Judge Rebecca Duncan

Oregon Court of Appeals

Rebecca Duncan, the newest judge on the Oregon Court of Appeals, didn't actually set out to be a judge. It took the encouragement of her colleagues and friends in the appellate bar, not to mention her new colleagues on the bench, to persuade her that the next step was to take the skills she's developed over the years as one of the top criminal-defense lawyers at the appellate level, and put those skills into service as a judge.

After she moved here from Wisconsin, Duncan began her Oregon career with Metropolitan Public Defenders, where she was a trial attorney for years, first in Washington County and then in downtown Portland. But Although her Oregon law career has focused on public defense, Duncan's first law job was actually spent on the other side of the criminal bar: a summer internship for a District Attorney's office in Wisconsin, in the course of which she researched and wrote motions on a variety of cases, with a special focus on a single criminally negligent homicide case. Many lawyers would not have been comfortable as a prosecutor and a criminal defense attorney - but Duncan enjoyed her experience on each side and feels that she could have been as comfortable as a prosecutor as she was on the defense. "You need good people on both sides, for the system to work right," she said.

As a trial lawyer, Duncan enjoyed the quick pace of a heavy trial docket ("You're never bored, and the stories are great,") but she found that her greatest pleasure came from preparing and arguing motions, where she could take the time to sort through the pieces of a puzzle and then put them together into a persuasive and compelling argument for the court. As a result, she then moved to the Office of Public Defense Service's Appellate Division in 2000, where she continued to represent low-income clients but handled their appeals. After a few years, Duncan was named the chief deputy defender, one of the two managers in the appellate division, where she was responsible for day-to-day management of the office, helping the office to grow while ensuring that the work produced by the office continued to meet the high standards it set for itself.

Duncan liked devising creative and compelling arguments in support of her cases - and especially enjoyed oral argument, which she views as a conversation between the attorneys and the judges, all of them earnestly seeking to arrive at the answers to complex and novel questions. Appellate argument hones a lawyer's advocacy skills, Duncan finds: A lawyer must be precise but flexible, and agile enough to argue persuasively for a consistent result while nonetheless following the course of a conversation that is always alive and always moving in new directions. Happily, Duncan found that she and her office always enjoyed a "great relationship" with the DOJ attorneys representing the state and also with the judges. "Everyone understands and respects the system and we all want it to work."

Duncan's close and respectful relationship with the courts deepened when Judge Walter Edmonds announced his retirement. Colleagues and judges who knew her work encouraged her to apply for the open position. It had been 20 years since a criminal defense attorney had joined the court, and Duncan's supporters successfully made the case to her that she had worked in the appellate courts for long enough that her skills and experience would be an asset to the court. The Oregon Court of Appeals accepts every appeal, and grants oral argument in every case in which the parties request it; Judge Duncan points out that this gives the judges an enormous workload, but that it also means that hers is the court of last resort for most Oregonians.

Judge Duncan was appointed the Oregon Court of Appeals in January. She likes the job enormously so far and is enjoying the new challenges. When asked about practice tips for lawyers appearing before the court, Judge Duncan said that the first question every attorney should carefully examine, before filing a notice of appeal, is whether the case actually belongs in the court. The results are often controlled by issues of preservation and the standard of review - if the best issues were not preserved, or if the standard of review makes reversal unrealistic, there may be nothing that the client can gain from appealing to a higher court.

Judge Duncan also recommends that lawyers spend time narrowing, deepening, and defining the issues they raise on appeal; they should know what points or arguments the court must accept in order for them to prevail and focus on them. Lawyers should also focus on how the outcome they seek will affect the development of law. They should think about the legal repercussions of a decision in their favor; they should be able to state the rule of law for which they are advocating and be able to discuss how that rule might play out in later cases with different facts.

Judge Duncan and her husband have two daughters. She views her work as part of the legacy that she will leave to her children. Her career choices have been driven by her commitment to public service, access to justice, and fidelity to the rule of law. Should her girls ever look back on her work, Duncan's goal is that they will find that she was true to her vision of interpreting the law with clarity and integrity, and that the legal community, and the community at large, benefited from her service.

Originally authored by Sheila Potter and printed in the May 2010 Multnomah Lawyer
Updated for the Internet