Clerks Taking Questions Forum

[Anonymous User]

First-year associate throwing in some applications for district court clerkships.

Having trouble with a writing sample. Everything from law school is too long, too niche, too awful, etc. I have written several briefs that have been filed with very minimal edits (and one with no edits) that I would consider using. The main issue is that I don't want to ask permission from my firm. Issue two is that our local counsel (we are pro hac) is the one who signed the briefs, although my name is on them as well. We don't have ECF credentials with the court, so the local counsel filed everything. We write it all, though.

Is there a way I can use the public version of a brief I've written as a writing sample without obtaining permission? There's no confidentiality issues, obviously. And I would, of course, note that it was lightly edited by someone else. But I don't know if this is common or not.

[rpupkin]

Is there a way I can use the public version of a brief I've written as a writing sample without obtaining permission? There's no confidentiality issues, obviously. And I would, of course, note that it was lightly edited by someone else. But I don't know if this is common or not.

Your firm might not be thrilled with you submitting the brief (along with a representation that you were the principal drafter) without their permission. But if the brief is public, then you don't have the client-confidentiality issues you would encounter with, say, a memo. On ethics alone, you're probably ok using it.

As for your last sentence: no, it's not common for applicants to submit briefs as writing samples, though I've seen it done. The problem with briefs is that they're pretty far away from the kind of writing a judge wants from a clerk. In general, objective memos that explain an area of law make for better writing samples. Also, while a judge is likely to assume that a memo was drafted entirely by you, he or she is more likely to suspect—with reason—that your brief may have been heavily edited by a partner.

In short, I don't think it's a great idea to use a brief as a writing sample, but I guess use it if it's really the best thing you've got.

[Anonymous User]

Is there a way I can use the public version of a brief I've written as a writing sample without obtaining permission? There's no confidentiality issues, obviously. And I would, of course, note that it was lightly edited by someone else. But I don't know if this is common or not.

Your firm might not be thrilled with you submitting the brief (along with a representation that you were the principal drafter) without their permission. But if the brief is public, then you don't have the client-confidentiality issues you would encounter with, say, a memo. On ethics alone, you're probably ok using it.

As for your last sentence: no, it's not common for applicants to submit briefs as writing samples, though I've seen it done. The problem with briefs is that they're pretty far away from the kind of writing a judge wants from a clerk. In general, objective memos that explain an area of law make for better writing samples. Also, while a judge is likely to assume that a memo was drafted entirely by you, he or she is more likely to suspect—with reason—that your brief may have been heavily edited by a partner.

In short, I don't think it's a great idea to use a brief as a writing sample, but I guess use it if it's really the best thing you've got.

I understand re: objective writing vs writing as an advocate. Anything objective I have is either from law school and is terrible or would require permission from the client, which I don't want to ask for.

Wrt the editing issue, would it be different if I used a brief that was written entirely by me? Certain circumstances led to me drafting a brief that was only reviewed by the partner, but not edited, before filing. I can say with 100% honesty that it is entirely my own words. The issues are a bit thorny, given that's it's a reply brief regarding a dispositive motion, but I assume if I interviewed and the judge or the clerks were interested they would welcome the opportunity to question me about those issues.

[rpupkin]

[Wrt the editing issue, would it be different if I used a brief that was written entirely by me?

No, because the judge will still assume that a partner edited it. I would just use the best brief you drafted.

ETA: The way applicants usually get around the above is to have the partner they worked with write a letter of rec that says, among other nice things, that the associate drafted the entire brief. But since you don't want to tell your firm that you're applying for clerkships, that option isn't available.

[mjb447]

The issues are a bit thorny, given that's it's a reply brief regarding a dispositive motion, but I assume if I interviewed and the judge or the clerks were interested they would welcome the opportunity to question me about those issues.

If you're contemplating using a reply brief, make sure it stands on its own. Reply briefs tend to rely on more fleshed-out statements of the facts or law contained in the principal brief/motion, and when I've seen reply briefs as writing samples, they often seem more cursory than is ideal for a good writing sample. You're right that someone can question you if they want to know more, but ideally you want your best writing available to chambers from the beginning. (I also agree that using a brief isn't ideal, although judges see them sometimes and can work with them - they just don't tend to be as good a proxy for chambers work as some other things.)

[Anonymous User]

[Wrt the editing issue, would it be different if I used a brief that was written entirely by me?

No, because the judge will still assume that a partner edited it. I would just use the best brief you drafted.

ETA: The way applicants usually get around the above is to have the partner they worked with write a letter of rec that says, among other nice things, that the associate drafted the entire brief. But since you don't want to tell your firm that you're applying for clerkships, that option isn't available.

That makes total sense. Thanks!

The issues are a bit thorny, given that's it's a reply brief regarding a dispositive motion, but I assume if I interviewed and the judge or the clerks were interested they would welcome the opportunity to question me about those issues.

If you're contemplating using a reply brief, make sure it stands on its own. Reply briefs tend to rely on more fleshed-out statements of the facts or law contained in the principal brief/motion, and when I've seen reply briefs as writing samples, they often seem more cursory than is ideal for a good writing sample. You're right that someone can question you if they want to know more, but ideally you want your best writing available to chambers from the beginning.

That issue does concern me. The briefs I've done are written against the backdrop of factual/legal issues that everyone, including the court, is well aware of by this point, given how far along things are. So I worry, reply brief or not, that a new reader is going to end up being placed in the middle of several ongoing disputes of law/fact without enough background to appreciate the analysis.

I do have a longer paper I wrote as a 3L that is related to Rule 23 and would probably be interesting to a district court judge. I think my idea is good, and the professor suggested trying to publish it. It's just not my best work overall because it's a practical solution to a very narrow issue that doesn't really involve case law or a ton of legal analysis in general.

If that's the choice, two sub-par options, would you lean one way or another?

[lavarman84]

To piggyback on anon's question, what sort of things would be best for a COA writing sample?(I know anon is asking about D. Cts.) Would a motion for summary judgment be a bad choice?

[LurkerTurnedMember]

I already clerked but wanted to get some other clerks' and former clerks' opinions. How did you all feel about possibly or actually getting reversed? I remember it not being a real big deal but I always felt scared.

[A. Nony Mouse]

Never worried about whether I would get reversed. I was vaguely annoyed the couple of times it happened, but didn't lose sleep over it. I suppose it might have depended on the case.

Edit to add: neither of my judges seemed to see reversal as anything other than one of inevitable parts of the job. They never put any pressure on me certainly. But I wasn't in the job long enough to get reversed for a screw up (as opposed to the higher court just taking a different view of things).

[LurkerTurnedMember]

Never worried about whether I would get reversed. I was vaguely annoyed the couple of times it happened, but didn't lose sleep over it. I suppose it might have depended on the case.

Edit to add: neither of my judges seemed to see reversal as anything other than one of inevitable parts of the job. They never put any pressure on me certainly. But I wasn't in the job long enough to get reversed for a screw up (as opposed to the higher court just taking a different view of things).

I feared both types of reversal. One of my judges had a very low reversal rate so if an order you worked on got reversed you'd be one of the very few clerks it happened to. I also feared a reversal for a screw up even more. It would've been horrible to be reversed cause you misread a case or the record. And the chambers were so busy that I thought it was bound to happen. So much work and such incompetence from attorneys in briefs that it seemed inevitable.

[EDM]

I already clerked but wanted to get some other clerks' and former clerks' opinions. How did you all feel about possibly or actually getting reversed? I remember it not being a real big deal but I always felt scared.

You always go the direction you think gets the law correct (unless your judge feels otherwise), so in that sense I worried about getting reversed. And you support what you write as best you can. But worrying about just the fact of getting reversed was never a concern.

[mjb447]

That issue does concern me. The briefs I've done are written against the backdrop of factual/legal issues that everyone, including the court, is well aware of by this point, given how far along things are. So I worry, reply brief or not, that a new reader is going to end up being placed in the middle of several ongoing disputes of law/fact without enough background to appreciate the analysis.

I do have a longer paper I wrote as a 3L that is related to Rule 23 and would probably be interesting to a district court judge. I think my idea is good, and the professor suggested trying to publish it. It's just not my best work overall because it's a practical solution to a very narrow issue that doesn't really involve case law or a ton of legal analysis in general.

If that's the choice, two sub-par options, would you lean one way or another?

Based on your description, I guess I'd still probably use the brief, but I don't feel strongly either way. If the paper doesn't have much "legal analysis," it's not likely to do what you want your writing sample to do, even if it's on a topic of interest to federal judges. (Also, I'd hope that your writing has improved a bit since 3L.)

[mjb447]

To piggyback on anon's question, what sort of things would be best for a COA writing sample?(I know anon is asking about D. Cts.) Would a motion for summary judgment be a bad choice?

It's going to vary a lot by judge - some specifically request nonlegal or academic writing, for example - and obviously you should take your cue from instructions on OSCAR or what past clerks say if info is available.

Otherwise, I don't think d. ct. vs. COA is going to be hugely different. If you have a lot of samples to choose from, I suppose for COA a piece analyzing a more open-ended "headier" legal issue (e.g., analyzing a circuit split, although ideally still in a practical setting) might be closer to COA work, while for d. ct. a piece surveying an area of law and applying it to a detailed factual scenario might be better. A lot of applicants don't have quite that many choices, and the rigor and quality matter more than exact congruence between "level" of court and type of W/S, though. (Judges at both levels mostly want "objective" writing from their clerks, so an SJ motion may not be ideal for reasons stated previously.)

[mjb447]

I already clerked but wanted to get some other clerks' and former clerks' opinions. How did you all feel about possibly or actually getting reversed? I remember it not being a real big deal but I always felt scared.

In some cases both sides have decent arguments, and attys will argue even when they don't, so I remember times when the judge signed off on a final order and I was nervous that I might still be wrong. Being reversed specifically wasn't a huge concern, though - maybe it differs among chambers, but when we got to the end of case we generally took the view that we'd done the best we could, often with little help from the parties, and the circuit could do what they wanted. (And there's always Rule 60 if the parties need to correct a true "screw-up.")

[Anonymous User]

I haven't started my clerkship yet but I'm already talking to a firm I'd like to go to after. I have an informal interview coming up soon. (My judge knows and he's cool with it. It also sounds like he's ok with them making an offer/me accepting at this point.) Does this ever happen this early or am I just getting my hopes up?

[Anonymous User]

Saw some info on this a few pages back, but had a quick "start date" question: there's a CoA posting that has an Aug 1 start date, but doesn't provide any other info re: flexibility. Per a clerkship in the previous year, I'm really only looking for start dates in late August or early September. Should I call CoA chambers and ask about the start date, or should I just apply (it's hard-copy only) and bring it up if I get an interview request?

[wwwcol]

Saw some info on this a few pages back, but had a quick "start date" question: there's a CoA posting that has an Aug 1 start date, but doesn't provide any other info re: flexibility. Per a clerkship in the previous year, I'm really only looking for start dates in late August or early September. Should I call CoA chambers and ask about the start date, or should I just apply (it's hard-copy only) and bring it up if I get an interview request?

Unless the post says not to contact chambers, I don't know why you wouldn't ask them and potentially save everyone some time/hassle if the start date is fixed. Even if the post says not to contact chambers, I'd still probably call them.

[lolwat]

I already clerked but wanted to get some other clerks' and former clerks' opinions. How did you all feel about possibly or actually getting reversed? I remember it not being a real big deal but I always felt scared.

No one cared. My judge ruled the way he thought was correct, and we did what we think was right in chambers. My judge viewed any reversal by the COA as just a panel of judges disagreeing with the way he ruled. After all, he's had situations where he ruled one way, the COA reversed, and SCOTUS reversed the COA and found my judge was right. I guess after going through enough times like that, it's reasonable enough to view a COA reversal as just a difference in opinion about how a case should come out based on the facts/law, and not that the district judge's opinion was objectively wrong.

The caveat though is that the "no one cared" came from the top. If my judge did care about getting reversed, then fuck yeah I'm sure the rest of us would have, too.

(The kind of funny thing also is that, chances are, in a 1-year clerkship, if you do get reversed it's happening after your term is already done... )

[Anonymous User]

My judge did care but the one time we got reversed it was because he didn't listen to me so...

[Anonymous User]

I'm using gold (as opposed to white) bond paper for my resume and cover letter. Would it be fine if I also printed the rest of my application on gold bond paper instead of regular white paper? I may be overthinking it, but I don't want to come off as pretentious by using gold bond paper for the entire application. But I do think it would look strange if only my resume and cover letter were gold bond.

[mjb447]

I'm using gold (as opposed to white) bond paper for my resume and cover letter. Would it be fine if I also printed the rest of my application on gold bond paper instead of regular white paper? I may be overthinking it, but I don't want to come off as pretentious by using gold bond paper for the entire application. But I do think it would look strange if only my resume and cover letter were gold bond.

I think I'd mostly use gold bond paper for consistency. For multi-page docs - for me that was only my writing sample(s) - I did a cover page in bond paper to match my other docs and the rest on white copier paper. (Seems like kind of an odd line to draw - being concerned that gold paper comes off as pretentious but only if you use it beyond your cover letter and resume. It also probably doesn't matter that much which you do.)

[Anonymous User]

I'm using gold (as opposed to white) bond paper for my resume and cover letter. Would it be fine if I also printed the rest of my application on gold bond paper instead of regular white paper? I may be overthinking it, but I don't want to come off as pretentious by using gold bond paper for the entire application. But I do think it would look strange if only my resume and cover letter were gold bond.

I think I'd mostly use gold bond paper for consistency. For multi-page docs - for me that was only my writing sample(s) - I did a cover page in bond paper to match my other docs and the rest on white copier paper. (Seems like kind of an odd line to draw - being concerned that gold paper comes off as pretentious but only if you use it beyond your cover letter and resume. It also probably doesn't matter that much which you do.)

Thanks, very helpful. Also, re the bold, I was under the impression that you had to use nice paper only for your resume and cover letter, but that using nice paper beyond that was not the norm. So that's why I didn't think it would be pretentious to use nice paper for resume and cover letter, but felt that using nice paper for my entire application might be.

[Barrred]

I'm using gold (as opposed to white) bond paper for my resume and cover letter. Would it be fine if I also printed the rest of my application on gold bond paper instead of regular white paper? I may be overthinking it, but I don't want to come off as pretentious by using gold bond paper for the entire application. But I do think it would look strange if only my resume and cover letter were gold bond.

I think I'd mostly use gold bond paper for consistency. For multi-page docs - for me that was only my writing sample(s) - I did a cover page in bond paper to match my other docs and the rest on white copier paper. (Seems like kind of an odd line to draw - being concerned that gold paper comes off as pretentious but only if you use it beyond your cover letter and resume. It also probably doesn't matter that much which you do.)

Not even joking: one day when I was paging through a clerkship application printed on some of that fancy thick/crisp paper, I got a massive paper cut on my index finger and a few big drops of my blood dripped onto the applicant's resume. We still interviewed the applicant, but our copy of his resume had about an inch of dried blood splatter next to his name at the top of the page. (I tried my hardest not to hold it against him...)

[jrf12886]

Never worried about whether I would get reversed. I was vaguely annoyed the couple of times it happened, but didn't lose sleep over it. I suppose it might have depended on the case.

Edit to add: neither of my judges seemed to see reversal as anything other than one of inevitable parts of the job. They never put any pressure on me certainly. But I wasn't in the job long enough to get reversed for a screw up (as opposed to the higher court just taking a different view of things).

I do not worry about getting reversed. So long as I believe we got it right (or at least I recommended the right result to the judge) then I've done my job. Reversal is part of life for judges (life tenure FTW) and clerks. I would go even further and say that worrying too much about being reversed can actually be a bad thing if it means you are afraid to go out on a limb when the law is unclear.

[mjb447]

I'm using gold (as opposed to white) bond paper for my resume and cover letter. Would it be fine if I also printed the rest of my application on gold bond paper instead of regular white paper? I may be overthinking it, but I don't want to come off as pretentious by using gold bond paper for the entire application. But I do think it would look strange if only my resume and cover letter were gold bond.

I think I'd mostly use gold bond paper for consistency. For multi-page docs - for me that was only my writing sample(s) - I did a cover page in bond paper to match my other docs and the rest on white copier paper. (Seems like kind of an odd line to draw - being concerned that gold paper comes off as pretentious but only if you use it beyond your cover letter and resume. It also probably doesn't matter that much which you do.)

Not even joking: one day when I was paging through a clerkship application printed on some of that fancy thick/crisp paper, I got a massive paper cut on my index finger and a few big drops of my blood dripped onto the applicant's resume. We still interviewed the applicant, but our copy of his resume had about an inch of dried blood splatter next to his name at the top of the page. (I tried my hardest not to hold it against him...)

Better than the applicant's blood I suppose.