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If you are starting your legal career with a judicial clerkship, you’ve made an excellent move! Most lawyers who did the same thing look back on their clerkships as the happiest years of their professional lives. You’ll have a phenomenal opportunity to get “behind the scenes” of the legal system. You’ll have an amazing opportunity to make an impact through your judge’s opinions. You’ll ideally create a lifelong mentor in the person of your judge. And you’ll come out at the other end with a credential that has a considerable amount of cachet. Bravo for you!
We are going to talk about what you need to know to handle your clerkship as well as you possibly can.
The Judge's World, And How You Fit Into It.
Unless your judge is newly appointed, you’re walking into a well-oiled machine. You need to be particularly mindful of a few things:
1. You're likely to have a tremendous amount of influence over your judge’s opinions.
Your impact can be so great that it’s downright scary or overwhelming. Former judicial clerk Jason Wong says, “The thing I found most shocking about my clerkship was how much input clerks have. I always thought that judges sit and write grand opinions, based on summaries of cases from their clerks. That’s not the way it is! The judge gives you parameters, and you write the first cut yourself. The judge might say, ‘We’ll affirm for these reasons and you just find the cases/law to support it.’ The judge will mark it up, make it bleed, you revise it until (s)he’s ready to sign off on it. Sometimes judges will just add a comma here and there and it’s ready to go. Some judges write all of their opinions, but most are too busy for that. They only have time to edit, to offer guidance. It’s their opinion, but you have a lot more input than you thought you would.” Former judicial clerk Donna Lords had the same experience. “My judge would sometimes just hand me a file and say, ‘I’m denying summary judgment. You draft the opinion and I’ll review it with you.’ Other times, he would simply hand me a file and ask me to form my own decision that he’d review with me, and either agree or disagree. It was incredible.”
2. You’re unlikely to get much by way of support.
As one former clerk points out, “You’ll probably be typing up your own memos and opinions on the computer. You won’t have much library help.
It probably won’t be hard for you to get used to, because you’re used to law school, not a large law firm where you’ve got a vast support staff!”
3. Avoid the professional ‘Scarlet Letter’: “A” for “Arrogance.”
If you got a judicial clerkship in the first place, you probably have sterling paper credentials. And that’s a wonderful thing. But as I’ve pointed out elsewhere in this book, park your ego at the door. It’s particularly important in a judicial clerkship. While you don’t have to be told to treat the judge with respect (well, at least I hope not), you’ve got to be just as careful with co-clerks and the judge’s secretary. Former judicial clerk Stefan Nielson remembers that when he walked into his judge’s chambers the first day of his clerkship, the judge said, “Meet my secretary. Mr. Nielson, Mrs. P has been here for twenty-five years. She will be here until I retire. If you ever disagree with her, she stays, and you go.” One former clerk adds that, “Your judge’s secretary is a great conduit between you and the judge, if you want to check with her about the judge’s practices and preferences first rather than bother the judge with minor matters or if you’re worried about looking foolish. She can also be a great ally if you ever want to lobby for some change in an age-old practice—although you never want to be the one trying to ‘rock the boat’!”
4. You work the hours your judge wants you to work.
Maybe you’ll work reasonable hours, but you can’t count on that. There’s a huge range of hours; even judicial clerks for the United States Supreme Court work different hours depending on the justice for whom they clerk. The bottom line is, you take what you get. If your judge wants you there late, you stay late. As Jason Wong says, “If your judge wants you in by seven a.m., that’s when you show up. It’s their game and their rules.”
5. Dress respectfully.
It’s easy to think that if you’re working for a judge, you can let your appearance slip. After all, everything you’re doing is behind the scenes— right? Not quite. Dress conservatively, at least until you get a firm idea that it’s all right to dress more casually.
CAREER LIMITING MOVE
Male law school graduate about to start a judicial clerkship. He decides to get a 'Trainspotting' haircut, bleached blond with black roots. The first day he goes to work, he has lunch with a friend. "How did the judge like your haircut?" the friend asks. The clerk answers, glumly, "It wasn't such a hot idea. He sent me home and said I can't come back until I dye my hair."
A. The Law Clerk's Bible—The One Book You Have To Have!
One former clerk strongly recommends that you pick up a copy of the Chambers Handbook. “It contains very accurate information and it’s very condensed.” However, she cautions that “The Handbook was published by West in 1994, and some of the rules in it might have changed by the time you enter your clerkship. Even if you use the Handbook, you should always check with your judge and the Clerk’s Office of your court, which often publish local rules and practices. Most judges will also have some sort of written instructions for incoming law clerks, as well as special rules for attorneys for trials, conferences and other pretrial matters, and you need to be familiar with all of those, as well.”
B. Research and Writing Tips
1. It’s time to brush the dust off of all those books you figured you’d put behind you—the Federal Rules of Civil Procedure, for instance.
One former clerk says that, “The Chambers Handbook includes a section on research and writing for judicial clerkships, and that’s very useful.” In addition to that, there are some key reference materials for law clerks:
The Federal Rules of Evidence,
The Federal Rules of Civil Procedure,
The Federal Rules Of Criminal Procedure,
The Federal Rules of Appellate Procedure,
The U.S. Bankruptcy Code,
State substantive law and procedural rules, and
The Blue Book (although judges don’t follow it as religiously as do law students).
2. Remember, you have to draw a conclusion!
This isn’t like law school. You don’t get most of your points for spotting the issues. As one former clerk advises, “Be practical, concise, and reach a definite conclusion. Remember, these are real people with real factual disputes that need to be resolved on a case by case basis.”
3. Deadlines count!
“Unlike in law school, deadlines are critically important to judges,” says a former clerk. “You simply can’t tell the litigants in court that you aren’t ready or you need an extension. Remember, in some form, you are the judge, and you need to preserve the dignity of the Court.”
4. Be ready to juggle multiple cases and think on your feet
When you leave your clerkship and go into private practice, you’ll have to juggle multiple projects. You get some experience doing that for a judge, in the sense that “You have to be prepared to juggle many cases and make a lot of on-the-spot decision making,” advises A former clerk.
5. Take advantage of Lexis and Westlaw training—but don’t count on being able to use a computer at work!
One former clerk recommends taking advantage of Lexis and Westlaw training classes for judicial clerks, if they’re available to you, to learn how to research legal issues and check case and statutory citations. “As a caveat on computer research versus books—and I believe this is good advice for your general law practice as well—be sure you are comfortable using both forms of research. Some judges are old-timers and trust the books more; they may want you to run in to chambers during a trial, pull out a couple of pertinent cases, and run back into the courtroom to hand the books up to the judge on the bench. Believe me, I had dreams about the adrenalin rush from this for years after my own clerkship experiences! If your judge says ‘Go back and find me cases on this issue’ you’ve got to be comfortable with book research.” A former clerk adds, “Apart from that, you might have a situation where one of the other sources is unavailable to you; if you’re in a satellite courthouse, you either may not have Lexis/Westlaw access. Or your book library may be incomplete due to expense and space constraints. So you’ve got to be comfortable with both forms of research.”
C. YOU'VE GOT A SPECIAL JOB—WITH SPECIAL RESPONSIBILITIES.
One former clerk points out that “Most people are unaware that there is a special code of ethics for law clerks. It is presented in some detail in the Chambers Handbook. You should read it on your own and become familiar with it, but just so you know, it includes restrictions on political activity as well as strict guidelines regarding the confidentiality of cases.” In terms of confidentiality, A former clerk cautions you to “Always be careful in elevators, hallways, and in your outside life as well—you never know who may be listening. A litigant, attorney, juror, witness, and even family members or friends of the parties involved may be sitting in the next booth or standing behind your back, out of view. The same is true of your conversations with the law clerks, judges, and staff of other chambers—remember not to divulge any confidential information about the practices of, or the cases in, your judge’s chambers.”
The bottom line is this. When you clerk for a judge, you’re likely developing a mentor that you’ll have for the rest of your life. Treat the judge—and the experience—with respect!
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