A fine article on the role of clerks

I don’t often re-post materials posted on How Appealing, on the assumption that anyone into appeals enough to read my modest little blog must also be reading his. (And you should be if you ain’t.)

But here’s an article worth making an exception for, despite its snoozy title: “The Management of Staff by Federal Court of Appeals Judges,” by Duke law professor Mitu Gulati and CA7 judge Richard Posner.

The article is explains how federal appellate judges use clerks, permanent clerks, secretaries, and staff counsel. It describes a standard model and then describes common variations from the model, and its based on about 20 in-person interviews of judges, plus another about 50 phone interviews.

For anyone who practices regularly in federal appeals — especially the many appellate practitioners who did not clerk for federal appellate judges themselves  — this article sheds very useful light on how cases get decided.

Even as a former appellate clerk myself, I have to actively resist the habit of thinking of the judges as the only audience for my briefs. Maybe those judges have seen cases like yours by the dozens, but their clerks haven’t, especially for cases where the briefing is completed in the fall and winter. And, conversely, those clerks often are very adept at spotting your who-cares Bluebook errors.

A brief-writer who ignores the role clerks will play in deciding her case reduces her chances of winning.