Education: 1967: J.D., Fordham University School of Law; 1963: B.B.A., University of Notre Dame.

Career in Brief: 1992–present: US Court of Appeals for the Tenth Circuit, Circuit Judge; 1967–1992: Hinkle, Cox, Eaton, Coffield & Hensley Law Firm (1969–1992: Partner; 1967–1969: Associate); 1977–1981: New Mexico House of Representatives (1979–1980: Consumer and Public Affairs Committee, Chair; 1979–1980: Rules Committee, Member; 1977–1980: House Judiciary Committee, Member).

What do you enjoy most about your role as a circuit judge? I enjoy the wide variety of cases I hear and the intellectual challenge of applying the law to achieve a just and predictable result. The federal constitutional issues are always interesting, and the results of those decisions can be far-reaching. Additionally, because the Tenth Circuit encompasses six southwestern states, we see a vast array of state law issues in diversity jurisdiction cases. Resolving these cases can be harder than it may appear, because the laws of each state differ in significant ways. Often, we are called upon to anticipate how the highest court of a particular state would rule.

For the vast majority of litigants, we are the court of last resort. In my view, the essence of the job is to keep an open mind, carefully research and analyze the issues, and hopefully reach correct conclusions. Appellate adjudication is an exercise in group decision-making, and the debates are spirited because each judge on the court is seeking the “right answer.”

What are your greatest challenges in deciding civil appeals? The greatest challenge is the uniqueness of each case, and the need to identify and understand the operative facts. The facts must be the backdrop for the application of legal principles. While other information such as the background and events that led litigants to our court can help in crafting a solution to the problem presented, ultimately, the law must be applied to the operative facts. However, too often, the operative facts are buried in prose, and the case appears far more complex than it really is.

What have been the most significant developments in appellate practice or procedure during your time on the bench? In a nutshell, the most significant development has been the technological advances over the past 24 years. We are “online” all the time, and this has affected the work of the court for the better.

Automated legal research better informs our judgment by allowing us to easily review a variety of sources to resolve complex problems, though we must now be more careful to decide cases based solely on record facts rather than information obtained from the internet. In the past, we circulated briefs and drafts by mail, but today, we just push the send button on our emails. Briefs and opinions are filed electronically and often are linked to cases or the record. More judges are reading briefs and cases on personal computers or portable electronic devices. For example, I can have briefs and records for an entire term of court loaded on my iPad, which allows me to work at home or while traveling without having to carry hard copies. Additionally, the public has greater access to what we do.

What is the most significant challenge you expect the court to face in the next year? The old adage, “you get what you pay for,” applies to our courts. The judiciary is entirely dependent on Congress for funding, and while we have managed to reduce costs and economize, each year brings new challenges.

What advice would you give to counsel when they prepare their appellate briefs? I have always been told that the best approach to an appellate brief is to keep it simple, but that is easier said than done. Carefully consider the points you wish to make, always putting your best points first and omitting, to the extent you can, the ones that are bad for your case. Try not to include arguments that you know you cannot win, as they will detract from the good arguments. Also, keep in mind that you do not have to use the maximum number of words or pages.

You have lived with your case and you know it well (certainly better than we do). Therefore, have someone who is not familiar with the case read your brief before filing it and tell you in all candor whether it is understandable.

Finally, edit and proof your brief thoroughly before filing it. We see far too many typos, and a subsequently filed errata sheet cannot undo the first impression.

How do you prepare for oral argument in civil appeals? I prepare the same way for any argument, civil or criminal. I read and summarize in writing every brief that comes into my chambers, including the facts and arguments. Though this takes time, I do this because it is personally important for me to be familiar with the facts and the parties’ positions. I also review the cases cited by the parties and always do independent research to ensure that I locate any additional relevant cases that were not included in the briefs.

Additionally, I request bench memos from my law clerks on cases that are particularly complex or controversial, or involve an area of law that I am not clear on. Because I want my law clerks to know what concerns I have, I always make these requests after reviewing the briefs and completing my summaries. I then review each case with my law clerks, explain the issues as I see them, and try to answer any questions that may arise. This way, I feel comfortable about engaging counsel at oral argument.

What are the biggest pitfalls attorneys should avoid when arguing before the Tenth Circuit? Avoid reading briefs to the court, refusing to answer a question when asked, being any less than thoroughly knowledgeable about your record, and evading or hiding a bad fact or case.

When preparing a case for oral argument, develop a theme and urge your most important point first (if the panel is active, it may be your only chance). My experience is that appellate judges are very well-prepared and understand the facts, so get to the point and try to make your argument engaging.

What do you appreciate most about serving on the Tenth Circuit, and why? I admire all of my colleagues, past and present. Although we hale from different states and backgrounds, all of us are seeking the same goal, namely to correctly resolve the cases that come before us. I have learned different lessons from each — to be thorough and prompt, when to dissent (where your indignation overcomes your inertia), and to have a sense of humor. They have also taught me that there is more to being a judge than merely deciding cases. In that regard, in my view, every judge or court has an obligation to assist in improving the skills of new and experienced counsel. I personally believe this is just as critical as deciding cases and authoring opinions.

I also admire our district court judges. I sit by designation as a district court judge and have a small trial docket in addition to my circuit caseload. It is not an easy job, and it calls for good case management skills, in addition to patience, restraint, humility, and great care.