Judicial clerks, also known as law clerks, are a bit like the air: invisible but essential. I exaggerate their importance—but not by much. Judicial clerks are lawyers, and they quietly help judges do their jobs. In a busy court, no judge could do the job without clerks.
The word “clerk” is a little confusing. Judicial clerks are lawyers, not clerical workers or administrators. Also, a judicial clerk is different from the “clerk of court” or a “court clerk.” The clerk of court is an administrator who runs a court’s day-to-day operations, and a court clerk does administrative work for the clerk of court. A clerk of court or a court clerk might or might not be a lawyer, but in any event, his or her day-to-day work is more administrative than legal. A judicial clerk is not a clerk of court or a court clerk.
To make things more confusing, some law firms call law students who work for them “law clerks.” But judicial clerks are law-school graduates, not law students. In fact, because the job of judicial clerk is desirable and hard to get, most judicial clerks were outstanding law students.
The work of a judicial clerk varies somewhat depending on what type of judge the clerk works for. If the clerk works for a trial judge, the clerk typically helps the judge prepare for hearings and for trials and then helps the judge write orders and opinions. During trials, a clerk for a trial-court judge helps draft jury instructions, researches legal issues that arise during trial, and provides advice to the judge. In some trial courts, a judicial clerk may also do some administrative work, such as scheduling hearings, but a judicial clerk’s primary job is to help the judge decide legal questions and to write drafts of orders and opinions. In an appeals court, including a state supreme court, a judicial clerk reads the parties’ legal memos and supporting documents, researches legal issues, and then advises the judge—in person, in writing, or both—about how to decide the case. When the judge makes his or her decision, the judicial clerk typically drafts an opinion that the judge then revises. If the judge and the judicial clerk have done a good job communicating about how the judge wants to decide things, and if the clerk knows the judge’s writing style, then the judge may not revise the opinion very much before issuing it.
In short, although judges make the ultimate decisions in a case, they do so with the advice and help of judicial clerks. So judicial clerks, in turn, learn how judges make decisions.
The best judges value independent thinking by their judicial clerks, because the best judges understand that informed and thoughtful disagreement can lead to better decisions. The best judicial clerks understand that although they work for a particular judge, they ultimately serve the public, and they owe it to the public to provide candid, independent advice.
If judicial clerks are so important, why are they invisible? They’re invisible precisely because they’re important. In our court system, judges are the ultimate decision makers, and that’s how judges want to be seen. If judicial clerks were more visible, some people might wonder(almost always wrongly) whether it is the judge or the judicial clerk who is really making the decisions.
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