In Chambers

7/27/2019 In Chambers

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In Chambers: Effective Writing Tips for Judicial Interns and Law ClerksBy Scott Meisler and Brian Wahlquist (2005)

Working for and with a judge can be one of the most rewarding and intimidating

experiences available to law students and young lawyers. But lets face it: even after ayear or two of top-notch writing instruction, most students would have a hard time

satisfying an experienced judges thirst for effective legal writing. The followingparagraphs do not provide all of the answers, but they do aim to provide a few hints on

how to approach some of the challenging assignments that face interns and law clerks.We think the following are the most salient points:

1. Know your audience and its demands.

2. Understand the type and scope of your assignment.

3. Remember the basics of memo writing.

4. Know the communications protocol in chambers.

5. Know your deadline.

6. Proofread!

7. Proofread again!

1. Know your audience and its demands.

Asking what audience you are addressing is always useful when beginning awriting assignment. In chambers, one thing is for sure: the judge will always be part of

your audience. This is true even if you hand your assignment in to a law clerk or othersupervisor.

We place knowing your audience as the first step in successful judicial writing for

a reason: no matter what writing professors or career counselors tell you, if your judgedoes things differently, you must do them as your judge requests. Some judges, for

instance, will provide incoming interns and law clerks with a style guide similar to theone you may have used on your law journal. If so, adhere to that guide!

Even absent some specific guide or counsel, you should make yourself familiar

with your judges preferences. If your judge does not provide a guide or handbook, askthe judge or another supervisor for samples of writing that the judge considers

superlative. A leading guide to working with a judge suggests: Whatever the judgespersonal style, most prefer that their law clerks not attempt to impose each clerks own


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style on opinions and court documents instead, you should try to write in the mannerthat the judge has adopted.

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We mentioned that the judge is always part of your audience. Keep in mind that

your writing assignment may reach other audiences as well. For interns, law clerks will

often review their writing before handing it to the judge. Take their suggestions andconstructive criticism seriously, since they will be particularly attuned to the judgespreferences and can serve as a useful resource throughout your employment For interns

and clerks, other potential audiences exist, depending on the nature of the assignment.Any assignment that ends up as part of a judges opinion, for example, will be examined

by the parties, a reviewing court, and other judges on the same court.

Finally, remember that knowing your audience does not just involveunderstanding your judges stylistic and procedural preferences. It also encompasses

knowing to what use your judge will put your writing. If you do a masterful job on amemorandum of law, for instance, your memo might constitute the bulk of the judges

final opinionthe one that goes to the parties and is available as a reported orunpublished decision.

2. Understand the type and scope of your assignment.

As mentioned above, each judge is different, and we cannot predict the precisenature of every assignment you will receive. We can, however, both identify three of the

most common assignments and describe their scope.2

A. The Bench MemorandumA bench memo is typically a short document that an appellate law clerk (or intern)

prepares for the judge in advance of oral arguments. The memo will normally containpresentation and analysis of the parties arguments, the basis for jurisdiction in that court,

the relevant case law, and, when requested, the clerks recommendation on how the judgeshould resolve the case. Although the bench memo should be succinct, it will often

require the clerk to conduct independent research, both by verifying the validity of theparties positions and by searching for authority not cited by the parties. Some judges will

also ask their clerk to provide questions that the judge might ask during arguments.While bench memos are normally used by appellate judges, trial judges may

request them in advance of a motions hearing. For example, a trial judge facing adefendants motion to suppress evidence may ask for a bench memo on the controlling

Fourth Amendment or state constitutional jurisprudence. The bench memos used atmotions hearings are sometimes more comprehensive than those used by appellate judges

at oral arguments.At either the trial or the appellate level, most bench memos have the following

common features: a statement (or history) of the case a brief statement of the facts a

1Alvin Rubin & Laura Bartell, LAW CLERKHANDBOOK138 (Federal Judicial Center rev. ed. 1989)

2 This discussion is based on the material in Rubin & Bartell, supra note 1, at 143-144, and Rebecca A.

Cochran, JUDICIAL EXTERNSHIPS: THE CLINIC INSIDE THE COURTHOUSE 137 (2d ed. 1999).


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summary of both sides arguments summary of unclear issues and the clerks evaluationof the parties claims.

B. Single-Issue Memorandum

During the course of a trial or during appellate briefing, the judge may request amemo that addresses a single issue that the attorneys have not adequately explained. In atrial court, for example, a complex evidentiary issue may arise, requiring research into

relevant statutes and case law. At the appellate level, a new decision from the federal orstate Supreme Court may alter the legal landscape, and the judge may want to understand

the cases impact without requesting additional briefing from the parties.

C. Full-Case MemorandumThe full-case memo is akin to what you did as a first-year student in your Legal

Research and Writing course. The memo should include the procedural posture of thecase, a detailed account of the facts, a thorough explanation of case law (even if of only

limited relevance), and an evaluation of the cases merits. Many judges want the full-casememo to form the basis for the eventual opinion and will therefore ask that the memo be

formatted like an opinion.Interns will often be asked to prepare full-case memos. While writing succinctly

and clearly is still of utmost importance, the nature of this memo makes it wiser to err onthe side of inclusion. Rememberits easier to delete excess material than to add it at the

last minute.

3. Remember the basics of memo writing

You learned more than you think from your first-year writing class. Although that

course focused on writing for legal practice, what you learned is equally applicable towriting in a judicial situation.

A. Elements of Memoranda

Whatever style your judge requests for the different assignments discussed above,they will all feature variations of the same basic elements you have already learned: a

question (or issue) presented brief answer statement of the facts analysis andconclusion. Again, your judge may well modify this list and may use different

terminology. If so, what the judge says trumps!

B. Fundamentals of Memo WritingNo matter what system the judge invents for organizing memoranda, you are

likely to rely on the same legal writing principles that you learned to love in law school:large- and small-scale organization, topic sentences, roadmaps, case comparisons, and

mini-conclusions. If these concepts sound foreign to you, it might be a good time toconsult some of the Writing Centers useful handouts on these and other fundamental

topics. http://www.law.georgetown.edu/writingcenter/documents.cfm
http://www.law.georgetown.edu/writingcenter/documents.cfm


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4. Know the communications protocol in chambers

This point might seem obvious, but its also unquestionably important. As anintern, your direct supervisor may be a law clerk, the judges administrative assistant, or

the judge herself. Learn quickly whom you should consult when questions and doubtsarise. If the judge prefers to deal with interns at arms length, comply with that norm.

As a clerk, you will likely work more directly with the judge. Nevertheless, not alljudges have an open door policy, and you might be expected to give more notice than

knock and announce. That is, the judge might prefer that you come to her withquestions at established times and that you bring all your questions at once. In addition,

not every question is appropriate for the judges resolution. A fellow clerk or the judgesassistant may be able to answer questions about certain issues as easily as can the judge.

In either position, observe formalities and etiquette at all times. You are arepresentative of the judges chambers, and your demeanor and tone in e-mail and on the

telephone should reflect as much. For information on the rules of conduct governing lawclerks, consult the Code of Conduct for Judicial Employees.

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5. Know your deadline.

Judges decide real cases involving real parties in real time. Dates for trials,motions hearings, and oral arguments are often established weeks or months in advance.

Thus, if the judge says she needs a memo by May 1st, she means by May 1st.As with any assignment, but even more so in chambers, if you anticipate being

unable to meet the set deadline, notify the judge or supervisor at the earliest possiblemoment. Even if you think you will get the document in on time but are not certain, be

upfront and honest the judge might tell you that she was not planning to look at thememo that day or might ask another clerk or intern to assist you.

6. Proofread.

Again, you probably already know this. Nonetheless, under time constraints, youmay give short-shrift to the editing process. Dont. Some judges are notorious sticklers

for even the slightest grammatical or lexical error. Remember, if your memo leaveschambers in any form, the judges name appears on it, and any and all errors reflect upon

him or her.Proofreading is a general term, but a leading manual lists four primary goals of

editing: 1) correcting grammar and punctuation errors 2) eliminating ambiguities 3)improving the manner and order of presentation of law and facts and 4) improving

3 This Code is reprinted in the Appendix to CHAMBERS HANDBOOK FORJUDGES LAW CLERKS AND

SECRETARIES 171 (Federal Judicial Center 1994).


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writing style.4

Changes to writing style are listed last, reminding us that clarity ofpresentation supersedes any need for stylistic flourishes, subject to the idiosyncrasies of

each particular judge.

7. Proofread again.

Because you can never be too sure

Bibliography (with location in E.B. Williams Law Library)

Chambers Handbook for Judges Law Clerks and Secretaries (Federal Judicial Center

1994). KF 8771.C49 1994.

Rebecca A. Cochran, Judicial Externships: The Clinic Inside the Courthouse (2d ed.1999). Read Rm Reserve, KF 8771.C63 1999.

Mary Dunnewold, Please the Court: How to Write a Judicial Bench Memo, American

Bar Association Student Lawyer (Forthcoming May 2005).

Judicial Writing Manual(Federal Judicial Center 1991). KF 250.J82 1991.

A. Rubin & L. Bartell, Law Clerk Handbook(Federal Judicial Center rev. ed. 1989). KF8771.D54 1989.

Debra M. Strauss, Behind the Bench: The Guide to Judicial Clerkships (2002). REF KF

8771.S85 2002.

4 Rubin & Bartell, supra note 1, at 137.

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