The “Ideal Law Clerk” as an “Ideal Reader”

Stephen King believes that all novelists have “a single ideal reader.” Stephen King, On Writing: A Memoir of the Craft 216 (Pocket Books ed. 2000). This is a reader the author keeps in mind while writing. When drafting appellate briefs, I’d suggest that your “single ideal reader” be a law clerk. Here’s why. In many chambers, law clerks are the first to read your brief and will refer back to your brief on many occasions. The law clerk will often draft a memo recommending how their judge should rule on your case and will often assist in drafting the opinion. The law clerk plays an important role in the resolution of your case; you want to win them over.

So, who is this “ideal law clerk” you should write to? Most law clerks are high-achieving, recent law school graduates—think of a clerk with a B+ grade point average or higher and one out of law school for five years or less. And, when writing for this ideal law clerk, you should keep the following three points in mind.

First, your ideal law clerk is intelligent, but he or she does not necessarily know anything about the issues you are briefing; provide the big picture for them. Does your case involve statutory, constitutional, or common-law claims? Identify those, and how the court decides those claims methodologically. For example, how does the court decide statutory questions? Tell your ideal law clerk.

Second, walk your ideal law clerk through how the court should decide your case. Recall, your ideal law clerk will be referring to your brief when writing a recommendation on how his or her judge should rule and when drafting the opinion. Your aim is to assist your ideal law clerk in both tasks. Accordingly, you should equip your ideal law clerk with the tools they need to write the memo and opinion. While the specifics will look different depending on the type of issues presented, you should cite the seminal cases, cite any cases that closely mirror the facts of your case, and identify the key statutes or regulations that are in play. Your research, and briefing, should be expansive. If your case turns on the meaning of a statute, explain the statute’s history and relevant contextual clues. If the case concerns a discrete area of law that your court has not yet decided, pull relevant cases from other jurisdictions or helpful treatises. The benefits are twofold: You show your ideal law clerk that you have done your research and you frame this research in a way that benefits your case.

Finally, remember the details! Your ideal law clerk will read your brief multiple times, across many months. All the errors in your brief will be revealed. Take the time to cite check and proofread. Your ideal law clerk might forgive an error or two, but repeated errors will be met with skepticism. Don’t invite your ideal law clerk to call the substance of your brief into question.