Great Law Clerks Are Like General Counsel, Not Junior Associates

Fall is a time of beginnings. It brings a new school year, a new season for television and theater, and—in the federal judicial world—a new class of law clerks. (Clerks traditionally transition in the late summer or early fall—except for Supreme Court clerks, who change over in July.)

I’m frequently asked for career advice, by everyone from college students contemplating law school to partners thinking about lateral moves. In light of the time of year, I thought I’d tackle this question: What counsel would I give to clerks?

Here are some tips. They’re based not just on my own knowledge of the clerkship world, including my (admittedly dated) experience clerking for the Ninth Circuit, but on recent conversations I had with federal judges whom I consulted for advice.

1. Be proactive, not passive

Law clerks are sometimes described as extensions of their judges. And it’s true that during their clerkships, clerks don’t have independent professional identities—their efforts get turned into work product that goes out in the names of their judges.

You might think, then, that clerks should await instruction from their judges before doing anything—just as an arm doesn’t move unless the brain tells it to move. But multiple judges told me they don’t want passivity in their clerks.

Instead, the judges I interviewed said they want clerks to think independently and offer their honest assessments of the facts and the law, as opposed to being yes-men or yes-women who simply say what they think their judges want to hear. These judges want clerks who can “see around corners” and bring both problems and opportunities to their judges’ attention—for example, a troubling decision that the judge might want to have reheard en banc, or a way in which the judge can clarify existing doctrine or even move the law forward.

As one judge put it to me, the judge-clerk relationship is more like the relationship between a CEO and a general counsel, as opposed to the relationship between a partner and an associate. The best clerks serve as trusted advisers to their judges, taking the initiative and exercising independent judgment—not as mere worker bees, simply waiting to execute on orders.

Okay, perhaps that’s uncharitable to Big Law associates. Maybe a nicer way to put it is that clerks should act like seasoned senior associates, confident enough to think and speak freely, as opposed to fearful junior associates, not speaking unless they’re spoken to.

At the same time, because a judicial chambers is staffed more leanly than a Big Law firm, clerks also need to assume the duties of junior associates and paralegals—which include making sure that everything is correct, down to the tiniest detail. Where can that particular fact be found in the record? Does that case actually stand for that precise proposition? As a clerk, it’s your job to find these things out—and to get them right.

2. Work closely—and become friends—with your co-clerks

Discussions of clerking inevitably focus on the judge-clerk relationship—which is entirely understandable, given how judges often become mentors to their clerks. But clerk-clerk relationships shouldn’t be overlooked; in fact, they’re also an essential part of the clerkship experience.

Some judges require their clerks to work together—for example, by editing or cite-checking each other’s work. But even if your judge doesn’t mandate it, you should collaborate with your co-clerks, bounce ideas off of each other, and try to improve each other’s work.

A clerkship is, compared with many other legal workplaces, largely free of internal competition and backstabbing. Take advantage of this collaborative environment while you have it. In fact, one judge told me that he requires his clerks to come into chambers at least four times a week precisely because being in each other’s company makes for better work product.

And you should enjoy spending time with your co-clerks as well. My three co-clerks are some of the most fun (and funniest) people I know, and hanging out with them—not just at work but outside of it, whether attending the Pendleton Round-Up, hiking in the Columbia River Gorge, or touring Oregon wineries—was a highlight of my clerkship year.

I learned a tremendous amount during my year clerking for the Ninth Circuit. But in terms of the most important things I gained from my clerkship, I’d cite my relationships with Judge Diarmuid O’Scannlain, who has been a lifelong mentor to me, and with my co-clerks, who are three of my best friends a quarter century later.

3. Before your clerkship starts, try to get in some R&R: rest and … reading

A clerkship can be an intense and demanding job. So it made sense when one judge told me that clerks should try to get some rest before the start of the clerkship—especially if they’re coming from stressful, time-consuming jobs in Big Law. If you can, try to take some time off after your last job (or the bar exam) and before your clerkship.

Before arriving in chambers, read your judge’s most notable recent opinions. This will give you a sense of both the legal issues your judge is facing these days and your judge’s writing style, which will be useful to you in drafting opinions. Pay especially close attention to dissents and concurrences, which provide even greater insight into your judge’s analytical approach and writerly voice. In these separate opinions, which don’t require buy-in from any of their colleagues, judges enjoy more freedom to think and write as they please.

Judges also provided me with book recommendations for clerks. One suggested “Reading Law,” by the late Justice Antonin Scalia and the legal-writing expert Bryan Garner, to understand statutory and constitutional interpretation. Another recommended “Point Taken: How to Write Like the World’s Best Judges” by Ross Guberman, another writing guru, to help clerks draft opinions well.

And if you’ll allow me a shameless plug, check out my own “Supreme Ambitions.” It’s a novel with a Ninth Circuit clerk as the protagonist, and it’s a fun beach read for these final days of summer.

4. Get to know your judge—and govern yourself accordingly

One of the best pieces of advice I ever received, from then-dean Risa Goluboff of the University of Virginia School of Law, could be described as “meta-advice.” Whenever you receive a tip or pointer, ask yourself: Does this apply to me and my circumstances? Counsel that might be wise for one person, in one particular situation, might be misguided for someone not similarly situated.

This applies to everything written in this column. Because they are individual human beings, judges are more varied than pretty much any other employer (including law firms). So clerks need to know their judges well, including their preferences and pet peeves, and adjust accordingly.

Most judges I know want clerks who take the initiative, as discussed above. But if your judge expects clerks to be glorified cite-checkers, then that is what you should be. (And maybe you should think about clerking again, for a judge who values independent thinking in their clerks; it makes for a much better clerkship experience.)

If you’re an incoming clerk, congratulations on your clerkship. It’s one of the best jobs the legal profession has to offer. And good luck in the year ahead.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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