Newspaper article

Law Clerks: Unsung Heroes of the Judicial Process

Newspaper article

Law Clerks: Unsung Heroes of the Judicial Process

Article excerpt

This is the 12th in a series of occasional commentaries on the judicial system from the perspective of a District Court judge.

It’s difficult for people in our community to understand what happens in court. How do judges make decisions? Why do judges issue opinions? How does the decisional process work? These are among the issues I’ve tried to address. But there’s an important part of the process I’ve yet to comment on, and that anyone doing business with the courts should understand:

Behind every good judge there’s a good clerk — or two.

Law clerks are the unsung heroes of the judicial process. They are critically important to the skilled handling of the legal and administrative matters that come before a judge. Judges, even the best judges, are often only as good as their clerks. That’s a huge responsibility for a clerk, but also a huge responsibility for the judge. The judge has to select their law clerks carefully, and then train them so they produce legal product that reflects the quality the judge expects.

Most often law clerks are young lawyers, straight out of law school. They serve for a period of time — one to three years is fairly typical — assisting a judge in writing legal opinions, researching legal and procedural issues, and inputting information into the court computer systems to accurately reflect the up-to-date work of the court. A good law clerk must be highly intelligent, a good writer, attendant to detail, efficient, and motivated to turn out a work product of excellence.

In renaissance Italy, it wasn’t unusual for famous painters to rely on apprentices to assist them with their work. When the apprentice reached a level of excellence, the painter might trust them with painting portions of their work — an arm or leg, a tree, a face — it all depended on the apprentice’s skills. A judge’s work with their clerks is similar in some respects. When a law clerk first begins in my chambers, I carefully review the clerk’s work, edit it, and in some cases, entirely rewrite it. Even the simplest task is subject to scrutiny. But as clerks prove themselves they are given more authority; their work is still reviewed, but edited less often.

Clerks regularly impact decisions

My clerks don’t decide cases, but they regularly impact my decision. I carefully review motions, supporting briefs, case decisions and exhibits before hearing a motion. When the hearing is complete, I typically sit down with my clerk, and together we review the arguments, and the most important cases. We decide if additional research is needed, or I make a decision and explain to my clerk the basis for it. In more complex matters we create an outline. Then my clerk has the difficult job of preparing a first draft of the decision — it’s the exception when I write the first draft. In the course of preparing the order, my clerk may come upon a new case or review an existing case that sheds new light on how the issues before me should be decided — which may be different from what I had originally intended. We’ll then carefully discuss the new information and I’ll determine if my decision should change.

To be sure, my clerks and I don’t always see eye to eye. Sometimes my clerks see the strength of an argument differently. Sometimes I conclude they’re right. The hard work of making difficult decisions, however, should be the judge’s. Judges, more than young lawyers, have the knowledge, training and experience upon which to make the most difficult decisions. But clerks bring a second perspective that can have a significant impact.

Analysis and research

Clerks also have to learn the degree of analysis a judge requires. Some issues can be dealt with in a fairly straightforward manner, while others take careful parsing of the applicable law. …

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