Advice to Law Clerks/Research Assistants/Summer Associate

Everything you do affects your reputation. Sometimes reputation is important because you are working for a lawyer, judge or professor from whom you hope to get a job, but in every interaction, you can advance your career by generating a supporter who can become your advocate, or not. There is no such thing as “just a job.” Particularly early in your career, there is little reason to do work unless you strive for professional excellence. Careful employers call references not listed by the applicant or contacts they happen to know personally, so any legal work you perform may wind up helping or hurting you down the road. Lawyers tend to have long memories when it comes to someone with whom they have had a particularly good or bad relationship, and legal communities can be very small worlds. A classic article on strategies for success early in your career is Daniel P. Levitt, Nine Rules for the Successful Associate, 13 Litigation 28 (Summer 1987). There’s also some good material on the ABA website. http://www.abanet.org/careercounsel/archive.html

Of course, all job offers are local, so pay attention to the culture of your particular employer. After integrity, the single most important quality sought in a lawyer is judgment, the ability to make reasoned decisions after determining what facts are necessary to make a decision. Everything you do, say or write, and everything you choose not to do, say or write, should be based on a conclusion that this will help me more than it hurts me. Judgment may require rejecting any or all of this advice in a particular instance.

The General Concept

1. Think of the problem from your bosses’ perspective. Your job is, in part, to do your particular lawyering task well. Your boss hired you, however, to serve the slightly different function of making theirlife easier. A junior lawyer scrambling to get a brief written might want their boss to look at a draft without a table of contents and table of authorities, but the boss, who is managing a number of problems on a number of matters simultaneously, may well want to see a complete draft of the document that will bear their signature so they can offer their best input and move on to the next thing.

 

2. Welcome criticism and seek out feedback. Most of what we do is not instinctive, but rather must be learned. Expect to make mistakes; even the best lawyers do (they are the best because they learn from them). No one’s work is so good that it cannot be improved. With everything you do, ask yourself and your supervisor what is good about it and what is not good. The truth may hurt, but unless you know it, you cannot do anything about it. Do not rely on the things you do well as an excuse for not improving your areas of weakness. Without being a pest, ask for feedback if it is not volunteered. A summer clerkship is a short period of time and you need to know early on what you can do better and whether you are meeting expectations.

 

3. Keep your boss out of trouble. If your boss has edited your work to the point where you believe it no longer correctly states the law, or is taking action without considering what you believe is a critical point, or is in any other way heading for disaster, it is your responsibility to advise the boss of your view, even if the boss is very experienced and you are not. Of course, the boss gets to make the calls in the end, but it should be with the benefit of your best judgment.

 

4. Take responsibility. For example, if your boss says “get hotel rooms for the witnesses coming in from out of town,” you have not done your job by passing the instructions along to a paralegal or secretary. It may be appropriate to delegate certain tasks, but making sure that the job gets done is ultimately your responsibility. You must follow up.

 

5. Your general impression. Dress appropriately, which means like other lawyers in the office. Go to firm social events, but don’t drink too much. Do not make advances to the staff, or spouses of other lawyers, intentionally or otherwise. Do not take personal advantage of firm resources of any kind. Be polite to the support staff. They can help you a lot, and they can absolutely destroy you if they want. A great legal secretary is more valuable than almost any associate. Bear in mind that any lawyer senior to you may participate in your evaluation. Arrive on time, especially to meetings. Always carry a pen, and, when meeting another lawyer, something to write on as well. Be prepared to convey your ideas to groups. Get and read one or more of the following: David Dempsey, Legally Speaking: 40 Powerful Presentation Principles Lawyers Need to Know (2002);Doug Malouf, How to be the Best Speaker in Town (1999);Judith A. McManus, How to Write and Deliver Effective Speeches (2002); Christina Stuart, How to be an Effective Speaker (1990).

Specific Work Methods

1.   Figure out things on your own (I). Lawyers are professional problem solvers; for us there is such a thing as a dumb question, if it suggests our problem solving skills are poor. A junior lawyer can ask a partner “who’s the expert around here on Rule 9(b)?” A junior lawyer should not ask a judge, professor, or partner “Where is the Federal Reporter?” or anything else they could find out on their own, or by asking a paralegal, librarian or peer. Early in a lawyer’s career, it will always be easier and faster for a more experienced lawyer to dothe work. But if the junior lawyer lets the boss do the work, why exactly is the junior lawyer there?

2.   Figure out things on your own (II). Lawyers anticipate and identify problems, but you should not bring problems to your boss without also coming up with the best solution you can in the time available. For example, a good summer clerk might notice that a complaint in a case should have been verified but was not. A great summer clerk would do some fast thinking about the available courses of action. You may have to analyze this issue as you trot down the hall to the partner’s office, and your suggestions may not be implemented, but at every level the lawyer’s job is to do as much work as possible independently, so that the boss can make the fastest decision based on the best available information. (Of course, part of figuring out things on your own is recognizing when the decision exceeds your capacity. In a real emergency go to the boss immediately.)

3.   Get clear assignments. Even though you should figure out things on your own, you cannot always figure out what is in someone else’s head. Thus, when a lawyer gives you an assignment you should listen attentively and take notes. Here, it is your responsibility to ask questions if you are confused or require further information. It is your responsibility to find out the due date and whether the attorney wants periodic updates on your progress if it is long project.

4.   Avoid making the same mistake twice. Example: If the partner hands back the memo, telling you to take out a case “Because Judge Michael Franchard wrote it, and he’s not respected in this circuit,” go back through the memo and make sure none of the other cases cited was written by Judge Franchard. In the future, bear this factor in mind as you select cases for your written work.

5.   Prioritization is a key to becoming a good lawyer. Identify the tasks that may have a long lead time, and get those started now; identify the things that have to be done immediately.

7. Be a team player. Firms actively seek individuals who have the ability to work well with others to achieve a common goal. The ability to work with others will distinguish you from someone else who has been doing equally excellent work.

8. Meet all deadlines. In fact, turn your work in early. There is nothing wrong with pulling an all nighter every once in a while to get your work done rather than ask for an extension. But if it turns out that you absolutely cannot meet a deadline for work which you have agreed to do, let your supervisor know immediately, when there is as much time as possible to deal with the problem.

9. Be available. Answer phone calls, emails and letters promptly. Anyone who has to be tracked down is ipso facto unreliable. Of course, you should appear at meetings promptly, with a pen and something to write on. It may be that a particular practice setting that imposes lots of deadlines and requires a lot of availability is not for you in the long term. But while you are there, you should strive to be thought of as a good performer.

10. Call. If the professor you are working for says “If you’re interested in being a trusts and estates lawyer in Denver, you should call Richard Gunderson,” call; if the associate you are working for says “Jane Rivera has done a lot of reverse stock spits, touch base with her” do so. In addition to simple courtesy, there may be extremely helpful information at the other end which will affect the bottom line. Successful lawyers can be shy, but they cannot let shyness get in the way of acting in the interest of their clients and themselves.

11. You are not yet a lawyer - be careful. Make sure that people with whom you deal are aware that you are not a lawyer. People assume that if you call from a law firm about a legal matter, and do not specify otherwise, you are an attorney. In any correspondence that you are authorized to send out, make sure you indicate your status as a clerk (and be sure to clear correspondence on firm letterhead with an assigning attorney). You are bound by the rules of confidentiality. Do not gossip.

12. Find free sources of legal information, and think about how to get your work done efficiently. Use your “street smarts.” For example, a concise procedural treatise is invaluable to a litigator; there is an enormous amount of material on the web—www.law.cornell.edu and www.findlaw.com are good sites. Read your local legal periodical when you have time. These publications can provide legal practice tips, useful information on upcoming events, recent cases, and profiles of local judges.

13. Keep copies of everything you hand in, and of all important documents that go through your hands unless you are certain there is another immediate source. Consistent with Point 1, the boss expects that you, not she, will keep track of the important documents.

Written Work (Focusing on Litigation)

1. Strive to hand in filable work (I) Assume that any writing given to another lawyer might be filed or incorporated into a filing unchanged. Therefore, all documents must be spell-checked and proof-read, cite-checked, and most importantly, Shepherdized or Keycited before they leave the author’s hands. Anyone handing in a document which cites a case which is no longer good authority, without that fact being indicated, can expect to be asked to resign.

 

2. Strive to hand in filable work (II). There is no such thing as a “rough draft.” Do not let a piece of writing leave your hands unless and until it is as good as you can get it on your own. Clerks who force their bosses to correct basic grammar and spelling mistakes or analytical weaknesses should not expect offers.

 

3. Documents should be self-identifying. If a senior lawyer asks you to “get me a case describing the standard for a preliminary injunction in the Eighth Circuit” hand in a copy of the best case or cases, with a covering memo explaining what it is you are handing them. Senior lawyers have multiple projects going and may not get to your work immediately; your work is much more valuable if the reader can tell what it is.

 

4. Documents should be free-standing and addressed to your audience. With most things you do, you will know more about the relevant facts and law than anyone else involved in the case. Nevertheless, all documents, even a two page reply brief, should be intelligible to another lawyer, judge or law clerk who is reading that document standing alone. You should also think about your audience before you write. A motion for a stay of an order addressed to the judge who issued it should look very different than a motion for a stay addressed to the appellate court; a memorandum about a proposed motion for summary judgment meant for a non-lawyer client would contain more details about what summary judgment is than one addressed to a partner.

 

5. Read the entirety of the cases cited. The author should know, with respect to every case cited in a brief or memorandum, how anything in the case (not just the point it is cited for) could hurt the client’s position. It is also critical that you read the cases cited by your adversary. You will be surprised by the number of times that your adversary mischaracterizes a case or cites to a case that helps your client’s position. The mischaracterization of a case will impair the writer’s credibility with the judge and nothing is more effective than when you have a chance to cite your adversary’s authority against them.

 

6. Follow Instructions (I). If the boss formally or informally, orally or in writing, suggests a concept or case to be included in the document, a) make sure you remember it, and b) put it in even if you disagree with it (but explain in a separate memo why you disagree).

 

7. Follow Instructions (II). If you're asked to write a “short” memo answering a discrete question, you will (not surprisingly) most assuredly distinguish yourself by writing a short memo answering that question, turning it in early, and reaching the correct conclusion.  You will not advance your cause by writing a long memo that begins “In 1788, several states ratified the U.S. Constitution,” that (on page 12) gets to the powers vested in Congress by the Commerce Clause, and (on page 18) describes Congress' overall objectives in enacting the statute in question, and which (finally) gets around to the discrete question asked on page 37.  In the right setting, long, scholarly expositions can be fascinating and profound.  Your firm next summer will not be the right setting, because when simple and direct will do (and it almost always will), clients don't like to pay for long, scholarly, fascinating and profound.   

 

8. There are two ways of writing a paper. One method is to do all of the research, and then write it up. Another method is to research the specific areas, and take notes along the way. Try the second way, because you may find that you can write at least an initial draft of the document as you go along.

 

9. Understand what court you are in. In law school, one federal circuit or state supreme court is like any other. In practice, in the Western District of Texas, the Fifth Circuit is controlling. (And get your hands on the local rules and/or chambers rules of the courts you are appearing in.)

 

10. Don't check your common sense at the door.   If you propose a “solution” that creates five issues for every one it solves, all you've achieved is wasting time (and thus money) and delaying the resolution of the problem you were asked to help resolve.  Neither of those things is good.  Take the time to step back and consider whether you would have thought your idea was brilliant before you began law school.

Written Work (Focusing on Corporate)

1.   Forms (1). Often assigning attorneys will help by giving example documents as a starting point for an assignment. Do not just “fill in the blanks.” Form documents are on a firm’s system because they are a conglomeration of past precedents from deals and other contractual arrangements. If you only fill in blanks for a particular assignment, and forget to ask “why is provision X here” or “does this provision apply to this deal” you are doing the client and yourself a disservice. You will learn more and do a better job if you ask questions of yourself. If you cannot find an answer, ask a peer.

2.   Forms (2). Documents on a firm’s system or in closing books have been negotiated. The terms may not be the most favorable, or may be onerous, to a client. If you hand in an asset purchase agreement for a client that is the buyer, which is completely one-sided to the favor of the seller, it will appear that you have not given enough thought to the assignment or that you do not grasp the concepts related to the assignment. On the other hand, don't delete provisions without knowing why they were there in the first place.  For example, under Arizona law, an indemnification agreement will not effectively provide for indemnification against a party's own negligence unless it so states (due to some old public policy arguments).  Stated another way, "A will indemnify B for everything in the world" may not work, while "A will indemnify B for everything in the world, including B's own negligence" will.  The second example sounds redundant, but it's not, and thus "cleaning it up" will hurt you.

3.   Corporate resources. Always start with your ordinary research resources. In the corporate area, however, some things cannot be discovered in the books (or online) and for that matter legislation changes so rapidly that a call to a congressperson, state or federal agency, or other resource may be invaluable (especially the Internet in general). That being said be sure to not identify your client unless specifically authorized to do so - this can lead to big trouble. As a general matter, you should clear all calls to government agencies with an assigning attorney (for example, the SEC will not even speak to you until you tell them for which public company you are calling).

4.   Ask how to use resources. Research in law school is very different than many forms of corporate research. Tax, securities, employee benefits, banking regulatory, antitrust and other forms of regulatory research require special skills and specific resources. These resources are often much easier to use than Lexis or Westlaw. With this in mind, do not be afraid to ask an assigning attorney where to start with a research project (unless you have done a similar project in the past).

Gabriel J. Chin, Ed P. Aro, Mark H. Brain, Richard W. Holmes, Jr.
© 2000-05 by the authors

Fall, 2004

The views expressed herein are solely those of the authors as individuals. Thanks to Michael I. Allen, Pierre Bergeron, Michael Blanchard, Kevin Cahill, Jordan Cheng, Pam Ginsburg, Mark Godsey, Patrick Haggerty, Margy Love, Saira Rao, Suja Thomas, Joseph Tomain, Barbara Watts, Verna Williams and Ingrid Wuerth for their comments on drafts of these suggestions.

Chester H. Smith Professor of Law, Professor of Public Administration and Policy, and Co-Director, Law, Criminal Justice and Security Program, University of Arizona, James E. Rogers College of Law. LL.M., Yale, J.D., Michigan. Email: gchin@aya.yale.edu.

Hogan & Hartson, LLP, Denver. J.D., Boston University.

Peshkin & Kotalik PC, Phoenix. J.D., Michigan.

Fifth Third Bank, Cincinnati. J.D., Cincinnati.