04-07-08 ~ MUSINGS OF A MIDDLE-AGED LAW CLERK

In February of 1985, I returned to Tuscaloosa, Alabama from taking the Alabama Bar Exam in Montgomery. My then-wife, now a part-time municipal judge in Selma, Alabama announced that I’d been called for an interview for a job as a part-time law clerk with a domestic relations judge -- divorce, child custody, child support, juvenile dependency, delinquency and "in need of supervision" cases. Good deal. I needed a job, and F.Lee Bailey wasn’t knocking down my door, so I took it. (One of us is showing their age if you don’t know who F.Lee Bailey is.) Clerking for a judge fresh out of law school, I thought I learned a lot about what goes on "behind closed doors," so to speak. But I was still very young and inexperienced, and easily impressed. I also hadn’t really come into my own in terms of researching and writing THE LAW, or being able to identify and resolve issues. And the practice of law and its application was still relatively "academic" for me. It wasn’t until I took the judge that I had clerked for up on appeal in an appointed case that I really began to appreciate the "art of law." I lost that case. A few years after passing the Bar and getting my head handed to me by more experienced (and influential) local lawyers in Tuscaloosa, I got a job in the Alabama Attorney General’s Office, Civil Litigation Division, in Montgomery. Among my first clients was a judge who had fired his confidential secretary who turned around and sued him, alleging he violated her first amendment right for firing her because she was attempting to speak out on matters of public concern and also because she was also exercising her right to freedom of association by helping a friend of hers get an ex parte divorce and temporary restraining order against the judge’s brother, in another county. I wound up winning that case on appeal in the Eleventh Circuit Court of Appeals. For some reason, I developed a bit of an expertise in representing judges who were sued for one reason or another, and developed quite a little clientele of judges around the state. (Which made it very easy to remember my clients’ names, as they were all named "Judge.") They say that doctors make the worst patients, and I can tell you that judges make the worst clients (followed closely by ordinary lawyers like myself). Anyway, it wasn’t long that judges around the state were asking for me by name when they got sued. Now, representing judges can be easy in some cases, but takes quite a lot of work in others, depending on who’s on the other side and what kind of relief they’re seeking. But the biggest thing I learned from representing judges in litigation is that they’re people, like me and you, and they put their pants on one leg at a time. "We’re all just human," they say in Pohnpei. So are judges. And now, more than 20 years after becoming a licensed lawyer in Alabama, and practicing law on behalf of the governments of Alabama, the FSM, Guam and the CNMI, I’m clerking for a judge while I await the results of another Bar exam, in Guam. And the experience is quite different. It’s pure law again, but without all the confrontational testosterone-infused hostility and acrimony that comes with the American adversary system. What I do is research and write preliminary drafts of judicial decisions and orders for the judge. But it isn’t just academic, or an extension of what I learned in law school. Real lives are at stake. With direction from the judge, I have to decide who’s right, and more importantly, why. Also, more often than not, because the lawyers are in adversary-advocacy mode, they sometimes miss the forest for the trees. I’ve had the pleasure of seeing some very good lawyering, and some downright poor and mediocre lawyering. But a judge’s job, and her clerk’s, is to first do justice. It’s not a popularity contest, and it’s not always about who’s the better lawyer (although as an advocate it sometimes feels that way). This is a job that’s usually done by young law school graduates fresh out of school, who don’t have the background and experience I do as an advocate. There is a difference in what I bring to the job now than I would have or could have brought 20-some years ago. It’s not all academic anymore. I’ve been in the trenches, and I’ve duked it out with good lawyers and bad. And I always thought I had an eye on the judge (and his or her law clerk). But being on this side of the Bar is different now; and it’s trite, but I’ve really begun to appreciate how difficult (and unappreciated) a judge’s job can be. When I first got on the job I had a tendency to want to upbraid bad and lazy lawyering in the drafts of the opinions I gave the judge. But that grows old, fast. The bad and lazy lawyers probably don’t even know who they are, and judicial chastisement would have little effect on the quality of their future endeavors. There’s a difference between taking pride in the quality of one’s work and just plain old ego that all lawyers share. Good lawyers are constantly trying to improve the quality of their writing and advocacy. The judges and the Bar know who they are. Bad, lazy and mediocre lawyers tend to blame "the system," or think the judge has a personal problem with them (or so they tell their clients). That’s just plain ego and self-centeredness. The best lawyers I know exhibit a humility I have seen only rarely. The truth is that judges I’ve known -- because I clerked for them, appeared in front of them, represented, or knew socially -- just don’t have time or inclination to use their office as a political or personal payback. Judges appreciate good lawyering, good advocacy, truthfulness and candor, because it makes their jobs easier. As a lawyer, have I sometimes gotten a raw deal because the judge got up on the wrong side of the bed (or his wife did), or was just obtuse? Yes. Guess what? That’s life. Deal with it. It comes with the job. And your job is to help the judge get past that. I wish I could give you examples of cases where bad and mediocre lawyering make my job as a law clerk more cumbersome because the lawyer’s client deserved to win but his or her lawyer didn’t bother (or didn’t know how) to do the work required (which left it to the judge (i.e., me) to do). Because of confidentiality concerns, it’s inappropriate for me to be specific. Sometimes what is the right thing to do is so obvious, or the law is so clear, that no amount of bad lawyering will sway the judge in the other direction. But where it’s close, the lawyer who puts in the extra effort will be appreciated. Y’know, lawyers want to win, and judges don’t like to be reversed. It makes more work for everyone, and the one who suffers in the long run is the client, as well as the judicial system in general, and lawyers’ reputation as a whole in particular. I view a large part of my job as trying to make sure that what I say makes sense not only to the lawyers, not only to the clients, but to the public as well. And also to the appellate court that may be reviewing what the judge decides. For the most part, judges don’t have "agendas." Sure, they may have leanings one way or another based upon their own values as individuals and as professionals. But the "judicial activism" we all hear about is more a bug-a-bear than reality. And remember, the trial judge you’re appearing in front of is usually just the first stop in the road. Here are some tips for lawyers out there I don’t think any judge would mind me sharing, in no particular order: -- Don’t write a half-baked memorandum of law and expect to "wow" the judge at oral argument. By the time the judge (or law clerk) sets down to decide and write a decision or order, they’ll likely have forgotten your phenomenal oratory. I have heard more than one appellate and trial level judge comment that oral argument rarely decides the case for them unless they have questions about the record or some finer nuance of policy. -- Take pride in your writing. If you’re not a good writer, learn to write well. How? First, by reading, reading, reading good writers. Find lawyers and judges whom you admire and read their stuff. Figure out how they make their point and emulate what they do. Second, write, write, write. I’ve learned from writing experts that if you want to learn to write, the first thing you must do is ... write. Learning to write well is a lifetime endeavor. These are tools of your profession. As one judge I tremendously respect and admire once said, "We are Wordsmiths." Be one. -- Find an editor, no matter how good you think you are, someone whose writing you like, someone with a critical and unbiased eye who can tell you where to cut surplusage, or where you’re not making a point clearly. Sloppy writing reflects sloppy lawyering and makes more work for everyone. (You wouldn’t believe how many times I’ve gone back to admire my handiwork in this blog and found new typos I’ve had to correct since it was first posted.) -- Know your audience. As like as not, unless the judge is an expert in a particular area of law, you’re writing to the judge and to his or her clerk, who may be fresh out of law school. Don’t assume they’re as brilliant and knowledgeable as you are (unless you know already that they are). For lawyers, your audience is: the court; the court’s law clerk; opposing counsel; your client; the public; and the appellate court you’ll probably wind up in. Not always in that order. For the court (or me anyway) the audience is: my judge; the appellate court above me; the lawyers and litigants; and the public (media). And not always, but usually, in that order either. Regardless of who you’re addressing, remember that your job is to educate. -- Understand the internal workings of the court you’re addressing. Clerks usually work for no more than a year at a time. A case you argued may change clerks’ hands, and sometimes judges, more than once before it’s decided. If the judge you’re waiting on has a reputation for taking too long in issuing a decision, ask what your part it in may be. Was your brief or memorandum clear, cogent, concise? Or does it ramble and get thrown on the "to be addressed later" pile? If you were the judge, would you want to read what you wrote? -- If you’re citing and quoting from an unpublished opinion that’s not available on a legal database like Westlaw, attach a copy. Don’t make the law clerk and judge’s staff run around the courthouse looking for an old superior court or trial court opinion from some foreign land that may be locked away in storage in another building somewhere. -- Know the law before you sit down to write. This means your research should be done before you’ve sat down to draft that first complaint or answer or motion to dismiss. The law will shape your argument -- not the other way around. This way, you’ll be able to anticipate arguments that will be coming your way. This is critical. Lawyering isn’t a seat-of-the pants kind of thing. It is a deliberate process that requires the acquired skill of planning out contingencies. Knowing the law before you sit down to advise your client is so basic, but I’ve seen the same mistakes made over and over, usually by lawyers who blame "the system" or politics or personalities instead of understanding they never had a case or argument to being with. Along these lines, understand that good litigation is strategical and logistical. If you don’t have a military background, read "The Art of War" by Sun Tsu, and "The Book of Five Rings" by Miyamoto Musashi. -- Appreciate the value of the Blue Book. It serves an important purpose. It’s a citation format designed for lawyers and the judges to check your sources. Sloppy Blue Booking is a sign of sloppy lawyering elsewhere. If you cite a case, I want to know what jurisdiction it’s from, what year it was decided, and what page the cite or quote is from, usually in that order. -- Read the cases you cite. (This is so basic.) Don’t cite an ALR or Law Review article or just pull blurbs from them. Go to the source and quote or cite from there. -- Develop a reputation for candor. I mean a real reputation. Don’t say a principle of law is "universally accepted" when in fact it’s only a mere majority of the courts deciding an issue that have accepted it. Don’t play fast and loose with the facts or the holding of a case you cite. We do check them. Even if opposing counsel hasn’t caught you, the judge and his or her clerk will, because it’s their reputation on the line when they prepare to put pen to paper (or finger to keyboard). And I know more than one judge that isn’t above taking a lawyer to task in a written opinion in order to make an example of him or her, as well as let the client know they’ve been disserved. -- Acknowledge adverse authority and distinguish it if you can, but acknowledge it before opposing counsel brings it to the court’s attention (or the judge’s law clerk finds it). Your reputation will depend upon it. You don’t want a reputation as a lawyer whose cites have to be double-checked for everything you do. If you mis-state the law, your facts will be suspect too. And that can make all the difference in a close case. -- Appreciate the value of the court’s time. Don’t waste it with "everything in the kitchen sink" arguments, hoping if you throw enough stuff at the court, some of it will stick. It won’t. Weak arguments detract from the good ones. And put your best arguments first. If the court or the court’s law clerk has to wade through mediocre argument to get to the good stuff you’ve already lost them. -- Give yourself plenty of time. This means start your research and investigation right way when a matter comes to your desk. Don’t wait to the last minute. If a brief or memo is due in two weeks, get it done in one week, so you can have time to let it rest, and you can reflect and edit it with a fresh eye. -- Emulate good lawyers. If you’re very young in the profession, find a mentor. Don’t wait for them to find you; seek them out. If you’ve been out a while, find a mentor. You’re never to old to learn from the experience of others. Some of the most successful lawyers I know had mentors that they would call on when they thought people weren’t looking. Always be a student. And if you’ve got something to share as a lawyer, then mentor young lawyers. Pass it on. It’s part of your professional responsibility. There’s nothing original here. But a lot of lawyers just don’t get it. As for me, I’m really enjoying what I’m doing at the moment, and I know it’ll make me a better lawyer. If you’re a lawyer reading this, or someone thinking about becoming a lawyer, I hope this is helpful.