In one of my recent posts I mentioned that the federal trial judge that I worked for didn’t allow his law clerks to talk to attorneys. Someone left a comment asking if this was typical. I can’t speak for other jurisdictions, but in Louisiana it is not uncommon for federal trial judges to allow direct contact between attorneys and the clerks. In fact, most judges probably encourage it.
When I interviewed for the job my judge explained that he didn’t allow his law clerks to talk to attorneys by phone or otherwise. He didn’t offer a detailed reason other than to say it was “a waste of time.” After he told me I could have the job if I wanted it he turned me over to one of his current clerks so I could ask questions. Before I could even contemplate asking about the ‘no contact’ rule, he explained it to me.
As I recall, he explained that the judge was a very ‘hands on’ sort of person, and he handled most of the conferences and all of the inquiries that attorneys made personally (of course, ‘personally’ often meant ‘through his secretary’, but it always meant without law clerk participation). The clerk explained that while it might seem like a bad thing not to be able to talk to attorneys, it was actually more efficient and productive. Once I started clerking I realized that he was right.
I had plenty of work to do with researching the law, drafting bench memos that analyzed pending motions, preparing for pre-trial conferences, drafting minute entries, drafting jury instructions in jury trials, and drafting orders and reasons after bench trials. Even in the sparsely populated judicial chambers that I worked in there were plenty of interruptions and unexpected crises (i.e. emergency requests for ship seizures, TRO requests, expedited motions for various bizarre things etc.). It was nice to not have to worry about answering the phone.
Actually, law clerks were allowed to answer the phone (required was more like it) during lunchtime when the judge would go have lunch with the other judges in the court and his secretary would take her lunch break. Since the judge had a rule about not allowing the chambers to be unattended (or the phone unmanned) during working hours, it was up to the law clerks to answer the phones. Our job was simply to take a message and then deliver the message to the judge’s secretary. Which I did. However, in listening to the questions that lawyers would ask I realized that if I had to regularly answer the phone I would have had to put in several more hours each day just to get my regular work done. At least 70% of the questions that lawyers would ask were completely ridiculous. Many were bald attempts to engage in ex-parte communication with the court, and many others were shameless requests for proceudural advice.
I felt bad for the few attorneys who simply had a basic question that I knew the answer to, but I stuck to the rule and simply passed the information along as I was supposed to. I guess I shouldn’t have felt bad, because I learned that the judge’s secretary had a keen sense of which questions could be answered without the judge’s intervention. So it all worked out. And I can say that our chambers had a significantly lower number of phone calls than other chambers. Why? Because the word quickly filtered out that if you called Section H with a question you were going to wind up talking to the judge. And it’s amazing how many attorneys would rather figure out the answer to a question themselves than to ask a federal judge. Especially, if the question was blatantly improper to begin with.
Frankly, I think that most law clerks have too much power. What the hell did I know right out of law school? I knew how to look up the law and I knew a lot about federal procedure, and that was on a good day. But somehow a lot of lawyers seemed to want to believe that I was the secret Oracle. In fact, I remember often in conferences attorneys would address portions of their arguments to me, as though they needed to ‘win me over.’ Invariably, when I would see an attorney start to do this I would look down and avoid eye contact so as to spare them from a swift rebuke . Most couldn’t help themselves and so they persisted even as I looked down. When that happened the judge would issue a sharp warning: “excuse me, what are talking to him for? He’s not deciding this case; I am.”
Whereupon I would silently mutter to myself “yep, and thank God for that.”