Real Mentorship: Do Judges and Law Clerks Still Do This?

By Andrew Cohen

Please see Update Below (Tuesday, May 17, 9:30 a.m. EDT)

Gerald Gunther, the constitutional scholar, was a profoundly important apostle and chronicler of the rule of law during his long and fruitful life. In addition to writing and then continually editing (through 12 editions) a constitutional textbook that generations of law students first used to hone their craft, Gunther literally wrote "the book" on one of the nation's most extraordinary jurists: Billings Learned Hand. If Gunther had done one or the other he would have been appreciated beyond his death. That he did both is a blessing, indeed.

I am now slogging my way through Gunther's Learned Hand: The Man and the Judge (second edition with foreword by Supreme Court Justice Ruth Bader Ginsburg). Gunther clerked in 1953-54 for Judge Hand and then subsequently taught Ginsburg at Columbia Law School. In her foreword, the justice cited the words of her former colleague, David Souter, who wrote that Gunther "has studied a life and written a book the way Learned Hand harrowed a record and resolved a case."

Even lawyers and law students who have heard about Judge Hand probably don't know that in addition to his stewardship of the 2nd Circuit for decades he also sort of invented the modern-day practice of federal judicial clerkships, which are nearly 100 years later still the gold standard in legal apprenticeship. From Gunther's book, here's how it worked being a clerk with ol' Judge Hand:

In writing his memos and opinions, Hand worked with a legal-size pad of yellow paper, which he propped on a board resting on his knees or set on his desk. Before getting down a word, he would tell the clerk what he planned to write in, say, the first two paragraphs, and then invite--indeed, press--him to offer criticisms.

Hand took these very seriously, The clerk would then return to his own desk while Hand wrote out the first paragraphs in longhand. Soon, Hand would give the yellow sheets to the clerk for renewed criticism; if the clerk had objections and Hand saw merit in them, he would try again. He repeated that procedure for page after long yellow page of his drafts, continuing to press for comment; in the most difficult cases, he would go through as many as thirteen draft opinions...

Most of Hand's clerks, fresh out of law school, were startled to find this experienced jurist; a near mythic figure, a household word to every law school graduate, the master judge of his generation, asking for help and insisting on candid criticism and continuous oral participation in the decision process. Was it really conceivable, they would wonder, that Hand was seriously interested in their views when they were just months away from the classroom?... As the clerks got to know Hand better, most realized that he was entirely serious about his constant prodding to elicit critical analysis, and that this unique way of working with his clerks was part and parcel of his distinctiveness as a judge.

Talk about harrowing a record. There is something awfully poignant and powerful in the idea of a man in season acting humbly as he goes about his craft. For Hand, this willingness to keep an open mind, in the main and in each specific case, clearly showed in both his work and the legacy he left to others. So my question for all you judges and law clerks out there--and you know who you are--is this: in the age of computers and Westlaw, does this sort of give-and-take happen today, nearly 60 years after Gunther clerked for Hand? Yes or no, I'd like to hear your stories and I suspect many others would as well.

Update: From U.S. District Judge John L. Kane:

I am certainly no Learned Hand and have no delusions of even coming close, but I can tell you I thrive on the critiques and comments of my law clerks. My father once told me it was always best when hiring to "make sure the employee is smarter than you are." With very rare exceptions, I have followed that advice in hiring law clerks, and when I didn't I soon regretted my dereliction. I also have two or three, in the summer four, law student interns. One of them dubbed our sessions "The Academy."

When I write an opinion from scratch, I have my law clerks edit it and check every citation. I then re-write and have them once again edit and check. Sorry to say I don't have the time to do a dozen or so re-writes, but on many opinions the number is from four to six.

When I don't write from scratch, even minute orders, but assign them to my clerks, we reverse the process and I do the editing and reading the cited cases. As for the interns, they draft and send to the law clerks, who edit and critique and send back until the clerk thinks it's ready for me. I then, and always, critique the product with the intern. We base our products on spirited discussion and debate. The older I become, the more I need the assistance and collaboration of bright, young people and, I hope, the more they need me to show them that much of what they have learned in law school needs to be unlearned. We search endlessly for the simple declarative sentence.

Interestingly enough, the one thing never taught in law school that all of these clerks and interns value the most is our process of drafting jury instructions, the fine art of translating legalese into plain English. As one intern said at her farewell lunch with us:  "I will never say prior or subsequent again."



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