fear is

to first-chair lots of trials, and the best

way to first-chair lots of trials is to be a

prosecutor or public defender. While that

statement has some hyperbole, it doesn’t

have much. If you see litigation in your

future, seriously consider one or both of

those jobs. You’ll learn a great deal, you’ll

perform an enormous public service, and

very few law firms will say to you later,

“Sorry, but you’ve only first-chaired 25 tri-

als. We’re not interested.”

Lesson 2: You’re Not Always

Right

After about two years in D.C., I trans-

ferred to the Hawaii U.S. Attorney’s Office.

WHAT I’VE LEARNED