Hudson: We must constantly take stock of the justice system

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Justice Natalie Hudson joined the Minnesota Supreme Court in November as the third African-American justice on the court and the second to be appointed by Gov. Mark Dayton. She started out at Southern Minnesota Legal Services, then went to Robins Kaplan, then was the first dean of students at Hamline University School of Law, then was the city attorney under St. Paul Mayor Jim Scheibel, and then an appellate attorney at the attorney general’s office. It’s not that she can’t hold down a job, it’s that she is in great demand. Hudson met recently with Minnesota Lawyer Editor Barbara Jones. The interview has been edited for length and clarity.

Minnesota Lawyer: You have a very varied background. Nobody can say you don’t bring a lot of different experiences to the court. You started off at legal aid.

Hudson: Yes, I did mostly housing law, mostly bench trials on evictions. It gave me the comfort of being in court and speaking to the judges, and that’s priceless. The director of Southern Minnesota Regional Legal Services, Bruce Beneke, was an important mentor to me in the formative years of my career.

ML: How do you think that informed your career as an appellate judge?

Hudson: You know what it takes to put together a solid argument [including] the brief writing which is so important. A well-written brief is a jewel. I know what I’m looking for in a brief — clear, concise writing, honesty and candor to the court. I am always very unhappy when I get into a brief and I can see that the attorneys are cherry-picking. [You see that] more than you might think. When I get a brief I look to see who wrote it, because you see a lot of the same people. I know if I see certain names this is going to be a straight shoot.

If you get into some of these specialty areas, you need to educate us a little bit and place the legal issue in some context. We had a tax case and both the parties and their amici spent a little bit of time saying, “Here is the world you have now entered.”

ML: What if you are just not a good writer? How bad is a bad brief?

It’s important. If you are going to step out and do appellate work, it behooves you to have someone look at that brief. Sometimes it helps to have someone who is familiar with the area and someone who is a little less familiar. You can become a better brief writer and sometimes that’s a matter of reading good briefs.

ML: Do you have any other tips about appellate advocacy for lawyers?

Know the record and know it cold. Make sure you know the applicable case law and whether anything negative has happened to the cases you’re relying on. It is very frustrating for the court to want to know where we can find a particular fact or something in the record and you don’t know that. You need to know that. You obviously will help your client if you can point us to where in the record we can find the facts to support your position.

Many times the procedural history is important in terms of how this case got where it is and why. Sometimes attorneys are not as familiar with that as they should be.

I think particularly here on the Supreme Court where we’re being asked to extend the law or clarify the law or develop a new law it really helps to have thought through the logical extension of your argument. How far does it go? One of the things we’re concerned about is the future application. What are the ramifications of your position? Does it open some other doors that we may or may not want to open and if it does, walk us through those doors and how that’s going to play out. Is this going to be realistic for the district court and practitioners?

Also, understand basic oral advocacy. You’d be surprised how often attorneys will talk for four or five minutes about pleasantries.  [Former Chief Justice] Eric Magnuson used to say, and he’s absolutely right, have a point and make it, and make it pretty soon because you don’t know when you’re going to be able to get back to it. We’re concerned about what some judges call the “fault lines” — where an argument potentially breaks down. So oftentimes the questions will go right to that. [If you’ve got a bad case say] “this case doesn’t help us but here’s why I win anyway.”

ML: What I’ve heard Magnuson say is, “Tell me what you want me to do.”

Hudson: Yes, tell me what you want me to do and why and how I can get there, particularly if you’ve got the weaker argument or the high standard of review. Good appellate lawyers recognize that [the standard of review] is the lens through which we look at that issue.

ML: What advice do you have for law students who would like to clerk at the appellate courts?

Hudson: Grades are obviously very important but not the be-all and end-all. I am looking for good analytical skills and good writing skills. That’s our bread and butter. If you can prove to me either through recommendations from faculty or work on a journal or some other work you have done that you have the analytical skills and the writing skills I’m maybe willing to dip a little lower on the grades.

I’m also looking for someone who’s well-rounded. I know it sounds like a cliché but it’s true for me and I think it’s true for most judges. I want to know who you are apart from the law and what you’re doing beyond yourself in terms of helping somebody else. I give that quite a bit of weight.

The other thing law students may not know about the appellate courts, especially the Supreme Court, is that it is such an intimate working environment. Some of it is just, [does this person] fit? They can work with me day in and day out and also with my judicial assistant. You’re looking for some people skills.

ML: Your father was the head football coach at Macalester College from 1971 to 1975. As a litigator, you win some and you lose some. What did you learn about losing from your dad?

Hudson: He was an outstanding coach. He didn’t necessarily have all that he needed to do the job at Macalester; it’s not known for its football prowess. My dad was a hard worker, he never gave up. He came to every game with his heart and gave it everything he had. I said this at my investiture, he always said, “Prior preparation prevents poor performance.” In the face of some terrible odds, some discrimination at the time and a whole host of other things, he would still go back and dissect the game. He was also about instilling character and how you conduct yourself whether you win or lose.
ML: I was shocked to read that at Minneapolis Central and Macalester, white players and staff quit when your dad became a coach.

Hudson: He obviously was hurt by that, but my dad was resilient. He went out and found coaches. He did not talk about it; he was a doer.

ML: In your letter to the governor you said it’s not just the reality of justice that matters, it is also the perception of justice. How are we doing on that?

Hudson: I think we’re doing well. There is always progress to be made. The additional funding that the legislature provided to civil legal services and the public defenders is key. The growth of the various self-help clinics and self-help work stations across the state is so fundamental. The [MSBA] appellate practice section has a defense clinic as well.

ML: That’s the reality. What about the perception? What do communities of color think?

I think on the access front the communities of color see the effort that is being made. The judiciary started the committee for equality and justice, a working group of about 30 justice partners. They are trying to look at implicit bias throughout the system. That committee has been sponsoring listening sessions among various communities of color and judges and other court personnel. The whole point is to give folks an opportunity to come in and say, “I don’t understand why this happens.” I think those are hugely important and tremendously valuable.

The committee has created an “Implicit Bias Report Card.” I think it is more critical for district court judges, but one of the things it talks about is the importance of a judge doing a self-assessment. “Am I treating this person standing in front of me differently than I would someone else? What would happen if this person were a different ethnicity or race, would I be handling it in the same fashion? If I look back at my sentencing record, do I see some bias?”

You have to recognize that in terms of the criminal justice system there are many players that exercise discretion in terms of how they do what they do.

I think the perception is that the justice system is accessible. I think there is a perception that it is not always fair. It is incumbent on all the players in that system to be constantly taking stock of how we do what we do.

It’s never going to be perfect but I think that as long as we players in the system put mechanisms into place that force us to look at our implicit biases we go a long way towards eradicating those kinds of problems.