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Friday, June 24, 2005

Beldar's tips on applying for judicial clerkships

Prof. Eugene Volokh has solicited knowledgeable comments and recommendations about the process of applying for judicial clerkships, and his readers have left some excellent ones there already. I started writing a comment there, but (as usual for me) it quickly grew to the point of being abusive of another blogger's bandwidth. So I've left a link there, and posted here instead with my own recommendations directed to law students who are considering applying for judicial clerkships.

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My perspective on this subject is as a practicing trial lawyer who was privileged to serve as a judicial clerk 24 years ago for United States Circuit Judge Carolyn D. King. She was then in her second year on the bench, but is now the Fifth Circuit's Chief Judge. (And yes, I'm really proud of her!)

I would expand considerably on Voiceguy's recommendation in the comments to Prof. Volokh's post that you make aggressive use of professors at your own law school. Don't just talk to your "key professors." Look at your law school's entire faculty roster and make a list of which faculty members were themselves law clerks, who they clerked for, and when. De-select from your resulting list those faculty members who clerked for judges to whom, for whatever reason, you'd never consider applying. Even if you haven't had a class with a given professor and he/she doesn't know you from Adam, this is a really good self-introductory line: "I'm applying for judicial clerkships and I wonder if I could make an appointment to talk to you in your office for a few minutes about your own clerkship with Judge ___ in 198__?" If you get an encouraging response, the follow-up line is, "Could I also show you my resume and cover letter to get some tips from you about how Judge ___ might react to them?" (You always, always want to leave a copy of your resume in the hands of as many potential references/relayers of side-channel information to judges as possible.)

Then, during your interview with your new contact person/info source, if you feel comfortable based on the quality of the feedback you're getting, follow up with: "Would you be uncomfortable if I mentioned in my cover letter that one of the reasons I'm applying to Judge ___ is because of the wonderful first-hand report of your clerkship that you've given me?" Lots of profs who'd be uncomfortable giving you permission to list them as full-fledged references — just because they don't know you well enough to have an informed opinion sufficient to actually vouch for you — will nevertheless be perfectly happy for you to simply mention their names as admirers of the judges for whom they clerked.

Another good question to ask in these pre-interview interviews with ex-clerks: "If for some reason you hadn't been able to clerk for Judge ____, who else would you have liked to clerk for?" Again, this can garner real information for you, and you can put in your cover letter to those judges, "Prof. ___ at my law school recommended that I consider applying to you, based on the respect he gained for you during his own clerkship with Judge ___."  Maybe that's trivial, but it's at least something else to take your submission out of the "mass-distributed form-letter application" stack.  It beats the heck out of "I got your name out of the list at the front of a recent volume of the Federal Reporter, Third Series," which is what many judges suspect has happened.

Run this same drill with lawyers at law firms you've worked for, or other practicing lawyers with whom you've had some nontrivial contact. (They're likely to be more flattered, and generous with their time, than law school profs.) See who's had clerkships and chat them up a bit, even if you didn't work directly with them. And you can use the same self-introductory and follow-up lines mentioned above.

These sorts of contacts can be genuinely educational for you. They're flattering to the people you're making the inquiries of. If you make a really good impression, they could lead to your contact person — who's likely to be rooting for you if for no other reason than you're at ___ Law School or you've worked at ___ Law Firm — placing an unsolicited phone call or dropping an unsolicited note in the mail to his/her judge, which absolutely, positively is likely to make your resume leap out of the judge's stack. And when you do get an interview with a judge, you'll have a ready-made answer for this common question: "Why did you apply to me/my court in particular?" (Although you probably should have included that info in your cover letter, this is still often a topic of follow-up discussion in interviews.)

I strongly concur with Prof. Volokh's commenters who've recommended that you consider applying to senior status judges. A law school classmate of mine clerked for a senior status Fifth Circuit judge down the hall from my own judge. Under then-existing Fifth Circuit internal procedures, his senior status meant that he ONLY heard cases that had made it to the oral argument calendar — and he didn't have to fool with summary calendar cases (which by definition tend to be more routine) at all. If his own judge ran out of work for him to do and he got bored, he'd walk up the hall and volunteer his services on a temporary basis to MY judge, who was delighted to have the help. The biggest downside re senior-status judges may be the increased risk that you'll have accepted a clerkship (and thereby dropped out of the market), only to find, when it comes time to serve it, the clerkship is no longer available (due to unplanned-for retirements or vacancies). The second biggest downside is that, depending on local procedures, senior-status judges may not participate in en banc proceedings, which are lots of fun for clerks. (One of the two opinions I'm most proud of assisting my judge on was an en banc securities law decision from the old Fifth Circuit, with 25 active-status judges participating; our chambers was at the center of the court politics over that case, and they were particularly interesting because the then-Chief Judge of the old Fifth had written the panel opinion that was being overturned by my judge's opinion for the en banc majority. That was just way cool for a 22-year-old kid from Lamesa, Texas.)

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One last point, for what it's worth: I acknowledge their arguments, and I appreciate that not everyone has a choice. But I've never been particularly persuaded by those who assert that "You'll learn more about the 'real world' in a trial court clerkship than in an appellate court clerkship." You'll have the rest of your career in the "real world." And while working for a trial judge might teach you how to be a trial judge, working with trial lawyers can definitely teach you how to be a trial lawyer.

But unless you end up as an appellate judge yourself someday, this post-graduation clerkship is going to be your only chance to get an appellate court clerk's unique and deep insights into how law gets made at an appellate-court level, not just by your judge but also by the judges with whom he/she works. At your appellate court clerkship's end, you'll not only understand the appellate process better, but you'll have learned a whole lot more law than you knew before — including all sorts of substantive law, plus appellate procedures, plus trial court procedural law (which you'll have to constantly look up just like the trial court clerks do). Writing (or helping write) opinions is fabulous practice for writing persuasive trial court briefs, and you'll have written (or helped write) more opinions than you would have had you clerked for a trial court. You'll have developed a keen appreciation for the need to preserve error in the record for appeal if you do end up becoming a trial lawyer; standards of review, both trial and appellate, will be second nature. You'll have learned how to draft proposed findings and conclusions that are more likely to be bulletproof on appeal; trial judges recognize these when they see them, and are genuinely grateful to get them, but their own clerks may be less well equipped to draft them. And even though your exposure to trial lawyers as an appellate clerk will have only been through reading transcripts rather than through personal observation, you'll have read a WHOLE lot of trial transcripts — probably a much bigger volume of Q&A than a trial court law clerk gets to read or watch live — from which you can steal (or learn to defend against) a lot of tips and tricks.

My own Fifth Circuit clerkship was in many ways the best and most valuable year of my career, and probably the best job I've ever had. And every day of my subsequent professional life, I've used the skills — particularly the writing skills, but others as well — that I honed during that wonderful year.

Posted by Beldar at 02:49 AM in Law (2006 & earlier) | Permalink

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