Writing to the Court: Consider the Law Clerk

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Sheena R. Hamilton is a law clerk for a federal judge in Missouri and an adjunct professor at Saint Louis University School of Law.  She can be reached at shamil11@slu.edu for any comments or questions regarding this article.  

All judges staff and run their chambers differently.  Judges, however, generally operate as a producer on a film set might.  Judges may give their preliminary thoughts and always make the final decisions, but judges’ staffs are in place to do the leg work that judges would never have the time to do in all of their cases.  Judicial assistants, for example, handle scheduling, screen calls, and even create some form orders.  A judge’s law clerk, though, has the potential to act as a director.  This article will explore the perspective of law clerks based on my experience as a former law clerk for a judge at the Missouri Court of Appeals and a current law clerk for a federal judge in Missouri.

Law clerks’ roles not only depend on their judges’ preferences, but on the types of cases or motions before their judges.  In the vast majority of chambers, law clerks are responsible for most research and writing.  In some cases, judges may give specific instructions on how to decide motions or appeals in advance.  In other cases, law clerks may draft bench briefs or opinions before judges even look at the briefs.   Because an attorney will not typically know which situation is involved, they should consider the law clerk when writing to the court. 

Expedite the Process

A law clerk’s work flow varies depending on the docket.  It is as unpredictable, although not as voluminous, as an associate at a law firm.  While the judge has the liberty of resetting a hearing or moving a trial date, the law clerk is expected to have any work product necessary for that hearing or trial to proceed on schedule in the hands of the judge in a timely fashion.  Law clerks also have a decision to make every morning about whose case will receive their attention that day.  Attorneys might consider making their case look like the best choice. 

When one looks at a To Do List, the tasks that seem simplest to complete inevitably jump out from the page.   Attorneys should think twice before deciding the perfect strategy is to immerse their opponent in paperwork.  When parties file overly detailed or serial motions they do not just inundate each other, they also inundate law clerks; and, in doing so, they run the risk of moving their case to the bottom of the list.  For example, a fifteen-page motion with 300 hundred pages of exhibits is not likely something a law clerk will choose to tackle on a Friday afternoon.  Additionally, filing a motion to quash, motion to dismiss, motion for a hearing, then a motion for a telephone conference does not fall into the “best practices” category.

Duplicative motions have the same effect.  If one party has filed a motion to compel that is fully briefed, then the other side files a motion for a protective order over the same evidence, it is not likely that the motion to compel will be ruled on until the motion for the protective order is fully briefed.  Further, the same arguments should be contained in both sets of motions, which would likely irritate law clerks and judges.  

Instead of filing serial motions based on different subject matter or duplicative motions torturing a single subject, attorneys might consider drafting the motions they believe may be necessary then waiting to file those motions until they receive rulings on pending motions.  Practicing such restraint may help clients get faster results or give the court the opportunity to clarify matters without fully briefing the same issue multiple times.

Help Us Help You

While some judges have permanent clerks, several judges have “term” clerks, who serve for one or two years.  Permanent clerks know the ropes.  They have seen your case before and, in some instances, your particular motion.  Term clerks, however, might be as little as three months out of law school, having begun their work in chambers just after the bar exam.  Considering term clerks’ limited experience, the statement of the law must be paramount. 

Most law schools teach a ridiculous theory of legal writing based on a statement of the conclusion, law, issue presented, application of the law to the facts of the case, and a restatement of the conclusion.  (I can make fun because I am an adjunct professor at a law school).  I believe law schools do this to break writers down, and force them to include the pertinent parts of legal analysis in every section of their work product.  Law students who take courses like moot court may move beyond that strict formula into “writing to persuade.”  After a few years in practice, though, attorneys inevitably do away with this formula.  In doing so, some pertinent parts of legal analysis may be omitted.  Such omissions are to the detriment of term clerks. 

Term clerks are in dire need of the statement of law.  In law school, students have a limited ability to deal with case specific legal analysis outside of judicial opinions they read for lectures, i.e., legal research and writing, moot court, and mock trial.  As such, term clerks may know general legal principles because they have just finished law school and the bar exam, but they may have only had exposure to the nuances of a few areas of the law.  If an attorney does not include a clear and concise statement of the law, law clerks will be left to the brief of that attorney’s opponent or, God forbid, their own devices.   While law clerks are typically individuals who did well in law school, attorneys who are experts in their area should not hesitate to share their knowledge with law clerks. 

As an aside, new lawyers should likewise consider the statement of the law carefully.  A new lawyer has the advantage of knowing the law clerk’s perspective exactly.  If a new associate at a law firm has spent hours researching an issue, making a flow chart, and talking it over with his or her significant other (in hypothetical form of course) the law clerk will likely need to do the same.  It may be worthwhile to include a lengthier statement of the law, taking the time to make it plain.  A new lawyer should be brave enough to caution the experienced partner or supervisor against cutting out the basics.  Try explaining to them that law clerks know just about as much as they did when they finished law school.

In addition to rule statements, attorneys must also give the policy reason that might support their position.  In my experience, defense attorneys sometimes believe the law is on their side, and so they merely cite the holdings of cases for pages without referencing the facts of their particular case.  Attorneys who start the WHEREFORE clause only having mentioned their client’s name in the caption might consider looking at a couple of point headings on a law review article to get the creative “policy rationale” juices flowing.  To be fair, I have also encountered plaintiffs’ attorneys who focus solely on the details of their clients’ unfortunate and compelling circumstance.   Attorneys who have typed “for the foregoing reasons,” citing to only two appellate court decisions, one from another jurisdiction and one from the 1930s, might consider getting a new associate’s research assistance.

Law clerks are an essential part of the court system, and they can have a significant effect on the outcome of your case.  Always consider the law clerk’s perspective!

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