Preparation for Soon-to-Be Judicial Clerks:
Anything the clerks or ex-clerks (or judges) among our readers can recommend to soon-to-be judicial clerks (state trial, state appellate, federal trial, federal appellate, or specialty court)? Reading recommendations would be good, as would suggestions for courses to take. Thanks!
Related Posts (on one page):
- Advice to Future Federal Court Law Clerks:
- Judges, Clerks, and Ideology:
- Preparation for Soon-to-Be Judicial Clerks:
I'm not sure how many schools offer such classes, but coursework on sentencing and habeas would also be helpful. I recall perhaps a day of habeas in crim pro, but I'm not sure that's universal.
This next one might be too obvious, but read opinions by the judge for whom you're clerking.
Remember, you are not the judge. Your judge is the judge, and you are tasked with helping him. Many clerks (especially a few months into the clerkship) begin to think that they were the ones appointed to the bench. That creates friction and unpleasant experiences.
In preparing your bench memos you can lay out your view of the case, but once the judge decided to do something, help him do it. Don't try to water-down his decision because you don't agree with it.
That said, if one really wants to do a little substantive reading, I offer the following recommendations:
For district court clerks, I think it helps (above all) to be REALLY familiar with the Federal Rules of Civil Procedure. And so perhaps quickly reviewing one's Glannon makes sense. But don't just stop at there, make sure you look over the rules pertaining to discovery (Rules 26-37). It would also help to be familiarize oneself with Section 1983 actions and related doctrines, e.g., qualified/absolute immunity doctrines. Other than that, it's hard to know what to "bone up" on because the type of cases a clerk may work on could depend on both the location of the clerkship and the particular judge. When I was a district court clerk, I didn't work on any criminal matters; and so I didn't have to know, for example, about Speedy Trial issues, the sentencing guidelines, bail matters, etc.
For court of appeals clerks, I think becoming familiar with the following areas is helpful: (1) Supreme Court’s recent decisions regarding the sentencing guidelines (Doug Berman’s Sentencing Blog is very helpful); (2) § 2254 habeas jurisprudence; (3) Section 1983 jurisprudence; (4) federal pre-emption doctrines; and, if possible, (5) basic constitutional criminal procedure, i.e., basic 4th, 5th and 6th law.
I also think it’s helpful for law clerks (both incoming and current) to read blogs like How Appealing, Decision of the Day, SCOTUSblog, and, of course, The Volokh Conspiracy. These sites are very good about highlighting important (and current) appellate decisions.
On a more general level, I think incoming clerks should know that the quality of briefing in most cases is very poor. This simply means that as a clerk you will often be doing much of the work that the parties should have done. And, as you can imagine, that becomes awfully frustrating over the course of the year. One last thought: incoming clerks should not be afraid to make mistakes. Judges aren’t right all the time and, if reasonable, most certainly don’t expect a newly-minted law school graduate to be right all the time either.
My recommendation: get to know your circuit. If you have a lot of immigration, start reading up on that. Get to know your sentencing guidelines on a basic level (which you will likely become intimately familiar with quite quickly). I would also embrace your own interests and stay current in the areas that interest you, both in Supreme Court and your circuit's opinions. For instance, I was well-versed in death penalty, habeas, and antitrust when I arrived, so I was able to get the cases that I was interested in because the other clerks would have had a much bigger learning curve.
It's not enough that you will be writing better than the lawyers filing briefs. You need to learn the art of saying all that needs to be said, and nothing that doesn't. It's much more difficult than you realize.
One good exercise I recommend: turn a few decided cases from your court/judge inside out, by first reading the briefs, then drafting an outline of how you think an opinion should be structured, which you can then compare to the court's product. If you can't get opinions or briefs for your court, then perhaps try with the 7th Circuit, which makes briefs available on its website.
My recommendation is to go out of your way to develop a good working relationship with your judge's secretary. Your relationship with the judge's secretary will be the single most important relationship you have in your clerkship; it's more important than your relationship with the judge or with your co-clerk(s). In most judicial chambers, secretaries run the office; as a law clerk, you absolutely need the trust of your judge's secretary to be effective at your job. Plus, how your judge views you will be colored by how the judge's secretary views you: Law clerks come and go every summer, but secretaries can stay for decades, and judges usually rely on them heavily. A good relationship with your judge's secretary will make your clerkship a real pleasure; a bad relationship with your judge's secretary will make it your year very difficult.
That's my two cents, at least.
Before I drafted my first opinion for my circuit-court judge, I took 8 or 10 of his opinions and turned them into outlines, to see how he liked to structure things. It was a helpful exercise.
(1) Obviously, you should know how to bluebook (or your judge’s citations preferences) and how to cite check properly (e.g., using WL’s PDFs of Federal Reporters).
(2) The more you know about WordPerfect, the better. There’s lots of functions/macros – many of which are not obvious – that make formatting an order easier than it might otherwise be. FYI: at the district court level, PDF all orders before they're signed so you can see how they'll appear on Pacer. (You may be surprised what shows up.)
(3) Although not all clerks work on sentencings/appeals thereof, if you will be working on them going to a USSG training seminar is worth your while. (Unlike most things, the USSGs are not intuitive).
(4) You might want to ask your judge to send you copies of his/her orders (or search on-line) to get a sense of the chambers’ work-product.
(5) Most of the opinions that law students read are fairly mediocre writing, so start reading good opinions. Judge Easterbrook’s are a good start, as is Bryan Garner's Elements of Legal Style. The Green Bag’s best legal writing issue is another good resource. And it’s always worth it to read good journalistic-type writing geared to the intelligent layman (e.g., stuff in/by The Atlantic, the WSJ, the Buckleys, C. Hitchens, John Tirney, Le Ann Schreiber, etc...).
(6) No judge/chambers knows everything, or even most things about the law/legal writing. There’s nothing wrong with making suggestions (e.g., that the stand-by Title VII order could be updated; or that a claim construction in a patent case might look better if diagrams from that patent are imported into the order). Just don’t be a prick.
(7) Especially for underclassmen interning, unless asked never turn in something that’s “almost done,” expecting the judge to smooth it out. Unless you’re clerking for someone like Easterbrook, Luttig, or Scalia, it’s likely (certain at the district court level) that you’ll know more about the case than your judge.
(8) Unless you’re working for someone like Kozinski, clerking is fairly easy unless you procrastinate and work piles up (trust me, it will!). Being organized is far more important than being clever.
More generally, I think Orin's advice (like many of these postings) transcends the clerkship experience - they are good suggestions for nearly any workplace - legal or otherwise.
I do have to say, however, reading your judge's previous work product may or may not be beneficial. Some judges heavily edit their clerks' work and others will sign off on both orders and opinions so long as they are well-written and reflect the judge's view on the case -- this is especially true, at least in my experience, at the district court level.
But the only thing my (federal appellate) judge gave me when I asked about what I should do to prepare was a copy of "Opinion Writing" by Judge Ruggero J. Aldisert, mentioned earlier by bobolinq.
Actual clerks should obviously be required to know more, but this probably isn't a bad start.
1. Classes: (1) Fed courts; (2) Fed courts; (3) Fed courts; and (4) Admin. Every substantive area of law you can learn, for the sake of a particular case, in two days. You can't with those two; they permeate almost every case.
2. Books: (1) Chemerinsky's Federal Jurisdiction; (2) Chemerinsky's Federal Jurisdiction; (3) Chemerinsky's Federal Jurisdiction. Despise the man, love the book. The single most valuable thing I did before my clerkship(s) was to reread this book from front to back.
3. Other: Read your court's rules. The lawyers will be familiar with them, and will cite them to your judge (who may or may not be familiar with them), who will then look to you for explanation. Also, know if your court has a different citation format for opinions than the Bluebook. (I would say to know how to Bluebook, too, but you should already know that...)
4. Other, part II: read How Appealing every day.
I don't understand these recommendations of books on "how to write." If you got the appellate clerkship, you know how to write at a given high threshold level. And you're going to shape your writing to the style of your judge. So a generic book on "opinion writing" doesn't seem of much value to me. If anything, read all the opinions your judge has written in the past couple of years (if you haven't already), and observe and absorb his or her writing style.
Finally, remember your roles within the chambers. You serve as the judge's counsel and hired gun. You offer bench memos and legal opinions that he will use in making decisions. You become the hired gun once the decision is made. Your job is to make it sound persuasive, regardless of your personal judgment on the matter. By the time you have written the first draft you will know more about the law than the judge. So your first draft should include your own comments, point out weaknesses, and should inevitably be longer than the final draft. Give the judge all valid legal arguments in the opening draft, that way he is aware and knows what is available.
As for reading, read your judge's opinions. All judges have a very distinctive style. Even basic stuff, like the serial comma, can vary from judge to judge. My judge has some very odd style preferences. The sooner you can adapt, the better.
1. Take the time to get to know the clerk you're replacing. Take her to lunch and find out all you can about your judge's preferences, tendencies, quirks, what have you. If you can, take a few days to shadow the outgoing clerk. If possible, ask for a copy of all of the orders, memos, jury instructions, etc. she's written for the Court and get them on disc so you can a) get a feel for what the judge likes and b) not have to reinvent the wheel when drafting your own work. I'd have been lost if I didn't have four years of prior clerks' work to guide me.
2. Use the clerk network. That is, find out who the clerks are for other judges, other circuits, what have you, and get to know them, too. Then give them a call when you need assistance. I never had a problem contacting a fellow clerk for advice or assistance on an issue. For example, I knew one judge had similar procedural issues before his bench that we had before ours. I contacted his clerk and got some good, solid advice on how to deal with sorting them out. Later, his successor contacted me for advice on another issue. Remember, most clerks are in similar situations to you, understand when you need help, and usually will.
3. Last advice. Try your best to be on good terms with the permanent staff. You cam have a great rapport with your judge but if his secretary - who has been with him since you were in junior high - doesn't like you, you're in trouble. You're probably going to be gone in a year or two, while this job is her career and she's not going anywhere. I'm pretty confident that if it had ever come down to a me vs. her choice, the judge would've taken her.
Also, you're going to dealing with a lot of government employees. The court administrator/circuit clerk/prothonotary and staff were there before you and will be there after you leave, too. Moreover, they'll have vital information, they'll know where the files are, etc. And often, they don't have significant post-secondary educations. So, for the love of all that's holy, DO NOT go into their office with an "I know more than you do since I'm a law school graduate" attitude. They get enough of that from the lawyers they deal with every day. Be polite, learn their names and birthdays, and they'll help you. Better yet, they'll help you once you're out in the real world practicing actual law.
Both of my judges realized that it's much more critical that a potential clerk simply be bright, articulate, and a talented writer. And (perhaps most importantly) have a personality that meshes with the judge's. Everything else is pretty much on-the-job-training. So don't fret over which classes you had or didn't have.
For similar reasons, I think the Pepperdine boot camp is ridiculous. Every judge is going to be different in how their chambers are run, and most big courts have all-clerk orientations that give you basic info on how the court (beyond chambers) operates.
If you want to read something beforehand, read FRCP and FRAP, depending on which court you're clerking in, and maybe the FRE. And the local rules. I know they won't make sense out of context, but hopefully you'll recognize things that pop up during the clerkship. Take a look at something like Mauet's Trial Techniques to get a flavor of how contested hearings go, or Simon's Anatomy of a Lawsuit to get a sense of how litigation begins, climaxes, and ends.
Other than that, just be prepared to have an amazing experience. Pretty much all my friends who clerked agree: it was one of the highlights of their legal career.
I was a clerk for a state Supreme Court Justice some three decades ago.
I still feel a touch of horror with the idea that I was in such a position. At that point in my career I actually had some life experience, both in the military and in a job.
But the range of substantive law issues which came before the Court was also very broad--much broader than the law school curriculum--or maybe just much broader than I had absorbed.
And, more critically, it turned out that I knew practically nothing about how the world actually worked and how the decisions of the court I was serving would actually play out.
Some of the posts refer to the low quality of written work presented to the appellate courts. I don't disagree and saw, and continue to see, three decades later, plenty of poorly written briefs.
But this fact should not disguise the truth that the attorneys presenting the briefs nonetheless actually do know their cases and have some valuable thoughts and opinions on what the law is or ought to be. They also likely have a much better idea than the typical lawyer right out of law school as to the effect of a decision going one way or another.
In other words, I suggest a strong dose of humility as the single, indispensable prerequisite to a clerkship.
And I have also wondered, from time to time, whether it might be better to postpone clerkships until lawyers had served a time--maybe five or ten years--as attorneys. Of course, this creates obvious and maybe insurmountable problems in itself.
Having said all that, I also agree with other posts which state that serving in a clerkship was a unique privilege, and a career highlight.
(1) Course recommendations: Bankruptcy is obviously a good idea, but may not be as big a help as you'd think. It's certainly better to have taken it than not, however. Fed Courts/Fed Jurisdiction is probably more necessary for higher, nonspecialty courts than this one. Bankruptcy courts have their own jurisdictional statutes that would get little or no attention in a traditional Fed Courts class. For the bankruptcy clerk, the most critical classes that you might not think to take on your own, because their utility may not be intuitively obvious, are Secured Transactions and Remedies. Possibly Advanced Legal Research as well, but quite honestly, I didn't take that and I've encountered only one or two research tasks that I couldn't complete on my own thus far--and a phone call to the circuit librarian got me an answer within the same day in both cases.
(2) Reading recommendations: I spent the first half of the summer between 3L year and the start of my clerkship reading Bar/bri books and the second half reading Robert Jordan, Jim Butcher, and Jacqueline Carey. (And Volokh, of course.) I don't think I was any less prepared than anyone else who'd never clerked or interned in a judicial setting before.
(3) Other: Make as many friends and as few enemies as possible in your first week on the job. That's common sense advice, but sometimes people ignore the obvious. I'll second Rob A.'s advice on this point (and the rest of his points, for that matter). I'd also add striking up an e-mail correspondence with the prior clerk in her last few weeks on the job, or earlier, especially if it's not a local court and you therefore can't meet in person more than once or twice.
If you don't prepare in advance, you'll figure it out anyway. You're smart, you got this far. But knowing something about these high-volume areas could flatten the initial learning curve quite a bit.
Many incoming clerks need to get over an initial confidence hurdle. Yes, the job is important and in many ways, you are shaping the law and impacting lives, but you probably already have decent instincts, are well-versed in the law, and an excellent writer. Many times, a new law clerk will ask me, "This case is about X, binding precedent says we should do Y, what should I recommend?" Of course, if binding precedent says you do Y, then you recommend Y. However, many new clerks are overwhelmed and forget to trust what they already know.
Don't forget, judges are people too and despite the occasional bitter dissent, they are very collegial with each other.
Finally, always be honest about your feelings on a case, especially if something troubles you. Your judge will appreciate it and in my experience, doing so has resulted in better conversations and opinions.
First, talk to some or your judge's former clerks to get perspective on the job, how your judge approaches his or her job, how the chambers work, who the staff are (very, very, important to get on well with the judge's secretary/assistant), what are the expectations (from dress, arrival time, lunch, etc.--you will care about these little things when it's your daily routine).
Second, read some of your judge's recent opinions (again, if you've already read them in the interview process) to get a flavor for the judge's style. Does the judge use footnotes? Is the Judge a Faulkner or a Hemingway? Look at the structure of the opinions, too, especially if your judge has you write draft opinions (as many do).
Third, read the applicable court rules (FRAP, FRCivP, FRCrimP, etc.). Read other resources on appellate or judicial opinion writing--written by judges (Aldisert, Coffin books noted in some posts are good). Study up on usage--Garner's Modern American Usage is my personal favorite.
Fourth, take a good vacation before you start your clerkship. You want to be in the proper mental and physical state when you start.
And don't do what I did, locked my keys in the car the morning I was supposed to start.
What happens in chambers, should stay in chambers. Gossip --however banal-- travels very, very quickly in courthouses, especially at the district court level. Your judge's chambers should be a blackbox to everyone, including non-chambers court personnel.
Your general advice not to be an arrogant prick is, of course, excellent, but I'd say that the choice of "we" versus "the court" is very much a matter of local style, and not necessarily indicative of anything.
When I was clerking (also at a circuit court), most of the clerks--myself included--regularly used "we" in bench memos and in conversation when referring to the court where we worked. Clerks aren't the judge, but they're part of the team (and, for that matter, a single judge isn't "the court" either, at the appellate level). But I don't think anyone really analyzed it that far--people just used it because it was shorter and simpler.
The moral here, I think, is that the single best guide to what your judge expects is the old bench memos written by your predecessors. When you arrive, have a look at a number of them, and try to imitate their style, at least as a starting point.
2. Agreed with Prof. Kerr re: develop a good working relationship with your judge's secretary/assistant. My experience was also that the secretary runs the office, knows how to get things done, and has the judge's trust, and that you need to have a good working relationship with that person to do your job well.
3. If you absolutely must read something before clerking, Frank Coffin's The Ways of a Judge is a good book to read.
4. It isn't rocket science. Most things you can figure out by having a good attitude, paying attention, asking questions, and developing a good working relationship with the other people in chambers. Every judge is slightly different, and your role is to assist your judge in doing his/her job.
Whenever I hear a law clerk say in an interview (or worse, on the resume) that he or she "drafted the X opinion" or "participated in oral argument," a little warning bell goes off. Those are things that judges do, not clerks. Every opinion is the judge's, even if every word but one came out of your word processor. You're there to do the judge's work, which requires both humility and discretion. Continue to demonstrate those qualities after your clerkship. You'll earn the silent respect of clerks who've gone before you.
As for the resume description, keep it to one line. Everyone knows what law clerks do.