Law Clerk Handbook: A Handbook for Law Clerks to Federal Judges

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  • Law Clerk HandbookA Handbook for

    Law Clerks to Federal Judges

    Second Edition

    Edited by

    Sylvan A. Sobel

    Federal Judicial Center 2007

    This Federal Judicial Center publication was undertaken in furtherance of the Centers statutory mission to develop and conduct education programs for judicial branch em-ployees. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.

  • Blank pages included to preserve pagination for double-sided printing.

  • iii

    Contents

    Preface ix

    Chapter 1. Introduction 1 1-1. Function and Role of Law Clerks 1 1-2. Preparation and Reference Material 1 1-3. Orientation and Continuing Education 3

    Chapter 2. Conduct, Ethics, and Protocol 5 2-1. Conduct and Ethics 5 2-2. Protocol 6

    A. Confidentiality and Loyalty 61. Communication with the Media 72. Communication with Attorneys 8

    B. Respect 9C. Courtroom Demeanor 10D. Dress 10E. The Public 10

    Chapter 3. Overview of Litigation Conducted in U.S. Courts 11 3-1. The Civil Action 11

    A. Federal Jurisdiction 11B. Litigation Process 11C. Commencement of Action 12D. Service of Summons and Complaint; Waiver of Service 13E. Early Pretrial Conference 14F. Multidistrict Litigation Problems 15G. Motion Practice Before Answer 16H. Opinions on Motions Under Submission 18I. Temporary Restraining Orders 18J. The Answer 19K. Alternative Dispute Resolution 19

    1. Arbitration 202. Mediation 203. Early Neutral Evaluation 204. Nonbinding Summary Jury Trial 215. Minitrial 216. Settlement Weeks 217. Case Evaluation 21

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    Law Clerk Handbook

    L. Dormant Actions 21M. Motion Practice After Answer 22

    1. Discovery Motions and Schedules 222. Motions for Summary Judgment and Amended

    Pleadings 23N. Final Pretrial Conference 24O. Pretrial Orders 24P. Sanctions 25Q. Trial 25R. Post-Trial Motions and Enforcement of Judgments 26S. Appeals from Decisions of Administrative Agencies 27

    3-2. The Criminal Action 27A. Proceedings Before a Magistrate Judge 28B. Indictment 29C. Arraignment and Plea 29D. The Speedy Trial Act 30E. Pretrial Motions 31F. Discovery and Pretrial Hearing 31G. Trial and Post-Trial Detention 32H. Sentencing 32

    1. Sources 322. Sentencing Procedures 343. Appellate Review 354. Role of Law Clerks 36

    I. Post-Trial Motions 37J. Handling Prisoner Petitions 37

    3-3. Bankruptcy Proceedings 38A. General Structure and Jurisdiction 38B. Authority of the Bankruptcy Judge; Core Versus Noncore;

    Jury Trials 39C. Relationship to Other Courts 40D. Appeals 40E. Chapters of the Bankruptcy Code 41F. Bankruptcy Procedure 43

    1. Rules and Forms 432. Applications and Motions 433. Contested Matters and Adversary Proceedings 44

    G. U.S. Trustees and Private Trustees 45

  • v

    Contents

    3-4. Appeals 46A. Processing Appeals 46B. Notice of Appeal 47C. Record Preparation 48D. Docketing the Appeal 49E. Briefs and Joint Appendix 49F. Oral Argument 50G. Deliberation 51H. Opinion and Judgment 52I. Rehearing 52J. Mandate 53K. Motions 53L. Emergency Proceedings 54

    3-5. Courts of Specialized Jurisdiction 54A. Court of Appeals for the Federal Circuit 55B. Court of International Trade 55C. Judicial Panel on Multidistrict Litigation 55D. Foreign Intelligence Surveillance Court 55

    3-6. Article I Courts 56A. U.S. Tax Court 56 B. U.S. Court of Federal Claims 56C. U.S. Court of Appeals for the Armed Forces 56D. U.S. Court of Appeals for Veterans Claims 56

    Chapter 4. Chambers and Case Management 57 4-1. Chambers Administration 57

    A. Security 57B. Telephone 59C. Correspondence, E-mail, and Other Mail 59D. Internet and Electronic Research 61E. Electronic Filing 62F. Judges Chambers Calendar 63G. Opening Court 63H. Maintaining the Library; Office Supplies, Equipment, and

    Furniture 63I. Maintaining Office Records and Files 64J. Statistical Reporting 65K. Out-of-Town Trips 65L. Assisting with Judges Extrajudicial Activities 66

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    Law Clerk Handbook

    M. Preserving Chambers Papers for Historical Purposes 66N. Rules Regarding the Media in Court 67

    4-2. Local Court Rules and Administrative Policies 67 4-3. Case Management: The Trial Court 68

    A. Office Status Sheets 69B. Calendaring Systems 70C. Trial Scheduling 70D. Jury Management 71

    1. Random Juror Selection 712. Exemptions, Disqualifications, and Excuses 723. Juror Orientation 734. Voir Dire 735. Jury Supervision 74

    E. Distributing Opinions 75 4-4. Special Duties of Law Clerks to Bankruptcy Judges 75 4-5. U.S. Magistrate Judges 76

    A. Initial Proceedings in Criminal Cases 76B. References of Pretrial Matters from District Judges 77C. Disposition of Petty Offense and Class A Misdemeanor

    Cases 77D. Disposition of Civil Cases 78E. Additional Duties 78

    4-6. Case Management: The Appellate Court 79A. Motions 79B. Screening 79C. Order of Assignment of Appeals for Oral Argument:

    Calendar Preparation 80D. Order of Opinion Writing 81E. Distributing Opinions 81

    Chapter 5. Legal Research and Writing 83 5-1. Research 83

    A. Current Advance Sheet and Slip Sheet Reading 85 5-2. Writing 86

    A. General Rules 86B. Editing 88C. Style 88D. Specific Writing Assignments 89

    1. Jury Instructions 89

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    Contents

    2. Memoranda of Law or Fact 90a. Bench memorandum 90b. Statement of facts 91c. Single-issue memorandum 92d. Full-case memorandum 92

    3. Resolution of Motions in Trial Courts 924. Memos for Criminal Motions 945. Findings of Fact and Conclusions of Law 946. District Court Orders 957. Opinions 96

    E. Correspondence 981. Official Business Envelopes 1002. Juror Letters 100

    F. Suggested Reference Material 100 5-3. Proofreading and Checking of Citations 101

    A. Checking an Opinion 101B. Final Proofreading 102

    Chapter 6. Court Governance and Administration 103 6-1. Overview of Federal Judicial Administration 103 6-2. Chief Justice of the United States 103 6-3. Judicial Conference of the United States 103 6-4. Circuit Judicial Councils and Circuit Executives 105 6-5. Chief Judges 105

    A. Courts of Appeals 106B. District Courts 106C. Bankruptcy Courts 107

    6-6. Circuit Judicial Conferences 107 6-7. Federal Agencies of Judicial Administration 107

    A. Administrative Office of the U.S. Courts 107B. Federal Judicial Center 108C. United States Sentencing Commission 108

    6-8. Active and Senior Judges; Retirement 109 6-9. Budget Appropriations and Administration 109

    Chapter 7. Relations with Other Court and Justice System Personnel 111 7-1. Circuit Executive 111 7-2. Clerk of Court (Court of Appeals) 111

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    Law Clerk Handbook

    7-3. Clerk of Court (District and Bankruptcy Courts) 112 7-4. District Court Executive 113 7-5. Courtroom Deputy and Docket Clerk 113 7-6. Other Law Clerks 114 7-7. Judicial Assistants 115 7-8. Pro Se Law Clerks and Staff Attorneys 115 7-9. Court Reporter 117 7-10. Circuit Librarian 118 7-11. Probation and Pretrial Services Offices 119 7-12. Public Defenders 119 7-13. United States Attorneys 120 7-14. United States Marshals Service 121 7-15. The Federal Bureau of Prisons 122 7-16. Federal Law Enforcement Agencies 123 7-17. State Courts 124

    Appendix: Code of Conduct for Judicial Employees 125

  • ix

    Preface

    In 1977, the Federal Judicial Center published the Law Clerk Handbook, coauthored by Judge Alvin B. Rubin and Anthony DiLeo, Esq. It was substantially revised in 1989 by Judge Rubin and Laura B. Bartell, Esq. In 1994, the Center revised the handbook along with its Handbook for Federal Judges Secretaries and combined them in one publication called the Chambers Handbook for Judges Law Clerks and Secretaries. Because of the unique needs of each audience, however, we have returned to the original format and prepared this edition of the Law Clerk Handbook; we are working with the Administrative Office of the U.S. Courts and an advisory group to prepare a separate handbook for judicial assistants and secretaries. This handbook provides an overview of chambers operations and the work of the federal courts; it does not provide detailed procedures on every aspect of a law clerks daily tasks or review the procedures of each individual court (this is in large part because the duties of law clerks vary from judge to judge). Law clerks should become familiar with local court procedures and inquire about a local chambers manual. More detailed information on personnel, administrative, and financial matters is in the Guide to Judiciary Policies and Procedures, published by the Administrative Office and available on the website maintained by the Administrative Office, called the J-Net, on the judiciarys intranet.

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  • 1

    Chapter 1. Introduction

    1-1. Function and Role of Law Clerks

    Law clerks have no statutorily defined duties; they carry out their judges instructions. Because each judge decides cases in an individual manner and has developed work habits over the course of a professional career, no two judges use their clerks in precisely the same manner. You must become familiar with your judges style and work cooperatively with the other members of the chambers staff so that, as a team, you effectively assist the judge in fulfilling his or her judicial responsibilities. In most chambers, law clerks concentrate on legal research and writing. Typically, law clerks broad range of duties includes conducting legal research, preparing bench m