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My Life as a State Supreme Court Law Clerk A Most Profound Education, Just One Year Out of School July 17, 2000 (SmartPros) Serving as a law clerk to Connecticut Supreme Court Justice David Borden for the 1999-2000 court year has been a tremendous honor. When I was contemplating a clerkship, I consulted a respected trial attorney who is a partner at the law firm I will join in September. He told me that his decision not to clerk was his greatest career regret -- a statement that spoke volumes. I also had many friends and acquaintances who could not speak more highly of their experiences as law clerks, even though I did not fully comprehend why the position evoked such responses. Now, having held the post for nearly a year, I understand why they said that clerking was the most enjoyable experience of their careers. A typical description on the résumé of a former law clerk would be: "assisted in drafting and editing of opinions; provided advanced research; and assisted in court’s motions practice." That, however, is a shamefully inadequate characterization of the learning experience that clerking has afforded me and countless others. In so many ways, my judicial clerkship has taught me more than I could have expected -- more, in fact, than I learned in law school. First and foremost, I owe that to Justice Borden, who approaches his role as mentor and teacher as earnestly as his role on the bench. Brief Encounters Opinion-drafting is central to most clerkships. In my clerkship, it is a truly collaborative process. The judge and I each write first drafts of opinions in separate cases and submit them to each other for substantive and stylistic editing. The draft then goes through as many rounds of editing as necessary to produce a polished version that then is circulated to the other justices-who sat on the panel-for their comments. In addition to the opinion-drafting that is central to most clerkships, one of my intellectual endeavors each court term -- there are eight terms in a Connecticut Supreme Court year -- is to read appellate briefs. These briefs, the subjects of which range from administrative appeals to criminal matters, are for cases on which Justice Borden will sit during the following term. This exercise culminates at a meeting with the judge, during which I offer my conclusions as to how the court should rule and why. Based generally on his own reading of the briefs, the judge then tells me whether he preliminarily agrees with those conclusions, and why or why not. At first, these sessions were intimidating -- it was as if I were being interviewed for the job all over again -- but the words "I agree" brought relief. From time to time, I still feel intimidated, but I have come to realize that it is self-imposed. The judge welcomes my views on cases, if for no other reason than to challenge his own. Even when my conclusions mirror his, he values the test of his thinking. Courtroom as Classroom In formulating his conclusion, he considers not only the case before him, but the potential ramifications for future cases as well. This type of analysis, with an eye toward a case’s precedential value, becomes evident whenever the judge engages an advocate during oral argument. Watching oral argument, when I can spare the time, is another learning experience in its own right. During the first few months of the clerkship, before the court year was in full swing, there were many opportunities to see oral arguments of varying levels of difficulty, skill and finesse. In fact, some clerks joked about writing a book on "dos and don’ts" of appellate advocacy based on what we observed; certainly, the "don’ts" would make for some humorous reading. For example, counsel should avoid statements like, "With all due respect to Justice 'X', that opinion is ‘tremendously erroneous’" -- particularly in reference to a decision written by a judge sitting on the panel. Attorneys, however, are not the only sources of courtroom humor. Recently, a judge asked an attorney a question at oral argument and, after struggling with the answer (because he either did not understand the question or simply did not know the answer), the attorney asked the judge to repeat it. The judge responded, "Would you believe I can’t even remember the question?" The courtroom erupted with laughter, perhaps if only to acknowledge that everyone is fallible. An Appeal to Law Students A trial practice professor of mine noted that in trying a case, counsel should always consider appellate issues. Working in an appellate setting has confirmed for me that one characteristic of a good trial lawyer is the ability to prevent problems that may give rise to an appeal and to preserve claims that may be raised on appeal. Time and space limitations permit me to describe only a few aspects of the clerkship that has afforded me the most profound education possible, in just my first year out of law school. It will be difficult to leave the job come the end of the court year, but I will do so knowing that I will be a better attorney for having held it. |
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