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August 16, 2012 Articles

Young Lawyers: Practice Tips from the Judge's Law Clerk

By Crystal R. Axelrod

It has been said that a good lawyer knows the law, but a great lawyer knows the judge. As the judge’s assistant and primary legal advisor, in some respects, no one knows the judge better than the judge’s law clerk. During my time as a law clerk, I have observed countless examples of best and worst practices, and I have compared my experiences with those of other clerks in various courts.

Before delving into best practices, below are some real-life examples of what not to do when interacting with the court and court staff.

  • Do not begin your argument to the court with “Judge, I didn’t read the motion, but I would just like to say . . .” Hint: You are not off to a good start.
  • Do not try to make your case to the judge’s law clerk—that constitutes ex parte communication. If you find yourself saying “Between you and me . . .” you should probably stop there.
  • Do not bad-mouth a judge’s ruling on a local bar association’s law blog, particularly when the judge is likely to be a member. It is not a bad idea to consult your peers to discuss the judge’s ruling, but consider sending a personal email, rather than a public post.
  • Do not quote the Bible to the judge and request that he or she “judge righteously” or “do the right thing.” You can trust that the court is well aware of its ethical obligations, and chances are good that your suggestion to the contrary will not be well received.
  • Do not call the judge’s chambers to ask what the applicable federal or local rule is because you are “currently on the road and unable to reach anyone at the office.” Unsurprisingly, the court cannot perform legal research for you.

Hopefully, the aforementioned examples do not come as a great surprise. They do raise a point, however, that should be stressed: Many lawyers do not realize that the judge’s staff acts as an extension of the judge. It is the staff’s duty to represent the court at all times. Rules found in the Judicial Code of Ethics, such as confidentiality and prohibited ex parte communications, apply to them as well. In fact, many judges do not allow attorneys to contact their chambers for that reason. Along the same lines, you can assume that anything you say to the judge’s staff or clerk’s office staff will make its way back to the judge. As a general rule, treat all members of the staff with the same respect that you would give the judge.

Know Your Audience
Every great lawyer must be able to demonstrate strong legal writing skills, particularly in the field of litigation. To be an effective writer, you must know your audience. When writing for the court, your goal should be to make it as easy as possible for the court to grant the relief requested in your motion. In doing so, you should be thorough, yet concise. You should provide the court with all of the legal and factual analysis it needs to make an informed decision, but no more than that. The following practice pointers provide some guidance on how to achieve this balance.

Be Succinct in Your Motions and Supporting Briefs
At a recent bench-bar conference for young lawyers, one federal district court judge advised, “You want to hit us between the eyes with it.” Omit flowery language and creative metaphors, unless they are in the form of a direct quote from a relevant case. Similarly, avoid throwing witty jabs at opposing counsel or negatively characterizing your opponent’s argument. In addition, leave out unnecessary introductory phrases such as “The defendant would argue . . .” or “It is the plaintiff’s belief that . . .” These common faults distract the court from the crux of your argument. Moreover, they tend to give the impression that your motion lacks adequate support. Instead, simply state your contention, cite the applicable legal principle, and apply it directly to the facts of your case in as few words as possible.

Precision is the main concern of good writing. Some legal writers lack the ability to write simple, straightforward prose. Often this is the result of lawyers’ tendency to find cover by over-generalizing: when the writer is not sure of a legal principle or of how to state it precisely, vague expression finesses the difficulty. To write with clarity and precision, the writer must know precisely what he or she wants to say and must say that and nothing else. The thought is the origin of the word, and the word is no better than the thought from which it springs.

Fed. Judicial Ctr., Judicial Writing Manual 21 (1991).

Include an Introductory Statement in Your Motion
This might include an overview of the types of claims involved, the key issues in dispute, and a brief statement of the relief requested. Especially if you are filing a lengthy pleading, such as a motion for summary judgment, an introductory statement establishes a context for everything that follows and directs the judge’s focus toward the main points in your argument.

Conduct a Thorough Legal Analysis of the Issues Presented
Citing one or two cases that support a general proposition followed by a conclusory statement about why you believe your client deserves the relief requested will rarely suffice to meet your burden as the movant. If you find yourself repeatedly using words like “unjust,” “inequitable,” or “unfairly prejudicial,” and those words are not followed by a case cite, you need more legal support. If similar courts have ruled on similar motions in cases with similar facts, bring that to the court’s attention and show why the court should apply the same analysis in your case. If you have done the research and were unable to find similar cases, you should be able to confidently tell the court that there are no such cases out there. Instead of filling the empty space in your brief with your personal opinion on how the court should rule, you should cite several cases that are analogous, albeit distinguishable, even if you can only find them in other jurisdictions. Your task is to provide the court with some precedential guidance on how to rule. Help the judge help you.

Be Strategic in Filing Responses and Reply Briefs
If you represent the movant, you should anticipate your opponent’s response and preempt his or her counterarguments to the extent possible in your initial motion. Once your opponent has filed a response, the purpose of filing a reply brief is to address each of your opponent’s arguments and show, to the extent you have not already done so in your motion, why the court should still rule in your favor. This is not simply a battle of semantics; precedent, not puffery, persuades the court. You should cite directly to case law and explain why the cases support your interpretation of the law and not your opponent’s.

Once an initial response and reply have been filed, refrain from filing any supplemental briefs if you have nothing substantively new to add to your argument. You will not score points simply for having the last word. To the contrary, you will run the risk of wasting the court’s time and resources. If you decline to file a sur-response or a sur-reply, the court will not hold it against you. In fact, many judges specify in their scheduling orders that parties shall not file supplemental briefs without leave of court, because they are often largely redundant. Again, keep in mind that the goal is to be thorough, yet succinct.

Research and Prepare
Law clerks have the benefit of observing some of the best litigators in action. Generally speaking, these attorneys are fluent in the applicable rules of evidence and procedure, as well as the court’s individual procedures. They come to court prepared and have prepared their clients as well. Their presentations are polished and organized. Moreover, they anticipate potential questions from the judge and objections from opposing counsel. As a result, they are able to respond articulately and with purpose. It is research and preparation done outside of the courtroom, in advance of the proceeding, that yields the greatest results.

Know the Local Procedural Rules
Seek out the applicable procedural rules and standing orders for your jurisdiction, and carefully review your pleadings to make sure they comply. Start by reviewing the court’s website for guidance. To understand the practical application of the rules, look for practitioner’s guides or sample forms online. The court’s website often has an appendix to its local rules with sample forms.

Familiarize Yourself with the Judge’s Website
Many judges, particularly in federal court, have a link from the court’s website to their own individual website or wiki page. The website often describes the judge’s individual courtroom procedures and filing requirements, separate and apart from the local rules. If the judge took the time to compile such information onto his or her website, you can assume that he or she expects you to be familiar with it. Some judges may also include summaries of their previously issued memorandum opinions, searchable by topic or keyword. Before presenting your argument to the judge, you would be wise to consult this valuable resource.

Take Advantage of Technology in the Courtroom
Most judges welcome the use of technology in the courtroom, and you should take advantage whenever practicable. During a motions hearing, for example, consider using a PowerPoint presentation. It effectively forces you to organize and streamline your argument. It is also helpful to the judge as a fact-finder, and it results in a printable outline of your argument that serves as a useful reference for the judge when ruling on a motion taken under advisement long after the hearing is over. For more tips on the effective use of PowerPoint presentations in the courtroom, see “Young Lawyers: Technology Is an Advantage in the Courtroom.” In addition, many courts now accept electronic exhibits in the form of a CD or a flash drive. Some judges strongly prefer electronic exhibits over large, three-ring binders. They take up less space, they add to the professional appearance and clarity of your presentation, and they are often easier to navigate.

Confer with Opposing Counsel
Make every effort to confer with opposing counsel prior to appearing in court to narrow the issues in dispute and stipulate to exhibits. Even better, make an effort to reach an agreement prior to filing your motion. An “agreed” or “unopposed” motion, presuming it complies with the local procedural rules and is signed by all interested parties, avoids the need for a hearing and will likely be granted expeditiously. Also keep in mind that certain pleadings require a certificate of conference, per the local rules. When the rules specifically require you to meet and confer, it is insufficient to state that you “attempted to contact opposing counsel by email” or “left several messages.” Explain to the court in detail when and how you attempted to make contact. If opposing counsel is truly nonresponsive despite your best efforts, the matter will likely need to be set for hearing, but at least you will have demonstrated to the judge that you made every effort to resolve the issue outside of court.

Submit a Witness and Exhibit List
Consider submitting a list of witnesses and exhibits to the clerk prior to a hearing. You need not produce a copy of the exhibits, but the list is helpful to the courtroom staff in documenting the record, and it helps preview the hearing for the judge.

The overarching theme embodied in all of these best practices is this: Lawyers who are great at their job make it as easy as possible for judges to do their job. If you are respectful, self-informed, prepared, and considerate of the court’s time, the judge will appreciate your efforts. As previously stated, your goal is to make it as easy as possible for the judge to rule in your favor. In a nutshell, that is what makes a great lawyer.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).