Law Schools

To Clerk Or Not To Clerk... It’s Actually Not Much Of A Question

The reason to clerk is that you will learn more during that year than you will during the same period of time in any other sort of legal job.

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Last month, when discussing whether or not rising 2Ls should try to get onto a journal, I said of judicial clerkships “the utility of which will be the subject of a future column, but for now, I will simply say that you should, especially if you have a scintilla of interest in litigation.”

Well…

While some federal judges have adopted the new law clerk hiring plan, which does not allow members of the Class of 2020 to even apply for a clerkship until June 2019, the number of adoptees is greatly outpaced by the number of judges for whom law clerk hiring remains the chaotic open season it has been since the collapse of the previous hiring plan in 2013 — surprise, many federal judges do not like being told how to run their chambers, including when they can and cannot interview clerks, so these hiring plans often collapse due to the fact they are frequently, and flagrantly, ignored.  So, for those rising 2Ls who are interested in Fall 2020 clerkships, the first wave of applications is currently underway.  While there are a number of questions that a student must answer as to the type of clerkship they want to pursue, the more fundamental question is “why clerk?”  If you are a law student who could potentially work in Biglaw right after graduation, it can be difficult to fathom giving up that salary for government pay, especially in our new $190,000 world.  But despite the one-year pay cut — much of which can be recouped by ever escalating clerkship bonuses — clerking can be the best move a young lawyer can make for their long-term legal career.

At the most basic level, the reason to clerk is that you will learn more during that year, or multiple years depending on your clerkship, than you will during the same period of time in any other sort of legal job.  While many first-year Biglaw associates can be relegated to document review or placing stickers on trial exhibits, judicial clerks will find themselves waist deep in real cases with tremendous consequences, both for the entities involved and jurisprudentially.  Clerks will be drafting bench memoranda and even opinions which not only determine the outcome of cases before the court, but will live on forever in Westlaw.  I was fortunate to spend my first year after law school clerking in federal district court, and the breadth of experience, from civil to criminal matters was unmatched.  And the issues one encounters are not limited to standard fare covered in law school — though I could still likely write a remand order, in my sleep, nearly a decade later.  Since the district in which I clerked contained a coastline, I received a crash course in Admiralty Law.

While the amount that you will learn from your clerkship will be of the greatest advantage to you in your legal career, a close second may well be the line on your resume.  Law firms love attorneys who have clerked (see, e.g., the bonuses given out to SCOTUS clerks that double as the sticker price of many starter homes).  Not only does it mean you will make a better attorney for the firm, but they will also be able to tout you to their clients.  This is especially true if you clerk in a court for which this firm/employer frequently appears as the insight you can provide about the judge for whom you worked will be unmatched.  As noted in the aforementioned previous column, for litigators in particular, clerkships are important to be taken seriously.  Indeed, for some practice groups such appellate litigation, a clerkship is likely necessary to work in that field at all.  A clerkship can also be highly beneficial for those who have yet to secure a post-graduation position with their legal employer of choice.  Once you land your clerkship, the recruiting calendar is reset and you have at least another year of networking and interviews to find your ideal legal home.  Plus, jobs that are not available to newly minted law school grads (e.g., anything at the Department of Justice outside of the DOJ Honors program) are now open since you will have at least a year’s worth of experience.

Clerking can also provide you with the rare opportunity to cultivate a lifelong mentor who just happens to be at the pinnacle of your chosen profession.  While this does not happen between every law clerk and judge, the possibility of having such a sage voice, who also happens to have life tenure, in both your ear and corner should be remarkably appealing.  A note of caution though as sometimes this mentor/mentee relationship can veer too far into a deity/worshiper relationship.  As Alabama Law Professor Paul Horowitz recently wrote, “[t]he clerkship culture is one of hero-worship.”

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Having established why one should clerk, the other big question to tackle is where to clerk.  This is actually a handful of distinct questions including what jurisdiction (federal vs. state) and what level (magistrate vs. district vs. appellate).

On the jurisdictional question, my experience in working with students has shown a near universal preference for a federal clerkship.  This is understandable, especially since as you go up the law school rankings, students are learning federal, rather than state, law.  For long-term career prospects in Biglaw, a federal clerkship is going to be more highly valued than a state clerkship, but sometimes a state clerkship is going to be a better fit.  For example, if Student A knows she wants to practice in Iowa and her clerkship options are between a Justice of the Iowa Supreme Court and a federal magistrate in Maine, I would strongly advise the student to take the state supreme court clerkship.  Working for the highest court in that state will provide you with a cachet that far eclipses the federal court brand name.  Furthermore, the contacts Student A will make during that year on the Iowa Supreme Court could very well set her up for the next 30 years.

As far as which rung on the judicial ladder you want to clerk, there is again a near overwhelming preference for a judge on the highest court possible.  But as a former boss of mine, herself a former SDNY clerk, would always say “there are district court people and there are appellate court people.”  If you like doing a lot of research and writing, and don’t mind only going to court once a month, then an appellate court will be a great fit.  However, if you want to be in court each and every day, dealing with motions and counsel, then district court is going to make you happiest for that year or more.

Regardless of where you end up sending clerkship applications, the mere act of submitting them could be one of the more impactful decisions of your legal career.  And until the new hiring plan becomes universal (before its inevitable collapse), get those applications in ASAP because somewhere, there is a baby emerging from a womb with an OSCAR login, waiting for their last letter of recommendation to arrive.

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Nicholas Alexiou is the Director of LL.M. and Alumni Advising as well as the Associate Director of Career Services at Vanderbilt University Law School. He will, hopefully, respond to your emails at [email protected].

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