Each judge operates his or her chambers differently. For example, judges operate like producers on film sets, giving their preliminary thoughts and making all final decisions. Judges’ staffs do the leg work that judges would never have the time to do. Judicial assistants may handle scheduling, screen calls, or draft scheduling orders. Law clerks, however, might be analogous to film directors. Law clerks are generally responsible for research and writing. Judges may give instructions on how to decide some motions or appeals in advance, but occasionally law clerks draft bench briefs or opinions before judges read the briefs. Consequently, attorneys should consider the law clerk when writing to the court. Here are five tips to consider when writing to the clerks.
1. Understand the Varying Levels of Experience among Law Clerks
Most material about writing to the court focuses on judges, but law clerks typically review cases first. While some judges have permanent clerks, many have “term” clerks who serve for one or two years. Permanent clerks know the ropes. They have seen all types of cases before and, in some instances, identical motions. Term clerks, in contrast, might be as little as three months removed from law school, having come to chambers just after a bar exam. Do not assume everyone in chambers has the same amount of experience.
2. Include a Clear and Concise Statement of the Law
Many legal writing courses encourage writers to include a statement of the conclusion, legal rule, the issue presented, application of the law to the facts, and restatement of the conclusion. After a few years, attorneys inevitably do away with this formula, thereby omitting pertinent parts of legal analysis. Although a strict formula is unnecessary, do not allow an opponent’s statement of the legal rule to go uncontested. Even if the judge was once familiar with an area of the law, do not assume anyone in chambers is familiar at a later date. Dockets are high volume, memories fade, and law clerks often change. Always include a clear and concise statement of the law.
3. Expedite the Process by Keeping It Simple
Every morning a law clerk must decide whose case will receive attention. The simplest tasks will inevitably jump out of any to-do list. Attorneys should think twice before deciding that the perfect strategy is to immerse their opponent in paperwork. When parties file serial motions, overly detailed motions, or excessive exhibits, they do not just inundate each other—they inundate the court. In doing so, attorneys may run the risk of moving their case to the bottom of the list.
4. Do Not Delay the Ruling
Duplicative motions torturing a single subject delay the process of getting a ruling. For example, once a motion to compel is fully briefed, it may be unnecessary to file a motion for a protective order regarding the same evidence. It is an unhealthy practice for parties to file multiple motions containing the same arguments. Granting one motion may have the effect of denying the other. It makes sense for law clerks to wait until the second motion is fully briefed to begin drafting the order.
5. Address the Law and Policy Implications
In civil cases, plaintiffs’ attorneys must focus on the law even if the facts favor their side, and defense attorneys must give policy reasons that support their position. Plaintiffs’ attorneys tend to focus on their clients’ unfortunate circumstances. For example, attorneys who state “for the foregoing reasons,” citing only two appellate court decisions, one from another jurisdiction and one from the 1930s, should consider getting research assistance. To be fair, defense attorneys tend to believe the law is on their side, and so they merely cite the holdings of cases for pages without referencing the facts of the case at hand. Attorneys who start the WHEREFORE clause only having mentioned their client’s name in the caption should consider articulating the broader “policy rationale” associated with ruling for what might be the less-sympathetic party.
Law clerks are an essential part of the court system. Although judges make the final decisions, law clerks are a part of the process. Always consider the law clerk’s perspective.