A Conversation With U.S. Judges Daniel Bress ’05 and Trevor McFadden ’06

DANIEL AARON BRESS: Well, I guess I'll start by just saying thank you to all of the students. Thank you for inviting us. And it's great to be back. I want to particularly say to Judge McFadden how great it is to get to do this with you. We were classmates here. We realized we were speaking to decide-- trying to remember if we were in any classes together. The answer appears to be no.

TREVOR N. MCFADDEN: Not that we remember, anyway.

DANIEL AARON BRESS: No. But the registrar is right here. We could go and we could get an actual answer to this. But we certainly knew each other well in law school. And then our career paths have intersected at various points. And now, oddly enough, find ourselves in the same line of work. And so anyway, it's just a privilege to be back here with you, too.

TREVOR N. MCFADDEN: Well, thanks, Dan. And thank you to Connor and the Federalist Society-- really great to be back here. When Judge Bress and I were here this was called the fishbowl. Is it still-- does this-- it sill have-- yeah.

So back in the day, we had-- I guess it was not frosted windows. And so really, you would study in here, but everybody knew if you were studying in here or not. So it's kind of nice that they've added the privacy glass.

DANIEL AARON BRESS: Right. Now that you say that, it has totally changed.

TREVOR N. MCFADDEN: Yeah.

DANIEL AARON BRESS: It used to be all windows.

TREVOR N. MCFADDEN: Have no idea what people get up to now in here without the transparency. So yeah. I know you all have a lot of great speakers. Connor was telling us about some of the folks you've had coming in, and including several judges. Probably not too many alumni, though. And so I thought it might be fun if we talked a little bit about reminiscences. Any highlights from your time at UVA, Judge Bress, you'd like to share with us?

DANIEL AARON BRESS: Well, I'll say being back here is such a great feeling. Whenever you're back in Charlottesville, if you've spent time here-- and I was on the four-year plan here. And so I just have such great memories of this place. And in some ways, I feel like it's sort of if I look back on my whole life, it's where life began again.

Because I came to law school. I did not-- when I was looking at law schools, I felt like I had a great feel for this one. I liked the environment, but I did not know a lot about it. I just sort of had an instinct that it would be a good place for me.

And it was just one of those formative three-year periods of my life-- probably the most formative three-year period of my life. And it's great to see so many members of the faculty here who were our teachers, too, and get to see them.

And just the education I got here. I mean, you go to law school to get an education. I really got an education here, and it's served me really well. So it's just a wonderful experience to be back here. What do you think? You're back here much more often because you live closer.

TREVOR N. MCFADDEN: Yeah. I live nearby. And for me, this is Valentine's Day week. I met my wife here. So love-- you can find love as well as a good education at the law school. She was a 1L when I was a 3L. I robbed the cradle. But we were both involved in the Federalist Society and Law Christian Fellowship and the Honor Committee. And so that relationship certainly gives a rose-colored tinge to my reflections.

I remember Crim Law with then Dean Jeffries. That was-- I don't if any of you all have watched The Paper Chase, but that was kind of my paper chase experience of this incredibly brilliant man. There was one day where he walked in and had his briefcase, and ostensibly couldn't figure out how to-- the briefcase was locked. He couldn't open it. And, therefore, he couldn't get his notes.

And so he's like, well, I will just have to do this from memory. And then proceeded to speak in complete paragraphs as if nothing had happened whatsoever. And the cold calling was really amazing, as long as you were not on the opposite end of it. But yeah.

DANIEL AARON BRESS: Can I ask you, when you were in law school, what were you thinking that you would do?

TREVOR N. MCFADDEN: Yeah. I wanted to be a prosecutor. As Connor alluded to, I had been a police officer up in Fairfax County for two years before going to law school and really wanted to go. I was tired of seeing the prosecutor screw up my cases. So I came to law school wanting to be a prosecutor.

If you had gotten me late in the evening on Feb Club night I might have admitted to you I wanted to be a judge one day. But really, being a prosecutor was top of mind for me. What about you?

DANIEL AARON BRESS: I did not come here with any firm ideas of what I was trying to do. And that's actually been kind of true generally throughout my whole career. I found it a little easier not to set any particular goals because in some ways, it made you looser, and it allowed your career to develop in a way that left things a little more open.

And so I guess when I came here, I thought, well, I'll go back to California, which is where I was from. And I eventually did do that. It just took 20-plus years. I thought-- I hadn't really given much thought to law firms. I thought maybe I would work in a smaller one. I ended up working at Kirkland Ellis, which is not a small law firm. And that was how I spent my career and how I probably would have spent the rest of my career but for this.

So it served me well enough to not have a firm plan. So if you're somebody sitting here saying, I don't what I'm going to do. I can just tell you these things have a way of working out, and it kind of makes sense later. Along the way, there were people that you met who were kind of influential and helped you, and they helped guide you.

But I found that one thing I liked about law school, and what I like about my current job, is that you're a generalist, and so you're learning different things. And I guess I encourage you to keep pursuing those different interests and not to be upset when you're interested in something that you thought you might not be. Because it turns out, you can develop passions in areas that you didn't necessarily expect. And you can find that you're good at something that you didn't think you'd be good at, and that can be helpful.

TREVOR N. MCFADDEN: So I want to talk more about your time at Kirkland. But we've skipped over a really interesting part of your career, which was clerking for Justice Scalia, of course, a hero to many of us. Can you tell us a bit about him and about what you learned about being a judge from him?

DANIEL AARON BRESS: He was an incredible human being in every possible sense of the word. What I saw firsthand when I worked for him was the amount of work it takes to do the analysis in a way that's clear and that's right.

And when you-- of course, I had read things he had written when I was your age. When I was sitting here in law school, he had been on the court for many years at that point. He had written many things.

Working for him up close, though, was where I saw just the craftsmanship of what he was trying to do and how carefully he was doing it. And that was just-- for a younger lawyer to see that, and to see somebody you'd always admire, and to see them in action were things I'd never forget.

I mean, he had-- one of the parts of his process, which was uncommon, was called booking-- booking the opinion, which would be when you're done with the draft and he had been through it, take every source cited, go down to his office, and read that thing out loud and check all the sites.

And that was an enormous amount of work. It didn't matter what it was-- it was majority, it was a concurrence, it was a dissent. It was the same process. I do that process, too. It takes hours.

And we called it a booking because you'd physically bring a cart of books down, and he would sit in the office. And he had a little pillow where he'd keep the draft opinion, and he'd flip it over. And that was what it took to produce things at the highest level. And that was-- my takeaway was just how much effort was put in.

But, of course, he had incredible knowledge about and understanding about statutory interpretation, about separation of powers. And he had thought about these things and understood them intuitively in a way that I don't think many people had until he came on the scene. So I think his contributions to American law are truly legendary and will be something that we're grateful for for many, many generations from now.

I would like to ask you, my friend. When you-- one thing I've always admired about is going in and out of government. People talk about a revolving door, and I kind of thought it could be that way. But for me, it really wasn't. It was a one-way door into Kirkland and Ellis, and then there was no getting out of there.

But you did it. You were in and out multiple times. And I guess I'm curious from your perspective why you did that and how you were able to do that.

TREVOR N. MCFADDEN: Yeah. This was actually a vision laid out to me when-- my 1L summer, I interned at the US Attorney's office in Alexandria. And we had a brown bag lunch with the US attorney. And it was literally a brown bag lunch.

Those of you who've summered at law firms are used to these very fancy dinners, catered lunches. No, no, no. At the US Attorney's office, you bring your lunch with you.

But we sat around his conference table, and he laid out for us this vision of public service and pointed to a lot of the top attorneys of our day. And many of them are people who have spent significant time both in a law firm, but also in public practice.

And his point was there are skills that you can develop, opportunities that you can have in public service that you can only have in public service. But also, there's training and opportunities in private practice that you would only get there.

And so especially if you want to be-- trying to support a family and living in a place like DC, or even, God forbid, in like San Francisco or something like that, it's very expensive to do just public service. And so there are also financial incentives to do this kind of revolving door. And so that really captured my imagination. As I say, I really wanted to be a prosecutor.

DANIEL AARON BRESS: How many cases did you try-- jury trials?

TREVOR N. MCFADDEN: Yeah. I believe 26. I think I had 26 jury trials and about 50-some bench trials-- most of those misdemeanors. So as an AUSA-- one of the reasons I did so many was because I was in the DC US Attorney's office, where you spend much of your time really as a inner city prosecutor working in the Superior Court. That's the local court doing very kind of local crime cases.

I started off prosecuting possession of marijuana. I don't even think they prosecute that anymore, solicitation of prostitution, assaults, that type of thing. And by the end, I was working on homicides. And so it was a tremendous opportunity to learn how to be a trial litigator.

Also, as I say, the responsibility of going into a grand jury, of making a decision about what sort of pleads to offer or how to allocute at sentencing. Those are responsibilities that really you can only have in public service.

But, as you know, there are-- especially at an amazing firm like Kirkland, there's training opportunities that you can have. The caliber of the work coming out of these top law firms, it forces you to be better. It forces-- I definitely--

So I spent four years at Baker and McKenzie after being in the US Attorney's office. And there, I definitely improved as a writer, as a kind of a careful legal thinker. Also, there's something really important and special about having a client who has a name and who is-- maybe his liberty is on the line. Maybe they're facing a big judgment, but there's a lot of responsibility to that as well.

And really to be partial, to be taking a position that maybe you wouldn't agree with. But this is your client's position. There are important skills there. So I was really thankful for my time in public prac-- or at Baker McKenzie.

My last opportunity in public service before I became a judge was as Deputy Assistant Attorney General in the Criminal Division. one of the few political appointees in the Criminal Division helping to oversee the appellate section and the white collar shop.

I love the management side of that. That's something that we lawyers usually don't get many opportunities to do. But also, to help set policy for the Justice Department in their criminal division enforcement priorities, to see the really important work that was being done by prosecutors around the country, and to help encourage and support that.

I think most folks will probably get to spend some time at a law firm here. Hopefully, at least as a summer associate, which I think might be the only job that's even better than being a federal judge. Certainly, more lucrative. But maybe you could-- do you have any suggestions, Judge, about what students should--

DANIEL AARON BRESS: You can call me Dan. That's OK.

TREVOR N. MCFADDEN: --what student should be thinking about as they're looking at different firms or different types of practices they'd be interested in?

DANIEL AARON BRESS: I became so knowledgeable about law firms, and that's not something I intended to become knowledgeable about. But I became very knowledgeable about the legal industry which you all will, too. And I think a couple of things about law firms.

For one, I wouldn't be scared of them. They're-- at least in my time, there was always an aversion or skepticism of big law. I don't know if that still exists now. I think have to what you're getting into. But I think they can be wonderful places to work, and it was for me. It was a great fit career-wise and personality-wise.

And I say that for a couple of reasons. I mean, the work was really, really engaging and challenging. That's just the bottom line. The work was hard. And we had clients who had difficult, complex problems, and you got to work on those, and that was fun.

In terms of when you're starting out and looking for firms, I think the recruiting process, I would not underestimate its importance. A lot of times I would come down here to recruit for my law firm. I would be looking around trying to understand, well, who would be a good fit with us?

Because there were a lot of talented people. But I could look around and say, well, that person's going to be a really, really good lawyer. But probably fit-wise, they're going to be a better lawyer at another firm kind of like this or that. There's no right answer for law firms. But I think feeling comfortable within one, with the people there, is really important.

And so in the recruiting process, I encourage you to kind of get to people-- the callbacks and trying to meet people, having follow-up phone calls. And not asking questions that are ones like, tell me about the trial practice program or something like that, but more asking them like, well, what did you-- why did you come here to this law firm? And why have you stayed at this law firm? And to hear people's answers to that will tell you a lot.

And I think you will become-- you'll go to your summer associate. Probably many of you will be Summers there. And if you like it, that's great. But if you feel like maybe it wasn't the right fit, that's OK, too. And you can go back and reapply elsewhere.

I think the key is to find a place, at least coming out of law school, if you're going to go from law school right to a firm, or maybe you go clerk first and then go to a firm, my thought is go to a place that you think could see yourself at least two to three years. Just think about it.

And it's hard. When you're in law school, that's a three-year period. You do a clerkship, it's one year. All of a sudden, everything feels like a job that's one year. But there is like the whole rest of your career. And so--

But it's hard to imagine now going to a law firm and saying, I'm going to go there and stay there for decades. I mean, it's competitive. You may not want to do that. There's all kinds of things that can happen. You may move. You may decide you want to go into public service. So thinking about it as a three-year proposition I think is easier. And then that three years can become extended.

But I found it more manageable to think in those terms because it's kind of hard to think about what you're going to be doing in 8 to 10 years. That's a long time from now.

TREVOR N. MCFADDEN: One plug I'd give is the importance of the alumni network. For me, going to Baker and McKenzie, one of the practice group chairs was Rich Dean, a UVA Law grad. I'd actually met him coming-- speaking at Law Christian Fellowship. I think he may still do a J-term class. But he was so helpful to me.

But I think also just folks who are a couple years ahead of you. Hopefully, if you're 1L now, a 3L, try to keep in touch with them and talk with them a year or two down the road, seeing kind of those experiences of folks you know, or just other UVA alums who are going to be likely to-- in my experience, very happy to have a cup of coffee with you, or chat about their experiences at the firm and whether it be a good fit for you.

DANIEL AARON BRESS: I was going to ask you-- this is kind of related-- about whether there was any kind of inflection point in your career where you had to kind of make a call one way or the other, and you had to decide, and where that ended up going-- whether it was the right call or not?

TREVOR N. MCFADDEN: Yeah. So one, I guess, would have been after being an AUSA for four years. As I say, my wife is a lawyer. She had been at Sidley Austin. By the way, this is the-- other than being a lifetime summer associate, the best option for a lawyer is to be doing public service, but be married to a lawyer who's at a big law firm. That works out really well.

But our first child came along. And she told me that she was done with being at a law firm, and it was time for me to support the family for a while. And so I headed to Baker McKenzie.

And I did that somewhat-- that was a somewhat kind of a difficult decision. It felt a little like I was giving up a dream of being a prosecutor long-term. But it ended up being the right move, certainly for our family, but also really helpful for, I think, my career.

One of the things that I've realized now in my current role, there are very few people like Judge Bress who are so impressive that they can just be at one place all along and go right to the federal bench. Most of my colleagues, and certainly most of the judges who have gotten on relatively early in life, are judges who have kind of leapfrogged around.

And, for me, there's no way I'd be a federal judge if I had just been at the US Attorney's office my whole career. Similarly, I would not be a federal judge if I had just been a white collar attorney at a law firm the entire way. But my experience as a prosecutor gave me a lot of credibility as a white collar associate, and I was able to get promoted to partner relatively quickly.

And then that position as a law firm partner gave me credibility when I was hoping to go into the administration back into the Justice Department as a political official. Again, that is something-- it would have been a much harder move to make had I just been coming from the US Attorney's office.

So I think not only-- and this is something that the US attorney really had not-- well, had kind of hinted at. But I think the law is an area that really often will encourage and reward trying out different things. And that's not true for, I think, a lot of professions. And it's certainly something that I found that I enjoyed and was probably advantageous to me.

So obviously, I am a mere trial judge. Dan Bress is an exalted appellate judge. One of the things we wanted to talk about a bit was the differences in our jobs, and how even though both Article III judges really-- how very different our day-to-day experiences are.

The Ninth Circuit-- I don't think I was aware of this until the last couple of years. But I believe half of the population of America is actually within the Ninth Circuit. Is that right?

DANIEL AARON BRESS: It feels like it most days. So--

[LAUGHTER]

TREVOR N. MCFADDEN: And they are all suing in front of Judge Bress. Maybe you could tell us a bit about your role as a judge on the Ninth Circuit. What does a day in the life of a Ninth Circuit judge look like?

DANIEL AARON BRESS: Well, it begins with a healthy breakfast. No. The Ninth Circuit is a fascinating place. The Circuit-- when it was put together, many of the states in our Circuit were not even states.

And I was looking-- I gave a presentation to the Boy Scouts-- my son's Boy Scout troop the other night. And so I looked up how many people were in Nevada when the Ninth Circuit was formed. And the number was something like 25,000. And now how many million people live in Las Vegas alone?

So the Circuit is diverse in every possible sense. I mean, geographically, when you're comparing Los Angeles and Idaho, these are just completely different places. They are different cultures. There are different politics. They have different legal issues. They have different day-to-day issues that affect people there. And that has been something that has been truly impressed on me as I've done the work of our court.

I mean, the work of an appellate judge, I think, is markedly different than the work of a trial court judge. So obviously, we're reviewing something. Somebody won. Somebody lost. And that's now being positioned for our decision.

A lot of times in private practice when I had appeals, you you'd be fighting about something at the trial court. And then the thing that was on appeal was actually-- felt sometimes like tangential to what the whole proceeding was about in some ways. Because what can go up on appeal can sometimes be a pure legal issue.

So you could lose on a preemption defense, for example, just to give an example, and have a whole trial about all these other issues. And then all of a sudden, it's back at the Circuit at this preliminary issue-- a legal issue of preemption.

The day-to-day is basically-- you're hearing-- you have sittings, or calendars, we call it. You're hearing arguments certain weeks out of the year. So I hear argument probably 35 days a year in three-judge panels.

And then on top of that, we'll have en bancs, which are full court. In our court-- we're the only court in the United States that doesn't sit as a full court because we're 29 active judges. That's just too many people to decide a legal matter. So we do 11.

And so it's chosen by bingo ball. Everyone has their name on a bingo ball. And it's pulled out, and you see who's drawn for en banc. The Chief Judge is on every en banc. So that's a highly unusual process. And so I'll be drawn for maybe three to four en bancs a year, I would say.

And then on top of that, you'll have some other special sittings, like death penalty cases are done on a separate calendar. So we have several states that have the death penalty. We treat those differently because they're a huge amount of work and present sensitive issues.

And then you have some one-offs that come along the way. So day is in the robe-- 45 days maybe, I would say. And then the rest of that is preparing for that. And then once the sitting is done, completing the work of the sitting, which is deciding the cases.

And so the cases can be decided in two principal formats. We have what's an opinion, which we all know. That's a published precedential opinion. And we have what we call memorandum disposition, or other circuits will have a different name for it, but it's the same thing, which is basically a decision for the parties.

It's available. You can go on the website and see it. You can go on Westlaw and get it. You can even now cite it. It didn't used to be the case. You can cite it in a brief. But it's not precedent that binds us, in the sense that if something is decided by memorandum disposition and the issue comes back again, doesn't bind us as a matter of Circuit precedent, but a published opinion does.

And so the work of the court is basically trying to go through these cases, and we have a huge volume of cases. I mean, I think it's been as high as 16,000 a year. When you compare how many cases is the Supreme Court deciding a year-- like, 55. So that's just a tremendous difference. And we have to have a whole infrastructure built up to try to process these in a timely way and to go through them.

But there's a huge amount of analytical thinking that goes into it. There's very few-- I'm not on the phone with the parties. I'm not in preliminary hearings or anything like that. There is one oral argument. That's it. And the rest of it is kind of back behind closed doors trying to issue a decision or dissent, depending on what the case may be.

Law school, I think, is a good preparation for this because it's heavy analytical work, and it's also cross-discipline. So I came to the court with a background in civil litigation, class actions, major commercial litigation. I do immigration law. I do environmental law. I do criminal law. And I love doing these things because it kind of brings me back to why I went to law school in the first place, which was to be a student of the law. And that is a really cool thing about the job.

What we're missing, though, is what you have, which I've always been jealous of, is the trials. And I guess I'd put the question to you. What goes into holding, particularly a jury trial? And I would say, even more specifically, a criminal trial. Because whatever your background, I think one of the most sensitive decisions we make is when people lose their liberty. And I guess I'm curious how you prepare for that, and what that process has been like?

TREVOR N. MCFADDEN: Yeah. It's certainly been a learning curve for me. It's something-- I'm very thankful I'd been a prosecutor and did have that trial experience. I guess, in my mind, a district judge basically was always in court and doing trials. And somewhat to my surprise, then, as a baby judge, I really spent relatively little time in trial. In fact, my first four or five years as a judge, I'd only have two to thee trials a year.

January 6 changed that. We now have just astronomically more criminal cases, and therefore, trials in our courthouse. Last year I had 11 trials. So, again, just two to three times what I typically would have had prior to January 6.

So the-- I mean, I'll say it's a lot easier being a judge preparing for a trial than being a litigant. For me, what I'm most focused on is trying to resolve the pretrial motions. There may be a motion to dismiss, a motion to suppress evidence, especially in a criminal case. That would be pretty typical.

Maybe motion to bring in 404(b) evidence. This is basically where the government wants to say not only did the defendant do this really bad thing, but he's done five other really bad things in the past. And you've got to figure out if that is admissible under the Federal Rules of Evidence.

Sometimes you'll have motions for expert witnesses, Daubert hearings. And so, depending on the complexity of the case, you could have anywhere between one to dozens of pretrial motions that need to be resolved at a pretrial conference beforehand.

Other than that, as you suggest, the jury trial, which most of our trials are jury trials, have a added component-- preparing for the voir dire process. And voir dire ends up working pretty differently in different courthouses. Our courthouse-- generally, the judge is really running the voir dire. I'll allow the parties to submit questions ahead of time that I'll ask the panelists. And then, depending on the answers, I may allow the attorneys to do follow-up questions of the venireman.

But that is a emotionally and just kind of a taxing experience, that voir dire process. Often-- I mean, one of the questions in any criminal case is, Have you been a victim of or a witness to a crime? And, at least in DC, most people have been a victim of or a witness to a crime. Often, just like my car was broken into or shoplifting, something like that.

But sometimes, very traumatic and personal experiences come out through that process, too. And you've got to-- you're kind of under a time crunch to deal with this, but trying to be with each juror kind of humanely. And also, trying to evaluate is this someone who would be an appropriate juror for this particular case and be ready to answer objections and really rule on objections in real time.

This is something us trial judges have a little bit of a chip on our shoulder, when then a year later it is reviewed by an appellate court in the serenity of the appellate chambers with all the time in the world and Westlaw at your fingertips. And thankfully, we are set up so that there is an abuse of discretion standard.

And I think most circuit judges do recognize that those split-second decisions about whether to excuse a juror, how to rule on an objection during trial, that type of thing, those not only are being made in the heat of the moment, and you need to have a little bit of grace for. But also, that there are a lot of intangibles going into that decision.

Like if this person is saying, oh, I definitely can be fair and impartial, but the body language is saying, oh, no I can't. That's not something that is going to be clear on the appellate record two years down the road and is exactly why you have a trial judge who's making that decision in the flesh.

So the preparations. And then the other big preparation area is the jury instructions. Those end up being very important, obviously, instructing the jury on the law. Often, those are pretty cut and dried. If you have a felon in possession of a firearm case, I can tell you right off the bat what the likely instructions are going to be, where there are going to be pressure points, and how I would likely come out.

One of the difficult things about these January 6 cases has been these are-- many of these are kind of charges that have either never been brought or rarely been brought, and certainly not in this type of circumstance before. And so that's required a lot more research, a lot more time and back and forth with the parties trying to get it right, to make sure that we're instructing the jury on the law.

And understandably, that is an area where you're not going to get a lot of deference at the back end, if you screw up an instruction on the law. And so that takes a lot of preparation.

During trial, often, at the best, it's like having the best seat in the house for a really interesting performance where you're seeing thoughtful and well-prepared attorneys argue the facts and law to a jury. And I get to be-- try to not insert myself and just let the attorneys do what they're supposed to do.

Sadly, you don't always have two great, well-prepared attorneys. And that then requires more involvement from the judge, especially in a criminal trial, and especially in a criminal jury trial where you need to be really careful to protect the record and to protect the defendant's constitutional rights, even if his attorney may be dropping the ball here and there.

So it is grueling. I think you and I were talking earlier about being there, hearing oral arguments for a week and just how you're kind of drained at the end of it. That is certainly how I feel at the end of a day of trial. Although, I also-- it's-- I love trial. I love trials. I think it's just this incredible engine for truth seeking and for justice being done.

One of the things I find so interesting is often you'll have jurors who at the outset are clearly trying to get out of sitting as a juror. And by the end-- I try to go back and thank them after the verdict. And invariably, they tell me how glad they are that they were a juror.

And for a lot of citizens, that is the most direct and tangible way they will be involved in not only civic service, but in running our country, and in a very real and important way for the individuals involved. And so I think it's a really-- hopefully, usually a very positive experience for the jurors.

DANIEL AARON BRESS: Well, I see there's lunch, and I don't want to stand between it. I didn't realize there was a Chipotle and a Chick-fil-A here. I could have really used that in law school. We did not have that down at the shopping center, but I think we should take some questions. And I'm always curious what's on your mind. We can ask each other questions all afternoon.