Behind the Scenes (Not So Much)

Catherine Smith planned to spend her career at her desk. She ended up at the U.S. Supreme Court

Published in 2008 Washington Super Lawyers Magazine — June 2008

If ever there was an attorney you could imagine coming from Garrison Keillor’s mythical town of Lake Wobegon, Catherine Wright Smith would be it. 

Listeners of A Prairie Home Companion know the fictional Minnesota town is filled with modest people in modest clothes who do extraordinary things but would never own up to it. Unlike her Wobegon soulmates, the shy-at-heart appellate attorney doesn’t need Powdermilk Biscuits for the “strength to get up and do what needs to be done.” Smith, 53, does it because she loves her job, she’s good at it—and she discovered, early in her career, the secret to survival. 

Slate magazine columnist Dahlia Lithwick, who covers the U.S. Supreme Court, called Smith “one of the finest oral advocates I’ve ever seen.” The American Bar Association’s (ABA) Litigation magazine says she was “relaxed, self-assured and very effective” during her appearance before the country’s top court. 

Even attorneys like Ken Masters, of Wiggins & Masters, who have gone up against her admire her work. 

“[She is] one of the top appellate lawyers in the state, certainly one of the most effective advocates for her clients,” he says.

The funny thing is, the woman the ABA once said “handled the intense give-and-take with the [Supreme Court] justices as casually as though she were sitting down to a boisterous family dinner” was so nervous about public speaking early in her career that she planned to spend her entire career writing appellate briefs. 

Smith chose to clerk with state Supreme Court Justice Charles Horowitz.  She had left an impression on him, according to her mentor, appellate attorney Malcolm Edwards. 

“I was looking to hire someone, and Charlie said he had this clerk who would argue with him periodically. That wasn’t unusual,” Edwards says. “What was unusual was she would frequently win.” 

Once she started the job, she expected to be an office lawyer, working behind the scenes while someone else handled oral arguments. Edwards had other plans for her. 

Thanks to her two years as a copy editor and reporter at the Oklahoma City Times, Smith was already a skilled writer. So Edwards took advantage of this talent and also pushed her into facing judges. 

He may have known she was shy, but “I gave her oral arguments to do anyway,” he says. He believed the author of the brief should go to court. “When I saw her argue, I thought her concern was misplaced.”

She overcame her trepidation by viewing oral arguments as conversation more than confrontation. The change proved crucial to her success, allowing her to worry less about preparing a script and more about responding to issues raised by the judges. 

Smith decided on her career at an early age.

A youthful reading of To Kill a Mockingbird, followed a few years later by a family trip from their home in the Great Plains to Seattle (she loved the climate), led a 14-year-old Smith to tell her parents she planned to move to Seattle and become a lawyer someday. Given the popularity of the book, her career choice wasn’t so surprising. The book was to her what All the President’s Men became to a generation of budding investigative reporters.

“Atticus [Finch] is this larger-than-life figure of the restraint of law as a civilizing force within society in what is essentially an unjust world,” Smith says. “I’m not sure that people really operate that way, but you would like to think that the law would.” 

Her parents may not have believed her, but Smith was dedicated to her goal. She worked on her high school newspaper to prepare for a job in journalism as a way to earn money for law school. 

After two years at the Oklahoma paper, she and her former husband left so she could attend law school in Seattle. 

“We were the original Okies,” she says. “We moved out here in a van with a mattress tied to the top of it.”

She decided to focus on appeals while in school. Washington didn’t have an appellate bar at the time, but it wasn’t an issue because appeals were handled by trial attorneys. Three or four appeals a year were considered a heavy load. Now, her firm, which focuses on appellate cases, sees 30 or 40 a year. 

Clad in a simple gray dress, with her dark hair pulled back, Smith appears earth-motherly. Still, it’s easier to imagine her in her more formal court attire than in her other “uniform”—a helmet, pads and roller blades. An avid blader, she has been known to skate 35 miles in one day and has gone on organized blading trips to Martha’s Vineyard and the Netherlands. 

Smith is an outdoors enthusiast, spending up to a month every summer on Cooper Island, a remote Alaska barrier island where she serves as a field assistant to her ornithologist boyfriend, George Divoky. He has spent the last 33 years summering there to study the island’s colony of black Guillemots and observe the effects of climate change on the seabird population. 

In the office, Smith is all business. Her insistence on perfection covers not only what’s in an appellate brief and how it looks, but extends as well to what she believes people should wear in court, says longtime legal assistant Tara Friesen. 

Friesen recalls an incident a few years ago when Smith’s sweating the small stuff caused a bit of a ruckus at the University of Washington because she criticized women for wearing pantsuits during a moot court hearing she was asked to judge. 

“She told the women that, as a sign of respect, she would always wear a skirt [in the courtroom]. She got a lot of guff from the students,” Friesen says. “There were a lot of complaints.”

One even voiced her displeasure to the university’s Moot Court Honor Board. Smith has not returned to moot court, though she has taught classes at the university.

“All I was doing was relating my experience that nothing you do should distract from your message,” Smith says. 

Her experience as a writer has also played an important role in her success, other lawyers say, because she knows not only how to crystallize the issues on which a case will turn, but how to characterize the key point in a way that will be palatable to an appellate court. 

A well-written brief is key to success with any appeal, Masters says. Appeals court judges do ask questions during oral arguments, but each attorney has only about 10 minutes to respond, so a well-framed brief carries most of the weight. 

“She enjoys such a high level of respect from the bench that the judges will go further and push her further than lesser advocates. You get to see her really get in deep and interesting exchanges with the judges,” Masters says, adding, “Some of the most fun I’ve had is watching Catherine go toe-to-toe with some of our tougher judges. They don’t mind taking off the gloves and coming after her.” 

Similarly, at the U.S. Supreme Court she handled hostile questions from Justice Antonin Scalia without batting an eye, says Howard Goodfriend, a partner at Edwards, Sieh, Smith & Goodfriend. “She knew right away she wasn’t going to make any friends there, but she answered him without being condescending and moved on.

“You have to recognize pretty quickly who is going to be on your side, who’s going to be against you and that you are not going to be able to change their opinions in the time you have. That’s what she does.” 

Former Washington State Supreme Court Justice Phil Talmadge has not only been in a position to hear Smith’s oral arguments, he has also faced her in appeals court as a private attorney. 

“You bring your ‘A’ game when you’re dealing with Catherine,” he says. “She presents her arguments well. I think she has a very strong empathy for her clients. She does a lot of appeals in the family law area, which a lot of people don’t do.” 

Although family law makes up only a third of her workload (general civil cases are the majority), “those cases tend to be more high-impact,” she says. “The whole idea of this law is to provide people with predictability so they will know what the court will do. The really good appeals are the ones where the trial judge does something that makes you feel that it is just not right.”

Littlefield v. Littlefield was a good example. The 1996 case arose shortly after a Washington couple filed for divorce and the ex-wife moved to California with their child while the divorce was pending. In order to comply with a parenting plan established by the court a year after the woman relocated, the trial court ordered her to move back to the Seattle area so the father could have regular visits with the child. Smith convinced the Washington State Supreme Court that the trial court did not have the authority to order the mother’s relocation. 

The decision made sense because, she says, “I don’t think that the courts do a particularly good job of determining people’s lives for them.” 

Smith’s biggest splash so far came from her case before the U.S. Supreme Court in Troxel v. Granville, which centered on grandparental-visitation rights. The case stemmed from a heated dispute over how much power a parent has to set limits on who has rights to visit his or her children and for how long. 

The complex brouhaha started not long after a relationship between Tommie Granville and Brad Troxel ended. The couple had two daughters but never married. When Troxel moved in with his parents, the girls visited often and continued to do so even after he committed suicide. After Granville—Smith’s client—told the Troxels she wanted to cut back the number of visits, the grandparents went to court and sought additional time under the state’s third-party visitation statute. 

Although the Superior Court saw things the Troxels’ way, the state Court of Appeals overturned the decision and the state Supreme Court found the law unconstitutional. 

Smith was surprised that the grandparents challenged the ruling at the U.S. Supreme Court and was astounded when she received a phone call in 1999 telling her the high court had agreed to hear the case. 

“I just dropped the phone. I couldn’t believe it,” she recalls. 

When you listen to a recording of the oral arguments, it’s easy to hear how at ease Smith is as she answers questions from the nation’s most esteemed judges. She even elicits a few hearty laughs from them. 

Edwards relates that an East Coast appellate lawyer friend “was really impressed with how effective she was.” That’s high praise indeed, he adds, because “East Coast lawyers who are appellate advocates have a hard time thinking that West Coast advocates are their equals.”

In the years since, Smith has—among other things—served as president of the Washington Appellate Lawyers Association (which she helped create). She received another industry seal of approval last year from her peers on both coasts when she was elected president of the prestigious American Academy of Appellate Lawyers. But it’s an honor she won’t mention unless you ask about it. 

Smith does not have framed copies of newspaper stories mentioning her Troxel win hanging on her office walls. Nor does she pepper her conversations with phrases such as, “Like I was telling Justice Scalia…”

The only nod to her visit to the nation’s highest court is a Sandra Day O’Connor bobble-head doll given to her by a friend. And she only wanted it for one reason: The justice is holding the law book that contains the Troxel ruling.

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