JUDICIAL CLERKSHIP GUIDE
You should read this entire guide carefully if you are seriously considering applying for a clerkship. We also recommend that you make an appointment with a CDO Career Advisor to discuss the application process in detail.
I. BENEFITS OF A JUDICIAL CLERKSHIP
This guide has been created to assist you with the process of applying for judicial clerkships. These pages present you with an overview of the U.S. Court System, a description of the judicial clerkship experience, a discussion of the application and interviewing process, and a listing of several resources you will find helpful. The Career Development Office (CDO) would be happy to assist you in the process. We have several useful written resources as well as staff who can discuss the resources and the process with you.
While the hours may be long and the salary modest, the benefits of clerking are numerous. The rewards include:
t Learning more about the judicial process in one to two years as a clerk than most attorneys learn in a lifetime;
t Gaining insight into what constitutes a good lawyer, a good brief, and a persuasive legal argument. Particularly important is gaining insight into what a judge wants to hear and does not want to hear in oral arguments and in pleadings filed with the court;
t Enhancing professional development through the honing of analysis, writing, communications, and “persuasion” skills;
t Gaining exposure to a wide variety of cases and areas of law, giving the clerk a breadth of experience. For those who are uncertain about their future career paths, the experience will give them important information about a variety of practice areas on which to base future career decisions. In addition, when it is time for the clerk to pursue a position to begin after the clerkship, he or she will have extensive experience to market to prospective employers;
t Training that can come from a mentoring relationship with a judge;
t Meeting many attorneys who are practicing in the location where the clerk wants to practice, which translates into good contacts for future employment possibilities; and
t Being able to apply the academic substantive knowledge obtained while in law school to the practical nature of the actual practice of law while working on significant legal issues.
II. MYTHS ABOUT CLERKING
1. “I Don’t Have The Grades/Journal Experience/Credentials.” Many students mistakenly believe that only students ranked near the top of the class are the ones obtaining clerkships. However, judges (particularly state court judges) often look to other factors when making their selections, such as work experience, writing experience (as evidenced in writing samples or other demonstrated writing experience such as journals, teaching assistant positions or paper courses), and community involvement.
2. “It’s Too Late To Apply For Clerkships.” It’s never too late! While federal clerkships typically are filled earlier than state court clerkships, each year there are some opportunities that open up during a student’s last semester in school. Some judges find themselves with an unexpected opening if their incoming clerk withdrew from the position, and new judges are appointed each year.
For information on federal judges who may be accepting applications late in the process, you will want to check the Federal Law Clerk Information System at http://www.uscourts.gov, under the “Employment” section periodically throughout your last semester in school. In addition, it is also a good idea to check directly the chamber of the judge in which you are interested, to confirm the online materials regarding that judge are accurate.
State court judges hire students at all different times of the year; each judge’s hiring process is individualized. Again, it is best to call the individual chambers to find out which judges still are hiring. Some state appellate court judges will hire as early as the spring of a student’s second year; trial level judges almost always wait until a student’s final year in law school.
III. OVERVIEW OF THE U.S. COURT SYSTEM AND TYPES OF CLERKSHIPS
Judicial clerkships are available on both the federal and state levels (in almost every state). Federal courts may hear cases when an issue involves a question of federal law; the U.S. government is a party in the case; or there is diversity of citizenship between parties.
The various U.S. courts are inhabited by Article III and Article I judges. Article III judges sit on the following courts:
1. The U.S. Supreme Court – the highest court in the U.S.
2. U.S. Court of Appeals – Thirteen different courts, including the Federal Circuit, D.C. Circuit, and First through Eleventh Circuits. The Federal Circuit is responsible for hearing appeals from the U.S. Claims Court, U.S. Patent and Trademark Office, U.S. Court of International Trade, and U.S. District Courts are appealed to the U.S. Courts of Appeals
3. U.S. District Courts – The trial level of the federal court system
Other Article I judges also hire judicial clerks:
1. U.S. Bankruptcy Court Judges – As the name indicates, the Bankruptcy Courts handle individual and business reorganization and insolvency matters. Each District of the United States has a Bankruptcy Court.
2. Judges on Specialty Courts, including:
a. U.S. Court of Federal Claims – where individuals and businesses may bring suits against the federal government in matters other than tax;
b. U.S. Court of International Trade – has jurisdiction over tariff conflicts and hears appeals from U.S. International Trade Commission (which investigates and issues rulings concerning unfair practices in import trade);
c. U.S. Tax Court – hears taxpayer appeals involving income, estate, and gift taxes;
d. U.S. Court of Appeals for the Armed Forces – five civilian judges review courts martial convictions;
e. U.S. Court of Veterans Appeals – handles appeals of U.S. veteran claims.
3. Magistrate Judges – Full-time magistrate judges are appointed for a term of eight years. These are individuals who hear pretrial matters such as bond and preliminary hearings and motions, conduct settlement conferences, and issue search and arrest warrants in federal criminal matters. They also serve as special masters in civil matters, assist article III district judges with conducting civil and criminal pretrial or discovery proceedings or serve as judge for the trial of civil cases if consented to by all parties (this has become common practice in many jurisdictions, due to crowded dockets). Magistrate judges may also try people accused of minor offenses when designated to do so by a district judge.
Other miscellaneous clerkship positions may be available as well:
1. Administrative Law Judges – There are over 1000 judges in federal administrative agencies who are employed by the U.S. government. They hear cases pertaining to their particular agencies. There are 33 offices[1] that employ ALJs. NOTE: Not every ALJ hires a law clerk; you should contact the office in which you are interested to determine if there are law clerk positions available. Also see CDO’s Federal Administrative Law Judges handout.
2. Tribal Courts – Clerkships may be available in the tribal courts of certain states; i.e., Alaska. See the National American Indian Court Judges Association’s web site for further information: www.naicja.org.
3. Staff Attorney Positions: Staff attorneys are law clerks who serve many judges or an entire court on the federal or state level. Their duties vary, but typically include reviewing appeals, conducting research and writing memoranda, and managing specific dockets.
Feeder Courts: Within the federal court system, a number of judges from the District Courts and Courts of Appeals serve as “feeder” judges to higher courts.
State Courts: Generally, state court systems mirror the federal system, with both trial and appellate courts. Some states have special courts as well. Most of the legal matters in this country are handled at the state level. The state courts are the primary forum for contract disputes, tort matters, criminal prosecutions, divorce and custody matters, and probate of estates.
III. WHAT DOES IT MEAN TO BE A JUDICIAL CLERK?
Judicial clerks perform a variety of activities in their daily work, with differences from court to court and judge to judge. The primary role of a clerk is to assist his or her judge in working efficiently under a tremendous workload and strict deadlines. Clerks carry out a variety of tasks that require legal training. These include:
Ø Conducting legal research
Ø Drafting opinions
Ø Preparing bench, research and trial memoranda
Ø Editing & checking citations
Ø Performing legal analysis
Ø Briefing your judge on the conclusions gleaned through legal research
Ø Assisting the judge while court is in session
Trial court and appellate court clerkships on both the federal and state level differ significantly from each other. While clerks in both types of courts have the responsibilities listed above, the trial-level clerk performs a wider-variety of tasks due to the nature of the litigation process. A typical job description for a trial-level law clerk would read: review and make recommendations on a variety of motions; attend oral arguments, hearings and trials; conduct or attend settlement conferences; prepare trial memoranda for the judge, including a synopsis of the issues in a particular case; conduct legal research and draft research memoranda; write draft opinions and orders; advise and assist judge during trial; call court to session; write and edit jury instructions; perform record keeping and administrative tasks; interact extensively with attorneys.
The appellate-level law clerk’s work can be described as more “academic” in nature than the trial-level clerk’s. The clerk participates in every step of the appellate process:
· Screening: The clerks assist with screening cases to help decide in which cases the court will hear oral arguments.
· Before Oral Argument: The clerk typically writes his/her judge’s bench memoranda that summarize the parties’ briefs. In addition, the clerk may write memoranda on issues important to the ruling in a case. The clerk often assists in the administrative task of preparing for a “sitting” (when the panel of judges meets to hear a series of cases).
· Oral Argument: The clerk may sit in on the arguments and assist his/her judge as necessary.
· After Oral Argument: One judge is assigned the task of writing the court’s opinion. The clerk may be responsible for drafting the opinion according to the judge’s directions. This includes a substantial amount of legal research and analysis. The clerk may also be responsible for drafting dissents, concurrences, and rulings on petitions for rehearing, and for reviewing the opinions of his/her judge.
The relationship between the judge and the law clerk has several facets: employer-employee, teacher-student, and lawyer-lawyer. In all of those relationships, the clerk must be aware of the respect due to the judge. Respect does not mean subservience: a clerk should not fear to express an opinion contrary to the judge’s when asked, and most judges expect and invite their clerks to question the judge’s views. Judges frequently seek the reactions of their clerks to the issues raised in pending cases, both for the value of being exposed to varying viewpoints and to train their clerks in the process of legal decision-making. A judge may also ask the clerk to express an independent view after reaching a tentative decision in order to test the clerk’s conclusion or reasoning abilities. Therefore, a clerk should present his/her views, supported by legal research and analysis, when asked. If the judge should then reach a conclusion that differs from the clerk’s, the clerk must, of course, carry out the judge’s instructions with the utmost fidelity.
The clerk owes the judge complete confidentiality, accuracy, and loyalty. The judge relies upon the clerk’s research in reaching conclusions on pending cases. Also, the judge relies on confidentiality in discussing performance of judicial duties, and the judge must be able to count on complete loyalty. The clerk must not criticize the judge’s decisions, work habits or personal matters to anyone, including other members of the same court or their law clerks.
IV. DECIDING WHERE TO APPLY
Some students erroneously believe that only federal clerkships are a valuable asset to a legal career. To the contrary, while different clerkships may be assigned a different prestige value, most employers value any type of clerkship experience on a résumé. This is because a clerkship provides new attorneys with an intense research and writing experience, as well as familiarizes them with the inner workings of the judicial system.
The question remains, how does one target judges or courts for their applications? Some factors that students are urged to think about are:
1. Location: Like with any other legal employer, judges tend to look for clerks who have some tie to their local geographic region. Judges often hope to mentor a new attorney who will practice and get involved in the local legal community. Ties to a geographic locale may include family, friends or significant others in the area, a college or other school experience in the area, previous work experience, or even a visit that introduced you to the place you hoped to be your future home.
2. Competitiveness of Court: If your dream is to land a federal clerkship or an appellate court clerkship in a particular state, you may want to consider applying to less competitive jurisdictions in addition to the more competitive metropolitan areas that may be your first choice. The most competitive jurisdictions for clerkships are those in the Washington, DC, New York and Chicago areas (Fourth, Second, Seventh, DC and Federal Circuits). California is a close second (Ninth Circuit). Think about applying for federal clerkships in other areas, such as the Mid-West, Northeast and Southern states.
3. Similar Interests/Ideology: A little research will tell you where judges worked before taking the bench, what kinds of community activities judges have been involved in, and who appointed a particular judge (if not elected). All of this background may lead you to certain commonalities that you share with particular judges, and may give you an edge in the application process. For example, if you want to become a prosecutor, clerking for a judge that worked for the U.S. Attorney’s Office may provide you with an ally in your post-clerkship job search. Your political preferences may also play a role as you target judges, but keep in mind that many judges will not make decisions along “party lines” as a member of the independent judiciary.