A Law Clerk's Transition: From umpire’s apprentice to fighter in the ring
Vanessa Kubota.
After my 1L judicial externship at the Federal District Court, I was hooked on the law—and, more specifically, on the joy of writing for a judge. I knew I wanted to pursue a judicial clerkship—the pinnacle gig for someone who loves to mull over words and theories, or decide when “or” means “and.”
I applied for—and landed—a two-year appellate clerkship at Division One of the Arizona Court of Appeals—a popular choice among law clerk applicants for its uncommon practice of allowing its clerks to sit (and even chime) in on the secret deliberations of the panel. These were opportunities for us clerks to hone our oral advocacy skills.
But the best part about the court was having the chance to draft opinions and memorandum decisions and receive feedback from the judges. As someone for whom law was a second career—I was a translator and interpreter before law school—I knew I needed to learn how to write for a different audience than linguists, academics or Buddhist hippies.
It helped that my judge was renowned for his writing. A local hero for having the highest caffeine tolerance in the building (he drank “Death Wish” coffee), Judge David D. Weinzweig was a former big law partner and, later, an assistant attorney general who toured the country teaching his popular course on legal writing to judges, lawyers and law students. To this day he continues to teach legal writing in fresh and cutting-edge ways, citing Stephen King, Alice Walker and Hemmingway among his cast of writing inspirations. His non-fiction book, Zen in the Art of Legal Writing, is due out in print soon.
Privately, “Judge” was a noble boss and a ruthless editor. He cared about every case and despised pretense. Turns of phrase like “inter alia” and “notwithstanding” were outlawed in his chambers. He taught his law clerks the art of concision, taught us to train our ears to hear the cadence and rhythm of our sentences.
He showed us how to weave long and short sentences together for varied tenor, how to sense when a draft was complete, how to cure monotony and how to animate our prose with words that breathed. He taught us how to use mindfulness to organize our drafts, how to favor the reader and how to write deliberately.
Above all, he taught us the courage of exclusion. No idle word was safe in his presence. Every sentence had to pull its weight. When the page became too cluttered, my judge was the executioner—and no darling was immune. He would slay hapless adverbs that found themselves loitering in our drafts. Many a zombie noun met its swift demise under Judge’s watch—and many more were exorcised before they made it past our first draft.
Over time, my co-clerks and I found ourselves anticipating Judge’s edits, hearing his voice in our heads. And over the course of my two years under his tutelage, my drafts were returned with fewer deletes or rewrites, eventually making their way into his final decisions unaltered. I was beginning to gain more confidence in writing, more confidence in assessing the legal landscape of a given issue on appeal and parsing the nuggets from the fluff.
And so, after two years of learning how to write for the court—and how to approximate the thinking of an appellate judge many decades more experienced in the law—I found myself ready to venture into an uncharted new world—the world of real live lawyering.
And wouldn’t you know? It’s a whole lot scarier to be on the other side. More specifically, it’s a whole lot scarier to be on a side at all. The good thing, at least for a prosecutor, is that our only side is justice—not conviction for conviction’s sake. Even so, we must learn to speak like lawyers with well-reasoned arguments buttressed by facts, not like arbiters with well-justified answers buttressed by a panoramic summary of the case.
The Transition
I spent the weeks leading up to my first day at the United States Attorney’s Office shopping for “polished federal prosecutor” clothes, getting the frizz ironed out of my hair, and definitely not vegging out, vacationing with my family, or reading mindless fiction as I probably should have.
Most regrettably, I didn’t talk to enough law-clerks-turned-lawyers to appreciate the cognitive dissonance I would experience in my first few months as a new lawyer—when I had to learn to talk and think like an advocate, not a law clerk. There is a growth period—and I’m still in it—where law clerks-turned-lawyers must learn to find our voice and surmount our fear of coming across as too pushy or persuasive. As law clerks, we learn to write with a dispassionate tone and an air of neutrality. We write to explain.
As lawyers, the same rules apply, but the goal changes: We write to persuade. I am still working with the pointers I learned from my judge, expressing ideas with as much precision as I can, learning to be responsive when I argue a live dispute in court. But there have been moments when I found myself standing in front of the Court and speaking too theoretically. And I needed to pivot.
Another transition is realizing how much harder it is to be in the kitchen as the cake is being made. Lawyers who started out as law clerks will see their idealism shattered as they find themselves in the trenches having to create an appeal-proof record from the ground up. We think we have learned what to do and what not to do—as if we are somehow privy to the inner workings of the judge’s mind.
Sure, we learned the things that ticked off our judge—and many of them are the same things that probably tick off any judge—bombastic briefs loaded with hyperboles or personal attacks were at the top of the list—but working from the ground up as the record is being made is a very different experience than safely assessing it from the shelter of our judge’s chambers. And navigating the landmines in real time is harder than it looks!
And so, my advice to law clerks who are getting ready to enter practice is to be kind to yourselves. Know this is a learning process, that you may not have a strong voice when you first begin.
As I fumble around like a dork, I remember my judge’s advice: “To become a great lawyer, surround yourself with great lawyers and learn from them. Put yourself in uncomfortable positions—where you are forced to grow.”
A law clerk can’t stay sealed in their judge’s protective bubble forever. Sooner or later, it is time to leave the nest.
Vanessa Kubota is a Tibetan interpreter and an Assistant United States Attorney. All views are her own and do not represent her employer. Before joining the Department of Justice through the DOJ Honors Program, she served as a law clerk to the Honorable David D. Weinzweig of the Arizona Court of Appeals, Division One.
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