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Keeping the Judicial Law Clerk on Your Side

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Keeping the Judicial Law Clerk on Your Side APPELLATE ADVOCACY Help the Clerk and Help Your Case Keeping the Judicial Law Clerk By Amanda E. Heitz on Your Side Although appellate Apart from the litigants and attorneys themselves, there practice articles often likely is nobody who will spend more time poring over cover how to write your briefs and the record than a judicial law clerk. At a briefs and motions for minimum, the judges deciding your case will rely on their clerks’ analyses of the record and research tifying the important legal issues and facts judges, we can forget of the issues—and many will also lean on on which an opinion will rely. Making an these clerks to propose an outcome and enemy of the law clerk may not sink your that our audience also craft language for written opinions. case, but it certainly will never help you. The role of law clerks in the judicial And keeping the law clerk on your side will includes law clerks, and process has been the subject of scholarly you give you another voice in chambers research and discussion for years. See, e.g., who can remind the judge of strong facts importantly, we need Stephen L. Wasby, The World of Law Clerks: or law that help your position. Tasks, Utilization, Reliance, and Influence, Accordingly, this article intends to pro- to help them focus on 98 Marq. L. Rev. 111 (2014); Todd C. Pep- vide practical tips from former law clerk pers et al., Inside Judicial Chambers: How perspectives that can help make you a bet- our arguments, too. Federal District Court Judges Select and Use ter advocate by giving the people spend- Their Law Clerks, 71 Alb. L. Rev. 623 (2008); ing the most time with your briefs the Todd C. Peppers, Courtiers of the Marble tools that they need to focus on your win- Palace: The Rise of the Supreme Court Law ning arguments. These tips are derived Clerk (2006). Debate over the influence that from conversations with former judicial law clerks have (or should have) on the out- law clerks across the country. come of a case, and analyses of the differing roles that law clerks play in different courts Tip 1: Remember Who We Are! and different chambers, are beyond the Especially in state and district courts, judi- scope of this article. Though their roles and cial law clerks are mainly new lawyers. influence may vary from court to court, it is Many find out whether they passed the bar safe to conclude that law clerks at least have while seated at a desk in a judge’s cham- a judge’s ear and a significant role in iden- bers. They are generally highly qualified new lawyers—frequently pulled from the top tiers of law school graduating classes ■ Amanda E. Heitz is a senior counsel with Bowman and Brooke LLP in and law review editorial boards—but they Phoenix, Arizona, where she maintains a trial and appellate practice focused are still new lawyers. on product liability defense. Before entering private practice, she spent four The law clerk is not likely a subject mat- years clerking at the Arizona Court of Appeals and Arizona Supreme Court. ter expert. (Hint: there is a good chance Ms. Heitz is a member of DRI. that your judge is not, either!) Take time 20 ■ For The Defense ■ February 2020 to provide some context for the legal issue either. Provide enough information and ex- weak claims, and one Hail Mary pass, you you are raising, particularly if it is not a planation so that someone who does not will have buried those three strong argu- subject in the required law school curric- intimately know how trials work can under- ments in seven additional arguments that ulum or on the bar exam. If there are rel- stand the point you need to make. Repeat- probably won’t win the day. Keep the court evant key principles that practitioners in ing the word “prejudice,” for example, won’t focused on what matters and what realisti- your area generally know, say so—and have much value unless you explain how im- cally stands a chance of making a difference include citations. Don’t assume that the law proper evidence, instructions, or argument for your case and client. clerk (or judge) knows which is the “lead- harmed your case or client. Another caution on this topic: don’t even ing” case or whether the applicable sub- think about trying to circumvent page limits stantive law follows a minority or majority Tip 2: Trim Your “Fat” Briefs— approach on an issue. Use your discretion and Proofread Them, Too! about how much background is necessary. None of the law clerks consulted for this arti- Reading a nuanced securities statute prop- cle reported that if a court granted a motion Take time to provide erly will likely require more background to exceed word count, they felt glad or that than understanding an argument about the the extra verbiage helped them do their jobs. some context for the legal scope of duty in a slip and fall case. Likewise, none had ever heard a judge ex- Relatedly, remember that recent law press happiness about an extra-long brief. As issue you are raising, graduates have limited—if any—experi- an advocate, think carefully whether yours ence in many everyday activities of practic- qualifies as one of the extremely rare cases particularly if it is not a ing attorneys. Discovery, for example, may that justifies a request to exceed court-im- be something the law clerk learned about posed page or word counts. subject in the required for a couple of weeks during the first year of Though a court may grant your motion law school and never thought about again. to exceed length, it doesn’t mean that law school curriculum Depending on law school course selection anyone is happy about it—least of all the or summer work experiences, the law clerk law clerk. If your request proved unwar- or on the bar exam. assigned to your case may never have seen ranted, and you have thoroughly annoyed a discovery request, let alone sat in a dep- the court with pointless, fat briefing, a osition. You don’t need to explain what a law clerk will be only too pleased to help with improper appendices, margin manipu- deposition is to cite one in your summary the judge find blistering case law to chas- lation, footnotes, or word-processing tricks. judgment motion, but if the main issue tise you in a written opinion. And there is As the U.S. District Court for the Northern that you will raise with the court relates to plenty of it out there. See, e.g., Mobile Shel- District of Illinois put it, “Resort to these discovery practice conventions, additional ter Sys. USA, Inc. v. Grate Pallet Solutions, tactics is embarrassing[.]” Malec v. Sanford, background could be helpful. LLC, 845 F.Supp.2d 1241, 1253 (M.D. Fla. 191 F.R.D. 581, 586 (N.D. Ill. 2000). See also Jurisdiction-specific procedural rules 2012) (“The Court’s page limit require- Northbrook Digital, LLC v. Vendio Servs. are another area of potential limited know- ment is not imposed to burden the parties. Inc., 625 F. Supp. 2d 729, 733–34 (D. Minn. ledge. There is no guarantee that the law It is intended to focus the parties’ attention 2008) (criticizing a party for “violat[ing] clerk attended law school or even sat for on the most pressing matters and winnow the spirit, if not the letter” of word limit by the bar in the jurisdiction in which he or the issues placed before the Court, thereby “manipulat[ing] the word-counting feature she is now clerking. But even if the law clerk conserving judicial resources.”); State v. of its word- processing program through im- attended school in your jurisdiction and Johnson, 447 P.3d 783, 828–29 (Ariz. 2019) proper hyphenation” and disrespectfully re- intends to practice there, it still does not (noting that the defendant was “entitled to ferring to the magistrate judge by her last guarantee that the clerk will know the local a meaningful opportunity to be heard, but name only). You will get caught. People rules well. Many law schools do not require that does not mean that he may decline to working in the courts stare at correctly for- state-specific procedure courses, and a law comply with this Court’s requirements and matted documents all day long; it’s not hard clerk’s knowledge may be based primarily orders or that he is excused from the obli- for them to pick out a non-conforming one. on a civil procedure textbook geared to a gation to edit his work”). Finally, proofreading and editing go hand national audience. When appropriate, con- As one former clerk put it, “the opera- in hand. While you edit, make sure you sider whether comprehensively discussing tive part of ‘briefing’ is ‘brief.’” Aside from proofread your work, too. Spellcheck and a state rule of civil procedure—particu- potentially irritating law clerks and judges grammar check will not catch everything. larly if it differs significantly from a federal with overlength briefs, remember the prac- Though law clerks may get a chuckle when rule—would be useful. tical risk that fat briefing could also dilute you accidentally refer to “trail courts,” “the Finally, don’t assume that anyone read- your arguments. In a standard-length fil- farmers of the Constitution,” “chile abuse,” ing an appellate brief has tried a case. Appel- ing, the reader will likely remember the and “doe snot,” such errors distract from late law clerks have not usually seen a trial, third of three strong arguments.
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