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How to Be a Great Law Clerk

By David J. Richman

The best law clerks know how to prepare their judges for hearings, trials, and oral arguments, and they manage dockets so matters are resolved timely, thoroughly, and correctly. Law clerks wear many hats—gatekeeper, scheduler, administrator, writer.

Rulings on dispositive motions constitute the majority of the written work assigned to the trial court law clerk. Preparing initial drafts of appellate opinions is almost exclusively the work of the appellate clerk. The neophyte law clerk’s most difficult task is making the actual recommendation on how to rule. If the judge has reviewed the case and directs the result, the difficulty may be resolved. But what if the law clerk decides on further review and analysis that the judge is wrong? Or, what does the law clerk do if the judge does not direct the result, and he finds himself writing on a clean slate?

First, it behooves the clerk to approach each case without bias, setting aside whatever predilection she might have as to which side is correct. Whether the movant or appellant is plaintiff or defendant, an environmental group or a government agency, a large corporation or an individual employee, that factor must be ignored from the outset. Second, in reaching a decision and presenting the matter to the judge, the clerk must grasp and present the arguments made by both sides and weigh them against each other. It is a disservice to the judge if the law clerk first makes up her mind and then presents only that argument to the judge. In the end, it is the judge who must decide the case, and he cannot do so fairly if the full picture is not placed before him. Third, having reached a recommendation, the law clerk must be prepared to defend it vigorously, particularly if the judge does not at first agree. The in-chambers debate between clerk and judge over a proposed decision is comparable to the process of refining precious metals. The dross is identified and eliminated, the pure gold remains, the nuggets are harvested, and the ruling is purified through this smelting process. Over time, the clerk who demonstrates her acumen gains the trust of the judge, develops confidence in her own work, and becomes better prepared to serve as a lawyer when she leaves the security of the chambers.

Mechanically, I often found that beginning by writing a detailed rendition of the facts of record, without having reached the legal conclusion, would dictate the ultimate result. If the motion is one for summary judgment, and a rendition of a consistent set of facts is impossible because they are in dispute, the decision on the motion is obvious. Similarly, in an appellate case, the facts may have been found by the court below, but searching the record may reveal that they are unsupported. Again, this result may dictate the decision of the case. Thus, my basic advice to law clerks is to start writing and not to think about the direction your pen will take you. When you reach the end, the result will appear. The extraneous matter in the draft can be edited out or eliminated through discussion with the judge.

To whom are the law clerk’s efforts directed? To be sure, the primary task is to assist the judge in correctly deciding the case. Yet, the effective law clerk can do more than deliver a correct result. The clerk should consider the multiple audiences to whom the order is addressed as the draft progresses. Although the purpose of the final issued order is to resolve a dispute between litigants, the astute clerk may want to prepare a draft order that aims beyond answering only the question presented. Accomplishing the dual purpose of informing the judge about the facts and educating him as to the law may require the clerk to include more factual details in the draft than will ultimately appear in the final order, or to discuss the law more thoroughly than necessary to resolve the pending issue. At the trial level, providing more facts in an initial draft of a summary judgment order than necessary to decide the matter can give the judge valuable background about the parties’ positions. Recording this information and saving it in a computer file can be useful when subsequent disputes arise. If the judge is later called upon to resolve arguments over the scope of discovery or the admissibility of trial exhibits or testimony, a written document that has already set forth the basic facts will expedite that decision.

Where claims arise in a legal area unfamiliar to the judge, the draft order may include a broader discussion of the basic legal premises than is necessary to decide the actual motion. A federal judge may not have practiced in such specialized areas as patent, copyright, or trademark law. Likewise, the state appellate judge may not have practiced in domestic relations, administrative appeals, or parental terminations. A primer on the subject law will assist a trial judge in handling the case and facilitate preparation of jury instructions and rulings on mid-trial motions. It will make the appellate judge’s next case in the field less time-consuming. The additional facts and extraneous discussion will be eliminated from the final opinion, but their initial inclusion may educate the judge and provide a long-term benefit.

The competent trial clerk must keep in mind that the final issued order may be subject to appellate review. Just as it is important for counsel to make a “good record” for appeal, the well-written district court order contains a good record in the event of an appeal. Accurate and comprehensible citations to the record, whether by footnote or parenthetical, should be included in all drafts of proposed orders. If the order is appealed, meaningful review will depend on the appellate court’s ability to readily identify the facts or evidence the trial judge relied on in reaching his decision. Neither the trial judge nor the appellate tribunal should have to hunt through the record to ascertain the basis for the decision.

A third audience to keep in mind is the legal community in general and other readers of court decisions, such as insurance companies, public agencies, and the business community. Many cases present issues of first impression, at least in the jurisdiction where the judge sits. Any law clerk working on an order that has potential implications beyond the immediate parties should ensure that the opinion addresses the issues in a comprehensive manner, understandable to non-parties as well as to litigants. Of course, the legal analysis must be clear and complete, but it is also important to keep in mind the level of detail to include in such published cases. In drafting an opinion that interprets an insurance policy, the clerk should ensure that the policy language is carefully and completely set forth because other insurers may rely on the opinion to adopt or modify language in their policies. In a case challenging the actions of a public official, the precise contours of the alleged conduct must be described in detail because other agencies may look to the opinion for guidance in directing their employees’ conduct. If the case involves a business practice common to an industry, an accurate description of the practice will assist the reader in determining whether to modify its own business conduct based on the actions at issue in the case.

Finally, every order issued must employ accurate legal scholarship. Although she may be pressed for time, the careful law clerk should make certain to read every case that is cited in the order and not merely insert or rely on the descriptions provided in the parties’ briefs. Although the lawyers are ethically bound to cite cases accurately, in the end, they are advocates. They may not read the case in the same light as the neutral law clerk striving to achieve the correct result, or they may not relate that a precedent was modified or reversed.

Whether any of these drafting approaches meets the needs of the particular judge depends on how much effort the judge wants the law clerk to devote to each order. Expedited resolution may come at the cost of thoroughness. Different situations demand different approaches. Nonetheless, the law clerk who strives to deliver a product that is accurate, well balanced, complete, and timely makes a substantial contribution to the judge’s success on the bench and to the judicial system as a whole.

Keywords: Litigation, career development, law clerks

David J. Richman has served as a law clerk to several judges, was in private practice for 25 years, and now sits on the Colorado Court of Appeals.

This article was adapted from a longer one that was published in the Summer 2009 issue of Litigation.


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