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Employment Law Clerks and Trial Court Clerks

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In addition to other employment opportunities, most law students ponder, at one time or another, the possibility of a judicial clerkship. A judicial clerkship is a position of limited tenure (usually one or two years) as the law clerk or elbow clerk of a judge, and it is traditionally filled by a recent law school graduate. Law clerks assist judges in the researching, writing, and reasoning tasks that are integral to the judicial function.

Law students may want to become law clerks for many reasons. A clerkship with a judge on a prestigious court (such as the U.S. Court of Appeals) is regarded both as a professional plum awarded to academically distinguished applicants and as a priceless learning experience. Clerks work within courts as insiders and gain a perspective few lawyers will ever share. One of us had the privilege of spending his first year as a lawyer serving as one of California Supreme Court Chief Justice Malcolm M. Lucas' law clerks and agrees that such an experience is invaluable.

Whether a judicial clerkship is something you want to pursue is, of course, up to you; in keeping with our philosophy, however, we hope that this chapter will contribute to making that choice an informed one. Most law students hear about clerkships from their fellow students or professors but have little conception of what clerks do. They may wonder at first what all the clerkship fuss is about.

There are many factors in the clerkship mix. Professors have a vested interest in promoting clerkships among young scholars because an increase in the number of such clerkships obtained by a law school's alumni means an increase in the school's prestige. Judges hope to attract the best and brightest law clerks to help them, and they regularly advertise such positions at the top law schools (which, in this context, always seem to include the judge's own alma mater). Student motivations include obtaining the perceived "write your ticket" plum a clerkship represents, as well as the more noble desires to water the thirsty mind at an intellectual oasis and to help shape the law of the land. For what-ever reasons, top clerkship spots are highly prized and are the subject of intense competition among top law students.

What law clerks actually do depends on both the position of the judge they serve and that judge's personality and individual preferences. The subject matter jurisdiction of the judge's court will determine the nature of his work and the weight of his case load. The judge's willingness to delegate will also determine what his clerk actually does.

Trial courts that provide clerkship opportunities include the federal district courts, federal bankruptcy courts, the federal court of claims, and state trial courts of general jurisdiction. Federal district judges usually have two law clerks, and federal magistrates and bankruptcy judges usually have one. The number of law clerks hired by state trial judges varies.

A trial judge's law clerk will usually have a large and varied caseload, including researching nuts-and-bolts procedural and law and motion issues. As a result, such law clerks are constantly confronted with a mass of factual situations arising from numerous disputes. As a now-retired federal district court judge once put it to one of us (who was then in his chambers as a young clerkship interviewee), "This is the trenches."

Because of the crushing workload of courts of first resort, trial court judges must be able administrators, and they desire skilled, practical, and efficient clerks to match. The trial court, closest to the everyday world of the practicing litigation attorney, is an "action" place where "the law" and "justice" are meted out daily in the form of dozens of orders, judgments, and decrees.

The clerk or staff attorney must rapidly research the law for controlling statutes and precedents, and he must also consult his common sense and weigh the cases' facts to quickly advise the judge on the exercise of her authority and the limits of her discretion. Should the injunction issue? Have the procedural requirements been met? Which side is telling the truth? Does the court have jurisdiction? What law is the court bound to follow? Though a great many issues recur, the variety is potentially endless, and the depth of the legal research possible is severely limited by large caseloads and other time constraints.
The work of a clerk or staff attorney for a trial judge is certainly important and challenging, but it is not viewed as particularly prestigious (though this is less true in the federal system, where district court clerkships are increasingly sought after). Appellate court clerking is more often associated with distinguished or famous jurists such as Benjamin Cardozo or Oliver Wendell Holmes. Consequently, trial courts generally attract fewer top-caliber law graduates to clerkship positions than do appellate courts.

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