Clerking - how do I know how to decide a case? Forum

[Anonymous User]

I'm just about to complete my first year clerking post-grad for a trial court level judge. My current judge uses his clerks sparingly, usually only to read incoming briefs, etc. and write summary memos to him. He writes all his own opinions, which we proof.

I was just offered a clerkship with a new judge at the same level court (more money, a little bit more desirable location, and I have nothing else lined up so I'm pretty sure I'll accept it). This new judge, however, uses his clerk a lot more actively. When I spoke to his clerk at my interview, he said he basically does everything with the cases that come into chambers. He reads the briefs or whatever, and then he writes either a footnoted order (which I had never even heard of) or he writes an opinion. He then submits that to the judge who reads it and then signs it basically. I think that this is the more standard way for judges to use their clerks, but I have never done this and to be honest, it's intimidating. I'd basically be deciding the motions, then giving them to the judge for his stamp of approval - how do I do that? Is there a good strategy for knowing what the "right" answer is? Am I overthinking this? Is there a guide anyone has written for writing opinions? Basically, I know clerks do this, but how do they learn to do this properly?

Any guidance would be great - thanks everyone.

Edit: After thinking about this a bit more, I think my basic question is: How does a clerk go about deciding a case? Any steps, processes, etc. that make the (seemingly) daunting task seem a bit more manageable?

[timmyd]

I think theres a lot of learning on the fly. There are a couple good books concerning clerkship writing at both district and app levels, but I think, in reality, you are just going to have to learn through doing. Your Judge knows this and is ok with it or else would have hired a career clerk or former clerk of some kind.

[ggocat]

Is there a good strategy for knowing what the "right" answer is? Am I overthinking this?

You're over-thinking it. You should know what opinions/orders look like by now, right? I mean, just follow some of his/her older orders as templates. If you are struggling on how to decide a case, you chat with your judge about the pros/cons and ask your judge what he/she wants to do; then you write up the order that way. I mean, I don't think most judges are "checked out" and refuse to discuss cases with you as you are working on them.

[Anonymous User]

I think theres a lot of learning on the fly. There are a couple good books concerning clerkship writing at both district and app levels, but I think, in reality, you are just going to have to learn through doing. Your Judge knows this and is ok with it or else would have hired a career clerk or former clerk of some kind.

The thing is I HAVE been clerking for a year already, and he specifically said he doesn't like to hire people without some clerkship experience. I did explain to the new judge how my judge does things, so he is aware that his way is new for me. However, during my interview I obviously didn't want to tell him that I had no idea how to do a large part of the job.

Do you happen to know the names of any of the books?

[Anonymous User]

Is there a good strategy for knowing what the "right" answer is? Am I overthinking this?

You're over-thinking it. You should know what opinions/orders look like by now, right? I mean, just follow some of his/her older orders as templates. If you are struggling on how to decide a case, you chat with your judge about the pros/cons and ask your judge what he/she wants to do; then you write up the order that way. I mean, I don't think most judges are "checked out" and refuse to discuss cases with you as you are working on them.

I do know what one looks like, but I have never had any part in deciding a case, and I'm not sure how to even start that thought process.

[Anonymous User]

I'm just about to complete my first year clerking post-grad for a trial court level judge. My current judge uses his clerks sparingly, usually only to read incoming briefs, etc. and write summary memos to him. He writes all his own opinions, which we proof.

I was just offered a clerkship with a new judge at the same level court (more money, a little bit more desirable location, and I have nothing else lined up so I'm pretty sure I'll accept it). This new judge, however, uses his clerk a lot more actively. When I spoke to his clerk at my interview, he said he basically does everything with the cases that come into chambers. He reads the briefs or whatever, and then he writes either a footnoted order (which I had never even heard of) or he writes an opinion. He then submits that to the judge who reads it and then signs it basically. I think that this is the more standard way for judges to use their clerks, but I have never done this and to be honest, it's intimidating. I'd basically be deciding the motions, then giving them to the judge for his stamp of approval - how do I do that? Is there a good strategy for knowing what the "right" answer is? Am I overthinking this? Is there a guide anyone has written for writing opinions? Basically, I know clerks do this, but how do they learn to do this properly?

Any guidance would be great - thanks everyone.

Edit: After thinking about this a bit more, I think my basic question is: How does a clerk go about deciding a case? Any steps, processes, etc. that make the (seemingly) daunting task seem a bit more manageable?

I wouldn't stress about it. My judge is the same way as your new judge and I'd never written an opinion before. I spent about a month on my first one learning the ropes (it was also a tough case) and it came together. Your judge will have a preferred template and style of writing which will come through from older opinions. If you really want to read something in advance, just go through and read his or her old opinions, then try to emulate that. As you get good at emulation, you can start to branch out and be more creative (or just stick to what works).

If you mean how do I research cases and what's the best process for writing an opinion, that's a tough one. I don't know of any books but our court has a manual put together by one judge's clerks over time. Hopefully you'll have something similar. Otherwise trial and error!

[Anonymous User]

I had to draft opinions as an intern and if you think your position is intimidating, just imagine being a 1L summer...

Honestly you get over the intimidation aspect. If you're unsure about something (and I mean truly unsure after reading the papers and doing research), then you ask the judge or a more senior clerk/someone else in chambers. I think it's actually easier than being an advocate. Both sides have presented their cases complete with their best research and you just need to look at all of the research and arguments presented and decide which side is consistent with the law.

The first thing you do is read everything. Then I liked to read it again and mark things up. Then you check all the research.

[Anonymous User]

You are over-thinking it.
1) most of the issues that will be raised will be the ones that your judge, someone in your court, circuit or national level has already addressed so you either have a template from the opinions your judge already wrote or some guidance from some other court,

2) majority of the time the parties brief the issues raised with supporting authority and its pretty much your job to stream line them and present them in a neutral way,

3) you don’t weigh evidence majority of the time so in those cases, the cases usually end up going to the jury to decide (your job is usually limited to identifing the proper legal authority and whether the facts in the motion you are addressing comply with the law),

4) granted some situations are novel issues and very complex, if you are not capable of handling those issues (i.e. synthesizing case law and providing sound legal analysis), your judge probably would not hire you. It really is not rocket science work; the critical skill is not your ability to make final magical decision, but your ability to be a great researcher and decent writer. If you have sound research skills, you can usually find some court that addressed the issues you are addressing. Worst case scenario, Wright & Miller and other supps on westlaw provide you background info on a particular issue. So relax, you are not looking through a crystal ball to make "decisions"; it’s more of a streamlined process and after few drafts of opinions on summary judgment, motion to dismiss, and other discovery issues, it is not that difficult (the difficulty is in being consistently diligent, producing work product with no error). It is pretty intimidating at first, but you will get used to it. Plus, it is your job to do your best, and it is your judge’s role to make the final decision, even if he is just signing off on it so just do your part. Most cases settle once you get past summary J stage anyways

[baal hadad]

Use your judgment

[Anonymous User]

Thanks everyone - I guess it seems intimidating, but I'm sure I'll learn.