Practical Advice from Former Federal Judicial Law Clerks

In case you missed it, on October 9th 2013, DAYL’s CLE Committee organized a panel discussion on with former federal judicial law clerks to get the inside track on local federal court practice. The panel included Meghan Nylin, Thompson & Knight associate and former judicial law clerk for The Honorable Catharina Haynes of the United States Court of Appeals for the Fifth Circuit; Hallie Graves, Baker Botts associate and former judicial law clerk for The Honorable Sidney A. Fitzwater, Chief Judge of the United States District Court for the Northern District of Texas; and Jessica Greenwood, Akin Gump associate and former judicial law clerk for The Honorable Reed O’Connor of the United States District Court for the Northern District of Texas. The program was moderated by Abigail Moore, Locke Lord partner. Here are a few tips from the panel:

1. Law clerks will often do their own independent research. If applicable adverse authority exists, make sure to include it in your briefing and determine how (if possible) to use it in your favor. Failing to cite adverse authority does not ensure that it will not be found, but it may ensure that you lose credibility by not bringing it to the court’s attention in the first instance.
2. As a general rule, typographical errors or other small mistakes will not be held against you. But, more prevalent errors (i.e. misciting legal authorities) will invite a law clerk to look further into your briefing and research.
3. Start your briefing with a roadmap of your argument. Identify what it is you want the judge to do and explain how the law supports it.
4.  When preparing a response to a motion or brief, make sure you actually respond to the arguments presented. While you are not bound to respond in the order or framework that opposing counsel presented their argument, you should make sure you address each argument raised.
5. During oral argument, recognize when the judge asks you a “softball” question; not all questions are intended to be hostile.
6. If you have a question, ask. Make sure you check the local rules and each judge’s rules or procedures to determine whether the judge permits phone calls to their law clerks or whether questions should be directed to a different source.