District Court Reversal Fears Forum

[Anonymous User]

Hey all, winding down a district court clerkship. I’ve got a gap year between ending this and starting another clerkship and for some reason can’t get the following thoughts out of my head: 1) I must have made a lot of sloppy mistakes in big opinions I worked on (but didn’t realize it at the time); 2) those opinions are going to get reversed in the next year; and 3) my current judge will call my future judge and tell him I’m a terrible clerk. Was wondering if anyone else is panicking a bit and second (or seventh) guessing all the opinions you worked on this year—I suspect this feeling isn’t uncommon but am nonetheless hoping y’all might have good tips on dealing with these fears.

[Anonymous User]

At the end of the day, it's the judge's signature block at the end of those opinions--not yours. He or she bought off on your logical reasoning and writing when the opinion was drafted, so it could not have been that that "terrible" and obvious at the time it was finalized, and definitely not to the extent that warrants a "back channel" phone call to another sitting judge to torpedo your career. I actually think that would poorly reflect on your judge, because they are basically stating to a peer that they didn't supervise you competently, catch your obvious errors at the time, and throwing you under the bus now -- I simply do not see that happening. Trial Judges get reversed all the time (others more than others, and sure it kinda sucks to be "called out" like that in front of one's peers, but it happens to everyone). More importantly, I would hope that after a year, you would know the type of person your judge is and the relationship/mentorship you share; they wouldn't blow up your career like that (it's unheard of absent some gross misconduct or something regarding your integrity or character where a judge simply feels that they have a duty to ensure you do not belong on a judicial staff in the future). Don't sweat it.

[objctnyrhnr]

Hey all, winding down a district court clerkship. I’ve got a gap year between ending this and starting another clerkship and for some reason can’t get the following thoughts out of my head: 1) I must have made a lot of sloppy mistakes in big opinions I worked on (but didn’t realize it at the time); 2) those opinions are going to get reversed in the next year; and 3) my current judge will call my future judge and tell him I’m a terrible clerk. Was wondering if anyone else is panicking a bit and second (or seventh) guessing all the opinions you worked on this year—I suspect this feeling isn’t uncommon but am nonetheless hoping y’all might have good tips on dealing with these fears.

Eh I had this concern as well. You’re not crazy for thinking about it. Maybe 1/3 of the opinions to which I was assigned went up, and they all got affirmed. That said, the clerk who followed me who I heard through the grapevine was a total all-star (both in pre clerkship resume and performance on the job) got an opinion he worked on flipped. The judge just laughed it off. If you get the judge flipped once or even twice, it happens. The judge is unlikely to hold it against you, and he definitely won’t torpedo your career.

[mjb447]

Even getting to steps (1) and (2) is very unlikely - it's hard to see how, in multiple cases, an appellate court is going to find fairly presented, much less reverse on, some issue that neither you nor the district judge spotted rather than, e.g., some reasonable-but-wrong guess about how the case should come out, the latter of which your district judge shouldn't hold against you as "sloppiness." (I also think you would've gotten at least a few Rule 59 or 60 motions clearly teeing up the issue if one of your rulings were truly based in some "sloppy" oversight that was arguably case-dispositive.) As others have said, Step (3) is simply unheard of.

[nixy]

To be completely honest, I never really worried about this (I only know of one thing I worked on that got reversed and all I know is that the judge and I still think that was the wrong way to go but it wasn’t my “fault” or anything). I think because it is the judge’s name on it, in the end, and if the judge passes on it they’ve adopted it and any issues are on them.

But also, from the reversals I did see while in chambers, the reaction isn’t “I got this wrong and so you, clerk, failed me.” Opinions get reversed all the time for reasons that have nothing to do with what’s actually in the opinion. Not while clerking, but while practicing, my side lost an appeal for an issue on which the district court relied completely on a previously published case that governed. The COA panel decided they didn’t like where that case led and issued a really tortured opinion in which they didn’t overturn the case but made a pretty strained distinction between it and the case at hand (which the dissent basically pointed out). The district court didn’t get that “wrong” because it’s appropriate to rely on published precedent; the COA just didn’t like the outcome. So now the district court knows how it can handle those kinds of cases in the future.

Don’t get me wrong, there are some reversals that can totally piss a judge off. But they’re usually annoyed with the appeals court. I have never seen a clerk get blamed for getting something “wrong.” If there really was some kind of obvious error such that a clerk completely screwed something up, it’s on the judge to catch it. (But honestly a lot of district court work isn’t that legally complex. And if you’re at a COA and get overturned you know there’s a lot besides your input into the case going on there.)

[Quichelorraine]

You're describing a pretty common concern during clerkships. For most district judges, though, being reversed just comes with the territory. You don't even need to be screw up to get reversed; all that has to happen is for the Circuit to disagree or to take a different approach.

That said, a few points to remember.

1) You mention having a gap year, but remember that the appellate process takes a loonnnggg time--and even longer if the decision isn't immediately appealable. It's entirely possible that you'll be on the cusp of your way out when any decision actually comes down.

2) Many opinions have sloppy mistakes in them. We're all human, and district judges are expected to pump out tons of decisions in wildly diverse areas, some on huge records. The vast majority won't be noticed. Most that are noticed won't matter. (It's almost inevitable that there will be a few factual mistakes on any given summary judgment record, but vanishingly few will be material.)

3) This might seem like a picky distinction, but: litigants appeal orders and judgments, not opinions. Because of this, an opinion can be totally wrong, but so long as you got to the right outcome, the underlying judgment will still get affirmed. Great example: an opinion that granted a motion to dismiss using the Conley v. Gibson standard. In 2015. Oops! That was wrong. But it got affirmed, because it came to the right answer under a less-stringent standard. Might there be a passive-aggressive footnote? Sure. Does anybody care? Not really.

Anyway, tl;dr, you'll almost certainly be fine. But your worries are also pretty normal.

[Fireworks2016]

1) I must have made a lot of sloppy mistakes in big opinions I worked on (but didn’t realize it at the time); 2) those opinions are going to get reversed.

I think every district court clerk has probably had this fear. I don't have a whole lot to add, other than to say you're not alone in fearing a reversal. But I assure you that you are worrying about this way more than either of the two judges are. You're smart and competent. Even if the Circuit comes to different legal conclusions in any given case, it's not the end of the world.

[lavarman84]

There's nothing you can do about it. Shit happens. Something I drafted early in my clerkship got reversed. My judge didn't hold it against me. He still felt that we were right. Frankly, when I saw the panel, I knew we were in trouble. I also still think we were right. But the appellate court gets to do what it wants.