The Law Clerk's Guide To Success

125 Pages·2011·7.363 MB·125\125

by  West

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THE LAW CLERK’S
GUIDE TO SUCCESS
ISBN 9780314194367
© 2011 Thomson Reuters L-371387/9-11

Outline of Contents
Outline of Contents
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. The Role of Law Clerks in the Judicial System . . . . . . . . . . . . . . . 3
A. State
B. Federal
III. Codes of Conduct and Ethical Guidelines. . . . . . . . . . . . . . . . . . . 7
A. State
B. Federal
C. Duties of Confidentiality, Loyalty, and Respect
IV. Continuing Education Requirements. . . . . . . . . . . . . . . . . . . . . . 11
V. Courtroom Demeanor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
VI. Public Statements and Appearances . . . . . . . . . . . . . . . . . . . . . 15
VII. Professional Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A. Media Relations
B. Relationships with Attorneys
C. Relationships with other Justice System Personnel
VIII. Civil Litigation Basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Federal Court System
1. United States Magistrate Judges
a. Reference of Pretrial Matters from District Judges
b. Initial Proceedings in Criminal Cases
c. Disposition of Petty Offense and Class A Misdemeanor Cases
d. Disposition of Civil Cases
e. Additional Duties
2. Multidistrict Litigation
B. State Court System
C. Commencing Court Action: The Complaint
D. Service of Process
E. The Answer
F. Discovery
G. Motions
H. Temporary or Preliminary Relief
I. Alternative Dispute Resolution
1. Nonbinding Arbitration
2. Mediation
3. Early Neutral Evaluation
4. Nonbinding Summary Jury Trial
5. Minitrial
6. Settlement Weeks
7. Case Evaluation
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The Law Clerk’s Guide to Success
J. Pretrial Proceedings
K. Trials
L. Posttrial Proceedings
M. Sanctions
IX. Criminal Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A. Indictments
B. Arraignments
C. Discovery
D. Pretrial Motions
E. Trials
F. Posttrial Motions
G. Prisoner Petitions
X. Bankruptcy Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
A. Bankruptcy Code
B. Bankruptcy Courts
C. Bankruptcy Rules
D. Bankruptcy Trustees
XI. Appellate Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A. Notice of Appeal
B. The Record on Appeal
C. Docketing the Appeal
D. Briefs
E. Appendixes
F. Oral Arguments
G. Deliberation
H. Opinions and Judgment
I. Appellate Motions
J. Rehearing
K. Emergency Proceedings
XII. Specialized Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
A. United States Tax Court
B. United States Court of Federal Claims
C. United States Court of Appeals for the Federal Circuit
D. United States Court of Appeals for the Armed Forces
E. United States Court of Appeals for Veterans Claims
F. United States Court of International Trade
G. Judicial Panel on Multidistrict Litigation
H. United States Foreign Intelligence Surveillance Court
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Outline of Contents
XIII. Chambers Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
A. Security Measures
B. Communications
C. Internet Usage
D. Case Filings
E. Court Calendar
F. Court Library
G. Office Administration
H. Reporting Requirements
I. Travel
J. Extra-Judicial Activities
XIV. Case Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
A. Status Sheets
B. Calendaring
C. Trial Scheduling
D. Jury Management
1. Random Juror Selection
2.Exemptions, Disqualifications, and Excuses
3.Juror Orientation
4.Voir Dire
5.Jury Supervision
E. Distributing Opinions
F. Appellate Case Management
1. Appellate Motions
2.Screening
3.Calendar Preparation
XV. Performing Legal Research. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
A. Importance of Legal Research, in General
B. Sources of Law
1. Constitutions
2. Federal Legislation
3. State Legislation
4. Legislative History
5. Court and Procedural Rules
6. Judicial Law
7. Administrative and Executive Law
8. Secondary Sources
a. Legal Encyclopedias
b. Looseleaf Services
c. Periodicals
d. Treatises
e. Annotations
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The Law Clerk’s Guide to Success
f. Restatements
g. Uniform Laws and Model Acts
h. Other Resources
C. Library Research
1. Organization of Reporters
2. National Reporter System
3. Citator Services
4. Digests
D. Online Research
1. Using Free Internet Resources
2. Fee- or Subscription-Based Services
3. Ensuring Comprehensive Results
a. Running a Search
b. Searching the Right Sources
4. Ensuring Reliance on “Good Law”
a. Citation Checking
b. Subsequent Histories
E. Advanced Legal Research Practices
XVI. Legal Writing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
A. Importance of Legal Writing, In General
B. Particular Types of Documents
1. Legal Memoranda
a.Bench Memorandum
b.Statement of Facts
c.Single-Issue Memorandum
d.Full-Case Memorandum
2. Findings of Fact and Conclusions of Law
3. Orders
4. Opinions
5. Jury Instructions
6. Correspondence
C. Citation
D. Editing and Proofreading
E. Advanced Legal Writing Strategies
Appendix 1: Glossary of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Appendix 2: Frequently Asked Questions . . . . . . . . . . . . . . . . . . . . 109
Appendix 3: Codes of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Appendix 4: Bibliography and Recommended Reading List . . . . . 117
IV
Introduction
I. Introduction
Welcome to The Law Clerk’s Guide to Success, and congratulations on being
selected to serve in one of the most interesting, challenging, and prestigious
positions a lawyer can hold: judicial law clerk. Having been chosen by a judge or
judges to serve as law clerk, you necessarily have strong skills in research, writing,
and academics; the Guideis not meant to replace a law school education or even
to supplement it, but to function as a handbook for quick and easy reference in
performing your job.
Much of the contents of the Guidewill be familiar to you, as it reviews basic court
structures, functions, and procedures; sets forth the fundamental elements of
legal research and writing; and reminds you of how civil and criminal proceedings
progress from filing the action through appeal. Other aspects of the Guide, such
as the discussions of chambers administration, case management, and the role
of law clerks in the judicial system, will likely be new to you. And, unfortunately,
some elements of your job are unique and so are not included here. When you
encounter a situation not covered herein and you are not sure how to respond, do
not hesitate to ask questions of other chambers personnel, other courthouse staff,
and the judge. Whenever in doubt, be guided by the code of conduct applicable
to your position, recognizing and adhering to the fundamental principles of
loyalty, confidentiality, and professionalism.
After your clerkship has ended, you are apt to go far. Clerking for a judge provides
the opportunity for development of practical skills by participating in litigation, as
well as for professional growth. And, having worked closely with a judge or judges
gives you access to invaluable teaching and mentoring. Law clerks go on to
private practice, governmental legal careers, and public service, many becoming
judges themselves.
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The Law Clerk’s Guide to Success
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The Role of Law Clerks in the Judicial System
II. The Role of Law Clerks in the Judicial System
A. State
Although the role of the state judicial law clerk obviously varies from state to
state, some elements of the law clerk’s position are universal among state courts
in the United States.
Ultimately, the law clerk serves at the direction of the judge or judges to whom
the clerk is assigned. Clerks must strive in every endeavor to strike the balance
that characterizes their position: you are an important and potentially influential
member of the state judicial system and a representative of the state, but a
servant to the judge in particular and to the state court system in general. You are
not the judge.
Insider View:Gloria R. Sonnen, former law clerk for a state high
court, noted that opportunities do arise for law clerks to have a
significant impact on the outcome of a case. She recalled one
interesting case in which the judge for whom she worked was able
to challenge, based on the law clerk’s work, the opinions of the
other judges on the panel.
A very recent law journal article assessed the degree of the law
clerk’s influence on the decision-making process in state high
courts. SeeRick A. Swanson & Stephen L. Wasby, Good Stewards:
Law Clerk Influence in State High Courts, 29:1 JUS. SYS. J. 24 (2008).
The authors concluded, based on interviewing eighty-one justices
on thirty-five state high courts, that law clerks exert moderate
overall influence on the judicial decision-making process in
such courts.
In fact, retired Judge Jack Davies, of the Minnesota Court of
Appeals, recalls one case –involving the UCC –when neither lawyer
argued the right point. The trial judge, too, “got it wrong,” and the
arguments on appeal addressed the wrong point. Judge Davies
asked his law clerk to research other analyses. The clerk was needed
to find the right path to the correct decision.
Almost all law clerks do a significant amount of legal research and writing, both
informal (e.g., in-house memoranda to the judge) and formal (e.g., draft legal
opinions). State law clerks usually are expected to maintain the chamber’s library
and office, and often are called upon to perform administrative or clerical
functions such as data entry, word processing, telephone answering, calendaring,
opening and screening mail, and acting as the main contact between the
chambers and the attorneys involved in cases before the judge.
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The Law Clerk’s Guide to Success
The level of court will affect the type of work you do. Trial court law clerks perform
a wider variety of functions than do appellate court law clerks. This is because
trial court law clerks tend to be actively involved in the details of litigation, which
brings with it more contact with attorneys and witnesses and more case
management duties. Appellate court law clerks, by contrast, are charged
primarily and sometimes only with researching the facts and law related to
appeals and drafting the appellate judge’s working opinion.
One state court judge aptly described the judicial law clerk as an apprentice, who
learns by doing. Clerks are participants in the judicial system, not mere observers.
Tip:As a state court law clerk, you should purchase your own or at
least have ready access to copies of the state rules of criminal and civil
procedure and evidence and, if you are an appellate court clerk, the
state appellate procedural rules. Other personal reference books are
also helpful. You should have Black’s Law Dictionary, a thesaurus, and
the current edition of The Bluebook: A Uniform System of Citationor
your state’s uniform citation system pamphlet, if one exists.
B. Federal
There are ninety-four federal district courts and thirteen federal courts of appeals
in the federal judicial system, each of which has numerous judges. As with the
role of state law clerks, the federal law clerk’s role varies depending on the level
of court (trial or appellate) and which jurisdiction and even chambers the clerk is
assigned to. But, as with state law clerks, there is enough uniformity that some
general points can be made.
Federal judges’ law clerks have no statutorily defined job or duties; they serve
subject to the direction of, and carry out the instructions of, the judge or judges
for whom they work. Because each judge decides cases in an individual manner
and has developed specific work habits over the course of a professional career,
no two judges use their clerks in precisely the same manner. As a law clerk, you
must become familiar with your judge’s courtroom and chambers style, and work
cooperatively with the judge and other members of the chambers staff so that, as
a team, you effectively assist the judge in fulfilling his or her judicial
responsibilities.
In most chambers, law clerks concentrate on legal research and writing. Typically,
law clerks’ many duties include conducting legal research, preparing bench
memos, drafting orders and opinions, editing and proofreading the judge’s orders
and opinions, and verifying citations. Many judges discuss pending cases with
their law clerks and confer with them about decisions. Some law clerks attend
conferences in chambers with the judge and attorneys. Frequently, law clerks also
maintain the library, assemble documents, serve as courtroom crier, handle
exhibits during trial, and perform other administrative tasks as required by the
judge to ensure a smooth-running chambers and courtroom.
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