Posting this on behalf of a law student reader (edited to preserve anonymity):
"Hope you are well. I just read your advice column on clerking and really enjoyed it. Thank you for sharing. I guess I wanted to share some of my thoughts re: clerking, in that oftentimes it favors the economically advantaged, and those who have minimal obligations.
Here are my observations. I go to a top-25 law school, and we are respected enough that if I really pushed it I could land a clerkship, at least I hope. What holds me back though is the need to cash checks as soon as I can.
I admit I am an unusual law student. I'm in my late 20s and have wonderful children. They all motivate me in ways that I cannot describe to succeed in law school. I've done well in law school. I am certainly not a world-beater, but I know at least 80% of students in our school would love to be in my spot. In addition, I played an active role in law review.
So I think I would be a good candidate for a clerkship, and I would love to do it. Yet what holds me back is I lack the financial independence to justify a year, maybe two, of taking nearly a $120,000 pay cut. I am off to a really well-respected law firm, and when I stare at the difference in paycheck, and realize I would have to haul my family to a temporary location, clerking becomes much less attractive. There are many judges I would love to clerk for, but I cannot (at least I feel I cannot) take the pay cut, plus start one of my kid's kindergarten in a place they would only be for a year.
Sorry, I think I am venting. Not sure what I wanted you to get out of this. I know you don't have any magic powers over the system, and I know I have it much better than many who are wrestling with the paycheck vs. the experience. I guess I just wish clerkships were more accessible for those who cannot afford to sacrifice immediately. I guess if you have any advice I would personally appreciate that.
Anyway, I love the work you do. Thank you."
I think this reader makes an excellent point. Here's how I responded:
"Your point is well-taken. During my two-year detour into legal recruiting, I tried to place this wonderful Biglaw associate into a boutique. The problem was that they didn't have a clerkship, and most of the elite NYC boutiques pretty much require one. So I asked them one day why they never clerked. The associate said, 'I totally would have wanted to. But I needed to help support—and still support—my family back home.'"
On the advice piece of it, I guess I'd say that this person could perhaps conduct a limited clerkship search, confined to the city they'll be moving to for their firm job. If they get a clerkship, great (and they won't have to uproot their family after a year); if they don't, then c'est la vie.
Also, many law firms do offer clerkship bonuses. So in terms of the financial hit, the bonus doesn't cover all of it, but it should at least be taken into account as part of the calculus (i.e., the hit isn't as big as it might look, if your firm pays a clerkship bonus).
I was a clerk (EDNY). Best experience of my life. Wish I could do it forever. But knowing the judge is important. In my day, everyone (including me) sent out blanket clerkship "applications". I had an interview with a judge in another district (different state). He had a picture of Nixon on his wall (this was 1990). He started out the interview by saying "So. You're a Jewish fella. Huh."
After the interview, his clerks had to "debrief" me and tell me that, no matter what he said to me (they weren't in the room), the judge was not a bad guy.
We were blessed at that time that the cost of law school was not so prohibitive as to preclude a clerkship (I paid for law school with loans), but I did have to live at home to make it work. It was a two-hour commute, we worked from 7 AM until at least 7 PM, and did it six days a week. And it still was the best job ever.
My only regret is that, at the time, I knew very little about how to actually litigate. Hiring clerks straight out of school, with no actual legal experience, now strikes me as odd and suboptimal. I wish I knew what a discovery dispute was, for example. I have cases (in state court) where the judge will have his clerk hold the conference, you'll explain the dispute to her, and she just doesn't get it and provides direction that helps nobody.
Randy's response to your question was nonsense. Sure, you availed yourself of the hotel's service, but then you retroactively performed that service yourself before the payment came due, making the hotel entirely whole without requiring them to lift a finger or even become aware that there was an issue. The beer vendor at Staples Center hypo is inapposite - in that scenario the vendor would have to incur significant transactional cost dealing with you or another person bringing replacement beers.
Strong recommendation for those who want to clerk and do corporate law: (1) reevaluate and figure out what you want out of clerking (even the DE Chancery Court clerkship won’t really have you doing anything along the lines of what you’ll do professionally), and (2) if you do end up clerking, even if the firm offers to let you skip a year and go in as a second year like the litigation clerks, don’t.
When I worked as a recruiter, associates generally wanted the highest class-year treatment they could get when lateraling. But it’s not always to your benefit, especially if you’re shifting practice areas (or specialties within a practice area). If you don’t have the knowledge and skills commensurate with that class year, you’re better off taking the seniority hit and being evaluated based on more appropriate standards—even if you might earn less in the short term.
I think your Dear David column is a terrific idea although having graduated in the lower half of the lower half of my non T-14 law school, I can’t exactly relate to the hypothetical questions as to the whether and how of it, but I do have a question as to the why.
When you speak of litigation you include appellate practice. I agree a clerkship is invaluable for a lawyer being afforded an opportunity to do Supreme Court litigation. But how many of the nation’s top trial lawyers were clerks?
I began my career as a state public defender doing death penalty cases. I had my first oral argument before the Florida Supreme Court when I was 23 and regularly argued cases before the Eleventh Circuit Court of Appeals as a 26 year old AUSA in the SDFL. By the time I left the USAO I had argued more cases than most Am100 litigators do in their entire lives. How soon does the average clerk get to argue a case in a federal circuit court after they move on to be an associate. And how significant a case. Not something involving a major client or a significant amount of money I would guess.
The lawyers I worked with at the USAO were graduates of T-14 schools who went directly to work for DOJ after they graduated. They are major league litigators at major league law firms today. They were actually trying major league cases in their 20s. I don’t think any regret their decision. Which brings me back to my Dear David question. How many of the nation’s top trial lawyers clerked for a federal judge?
It's definitely not a prerequisite for being a great trial lawyer. But there are lots of great trial lawyers who did do clerkships—such as the lawyers at Susman Godfrey, which requires clerkship experience for hiring.
I also think that for folks who want to keep options open—e.g., they might want to go into academia, they might want to be a federal prosecutor or judge themselves someday—it can be a good thing. Again, not that it's a prerequisite, but it helps.
Most importantly, it's (usually) a great experience, educational and enjoyable. So I think it's worth doing (for many but not all people), even setting aside the credential value.
As discussed in the posts & comments regarding Judge Cannon, the clerking experience may vary substantially from judge to judge, court to court (trial versus appellate), and of course, depends on one's own circumstances. I fully expected my clerkships to be demanding, and my trial clerkship with a brand new federal district judge did regularly require 80 hour weeks (extended trials, Temporary Restraining Orders and Preliminary Injunctions, and trying to overcome years worth of backlog in the district.) I was a workaholic so my federal circuit court clerkship did involve more than 40 hours per week - not all clerks did so.
For me, my two clerkships - one appellate, one trial - were invaluable as both a litigator and later as a business attorney. I learned not only the 'behind the scenes' dynamics of court decision-making, but about the practice of law. Of the two, although the appellate clerkship involved more intellectually challenging academic matters, the trial experience was more practical and rewarding. My trial judge was the best boss I ever had, and I learned more in his chambers about actual practice (and life!) than my law school legal aid work, my internships with prosecution offices. and a stint with general counsel for the Navajo Nation. Just the breadth of subject matter was enlightening, as well as in-depth teamwork side-by-side with our court reporter, judge's secretary, and courtroom clerk, especially when we rode the circuit (holding court for a solid week once a year in remote location). The importance of the court reporter and courtroom clerk is vastly underestimated. The reporter is the 'fly on the wall' and the discretionary decisions of the secretary or courtroom clerk can be decisive (e.g., did your last-minute brief get placed at the top of the workpile, did you get more amenable service when scheduling, ... )
As for the value of the clerkship for transactional lawyers, I'm of the opinion that all transactional lawyers should have a least a year's worth of litigation experience, whether that be a clerkship, in public service (legal aid & criminal law practices offer lots of trial experience), or private practice, so they can better appreciate the various dispute-resolution provisions and real world consequences of other provisions - contracts are basically risk-allocations, and it helped me counsel clients on just what those risks and consequences might be when things 'go south' and the client finds themselves in court - amazing how many business attorneys haven't kept up with caselaw, and often misappreciate the actual risks and consequences - no doubt due to things having changing significantly since they last opened a casebook in law school.
My law school internships and clerkships spanned from 1975 to 1982 (I started legal aid work my second semester in law school, and extended internships through my second and last years, and did take time off to travel in between), so my financial circumstances were different. I was a work-study student, and did have what for then was substantial loans, but was able to pay them off within a few years of private practise.
Posting this on behalf of a law student reader (edited to preserve anonymity):
"Hope you are well. I just read your advice column on clerking and really enjoyed it. Thank you for sharing. I guess I wanted to share some of my thoughts re: clerking, in that oftentimes it favors the economically advantaged, and those who have minimal obligations.
Here are my observations. I go to a top-25 law school, and we are respected enough that if I really pushed it I could land a clerkship, at least I hope. What holds me back though is the need to cash checks as soon as I can.
I admit I am an unusual law student. I'm in my late 20s and have wonderful children. They all motivate me in ways that I cannot describe to succeed in law school. I've done well in law school. I am certainly not a world-beater, but I know at least 80% of students in our school would love to be in my spot. In addition, I played an active role in law review.
So I think I would be a good candidate for a clerkship, and I would love to do it. Yet what holds me back is I lack the financial independence to justify a year, maybe two, of taking nearly a $120,000 pay cut. I am off to a really well-respected law firm, and when I stare at the difference in paycheck, and realize I would have to haul my family to a temporary location, clerking becomes much less attractive. There are many judges I would love to clerk for, but I cannot (at least I feel I cannot) take the pay cut, plus start one of my kid's kindergarten in a place they would only be for a year.
Sorry, I think I am venting. Not sure what I wanted you to get out of this. I know you don't have any magic powers over the system, and I know I have it much better than many who are wrestling with the paycheck vs. the experience. I guess I just wish clerkships were more accessible for those who cannot afford to sacrifice immediately. I guess if you have any advice I would personally appreciate that.
Anyway, I love the work you do. Thank you."
I think this reader makes an excellent point. Here's how I responded:
"Your point is well-taken. During my two-year detour into legal recruiting, I tried to place this wonderful Biglaw associate into a boutique. The problem was that they didn't have a clerkship, and most of the elite NYC boutiques pretty much require one. So I asked them one day why they never clerked. The associate said, 'I totally would have wanted to. But I needed to help support—and still support—my family back home.'"
On the advice piece of it, I guess I'd say that this person could perhaps conduct a limited clerkship search, confined to the city they'll be moving to for their firm job. If they get a clerkship, great (and they won't have to uproot their family after a year); if they don't, then c'est la vie.
Also, many law firms do offer clerkship bonuses. So in terms of the financial hit, the bonus doesn't cover all of it, but it should at least be taken into account as part of the calculus (i.e., the hit isn't as big as it might look, if your firm pays a clerkship bonus).
I was a clerk (EDNY). Best experience of my life. Wish I could do it forever. But knowing the judge is important. In my day, everyone (including me) sent out blanket clerkship "applications". I had an interview with a judge in another district (different state). He had a picture of Nixon on his wall (this was 1990). He started out the interview by saying "So. You're a Jewish fella. Huh."
After the interview, his clerks had to "debrief" me and tell me that, no matter what he said to me (they weren't in the room), the judge was not a bad guy.
We were blessed at that time that the cost of law school was not so prohibitive as to preclude a clerkship (I paid for law school with loans), but I did have to live at home to make it work. It was a two-hour commute, we worked from 7 AM until at least 7 PM, and did it six days a week. And it still was the best job ever.
My only regret is that, at the time, I knew very little about how to actually litigate. Hiring clerks straight out of school, with no actual legal experience, now strikes me as odd and suboptimal. I wish I knew what a discovery dispute was, for example. I have cases (in state court) where the judge will have his clerk hold the conference, you'll explain the dispute to her, and she just doesn't get it and provides direction that helps nobody.
Randy's response to your question was nonsense. Sure, you availed yourself of the hotel's service, but then you retroactively performed that service yourself before the payment came due, making the hotel entirely whole without requiring them to lift a finger or even become aware that there was an issue. The beer vendor at Staples Center hypo is inapposite - in that scenario the vendor would have to incur significant transactional cost dealing with you or another person bringing replacement beers.
Thank you! I will share your response with my father-in-law (who to this day chides me about this "ethical lapse").
Strong recommendation for those who want to clerk and do corporate law: (1) reevaluate and figure out what you want out of clerking (even the DE Chancery Court clerkship won’t really have you doing anything along the lines of what you’ll do professionally), and (2) if you do end up clerking, even if the firm offers to let you skip a year and go in as a second year like the litigation clerks, don’t.
Agreed—especially on point (2).
When I worked as a recruiter, associates generally wanted the highest class-year treatment they could get when lateraling. But it’s not always to your benefit, especially if you’re shifting practice areas (or specialties within a practice area). If you don’t have the knowledge and skills commensurate with that class year, you’re better off taking the seniority hit and being evaluated based on more appropriate standards—even if you might earn less in the short term.
I think your Dear David column is a terrific idea although having graduated in the lower half of the lower half of my non T-14 law school, I can’t exactly relate to the hypothetical questions as to the whether and how of it, but I do have a question as to the why.
When you speak of litigation you include appellate practice. I agree a clerkship is invaluable for a lawyer being afforded an opportunity to do Supreme Court litigation. But how many of the nation’s top trial lawyers were clerks?
I began my career as a state public defender doing death penalty cases. I had my first oral argument before the Florida Supreme Court when I was 23 and regularly argued cases before the Eleventh Circuit Court of Appeals as a 26 year old AUSA in the SDFL. By the time I left the USAO I had argued more cases than most Am100 litigators do in their entire lives. How soon does the average clerk get to argue a case in a federal circuit court after they move on to be an associate. And how significant a case. Not something involving a major client or a significant amount of money I would guess.
The lawyers I worked with at the USAO were graduates of T-14 schools who went directly to work for DOJ after they graduated. They are major league litigators at major league law firms today. They were actually trying major league cases in their 20s. I don’t think any regret their decision. Which brings me back to my Dear David question. How many of the nation’s top trial lawyers clerked for a federal judge?
It's definitely not a prerequisite for being a great trial lawyer. But there are lots of great trial lawyers who did do clerkships—such as the lawyers at Susman Godfrey, which requires clerkship experience for hiring.
I also think that for folks who want to keep options open—e.g., they might want to go into academia, they might want to be a federal prosecutor or judge themselves someday—it can be a good thing. Again, not that it's a prerequisite, but it helps.
Most importantly, it's (usually) a great experience, educational and enjoyable. So I think it's worth doing (for many but not all people), even setting aside the credential value.
As discussed in the posts & comments regarding Judge Cannon, the clerking experience may vary substantially from judge to judge, court to court (trial versus appellate), and of course, depends on one's own circumstances. I fully expected my clerkships to be demanding, and my trial clerkship with a brand new federal district judge did regularly require 80 hour weeks (extended trials, Temporary Restraining Orders and Preliminary Injunctions, and trying to overcome years worth of backlog in the district.) I was a workaholic so my federal circuit court clerkship did involve more than 40 hours per week - not all clerks did so.
For me, my two clerkships - one appellate, one trial - were invaluable as both a litigator and later as a business attorney. I learned not only the 'behind the scenes' dynamics of court decision-making, but about the practice of law. Of the two, although the appellate clerkship involved more intellectually challenging academic matters, the trial experience was more practical and rewarding. My trial judge was the best boss I ever had, and I learned more in his chambers about actual practice (and life!) than my law school legal aid work, my internships with prosecution offices. and a stint with general counsel for the Navajo Nation. Just the breadth of subject matter was enlightening, as well as in-depth teamwork side-by-side with our court reporter, judge's secretary, and courtroom clerk, especially when we rode the circuit (holding court for a solid week once a year in remote location). The importance of the court reporter and courtroom clerk is vastly underestimated. The reporter is the 'fly on the wall' and the discretionary decisions of the secretary or courtroom clerk can be decisive (e.g., did your last-minute brief get placed at the top of the workpile, did you get more amenable service when scheduling, ... )
As for the value of the clerkship for transactional lawyers, I'm of the opinion that all transactional lawyers should have a least a year's worth of litigation experience, whether that be a clerkship, in public service (legal aid & criminal law practices offer lots of trial experience), or private practice, so they can better appreciate the various dispute-resolution provisions and real world consequences of other provisions - contracts are basically risk-allocations, and it helped me counsel clients on just what those risks and consequences might be when things 'go south' and the client finds themselves in court - amazing how many business attorneys haven't kept up with caselaw, and often misappreciate the actual risks and consequences - no doubt due to things having changing significantly since they last opened a casebook in law school.
My law school internships and clerkships spanned from 1975 to 1982 (I started legal aid work my second semester in law school, and extended internships through my second and last years, and did take time off to travel in between), so my financial circumstances were different. I was a work-study student, and did have what for then was substantial loans, but was able to pay them off within a few years of private practise.