Herr, David F.

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Supervised Judicial Clerkships: A Valuable Clinical Experience

Mitchell Hamline School of Law

William Mitchell Law ReviewVolume 9 | Issue 1 Article 51983Supervised Judicial Clerkships: A Valuable ClinicalExperienceDavid F. HerrFollow this and additional works at: http://open.mitchellhamline.edu/wmlrThis Article is brought to you for free and open access by the Law Reviewsand Journals at Mitchell Hamline Open Access. It has been accepted forinclusion in William Mitchell Law Review by an authorized administratorof Mitchell Hamline Open Access. For more information, please contactsean.felhofer@mitchellhamline.edu.© Mitchell Hamline School of LawRecommended CitationHerr, David F. (1983) "Supervised Judicial Clerkships: A Valuable Clinical Experience," William Mitchell Law Review: Vol. 9: Iss. 1,Article 5.Available at: http://open.mitchellhamline.edu/wmlr/vol9/iss1/5SUPERVISED JUDICIAL CLERKSHIPS: A VALUABLECLINICAL EXPERIENCEDAVID F. HERRtA major trend at contemporag law schools is to provide law studentschni'cal experience. The author examines the Judicial Internship Pro-gram ofered at William Mitchell College of Law and concludes that theclin'c provides the student particiant practical knowledge of a trialcourt 's operation that would otherwise take several years ofpracticing lawto obtain.I. INTRODUCTION ....................................... 151II. BACKGROUND ......................................... 151III. EDUCATIONAL GOALS OF THE CLINIC ................ 152IV. ORGANIZING THE CLINIC ............................. 154V . CONCLUSION .......................................... 156I. INTRODUCTIONWilliam Mitchell College of Law has offered a Judicial InternClinic for ten semesters. This course, part of a clinical program ofgreat depth and variety,' has been well received by students andparticipating judges alike. 2 The course offers unpaid judicialclerkships with state and federal judges under faculty supervision.This Article explains the goals of the clinic and the organization ofthe class.II. BACKGROUNDThe Judicial Intern Clinic at William Mitchell is not a uniqueprogram. Clinical judicial clerkships have been a part of thet Adjunct Clinical Professor of Law, William Mitchell College of Law; Attorney,Maslon Edelman Borman & Brand, Minneapolis, Minnesota.1. Among the clinical courses offered at William Mitchell in the 1982-83 school yearwere: Administrative Law Clinic, Attorney General Clinic, Bankruptcy Clinic, Civil Liti-gation Clinic, Corporate Practice Clinic, Criminal Appeals Clinic, Estate Planning Clinic,Family Law Clinic, Legal Services to Minnesota Prisoners Clinic, Legislation Clinic,Mental Health Clinic, Misdemeanor Clinic, Public Interest Law Clinic, Tax Clinic,United States Attorney General Clinic, and Workers' Compensation Clinic.2. In a 1974 survey of federal judges, student judicial intern programs were unani-mously recommended as worthwhile. See Weinstein & Bonvillian, A Part-time Clerkship Pro-gram in Federal Courts for Law Students, 68 F.R.D. 265 (1976).1Herr: Supervised Judicial Clerkships: A Valuable Clinical ExperiencePublished by Mitchell Hamline Open Access, 1983WILLIAM MITCHELL LAW REVIEWAmerican law school curriculum since at least the early 1960's.3Nonetheless, the use of judicial clerkships as a part of the clinicaleducation of prospective attorneys has not been widespread.4The program at William Mitchell involves both classroom andin-court experience, and is supervised both by the judges involvedand the course instructors,5 as well as the director of the WilliamMitchell Clinical Program. Thus, the students involved in thiscourse are provided with a number of persons who can provideassistance if requested.III. EDUCATIONAL GOALS OF THE CLINICThe educational premise which underlies this clinical class is therecognition that a judicial clerkship is beneficial to students. Onecourt has observed:A judicial clerkship provides the fledgling lawyer insight intothe law, the judicial process, and the legal practice. The associ-ation with law clerks is also valuable to the judge; in addition torelieving him of many clerical and administrative chores lawclerks may serve as sounding boards for ideas, often affording adifferent perspective, may perform research, and may aid indrafting memoranda, orders, and opinions.This general knowledge and experience is an invaluable assetto the law clerk and his subsequent utilization of the knowledgeis to be encouraged.6The opportunity to obtain judicial clerking experience while inlaw school is a valuable one to the students involved. Many stu-dents take one, two, or even three years following graduation togain the experience of a judicial clerkship. Although the experi-3. See Casad, The Kansas Tra/Judge Clerkshtp Program, 18 J. LEGAL ED. 75 (1965);Peden, Obtaining Courtroom "Know How" TheJudizciaAssstanceship Program at the Universt'ty ofLouisville, 12 J. LEGAL ED. 431 (1960).4. A 1979 survey of clinical legal education is found in the United States Council onLegal Education for Professional Responsibility, Inc., SURVEY AND DIRECTORY OFCLINICAL LEGAL EDUCATION 1978-1979, 1-20 (1979).5. This clinical course has been taught continuously by the author and Rebecca L.Rom, Adjunct Clinical Professor of Law, William Mitchell College of Law, and attorney,Faegre & Benson, Minneapolis, Minnesota. Both the author and Ms. Rom served as lawclerks prior to teaching. Mr. Herr clerked for the Hennepin County District Court, inMinneapolis, during law school and Ms. Rom clerked for the Honorable Miles W. Lord,Chief Judge, United States District Court for the District of Minnesota, following gradua-tion from law school. The author wishes to express his appreciation for the cooperation ofMs. Rom in the development of the clinical program and in the preparation of thisArticle.6. Fredonia Broadcasting Corp. v. RCA Broadcasting Corp., 569 F.2d 251, 255-56(5th Cir.) (citation omitted), cert. denied, 439 U.S. 859 (1978).[Vol. 92William Mitchell Law Review, Vol. 9, Iss. 1 [1983], Art. 5http://open.mitchellhamline.edu/wmlr/vol9/iss1/5SUPERVISED JUDICIAL CLERKSHIPSence gained in the shorter period of one semester is not quantita-tively as great, the clinic offers many students an opportunity toview and participate in the judicial system in a manner whichwould otherwise be unavailable to them.One of the goals of the Judicial Intern Clinic is to involve stu-dents directly in the observation of, and even participation in, ajury trial. The need for this type of experience has been under-scored by numerous critics of traditional legal education. 7 Eachstudent is required to attend all proceedings in one jury trial, fromjury selection to verdict. In addition to attending a jury trial, stu-dents are expected to observe a wide variety of judicial activity,including criminal appearances, arraignments, pleas and sentenc-ings, presentation of civil pretrial motions, pretrial conferences andsettlement conferences, and chamber discussions between thejudge and the judge's full-time law clerks. Students participate indiscussions of the judge's opinions and help prepare drafts ofbench memoranda or opinions.The clinic attempts to foster the educational development of thestudent in a number of areas. An understanding of the ethicalobligations and limitations on judges and their courtroom staff isfundamental. Completion of the course in Professional Responsi-bility is a prerequisite of the Judicial Intern Clinic. The clinic isintended to hone the skills of the law student towards his or herultimate role as an advocate for a client. It focuses the student'sattention on the role of the lawyer in judicial decision making, andattempts to teach the student how a lawyer's efforts may be bestdirected toward advocacy of a client's cause.The clinic's goal is a greater understanding of the judicial sys-tem and its role in dispute resolution in our society. The societalneeds for dispute resolution and the courts' success in meetingthose needs are discussed repeatedly throughout the semester. Therole of judges in facilitating settlements of disputes without trial isalso examined.7. See JUDICIAL CONFERENCE OF THE UNITED STATES, Final Report of Committee toConsider Standards for Admission to Practice in the Federal Courts (Sept. 19-20, 1979) [DevittCommission Report], reprinted in 83 F.R.D. 215 (1980). Senior Judge Edward J. Devitt,United States District Court, District of Minnesota has been a participant in the JudicialIntern Clinic, and has made numerous helpful suggestions in how the clinical experienceof the law students can be improved, for which the author is grateful. Judge Devitt hasvigorously supported the improvement of the teaching of advocacy skills in law schools.See, Devitt, Why Don't Law Schools Teach Law Students How to Tgy Law Suits?, 29 CLEV. ST.L. REV. 631 (1980).198313Herr: Supervised Judicial Clerkships: A Valuable Clinical ExperiencePublished by Mitchell Hamline Open Access, 1983WILLIAM MITCHELL LAW REVIEWIV. ORGANIZING THE CLINICThe Judicial Intern Clinic meets four or five times during a se-mester. The first class is devoted exclusively to organizational andadministrative matters, including a preliminary discussion of therole of the law clerks in the local courts. A general discussion ofthe ethical responsibilities of law clerks is held at that time, al-though the primary discussion of ethics and professional responsi-bility takes place at the following class.The first assignment given to the students is a request for a fivepage paper on the subject of the ethical obligations of a law clerk.8We specifically require the student to read the Canons of JudicialConduct, as well as the Code of Professional Responsibility asadopted in Minnesota. One entire class period at the beginning ofeach semester is devoted to the discussion of the ethical aspects ofthe activity in which students are about to embark. Cases relatingto law clerks are reviewed in this class. 9 Ethics is a topic for discus-sion throughout the semester.10 In addition to the ethical require-ments relating to confidentiality, the practical importance ofconfidentiality to the judges is emphasized to the students. Inmany cases, confidentiality appears to be the single factor judgesdeem most important in considering whether to participate in theprogram.During the first class students are asked to fill out a sheet con-taining certain biographical and educational background informa-tion. A formal resume is required a week later, which is used inthe assignment of students to the particular judges. The programis not elitist-all students who have completed the course in Pro-fessional Responsibility may participate. The only other require-ment is that a student be in good standing scholastically. Nograde, class standing, or similar requirements govern the assign-ment of a student to a judge. Similarly, judges are not permittedto "select" students from the pool of students.8. This paper is used as a writing sample available to participating judges uponrequest.9. See, e.g., Fredonia Broadcasting Corp. v. RCA Broadcasting Corp., 569 F.2d 251(5th Cir.), cert. denied, 439 U.S. 859 (1978); Kennedy v. Great Atlantic & Pac. Tea Co., 551F.2d 593 (5th Cir. 1977).10. Chief Justice Warren Burger has called upon the law schools to increase their rolein the inculcation of ethical standards in aspiring lawyers. See, Burger, The Role of the LawSchool in the Teachtig of Legal Ethics and Professional Responsibility, 29 CLEV. ST. L. REv. 377(1980).[Vol. 94William Mitchell Law Review, Vol. 9, Iss. 1 [1983], Art. 5http://open.mitchellhamline.edu/wmlr/vol9/iss1/5SUPERVISED JUDICIAL CLERKSHIPSAfter evaluating the student demand for the class"i judges arecontacted to determine their interest in participating. Upon as-signment of a student to a judge, a meeting is held between thestudent, the judge, any of the judge's regular staff, and at least oneof the instructors for the class. The purpose of this meeting is toensure that the judge, student, and instructors understand theirrespective obligations and expectations and are aware of whateach is required to do.The judges participating in the program are asked to permit thestudent to participate in chamber discussions, to discuss matterspending before the court with the students, and to provide the stu-dents with some insight into the actions taken by the judge. Thejudges are not asked to participate directly in the grading of stu-dents, although each judge agrees to return an evaluation whichforms one of the bases for grading. The judges are not asked tokeep track of a student's hours. The student is expected to keep hisor her hours essentially on an "honor system" basis.12 Each judgeis asked, however, if there is any reason to doubt the student's re-port on the number of hours devoted to court-related activities.Each judge is also advised that the student will be expected tosubmit the written work done for the judge to the course instruc-tors at the end of the semester. Each judge agrees to give the stu-dent at least one major writing project during a semester. Inpractice, most students write on many more projects of varyinglength and complexity.In addition to the written work for the judge, the students areasked to prepare two documents for this class: monthly reports anda daily diary. The monthly reports are to be addressed to thejudge to whom the student is assigned and to both of the instruc-tors. This monthly report is to set forth, in summary fashion, theactivities of the student during the previous month, including theapproximate number of hours involved, types of projects, andother significant facts. Each student is required to deliver thesereports to the judge during the first week of the month. The dailydiary kept by the students is devoted to more subjective commentsand observations.11. This has become a perfunctory exercise because the clinic has had a good responsefrom the student body. The class has been filled to its capacity of fourteen students everysemester since the first semester and there is a full waiting list.12. The student may take the course for either two or four credits requiring, respec-tively, 96 to 192 hours devoted by the student to the course.198315Herr: Supervised Judicial Clerkships: A Valuable Clinical ExperiencePublished by Mitchell Hamline Open Access, 1983WILLIAM MITCHELL LAW REVIEWOnce the students have been assigned to judges, three or fourclass periods, spaced approximately every three weeks, are held todiscuss the experiences of the students in court. In addition, theinstructors meet with each student individually at mid-semester toreview the written work of the student and to verify that the stu-dent is experiencing an appropriate variety of judicial activities.The primary purpose of the class discussions is to expose the stu-dents to the differences between the state and federal judicial sys-tem and the varying approaches to judicial decision making usedby different judges. The willingness of judges to discuss their deci-sions with the interns, the extent to which the judges review theattorneys' briefs and materials prior to hearings, the willingness todecide issues summarily, the approach toward settlement and in-volvement in settlement discussion, the judge's methods of helpinga jury to understand the court proceedings, and the judge's inter-action with the attorneys are all topics which provoke discussion.Additionally, the quality of attorney presentations and the widelydivergent approaches to advocacy used by litigation attorneys ap-pearing in court is a subject which repeatedly is brought up bystudents.V. CONCLUSIONThe clinical experience of supervised judicial clerkships is valua-ble for student participants. Specifically, the clinic enhances thestudents' legal education in the following areas:1. Understanding the ethical responsibilities of judgesand attorneys;2. First-hand experience in the judicial process;3. An opportunity to examine, and discuss, the role ofjuries, trial judges, and trial courts in resolving societaldisputes;4. An opportunity to observe, discuss with the trialjudge, and discuss in class the trial techniques and tacticsof trial attorneys; and5. An opportunity to write bench memoranda or draftopinions.The judges participating in the program have been eager to con-tinue their participation, and the students have uniformly indi-cated that this clinic was one of the more valuable courses takenduring their legal education. Because of the ease of administrationof the program and the significant benefits derived from it by the[Vol. 96William Mitchell Law Review, Vol. 9, Iss. 1 [1983], Art. 5http://open.mitchellhamline.edu/wmlr/vol9/iss1/51983] SUPERVISED JUDICIAL CLERKSHIPS 157participating students, greater use of this clinical education tool iswarranted.7Herr: Supervised Judicial Clerkships: A Valuable Clinical ExperiencePublished by Mitchell Hamline Open Access, 1983

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Supervised Judicial Clerkships: A Valuable Clinical Experience

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