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April 21, 2014 Articles

As Good As It Gets: Appellate Training Through Judicial Clerkships

By Paula Mitchell

The appellate training and experience one gains while clerking for a U.S. Circuit judge is about as good as it gets. Some would say it’s the gold standard. Many former clerks have commented that their time in chambers was the highlight of their educational training; and they lament that it was over too soon.

Most law clerks serve one-year terms. Just as they have learned the intricacies of appellate procedure and are able to tackle the toughest cases with the most complex legal issues, they are ushered out the door to make room for the next class of clerks. A few fortunate souls, however, are lucky enough to serve for a longer period as career or permanent law clerks. Their tenure is indefinite; they can remain in chambers so long as they remain in their judge’s good graces.

I was one of the fortunate few. I clerked for the Ninth Circuit Court of Appeals, in several different capacities, for eight of the last 10 years. In that time, I participated on calendars where the judges for whom I worked decided more than 500 federal appeals.

Now, I am in private practice. My path to private appellate practice has not been a traditional one, but the alternative route I chose has served me well.

About two years after graduating from law school, I landed a clerkship with the Ninth Circuit Bankruptcy Appellate Panel, commonly referred to as the BAP. Initially, I was slightly terrified when U.S. Bankruptcy Judge Erithe A. Smith, who was appointed to the BAP in 2004, hired me as her BAP law clerk. While I had some experience working on federal appeals, I had never worked on a bankruptcy case . . . ever. As it turned out, the BAP clerkship was an amazing experience. I mastered those parts of the Bankruptcy Code that I needed to know with relative ease, and I focused on refining my appellate research and writing skills by drafting bench memoranda and dispositions.

One of the many unique features of the BAP is that it is comprised of sitting Bankruptcy Court trial judges. To avoid any actual or perceived conflicts that may arise from hearing appeals on cases they or their colleagues down the hall decided, the BAP judges must travel to a district outside their own to hear appeals for every BAP calendar. Most months, Judge Smith and I would travel to hear oral arguments elsewhere in the Ninth Circuit. We visited the federal courthouses in Las Vegas, Phoenix, Sacramento, San Francisco, and Seattle, where we heard attorneys from all over the western United States argue their bankruptcy appeals. I loved everything about the experience. I met judges and law clerks from other parts of the Ninth Circuit. On the evenings before an oral argument was scheduled, the panel judges and their clerks would meet for dinner. It was a wonderful ritual, and it taught me the important role such traditions play in fostering collegiality. Getting to know my law clerk colleagues and the other judges also made the whole experience that much more enjoyable.

After a year and a half with the BAP, I joined the chambers of Senior Circuit Judge Arthur L. Alarcón for a one-year term as a law clerk. During law school, I externed for Judge Alarcón, and that experience confirmed my desire to devote my career to appellate advocacy. From that point on, I doggedly pursued appellate clerkships so that I could gain as much experience as possible across an entire legal landscape that includes civil, criminal, administrative, immigration, and habeas matters.

When I finished my clerkship, I entered private practice as an associate in the trial department of a major law firm. At the firm, I found myself constantly asking to work on appeals; but I discovered that appellate work was quite coveted among the more senior litigators. I gained a great deal of litigation experience but found myself craving further appellate opportunities. After a few years in private practice, Judge Alarcón asked me to rejoin him, this time as his career law clerk. I accepted and spent the next five and a half years working in his chambers on a variety of projects, in addition to handling our regular caseload.

Each year since taking senior status, Judge Alarcón has received a steady stream of invitations to sit by designation in circuits outside the Ninth Circuit. As a result, during my time clerking for him, I was able work on calendars that took place in the Third, Fourth, Sixth, Ninth, Tenth, and Eleventh Circuits. It was a wonderful opportunity for me to see the differences in how appellate practices are carried out across the different circuits, from Anchorage to Philadelphia, and from Cincinnati to Jacksonville.

I will never forget the first time I attended oral arguments in the Eleventh Circuit. One of the judges on the panel spoke to counsel from the bench and referred to his opposing counsel as his “brother.” The two lawyers looked nothing alike, so I found it hard to believe that they were related. And then I realized that this was a southern expression, referring to opposing counsel as one’s “brother” or “sister.” I discovered another regional tradition when Judge Alarcón was sitting with the Fourth Circuit in Richmond, Virginia. After each argument concluded, the three judges stood up, descended from the bench, and walked down to shake hands with and thank each attorney present at the counsel tables. Judge Alarcón and I both remarked on how the attorneys were clearly moved by this gesture of respect paid to them by the judges.

While federal clerks are constrained from practicing law, they are able to teach at law schools with the permission of their supervising judge. With Judge Alarcón’s support, I began teaching a course at Loyola Law School called Habeas Corpus & Prisoner Civil Rights Litigation. The experience helped me develop professionally on several levels, including providing me with tremendous public speaking experience. It also allowed me to pursue some of my research and publishing interests. Together with Judge Alarcón, I coauthored several law review articles. My public speaking experience came in handy when one of our articles concerning the cost of the death penalty in California made a significant splash in the press, and I was called on to give presentations about our findings at universities and law schools throughout southern California.

The work I did while clerking for the Ninth Circuit not only allowed me to develop extensive research and writing skills, but it also taught me how to reason my way through some of the most complex procedural and legal issues. My oral advocacy skills were also tested and refined because clerks are called upon to present their cases, and address and analyze each issue on appeal orally at regular staff meetings before the judge. When the judge has questions or is not satisfied with a legal analysis, he will challenge his clerks to try again. I cannot imagine better training for an attorney intent on a career as an appellate practitioner.

Keywords: woman advocate, litigation,judicial clerkship, appellate practice, bankruptcy, Ninth Circuit

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