Joette Katz Authors Article on Law.com Entitled "A Former High Court Justice's Tribute to a Great Law Clerk and Friend"

Countless articles have been written about what makes a great law clerk. You readers are no doubt familiar with the principles. You have to be able to present yourself powerfully, in both written and verbal form; you must have great listening skills to really hear what is being said to catch important details; you must collaborate well with colleagues and foster connections with other judges and their clerks; you must work to build trust; you must be organized, resourceful, and adept at gathering materials to support and empower the desired position; you must be able to think outside the box, to move outside the norm of possibility and see the creative angle; you must be able to wade through copious amounts of information to read, absorb and distill technical and subtle details needed to resolve the matter and then to present it in a way that is understandable and compelling.

Then there’s the matter of how to push back on your judge, to prevent her from making mistakes. This means you need to speak up if you believe the judge’s tentative decision may be based on some misunderstanding as to the facts of the case or the law. Don’t let your inclination to defer interfere with performance of your job. If you plan to recommend that the judge decide the issue differently, be prepared to explain why; in fact, be prepared to defend your position as if your life depended on it.

Additionally, a good clerk is there to explore the possible ramifications of arguments — will the sky fall, and that means that a clerk’s review needs to identify those concerns and recommend which ones must be addressed and what can wait for another day. Conversely, you can’t duck an argument because it’s inconvenient.

Also, a good clerk must never lose sight of the reality that the cases they are handling are not academic, legal exercises, but rather concrete problems brought by real living, breathing individuals, whose physical, personal and financial fates depend on the outcome of the court’s decision. That means that everyone — litigants and lawyers, no matter what their standing in society or reputation in the community — is treated fairly and with respect, regardless of how bizarre a legal argument might be. It also means that the decisions are made in a timely fashion. Doesn’t a child caught up in her parents’ divorce deserve to know where she’s going to school in September? And then of course there’s the incarcerated defendant.

Cases on appeal also impact the legal community including insurance companies, government, and the business community, and any law clerk working on such a case that has potential implications beyond the immediate parties should ensure that the opinion addresses the issues in a comprehensive manner, understandable to non-parties as well as to litigants. As Chief Justice Peters used to say: “Write the opinion in language that the loser can understand. The winner will be happy and won’t care.”

So now we’re at the actual writing. It must be clear, concise, compelling and comprehensive. Think about this: the opinion must be articulated in a way that will get undecided votes, hold onto others being lobbied by contrary opinion, and help others resist the temptation to write separately. And remember, you don’t have an unlimited amount of time to craft your writing. You don’t need to impress anyone with your vocabulary, but you will need to convince people that your treatment of the case is the correct one while addressing all of the issues. You get one shot to do it all and do it right; there’s no opportunity to tell the reader what you really meant to say.

Finally, a good law clerk contributes to making his or her judge a good judge- not just look good- the law clerk must actually work to ensure that the judge is truly a good judge. This means that the judge is thoroughly prepared on the matters that come before him or her and that the cases get resolved timely. None of this should be understood to suggest that resolving cases in a timely manner substitutes for quality in the result. The bottom line is that in every case, the judge must get it right, and live with herself after the fact. A true test of that is whether the judge can look back at the opinion 5 years later and still be proud of it.

There have been many wonderful clerks at the Supreme Court. Over the years, some went on to be practitioners and even judges themselves. A few became lifers-permanent law clerks — hired by one justice and inherited by her successors. They are typically unseen except by insiders, but their mark can have generational impact.

In 2001, after eight years on the Supreme Court, I began working with a new law clerk, Michele Morris, and soon thereafter, I asked her if she wanted to clerk for me for a second year. This was not the norm. The following year I asked her if she wanted to be my permanent clerk — a new trend I started. Again, this was not the norm, but neither was Michele, whom by now I was calling Emma, after Emma Goldman, described on a poster I had in my chambers as an “anarchist and life-long agitator on behalf of liberty unrestricted by man-made law.”

Michele quickly learned my voice, helped to train future clerks, served as a mentor to clerks outside our chambers, facilitated communication and forged relationships with other chambers to reach consensus. She read opinions from other chambers with a critical eye-even editing their drafts alongside me, because I would be signing on to them. We were like a well-oiled machine. We grew to trust one another, which meant that we each knew if one of us said something that the other one didn’t get, to not give up or give in until both of us found clarity.

And Michele mastered the hardest task of all — managing me. Sometimes she succeeded in getting me to exercise self-control, sometimes she could not (see e.g., State v. DeJesus, 288 Conn. 418, 547 (2008); State v. Mungroo, 299 Conn. 667 (2011). But hers was the voice I always heard, and my husband would tell you the only one I ever listened to.

After I left the bench, Michele eventually became an “unassigned permanent clerk,” which gave her increased opportunity to train law clerks from other chambers, setting the gold standard by which all were measured. As another long-time permanent clerk Jonathan Weiner remarked: “There was no better mentor for a term law clerk to have, and no greater resource for a Justice, permanent law clerk, or staff attorney to have available in puzzling through a difficult point of law, or even to just find the best way to say something in an opinion or memo.” And as Justice McDonald learned from Michele, “before you become a better writer, you have to become a better thinker.”

Michele retired earlier this month and will be spending her remaining time at home with her beloved husband Jim and their dog Cooper. The Supreme Court will of course carry on. Even the loss of Chief Justice Peters demonstrated that institutions survive. But as opposed to a Justice whose name is associated with opinions, and whose career is celebrated (witness all the retirement events for judges), let us not forget the great law clerk who, behind the scenes, leaves tracks, leaving the world a little better for having lived. (RBG)

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/08/07/a-former-high-court-justices-tribute-to-a-great-law-clerk-and-friend/], reprinted by permission.