How to Be Law Clerk for in Art Law
How to Lose a Judicial Law Clerk in x Ways[i]
Judicial constabulary clerks[2] serve a necessary role in the daily piece of work of Florida's courts.[3] Justices and judges could non perform their duties without the assistance of their constabulary clerks. Ane of the many duties of a law clerk is to review, summarize, and memorialize the briefs in cases assigned to their jurists' chambers. Law clerks are, therefore, a liaison between advocates and the judiciary. As an appellate advocate, it is your duty to ensure that those who are amongst the first to read your brief are not immediately dissuaded by your stylistic choices. Equally former law clerks ourselves, our goal is to point out the nigh frequent offenses. Much like Kate Hudson'due south Andie in the moving picture, How to Lose a Guy in 10 Days, do the following at your own peril — not everyone is Matthew McConaughey.
• Fail to Bide by the Clear and Unproblematic Rules of Appellate Process — You are probably questioning why this one is here. It is simple — follow the rules! You would exist surprised how many writers of briefs fail to follow the basic rules set forth in the Florida Rules of Appellate Procedure. For example, nosotros have seen briefs that change to a different font in the middle of a sentence despite the clear and simple rule that "[c]omputer-generated briefs shall be filed in either Times New Roman fourteen-signal font or Courier New 12-betoken font."[4]
Some other rule provides that the initial, reply, and reply briefs must contain a "[t]able of contents listing the sections of the brief, including headings and subheadings that place the issues presented for review, with references to the pages on which each appears."[v] We accept seen briefs that have incorrect page references or no page references at all.
We realize these may seem lilliputian, simply consider it from our perspective. The law clerk's day is spent reviewing briefs and the record to discern what happened. You are our guide. We need you because we were not in that location. But, we demand your assurance that y'all know what you are talking nigh. The easiest way to get us to doubt y'all is to be condescending about the rules.
• Make Arguments in the Fact Section — Your advocacy begins in the facts section. Be sure to include every bit many asides, footnotes, and aspersions as you lot can to ensure you do non omit a single argument. Why should your fact department merely be a recitation of the facts of the case in nearly chronological lodge? Why should you tell a story when y'all could make boosted arguments? Why should you bypass an opportunity to slam the opposition? Why? Because information technology undermines your credibility. Police force clerks do not begin their review of a example biased toward a political party or an thought. We tend to pride ourselves in our ability to be neutral and see both sides of any case. That said, information technology is homo nature to question the veracity of any fact that is not supported by a tape commendation or is not stated as directly and succinctly as possible. Once the question enters a police force clerk'southward thought procedure, that law clerk volition inevitably brainstorm to search for the reply to that question whether it can be establish in your brief, opposing counsel'due south brief, or the police force clerk's independent research.
In our stance, information technology all-time serves your client and the courtroom when your facts section helps set out the facts of your case in the best possible light to your customer. Omitting facts or including arguments within the facts section makes it more than hard for the law clerks and, ultimately, the court to understand the case. The court does non review the case in a vacuum — information technology will have admission to opposing parties' briefs, the record, and the law clerk's independent analysis. While it is helpful to frame the argument and provide your version of the story, you practise not want a police clerk spending too much time merely attempting to empathize what happened earlier turning to the legal question your example presents.
• Reinvent the Cycle — Recollect back to when y'all were in unproblematic, middle, or high school. How many times were y'all told to put something "in your own words?" This is ingrained in us early on. We are here to tell you lot that it does not have to — and maybe should not — exist that way. We are not telling you to file a cursory full of block quotes. In our experience, block quotes, particularly when they span multiple paragraphs, generally are ineffective. The reader nigh always glosses over the cake-quoted text, looking for when the regular text begins again. If yous are relying on a well-established legal standard, quote the relevant linguistic communication from the case you are citing. There is no demand to try to restate it in your ain words. Why? Y'all may end up stating information technology incorrectly, which can accept the unintended consequence of making your law clerk think y'all are being disingenuous.
Equally lawyers, we all know that words matter. How many times has the crux of your case turned on whether the applicative statute used "shall" instead of "may?"[6] Judges and their law clerks are specially fastidious about word choice considering they have to be — opinions become precedent. We encourage you lot to be fastidious as well. Instead of trying and potentially failing to correctly country a legal standard, statute, or rule in your own words, just quote directly from the source. We promise you will not lose whatever inventiveness points.
• Be Overly Clever — Every lawyer believes himself or herself to be clever. Exhaust your use of that cleverness in your writing. Police force clerks savour picayune more than reading belabored analogies, bad puns, and citations to esoteric $.25 of media. If your brief does not crave a law clerk to head to the library or refer to Google, you have not tried hard plenty. Extra points to whatsoever attorney who causes judicial staff to circulate excerpts of your brief among themselves for much-needed levity.
In all seriousness, your goal as an advocate is to produce a readable, informative document that best explains your client'due south argument to the court.[7] As Bryan Garner reminds us, "In legal writing as in all writing, the object is to communicate effectively."[8] Analogies, puns, and references are only every bit good as they are helpful. Your baseball analogy that requires expert knowledge of the inner workings of the relationship betwixt management and owners will exist ineffective for anyone who does not closely follow baseball game.
Constructive advocacy explains your client's story of the instance in a way that draws your reader'due south attention, clearly explains why the law supports your client'south perspective and provides distinguishing characteristics for whatsoever cases or facts that practice not piece of work in your favor. Any analogy used should help illustrate your case to the average person. Making an analogy to an eleven o'clock number would be missed by anyone not interested in musical theater. As well, an analogy to a particular sport is lost on those who exercise not follow that sport. Using a $10 word when a nickel would practice does non strengthen your statement, only being careful with your language when necessary volition.
• Provide Incorrect and Inconsistent Citation Usage — Citations should be admittedly incommunicable to locate. When you lot cite the record, yous should refer to documents in your own, personal jargon and employ an unnamed numbering system. You lot should ignore Florida Rule of Civil Procedure 9.800 and create your own citation way and vary it throughout your document. Instead of providing the case name, number, and a reporter citation, y'all should but give a single company's database citation. If a court has not provided you lot with the language that you need, or even if yous are pretty certain the court said information technology somewhere in something yous accept read before, yous should provide the quotation and merely estimate where it may be.
Please practice not practice any of this. Look, we get it. Citations can be difficult. You have taken notes from scores of sources and cut and paste so many times when editing your document that you cannot easily realign your brusque citations to their full citations; or you quoted a portion of a instance and are non certain whether the quote ran to the next printed page. Citation styles vary from Bluebook to the Clan of Legal Writing Directors Guide to Legal Citation to the Chicago Manual of Mode and y'all have learned i course simply to be asked to apply a unlike ane. Even The Bluebook arbitrarily seems to change its citation styles from version to version.[9] No court expects perfection, merely everyone benefits from existence able to find your sources readily and easily.
Your opposing counsel, the courtroom, and you lot may each merely have access to a single legal database, and you may all be using a dissimilar provider. If you only have access to Westlaw, the following commendation is well-nigh useless: 2011 Fla. LEXIS 2641.[10] Florida Dominion of Appellate Procedure 9.800, Uniform Citation System, is the advisable commendation style for all Florida courts. Every bit we have stated, following the clear and unproblematic Florida Court Rules should always be in the forefront. As provided inside the dominion, information technology "applies to all legal documents, including courtroom opinions."[11] Unless your citation is not listed inside the rule, at that place is no demand to refer to either The Bluebook or The Florida Style Transmission.
• Overuse Typographical Accent — When nosotros speak, nosotros rarely speak in monotone. Accordingly, we sometimes wish to convey our spoken tone within our writing. Whenever possible, allow your writing to provide emphasis instead of using typographical emphasis to create it.
If you demand to emphasize a sentence in a paragraph of block quote, consider using the judgement as a quote instead of the entire paragraph and trust that your reader will either expect upwards or understand the context of the quote. Alternatively, block quote the unabridged paragraph, simply so begin a new sentence with the portion of the quote you want to emphasize.
Likewise, "never" use quotation marks for emphasis or sarcasm in a court document. If the language inside the quotation marks is not a quote from someone or some document that is able to exist cited, practise not utilize them because information technology signals to your reader that the word used is inaccurate, incorrect, or untruthful. Every bit an instance, in the showtime judgement in this paragraph, the quotation marks around the word "never" imply that nosotros do not really mean never, and that y'all may occasionally employ "scare quotes."[12] Nosotros do non mean that. The utilize of scare quotes casts corker and dubiousness on your argument, an effect that you certainly practice non desire.
• Utilise Headings Ineffectively — Some attorneys are masterful with their apply of headings and subheadings. For example, Justice Cantero'southward use of wit and pop culture references combined with usefulness and clarity in his especially concurring opinion in Windom five. State, 886 Then. 2d 915, 935-52 (Fla. 2004) (Cantero, J., particularly concurring). Notwithstanding, poorly placed or badly worded headings tin can lead to greater confusion. If your argument relies on a law clerk or estimate reading your headings, information technology may be overlooked. Likewise, if your headings brand it appear that your argument is something other than it is, yous could inadvertently mislead the courtroom.
Additionally, merely as the phrasing of a heading can create confusion, transitioning to a unlike topic inside a heading may result in your argument being overlooked or misunderstood.
For example, imagine you are advocating confronting a revision to the Florida Constitution because you believe that the provision violates the single-subject requirement. Which heading is clearer? ane) The Proposed Amendment Violates the Single-Discipline Requirement; or ii) Because the Proposed Amendment Applies to Several Subjects, it Violates Commodity XI, Section 3 of the Florida Constitution.
Both versions ostensibly say the aforementioned thing, but one requires knowledge of the reference and lends itself to typographical errors and unintentional references. Well-executed headings can be useful for organizing your argument and assisting the reader. If you choose to utilise them, take the fourth dimension to ensure headings are clear, concise, and correct.
• Neglect to Edit — Nosotros are intimately familiar with the general rule that initial and answer briefs may be up to 50 pages.[thirteen] But — and we cannot enlarge this enough — they practise not have to be. Longer is not better. The person who writes the longest brief does non win. In fact, it may have the opposite issue.
Consider this scenario: Your brief is 47 pages long. The last 10 pages or so are devoted to restating points you take already argued, with one exception. Buried on page 45 is a point you are making for the commencement time. Unfortunately, the police force clerk has zoned out due to the unnecessary repetition and misses the new point.
You are probably cursing us for suggesting that a law clerk could miss your winning statement because they zoned out. Only, merely like you, law clerks are busy. Yours is not the only case they are working on at any given moment. Law clerks are susceptible to losing focus but like anyone else. In our experience, the best briefs make a signal without belaboring it.
With that in mind, nosotros offer the following suggestions. If yous can, have someone else read your work and — this adjacent part is crucial — be open up to their edits. Some other option is to step away from it for a few days. Coming dorsum with a fresh set of eyes can practice wonders for shortening a lengthy brief and, more than chiefly, ensuring your arguments are clearly and succinctly communicated. Furthermore, editing your brief using either method, or both, will allow yous to observe any misstatements or mischaracterizations. No one wants to lose a case on a slipped "non."[xiv]
• File a Respond Brief Solely to Reiterate Points Argued in the Initial Brief — Yous accept already filed the initial cursory. Now y'all are only waiting for opposing counsel to file his or her respond brief. In fact, you have saved a few arguments in reserve for this moment. So it arrives. You rifle through the respond brief, muttering every possible retort. You have to reply! That is what the reply brief is for! Not necessarily. "The answer brief shall contain statement in response and rebuttal to statement presented in the answer brief."[15] The reply brief should not be used, or abused, equally a vehicle to reiterate what y'all have already stated or take the last word. In our experience, the best reply briefs are written with this understanding and purpose in mind.
One instance is the following: In a criminal appeal, the defendant raised four problems. In the respond cursory, with respect to the second issue, counsel responded to specific arguments made in the land'south answer brief. Withal, with respect to the first, third, and fourth problems, counsel simply stated that he relied on the arguments fabricated in the initial brief. This is how information technology should be.
You have to zealously advocate on behalf of your client, but law clerks read everything you file. But considering the answer brief is filed after the initial brief does not mean that law clerks volition forget all the extremely valid arguments raised in your initial brief. Relieve the reply brief for its intended purpose. And while nosotros are on the topic, do not concur arguments until the reply brief. If you have an argument, go far in the initial cursory. As former law clerks, we cannot tell yous how many times persuasive arguments are raised as well belatedly.[16]
• File Supplemental Authority That is Neither New Nor Supplemental — It is the day before oral argument in your example. The briefs were filed months ago and now yous are just waiting for your moment to shine backside that podium. Alas, something is missing. You retrieve that you lot forgot to cite Marbury v. Madison, v U.S. 137 (1803). How is the court going to know its office without that case? No worries, yous will just file a detect of supplemental authority the day before oral argument. You are doing the court a favor, you tell yourself.
You lot are non doing the court a favor. Not but are you disrupting the court's preparation the day before oral argument, you lot are ignoring the purpose of the dominion. Mayhap worse, you are doing yourself no favors with the clerk who is inevitably involved in his or her judge'south preparations and who now has to deal with your observe of supplemental authority that is — nether no circumstances — supplemental.
"Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that take been discovered afterward the concluding brief served in the cause."[17] Note this function of the rule: "and that accept been discovered after the last brief served in the crusade." You did not notice, or at to the lowest degree should not have discovered, Marbury v. Madison afterwards the terminal brief was served. In all likelihood, information technology was i of the outset cases yous were taught in your first twelvemonth of police force school.
Marbury v. Madison is a desperate case. Yet, the bespeak remains. If you are because filing a notice of supplemental say-so, particularly the mean solar day earlier oral statement, terminate and ask yourself: Is it 1) truly supplemental, and 2) absolutely crucial for your instance. If information technology is not, we would advise confronting information technology.
Conclusion
The preceding guidelines have been just that, guidelines. Nosotros are merely two former constabulary clerks with a combined 15 years of experience in two different courts with a combined five jurists. As with any style guide,[18] in that location is a fourth dimension to bide and a time to deride. Nosotros sincerely hope our thoughts are cause for the onetime.
[ane] Hat tip to How to Lose a Guy in x Days (Paramount Pictures 2003).
[ii] The naming conventions for judicial law clerks vary by courtroom and jurisdiction. The Florida Supreme Courtroom, for example, calls constabulary clerks "staff attorneys" in one case they are licensed to exercise law. We both served as staff attorneys but for the purpose of this commodity, we volition use constabulary clerk to refer to either.
[iii] For more information about the role of law clerks in the Florida Supreme Court, listen to the podcast, Beyond the Bench, The Suite Life: A Behind-the-Scenes Perspective (June seven, 2008), available at http://flcourts.libsyn.com/the-suite-life-ane.
[four] Fla. R. App. P. 9.210(a)(2).
[five] Fla. R. App. P. 9.210(b)(i).
[6] See, east.k., The Fla. Bar v. Trazenfeld, 833 So. 2nd 734, 738 (Fla. 2002) ("The word 'may' when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the discussion 'shall.'").
[7] A majority of cases are won or lost on the briefs alone. Oral argument is important but it is but rarely dispositive. See Warren D. Wolfson, Symposium: Oral Statement: Does it Thing? 35 Ind. L. Rev. 451, 454 (2002) ("[Oral statement] changes or makes up minds in about five to 10 percent of the cases where nosotros hear oral argument.").
[8] Bryan A. Garner, The Elements of Legal Mode xxx (2d ed. 2002).
[9] See Gallagher Law Library, Bluebook 101, http://guides.lib.uw.edu/law/bluebook101/updated_edition.
[10] Here is where we requite you lot the full citation and so you can marvel at how much easier it is: In re: Amendments to the Fla. Rules of Appellate Procedure, 74 So. 3d 239 (Fla. 2011).
[11] Fla. R. App. P. ix.800.
[12] Merriam-Webster, Scare Quotes, https://www.merriam-webster.com/dictionary/scare%20quotes.
[13] Fla. R. App. P. 9.210(a)(v)(B). Of class, a different rule applies to special cases. Encounter Fla. R. App. P. nine.210(a)(5)(C).
[14] Cleverness is not e'er dexterous.
[fifteen] Fla. R. App. P. 9.210(d).
[16] See J.A.B. Enters. v. Gibbons, 596 Then. 2d 1247, 1250 (Fla. 4th DCA 1992) ("[A]north upshot not raised in an initial brief is deemed abased and may not be raised for the showtime fourth dimension in a answer cursory."); meet besides D.H. v. Practiced Cmty. Servs., Inc., 43 Fla. L. Weekly S533 *six (Fla. Nov. ane, 2018).
[17] Fla. R. App. P. nine.225.
[18] In that location are numerous way guides bachelor for attorneys and judges. Some of the ones on our shelves include The Elements of Legal Manner; Ross Guberman, Point Made. (second ed. 2014); Richard C. Wydick, Obviously English for Lawyers (fourth ed. 1998); Ruggero J. Aldisert, Opinion Writing (1990).
Kristen Bail is an associate with Parker, Hudson, Rainer & Dobbs LLP. She previously served every bit a staff attorney for Justice Barbara J. Pariente at the Florida Supreme Court and Judge Robert Grand. Gross at the 4th District Courtroom of Appeal.
A. Mireille Fall-Fry is an associate public counsel with the Office of Public Counsel. She previously served equally a staff attorney for Justices Peggy A. Quince, James Due east. C. Perry, and Harry Fifty. Anstead at the Florida Supreme Court; as an countdown honors chaser for Attorney General Charlie Crist; and with the Bill Drafting Office of the Florida House of Representatives.
This cavalcade is submitted on behalf of the Appellate Exercise Section, Nicholas Ari Shannin, chair, and Thomas Seider, editor.
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