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.”
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Law clerk power is not a myth; it exists. The only question is how pervasive it is. Perhaps your experience is representative of the norm. What troubles me is that I know many judges who allowed their law clerks free reign of one kind or another. One judge I know let his law clerks call up attorneys and harangue them about deficiencies in their motions. When it was brought to the judge’s attention that well-regarded attorneys who had made simple (or even nominal) errors in their filings were being unprofessionally demeaned by a law clerk who had taken it upon himself to talk rudely to the attorneys (without discussing his plan to do so with the judge) the judge simply asked the law clerk to stop. He never adopted a policy of explaining what sort of conduct he expected from his law clerks when they talked to attorneys.
A lot of judges implicitly trust their law clerks, especially the ones who come from a top-tier law school with strong academic credentials. Well deserved trust is fine, but trusting a recent law school graduate just because they are book smart doesn’t cut it. It’s not that most law clerks have too much power, but too many have too much power for the wrong reason, namely the judge is disinclined to manage the law clerk and views the clerk as a useful buffer between the court and the attorneys who come before the court with requests.
I think that “law clerk power” is a myth. What experienced judge is going to change his point of view just because he hired a law school graduate 20 years younger than him. I learned a lot from the judge I clerked for, but I don’t think I ever influenced any of his rulings.
I *sort of* disagree.
I clerked for a district judge who was viewed as being “hands off,” extremely hands off. I dealt with lawyers, FBI agents, US Attorneys, fielded letters from prisoners he had sentenced, inquiries from the press, and pretty much every other sort of communication. Everything that went to the judge filtered through the bailiff/docket clerk or the law clerks. However the judge made clear that the judge made all decisions. The clerks and everyone else knew enough to know to not provide legal advice or anything that could be viewed as substantive input to inquiring attorneys or anyone else. If a question reasonably related to Judge’s protocol and I knew the answer (and it was not covered by the rules) I could readily provide the answer. Otherwise I would just say that chambers can’t comment on the question. It was pretty enlightening to see lawyers (big firm lawyers, govt. lawyers, small practioners) all become humble when dealing with chambers. No one ever abused the power.
This is a short response to a big picture question but the law clerk functioned as the judge’s lawyer, advising with respect to the law and unquestionably offering input when something was in the grey area. To the judge I clerked for this function seemed to be really helpful, almost invaluable. To have fresh input from someone who feels empowered must bring critical energy to the judging process? That’s the upside of the sense of empowerment.
Short rambling comment.