Some Reflections On My Judicial Clerkship

With some first-hand observations, minus the confidential stuff

As a KJD (kindergartener-to-Juris Doctor), I started my first full-time job as a federal juridical law clerk on the West Coast. #WestCoastBestCoast

Overview of the Work and Application Process

For non-U.S. law students/lawyers, you might be wondering what the heck a clerkship is (see, e.g., David Lat’s novel Supreme Ambitions). Rest assured, many people only find out about what this term means at some point in law school, and it is quite U.S.-specific.

In terms of the application process, some judges prefer the online application (OSCAR — not the Oscars, but the clerkship application system), while others take email or mail applications. It’s pretty much what one would expect: cover letter, CV, letters of recommendation, law school transcript, etc. Judges shortlist candidates to interview, and ultimately make a clerkship offer.

Essentially, it’s a classic job application/interview process, except the boss is a judge in this case. I find the clerkship structure to be truly fascinating (Judge Posner’s book Reflections on Judging, for example, includes his own critiques of the clerkship system — I suggest skimming parts of it if you’re interested in the subject). The law clerk is usually a young lawyer straight out of law school or just a couple years out of law school. The judge, obviously, is a learned figure (thinking about Learned Hand?) in the legal profession who usually has had a career as a litigator, law firm partner, government attorney, law professor, or a combination of the above. I really appreciate the way in which judicial clerkship serves to educate the next generation of lawyers and leaders in the legal field by having law clerks to learn intensively from judges not only as their bosses, but also as potentially lifelong mentor figures, at the start of their legal careers. What’s more interesting is that the law clerks are usually the ones drafting much of the judicial opinions from the judges, from the initial docket review and research stage to the drafting stage and beyond. Law clerks sit next to judges at oral arguments in a specific seat designated for the clerk on the case, so that the clerk faces the attorneys on the case, the clients, etc., getting pretty much the same view as the judge. As Judge Posner calls it in his book, law clerks are essentially the judicial version of ghostwriters.

If you are interested in the recent federal judicial clerkship hiring plan and how judges hire their clerks (as well as how competitive the process can be for both prospective law clerks and judges), please read my Harvard Law & Policy Review article on the clerkship hiring plan at https://harvardlpr.com/2020/07/28/when-judges-compete-on-a-lawless-terrain-possible-futures-for-clerkship-hiring/

U.S. law schools primarily focus on domestic federal courts—debating the merits of such a curriculum would be the subject for a different day if you are interested. Since my personal experience was with the federal court system, I will refrain from addressing the state court or non-U.S. courts clerkship system/process here.

In my case, I applied to clerkships around law school graduation time (which is a bit unconventional), while starting the Bar Exam prep process. I received interview offers and clerkship offers for both federal district (trial) and federal circuit (appellate) clerkships, and ultimately decided to clerk on the trial court level due to my personal geographical preference and the frequent exposure to trials/oral arguments. In this article, I briefly share my experience at the federal district court level.

Some Clerkship Highlights

Although I cannot discuss details of any case I worked on as a law clerk for confidentiality reasons, I can share some (abtractified) highlights.

I started law school with a strong interest in criminal law, and that has pretty much remained the case to this day. One of the most memorable cases I worked on while clerking was, unsurprisingly, a criminal case involving legal questions on suppression of evidence. It happened to be my first case as a law clerk, and it was a nice feeling to get to apply criminal procedure rules I learned while prepping for the New York Bar Exam to a concrete case with real-life stakes. The case involved some nuanced/niche legal questions that allowed me to dig deeper into sub-questions where the law may not be wholly conclusive, and also allowed me to re-read certain pages of briefings and appendixes to find very specific phrases or ideas—a nerd-detective hybrid of sorts.

I also especially enjoyed working on an patent case, where the key issue was claim construction, as well as a jury trial — a torts case involving a somewhat mundane but somewhat weird matter that happened to have taken place in a different courthouse. For the IP case, a lot of technical aspects seemed daunting to me, as I strove to understand the nuances of how a niche apparatus works, including which specific component corresponds to which detail on pages and pages of diagrams. It was a bit intimidating for me as a non-STEM/technically-trained person, but also rewarding when I understood the details more and got to see the physical apparatus during oral argument. For the torts case, I did quite a bit of legal research into cases with similar fact patterns and was surprised at how many similar cases there were nation-wide. Whether the res ipsa loquitur doctrine would apply to the facts in that case was a key issue in that case and brought back some 1L torts and bar prep memories. It was a rewarding moment when I received my judge’s positive feedback on my research memorandum and agreed with my findings, and again when he included those findings in the pre-trial rulings. The jury trail went pretty smoothly, and the jury was able to reach a speedy verdict. It was another highlight to see the object that caused the injury in real life (from the law clerk’s designated seat next to the judge, directly facing both sides’ counsel and Plaintiff herself).

Some of my other cherished learning moments come from sitting in the jury box to observe hearings for other cases that I did not handle. Being face-to-face with a criminal defendant for me often became especially memorable, if not often emotional (see next section), moments. There was a defendant who gave an hour-long (if not longer?) lecture to the judge, the prosecutor, his family members who were there to support him, and everyone else. Topics ranged from philosophy to finance to science and beyond as he reflected on what he had done. From memory, the speech was unscripted, and the defendant even used the podium usually designated for lawyers (particularly for long opening and closing statements). By contrast, within a day of having that defendant in court, we had a different defendant who had his head lowered the entire time, and when he spoke to address the court in a very brief, pre-written statement, he sounded incredibly diffident and sorry for his actions. He stood up and spoke from his seat, which is the standard for most defendants when they address the judge. He asked the judge to “have no mercy” on him. Many of his Ponzi scheme victims appeared in person or via video in court, and he had kept his head down the whole time.

You might wonder if many defendants might be in court because, for the lack of a better word, they are stupid in a way and got caught. Many defendants I met in the courtroom were very intelligent (one of whom mentioned his IQ score in passing, and it was genius-level), and perhaps their intelligence ultimately fueled their criminal activities. Perhaps they thought they wouldn’t be caught. Perhaps they thought they knew the legal loopholes. But in the end, whether they are silly or smart can be a complicated question. It would be interesting to read more about the psychology of the criminal mind some time. My own investigation into a similar topic involves studying the neuroscience in the case of psychopaths and sleepwalking killers — if you are interested, I’d love feedback on a law review article I wrote during 1L year at https://online.ucpress.edu/nclr/article/23/4/471/114286/Applying-the-Model-Penal-Code-Insanity-Defense-to

In another criminal case, the defendant was so thrilled at the judge’s decision that she celebrated with pure elation, rushing to the bench in an attempt to take a selfie with the judge and even requested for a hug (which was denied). Next thing we knew, she shook hands with the prosecutor, and strangely even asked for the prosecutor’s phone number or something. We will leave the properness aside in this blog post, but can take a moment to consider how borderline ridiculous some court days could be in the real world. Perhaps TV courtroom scenes are not pure exaggerations in some instances…

The Emotional

Law is intimately associated with words like logic, rationality, etc., but also involves many emotions (Legally Blonde had this part right, at least). This is especially true for sentencing hearings.

Mothers in court, especially for their adult children’s criminal sentencing hearings, always tended to trigger emotions in me. Sometimes, mothers, like other family and friends, made speeches and emotional pleadings to the court. Sometimes, defendants’ spouses brought their babies to the courtroom. The babies would often start crying right before the judge decides on a sentence, and the spouse would have to bring the baby outside the courtroom. As a chambers staff member, I had to remain composed and neutral-looking, but I could not help sometimes but to imagine the family’s perspectives — what is it like to raise a child and love the child so many for decades, and sit through an ordeal where you watch the child get ready for prison? Would those babies hear about the sentencing one day, of the story where they cried?

Some young children watched with wide, innocent eyes. Some defendants apologized to society and their families in tears and broken sentences. Some defendants, especially ones who deal with chronic addiction issues, are back in court after a prior sentence, finding themselves falling into a vicious cycle. Some defendants, especially women, justified financial duress and engaging in drug offenses to raise their children. It was heartbreaking to see and hear.

Another emotional aspect of my clerkship was working on social security cases. I was told that those are typically no one’s favorite cases and one would easily procrastinate on writing them, as compared to non-social security cases — the lawyering is often not great (many paragraphs I read from briefings were unfinished, many briefings were not structured well at all, and some cases they cite are often outdated or inaccurately portrayed), many analytical steps are repetitive, etc. I fully understood how much could be at stake for an individual plaintiff in a social security case, and often found myself becoming quite emotional reading through thousands of pages of the administrative record detailing the claimant’s various gruesome health struggles, including large numbers of doctor’s appointments, school transcripts, family’s descriptions, employment records, etc. Those pages were often filled with descriptions of chronic vomiting, the lack of capacity to stand for more than a couple hours a day, terrible sleeping problems, etc., and some cases involved pretty young people around my own age who failed different levels of schooling despite trying their very best to be productive members of society and even fainting at various times because of how much the longstanding illnesses had affected them. Yet, I could not let emotions sway me, but had to think very rationally about each step of the established rules and processes and apply precedent to each individual’s specific situation. I was not always satisfied with the conclusions and would think about the individual plaintiffs as I walked around different streets and as I carried around my own day-to-day activities.

The Educational

Clerking was an educational experience. It was a pretty academic job resembling law school, and I was always happy to receive feedback on my research and writing.

One particularly challenging aspect of my work had to do with pro se plaintiffs: plaintiffs not represented by professional lawyers, but by themselves. One of them had a decade-long passion of suing everyone he could think of, from virtually all the judges in my building to various levels of local, state, and the federal government. One of them has also been litigating many, many cases in the past few decades pro se, often making very exaggerated claims with extreme phrasings. The difficult parts for law clerks aside, it was good to know that everyone gets a fair chance to litigate.

Another aspect of the experience was having first-hand experience with the jury system. My office was actually the jury room (although I cannot be selected as a juror due to my citizenship constraints), so it felt quite special. In the United States, jurors/the jury system is not only an essential manifestation of citizen-driven public service, but also as an educational experience for citizens to get directly involved in their democracy. I have always had my doubts about the jury system, but have also noted jurors being very enthusiastic about serving. At other times, an initially reluctant juror may end up enjoying the process. My judge also shared with me on Arizona’s leading role (the judge isn’t based in Arizona, but does travel there for some Ninth Circuit jury instruction conferences at times) on the educational aspects, e.g. encouraging note-taking among jurors and really asking them to learn from the process.

Last but not least, an obvious benefit to the clerkship was seeing lawyering pretty much on a daily basis for in-person hearings, video hearings, and teleconferences. It got me constantly thinking about how to prepare for cases as a potential future litigator and had some nice throwbacks to a law school class, the trial advocacy workshop, TAW.

The Frustrating (Citizenship/Visa Considerations)

If you are a non-U.S. citizen like me and are considering a judicial clerkship, I’m happy that you found my Substack platform, as there aren’t many international students who clerk. There are sadly a number of restrictions for non-U.S. citizens when it comes to clerking for a federal judge for most Continental U.S. states (excluding Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands).

Most notably, you cannot get paid, and the U.S. Courts system would categorize you as a “volunteer law clerk.” A couple of judges who gave me clerkship offers after the clerkship interview round, upon first hearing that I cannot get paid under this policy, immediately expressed feeling sorry and questioned the policy. Most judges who shortlisted me didn’t know about my citizenship status and treated me as a regular domestic applicant throughout the process. Due to the general lack of non-domestic clerkship applicants, some judges I met were not familiar with how things work for non-citizens and were kind enough to check with the central U.S. Courts administrators for me on details. It is worth noting that in terms of substantive work, there is no difference between an American law clerk and a non-citizen clerk who is essentially compelled to work on a voluntary basis. It definitely is a financial sacrifice, and more litigation-minded people like myself might be more interested in pursuing the experience despite the financial and logistical hurdles.

For most Continental U.S. clerkships, you have to use your OPT year (i.e. the year right after law school graduation) to clerk, as U.S. federal courts in most states do not sponsor the H1B visa. The practical implications are mainly twofold if you want to clerk and are not a U.S. citizen: 1) you have one shot/one year, rather than several years, at clerking unless your status changes in the future (so you can’t do both a federal district AND circuit clerkship), and 2) that year needs to be right after law school graduation (starting in the summer or early fall; although our American peers have the options to accumulate practice experience before clerking, we don’t if we choose the federal clerkship option in most jurisdictions).

In my case, I fortunately got selected for the H1B lottery shortly before my clerkship start date, so there was a little more certainty about what and where’s next after the clerkship. However, the visa situation still required many rounds of back-and-forth discussions with multiple stakeholders/immigration counsel involved, and my clerkship timeline consequently became a bit shorter than my planned 12-months to accommodate the visa schedule and requirements. It is frustrating that because non-U.S. citizen clerks have to be unpaid, they cannot receive any benefits or perks, either, e.g. health insurance plans, government employee benefits e.g. flu shots (I had to pay $53 for a single flu shot because the insurance I bought for myself this year is…not very comprehensive, to put it mildly), coverage of city-wide public transportation fees, etc. that would all otherwise be part of the employment benefits package for law clerks.

In the time of Coronavirus, when international travel is very difficult to achieve to say the least, international students and young professionals like law clerks from outside the U.S. can find it an especially difficult time. I haven’t seen my family for a very long time and miss them dearly, but tried to get the most out of the clerkship experience and sharing my experience (minus the confidential parts) with them.

Other Types of Work I Do While Clerking

As a law clerk for a federal district judge, I also worked on a number of Findings & Recommendations (F&Rs) and bankruptcy cases, where the district judge serves a more appellate-like role. For F&Rs, we address magistrate judges’ Findings and Recommendations, and for bankruptcy cases, we review the bankruptcy court’s decision. As a law clerk, I also sometimes supervised judicial externs’ work and more informally mentored externs, who are current law students, as they explore their legal careers ahead. In my spare time, I sometimes went to observe other judges’ hearings (highlights were a multi-week IP jury trial involving lawyers with a uniquely dramatic style and a high-profile murder trial) in the courthouse and explored the courthouse library quite a bit and checked out a number of books through the inter-library loans network.

A judge’s chambers is a pretty close-knit group of people — law clerks, courtroom deputy, and in some cases a judicial assistant and a career clerk. I also got to know our judge’s assigned courtroom reporter pretty well (got him to show us the super-cool stenographer he uses to type at a truly insane pace) and organized a court-wide gathering for all law clerks to get to know each other more when I first started the position.

All in all, I enjoyed working in such an interesting role that is unique in many ways. Happy to discuss any aspect further to the extent I can — as always, readers, feel free to leave a comment or get in touch with me.