The Value of Clerking, Part N+1: Learning What Doesn’t Happen [guest post]

This is a guest post by David Goodwin.

Clerkships are a valuable learning experience for new attorneys, and the “why” is often summed up like so: “You get to see how the sausage is made.” That’s absolutely true. Learning how judges make their decisions, or what kind of arguments tend to take wing—these are all helpful skills to have and will stay with you throughout your career.

But also important is learning what doesn’t happen, how courts don’t work, and how judges don’t act. Sausage-making isn’t always The Jungle.

Humans are hard-wired to see patterns, even where none exist. For litigators and parties, this often translates into a need to assign reasons to the litigation process. Why did the judge do X? Why was I asked that question? Or the absolute, undisputed classic: why is everything taking so long? The case—your case, the thing you’ve been laboring over, the star at the center of all constellations—is at the forefront.

Seeking answers is a perfectly normal response. But we also tend to want those answers to have some grounding in substance. The judge asked that question because she was troubled by an issue in the case. The scheduling order was delayed because the panel was divided on whether to grant extra time. My appeal is taking so long to get decided because the issues are deeply complex, or the judges are struggling with the right outcome, or the court is trying to reconcile dangling threads of precedent.

Sometimes these guesses would be correct. Often, though, they are wrong.

One of the valuable lessons instilled through clerkships is that, sometimes, things just happen. Judging is a job. Courts are workplaces like any other. There are thousands of motions and merits decisions flying around. Things take a long time all the time, for no reason at all other than work and triage and (on occasion) someone just absolutely forgetting.

I remember once idly Googling the parties in a case only to find a forum thread dedicated to piecing together the hints and clues on the docket. A judge dropped out between the motions stage and the merits stage; he must have had a conflict! (Actually, you just happened to get a merits panel that included two judges from the motions panel.) These random letters on the word-limit order signal what track the appeal is on! (Actually, those are the case manager’s initials.) The delay between the case being submitted and the decision coming out means something! (It could, but it could also just mean that . . . things are taking a while, or someone’s slow with getting the vote in, or the clerk assigned to the case is also working on a 78-page RMBS opinion and you’re assigned a low priority.)

Realizing that there isn’t always a “substance” reason for the things that courts do is an extremely valuable thing to know. But perhaps even more than the other experiences during a clerkship, it can be a hard thing to retain once you’re back in the real world. The random things that happen begin again to seem significant.

A client asked, a few days ago, why the court was sitting on her appeal.  I had predicted a decision would come out in about 3 to 4 months, but 6 months later and all was crickets and tumbleweeds. She wanted to know: Was it a good sign? A bad sign? We had raised a tricky issue of law at oral argument; maybe we were winning on that point?

I said I didn’t know. It could mean something, but it could also not mean anything. It’s summer. The authoring judge could be on vacation. The clerk assigned to the case could have other work.

I guess we’ll find out when the decision is handed down.

(My suspicion is that the intrigue-to-mundane-reason ratio is a bit higher at the Supreme Court, where each question is thought to be exquisitely targeted and calculated and revealing, and delays through the end of the term often do mean something. But as in most things, the Supreme Court is an outlier, and I wouldn’t be surprised if clerks in that particular marble palace shake their heads at some of the tea-leaf reading that goes on in the media.)