What is a Judicial Clerk?

Generally, a judicial clerk assists a judge in researching and drafting tentative orders.  Shall we delve into some specifics?

Researching for a Judge

Typical research that a judicial clerk performs revolves around a judge's motion calendar.  A motion calendar consists of moving papers, at a minimum.  The moving papers essentially ask the judge for some sort of relief.  For example, a party moving for summary judgment asks a judge to grant judgment as a matter of law.  Often times, moving papers will be met with opposing papers, which may be met with reply papers.  A judicial clerk will analyze all moving, opposing, and reply papers.

In reading these papers, a judicial clerk must look to see if procedural and substantive elements are met in determining whether the relief requested may be properly provided.  The papers will, often times, include legal standards and explanatory law.  A judicial clerk must verify these legal standards and explanatory law as being persuasive or authoritative.  In doing so, the modern judicial clerk will use Westlaw and LexisNexis.  Both databases are essential in seamlessly ensuring the cited law stands for the propositions asserted, ascertaining whether alternative standards exist, and determining whether important factors or elements were addressed in the moving, opposing, or reply papers. 

A judicial clerk must also research persuasive and authoritative law outside of the papers lodged in a judge's docket.  As eluded to above, the documents filed in relation to a motion do not always include all of the law necessary for a judge to make a correct decision.  It is a judicial clerk's duty to ensure the judge has all necessary law.  Accordingly, a judicial clerk must perform additional research beyond what the parties briefed the judge on to ensure that judge has everything necessary to make a properly reasoned and supported ruling.

The particular legal research conducted may delve into a variety of matters.  A judicial clerk will commonly research procedural requirements, such as which party has the burden of proof or time limitations on bringing a motion.  A judicial clerk will certainly research substantive law, such as the elements that must be proven to satisfy a party's burden of proof.  Other necessary research may include expert writings in a niche legal field when there is a novel question at bar.  Importantly, no research is off limits.  The decision making process of whether particular legal research makes it into the document submitted to the judge is made in the writing process.

Writing for a Judge

There are numerous ways to go about the drafting process.  A helpful framework utilizes the madman, architect, carpenter, and judge format.  Starting with the madman level and moving towards the judge level, a writer increasingly moves from a birds'-eye-view of the writing task towards a caterpillars'-eye-view of the writing task.  There are numerous articles that explain this process in greater depth and, thus, this article does not provide such a description.

An important component that a judicial clerk must keep in mind while writing for a judge is who the audience is.  There has been a major shift in legal writing that has taken place over the past century.  The common way of writing these days is coined "Plain English."  This writing form omits overly confusing language such as aforementioned, hereunto, and the like.  These words provide less clarification than confusion.  Plain English also abandons long sentences and passive voice.  However, Plain English is merely a writing style.  Many judges do not write pursuant to Plain English.  It is a judicial clerk's responsibility to understand how the judicial clerk's judge writes and best duplicate that writing style.

It is also worth noting that the particular document drafted for a judge may differ slightly in form.  Two popular formats include a memorandum-style submission and a order-style submission.  The major difference between the two is that an order-style submission is drafted so it can be copied and pasted as a published order.  In contrast, a memorandum may be less formal, may include comments, or may include alternative orders when there is a discretionary decision to be made.  Despite the type of document drafted, it must include relevant facts, relevant law, an analysis of the law as it relates to the facts, and an order.

Conclusion

In sum, a judicial clerk's primary duties of researching and writing for a judge may differ slightly depending on the circumstances.  However, those slight differences will most likely be minor because all judges issue orders and all judicial clerks assist judges in researching and drafting those orders.