USA Law

Clerkship

Clerkship in United States

Clerkship Definition

The period which must be spent by a law student in the office of a practicing attorney before admission to the bar. [1] Tidd, Prac. 61 et seq. Clerkship in the Dictionaries.

Advice for Judicial Clerkship Applicants

Eugene Volokh, on this topic, commented that has little to say beyond the unhelpful “Have gotten good grades.” And his “one potentially valuable bit of advice is Apply Broadly; even if you don’t want to live some place for decades, you can handle a year, and even enjoy it. Applying only in the fun places puts you in constant competition with everyone else who is applying in the fun places.”

Clerkship use of writing sample employer permission

Resources

Notes

1. This definition of Clerkship is based on The Cyclopedic Law Dictionary.

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35 responses to “Clerkship”

  1. International Avatar
    International

    In relation to clerkship use of writing sample employer permission, I did not land a federal appellate clerkship during my first year of application but did land a state supreme court clerkship that (in my opinion) helped me receive multiple offers from federal law. This may be a useful writing sample, particularly if you don’t have a publishable law review casenote/comment.

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  2. International Avatar
    International

    I started temporary jobs like summer associate positions or clerkships by asking if it would be okay to use drafts as writing samples for the future. Geting pre-emptive permission saves the awkward moment of asking your summer firm if you can send a draft you created on their time to another firm.

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  3. International Avatar
    International

    Concentrate on objective examples of legal skill that are of likely USE or interest to the target of communication; grades are necessary to be in the race.

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  4. International Avatar
    International

    I think people apply only to the ninth circuit on the theory that since they plan to live in the ninth circuit (probably CA), it would be helpful to have worked for a ninth circuit judge so that they know the ways of the circuit and know some of the judges there. Conversely, as the theory goes, it would not be nearly as helpful to have worked with a judge from the tenth circuit. The difference between Idaho and Wyoming is more than just cultural, because the idiosyncracies of the ninth and tenth circuits are different and the judges you will meet are obviously also different.

    For the same reason, I think potential employers in the ninth circuit look much differently upon a clerkship in the ninth circuit (regardless of which part of the ninth circuit) than they do a clerkship in another circuit, making a clerkship in the ninth circuit more marketable to an employer in the ninth circuit.

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  5. International Avatar
    International

    Don’t forget Senior Judges. Some of them are quite active.

    I personally think you learn more about the real workings of litigation from a district court clerkship than from an appellate court clerkship, and I think there is little if any stepdown in the “prestige.”

    You could also look into a state district court clerkship, or a clerkship with a Magistrate or Bankruptcy Judge, though I do think there many would look at it as a step down.

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  6. International Avatar
    International

    Mahan Atma

    First, apply to a lot of judges — as many as you can handle.

    Then, once you get an interview, find a way to stand out. I’ve interviewed (as a clerk) plenty of applicants who have great records on paper, but who come across as completely generic and forgettable during the interview.

    The applicants who stand out during the interview: 1) have researched the judge thoroughly; 2) have some part of their experience or background that makes them unique; and 3) behave in a way that is very likeable, friendly, relaxed, and INTERESTING– in short, the kind of person you’d like to have as a co-worker.

    Find a way to make the conversation with the judge into a casual, easy-going exchange, not a stuffy job interview. I realize this will be practically impossible with some judges, but that’s the kind of attitude you should have. Ditto with the clerks.

    Realize that there are many idiosyncracies among judges, and so the whole process is extremely quirky and seemingly random. For these reasons, the most objectively meritorious candidate doesn’t always get the job.

    And by the way, a good district court clerkship is about a thousand times more fun and interesting than a mediocre appellate court clerkship.

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  7. International Avatar
    International

    From what I have heard (I’m just a law student)

    1. For extracurricular activities: Law Review >>>>> Moot Court =~ Secondary Journals
    2. Letters of recommendation from law professors are far more useful than letters of recommendation from lawyers at a firm or letters of recommendation from college. Make sure you form relationships with professors by becoming an RA, taking small classes so you can get to know them, etc.
    3. Try to have an “in”. Judges get tons of applications and it’s hard for them to know who’s who. If you have a friend who can recommend you to a judge, tell him to do it. It is scary how many Supreme Court clerks are friends, roommates, spouses, etc. of previous Supreme Court clerks.
    4. Work at a prestigious firm your 2L summer. Appellate firms in DC are good.
    5. The process is very random, arbitrary and frustrating, especially if your grades are good but not incredible. Don’t take rejection to heart.

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  8. International Avatar
    International

    Anon

    I clerked for a top-twenty judge, but got there via the traditional route of top grades at a top school. But my thought is from years of practice at law firms is that if one isn’t going to clerk for a “feeder” appellate court judge who has a shot of getting you to become of the Elect (tm A3G), one gets much more real-world legal experience working for the typical district court judge than for the typical appellate court judge—plus the added bonus that, if you want, you can go on and do a second clerkship for an appellate judge without anyone looking askance at your resume. (Exception: a prospective patent attorney is better off with Federal Circuit experience than district court experience.) Once you’re out of your clerkship, you’re much more likely to be doing litigation than appeals, and below the feeder appellate judges, there isn’t that much more resume prestige that comes from being on the Court of Appeals.

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  9. International Avatar
    International

    I think that it depends on what you mean by “best.”

    If you want to play the staight-up prestige game, then the short answer is that you’re out of luck. You and everybody else are all applying to Kozinski, and there’s no silver bullet that will get you past the better-credentialed.

    The key is not to do better research on the courts and the judges themselves. I mean, a lot of research. The kind of research that will enable you to figure out which judges are the most well respected, before the rest of the law school pack figures it out.

    To take an example with which I’m familiar, as a former EDNY clerk —

    There are a lot of highly respected judges on the Eastern District. If you had asked three years ago who some of the most respected non-senior judges were, one of the first answers would have been Reena Raggi. Everyone knew that she was one of the smartest, most levelheaded, hardest working judges in the district. But that was _not_ generally-known-to-law-students kind of information. It was the kind of information that you could get by reading opinions, by talking to clerks and former clerks and even judges.

    And then, Judge Raggi was elevated to the Second Circuit. If you were one of the people who realized ahead of time that she was likely to move up, then you applied for a Raggi clerkship, and the competition was a tenth of what it is for the Second Circuit. And now you would have a Raggi clerkship on your resume, not bad at all.

    Talk to clerks and if you can, judges. Do an internship. Do everything that you can to find out which judges are “undervalued” on the market. Judge John Gleeson, also EDNY, is one example. Judge Carnes, 11th Cir., is another. Judge Cassell in Utah is one to keep an eye on. And so forth.

    (Limited disclosure: I did not clerk for any of the judges I’ve mentioned in this comment).

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  10. International Avatar
    International

    Arthur

    As a former clerk in the Western District of Virginia, I Emphasize the point that a year in ruritania can be a great opportunity; in many ways, better than a major city clerkship. First of all, there’s less competition to get the job. There are still interesting cases, and probably better odds on significant civil trials since the there’s a smaller criminal docket and small town lawyers perfer trials over settlement. Also, you may have a closer relationship with your judge, since you travel together (he sat in three different venues) and (s)he doesn’t have a bunch of other judges to hang out with. Living on a clerk’s salary is easier in the small town too.

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  11. International Avatar
    International

    Dave

    I just graduated with good grades from a top-tier, but not Yale-or-Harvard, law school; I’ll be starting a clerkship in August.

    Unfortunately, the cruel truth is that a lot of the process is luck; I discerned no particular pattern to the judges who did and did not interview me. Furthermore, I know that Prof. Volokh’s common “Apply Broadly” refrain is only so helpful–many of us have spousal or family commitments that preclude just up and moving for a year (which, when multiple people are involved, can be harder in some ways than up and moving for ten).

    So my best advice:

    1. Even if you’re limited geographically, don’t forget less-noticed courts in reasonable commutes. For example, applicants in NYC have good judges in EDNY, NJ, and maybe even CT; applicants in DC have good judges in Alexandria, Greenbelt, and Baltimore.

    2. Even if you think you have a good handle on what courts are available, take a second look. Don’t forget the Federal Circuit. Don’t forget magistrate and bankruptcy judges. Don’t forget the U.S. Court of Appeals for the Armed Forces. Don’t forget senior judges. And don’t forget state courts–the real beauty of them is that you don’t need to worry about them over the summer, but instead can apply if and only if you don’t get a federal clerkship through the law clerk hiring plan.

    3. If you don’t get a clerkship, take heart: the process seems increasingly to favor those who work for a year or two. Just try again. I had more than one judge tell me point-blank that they hire only people with at least one year of post-law-school work experience. If you’re on the cusp of that presitigious circuit clerkship this year but don’t get it, go learn a lot from a district clerkship and apply again next year. Or just go work for a firm; you’ll get good legal experience, you don’t have to worry as much about partnership if you’re leaving soon anyway, you’ll make a heck of a lot more money as a clerk, and you’ll be a much more desirable clerkship applicant a year from now.

    4. Don’t let your ego get in the way of a good clerkship at a less-theoretically-prestigious court. You may well have just as good or better an experience with a state-court judge, and most employers won’t look down on such a clerkship in the slightest. (Law students are just about the harshest group of people around when it comes to evaluating the “prestige” of a clerkship, largely because they haven’t been there yet.) See also #3: lots of people do a year with a state court and then find themselves much more competitive for a federal clerkship the following year.

    5. Don’t sweat the small stuff. Put together a nice polished application package (no typos, please!), and be interested and personable during interviews, and you’ll be fine–I doubt that gimmicks will get you far.

    6. If you don’t get any interviews, don’t panic. Some judges called me at 8 am the first day; others called me months later. And again, see #3.

    The good news is that the marginal cost of an extra application is pretty small; just learn to use mail merge and take an afternoon to stuff envelopes.

    Best of luck to all! With any luck, you’ll all find clerkships you’re happy with, and the process of getting there–in which you get to have face-to-face chats with Article III judges–will be fun.

    Reply
  12. International Avatar
    International

    Tim Zinnecker

    If you don’t land a clerkship at the desired level, consider taking a clerkship at a different level and applying next year to the level of first choice. I did not land a federal appellate clerkship during my first year of application but did land a state supreme court clerkship that (in my opinion) helped me receive multiple offers from federal appellate judges the next year.

    Consider taking a “Supreme Court seminar” course or some other course that requires you to write a mock opinion. This may be a useful writing sample, particularly if you don’t have a publishable law review casenote/comment.

    Keep your eyes peeled for judges who are recently confirmed (at all state and federal levels). They may receive fewer applications for clerks, thus improving your statistical chances of success.

    Don’t hesitate to apply with a judge solely because you may disagree with the judge’s political/social/moral perspective. Perhaps the judge is looking for someone other than a parrot as a clerk.

    Reply
  13. International Avatar
    International

    Stuart Buck

    Two pieces of advice that come from having read through a few hundred applications a few years ago:

    1. Keep your cover letter short, simple, and understated. The worst cover letters were those that tried to be creative in a show-offy way, spent pages bragging about extracurricular activities (i.e., cooking, mountain climbing), etc.

    2. This is practically impossible for any law student to figure out ahead of time, but letters of recommendation vary in quality by an enormous degree. Some professors say nothing more than, “So-and-so was in my class, and she got an A-minus. I would therefore put her in the top 20% of clerkship applicants.” Useless, in other words, particularly when the judge already has a transcript to look at. At the other extreme, some professors (William Eskridge at Yale was one) go all out for the students that they admire. They’ll fill up one or two single-spaced pages explaining all sorts of details about why the student’s legal mind goes beyond his or her grade. Maybe she came up with an ingenious interpretation of a particular statute in class. Or something like that. The sort of information that you can’t get from a transcript or resume.

    Anyway, I know that advice is nearly useless, but be aware that it is a factor nonetheless.

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  14. International Avatar
    International

    I’ve clerked for a federal magistrate judge, a district judge, and this year a circuit court judge in the 9th. Other than a stint on the Supreme Court (which is certainly not in my stars), I have ‘maxed out’ on clerkships in the federal system. At the DC, I was partly responsible for reviewing applications.

    The demand is so high for these jobs that you simply must “apply broadly” unless you are a top tier, top grade type. Even then, as another writer commented, much depends on luck…the sheer volume of applications makes it inevitable that some applications will get a fairer look than others. When I applied for a circuit court spot, I basically papered the entire country, excepting certain unsavory (to me) geographic spots and a small number of judges for whom I absolutely did not want to work. I understand that some folks are limited to certain regions…you do what you can.

    My recommendations are:

    1. Consider working for a year or two with a prominent law firm before applying. Many judges, especially younger ones, are increasingly viewing this as a plus. Though it’s still tough to get into a big-name, prominent firm, if you can do this you will have something of value that a top tier, top grade candidate coming straight out of the blocks will not have. Coming from a law firm also exempts you (for most judges) from applying during ‘feeding frenzy season,’ (early September) and this makes your resume more likely to be read. I took this route, and it helped me.

    2. Do not limit yourself to the information available on the federal judicial website about available positions. Many judges, especially older ones, don’t participate, and you don’t want to miss them.

    3. Keep your finger on the pulse of new appointments! This recommendation is made from personal experience. When a judge gets confirmed, she needs clerks, NOW! Chances are that she’s got some folks in mind from whatever walk of life she’s coming from, but it can’t be any more than the number of applications that a long-time judge receives. Pounce before these judges have been confirmed (send your material, ask to meet, etc.). That way, once the Senate gets around to acting, you’re in the mix. (you can find out who’s been nominated on one of the White House sites).

    My other recommendations are ones that have already been made, so I’ll stop there. There are a couple of points above with which I have some disagreement: (1) a federal clerkship is a federal clerkship, whether you’re practicing in CA or ME. A ME firm may have a slight preference for someone who worked for Judge Gignoux, but my sense is they would be duly impressed with the credential regardless of the judge. (2) a circuit court clerkship is, all things being equal, more prestigious. Is it more prestigious to work for Judge Cassell than a not-widely-known judge on the 8th? I’d say yes. But if you’re talking about a rough, global gauge of prestige, you get a little more bang for your buck with a circuit court clerkship.

    Good luck. Just keep at it and watch out for those incoming baby judges!

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  15. International Avatar
    International

    I would recommend putting a line about your interests on your resume, especially if you have something interesting about yourself, like if you hiked the AT or something. It makes you memorable. My judge called my references to get more info about me, and he commented on some of my interests from my resume.

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  16. International Avatar
    International

    I am going to begin clerking this August for a judge on the 5th Circuit. The best advice I got when going through the application process is to apply to any place you are willing to go…and even some that you might not. Also, know your profs well enough that they have something interesting to say about you in their letters of recommendation. Apply as early as possible. Most federal appellate clerkships are filled within the first two weeks after the first mailing by the law schools…mid-September, I believe. Additionally, make sure your writing sample is perfect in every way. The current clerks likely will make the first cut, and even the smallest typo will give them a reason to put your file in the ‘no’ pile. Finally, make sure that your interests and personality come across on your resume. I added an interest section that had some quirky interests on it that I got a bunch of questions about. More than anything, this can act as a conversation starter!

    Simply stated, it’s a buyers market! Good grades are a prerequisite. I was top 12% from a top 10-15 school, applied to over 150 appellate and district judges, and got calls for 5 interviews. It’s not great odds. But it’s not like taking the LSAT. If you don’t get a clerkship at the first go-round, you can always apply again. Many judges like to have clerks with more work experience.
    6.23.2005 7:11pm
    (link) Carolina:
    Don’t bleach your resume of any interesting details. I clerked on the 9th, and we got, literally, hundreds and hundreds of applications. There were a few with absolute 24k gold credentials (e.g., editor of Yale Law Review). Some others were clearly underqualified. But the great majority fit into the category of “good grades at a good school.” Distinguishing these applicants can be quite hard.

    So please, don’t get rid of all the interesting details in the fear of offending a judge because you were a law clerk for Greenpeace or the NRA or PAW or NOW or the Heritage Foundation. Or you were in the army or got arrested at a protest or your favorite hobby is comic books. You will certainly get your application chucked in the trash at some chambers if you leave the juicy bits in. But that’s where the plain-vanilla smart kid at a good school ones go anyway. By keeping it interesting, you are raising the chances of the judge saying the magic words: “This guy sounds interesting, bring him in for an interview.”

    Anyway, just my 0.02 after spending a year helping a judge make the initial cut on the applications.

    P.S. Connections help a lot. They don’t have to be your best friend. But if you can open your cover letter with “Prof. X suggested I write regarding a clerkship . . .”, and Prof X knows the judge, that is a HUGE boon. 1L summers with policy type-organizations can be great for making these sort of connections.

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  17. International Avatar
    International

    My clerkship was with a senior, district judge in a small federal courthouse on the second floor over the post office in a small rural town. The experience was invaluable, and my judge is actually much, much more of a recognizable “name” to people than you might expect from where his division is situated. Some advice, in random order, some of which is duplicative:

    1. Do not automatically discount the idea of a district court clerkship. However, also realize that it is hard to say no to a federal judge – if your first offer is at the district court level, it may be (depending on the judge and other circumstances) impossible to say no. Luckily this was not a problem for me, but it would have been a very uncomfortable interview if I was less than definite about wanting a trial court clerkship.

    2. Apply everywhere. The federal bench is small, they all know each other, and the litigators from the big cities have cases all over the place. The fact that your clerkship is in a town that you never heard of before you drafted the cover letter does not mean that there will be no name recognition when you list your clerkship on your resume.

    3. It may have helped me that my writing sample was on a Title VII issue. An big part of the volume of cases in federal court is employment discrimination. For whatever that is worth. The more general point is that it helps to show an interest in the issues that federal judges deal with.

    4. Take Federal Courts, or whatever they call it at your school. Whether or not you get a clerkship.

    5. In my division, magistrate judge clerkships were really dull, because all that they did were social security appeals, habeas, etc. Very routine. However, this is not true everywhere. Moreover, one of the magistrate clerks during my tenure is now a career clerk for my judge, which is a job that I would love to have.

    6. If you get an interview, read every published opinion by the judge that you can get your hands on and be prepared to discuss them.

    7. You are applying for a job that involves a great deal of daily personal contact with your employer. Judges like to brag on their clerks (first in their class, etc.), but they also are looking for people that they will look forward to talking about the law with.

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  18. International Avatar
    International

    Carolina

    Oh, one more thing to add to the above. Some judges, frankly, will absolutely not hire beyond a certain set of law schools. I was at the top of my class in a state law school that is usually ranked in the 70-100 range by USN&WR. So I used the judicial yellow book and other sources to get the hiring records of judges. Although most of the judges I applied to had never hired from my school, if I saw, for example, they once hired from U of Oregon, that tipped me off that I had a shot.

    For those attending a non-top law school, it’s something you need to consider, imo.

    Judges are often reluctant to interview lots of people because they know how much it costs for a poor law student to be flying around the country at their own expense.

    I was able to pick up an interview with a judge who I hadn’t heard from by calling his chambers and saying: “I am already flying across the country to interview with Judge X. It would be very inexpensive for me to arrange a one-day layover in your city; would Judge Y be interested in talking to me?” The secretary called back the next day and said “Sure.”
    6.

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  19. International Avatar
    International

    One suggestion that was hinted at, but needs to be highlighted more clearly, is this: Let your key law professors (the ones who think highly of you) know that you are interested in clerking. When I was at Stanford I discovered that a number of judges simply call their law professor buddies to ask which students they should be considering. No one ever knows about these calls except the law professors in question, and unless you have made your interest known, they may not think of you.

    VG (former 9th Circuit clerk)

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  20. International Avatar
    International

    People can talk about getting great grades, doing research, making yourself look interesting, working here or there. But you know what? You and 100 other people will have done the same thing and all of you are more than capable to do the work, but only 3 or 4 can be hired.

    I think the single most important thing you can do is have someone who the judge knows and respects make a call (not a letter). There is a reason why so many judges hire based on the recommendations of certain people. Those people know the judge and know what they like. It’s just like when you are deciding what movie to see: are you going to ask Joe on the street or one of your friends who knows what you like?

    These professors are at your school. You may not know them from Adam. But they want students from their school to get clerkships and you want to get a clerkship, so most likely they will help you.

    As far as who to apply to, think about what type of experience you want to have. Do you want to interact with the judge and get to know him personally? Or are you content to just come in and punch the clock?

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  21. International Avatar
    International

    Thanks in advance for anyone who can answer any of the following questions:

    1) MOD suggested applicants not restrict themselves to judges advertising their clerkships on the fderal judicial website, but how is one to know whether a judge not listing there is not hiring (especially for some of the senior judges), or whether they just aren’t using that system? How bad would it be to send an application to a judge who turns out not to be hiring, whether that year or ever anymore?

    2) When judges say they want post-law work experience, how many truly mean law firm-like experience, and how many, if any, would also count pre-law experience such as grad school that involves lots of research and writing and means that the applicant is older/more mature?

    3) When judges ask for undergrad transcripts, would they also want grad school transcripts? For judges who don’t ask for undergrad transcripts, would it be a good idea to send them anyway? In my case, my undergrad and grad transcripts, both at good schools and involving lots of writing, are essentially straight As. My law school transcript, which is almost exclusively exam-based, is not. So (a) would sending unsolicited transcripts annoy judges, and (b) would this only highlight my average law school grades?

    4) Must the resume be 1 page, or can you have 2 pages, especially if you’re older and where the second page is essentially publications?

    5) What should the writing sample be? I’ve heard that one shouldn’t send only a case comment because judges think many people work on these and it’s not representative of the applicant’s own writing ability. Also, my own case comment doesn’t involve lots of case analysis–it’s theory/policy. If applying to the DC Circuit, which has a lot of admin cases, would it be a plus to send, for example, comments (essentially a brief) written on behalf of a client for a federal agency’s proposed notice of rulemaking? How long is too long for a writing sample?

    6) Where you don’t have a name to drop, should the cover letter be brief and fairly generic, or should you attempt to highlight some aspect of your application, etc.?

    7) Finally, grades. I’m on law review/journal at a top three school with a PhD and impressive undergrad credentials, but my law school grades are only a little above average at my school. How competitive am I?

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  22. International Avatar
    International

    Carolina:
    This has dropped off the main page, but I’ll respond in the hope you might see it. FWIW, I clerked on the 9th and helped the judge screen apps in the initial cut.

    1) No harm in sending to a judge that’s not hiring. If it’s a judge you are really interested in, just call chambers and ask.

    2) Being more mature might help a bit with some judges, but grad school or pre-law work in general is not going to be that impressive. It very well may help if it’s unusual or interesting. Being a manager of a blockbuster video is not going to help. Playing in a professional jazz ensemble might.

    3) I have never heard of an employer, in the law or otherwise, who put much stock in grad school transcripts. The general consensus is that no one gets below a B in grad school, so grades are meaningless. If the judge is not impressed by your Ph.D., the grades you got in the program won’t change his mind. Sending unsolicited material of dubious usefulness (e.g., grad school transcripts) might annoy some.

    4) As someone just beginning your chosen profession, I would avoid the 2-page resume at all costs. It comes across as pretentious and suggests you can’t edit down to what matters. If you absolutely must put in a page of your pre-law publications, call it an attachment or addendum to your resume.

    5) Your case note is the norm. IMHO, work product from your 2L summer is better – just get your firm’s permission.

    6) Brief and generic is better than obviously phony/patronizing. However, if you can find something interesting, true, and that doesn’t come across as the cover letter equivalent of a bad pick up line, I’d use it.

    7) You should be competitive for most Circuit Court clerkships. Things like having a PhD are hard to “rate.” For a lot of judges, it may not mean much. But you only need one, and someone out there might be fascinated. If your PhD is in a “hot” field like Genetics or something, it might make you one of the sought-after applicants. Tough to say.

    P.S. You might be tempted a use a reference from your PhD program for a letter. Don’t, unless it’s a world famous academic describing how your assistance was instrumental in their Pulitzer or Nobel Prize. It implies you can’t find law profs to say good things about you.

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  23. International Avatar
    International

    I think virtually everything is fair game to use as a writing sample as long as you redact all potentially identifying information. Actually, I think it’s kind of funny that people religiously redact all the names even when it’s a publicly filed document, but that’s the convention.

    People want to see a writing sample that is your work product, by which I mean it’s ok if it’s 90% your work and 10% revisions by some partner, but not if it’s substantially rewritten by someone else. Obviously, you’re on the honor system here.

    If there’s an earlier draft that is 100% your own creation, and that’s what you want to use, I can’t imagine anyone having a problem with it. As far as the issue of the signature line, by the way, I don’t see any reason you have to leave the signature block in your writing sample at all. I’ve seen plenty that simply ended with “Respectfully submitted.”

    Three final tips, which might be a little off-topic:

    1. People want to see a writing sample that looks like something a practicing lawyer would write. Thus, seminar papers and the like are a bad idea anyway.

    2. 5-7 pages seems about the right length. Of course, you could give them a 40-page brief and just leave it to them to stop when they get bored, but it’s offputting for some reason.

    3. If you’re a good writer, you want to try and use something that showcases your ability with language. Something with a good statement of facts or preliminary statement shows that you have the ability to tell a story and catch the reader’s attention. You won’t make much of an impression with several pages of boilerplate and string cites regarding the summary judgment standard.

    Oh, and proofread, of course. Even a single typo in the writing sample can kill you.

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  24. International Avatar
    International

    I don’t think permission is necessary to use a publicly filed document — with the caveat that if it was some sort of sensitive matter that has managed to stay below the radar, that would be an exception. On the “signature line” issue, if the associate’s name is in the signature *block* I don’t see the problem if it’s just the case that someone else signed it. That happens all the time, sometimes it just depends on who is physically present and has a pen at the time of filing. I think other lawyers will understand. Obviously if anyone else edited, or even worse contributed to the brief that should be noted.

    Like the e-mailer, I would be hesitant to use anything internal without an OK from someone, even redacting some information. You never know what you might miss, or what someone else might figure out. Also, a client paid for the privilege of getting that work done specifically for them. Maybe if it was some sort of nonbillable project or deep background research that would be different, but anything done on a particular client matter strikes me as trouble.

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  25. International Avatar
    International

    Wallace

    When I clerked, I saved my final draft of the judge’s opinion under a different file before handing it off to someone else for editing or to my judge for approval. I then used the draft as a writing sample and noted that this was the final draft before it was edited or docketed.

    Also, I started temporary jobs like summer associate positions or clerkships by asking if it would be okay to use drafts as writing samples for the future. Geting pre-emptive permission saves the awkward moment of asking your summer firm if you can send a draft you created on their time to another firm you’d rather work for.

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  26. International Avatar
    International

    I wouldn’t think twice about using something that was publicly filed (with the caveat mentioned above, i.e., something sensitive that had stayed off the radar screen). I’m not sure I would use anything else without express permission of the firm and client, or obvious compliance with a firm policy, just to be on the safe side.

    I interview associate candidates a lot. If a candidate hands me a filed brief and tells me he or she wrote it, with perhaps minimal editing, that is fine. I wouldn’t give a flip who signed it.

    I hate seeing stuff from law school. Your seminar paper is meaningless to me.

    If you’re a first or second-year associate, I understand you may not be able to point to a filed document that you principally wrote yourself. If you want to give me the earlier draft that you wrote yourself, that’s 100% fine with me. If you want to give me an internal research memorandum that you wrote yourself, that’s also fine, although it’s not very useful if it’s little more than a collection of string cites.

    I imagine there’s some ethical issue in using internal memoranda but really, it’s not much of a concern to me. It’s one thing to take a firm’s internal work product and use it to further the business of a competitor; it’s another thing to simply use it to get yourself a job. The reason why firms often restrict you from taking certain information is that they don’t want you to join a competitor and hold yourself out as an expert in whatever area of law you practiced in with them, using the fruits of your research and writing in furtherance of your practice. Interviewing is really a completely different subject.

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  27. International Avatar
    International

    I’m surprised to hear that former clerks are using opinions as their writing samples. I know this is considered incredibly bad form in some circles. Some judges, including my own, won’t even let clerks and interns say that they “drafted opinions” on their resumes. My judge told us to write, “Participated in the drafting and editing of opinions.”

    As for writing samples, I was lucky to have a few briefs with my own name on the signature line pretty early on. They were all my own work too. When I switched jobs as a second-year, I used one of them as is, no redactions, since it was in the public domain already. A partner proofed it before it was filed, but I don’t think that is cheating. Who would be crazy enough to submit a writing sample that was not proofread by someone else?

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  28. International Avatar
    International

    I would never use an opinion I drafted as a clerk, even if I wrote every single word of it. I would, however, use an internal firm memo that I wrote as a writing sample. Instead of redacting, I would simply replace all names with fake ones and change the facts so that nobody reading it could figure out the original fact pattern. (Of course, I would make sure the facts were similiar enough so the legal analysis would apply.) I would not use motions I’ve written simply because they are usually more heavily edited (and IMO, for the worse! ;).

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  29. International Avatar
    International

    I don’t see how copyright or the question of intellectual property rights applies at all. The writing sample is not going to be republished, profited from, or in any way detract from or compete with the originally intended uses of the document. Although writing samples for job interviews aren’t explicitly mentioned in most lists of fair use examples, the underlying philosophy behind the idea of fair use obviously applies.

    Remember too that copyright is entirely a creature of statute; there is no such thing as malum in se when dealing with questions of intellectual property. AK’s “I don’t want unethical lawyers working for me” seems either overblown or fuzzy on principles.

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    Christopher Cooke

    I would think it okay to use a brief that has been filed in court and which is not under seal, and for you to acknowledge that others reviewed and/or edited the work. I don’t see any client confidentiality/secrets issues if the brief is publicly available and, as for authorship, you simply need to disclose that others were involved in the drafting and editing process.

    As a former federal law clerk (district court), I would never use an opinion that I had helped to draft for a judge as a writing sample, although the judge’s secretary gave me a copyset of everything I helped to draft. I think it is in very bad form, putting aside the other issues, to take credit for the judge’s opinion in this manner. I also think the caveat on the resume, insisted on by the judge that is described above, is entirely appropriate. I had on my resume something like “assisted the Court in researching legal issues and issuing opinions” and I left it vague what “assisted” meant. Of course, ex-clerks know, especially if they are familiar with your judge, what type of role you likely played (e.g., Posner drafts his own opinions, and that is well known, while other judges rarely draft the opinions and are not heavy editors).

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  31. International Avatar
    International

    Someone is going to chime in with the difference between a work for hire and a work.

    I don’t know if a legal writing done for a client consitutes a “work for hire” under the statute, but even if it does I don’t think it makes a difference here.

    I agree that except for perhaps a few fairly absurd examples, filed documents lose copyright protection. (Filing an original manuscript as an exhibit in a copyright infringement case, for example). I never contended otherwise. I said “don’t use the property of others without their permission.” Absent extraordinary circumstances, a filed document is no one’s property. Lawyers create any number of documents that can neither be classified as “internal memos” or “publicly filed documents.” In the past six months I have drafted a position paper for a software company and a privacy policy for a bank’s website. They’re not publicly filed in the sense that a complaint or brief is, but I still would never use either without permission.

    I love the assertions that fair use “clearly” and “obviously” applies, without further argument. Whenever you see “clearly” or “obviously” in an opponent’s memorandum, circle it, because it’s their weakest point. I’m not going to get too deep into it, but it’s far from clear and obvious that the for-profit nature of the use – you’re trying to get a job – satisfies the “nature and character of the use” inquiry in your favor.

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    Bruce Hayden

    Former Law Review Editor:

    There is no copyright in publicly filed documents. Lawyers lift, verbatim, from prior pleadings, even from their opponents, all the time.

    Hope you didn’t edit an IP journal. You are conflating a bunch of different things, in particular, the difference between infringement and litigation claiming infringement. If you don’t register the work in time, copyright owners don’t get attorneys’ fees, and thus you are faced with potentially hundreds of thousands of dollars of litigation costs for what? You are stuck with actual damages, which are inevitably much lower than the litigation costs of the infringement suit. So, the fact that no one sues over this sort of thing only means that it isn’t economically worthwhile do to so, and not that there isn’t infringement.

    The reality is that publication has almost nothing to do with the existence of copyright. Copyright is essentially automatic, unless it is a U.S. government work (presumably including the draft opinions mentioned above, if done for a federal judge at some level). Copyright attaches upon creation of original expression.

    That said, the Fair Use argument has merit. While Fair Use requires a statutory balancing test, I would expect that the balance would likely usually come out in favor of Fair Use.

    Oh, and most likely the copyright is owned by the law firm or other employing entity (with the exception of the U.S. govt., where there isn’t a copyright). Most legal work won’t fall under the Work for Hire exceptions that allow for the copyright to go to the contracting party AND an assignment or exclusive license requires a signed writing to that effect.

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  33. International Avatar
    International

    Come on attorneys, up the proficinecy level here! (Echoing Bruce Hayden on (c) and AF on priv AND confidentiality) Copyright arises automatically in almost every writing instantaneously, and can’t somehow be “lost” by filing a copy somewhere, govt. works BY govt. employees being a notable, and noted, excption. Copyright of works made in the course of a “normal” employer/employee relationship (like between an associate and her firm) are owned by the employer AS A MATTER OF LAW without further formalities even necessary. (Contractors/partners, sole practitioners and “abnormal” employment relationships may well find the ‘work made for hire’ contract exceptions and assignment language apply.) Fair use (particluarly such a transformative, non-market-impacting use) will likely be a defense that excuses the infringement, but let’s not kid ourselves – someone ELSE’s copyright exists and is likely infringed.

    Independent of copyright, duties of client confidentiality and preservation of privilege exist. Goood lawyers respect those duties scrupulously. Go look up who can waive those duties – hint – it’s not the lawyer acting unilaterally. Stellar skills from extensive priv. log experience might mean you can readily identify and redact all the confidential and privileged information, but that doesn’t get around the fact that the work is still likely work-product privileged. Again, who waives that? At the end of the day, 2nd Year Associate is likely left with using only publicly filed documents that the client has authorized the filing of, and explaining to Prospective employer that “notwithstanding the name on the brief, I wrote this.”

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  34. International Avatar
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    Stash

    I won’t expound on copyright, but is it really true that a guy from “creative” in an ad agency can’t put copies of his published artwork in his portfolio when looking for a job because of copyright? Second, if it is a work for hire, isn’t it the client who has a proprietary right in it? (He’s certainly entitled to his file, including all memos, which he may freely copy and disclose). He may waive work product over the firm’s objection. By doing so does he infringe on the firm’s copyright? Or does the lawfirm violate copyright by copying the work into a brief bank/memo file and reusing the research/analysis for the commercial purpose of making money from other clients? If so, I smell a big class action. Alternatively, isn’t it a breach of fiduciary duty for the firm to claim a profit in the form of copyrights obtained in the course of its agency?

    But looking at state law the questions are whether (1) it is a misappropriation of information under state law, or (2) if it transgress any ethical duties.

    These questions are related. What class of information is it a breach of fiduciary duty to disclose? Generally, this extends only to genuinely “confidential information” whether that confidentiality is created by trade secret, contract or other source. A former employee is usually free to use any information that is a matter of “skill or experience.” Hence, the fact that one billed for one’s research on an issue, and then uses the knowledge and citations gained to write a law review article on the subject is not any kind of taking from one’s employer or client. So, certainly the ideas and legal analysis contained in any internal memo and certainly any filed matter, cannot be protected from future use by the former employee. In future employment the employee is free to replicate the previous legal analysis without restriction. But what about the physical embodiment?

    Sometimes a misappropriation will be deemed wrongful if a physical manifestation of the alleged protected information is taken, rather than the fact that some things merely stick in an employee’s memory, thus constituting mere “experience.” But this is only one factor.

    Part of it would depend on what is in the memo. If it merely answered a pure legal question, e.g., “what are the factors that Federal Courts use in determining state statutes of limitations that are borrowed for X type of actions?” it is hard to see why this would be a misappropriation. Yes, this type of memo would be opinion work product and absolutely protected from discovery. But this information is merely privileged from discovery in litigation; it is not confidential in the sense of a client confidence or secret business information that provides a competitive advantage to the firm. It is easily replicable (indeed, that is one of the major reasons why it is not discoverable—to prevent free ridership on one’s work by the opposition) and, unlike client confidences, the work may be freely used by the firm to benefit other clients.

    Of course, it should not be disclosed to the firm on the other side of the litigation, nor in any situation where disclosure could cause harm to the client. Note that these are client interests, not interests of the firm. As noted, a client could waive work product privilege over the objections of the firm. Yet the firm—or the former employee—may freely use the analysis to benefit other clients. Since the former employee is free to use the entire substance of the legal information and analysis in the memorandum in his future employment, any restriction on the physical embodiment as a right of the firm is petty at best. Certainly, if the litigation is concluded, there can be no interest the former employer or client would have in preventing disclosure. So in this extreme case, I would say that there is nothing wrong with using this memo as a writing sample, so long as the client matter for which it was prepared is undisclosed. Again, this is a client interest, not a firm interest. So it seems to me that, at the least, any memo involving any concluded matter without client-sensitive information is fair game. It cannot prejudice the client by working a waiver of work product or otherwise adversely affecting the client. Furthermore, any properly redacted memo would also seem to fall within this category.

    Secondly, I think there is some privilege under state law. If writing samples are generally required to obtain legal jobs, an unreasonable restriction on exhibiting one’s work may be a restraint of trade. To be valid, any restriction on writing samples would have to be reasonably tailored to protect the interests intended without being overbroad. A blanket prohibition would seem to fall into this category. Faced with this question, I think a court would have to balance the interests. And, where no harm or potential harm could be shown, it would have to side with the employee.

    Finally, as far as I know, the canons of ethics do not address work product privilege, per se. It is not a client confidence or secret. Again, unlike these, the firm is free to profit from its work product on another case. Indeed, this is how specialties are born. The only ethical issue, as I see it, is if disclosure of the memo harms or can potentially harm a client. If it cannot, then I see no barrier to disclosure.

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    Peter B. Nordberg

    Use a publicly filed brief (one that was edited only very lightly, or not at all, by others), and explain the situation to your prospective employer — to whom it will probably be quite familiar. In all likelihood, nobody will care that your name doesn’t appear on the brief. Almost everyone understands that some firms do not list associates on their briefs, even where the associate is the sole or principal author. Be aware, however, that your authorship may be verified in the final reference check. Also, pick a nondefamatory sample (because in some jurisdictions, at least, the fact that a brief was filed with the court does not insulate you from defamation liability for out-of-court republication of its content).

    Do not use an internal firm memo. Not only may doing so violate client confidentiality; the interviewer may well think it’s simply bad form, for you to be disseminating the firm’s internal work product.

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