So you are, will be (or want to be) a law clerk: Some brief observations and suggestions
By Gregory S. Fisher
Judge Richard A. Posner, a celebrated scholar and Circuit Judge on the United States Court of Appeals for the Seventh Circuit, implies that law clerks are a necessary evil,1 which, I suppose, is better than being an unnecessary one. Professor Victor Williams, who teaches at Catholic University's School of Law in Washington, D.C., warns that reliance on law clerks 'retards the overworked judge's development of his own judicial voice and, in some cases, his very competence.'2 I am a law clerk. I didn't start out this way. I won't finish as one. But for the time being I'm here which at least gives me a paycheck and the belief (conceit?) that I'm holding down a necessary job.
In truth, I've been extremely fortunate to serve as a law clerk to a federal district court judge for almost four years now. It began as a brief sabbatical from private practice and has evolved into a career change of sorts. I will hold this position for another month or two at which time I will join the Chambers of a Ninth Circuit Judge in Arizona. Along the way, I've learned a little about clerkships, both applying for and performing the job. Experience being a hard school, I've learned some lessons more than once. As funny as it now seems, those lessons and my experiences may actually help someone. This brief article is directed to prospective or new clerks, or law students considering whether to clerk or not. Its intent is to assist those who are considering applying for a clerkship and those who've recently been hired as clerks prepare and perform their duties.
The observations in this article are based on my own experiences and my conversations with friends who are current or former clerks at the state or federal level. Living in Alaska, my perspective is Alaska-based. All references to state courts should be understood as referring to Alaska State courts. I don't think our experiences here in Alaska are all that much different from other state courts. But the context should be understood. My experiences include those years I spent as an assistant district attorney in Fairbanks and in private practice in Anchorage before applying for a clerkship. The experiences of my friends who have clerked have been similar yet different in many respects. To the extent that I recommend or imply any guidelines, they are intended as general recommendations.
No matter how intelligent they may be, surprisingly few law clerks or applicants have a clear idea of why they want to clerk. Former clerks have even less of an idea. For most, perhaps the majority, it's a rung in the ladder that follows Law Review and precedes a sought after position in public or private practice. A good clerkship looks great on one's resume and opens doors. For others, a clerkship is a way to defer career choices for a year or two, or maybe rethink one's priorities. There's no doubt that these are realistic (perhaps even valid ) reasons why people seek clerkships. However, a clerkship is more than a way to pad one's resume or goof off for a year before joining the real world. A good clerkship is part advanced academic seminar and part finishing school. It's extremely difficult to describe the relationship between a Judge or Justice and law clerk. Nothing I have experienced or seen comes close. A junior staff officer to a General may be close, but the analogy somehow seems unsatisfactory since it implies a level of skill which law clerks lack. In my own mind, I've concluded that a good clerkship is a learning opportunity not unlike a medieval guild. You apprentice yourself to a master, your Judge or Justice. You learn from that person. Some of the lessons are painful, some terrific. Most of the lessons are indirect or implicit, and may often have little or nothing to do with the law. All of the lessons are valuable. No matter what you know or think you know, no matter what talents you have or believe you have, a good clerkship will challenge you, elevate your skills, and make you a better person both personally and professionally. You may even pick up mannerisms or styles unique to your Judge or Justice in the same way that Rembrandt's apprentices perfected and perpetuated their Master's art. If you are thinking about applying for a clerkship or are beginning one, you should be aware of these broader implications. A clerkship is much more than a way station or resume-padder.
TYPES OF LAW CLERKS
Whether you are a clerkship applicant, thinking about applying, or have been hired, it is useful to know a little bit about the types of law clerks. Understanding these types may assist applicants identify options and help new clerks effect the transition from school or work to clerkship.
Law clerks tend to fall within one of three broad groups. The traditional law clerk is a recent law school graduate who has never practiced law. Traditional law clerks typically graduate from top 25 or 30 law schools with grades in the top 20% or better of their class and significant extracurricular experience such as Law Review or Moot Court. A rising number of law clerks are non-traditional: practicing lawyers on sabbatical or seeking a career change, perhaps to academe, perhaps elsewhere. I am a non-traditional clerk. Like traditional law clerks, non-traditional law clerks usually have strong academic and writing backgrounds. Both traditional and non-traditional clerks are hired for specific terms usually being one or two years depending upon the court and the Judge's preference. The third group of law clerks are career law clerks, also called 'elbow clerks' in the federal system. I don't know how this term originated.
There are advantages and disadvantages associated with law clerks in any of these groups. The traditional law clerk is apt to be most familiar with developing research techniques and the latest legal developments. Good law schools are crucibles for ideas, theories and trends. The traditional law clerk usually enjoys a broader perspective on general fields of law. Law school affords one with a good grounding in the basics, as does preparation for the bar exam. However, the traditional clerk's intelligence is not tempered by experience. The traditional clerk may also lack the mature perspective that experience and specialized practice offer.
The non-traditional law clerk typically has better research skills, is more disciplined, and budgets time more efficiently. Because of his or her experience as a practicing lawyer, the non-traditional law clerk may also be able to 'read between the lines.' However, most practicing lawyers specialize in one legal field or a limited number of fields. Thus, the non-traditional law clerk may have more difficulty in researching and analyzing different fields of law. The non-traditional clerk's technical skills--writing, proofing, and citing--may also be less sharp. Good law schools teach good habits and skills. Unfortunately, and contrary to popular belief, these tend to grow stale in public or private practice.
Career law clerks are a distinct, but distinguished, minority. Whether they started as traditional or non-traditional law clerks, career clerks have perfected skills which materially assist their respective Judges administer their duties. To my knowledge, there are no career law clerks in the Alaska state system and only a few in the federal court system in Alaska.
THE APPLICATION PROCESS: IS A CLERKSHIP RIGHT FOR YOU?
After watching for a few years, it's my opinion that a large number of people drift into clerkships without too much forethought. Although for most people the decision and its consequences are not difficult to make or bear, if you are applying or considering applying for a clerkship you really should make an effort to question whether a clerkship is right for you. If you are still a law student, a judicial externship or internship may be the best way to see how courts operate and get an idea of how clerks work. If you are in practice, present and former clerks are an excellent, perhaps the best, source of information. Regardless of your circumstances, applying for a clerkship should not be a casual choice.
THE APPLICATION PROCESS: ARE YOU RIGHT FOR A CLERKSHIP?
If you have applied or are thinking about applying for a clerkship, you need to have a realistic sense of how competitive the hiring process is, particularly with respect to the court for which you would like to clerk. The competition for clerkships is tough. The numbers I cite here are rough estimates based on unofficial sources, but I believe that they are generally accurate. If you are a federal district court clerk, probably 115-150 other people applied for the position you secured. Of those, perhaps 15 were interviewed. If you are a federal circuit court clerk, those numbers bump to the 150-225 range (sometimes higher) with perhaps 5 to 10 interviewed. The numbers for State clerk positions run significantly less, but are nevertheless higher than the number of applicants for most jobs in private or public practice. The only significant point is that a lot of superbly qualified folks apply for clerkships.
The hiring cycle is about two years out for most federal clerkships. For example, most federal Judges hired their clerks for positions opening in September 2002 between December 2000 and March 2001. I believe that is fairly common in all federal courts. That means that applications were being submitted and reviewed as early as October 2000 (or earlier) with interviews following in the subsequent months. This may change in the near future as federal judges are attempting to establish guidelines restricting hires to third year students. But even then, the hiring cycle would precede employment by about a year. It's my understanding that a similar hiring cycle affects placement with the Alaska Supreme Court or Court of Appeals. I don't know how far in advance Alaska Superior Court judges hire their clerks, but to be safe I would assume they are hiring anywhere from 6 to 12 months out. The point is that a clerkship is not, and should not be, a quick cycle decision. You not only have to believe that you are interested now, but you have to know that you will still be ready and available for the position a year or two down the road. The bottom line is that, whether you are applying for a clerkship or have secured one, you should respect the fact that it is a highly competitive process. If you have been fortunate enough to secure a clerkship, you have been selected over a large number of other applicants most of whom had skills and qualifications as good or better than yours. This does not mean that you were the best applicant, just the luckiest.
WHAT SKILLS YOU NEED (OR SHOULD HAVE)
In a certain sense, all the wrong people get hired as law clerks for all of the wrong reasons. State or federal Judges or Justices usually want to hire the best available talent. Each has his or her own criteria. However, typically Judges or Justices are looking for applicants with strong academic backgrounds, excellent research and writing skills, and an ability to effectively and concisely communicate ideas. In the abstract, there's nothing wrong with these criteria. A good law clerk or applicant should enjoy research, writing, citing, and proofing. You should be comfortable studying, analyzing, and discussing law and policy. You should be (or aspire to be) a student of the Court, both your immediate court and its superior branches. If you are a federal clerk, you should particularly enjoy Civil Procedure and Constitutional Law.
However, a prospective clerk's talents are often counter-productive to the demands of the job. Intelligent people tend to be opinionated and passionate about those opinions. But strong opinions are not conducive to objective analysis. Bright young law students or lawyers are classic over-achievers who have always tested well and finished at or near the top of their respective classes. A certain humility, however, is an absolute prerequisite for law clerks. Recently graduated law students may be inclined to defer too readily to the courts they serve, and be reluctant to question premises discussed in Chambers. Respect is important, but good Judges need law clerks to serve as sounding boards to test theories. Bright law students and lawyers know everything except their own limitations. They can be difficult to coach. But a good clerk should be open-minded and adaptable. Intelligent law students and lawyers boast strong academic backgrounds. However, education untempered by experience can lead to disaster. Education with experience may even be a more volatile concoction for unwary law clerks.
The end result is that you should develop an appreciation for your strengths and weaknesses, and recognize that some of your supposed strengths may, in fact, be weaknesses. If you learn this, you may be able to avoid the greater pitfalls which trap other clerks.
WHAT YOU CAN EXPECT
Generalizations are difficult because each Judge or Justice runs his or her Chambers differently, and each court performs its own unique functions depending upon its precise role in the system. However, in broad overview, there are some similarities between all clerkships at any level such that some general observations can be risked which will probably not be too inaccurate.
Your life as a clerk will be much less stressful than it is for your colleagues in practice. Time is relative. There are no demanding clients. There are no billable hours. There are no marketing or client development pressures. There are obnoxious lawyers, but none opposing you. Overhead is not an issue. Resources don't tend to be a problem. For the most part, there are no deadlines to worry about, the court sets the deadlines. There are no uncertainties. Except for your Judge or Justice, you know what the result is going to be before anyone else does. There are no professional or financial risks. No one is going to sue Chambers for malpractice. You will enjoy the luxury of time, of being able to think and reflect at your leisure before submitting work product.
However, in other respects, a clerk's responsibilities are much more taxing than those faced by lawyers in private or public practice. You are expected to assist the Judge make decisions, usually mundane, sometimes significant, that affect the lives of other people. You do not have the luxury of specializing in a field. You may be expected to analyze and master issues in a field of law which is totally foreign to you. Although the parties' respective briefing may (or may not) be helpful, you really cannot stop with their research. Your Judge or Justice will be relying on you, your research, your analysis, and your conclusions. You are attempting to help your Judge or Justice reach the right result(s) for the right reason(s) in each case. That sounds easy. It's not. If a mistake is made, and you will make a mistake somewhere along the line, you risk adversely affecting the lives of real people to say nothing of embarrassing your Judge. If you are lucky, the adverse consequences attending your mistakes will be minimal and easily corrected.
As a clerk, you will have an excellent opportunity to observe practice in your community. You will read, analyze, and summarize a broad range of motions and briefing, all falling on a Bell Curve. You will see countless oral arguments on motions or appeals. You will probably see at least one jury trial, perhaps more, and a certain number of evidentiary or related hearings. You will get a good chance to see your Judge rule on matters and, if you are fortunate, to discuss those rulings with him or her in Chambers. You will read administrative and trial records. You will know more about community norms and standards of practice than senior partners in established firms. You will see the very best and the very worst. In the federal system, you will have an opportunity to be exposed to a broad range of legal issues. In the state system, your Judge may be assigned to a particular docket, in which case your opportunities may be somewhat more limited. But in either system, you will benefit from a perspective which is part ringside seat and part backstage pass rolled into one. It is a fantastic ride.
RULES AND YET MORE RULES
There had to be rules, right? These are my rules, guidelines that I've developed through the years to minimize the damage that I can do as a law clerk. There are only six rules, seven if you count the first rule addressing jurisdiction. I have broken a good number of these rules (but not the important ones) which I think is the prerequisite to sharing them with you.
(1) Check Jurisdiction: This first rule has limited applicability, but unlimited significance if you are or will be a federal clerk. Always check the grounds being asserted for subject matter jurisdiction. This was the first advice I received from my Judge, and about the best practical rule to follow. Federal courts are courts of limited jurisdiction. Make sure that a basis for the court's subject matter jurisdiction exists and that it is adequate. Subject matter jurisdiction is perishable. Therefore, check the jurisdictional grounds with each motion that surfaces, and at each stage that requires your attention. Never assume that the parties have it right.
(2) Do no harm: For some reason, perhaps undeserved you've been extremely lucky to be hired. Whether because of your intelligence or education or background or whatever, you have been accorded a special privilege to serve the Court. Don't abuse that privilege. Be invisible. Break no trust or confidence. You are a temporary care-keeper of your Judge's reputation and the reputation of the Court as an Institution. Never do anything to endanger the reputation of either. It's true that if the Ninth Circuit or Alaska Supreme Court reverses your Judge, your name appears nowhere. Neither the Ninth Circuit nor the Alaska Supreme Court will signal you out. However, Judges and Courts have reputations protect your Judge's.
(3) Serve the Court: If and when your Judge or Justice solicits your thoughts on an issue, be responsive, respectful, and responsible, but do not be a 'yes' person. Do not be afraid to challenge your own assumptions and conclusions. Do not be afraid or reluctant to challenge assumptions or conclusions voiced by your Judge or Justice. He or she is counting on you to backstop the Court.
(4) Park your agenda: We all have political or social opinions. However, whether drafting a bench memorandum, an order, an opinion, or simply responding to inquiries in Chambers' conferences, a good law clerk should be scrupulously apolitical. Your Judge is depending upon you for an objective and accurate analysis. You are not an advocate. Good law clerks, like good referees or linesmen in hockey, are invisible. The best reputation a law clerk can have is no reputation.
(5) Check your ego: You are a law clerk. You are not a Judge or Justice. The Judge or Justice is responsible for all decisions. He or she makes the final call. Your role is to offer the best advice that you can commensurate with your intellect, experience, training, and education. However, don't be surprised or disappointed if your best advice is rejected. Judges tend to be pretty bright people. They may know a thing or two that you don't. On an unrelated subject, respect staff and other court personnel. They all have important jobs to do.
(6) Remember Research Fundamentals: Always check cases to be sure they remain good law. Never assume anything. Don't be afraid to look beyond the parties' briefing to determine whether all relevant issues have been raised and briefed. However, don't litigate cases for the parties. Keep an open mind. Don't get wedded to conclusions too quickly. Don't be afraid to challenge your own assumptions and conclusions. Develop a research protocol that enables you to diligently complete assignments in a timely and competent manner. One protocol that works for most is 'rara': (1) research; (2) analyze; (3) reflect; and (4) advise. But find one on your own, formal or informal, that you can live with. Before you reach the stage of tendering advice, stop and ask yourself if your conclusions make sense. Think before you speak. Never trust your first impression of a case or file. Don't be afraid to think about the specific issue you are researching in a broader policy sense.
(7) Maintain Perspective: Don't forget that each file you pick up and each motion you are tasked to analyze involves real people with real problems. Those people have brought a dispute to the court. They need an answer. It would help them to get a timely answer. Justice delayed really is justice denied in many situations. Someone is apt to be disappointed. But a disappointing answer is at least an answer. Be diligent. No one may want to wade into that bankers' box of exhibits and briefing, but nothing will get done until you do. Most cases will settle. Unless you are a clerk at the Alaska Supreme Court or Ninth Circuit, your court is not writing for the ages. Don't hit for the fence on each swing when a single will do the job.
My intent in submitting this brief article was to assist those who are considering applying for a clerkship or those who've recently been hired as clerks. If I am successful, I will assist at least one person avoid the mistakes I have made along the years. I believe any attorney would benefit from serving a clerkship whether at the outset of one's career or mid-career on sabbatical, and I would encourage any law student or young lawyer to at least consider clerking for a state or federal court.
(1) A. Rubin & L. Bartell, Law Clerk Handbook (Federal Judicial Center rev. Ed. 1989). Authored by Judge Rubin and one of his former clerks who is now a partner at a New York firm, the Law Clerk Handbook is currently the basic training source for all federal law clerks.
(2) R. Posner, The Federal Courts: Challenge and Reform (1999). Judge Posner's reflections on the federal court system include several observations on law clerks and their role serving courts.
(3) B. Woodward, The Brethren (1979). An interesting, if dated, study of the United States Supreme Court.
(4) E. Lazarus, Closed Chambers (1998). Written by one of Justice Blackmun's
former clerks, and a current Assistant United States Attorney, Closed Chambers is a controversial book that offers lawyers, law students, and clerks a different perspective on judicial philosophy and decision-making. The book also implicates issues related to confidentiality and clerkship ethics.
(5) http://lawclerks.ao.uscourts.gov/ Website for the Federal Law Clerk Information System. It includes a search capacity to find federal clerkships.
(6) http://www.state.ak.us/courts/prosclerk.htm Website maintained by the Alaska Court System providing general information for prospective law clerks, including salary and application information.
(7) http://jurist.law.pitt.edu/clerk.htm Academic website which includes articles, news, and general resources regarding law clerks.
The author has practiced law in Alaska since 1991, including three years as an Assistant District Attorney for the State of Alaska. He is currently a law clerk for the Honorable John W. Sedwick, United States District Court, District of Alaska Judge Sedwick, and has accepted a term clerkship to commence in September 2002 with the Honorable Barry G. Silverman, United States Court of Appeals, Ninth Circuit. The opinions and views expressed in this article, along with any mistakes, are solely the author's and do not reflect the views or opinions of any court or employer with whom the author has been associated.
1 See Richard A. Posner, The Federal Courts: Challenge and Reform at 139-59 (1999).
2 See Victor Williams, 'Justice Denied,' The American Lawyer (October 12, 2001).