Judge David Ebel Q&A

Judge David M. Ebel shares his stories as a lawyer and a judge. He also tells about the call he received from President Reagan asking him to accept the position as  a Court of Appeals Judge for the Tenth Circuit.  
 

Transcript

Judge David Ebel Q&A

March 20, 2022

SUMMARY KEYWORDS

judge, case, 10th, clerks, lawyer, thought, circuit, bankruptcy judge, Denver, Ebel, statute, clients, called, job, stories, told, rehearing, criteria, law clerks, offer

SPEAKERS

Leah C. Schwartz, Tina Howell, Judge Ebel

Leah C. Schwartz  00:09

Hello and welcome to tales from the 10th a podcast about the rich history, culture and contributions of the 10th circuit courts. I'm your host Leah Schwartz, a Wyoming lawyer and former 10th circuit law clerk, and I'm producer Tina Howell, the Emerging Technologies Librarian for the 10th circuit.  On today's Q&A episode, we interview a significant 10th circuit figure about his career. Our guest is David M. Ebel, senior judge for the US Court of Appeals for the 10th Circuit. Born in Wichita, Kansas, Judge Ebel attended Northwestern University and later received his law degree from the University of Michigan. He clerked for US Supreme Court Justice Byron White and practiced in Denver with the firm of Davis Graham and Stubbs for many years before becoming a law professor at the University of Denver and a senior lecturer at Duke University. Today, he shares stories about his path to becoming a lawyer and leader a judge following his nomination to the 10th Circuit in 1998, by President Ronald Reagan, he reflects on his experiences, significant paces, and lessons learned. So, to start out, Judge, I wanted to ask you a few questions about you if that's okay. 

Judge Ebel  01:23

All right. 

Leah C. Schwartz  01:25

How did you end up in Colorado?

Judge Ebel  01:27

Well, after college, and then law school and college at Northwestern University in Chicago, and then law school at the University of Michigan, I had married my wife, Gail, and then was selected in my third year to clerk for justice Byron White of the Supreme Court, as you obviously know, I wouldn't be here talking to you. At the end of that year, we knew we could pretty much go wherever we wanted. But you only had one choice, you only had one crack at it, because after that, you would get clients and you'd kind of get roots down and you wouldn't have the flexibility and mobility anymore. So, we wanted to be very careful about where we selected, we picked 10 criteria of what we thought would be good indicia of a nice place to live, then we picked 10 cities that we thought would be good, credible places to live. The criteria, we thought for happiness that I could get data from the Library of Congress, because we didn't have computers back in those days, of course, average age of the populace, because I wanted a young population, the average education level, crime rate for obvious reasons, divorce rate, because I thought it mimicked how happy people tended to be. We had 10 criteria and ranked the cities and agreed we would go whichever city ranked top and Denver on each criterion usually it was in the top four or five, and it to me leave was the best. So here we are.

Leah C. Schwartz  02:48

That is amazing. I did not expect an answer wit that much research going into it. And have you been happy with your choice?

Judge Ebel  02:56

We have. We have never found a city we like better than Denver. We've traveled all over America and many places in the world and never found the city we like better than Denver.

Leah C. Schwartz  03:06

That's wonderful. How and why did you become a judge?

Judge Ebel  03:10

Everybody assumed I would be a lawyer. There were no lawyers in my family. But I was obviously liked to argue, and I thought being a trial lawyer would be pretty awesome. I took the exams. And by then in my senior year at Northwestern, I had met my wife, Gail, and we had only been dating for three months when the college was over, she was going to teach in Chicago. And I knew I didn't want anybody to step in on on my interest in her. So, I only applied to really two law schools to Stanford and Michigan. And I got into both schools and decided Michigan was a whole lot closer to Gale in Chicago, chose Michigan. So, I would say my choice there was a matter of heart.

Leah C. Schwartz  03:52

Yes, absolutely. So, after you became a lawyer, you practiced in private practice for many years, of course...

Judge Ebel  04:00

Yes. 

Leah C. Schwartz  04:01

Or in Denver. But then how did you decide to become a Judge? And what was that evolution?

Judge Ebel  04:08

I had always thought I wanted to be a judge, because you can't clerk for Justice White at the Supreme Court did not have that idea popped in your head? So, over the years, I would say, "Gosh, one of these days I'm going to apply for a Judgeship." And Gail told me that she thought I should do that. When the district court judges called me in after I'd practiced about eight years or 10, all the federal district judges were there, and they said we want to ask you to be our new bankruptcy judge. And I said why? And they said, well, because Judge Matsch was our bankruptcy Judge and he got elevated to the to the district court. We think that same route is available for you. And we'd like you ultimately to be our colleague and would like you to be a bankruptcy judge. And so, I was so excited. I called my dad and said, "Dad, can you believe it? They've asked me just a young punk to be their bankruptcy judge," and dad had just one question for me. "Do you like bankruptcy Law?" And I say, "no, no, I had a bankruptcy case. I don't want to do that." Dad said, "You take that job..." I said, "But it'll lead to, it'll lead to a district judgeship they thought." Dad said, "If you take that job, you will not like it. As you've said, you will do poorly. Nobody will like your work. And that will be the end of everything for you, you'll be in a dead-end road." So, I turned it down.  Then, about eight years later, a federal district job opened. And once again, they contacted me. And this time it was the White House that contacted me. And they said, "We want to nominate you..." I went back and got interviewed and vetted. And they said, "We now offer you the job on the federal district court." It was my lifetime goal. But I said, "Well, give me a week to talk to the other judges and see if that's where I'm best suited." So, I took the week talked to each of the other judges, and at the end decided that it wasn't the perfect fit. I would have enjoyed it, but it wasn't my perfect fit. And so, I turned it down. And they were furious. They said, "Nobody has ever turned down an offer for a district judgeship after you've gone through the vetting process and wasted all of our time. What do you want?" And I said, "Well, I'd like to be on the court of appeals." They told me that was now not a realistic option anymore because I was completely on their blacklist.  So, I came back decided to run for Attorney General position. I thought I'd pursue a political career -- an opening on the 10th circuit occurred. President Reagan nominated two other people-- and both times the Senate rejected them. Incredibly! And then he was nearing the end of his term, his second term, and the Senate had become democratic. So now Reagan, a conservative Republican, had to appease the majority of the Democrats. And so, one day, I got a call I was in Colorado Springs. They came rushing to me in a meeting and said, "You got to go out to the payphone out in the lobby," because that's all there were no cell phones. And they said, "the White House is calling." And I got to the phone they said, "Standby for President Reagan." And it was about a thirty second conversation. The entire conversation was, "David, this is Ron Reagan." I said, "Well, Mr. President, what an honor." And he said, "As you know, David, there's an opening on the 10th Circuit Court of Appeals." I said, "I understand that Mr. President." he said, "You know, David, you're not my first choice for that position." I said, "I do understand that." And he said, "In fact, David, you weren't even my second choice for that position." I said, "I understand that too." He said, "But apparently you're the only person I can get confirmed by the US Senate. Would you please take the position?" I told him I would. He thanked me and hung up. And that was the extent of the conversation. I got confirmed within maybe a 20-minute session of the Senate unanimously. The rest is history.

Leah C. Schwartz  07:49

The rest is history. That is incredible. Well, you obviously didn't offend them too much. They kept calling. Wow!

Judge Ebel  07:56

Well, I had but at that point, we had Senator Armstrong, the Republican senator and Senator Tim Wirth, the Democratic senator, so I had to be the top or near the top choice of both of those senators, which I was I'm told, and that can helped pave the way.

Leah C. Schwartz  08:12

What's your favorite thing about being a judge?

Judge Ebel  08:15

Intellectually, my favorite thing is just being able to grapple every day with exciting, hard issues. And I keep scratching my head and saying, why are they asking me these questions? Why do they think I know the answer? And of course, I don't, I don't. But the lawyers know the answers. So, all I have to do is choose between options, which is a whole lot easier than coming up with the idea on your own. Plus, I have very smart law clerks, plus the fact I have very smart colleagues, judges. And so, I read the briefs, I talk to my colleagues, I talk to the clerks I go back and forth most cases I, during studying for it, I will decide I'm going to affirm and then No, no, I'm going to reverse and then No, no, I'm going to affirm and then what the heck do I do next? But eventually, it all comes to a clarity. So, I love that back and forth the intellectual engagement. I love dealing with my clerks who are just wonderful people and go on to do magnificent things. I love the public service of it, where I'm not beholden to anyone. All in all, it is truly for me, I could not have had a better fit than this particular job. Yeah, but I've always had an itch having turned down the trial court. And so, I, after I became 65, I started taking a regular draw on the federal district court as well. And so, I've tried many cases now both the jury trial and trials to the court in Colorado, and I've got a big case pending now in Utah as well. And I've had cases in Oklahoma and other places. And so, I really enjoying now being a part time district judge, so things come full circle.

Leah C. Schwartz  09:52

Absolutely. What is your least favorite thing about being a Judge if there is one?

Judge Ebel  09:58

Well probably the relentless work. After I took SR status, I kept 100% draw on the circuit court, but I also added about a 20% draw on the District Court. And I added sitting with three other circuits. So I was that about 160% or so of a full-time judge. It’s pretty relentless. I think maybe six or 700 pages of writing come through my desk every day. And I obviously can't read all of that. But I can read what I have to read, my clerks helped me sort it out. You obviously read all the briefs, seven or 800 pages includes the record opinions from other judges, precedent and all those things. So, you figured out well, eventually, you know, a lot of that precedent, you trust your clerks to help you find the important parts of the record. So, you don't need to read the whole record yourself. And you figure out ways to be smarter.

Leah C. Schwartz  10:49

Outside of being a judge, what do you most enjoy doing?

Judge Ebel  10:53

I'm kind of like the Platte River, a mile wide and an inch deep, I actually made quite a conscious decision on that, at one point to really dig down deep and become a super expert in something or just love everything. And I chose the latter is really my personality. And so, I like everything. And every Thursday, my clerks and I have lunch where we cannot talk about the law, we have to talk about something other than the law. And we've done everything from Barbie dolls and fashion to Japanese fighting kites to railroads, everything you can imagine; history, countries where we try to go out and eat at a cuisine appropriate to that country. It’s just a potpourri of of interesting things that these smart law clerks give me an access into that I'm I love and I, I admire them, and I couldn't do anything like I am doing without their help and without my colleagues.

Leah C. Schwartz  11:46

How would your colleagues on the bench describe you do you think Judge?

Judge Ebel  11:49

I think thoughtful and well prepared? I think that because when I came on the bench, I got some comments about that. People said that this is a kind of a different approach than we're used to just in terms of the detail of preparation. I think I'm perceived as a moderate. And I love it when I'm sitting with in other circuits like the ninth which has some very strong liberals and restaurant conservatives, I'm often the moderate in the middle, and therefore I, my vote usually is the controlling vote. But I would say to describe me as a moderate, very hardworking, very detailed, and I believe they would say almost always accurate.  Twice, I thought I made a mistake. In both cases, I sought out the lawyer from years earlier. When I came aware of the fact, I thought I ruled wrong and told them in both cases, it was too late at that point to get a rehearing. But I said maybe you will find an occasion when we rule on a similar issue in the future. One time I actually we did get a similar case. And I petitioned I mean I joined the petition for rehearing to overturn my prior precedent. The other case, I told the lawyer, "If you find another case that comes up on this issue, please ask us to revisit our precedent." I'm sure I've made many more mistakes than that. But those two I'm aware of and my job isn’t right in the first place. My job is to be right at the end.

Leah C. Schwartz  13:12

I've never heard of a judge going out of his way to apologize about a ruling or acknowledge that.

Judge Ebel  13:19

We all have occasions to do that. And I sure didn't take this job to hurt somebody to make a wrong decision that certainly was not in my job description when I took the job.

Leah C. Schwartz  13:31

Do any particular cases, Judge standout to you in the course of your career?

Judge Ebel  13:36

Lots of them, I'll just give you only one example. One of the cases I'm most proud about is the case that I was not shown as the author. It was a case that the 10th circuit, so disliked, that they spontaneously sua sponte en banced it and reverse this seven to three, and the only three judges that voted our way were the three on the panel. I wrote the opinion. But we had another judge assigned to author it because it was a very politically charged opinion. And that Judge we thought could deliver this bitter message better than I and a moderate or my panel, third panel member who was identified on the other spectrum. So, we had both bookends and me in the middle. But we thought this was a case that one bookend was against that bookend’s views, and that if that judge wrote the opinion, it would be more acceptable. It was called US v. Singleton, a very short-lived case you'll see immediately reverse. There's a statute that said it is illegal to offer anything of value for someone's testimony, anything of value. So, we had a guy who petitioned a habeas federal court. He had been convicted on the testimony of a coconspirator and they flipped the coconspirator by offering him a sweet plea deal, where he only served a few years, the defendant that was before us for many years, he said, to get a plea on the promise that you'll get eight years off of your jail sentence is certainly something of value. We agreed, isn't it isn't eight or 10 years of your freedom as valuable as a few dollars in your pocket? And so, we said, we're not ruling constitutionally. It's just a statute. If we're wrong, Congress can change it. But oh, my gosh, the legal world went, I can't use a stronger descriptive, but the US Attorneys all over America, were furious at it. And because I can't use the confession of a coconspirator. Thank you, Judge Ebel and the other panel members, the society owes you a great debt. And then a week later, I mean, another US Attorney elsewhere, we do it. The drumbeat was amazing. My mail was amazing. And I said, if you don't like it, Congress's change the bloody statute, but how can I with good conscious say that years of your life isn't of value . Anyway, I think the case was right. I think we showed integrity. I think we stood up well to the political fire of it. And it all went down into a flaming defeat.

Leah C. Schwartz  16:22

Wow. So did the statutory language change? In the end?

Judge Ebel  16:26

It didn't, I followed the case for a couple of years after that it has not change.

Leah C. Schwartz  16:31

Fascinating, who are the people Judge who have meant the most to you, just with respect to your professional life as a lawyer and judge?

Judge Ebel  16:38

As a lawyer was Bob Harry, who was the litigation partners senior partner, at Davis Graham and Stubbs. He taught me one thing, being a litigator is telling a story. And that made all the difference to my success as a litigator because I always tried to tell a story. Sometimes, I've even had the clients opposing me at the end, when I had won the case, come up to me and say, if we get another case, we'd like to hire you, because we finally understood your story when you gave the closing argument. And before that, we just thought from our lawyers that it was all the questions of burden of proof and this statute and that statute but is not it's about stories. And if you look at at the Old Testament, if you look at fables, Aesop's Fables, if you look at fairy tales, every message is delivered with stories, not with pomposity, and three-point tests. And so, he taught me to be a storyteller, it made all the difference in the world to me.

Leah C. Schwartz  17:38

Incredible. It's a good model for our podcast, then isn't a judge. We're just talking about stories here. Who has meant the most to you and your personal life?

Judge Ebel  17:49

Oh, my wife, Gail, we've been married now 58 years.

Leah C. Schwartz  17:53

What advice would you give to young lawyers starting out in the profession?

Judge Ebel  17:56

One of my Thursday lunches with clerks is, Advice that I would give young lawyers starting out in their profession. And I have about 10 things. One surprising piece of advice is, how are you going to be enslaved? Law is hard work. And your partners and the firm are going to want you to work harder, then you want to work, then you should work than any reasonable person could work. How are they going to do it? And every clerk says you're going to be fearful, you fail, you're going to be fearful, you're going to be fired, you're going to lose your job, you're going to lose vacation and be disgraced and say no, no, no, no, that's not the currency they deal with. They don't deal with fear because you are all so good, that you are not legitimately going to be afraid of being fired. It's just not going to happen. You're too good for that. Instead, they've got a more powerful currency, the currency of praise. And they are going to say, David, you are so good, the client absolutely insists on you. You're the only one who can win this case. Oh, really? Oh my gosh, I , I really was hoping to take a vacation with my wife. But my gosh, if they think that highly of me and you think that highly, I guess I have to tell my wife, I will go on vacation. And one day after about 15 years of practice, it hit me like a load of bricks that I was sacrificing too much else, not out of fear, but out of praise. And why should I let somebody control me by the cheap currency of just saying nice things about me? It was one of the most liberating moments of my life. So that's one of about seven or eight things that I would, I tell my clerks is advice I would give young lawyers.

Leah C. Schwartz  19:46

Thank you for that. Judge. That's good for me to hear right now, at this moment in the midst of trial prep.

Judge Ebel  19:51

I see you packing your bags right this very minute. 

Leah C. Schwartz  19:56

Well, I mean, it's hard though, because you know, where do you find the professional satisfaction as a lawyer? You know, it's doing well by your clients doing right by your clients. I think that's the main thing that's different that's distinct from praise and caring what other people think of you.

Judge Ebel  20:13

It is. But you see, you can control that by the number of your clients, you can't control it by the quality once you take the case. What was hitting me was not that I'm going to do each case halfheartedly, or slipshod. But rather, why do I need to keep taking more and more and more cases? And the first times after this epiphany came to me, and the first time the firm came to me and said, we've got a new client just coming in the door, but they only want you. And I said, "I'm sorry, I'm not available." I walked out there, like a load of bricks had been lifted off my back. Because when I do take a case, you have to give it all because somebody is trusting you. How can you say to somebody, you've trusted me with the most important event in your life? I'm sorry, I'm going to go fishing today. I'm not going to get ready for the trial. You couldn't say that? And you wouldn't? Nobody would. So, it's not taking shortcuts with your clients, but it is the same way to say I'm just not going to think this new issue. Let somebody else in the firm do it. And they found people and it all worked out fine. But it was it was an interesting piece of advice because it was counterintuitive to me being a type A person that you want to always achieve you always want more and more isn't more because more chases out other mores. In any event, so I have a list of those things that I get for that's one piece of advice I would give it to be aware of the currency of praise not that you shouldn't seek it. Nothing shouldn't be a criterion when it is being used to bribe you to do things you don't want to do. Say no.

Leah C. Schwartz  21:44

This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website 10th circuit history.org Or at Apple podcasts, Spotify, or Stitcher 

Tina Howell  21:56

Special thanks to Greg Kerwin, Brent Cohen, Stacey Guillon and Diane Bauersfeld. Thanks so much for listening