I spent the rest of my first day in chambers with Janet Lee, the outgoing clerk that I would be replacing. Janet, whom I had briefly met when I interviewed with the judge, was also originally from New York, although she had gone to law school out here in California, at Stanford. She was now moving back to New York to work at Wachtell Lipton.
After reviewing the general workings of the Ninth Circuit with me, Janet described my specific duties as a clerk. They could be divided up into three broad areas.
First, in advance of each “calendar,” or one-week period in which Judge Stinson would hear cases, I would help the judge get ready for the oral arguments. This would involve writing a “bench memorandum,” a memo summmarizing the facts and legal issues of a case and offering a recommendation for how the case should be decided, and preparing a “bench book,” a binder containing the memo and various key documents relevant to the case. (Janet referred to the making of the bench book — which involved highlighting the documents, putting them in a particular order, and sticking colorful tabs all over them — as “arts and crafts.”) I would also meet with the judge to discuss the cases orally during “review week,” namely, the week immediately prior to the calendar week.
“Here’s one thing you must remember,” Janet said. “When you first get a new case, you need to make sure the court has jurisdiction to hear the case. Judge Stinson is very particular about jurisdiction.”
I knew this from having talked about it with the judge during my interview and from the judge’s writing in the area. Jurisdiction concerns the court’s authority to hear a particular case. There are all sorts of reasons, some of them quite technical, as to why a court might lack jurisdiction — and if there’s a “jurisdictional defect,” the case must be dismissed.
As an example, Janet mentioned cases in which the notice of appeal — the statement by the losing party in the trial court that it plans to appeal — was filed too late with the court. If the notice of appeal was not timely filed, the appeals court can’t hear the case; it must dismiss the appeal for lack of jurisdiction.
Second, after the completion of each oral argument calendar, I would work with Judge Stinson on the opinion in the case. How much work this would involve would vary depending upon the judge’s role in the case — writing the majority opinion, dissenting, or merely offering editorial suggestions on the opinion of a colleague — and whether the opinion was published or unpublished. Published opinions constituted official precedents of the Ninth Circuit, which would bind the court in future cases, and they tended to be formal and polished pieces of writing; unpublished opinions, which just disposed of the case at hand, tended to be short and even cryptic at times.
Third, I would assist Judge Stinson in dealing with “en banc” matters, an area where the judge was fairly active. This would involve reviewing the opinions generated by other Ninth Circuit three-judge panels to see if they were problematic (e.g., inconsistent with Ninth Circuit or Supreme Court precedent); if so, the judge might want to call for rehearing en banc, i.e., rehearing by a larger group of judges. Working on en banc matters with the judge included advising her on which cases to call en banc, helping her issue en banc calls (which involved drafting a “call memo” explaining why the case should be reheard), and also defending the judge’s own opinions against en banc calls from other colleagues. Because Judge Stinson tended to be more conservative than many of her Ninth Circuit colleagues, she participated actively in the en banc process, either calling for rehearing in cases where the panel reached a result she viewed as unjustified (read: unacceptably liberal), or defending her own opinions against the en banc calls by her ideological opponents (judges like Sheldon Gottlieb and Marsha Barzun).
In the final part of the orientation, Janet reviewed with me the specific cases that I was inheriting from her. I was stuck my how many different areas of law they involved — criminal procedure, sentencing, intellectual property, bankruptcy, immigration — and all the different procedural stages there were at. It felt overwhelming to me; I was fresh out of law school, not yet admitted to the bar (I sure hoped I had passed the bar exam), and unfamiliar with several of these subject-matter areas.
“I’ve never taken intellectual property or immigration law,” I confessed to Janet. “Is that going to be a problem?”
“You’ll figure it all out,” she said. “Read the briefs, read the cases, do some extra background reading in treatises if you have to.”
“And I can always go to the judge with questions, right? She must know all these areas cold by now.”
Janet paused, then nodded.
At the end of the orientation, Janet presented me with a document entitled “Janet Lee Departure Memo,” which summarized the training she had given me and information about the specific cases I was picking up from her.
“This memo contains pretty much what you need to know,” Janet said. “You’ll have to prepare a similar departure memo when you finish the clerkship. The judge is big on clerks training their successors.”
“Thanks! This looks great,” I said, thumbing through the hefty document. “And can I call or email you with questions too?”
Janet paused again. Was she frowning?
“Well,” she said, “I’m going to be pretty busy once I get to Wachtell….”
I could tell she was looking for a graceful out, so I quickly jumped in.
“Oh, I totally understand. I hear the hours there are brutal. Do you think you’ll miss clerking?”
Again, another pause, accompanied by pursed lips.
“I’ve learned a lot from working here,” said Janet in a careful, measured way, “but I’m ready to move on. And to collect a salary with another zero in it!”
We both laughed. Even within the world of high-paying New York law firms, Wachtell was known for paying especially well.
Janet slung her handbag over her shoulder and extended her hand for a farewell handshake. No hug (which was fine with me; I’m not a fan of physical displays of affection).
“I think you’ll find clerking for Judge Stinson to be very interesting,” Janet concluded. “Good luck.”