September 01, 2015

Clerkships: The Clerking Experience in the State System

Michelle L. Tran

A clerkship can be among the most formative experiences in a lawyer’s career. But how does one go about applying for and securing such a position, and what should a new clerk expect, both in terms of daily responsibilities and lasting lessons? To help answer these questions, GPSolo presents here the insights and advice from a law school career counselor and three former clerks, one who clerked for the U.S. Court of Appeals, one who clerked for the U.S. Court of Appeals and the U.S. District Court, and one who clerked for the California Court of Appeal. The other sections of this multi-part article can be accessed via the links below: 

Clerkships: Application Tips from a Law School Career Counselor By Mishkah Ismail

Clerkships: Application Tips from a Former Law Clerk By Andrew Kim

Clerkships: The Clerking Experience in the Federal System By David E. Hackett

I had the opportunity to clerk for Judge William F. Rylaarsdam of the Fourth District, Division Three, of the California Court of Appeal. My clerkship originally was for a three-month period, but I had the good fortunate to be allowed a six-month extension on the clerkship. In retrospect, my clerkship with the California Court of Appeal was invaluable because it taught me more than just effective legal writing and research. It taught me instrumental skills that I carry into my current practice, including courtroom decorum, persuasive legal writing, and interaction with the bench and bar. I also learned the importance of creating a good record and placing relevant exhibits into evidence, the differences between the trial and appellate levels, and how to weigh tactical and strategic choices such as requesting a statement of decision.

Currently I practice family law, and my practice is devoted 100 percent to litigation. Although my clerkship was with an appellate court, I actually learned quite a bit about the trial level and the importance of making a clear record, which has been extremely helpful in my current practice.

However, what made the clerkship so exciting was that it allowed me to be exposed to different types of cases, ranging from criminal law, to corporate law, to family law, to civil law. I had the opportunity to research different areas of the law, which helped me decide what type of law I wanted to practice after I graduated law school.

The most thrilling part of the clerkship was writing legal memorandums to the research attorneys or the justice and seeing portions of those memos being incorporated into a judge’s opinion. I would spend hours doing legal research, and seeing my work actually being used in an opinion was always a very proud moment.

Below is an overview of the activities that comprised the bulk of my experience as a clerk—along with some tips for those thinking of applying for a clerkship or practicing at the state level.

Legal research and writing. The majority of my clerkship activities related to legal writing and researching. First, I reviewed the record and the two briefs submitted by the appellant and the respondent before making sure the law cited was still good law. Thereafter, I would conduct legal research to determine which side had the most persuasive argument and support in the law for its argument.

Relative to legal writing, the court is only able to rely on the record and nothing else. After reviewing dozens of cases, I found it was clear which records were well prepared and which were going to cause an issue on appeal.

The record should consist of all relevant pleadings, orders, and evidence that either the appellant or respondent would like the court to consider on appeal. If it does not exist on the record, it does not exist to the court, and the court will not consider facts not included in the record.

It is also crucial that, at the trial level, there is a request for a statement of decision. The statement of decision will outline why the trial court made its decision and the law the trial court relied on to support its decision. This is important because the appellate court will be able to understand how the trial court reached its decision and if there was any error in reaching its decision. Without the statement of decision, it is extremely difficult for the appellate court to make any determinations on the appellate level.

Writing effective legal briefs. The legal brief is the most important part of the appellate level work, and the court relies on the legal briefing significantly in coming to its decision.

When preparing legal briefing, counsel should make sure the order of issues is appropriate. The strongest legal argument should be the first issue in the brief, and the issues should descend by order of importance.

Recognizing and outlining your strong points and weak points are equally as important. Outlining the strong points of your case is the easy part. The most difficult but most effective part of legal briefing is recognizing your weak points, addressing them, and persuasively arguing why your position is more legally sound than the other side’s.

Formatting legal briefs. The California Court of Appeal follows the California Style Manual and the rules pertaining to proper citations. Many law students and attorneys are used to the rules set forth in the Bluebook, but briefs submitted in California must follow the California Style Manual.

As simple as it sounds, make sure to Shepardize and that the law cited in your brief (and oral argument) is correct and good law. There is nothing worse than relying on case law that is no good. Moreover, finding case law that has similar facts and circumstances to the facts in your case will also be persuasive to the court, especially if there are any cases on point that were decided by that same particular district and division.

Oral argument. Observing oral argument was another component of my clerkship. Counsel on both sides (or self-litigants) would make their arguments in front of a three-judge panel.

Judge Rylaarsdam passed along to me several tips on effective oral argument—and while working for the judge, I also discovered his pet peeves in this area.

First, appropriate dress in the courtroom is very important. Attorneys should present themselves to the court and make a professional first impression. Second, counsel should not have anything in their hands that they can fidget with (e.g., a pen), as this is extremely distracting.

One of the most important tips (and one that resonated with me as I continued on with my practice) was to listen to the question the judge asks and then to answer that particular question. Every judge’s biggest pet peeve is when counsel diverts the court’s question and does not respond to it directly. There is a reason why the judge is asking a specific question, and the court wants a response to that question. Arguing a different point and diverting a response will lead the court to think that counsel is either unprepared or is avoiding answering the question for a reason.

A formative experience. My clerkship with the California Court of Appeal was extremely significant in the development of my career, and would highly recommend others to pursue the same experience.

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Michelle L. Tran

Michelle L. Tran (michelle@mtranlaw.com) is owner of the Law Offices of Michelle L. Tran in Orange, California; previously she clerked for Judge William F. Rylaarsdam of the Fourth District, Division Three, of the California Court of Appeal.