In August 2001, after two state trial court clerkships, a short stay at a small, matrimonial law firm, and then a position as a staff attorney with a committee of our state supreme court, I declined an offer to work for Legal Services (the goal that had been the sole purpose of my entering law school in 1989) and accepted a one-year position as a shared (“swing) law clerk with the U.S. Bankruptcy Court for the District of New Jersey. It meant a significant salary reduction at a time when my spouse had just left his job to attend art school and potential unemployment for me at the end of the one-year term. But, as one mentor observed, “Vocation is that which you can’t not do.” I stepped off the end of the board, and, grace upon grace, through a sequence of recommendations and one sad transition, the unstable year became 21 years, and I am on the brink of retiring from as long and fulfilling a career as one can have in court without serving as a judge. I found my calling as a lawyer and have enjoyed these past 21 years more than I could ever have anticipated.
I was drawn to bankruptcy from my two prior practice areas: matrimonial and related creditors’ rights issues, the latter on behalf of our state client-protection fund that seeks recovery from disciplined attorneys who took money from their clients. Bankruptcy complicated the matrimonial proceedings. The defalcating attorneys intermittently sought bankruptcy protection to stay the collection of our judgments. We followed them into bankruptcy court with exception-to- discharge actions. Standing in the law library in front of 11 U.S.C. § 101 and trying to figure out what to do next was hopeless. While serving at the client-protection fund I joined our Bankruptcy Inn of Court, because I was fascinated with the practice area. Through the Inn, I met a mentoring judge who became my pathway to the bankruptcy court.
I am the sole law clerk in a chambers that I share with a judicial assistant, and I am responsible for the first review of the impending motion calendar (the bread and butter of our bankruptcy practice), prioritizing research projects, addressing service issues as early as possible, conferring with the judge about crowded hearing schedules and research strategies, conferring with the courtroom deputy and recorder on questions that they field from litigants to help my co-workers streamline the questions that they take to the judge, and supervising interns. The team members operate under a mantle of discretion and accountability to the court and to the public, mindful that errors and indiscretions redound to the court. Any law clerk that has ever felt her insides turn to ice after a guileless or frustrated litigant states on the record, “But your law clerk told me...,” will be more circumspect the next time. I derive enormous satisfaction from helping the court reach a timely result that enforces the Bankruptcy Code, balances equity, manages litigants’ expectations and brings repose to conflict. I understand that my effort matters.
A career law clerk can provide enormous benefit to the judge’s case management by gaining an operating knowledge of a case in the form of accumulated chronologies and histories for future memos, a research bank from which to draw for emergent or routine memos. We are able gauge the reliability of attorney submissions, we readily and routinely find case data outside of the submissions, and we anticipate future proceedings. I try to mirror to the judge what counsel submit, asking what information the judge needs to make a good decision and finding it in the record if it is absent from counsels’ submissions.
The first state court judge for whom I worked in the mid-1990s observed near the halfway point that we seemed to communicate without communicating and apologized for not spending more time supervising my work. I have taken that communication-without-communication as a template for anticipating what the court might need without lapsing into presumption, narrowing problems to a question, owning mistakes, enjoying the journey — and reaching out to the judge without hesitation when I need to do so. Effective judges are ethical, streetwise and authentically humble — a powerful combination — and one could not imagine a better lifelong colleague. There is no less affinity because there is respect running from clerk to judge, and I believe that the same is true from the judge’s perspective.
Because of changing judicial appointments and my length of service, I have had the pleasure of producing work for eight different bankruptcy judges. Each brought different styles of effective and efficient preparation toward the same goal of producing timely and accurate decisions that consider the position of every party in interest. Each judge’s touchstone is preparation, reading submissions thoroughly, engaging case law with the intensity of a law student and presuming nothing — and after decades spent in law, there is still no substitute for hard work. Certain judges assign only complex matters to the law clerk so that the clerk does not write to excess on matters that are neither fact-heavy or law-heavy. Other judges appreciate having the law clerk take the first look at every matter and culling sufficient facts to enable the court to rule effectively.
One judge sought almost no advance preparation from the law clerk, but read the submissions himself, heard oral argument, and relied on the clerk to draft a rapid, written decision after the hearing. Others preferred a full, written development of facts and legal analysis that, after suitable modification by the court before and after the hearing, could be read into the record as a decision. One judge sought an accurate and comprehensive analysis of facts and law reduced to a chronology and bullet points, a minimal script to frame his oral decision. I learned from each, adapted my work product to suit the moment, promoted any technique that would appear to create a new efficiency, and retreated respectfully if it did not.
There is virtually no disadvantage to this position. The greatest deficit is the lack of immediate peer colleagues with whom to work and interact on a daily basis as in a law firm, agency or other court enterprise. The recent advent of multiple career bankruptcy clerks in our courthouse has mitigated that lack: We seem to confer more frequently on research and substantive problems than I have with resident term clerks. The greatest personal challenge in the position is to keep developing research skills and acquiring substantive knowledge. There is a surfeit of sources, as well as a daily electronic bombardment of new case law and educational opportunities, and scant time to absorb them. I am also aware that a career clerkship ties up the line a bit and prevents other new lawyers from serving in a clerkship; I am mindful of that reality when I mentor interns during summer and school terms and try to provide them with an experience that parallels my own.
The career term can end with the departure, retirement or death of the judge, but we are aware of that when we take this path. Several colleagues and I have had anxious transitions between judges but have in each case become reemployed in the same or lateral court (see “grace upon grace,” above). A career clerk who does leave or must leave the court has acquired a full complement of invaluable, self-directed case-management skills that will serve the clerk well in the next position she or he may choose, and the clerk may be highly valued by potential employers. I have, on limited occasions, encountered the response, “You’re just a law clerk,” to my outside inquiries, but that perception is distant from the truth. A law clerk — especially a career law clerk — is a colleague on whom the judge, other law clerks, attorneys and the court staff regularly rely and to whom they look for guidance, history and perspective — a role I have enjoyed and cherished over the past 21 years.
My career clerkship has been a rewarding and transforming experience beyond my imagining, and I would be unrecognizable to myself had I pursued any other path. I highly recommend a career judicial clerkship to anyone who may be considering it.