Statute of Frogs

By the time you’re applying for clerkships, your resumé and transcript are pretty much what they are. So, while they are really important to your application, they’re very hard to change late in the game. So the two places to concentrate efforts are recommendations and writing sample.

In our chambers, and I suspect in most of them, the first cut is going to be based on your grades and your resumé. But once you’ve made the first cut, the most important thing is having something that makes your application stand out from the big pile.¹ That could be an entry in your resumé² or something else in your packet, but it’s important that there be something. There are a tremendous number of well-qualified applicants and catching the reader’s³ interest is vital. Remember that, in addition to picking an employee, the judge is picking someone he or she will have to work closely with for a year. No one likes to work with boring people. So be interesting.

One way to do that is with a particularly good recommendation. At least 90% of the recommendations I’ve seen are of the form “X was a strong participant in my class and got one of the highest grades on the final exam.” While that’s all well and good, it doesn’t really say anything that isn’t already on your transcript. And it doesn’t separate you from the pack.

The reason most recommendations are like this, of course, is that professors tend not to know most of their students very well. Even if the professor meets with you before writing the recommendation, mostly she’ll just be rehashing information that is included elsewhere in your packet. So, rather than picking the professors in whose classes you got the best grades, I would pick the professors who know the most about you. If you’ve worked closely with a professor as a research assistant or in a seminar, that’s ideal. Or maybe the faculty member who runs a clinic you’ve participated in knows your work well. Unless that professor can say something meaningful about you, there’s not much added value in a rec from a really famous professor. A generic recommendation doesn’t get much added cachet just because it’s written by Erwin Chemerinsky.

It’s clear when reading a recommendation whether the writer really “knows” this student. If there’s no professor who can write knowledgeably about your work, consider someone you worked with over a summer. While it’s probably important to have at least two recs from faculty, you could range a little wider for a third rec. Recs from other judges (if you’ve interned or some such) tend to be brief and perfunctory, so that’s not a great option unless you’re sure the judge will really talk about your work.⁴

The bottom line is that, as much as possible, you want recommenders who can talk in some detail about the quality of your written work and your legal analysis skills and who can say something about you that isn’t obvious from the rest of the paper in your packet. It’s hard for an 80-person socratic class to provide that, no matter how well you did on the exam.

1. I’m sure there are judges for whom grades are the most important factor throughout the process, but for many, once you’ve crossed the grades threshold, other factors start to take precedence. [↩]
2. If you spent a summer do something really interesting, that should be prominent even if it’s not legally-oriented. [↩]
3. While the judge, of course, makes the final choice, a lot of the process may be done by the clerks and/or the secretary. [↩]
4. In a lot of chamber with interns, the interns work mostly with the clerks, not the judge, so the judge is often not in a position to say much about their work. [↩]

James Fallows at the Atlantic has collected a couple years of news stories related to the boiling frog myth. Thought my more frog-oriented readers¹ might want to know.

1. I’m as surprised as you are that there are any of these, but Google directs them here occasionally. [↩]

Butterflyfish sent an e-mail asking about clerkship applications. Since I’ve given almost all the advice I have in public,¹ I figured I’d just post my thoughts here. I’ve been through this three times now, once for my own applications and twice on the “inside,” so I’ll probably end up spreading this over a couple of posts.

The first thing to know (and that people don’t seem to talk about very much) is that clerkships are very different from each other. Besides the obvious differences between state or federal courts and trial or appellate courts, judges structure their chambers very differently. In some chambers, there’s lots of interaction between the judge and the clerks. On the other hand, I know of judges who communicate with their clerks only in writing. In some chambers, there’s lots of back and forth during the editing process; in others, once the clerk turns over a draft, that’s probably the last she’ll see of that opinion. Some judges have their clerks work on every order; some only have their clerks draft opinions. And so on. So get as much information as you can about how a particular judge’s chambers operate.²

The second thing is that, with very few exceptions,³ any clerkship is a fabulous experience and is vastly better than not doing one, particularly if you want to litigate for a living.

So while I definitely recommend getting as much information as you can, I wouldn’t turn down a clerkship opportunity lightly. ⁴ Even if there are judges you’d rather work for, don’t miss the opportunity to do a clerkship without a really good reason.

Because the process is so unpredictable, it’s hard to know what your chances are of getting a clerkship. My best advice is to find a professor you trust, ideally one who clerked where you want to clerk since the “markets” vary a great deal from court to court, and ask that person for an honest assessment of your situation. ⁵ It’s difficult to decide how broadly and where to apply. Because everyone’s situation is a little different, it’s really helpful to have some personal advice. I also solicited advice from other professors and from practicing attorneys about which judges had particularly good or bad reputations on the courts I was interested in. Once the process is actually going on, it can move really fast. So the more information you have in advance about the judges you’re applying to (and your chances of getting an offer) the better prepared you are to react when something happens. There’s no harm in applying broadly, but the more you know about your preferences (either geographically or for particular judges) the less likely you are to get crossed up later.

1. Where I wasn’t even anonymous-in-theory [↩]
2. In most cases, there’s really no way to do this before the interview. But if you have access to former clerks who are alumni of your law school or attorneys at your summer job, get as much information as you can out of them. [↩]
3. It’s often hard to get good information on who they are, but there are a few judges who are very unpleasant to work for. [↩]
4. Your school career office may tell you turning down clerkship offers is just not done and that you have to accept any offer you get. While it’s true that it’s pretty rare (and that judges take it pretty hard), in the end it’s your life and you should do what you think is the right thing for you. [↩]
5. If there’s a clerkship committee at your law school, they may also be able to give you advice. But bear in mind that their priority is getting as many students as possible into “good” clerkships, not necessarily getting you, personally, into the one you want. That said, they can be valuable resources. [↩]

The Supreme Court issued its opinion in Baze v. Rees today.¹ Although there are several opinions (most of which I haven’t read) the lead opinion, written by Chief Justice Roberts for himself and Justices Alito and Kennedy finds, without a trace of irony, that the relevant standard for determining whether an execution method is constitutional or not is whether there is a “substantial risk of serious harm.” Hence the title of this post.

1. That’s the case the challenged constitutionality of the lethal injection protocol used by nearly all the states that currently have the death penalty. [↩]

One of great advantages of the two-year clerkship is that I’m around long enough to see some of my cases argued at the Court of Appeals.  There’s been a run on them recently.  With the one on Thursday, I’ll go to four in the span of a month.  I’ve been to appellate arguments before, but it’s completely different when you know the cases intimately.  For one thing, it’s a lot harder to sit still and watch.  There were several times when I winced as the appellee — who by definition is the litigant we found for in the district court — made (or failed to make) arguments that I knew wouldn’t fly.  I wanted to go up and pass notes, but that would, I decided, have been inappropriate.  And in one case, I’m concerned that the Court of Appeals just doesn’t understand what we did.¹  Still, it’s a lot of fun to see the arguments, and at least on two of the cases, I’m pretty sure our opinion is safe.  Presumably, I’ll be gone by the time the opinions actually come out, but I’m sure I’ll hear about the results.

1. This is, of course, my fault to some degree.  I’d really like to go back to that opinion and add a couple paragraphs on one particular issue, just to make the whole thing a bit clearer. [↩]

Apparently, owners arranging marriage ceremonies for their pets is the hot, new thing.  As bizarre as I find that, one should never underestimate the ability of owners to anthropomorphize their pets.  One sentence in the article, however, greatly disturbs me.  “Scott’s clients include pet owners who want to mate their pets and don’t want ‘illegitimate relations’ in their home.”  It’s one thing to treat one’s pets like children.  But there are important differences.  We don’t, in general, lock children in crates for the day while we go to work.  And it would be very odd to talk about mating our children.  Given the inherent differences, can there really be people who believe it would be immoral or inappropriate to mate their animals without first blessing the union with a religious ceremony?  Or is it just that they want to make sure the puppies have clear inheritance rights from both parents?

We’re in the midst of the most interesting presidential election in my lifetime. My co-clerk and I spend at least some piece of every day talking about it. And it’s the major subject of my daily online reading.

It’s also an election about which I have strong feelings.¹ And there’s so much I could say about it here. But the ethical rules for Law Clerks prevent me from publicly expressing an opinion.² I understand the need to avoid any appearance of impropriety, but it’s extremely frustrating not to be able to blog about something I spend so much of my time thinking and talking about.³

1. I admit you might be hard-pressed to find an election about which I don’t have strong feelings, but that’s not the point. [↩]
2. I also can’t give money. [↩]
3. I understand that, since this blog is nominally anonymous, (that’s a really strange turn of phrase, but I rather like it) I wouldn’t exactly be expressing a public opinion. Nevertheless, talking about the election online would be at best imprudent and at worst really dumb. [↩]

This is so not for me. I’m pretty iffy about the heights thing in general. But eating a meal with my feet dangling 165 feet above the street. Nope! Not gonna happen.

As someone who likes to use footnotes,¹ I’m very pleased to have found a plugin that makes spiffy looking footnotes in WordPress. It’s the little things.

1. Though not nearly to the same degree as David Foster Wallace [↩]

I read with interest this article in this morning’s New York Times because I have a Googlegänger of my very own.¹  I’ve been tracking him silently for the past ten years or so. The first online reference I found was a picture of his fourth grade play.²  Now he’s in college here in my city. The other day, he found me on Facebook. It’s very disconcerting to see someone else’s status updates with my name on them. I do feel a strange connection to him. But that doesn’t stop me from reading the update and thinking “I am not…Oh, right…not me.”

1. Actually, I have at least two, including another lawyer (or at least law school graduate). In my latest investigation, it appears that one or two more might have turned up. My first name has gotten much more popular in recent years, so it’s not surprising that our number is growing. [↩]
2. Somewhat spookily, he was playing a role that I had played at a similar age. [↩]

Whenever you file a substantial motion or brief, send a courtesy copy to the judge’s chambers.

It’s not difficult. You have to send copies to opposing counsel anyway. Just add one for the judge. Maybe in some courthouses, the routing of paper filings to judges’ chambers is remarkably efficient. But probably not. That means that, when someone wants to start work on your motion, he or she has to track down copies of the filings. Make it easy for them by sending a copy directly to chambers. It can only help get you on the judge’s (or clerk’s) good side.

No matter how meritorious it is, don’t proceed as if the motion has been granted until it has.

This one came up again this week, so it’s clearly meant to be the next in the series. This happens most often with motions to extend the schedule. In the most egregious case I’ve seen, a lawyer faxed in a request to extend a deadline that was set for the next week and then immediately left for vacation for two weeks. But often we get motions for extension and it’s obvious that the parties assume it will be granted. It has been known to happen that judges will deny such motions out of spite.

In general, I think judges (even more than the rest of us) want to think that the result was their idea. Any time you put a judge in a position where he or she has no choice, it’s likely to end badly. It’s much more effective to leave the judge thinking that the result you want is the fair one rather than that he or she has been forced into it.