While an increasing number of attorneys are taking clerkships after a few years in practice, the traditional model has been for law students to apply for clerkships beginning at various points in their law school careers. The last decade has seen considerable flux in this area, as many federal judges banded together to establish a unified law clerk hiring plan and then abandoned the system. The turbulence in the clerkship application process is really a function of competition. I’m sure you can imagine that federal judges tend to be high achieving, type-A personalities who want to hire the best possible candidates. This impulse has pushed the application time frame up to even the first year of law school. I’m not kidding.
These judges are jockeying for the best candidates because the position of law clerk is no small thing. The title sounds ministerial but the position isn’t. Think of it more like one of the few modern apprenticeships. At its best, a judicial clerkship is a close, mentoring relationship between an experienced, respected judge and a young law school graduate. In some cases, the law clerk is brought into the judge’s inner circle of colleagues, making relationships that last throughout the clerk’s legal career. (Admittedly, at its worst a clerkship can be one or two years of seemingly indentured servitude to a tyrannical overlord, but those circumstances are rare. For this post, I’m focusing on the vast majority of cases in which a clerkship is a rewarding and enjoyable experience).
The clerkships that garner the most attention are those at the Supreme Court of the United States (SCOTUS). This is the rarefied air of judicial clerkships, nearly impossible to obtain but pure gold in terms of experience and career making status. If you’re likely to reach this level of clerkship, you probably already know it. Much has been written about these clerks and I’ll let Google be your guide there.
Most people who get a clerkship will be at the state and federal district court level. My sister clerked for a bankruptcy judge, a federal district court position. My brother clerked for a pool of state trial court judges in a large city. For my part, during law school I interned at the state trial court level and the state appellate level, and then became a state appellate court law clerk after law school.
At the trial court level, what you learn is a mixture of procedure and people. There’s a unique hum to the office of a trial judge, and an experienced law clerk plays a significant gate-keeping role. Often, the clerk will be a first point of contact for attorneys with issues or requests for the judge, and will also scour through incoming filings for procedural errors to flag for the judge’s attention. This is the most boring part of the job, but it drills into the clerk an understanding of court procedure that’s invaluable. Also, so long as the clerk is not a boor, this part of the job gives the clerk the greatest opportunity to get to know the local attorneys and gain a solid reputation for competence and a collegian disposition. It’s through these interactions that a law clerk ultimately gains post-clerkship employment. The law firms know that they’re getting a broken-in, hard-working attorney that can do billable work right away, which is good for a firm’s bottom line. Plus, — and again assuming the law clerk is not a jerk — the former clerk will have developed strong relationships with the court clerk’s office, which are absolutely invaluable.
The real payoff of a trial court clerkship, which at the state level pays very little, is the continuing legal education that results from seeing (at least a few) excellent attorneys at work up close. Not only that, but the law clerk has the benefit of being nearly invisible at times, which lets the clerk observe and digest the interactions, arguments, strategy, and tactics that you just can’t learn in law school. For example, while I was an intern in a state level trial court, I had a front row seat to a week-long medical malpractice jury trial in which the plaintiff was a woman who had suffered irreparable brain damage from a botched gastric bypass procedure. Her attorneys were absolute kings of the medical malpractice bar, and they put on the most thorough and professional trial I’ve ever seen, even to this day. The inventor of the gastric bypass procedure was called as an expert witness, and was fascinating. The judge made me a part of her consultations with the attorneys and assigned me to research points of law raised during the trial, sometimes under considerable time pressure. This was an amazing experience and resulted in my later receiving a job offer from one of the firms involved in the trial.
At the appellate level, the pace and tone of the position are very different. Here, the role of the law clerk is primarily research and writing. I liken the experience to being in a professional cocoon, where you can safely evolve into a totally new attorney. During my clerkship, I spent hours talking with the judge about the cases before him. He would test arguments and bounce ideas off of me until he fixed on the approach he wanted to take with a given case. I was very fortunate to clerk for a judge who was a born teacher, and I learned more from him about critical thinking, writing, and the practice of law than I could have learned in twice the time spent at a large firm. Although that time was financially difficult, I look back on my clerkship with fondness and an appreciation for all that it taught me.
Hopefully you’ll consider a judicial clerkship after law school. Although it may seem awfully early to be thinking about this option, remember that some judges are starting to interview first year law students for post-law school clerkships. This means that if you even might be interested in a clerkship you’ll need to come out of the gate strong during your first year. You won’t have the luxury of starting off slow or finding your bearings later on. Getting good grades, especially a strong writing GPA (if your school breaks out a writing GPA), and admission to the school’s law review are even more important for you than for those who plan to head straight to private practice.