20 Questions with Jennifer Keller
1. As our 2008 Fall Conference Keynote Speaker in Napa, your speech was not only memorable because of its direct content, but because you challenged the fairness of the status quo. Many people are opposed to a proactive judiciary. What do you view as the appellate courts’ role in American society and should they be active or show restraint?
Most of the outcry against “activist judges” has come from the American right wing, which has been only too eager to install its own activists on the bench and call them strict constructionists. The Roberts court has been the most activist in memory when it comes to dismantling protections for the individual versus corporations, or the criminally accused versus the government. Stare decisis and respect for precedent have gone out the window. And of course the abominable decision of the Rehnquist court in Bush v. Gore stood on its head all existing 14th Amendment jurisprudence -- to reach a purely political result.
That said, restraint on the part of appellate courts is usually admirable, because it is, after all, the legislative branch that is supposed to “make” law. But when interpreting constitutional mandates things get tricky, because what one society or part of society considers fair and reasonable in a given era may be considered pure evil in another (think slavery). The Constitution was not designed to remain static.
As Thomas Jefferson said: “. . . laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
My speech compared the civil rights struggles of racial and religious minorities with the struggle today of gay people for basic human and constitutional rights. Not long ago gays and lesbians were considered mentally ill and unfit to participate in decent society. Progress has caused us to realize the error of those attitudes. So the constitutional question of whether gays and lesbians are entitled to equal protection of the laws must be answered differently today. Is that “judicial activism?” I don’t think so.
2. Your recent verdict of $309 million would be, for most lawyers, a singular career game changer. Have you noticed any changes in your day to day practice since the verdict or have changes simply not occurred yet? What about from a personal standpoint?
After I got a verdict of $350 million on a different case in 2009, I liked to say I was a “31-year overnight sensation.” The Mattel v. MGA case has brought a huge amount of publicity, many case inquiries, offers to speak to bar groups and feelers about joining major law firms. I get ribbed a lot by judges about thousand-dollar bills falling out of my briefcase. But I’m still the same person, with the same values and habits as before; I’ve always marched to my own drummer and will keep doing that. Our little four-lawyer firm, all women, continues to hum along. It is professionally satisfying, though, to prove myself yet again against major law firm partners with big, outsized reputations. To me, a trial is a trial is a trial, and I’m pretty good at them. As for my personal life, no change.
3. If we are able to sell the concept “The Real Trial Lawyers of Orange County,” will you star in it for us? Are you capable of lavish consumerism?
I’m a child of depression-era parents. I box up leftovers at restaurants. I drive a 6-year-old Acura. I won’t buy anything that is not on sale. The ridiculously materialistic side of some Orange Countians grosses me out. I would rather give the money to the symphony, the opera, the Sierra Club, or scholarship funds. So, no.
4. What was your evolution toward litigation, and did it begin before, during or after law school? That is, did you want to be Perry Mason growing up, or did you want to become a trial lawyer after getting out of law school and reading contracts all day long for the first six months of your career?
I went to law school for the specific purpose of becoming a trial attorney and pointed everything toward that. Upon graduating, I wanted to join either a district attorney or public defender’s office and start trying as many cases as I could get my hands on. I was offered a job by both offices but chose to be a PD because I don’t like hurting people – I prefer helping them. I was sworn in on a Friday, tried my first case on Monday -- and won it.
5. What impact do you think the discovery process has had on the number of cases being tried?
Discovery wars are so expensive, frustrating and time-consuming that they have directly contributed to the demise of the civil jury trial.
6. What do you consider your most unusual accomplishment?
I would say that shooting my best round of golf as an adult (a 78), playing with a bunch of guys from the men’s tees, while six months pregnant, and finishing with a hole-in-one . . . cannot be topped.
7. I once practiced with a fantastic, though legendarily difficult trial lawyer named Olin Zeanah. One of my partners, beginning when we were associates, kept a list of “Zeanahisms.” They were little gems of knowledge that Zeanah would occasionally impart. Did you have a trial icon or mentor in your early years of practice who shared with you the wisdom of years of practice? If so, please tell us about them.
I learned a lot from a criminal defense lawyer named Marshall Schulman. Even after decades in practice, with robust business and a stellar reputation, Marshall attended every seminar he could and never stopped asking his colleagues questions. He said if I came away from each seminar with just one good idea, it was worth it.
Tom Crosby, who began his career as a criminal defense attorney and ended it as a distinguished appellate justice, drilled into me that the complete lawyer must have an excellent grasp of the law as well as outstanding trial skills. He certainly had both. I’m not sure I could ever rise to his level but I’ve sure tried.
8. What has been the biggest change in the way law is practiced between the time you first began until now?
The nastiness quotient among lawyers has increased, along with the sending of ever-nastier nasty-grams. Opponents are just less collegial. Maybe it’s part of our wired-up, 24/7 Fox News, polarized world. But it’s too bad.
9. Litigators tend to travel a great deal. What are some of your favorite cities or places, and what fascinates you about them?
I left my heart in San Francisco, where I went to law school. It’s the biggest little city, or smallest big city, around – by which I mean you can get everywhere easily but it has all the amenities of a much larger urban area. (I also have a thing for clean air, great food and progressive politics.) Boston is number two, for some of the same reasons, and because I still get choked up going to the spot where the Declaration of Independence was first read. Both of those places have character; they’re not defined by malls and chains stores. And who doesn’t love New York? Los Angeles has an edginess and energy, combined with a push for health and fitness, you won’t find anywhere else. And as a West Coast girl at heart I like to hang out in San Diego, Seattle and Portland too.
10. Have you ever had a case in which your opposing counsel went over the line ethically in representing their clients’ interests? How did you deal with it?
Yes, and I think anyone who has experienced high-stakes, hard-fought litigation has been there. I’m a fan of the adage that revenge is a dish best eaten cold.
11. Has trial law’s golden age passed or have we yet to reach it? What intrigues you about prior generations of trial lawyers?
We tend to romanticize the past, so it’s tempting to think back to the Clarence Darrow days and imagine them as all soaring rhetoric and noble intentions. I’ll bet the average lawyer then had many of the same shortcomings we see now, although I do think the written and spoken word have become debased in today’s culture. I am astonished all the time by the people I meet who are supposed to be top trial lawyers and turn out to be inarticulate, bumbling speakers.
I am not as intrigued by past generations of lawyers as some people are. I can’t get past the fact that women were all but banned from our profession until recently. Sandra Day O’Connor graduated second in her class at Stanford Law School and couldn’t get a job offer (except as a secretary), which is why she went back to Arizona. When I was going through job interviews during law school (in the late 70s) I had some appalling experiences. So I do not long for the good old days.
12. What is the first thing that comes to mind if I ask, “If you were a judge, what would you do differently from what you deal with most frequently in your practice before presiding jurists?”
I would work a full day (more, actually), take the bench promptly, remember that a little courtesy goes a long way and not treat the job as my personal fiefdom.
13. What is your greatest extravagance?
My house in Corona del Mar, a block from the beach.
14. What object in your office serves to re-energize you when your mood needs an adjustment?
My stereo system (played through the computer) and the contents thereof.
15. If you could meet anyone from history, who would it be, and why?
I’m back to Jefferson. He was such an all-around genius, creative thinker, wide reader, musician, farmer, artist, writer, master of eclectic topics, world traveler, skilled linguist, dreamer and wise man . . . all at such a young age. Yet he had a solid, practical side, with high emotional intelligence and the ability to get along with all kinds of people. He was brilliant, charming, and solid as a rock. It’s quite a combination.
16. Diversity, along with excellence and integrity, is central to the LCA’s mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in the next issue of Litigation Commentary & Review, as well as the Diversity Law Institute's new website. So in a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
Our strength as a nation and as a profession is in embracing and learning from the widest possible spectrum of people, backgrounds, races, religions, cultures and nations.
17. What trait do you most value in your friends?
18. What is your motto?
“Don’t look back – something might be gaining on you.” (Satchel Paige)
19. Do you read legal fiction? Which author in particular do you think nails the practice of law more closely than anyone else does?
I don’t read legal fiction. It could never compare to what I’ve experienced in real life.
20. Fifty years ago, there were few women lawyers celebrated by legal honorary societies in North America. Without a doubt, times have changed for the better. Women and minorities are now counted among the best trial and appellate lawyers in the bar. Notwithstanding such growth in recognition, what hurdles do you still see that are yet to be cleared by women and minorities in the profession?
My business clients tell me that women are far more accepted in our profession than in the boardroom. Time and again I’ve had a man tell me that I wouldn’t believe the kinds of negative, sexist things that are routinely bandied about in that setting. As long as we need to develop clients from the pool of CEOs, CFO, male GCs and other highly placed business executives, there will be silent, hidden hurdles for us all. My personal solution is to hone my golf game.
By G. Steven Henry