Jeff Lewis: Welcome, everyone. I am Jeff Lewis.

Tim Kowal: No, Jeff, we have two guests today that I'm excited to talk about. Now, trial courts are where cases are decided, but the appellate courts are where law is made. And Rebecca Powell and Curt Cutting direct the Ninth Circuit Appellate Advocacy Clinic at Pepperdine Caruso School of Law. And the Pepperdine Clinic is one of the more unusual law school clinics in the country because students don't just assist on Ninth Circuit appeals. They handle them from record to podium. And we're gonna talk to Curt and Becca about the structure of that clinic and talk about some of the cases and the law that's been made through that exciting clinic. Curt has been handling civil appeals at Horvitz & Levy for 30 years. He graduated magna cum laude from Seattle University School of Law and then clerked for the legendary Ruggero Aldisert of the U.S. Court of Appeals for the Third Circuit. In his time at Horvitz, he has briefed and argued cases before nearly every district and division of the California Court of Appeal, in the California Supreme Court, the Ninth Circuit, and the Supreme Court of Guam. For nearly 20 years, he's been the primary author of the California Punitive Damages blog, a very popular blog in California, providing commentary on punitive damages litigation and appellate practice for various media outlets, including Bloomberg, the National Law Journal, the Daily Journal, and the Associated Press. Curt is an adjunct professor at Pepperdine Caruso School of Law, where he teaches the Ninth Circuit Clinic, along with co-guest Rebecca Powell. Becca is a prominent California appellate attorney. She attended BYU Law School, after which she clerked first on the Utah Supreme Court and then on the Ninth Circuit Court of Appeals. After her appellate clerkship, she spent a few years practicing general litigation at Covington & Burling in Los Angeles before joining Horvitz in 2020. And since then, she's argued more than a dozen appeals for a wide variety of clients on a range of issues, including contract, personal injury, class action, and products liability. She maintains an active pro bono practice, including running the clinic, which we will talk about now. So Curt and Rebecca, thank you for joining us. Jeremy Rosen told us about having launched this clinic back in 2013, and within a year, two students had published a reversal for a California prisoner challenging indefinite solitary confinement. And the clinic made law that many of our listeners cite. There's published Ninth Circuit opinions coming out of the clinic on section 1983 cases, free exercise, and in the King versus Villegas case, it's currently pending before an en banc panel. The Ninth Circuit could decide whether a no-contest plea bars a civil claim across the circuit. So anyone who sues or defends police officers, prisons, or public entities in federal court in California will live with the ruling that came out of the Pepperdine Clinic. So first, Curt, a question for you on a matter of principle. Most law school clinics run with the professor as the lead lawyer, with students assisting, but the Caruso clinic at Pepperdine flips that model. I wonder if you could talk a little bit more about why the clinic is structured that way and how you make that work?

Curt Cutting: Yeah, I think that's actually one of the great things about this clinic is that it gives the students the opportunity to really be real lawyers on their cases and handle the case as they would as a lead lawyer in practice. I think it that's actually impossible for most clinics to do because in litigation you can't have a case that runs on an academic schedule and that can be neatly wrapped up in two semesters, which is what we do in our clinic. The students are in the class for two consecutive semesters. And the reason we're able to pull that off is in large part due to the Ninth Circuit's Pro Bono program and their pro bono coordinator, that they help all the law school clinics within the Ninth Circuit by putting our cases on a track where the oral argument happens at the end of the second semester or right before the students are done. That's it's a very accelerated path for an appeal because normally a Ninth Circuit appeal might take a year and a half, two years, and ours are being done in two academic semesters. So it puts a lot of time pressure on us and on the students to get it done that quickly, but it's a great opportunity for them to actually really experience every aspect of the case and have personal responsibility for representing their clients. As opposed to many other clinics where the professor is really handling the case and the students are research assistants, or they may do part of the drafting, and maybe one of them gets to argue at the end of the day. But here we have a team of two students assigned to each one of our cases, and they have it from beginning to end, from reviewing the record, issue spotting, writing the briefs, and ultimately appearing in the Ninth Circuit and arguing the case.

Tim Kowal: You said that the Ninth Circuit clerks and panels are working in concert to try to get those oral arguments set before the end of the second semester. So does that mean that if you look at the dockets, you'll see a lot of the law school clinics being calendared in April, May, June?

Curt Cutting: Yes. When we select a case at the outset, when we are first getting involved, there's a target date for argument when we've picked the case. And so the case has to stay on schedule. There are no extensions permitted in these cases. With very rare exceptions, maybe a week or two can be extended on a brief. But if there are any extensions beyond that, it would cause the argument to be delayed. And that doesn't work for the clinics. And the Ninth Circuit values having these clinics handle cases for unrepresented litigants. So they want to make it easy for us to do this. So it works out great.

Tim Kowal: Is that a factor then for appellees who are seeking extensions? Are they going to be more likely to be denied in order to stay on track?

Curt Cutting: Yeah. The court issues an order informing both sides that there will be no extensions. Sometimes we find our opposing counsel don't pay much attention to that order, and they'll apply for an extension anyway. Or they'll ask us if we'll agree to an extension. Let opposing counsel out an extension unless we've consulted with the court about that and they approved.

Tim Kowal: Becca, under I think the Ninth Circuit Rule 46-4 says that the supervising attorney signs all the filings and takes the professional responsibility duties for the student's work and appears with the student at argument. Where is the line? How do you draw that line between allowing the student to be effectively the lead counsel and giving the student the pen in drafting the brief and maybe even appearing at oral argument? What, where do you, when do you hold the reins? And do you ever find yourself having to overrule a student if a student wants to take a different, maybe more creative position or a different tack at oral argument? Do you ever, you ever had to have to rein in a student?

Rebecca Powell: I don't know if we've ever had to overrule a student. We have a really good system of making sure that we're on the same page with the students throughout the semester. We're meeting with them multiple times a week to talk about the issues that they're finding, the legal research that they're doing, and to help them develop the case at every stage. And we also have them draft the brief in stages. For example, they'll do an outline of the legal argument first, which we'll provide edits on, and then they'll do the statement of the case, and we'll provide edits. And so it's a very iterative process. So we don't usually get to a situation where we're down to the wire, and we have an irreconcilable difference. So we really try to have the students take the lead in that they're the ones who have read every page of the record and gone down all of the research rabbit holes. But we're sort of there as a backstop and a safety net to look at those key portions of the record and talk through them with them, and look at the key cases. But they're the lead attorney in that they're doing all of that day-to-day work. But at the end of the day, yeah, Curt and I and our firm's name is on all of their briefs, and we want them to be Horvitz & Levy quality briefs. So that sometimes means more rounds of editing than you might do with an associate who's briefed an appeal before, or a heavier edit depending on how much time is left before the deadline. So it's definitely a process to make sure that they have a lot of responsibility, but at the end of the day it's a brief that we can all be proud of and very comfortable signing.

Tim Kowal: You mentioned there might be more oversight and more iterations of the briefing process with a law student than there would be with maybe like a third-year associate, and at your firm at Horvitz, obviously you do all appellate work. And I think all of your attorneys there have come in, I think, with some manner of appellate experience. So are there lessons here for attorneys who, if you were talking to a solo appellate attorney who was making their first hire of a junior associate who's never drafted an appellate brief, is their experience gonna be largely the same as what as yours is, giving tutelage to these law students who were writing their first appellate briefs and giving their first appellate oral arguments?

Rebecca Powell: Probably, yeah. And I think that the lessons to be learned are build in a lot of time to go back and forth and answer questions and see interim briefs and really make sure that everyone is on the same page throughout the entire process. I think we would be unhappy if we sort of waited until a few weeks before the deadline to see one draft that we didn't know what was gonna be in it and then had to scramble. So I think that's something that any practitioner working with somebody who doesn't have a lot of appellate experience could work into their processes, put in a lot of time and iteration.

Curt Cutting: One additional challenge with students, even compared to a green associate doing a brief, is that we have students who may not have taken evidence yet, or they may not have taken the substantive class that relates to the appeal they're handling. So that's, they're not only learning how to write an appellate brief, but they're also learning the substantive and procedural law for the first time often when they handle these cases. That would probably be a little different for your third-year associate. Hopefully they've had experience by that point.

Tim Kowal: Right. So there's probably a lot of work on your end to look out for preservation issues and look out for record issues because that takes a lot more experience to be able to spot those kinds of pitfalls. I assume that when you hand it over to one of your law students, you're giving them the substantive issues to sink their teeth into, and kind of helping to watch their back so they're not going to fall down one of these waiver or forfeiture pitfalls.

Rebecca Powell: Right. Definitely. Yeah, we definitely try to do that. And there's also a lot of discussions ongoing about key portions of appellate procedure that are not always obvious to a newbie. For example, needing to show prejudice. We have a lot of cases sometimes where our students will be combing through the record and they'll find early orders that feel totally unfair or wrong for a lot of reasons, and they'll say, "Well, can we raise this as an issue?" And we absolutely want them to be thinking creatively and keeping an open mind about issues, but then we have to talk through, well, let's talk about what prejudice is or what harmless error is and if we can make a prejudice argument. And sometimes those concepts are things that they haven't heard about before. And same with preservation and waiver. So it requires a lot of sort of discussion of the basics like that.

Tim Kowal: So these students get to take on high-profile Ninth Circuit appeals. And that's the opposite of just how it works just about anywhere else in law, where junior associates have to pay their dues and work their way up the ladder before they get to see the inside of a courtroom, let alone the inside of an appellate courtroom. What insights has the clinic given you on what kind of work that new associates can handle? Because that can be difficult, especially in appellate practice, to hand things over to a junior associate. But you've now worked with a lot of law students who have, you mentioned, haven't even taken evidence class yet, and yet they're able to help shepherd, provide substantive value in shepherding some of these cases to Ninth Circuit precedent.

Curt Cutting: Well, in terms of getting to actually go inside the courtroom and do the argument, I think the clinic has actually validated a practice that our firm's had for a long time where we generally do have our associates present oral argument in the case in which they've been the lead attorney because they're the ones who are most familiar with the record and the cases and they're in a better position to answer the court's questions. And the clinic has kind of confirmed that, even with law students who are learning all of this for the first time. By the time they get to the end of this process, and we've been through all of these classroom discussions, and we've done all the back-and-forth editing of the parts of the draft, and we do a lot of moot courts with them, they do really well at these oral arguments. I mean, they're consistently among the top oral argument performances that you'll see if you go sit in the Ninth Circuit and watch a bunch of arguments, even with experienced practitioners; even like very inexperienced and green students can get there, and they ultimately are able to do the best job of answering the court's questions because they spent so much time living with this case. They know it inside and out in a way that it would be hard for us to do if we were to take over the argument at the end of the case. We'd have to go back and relive everything that they did in order to be able to answer all of those types of detailed questions.

Tim Kowal: Becca, can you take us through maybe the initial stage of one of these cases? You say that the Ninth Circuit's pro bono program helps to surface these issues that raise new legal questions; sometimes they're more complex than usual, and need more briefing or argument. So the Ninth Circuit is helping to surface these kinds of cases that need pro bono counsel. How many of these cases are you getting at a time? How many are you reviewing? And what kinds of things are you looking for to determine if it's a good candidate? I think Curt mentioned that one of the things you're looking for is, is it gonna work on the two-semester timeline? What other kinds of criteria?

Rebecca Powell: Right, so the court's pro bono coordinator every semester says, in this next semester, do you want to have a case? And we say yes. And so what she does is she compiles a list of cases in which there has been a motion to appoint pro bono counsel that has been granted, or the court inclined to appoint pro bono counsel even without a motion. And so we probably, I would say, get between six and a dozen options when we get those. And it's a little interesting because we have essentially a twenty-four-hour window in which to choose our case, because each clinic that's in the Ninth Circuit's program has like twenty-four hours to choose a case, and then the cases that are left then go to the next clinic, and it's a random draw. So they have to keep giving the options to the next clinic.

Tim Kowal: So you only get a twenty-four-hour period in which to review this slate of cases.

Rebecca Powell: Right, so it's a little bit of a scramble to look up the district court order on PACER and try to read, if there's already, sometimes there's already been pro se briefing, take a look at that, see what the issues are. There's usually a little blurb saying what the case is about, and some staff attorney may have noted that there's this particular legal issue or something like that. But we kind of have to give a look at what seems manageable. Like, for example, if there was a case with a six-week trial, that record's gonna be huge. That's not gonna be manageable for our students. But something like a motion to dismiss or summary judgment is probably more appropriate. We're looking for issues that seem legally interesting and meaty that they can sink their teeth into. We have students arguing a case in November that's a totally open question in the Ninth Circuit. The district courts are split all over the place, and it's an issue of first impression. So that was a really good pick. And then we're also, like you said, looking for preservation issues. Sometimes we see something that, like, ugh, this seems like clearly there might have been something here, but there's a big forfeiture issue that's just glaring out of the record. Or sometimes there are cases where a pro se litigant has had multiple attorneys withdraw, and that's also sort of a red flag just for client relationship purposes and things like that. So those are all the considerations we're juggling in that twenty-four-hour period when we're looking at a bunch of cases and seeing which one we wanted dibs on for our clinic.

Tim Kowal: I have to ask, and you may wince at this question, but have you ever considered running these slates of cases through AI to help filter out some of those issues and at least find the ones that are definitely gonna be no's?

Rebecca Powell: We haven't, but I suppose we could. We will have our turn coming up in the next week or two, so maybe we could experiment with this this time and see if it speeds it up.

Tim Kowal: How many cases in a slate of cases come to you that you have to review in that twenty-four-hour period?

Rebecca Powell: Say between six and twelve normally.

Curt Cutting: We've had about twenty cases. Sometimes, it's fewer than ten. I think that the timing may depend on where we are in the rotation. If we're the first clinic to go, there are more cases. If we're the last, then they've been picked over, and there aren't many left to choose from.

Tim Kowal: So the court is pre-screening these cases, presumably for merit or at least for the importance of the issues. So is the court in effect choosing which open questions are gonna be more likely to get good adversarial briefing?

Rebecca Powell: Potentially, but also I think another thing they look for is if it seems like a case is complicated or otherwise they just want good adversarial briefing. It may or may not be like a particular issue or open question, but they might see, There's something here, but it would take us a lot of work to untangle it. We'd like there to be an attorney to help this person out. But I do think that we're not getting the completely frivolous loser cases that never have any chance of going anywhere. I think those are less likely to get screened to put in the pro bono program. So that's kind of an advantage, if somebody has decided that this is worth having adversarial briefing on.

Tim Kowal: Yeah, the Ninth Circuit is not shy about just dismissing frivolous appeals. You see more of those than you do in the state court system, for example.

Rebecca Powell: And part of the pro bono appointment program is if you take a pro bono appointment case, whether you're a clinic or just an attorney in the system, you're guaranteed oral argument. And so the court is not supposed to submit the case on the briefs and record. So I think that also incentivizes the court to put into the program only the cases that they might want to hear about at oral argument.

Tim Kowal: Right. So that means that if they're in the pro bono system and taken up by a clinic, they are more likely to get selected for oral argument. Do you ever have any cases that go through all the briefing and don't get selected for oral argument?

Rebecca Powell: If you're in the pro bono program, you are guaranteed oral argument. It will not be submitted on the briefs and record.

Tim Kowal: That's interesting because my understanding, well maybe just my assumption, is that the panel doesn't decide until after the briefing on most appeals. But that's probably another built-in incentive to try to get some of these cases that the court would find useful to have worked up to get taken up by these clinics, is to guarantee that they're gonna get oral argument.

Rebecca Powell: Right. I think I recall that from when I was clerking, that there would be a case that I might recommend to my judge, this could be submitted on the briefs and record, and then I realized, we can't do that. It's a pro bono appointment case or we're having oral argument.

Tim Kowal: Curt, can you tell us how or whether solo and, well, small firm appellate lawyers or any other appellate firms who are interested can volunteer to this program? I assume this is not just for law school clinics. Is it also available to law firms?

Curt Cutting: The Ninth Circuit has a pro bono program that certainly extends beyond law school clinics. And any solo lawyer, small firm, anyone can volunteer to take cases through their program. So they have a broader pro bono program, and then within that they also have this clinic program that we've been talking about where they put the cases on a schedule for the clinics that works for us. But anyone can contact the court and volunteer to handle cases on a pro bono basis and be offered cases from the court.

Rebecca Powell: I'm working on one such case with a colleague at our office who is not involved in the clinic, but my colleague is taking the lead on an immigration asylum case through that process. My understanding is that more lawyers want to volunteer for those cases than there are cases, but that's a good thing.

Tim Kowal: Well let's talk about one of the cases, one of the success stories, at least so far, success story, the King versus Villegas case. I'll give a quick setup of the case so the listeners know where the case is. Jerry Lee King was a California prisoner who sued Kern Valley State Prison officers for excessive force. He pleaded no contest to a related charge. And the district court threw out his Section 1983 claim under Heck versus Humphrey, which bars a civil claim that would necessarily imply that a conviction is invalid. And the clinic took the appeal, and in October 2025, a divided panel, Judges Fletcher and de Alba, over a dissent by Judge Callahan, reversed, holding that Federal Rule of Evidence 410(a), which bars using a no-contest plea against the person who made it, also bars using it to trigger the Heck bar. And Judge Callahan wrote that the majority's reading eviscerates the Heck bar. And in April, the full court voted to rehear the case en banc and vacated the panel opinion. And in June, Becca argued it in Seattle. As of today, I believe it's still under submission. Can you tell us a little bit about that case, Becca, and what the student's role? Was this a model example of how the clinic works?

Rebecca Powell: It's both a model example and unique in that it continued past the panel decision. So in the original three-judge panel appeal, our students in twenty-three and twenty-four briefed the appeal, they prepared for oral argument, and we specifically did not make an argument that Rule 410 of the Federal Rules of Evidence categorically bars consideration of a no-contest plea with respect to the Heck bar. Instead, we argued that foundational principles of how the Heck bar works mean that in this context, our client's civil rights claim was not barred by those principles. So we were not trying to break novel new ground. We were saying, according to established legal principles, our client still wins. But Judge Fletcher was clearly very interested in the Rule 410 angle and breaking new law and sort of pushing that ahead. So the panel asked for supplemental briefing on that point, which we provided. At that point, I think our students either were in finals or had graduated, so Curt and I handled that supplemental briefing. And then almost a year later, the court in the divided opinion, three-judge panel opinion, ruled in our client's favor, but on the ground that we did not press. And it's that holding that I think got the attention of the full court and led to the en banc call and the granting of the petition for rehearing en banc. So the en banc argument was essentially focused on both whether the three-judge panel's reasoning was correct, but also even if it wasn't correct, why our client should still win, and he should get a reversal and be able to proceed without the Heck bar applying. So it was a little tricky strategically because we were not exactly defending the three-judge panel's reasoning, but we were defending its result.

Curt Cutting: And the author of the three-judge panel opinion was on the en banc panel. So Becca had to stand up before him and delicately explain why he was not, his reasoning, but instead advancing the arguments that we had made from the beginning of this case.

Tim Kowal: Yeah, you make the same argument as you do in a direct appeal that you're affirming; you encourage the reviewing court to affirm the ruling, not necessarily the reasoning. The same thing happened in en banc. It's like regardless of the reasoning, the ruling should stand.

Rebecca Powell: Yeah, the framing's slightly different because the whole question is more about precedent than a trial court ruling. But I think that is sort of the delicate dance you're trying to do; you're trying to thread that needle.

Tim Kowal: I won't put you on the spot, but I'll say that I would probably be musing to myself, this is why we were arguing narrowly, so that it would not expose the decision to scrutiny.

Rebecca Powell: I think I and several of the judges on the en banc court more or less implied that during the argument, you retreat to the more settled, not particularly exciting analysis, our client wins and there's no need to create this new rule that would probably be a circuit split and create all these potential other problems. So trying to say that diplomatically was the theme of that en banc.

Tim Kowal: Well, let me say I'm impressed that you, as a clinic, would argue the narrow position when I think ordinarily the incentives when you are taking on pro bono cases, and the client should just be happy as a clam just to have any representation, let alone very accomplished appellate practitioners as yourselves handling or stewarding the case. So they shouldn't mind if you're going to swing for the fences on a big theory. When, if you had paying clients, you would usually go over those options with the client, and the client would say, "Well, you're telling me that we have more chance of winning if we argue the smaller, narrower point, but it would be better for your resume if we won on the bigger grounds." You're never gonna make that sale to the private clients, but when we're taking a pro bono case, you're doing it so you can swing for the fences. So I'm impressed that you still went for the professional and disciplined approach of just trying to get the win, even if it meant playing small ball.

Rebecca Powell: Yeah, and I think that we have the same ethical obligation to our pro bono clients as we do to our paying clients. And I think we made the judgment call that we would be more likely to get the ultimate result we wanted and have it be defensible and not, for example, en banc if we kept to the standard foundational argument, which I actually think we're completely right on. I feel very confident that we should win on that basis. And so I don't think it would have served our client to try to make some novel argument; we tried to keep it from looking too enticing for en banc review by being more conservative, but the three-judge panel had other ideas. But I think ultimately we have the same obligations to our clients to try to make the best strategic call to get them the result that they need.

Tim Kowal: Did the law student who argued in front of the panel volunteer to come back for the en banc anyway? It's like, I know my class is over, I'm not gonna get more credit for it, but I would love to do the en banc argument.

Rebecca Powell: Well, it was a team of two. We always have our clinic students do. One of them is clerking, or was clerking at the time of the en banc argument, in Texas. So she was unavailable. But the other one actually worked at our firm as an appellate fellow. So she was involved in the briefing, and she came to argument and sat at the counsel table, and so she got to stay involved with the case through the en banc argument. And now she has recently left our firm to go clerk for a magistrate judge in the Central District of California.

Tim Kowal: Let's talk about some other war stories. Curt, you told us that at Horvitz & Levy, one of the first, or maybe the first person at your firm to conduct a remote argument was a student, I think. In 2020, when the Ninth Circuit stopped hearing argument in person, two clinic students argued remotely from the moot courtroom in the Horvitz Burbank office, and the court reinstated a prisoner's First Amendment claim. So was that in fact the first time anyone had done an appellate remote argument from the Horvitz office?

Curt Cutting: Yeah, in terms of what we now think of as a Zoom or Teams type of argument with video conferencing. It's possible that someone may have made a telephonic appearance before that. I'm sure that probably happened in the history of the firm, but if you remember back to the pre-pandemic days, I personally had never heard of Zoom until the pandemic happened. Our office moved in twenty sixteen, our LA office relocated, and when we did that, we built out a moot courtroom that had built-in microphones, speakers, cameras, and screens in order to do what we thought would be moot courts, not actual courtroom arguments, but practices so that our clients and co-counsel who are not necessarily based in LA could attend and participate in our practice sessions for oral argument. Then the pandemic hit, and we found ourselves actually using that equipment to broadcast to the Ninth Circuit to do an actual remote video argument. And it just so happened that when they first started hearing arguments that way, it was like the first week or two of the court doing this, that one of the cases was our clinic case. So yeah, we were all assembled in our moot courtroom, appropriately distanced and wearing masks, and the students presented arguments to the Ninth Circuit that way. And of course that became a way of life. But it was a surreal experience the very first time we did it.

Tim Kowal: Yeah, so you had students serving as the guinea pig for doing Zoom arguments, huh? Were you taking notes on what worked and what didn't work? Does it make sense to stand? I assume in your moot court conference room you have a lectern in front of the camera so you're able to stand and give your argument as if you're in a real courtroom?

Curt Cutting: Yeah, so we have a lectern built in there, so it looks like a real courtroom. But we certainly learned how to refine that process as we went along. And one of the things we learned is that the lighting in that room wasn't the best for broadcasting arguments. I mean, it worked well enough for our internal collaborations, but the lectern that we have is actually in front of a window, and some of the backlighting isn't great lighting. So we had to install some ring lights in that room to make it easier for the cameras to capture the person arguing. And there were various other tweaks that we had to make for that first argument. But then we got a little bit more sophisticated as we did that more and more.

Tim Kowal: Tell us about the cases that actually don't result in an opinion. I believe there was a clinic case that resolved a Syrian refugee's citizenship matter through the Ninth Circuit mediation program. Have you had many cases like that where the right answer for the client was not to proceed to a judicial decision at all, but rather a mediated outcome? And how do the students take that? Do they still get the sense of accomplishment that they've done right by their client, or do they feel that it doesn't count unless they get it from a judge?

Curt Cutting: Well, yeah. It has happened a few times that we've had cases that didn't make it all the way through the process, that didn't get to oral argument. We have this sort of model that we've been discussing where the students are gonna work on a case for two semesters, and it will end with argument. But because this is real litigation and real cases, things don't always work out that way. One of the reasons it might not work out that way is that the case settles. And ultimately, our mission is to achieve the best outcome for the client. And if settlement provides that outcome that they want, that's what we do. And then we have to figure out what we're gonna do for the rest of the students' time in the clinic, assign them to other projects, and provide them some other comparable experience. Like the case that you raised involving the Syrian refugee, that case actually no students ever worked on, because it became apparent as soon as we were assigned to the case, opposing counsel reached out to us with a settlement proposal that seemed to provide our client with everything he was seeking in the case. And so it became pretty clear that this case was going to settle and students wouldn't have anything to do. And so, this was before Becca was involved in the clinic. And so my co-director and I at the time just handled the settlement negotiations and got that resolved. And we found a different case for the students to work on. But we have had a couple of cases where the students were involved and wrote briefs, and the case didn't reach oral argument. Once, because the case settled after briefing, that was pretty good. The students got to write the briefs, but then they didn't get to do a Ninth Circuit argument, but we still did the moot court the same way that we would have done if they were doing the argument. We had lots of practice sessions, so they got to experience the moot court version of argument, but they didn't get the actual Ninth Circuit appearance. And we had one unusual case where we filed our opening brief and opposing counsel, actually the California Attorney General's office, filed an appellee's brief that conceded that we were correct in our opening brief. And so there was no need to argue that case either. That's one that I actually had never encountered in my civil practice at Horvitz & Levy, where we file the opening brief and the other side just says, "Yeah, you've got us." That was a bit unusual.

Tim Kowal: Is unusual. That's one of my favorite quotes about persuasion is from Robert Nozick, the late Harvard philosopher, who wrote in the preface to his book, I think it was called Philosophical Questions, that it was the lifelong, I think, fiction of the philosopher is that you'll be able to create arguments so strong that your interlocutor can't do other than to accept them. And it never seems to happen because even if they don't have an answer to it, they can still sit there smiling Buddha-like and not ratify your conclusion. So wouldn't it be great if you could set up a chain reaction in their brain so that if they don't accept the conclusion, they die? How's that for a powerful argument? So I guess you've come as close as anyone can to setting up that logical neurological chain reaction, Curt.

Curt Cutting: Unique situation because our opponents were government lawyers who had an ability to just concede that the outcome of this case was wrong in a way that often civil lawyers can't do. Their client won't let them do that. What was interesting about that case, and I think made it still quite fulfilling for the students who had written the opening brief, was that before we got involved, our client had written a pro se opening brief and the government had opposed that and had defended the trial court ruling. And it wasn't until our clinic got involved and our students wrote a different brief that opposing counsel decided to concede. So we were able to feel good that we had really made a difference for that client, in a way that he certainly was not going to achieve that outcome had we not been involved.

Tim Kowal: Let me ask you, I'll start with Curt first and then Becca, what are the best moments that you've seen at the lectern from a student? Either best moments or- I won't say bad moments- but good teaching moments.

Curt Cutting: Well, one moment comes to mind in terms of best moments. We had a case in which a student was asked a question about an issue that had not been raised in the briefing, but in our moot courts we had discussed this issue. And so the court, somewhat apologetically, one of the judges asked the student, "I know this hasn't been briefed, but do you have any thoughts about this issue?" And the student was on that, had a case citation to cite, explained how there was an opinion from a different circuit that had come out differently, but the court should follow this other decision, and here's why. And the court just nodded and accepted that. I thought everyone should be so amazed that a law student was able to pull that rabbit out of a hat at oral argument.

Tim Kowal: Most attorneys cannot do that either. Many of us are just not ready for that kind of argument. "I'm here to argue the substance, not preservation issues. What's that? That seems like a lawyer trick." Becca, do you have any that stand out as moments to emulate or moments that you teach from or watch out for to help make sure that future students don't fall into traps that you've seen happen in the past?

Rebecca Powell: I actually don't think I have a situation where we had a student who did X, Y, Z previously, "We've really got to warn everybody not to do that in the future." By the time they get to argument, they are so ready. They have practiced so much. And it's much more common that at the end of any of these oral arguments, I feel very strongly that nobody could have argued that better. I couldn't have argued it better, Curt couldn't have argued it better, the Solicitor General couldn't have argued it better. They just really impress everybody in the room. You can tell the judges are impressed. They get complimented up and down by their opposing counsel. And they really can outperform many experienced lawyers by the time they're going, and anything I could say that'd like, maybe do that differently next time, is so minor I've forgotten about it.

Curt Cutting: I will tell one more story that actually was passed down to us from our predecessors who were running the clinic before us, that in one of the early student arguments, there was a student who was very conscious of the cameras in the courtroom and managed during the argument to wink at the camera that was on him. Not something that we recommend that students do.

Tim Kowal: Someone must have dared him to do that.

Curt Cutting: Yeah, I'm not sure what the factor was there, but yeah. Must have been one.

Tim Kowal: Okay. Well, last question. Start with Curt and then Becca. Why do you keep doing this? You keep working on this clinic. It must take you away from your hourly work. It takes you away from maybe the pro bono work that you would like to personally handle. So what is it about doing the work at the clinic that you enjoy that keeps you coming back?

Curt Cutting: Well, gosh, there are a lot of things about the clinic that I think are really rewarding. I mean, it's an opportunity to provide community service. That's how I think of it. It's a service both to the clients we represent, to the students, and to the court itself. But it's also personally and professionally very rewarding. We handle cases that are very different from the cases that we work on in our ordinary civil practice. And we are mostly doing defense work in our civil practice, and we're doing plaintiff's work in the clinic. And I think as an advocate, it's actually a very useful exercise to have to step into the other side's shoes and think about the issues from the other side of the V. I think that helps us in our civil cases. And obviously it gives us lots of experience with the court and getting to know the personalities of the different judges on the Ninth Circuit, from having such a large volume of cases before them. And actually one of the things that I personally find the most rewarding is that our students frequently say at the end of the class that this clinic was by far the most difficult class they had in law school, but also the most rewarding. And those kinds of comments make me want to keep doing it.

Tim Kowal: Becca, what about you? What keeps you coming back?

Rebecca Powell: Yeah, well, I think you also mentioned something about how we balance it with our full-time practice. And something I really appreciate is that Horvitz & Levy is super supportive of the clinic in that these cases aren't on top of our full-time practice; they're part of our full-time practice. And these pro bono cases are Horvitz & Levy pro bono cases. So we can and should give them as much attention as any of our cases for paying clients. So that's something I really appreciate and makes it possible to continue balancing with the rest of our work. So that's a really great thing that the firm does and supports. But I think really being able to see young professionals come into their own and start a process where they know nothing. You need to spoon-feed them the basics and explain: where do you start in an appeal? You start with the complaint, you start with the decision, you walk through every step of the way. And by the end, they're experts in this case. They know it so well. They're really comfortable getting up in front of a three-judge panel of the Ninth Circuit, and being able to see that sort of transformation of young professionals to be so prepared and so confident and have really grown over two semesters is really rewarding. And I consider being part of this clinic like a major perk of my job.

Tim Kowal: Well, Becca Powell and Curt Cutting, thank you so much for joining us and talking about the Pepperdine Caruso School of Law Ninth Circuit Appellate Clinic. You've gotten me excited about the work. I'll be looking for more of the cases that are coming down. I'll be watching the April and May oral argument calendars to see if any of your cases are coming up. Have you selected some?

Rebecca Powell: The pro bono coordinator of the court has told us that our turn will be soon, so every day we're waiting for our list of cases to scramble on.

Tim Kowal: Okay. And then do they get announced somewhere so that members of the public can watch what cases are, the briefing that's coming out of the clinic?

Rebecca Powell: We don't usually announce it until oral argument, but if people wanna know, we can start telling.

Tim Kowal: Okay. Curt and Becca, thank you so much for joining us.

Rebecca Powell: Thank you.