Mistakes While Clerking Forum

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

Some don't, unfortunately. The better ones obviously do.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

It's a matter of opinion, but I think it's insane for a judge to see you as a way to entirely avoid having to do his own research on decisions he's about to make. It may not take them as long to be up to speed as it takes us, but they should be fairly well educated about the issue, which includes research.

Every profession has bad bosses. But a judge who does not thoroughly review the work of first-year lawyers before issuing binding orders is, imo, a bad boss. We simply aren't trustworthy enough--nor were we appointed by the President.

Perhaps I am just very lucky, but every time I think I've plumbed the well of caselaw my boss always comes up with a case that's brilliant and slightly more appropriate than what I found. So I know he's looking himself.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

It's a matter of opinion, but I think it's insane for a judge to see you as a way to entirely avoid having to do his own research on decisions he's about to make. It may not take them as long to be up to speed as it takes us, but they should be fairly well educated about the issue, which includes research.

Every profession has bad bosses. But a judge who does not thoroughly review the work of first-year lawyers before issuing binding orders is, imo, a bad boss. We simply aren't trustworthy enough--nor were we appointed by the President.

I didn’t say that a judge sees her clerks as a way to “entirely” avoid doing research - I specifically said “to a certain extent.” I also didn’t say that a judge shouldn’t expect to review their clerks’ work. That may well entail some checking of cases, but I doubt it entails redoing all of a clerk’s research (or why bother having a clerk to begin with?).

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

It's a matter of opinion, but I think it's insane for a judge to see you as a way to entirely avoid having to do his own research on decisions he's about to make. It may not take them as long to be up to speed as it takes us, but they should be fairly well educated about the issue, which includes research.

Every profession has bad bosses. But a judge who does not thoroughly review the work of first-year lawyers before issuing binding orders is, imo, a bad boss. We simply aren't trustworthy enough--nor were we appointed by the President.

I didn’t say that a judge sees her clerks as a way to “entirely” avoid doing research - I specifically said “to a certain extent.” I also didn’t say that a judge shouldn’t expect to review their clerks’ work. That may well entail some checking of cases, but I doubt it entails redoing all of a clerk’s research (or why bother having a clerk to begin with?).

Agree that it varies A LOT. Many judges have internal review systems where a co-clerk checks all cites, so that might leave some judges feeling more comfortable not looking at the cases themselves.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

It's a matter of opinion, but I think it's insane for a judge to see you as a way to entirely avoid having to do his own research on decisions he's about to make. It may not take them as long to be up to speed as it takes us, but they should be fairly well educated about the issue, which includes research.

Every profession has bad bosses. But a judge who does not thoroughly review the work of first-year lawyers before issuing binding orders is, imo, a bad boss. We simply aren't trustworthy enough--nor were we appointed by the President.

I didn’t say that a judge sees her clerks as a way to “entirely” avoid doing research - I specifically said “to a certain extent.” I also didn’t say that a judge shouldn’t expect to review their clerks’ work. That may well entail some checking of cases, but I doubt it entails redoing all of a clerk’s research (or why bother having a clerk to begin with?).

Agree that it varies A LOT. Many judges have internal review systems where a co-clerk checks all cites, so that might leave some judges feeling more comfortable not looking at the cases themselves.

Maybe it depends on the type of case (a routine issue vs. something that will set precedent), but it still feels like a dereliction of the judge's duty for him/her to not be looking at the cases and confirming the clerk's interpretation is correct. Our co-clerk internal review is more of a cite check than a substantive evaluation. No offense intended at all to my fellow clerks, but two 26-year-olds agreeing on how to read a case should not be substituting for the judge independently confirming the research.

[lavarman84]

Maybe it depends on the type of case (a routine issue vs. something that will set precedent), but it still feels like a dereliction of the judge's duty for him/her to not be looking at the cases and confirming the clerk's interpretation is correct. Our co-clerk internal review is more of a cite check than a substantive evaluation. No offense intended at all to my fellow clerks, but two 26-year-olds agreeing on how to read a case should not be substituting for the judge independently confirming the research.

Are you clerking on an appellate court or a district court, out of curiosity?

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

It's a matter of opinion, but I think it's insane for a judge to see you as a way to entirely avoid having to do his own research on decisions he's about to make. It may not take them as long to be up to speed as it takes us, but they should be fairly well educated about the issue, which includes research.

Every profession has bad bosses. But a judge who does not thoroughly review the work of first-year lawyers before issuing binding orders is, imo, a bad boss. We simply aren't trustworthy enough--nor were we appointed by the President.

I didn’t say that a judge sees her clerks as a way to “entirely” avoid doing research - I specifically said “to a certain extent.” I also didn’t say that a judge shouldn’t expect to review their clerks’ work. That may well entail some checking of cases, but I doubt it entails redoing all of a clerk’s research (or why bother having a clerk to begin with?).

Agree that it varies A LOT. Many judges have internal review systems where a co-clerk checks all cites, so that might leave some judges feeling more comfortable not looking at the cases themselves.

Maybe it depends on the type of case (a routine issue vs. something that will set precedent), but it still feels like a dereliction of the judge's duty for him/her to not be looking at the cases and confirming the clerk's interpretation is correct. Our co-clerk internal review is more of a cite check than a substantive evaluation. No offense intended at all to my fellow clerks, but two 26-year-olds agreeing on how to read a case should not be substituting for the judge independently confirming the research.

Co-sign. And to answer the question asked of you, I have clerked on both district and appellate courts. Neither kind of judge should be letting consequential rulings proceed without thoroughly checking the clerk's analysis.

[lavarman84]

Co-sign. And to answer the question asked of you, I have clerked on both district and appellate courts. Neither kind of judge should be letting consequential rulings proceed without thoroughly checking the clerk's analysis.

I clerked on both an appellate court and a district court. My appellate judge had the time to thoroughly check up on our work. My district court judge didn't. It was a busy district. He was already working 10-hour days. Half his days were spent in hearings (when we didn't have trials). The rest of his days were spent preparing for the next day's hearings and reviewing orders. If he had tried to research every case (which was our job), orders would not get out the door, which would result in parties having to wait far longer to have their cases resolved.

He reviewed our proposed orders. He had been a judge for awhile and had a keen smell test on whether we were right or not. And the good news is that if something slipped past, the appellate court was always there to fix it. Simply put, I don't share your opinion or your fears over law clerks' ability to research issues. At the end of the day, the parties are supposed to do the legwork anyways, which as we all know too often doesn't happen.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

Having clerked D. Ct. and COA, it's definitely understandable that a district judge wouldn't read the briefs for every motion in most cases on the civil docket. Even for the most dedicated, workhorse district judge, it would be nearly impossible. And the effort is better spent on the criminal docket anyway. But for a Court of Appeals judge not to read the briefs in a case that gets full panel consideration (let alone one the judge is AUTHORING) is embarrassingly lazy in my opinion.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

Having clerked D. Ct. and COA, it's definitely understandable that a district judge wouldn't read the briefs for every motion in most cases on the civil docket. Even for the most dedicated, workhorse district judge, it would be nearly impossible. And the effort is better spent on the criminal docket anyway. But for a Court of Appeals judge not to read the briefs in a case that gets full panel consideration (let alone one the judge is AUTHORING) is embarrassingly lazy in my opinion.

I’m the anon you quoted and I agree, I should have made a distinction between DCt and COA.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

Having clerked D. Ct. and COA, it's definitely understandable that a district judge wouldn't read the briefs for every motion in most cases on the civil docket. Even for the most dedicated, workhorse district judge, it would be nearly impossible. And the effort is better spent on the criminal docket anyway. But for a Court of Appeals judge not to read the briefs in a case that gets full panel consideration (let alone one the judge is AUTHORING) is embarrassingly lazy in my opinion.

Reading briefs takes, what, a couple of hours? My district judge was an 80-hour-week perfectionist workaholic who typically read the entire record (cited or uncited) on SJ, so I know he’s abnormal, but I can’t fathom that there are A3 judges who don’t even read the briefs, let alone do research. Like what do they do all day? Criminal stuff is generally mindless admin work unless there’s a rare dispositive motion or trial, so that can’t be it.

[Anonymous User]

Co-sign. And to answer the question asked of you, I have clerked on both district and appellate courts. Neither kind of judge should be letting consequential rulings proceed without thoroughly checking the clerk's analysis.

I clerked on both an appellate court and a district court. My appellate judge had the time to thoroughly check up on our work. My district court judge didn't. It was a busy district. He was already working 10-hour days. Half his days were spent in hearings (when we didn't have trials). The rest of his days were spent preparing for the next day's hearings and reviewing orders. If he had tried to research every case (which was our job), orders would not get out the door, which would result in parties having to wait far longer to have their cases resolved.

He reviewed our proposed orders. He had been a judge for awhile and had a keen smell test on whether we were right or not. And the good news is that if something slipped past, the appellate court was always there to fix it. Simply put, I don't share your opinion or your fears over law clerks' ability to research issues. At the end of the day, the parties are supposed to do the legwork anyways, which as we all know too often doesn't happen.

What

[lavarman84]

Co-sign. And to answer the question asked of you, I have clerked on both district and appellate courts. Neither kind of judge should be letting consequential rulings proceed without thoroughly checking the clerk's analysis.

I clerked on both an appellate court and a district court. My appellate judge had the time to thoroughly check up on our work. My district court judge didn't. It was a busy district. He was already working 10-hour days. Half his days were spent in hearings (when we didn't have trials). The rest of his days were spent preparing for the next day's hearings and reviewing orders. If he had tried to research every case (which was our job), orders would not get out the door, which would result in parties having to wait far longer to have their cases resolved.

He reviewed our proposed orders. He had been a judge for awhile and had a keen smell test on whether we were right or not. And the good news is that if something slipped past, the appellate court was always there to fix it. Simply put, I don't share your opinion or your fears over law clerks' ability to research issues. At the end of the day, the parties are supposed to do the legwork anyways, which as we all know too often doesn't happen.

What

I'm not sure what's confusing about it.

[nixy]

Co-sign. And to answer the question asked of you, I have clerked on both district and appellate courts. Neither kind of judge should be letting consequential rulings proceed without thoroughly checking the clerk's analysis.

I clerked on both an appellate court and a district court. My appellate judge had the time to thoroughly check up on our work. My district court judge didn't. It was a busy district. He was already working 10-hour days. Half his days were spent in hearings (when we didn't have trials). The rest of his days were spent preparing for the next day's hearings and reviewing orders. If he had tried to research every case (which was our job), orders would not get out the door, which would result in parties having to wait far longer to have their cases resolved.

He reviewed our proposed orders. He had been a judge for awhile and had a keen smell test on whether we were right or not. And the good news is that if something slipped past, the appellate court was always there to fix it. Simply put, I don't share your opinion or your fears over law clerks' ability to research issues. At the end of the day, the parties are supposed to do the legwork anyways, which as we all know too often doesn't happen.

What

That’s absolutely one of the roles of the appellate court. And I think it’s worse for DCt judges to tie themselves into knots and delay getting stuff out trying to avoid being overturned than to make their best good faith effort and accept that sometimes they’ll miss something (not because of idiocy or negligence, just because no one’s perfect 100% of the time).

[Anonymous User]

Co-sign. And to answer the question asked of you, I have clerked on both district and appellate courts. Neither kind of judge should be letting consequential rulings proceed without thoroughly checking the clerk's analysis.

I clerked on both an appellate court and a district court. My appellate judge had the time to thoroughly check up on our work. My district court judge didn't. It was a busy district. He was already working 10-hour days. Half his days were spent in hearings (when we didn't have trials). The rest of his days were spent preparing for the next day's hearings and reviewing orders. If he had tried to research every case (which was our job), orders would not get out the door, which would result in parties having to wait far longer to have their cases resolved.

He reviewed our proposed orders. He had been a judge for awhile and had a keen smell test on whether we were right or not. And the good news is that if something slipped past, the appellate court was always there to fix it. Simply put, I don't share your opinion or your fears over law clerks' ability to research issues. At the end of the day, the parties are supposed to do the legwork anyways, which as we all know too often doesn't happen.

Hey, original anon you put the question to here: I have also clerked on both courts (currently district). I agree with you, there's a ton more day to day work here and the judge can't personally review every case cite in the same way a circuit judge can, but there's also a lot more routine. The same 4-5 one-paragraph templates on legal standards that the judge has used for years apply to about half the motions we get. You often see something new and unusual every day, but it's more often a unique question of fact than an question of how to interpret precedent--and the judge does weigh in on each of these questions, and does check the precedent carefully on the relatively smaller number of cases that involve tricky legal analysis.

The person who said "the appellate court was always there to fix it" isn't crazy. One of my judge's sayings when we're spinning our wheels trying to decide which way to go on a ruling is "well, that's what the [N]th Circuit is for!" When there's no precedent, a circuit judge can spend time engaging with an issue in a way a district judge often can't. The district judge's obligation is to do the best he or she can to apply the law to parties' cases while keeping the docket moving along.

[Anonymous User]

All these horror stories, I gotta ask...do judges really just not check your work or ever do any legal research at all? Maybe this is naive of me but this seems bad!

It varies a lot and depends on the judge and the case. But to a certain extent the whole point of you being there is to do the research for the judge.

Having clerked D. Ct. and COA, it's definitely understandable that a district judge wouldn't read the briefs for every motion in most cases on the civil docket. Even for the most dedicated, workhorse district judge, it would be nearly impossible. And the effort is better spent on the criminal docket anyway. But for a Court of Appeals judge not to read the briefs in a case that gets full panel consideration (let alone one the judge is AUTHORING) is embarrassingly lazy in my opinion.

Reading briefs takes, what, a couple of hours? My district judge was an 80-hour-week perfectionist workaholic who typically read the entire record (cited or uncited) on SJ, so I know he’s abnormal, but I can’t fathom that there are A3 judges who don’t even read the briefs, let alone do research. Like what do they do all day? Criminal stuff is generally mindless admin work unless there’s a rare dispositive motion or trial, so that can’t be it.

I mean, I personally wouldn't describe sentencings and motions to suppress as "mindless admin work," but YMMV. We had at least three/four of those two types combined a week in the district I clerked in. Certainly reading the briefs and doing record review is much more common for dispositive motions. But dispositive motions are probably only a third of the civil docket (if that).

[Anonymous User]

If you’re counting e.g. extension requests as part of the civil docket, I can see not reviewing those in-depth, but not reading the briefs on a dispositive motion (or major non-dispositive motion like a motion to compel) is malpractice, not-fit-to-be-a-judge territory imo. I can believe that it’s common in some places—any appellate clerk can tell you there’s a huge quality gap between SDNY, where the judges all kill themselves working, and NDNY—but it’s too bad, and given how uncommon and deferential appeals are, the circuit won’t usually fix it.

[lavarman84]

If you’re counting e.g. extension requests as part of the civil docket, I can see not reviewing those in-depth, but not reading the briefs on a dispositive motion (or major non-dispositive motion like a motion to compel) is malpractice, not-fit-to-be-a-judge territory imo. I can believe that it’s common in some places—any appellate clerk can tell you there’s a huge quality gap between SDNY, where the judges all kill themselves working, and NDNY—but it’s too bad, and given how uncommon and deferential appeals are, the circuit won’t usually fix it.

This is an extreme stance imo. There are attorneys fresh out of law school leading and trying their own cases. But we can't trust law clerks to handle reading the briefs and research independently? I agree if the judge isn't even bothering to read the orders/opinions they're signing, that is malpractice. But beyond that, no. It would be silly for them to treat their law clerks like legal interns. They should be able to delegate them work and not hold their hand through it.

Hell, when I went to work for the government directly after clerking, my bosses assigned me cases and handed them off almost completely. They read the briefs and offered redlines. That was it. They weren't doing research or reading the record. I'm honestly baffled that some people are so bothered by this. It feels completely normal to me. But then again, I've never worked in biglaw. So being handed an entire case and told to take care of it feels completely normally to me.

[Anonymous User]

If you’re counting e.g. extension requests as part of the civil docket, I can see not reviewing those in-depth, but not reading the briefs on a dispositive motion (or major non-dispositive motion like a motion to compel) is malpractice, not-fit-to-be-a-judge territory imo. I can believe that it’s common in some places—any appellate clerk can tell you there’s a huge quality gap between SDNY, where the judges all kill themselves working, and NDNY—but it’s too bad, and given how uncommon and deferential appeals are, the circuit won’t usually fix it.

This is an extreme stance imo. There are attorneys fresh out of law school leading and trying their own cases. But we can't trust law clerks to handle reading the briefs and research independently? I agree if the judge isn't even bothering to read the orders/opinions they're signing, that is malpractice. But beyond that, no. It would be silly for them to treat their law clerks like legal interns. They should be able to delegate them work and not hold their hand through it.

Hell, when I went to work for the government directly after clerking, my bosses assigned me cases and handed them off almost completely. They read the briefs and offered redlines. That was it. They weren't doing research or reading the record. I'm honestly baffled that some people are so bothered by this. It feels completely normal to me. But then again, I've never worked in biglaw. So being handed an entire case and told to take care of it feels completely normally to me.

IMHO there's a difference between trusting a qualified attorney to handle a legal matter, and a judicial decision that the judge has not verified is accurate.

[Anonymous User]

If you’re counting e.g. extension requests as part of the civil docket, I can see not reviewing those in-depth, but not reading the briefs on a dispositive motion (or major non-dispositive motion like a motion to compel) is malpractice, not-fit-to-be-a-judge territory imo. I can believe that it’s common in some places—any appellate clerk can tell you there’s a huge quality gap between SDNY, where the judges all kill themselves working, and NDNY—but it’s too bad, and given how uncommon and deferential appeals are, the circuit won’t usually fix it.

This is an extreme stance imo. There are attorneys fresh out of law school leading and trying their own cases. But we can't trust law clerks to handle reading the briefs and research independently? I agree if the judge isn't even bothering to read the orders/opinions they're signing, that is malpractice. But beyond that, no. It would be silly for them to treat their law clerks like legal interns. They should be able to delegate them work and not hold their hand through it.

Hell, when I went to work for the government directly after clerking, my bosses assigned me cases and handed them off almost completely. They read the briefs and offered redlines. That was it. They weren't doing research or reading the record. I'm honestly baffled that some people are so bothered by this. It feels completely normal to me. But then again, I've never worked in biglaw. So being handed an entire case and told to take care of it feels completely normally to me.

IMHO there's a difference between trusting a qualified attorney to handle a legal matter, and a judicial decision that the judge has not verified is accurate.

But what is “verified”? I completely agree that a judge needs to read orders/opinions and ensure that the legal analysis makes sense and arises from what the clerk has identified the case law as saying. (And of course an appellate judge needs to know the record and briefs.) There’s plenty of comment/revision that can take place on that basis alone. And certainly if something seems wonky about how the clerk presents the law, I’d expect the judge to follow up. But if the judge is going to go back and routinely check all the cases that the clerk cites, then what is the clerk really adding?

[Anonymous User]

A judge should ensure that the opinion is correct under the facts and the law. It’s going out under their signature, and enforceable by the physical coercion of the state if necessary—judicial decisions are a big deal.

A clerk typically contributes by doing the research and record review in the first instance and doing the bulk of the drafting. Nobody is saying the judge needs to reread Iqbal with every opinion, but if you’re not at a bare minimum reading the briefs, you can’t have any confidence that it’s substantively correct. Even good and careful clerks make mistakes and oversights. Just like clerks should thoroughly review interns’ work before incorporating it into a draft opinion, judges should thoroughly review clerks’ work.

[Anonymous User]

I'm extremely perplexed by the viewpoint that having to review work means there's no point in having someone else do the work to begin with. That's how managing works?

[Anonymous User]

I'm extremely perplexed by the viewpoint that having to review work means there's no point in having someone else do the work to begin with. That's how managing works?

I'm the one who said that (or something like that). I didn't say judges shouldn't review the work - I very clearly said that they should. And to reference another response, I definitely didn't mean to say a judge shouldn't read the briefs (I said that appellate judges need to know the records and briefs, but didn't mean to suggest that district court judges therefore don't need to read the briefs - I was thinking about the appellate record specifically and threw in briefs without thinking. DCt judges should also read the briefs). I'm saying that "review" doesn't mean reproduce the research that the clerk is hired to do. Obviously if there are red flags that suggest needing to follow up, the judge should. And to be fair, I did say "go back and check all the cases" and you're right that checking cases that are cited isn't the same as doing all the research queries and identifying all the pertinent cases to start with, so to that extent, no, it's not exactly duplicating efforts. But I was on a district court and I do think that reading every case a clerk cites every time isn't practical.

I'll also modify it to say that I can understand reviewing a new clerk's work more closely with more effort until you feel confident in their ability to represent the law accurately.

(Not that any judges are interested in my opinion about this anyway!)

[lavarman84]

I'm extremely perplexed by the viewpoint that having to review work means there's no point in having someone else do the work to begin with. That's how managing works?

That's basically the opposite of the point we've been making. The point we're making is that reviewing work doesn't entail going back and doing the work yourself, like I would do with our interns' work when I was a clerk. The difference between us is that you clearly think an adequate "review" requires far more of a judge than I do. Unsurprisingly, what I consider adequate review is colored by how my current and previous supervisors review my work now in practice (in addition to how my judges handled things).

If you’re counting e.g. extension requests as part of the civil docket, I can see not reviewing those in-depth, but not reading the briefs on a dispositive motion (or major non-dispositive motion like a motion to compel) is malpractice, not-fit-to-be-a-judge territory imo. I can believe that it’s common in some places—any appellate clerk can tell you there’s a huge quality gap between SDNY, where the judges all kill themselves working, and NDNY—but it’s too bad, and given how uncommon and deferential appeals are, the circuit won’t usually fix it.

This is an extreme stance imo. There are attorneys fresh out of law school leading and trying their own cases. But we can't trust law clerks to handle reading the briefs and research independently? I agree if the judge isn't even bothering to read the orders/opinions they're signing, that is malpractice. But beyond that, no. It would be silly for them to treat their law clerks like legal interns. They should be able to delegate them work and not hold their hand through it.

Hell, when I went to work for the government directly after clerking, my bosses assigned me cases and handed them off almost completely. They read the briefs and offered redlines. That was it. They weren't doing research or reading the record. I'm honestly baffled that some people are so bothered by this. It feels completely normal to me. But then again, I've never worked in biglaw. So being handed an entire case and told to take care of it feels completely normally to me.

IMHO there's a difference between trusting a qualified attorney to handle a legal matter, and a judicial decision that the judge has not verified is accurate.

I don't see a significant difference. In each case, the way the supervisor is reviewing and verifying what I'm putting out there is the same.