By Ariel Shuster[1]
This article is not intended to tell you what you must do to get a clerkship, nor can it inform you of the precise background that will land you the position. The reality of the situation is that clerkships are highly coveted, the spots are limited, and what may get one candidate the position over another can be extremely nuanced. There is no creating the perfect resume and there is no formula for attaining a clerkship. The goal is for this article to shed light on the general hiring preferences of some of the judges and career law clerks in the Northern District of New York as well as provide thoughts and advice from current term law clerks that will allow you to apply for clerkships in a more knowledgeable manner. The main idea is that if you are currently in practice, or you are considering going into practice right out of law school, your chances of clerking are not lost. Rather, judges and career law clerks prefer applicants who have work experience.
The article will begin with an explanation of the clerkship hiring process in general. Then, the article will focus on what judges and career law clerks in the Northern District of New York are looking for from term law clerk applicants. The piece will end with a review of experiences from current term law clerks.[2]
I. The Clerkship Application and Hiring Process
Although every chambers is run differently, the hiring process for all clerkships is relatively the same. Most judges post their positions on OSCAR, the Online System for Clerkship Application and Review, which was created in 2005 to streamline the clerkship application process.[3] OSCAR allows an applicant to upload their resume, cover letters, transcripts, writing samples, and any additional materials requested by the judge.[4] OSCAR also allows recommenders to upload their letters of recommendation directly to the website. Applicants cannot upload their own letters of recommendation. Access to OSCAR opens in June following a law student’s second year of school.[5] It is highly recommended that if you have not used the website before, you take time to learn about it, especially the process for obtaining letters of recommendation and the timeline for creating an account and submitting applications. Although a position may be posted on OSCAR, be mindful of the application methods listed: some judges require e-mail or postal mail applications. Additional resources for clerkship openings include the United States Courts’ website and a court’s individual employment page.[6] Some judges or courts may also circulate a job posting to your law school.
After submitting your application materials, you will rarely, if ever, be contacted by chambers to confirm receipt. You will likely be contacted only if you are offered an interview. If you have gotten an interview, chambers has deemed you qualified for the position, but they want to know whether you would work well and get along with chambers. Chambers will want to know about your work ethic, what you like to do for fun, and how you would feel about moving, should the clerkship location be different from where you reside. Every person being interviewed is smart, driven, and qualified. An interview is your opportunity to set yourself apart from the rest. Do not be afraid to speak about more than just your legal work experiences.[7] It may also benefit you to reach out to past law clerks who have worked for a judge prior to the interview to gain an understanding of how the judge runs their chambers.
II. Thoughts from Judges and Career Law Clerks in the Northern District of New York
When discussing an ideal term law clerk applicant, the sentiment from the judges and career law clerks was the same: they prefer applicants with experience. Almost all of the judges and career law clerks stated a strong preference for hiring a term law clerk who has practiced or clerked prior to the clerkship. To be sure, they all stated that they do not and would not exclude applicants who are applying directly from law school.[8] If an applicant is applying directly from law school, chambers wants to see experiences on a resume that could rival the work of a first- or second-year attorney.
What experiences are the most ideal? The answer to this question was not always the same but had a common theme: hands-on litigation or judicial experience. The judges and career law clerks listed examples such as drafting a complaint, drafting and arguing a motion, taking a deposition, and drafting jury instructions. The ideal candidate was “in the trenches” of litigation and has experience “writing with raw material and assimilating the material into submissions to a court.”[9] Writing is critical to a law clerk’s job, and it is important to highlight your experiences in research and writing. This does not preclude you from applying if you have done primarily document review at a law firm, or if you were in criminal practice conducting hearings that did not require a lot of writing. All this means is that you must address in your cover letter what value you could bring to chambers, such as understanding the discovery process or criminal proceedings. You should still take great care to emphasize any substantive writing experience you do have. One writing experience that the judges look for is law review experience. Whether you were on law review is not dispositive, but it is beneficial and looked upon favorably.[10] It is also inevitable that your research and writing skills will improve during a clerkship, but it is important to communicate to chambers that you already have a base of knowledge that would allow you to start off strong. It is okay to communicate that you want to increase your skills but be mindful not to come off as if you are hoping the clerkship will teach you how to research and write.
Next, each interviewee stated that federal practice would be more helpful than state practice but that working on cases at the state level would still be useful. Ideally, a candidate could sit in chambers and already know what it means when the judge or the career law clerk is discussing a motion to compel, interrogatories, depositions, or trial procedures. There is also immense value in applicants who have practice experience in areas of law that are different from the judge’s experience. The idea is to create a well-rounded chambers where the members are complementary to one another. For example, Judge D’Agostino had a successful personal injury defense practice before taking her position on the bench, so an applicant with a background in business, technology, or complex commercial cases would be beneficial.[11]
Judicial internships were also highly encouraged. Very often, the term law clerks that the judges hired who came directly from law school had a judicial internship, if not multiple, on their resume. Not only does an internship allow a law student to understand how a chambers is run, but it provides practical research and writing experience. The key to benefiting from an internship is to make the most of it. There is immense value in a judicial internship and if you are able, you should try to make the internship last as long as possible. It would be prudent to work on different decisions concerning different areas of law, observe proceedings from different judges, read the docket before observing a proceeding, talk with other interns about their experiences, and, most importantly, take your time with writing. The more time you put into drafting your assignment, the better your research and writing skills will be. In turn, the more glowing your letter of recommendation for a clerkship might be.
A judicial internship will also provide a glimpse into the realities of a clerkship: you will be sitting at your desk, by yourself, researching and writing 98% of the time. Of course, as a term law clerk, you observe proceedings and engage in discussions with the other law clerk(s) and the judge. But even during a trial, the law clerk assigned to the case might be researching an evidentiary issue for the judge or drafting a Decision and Order in another case. Ideal candidates have a genuine, intellectual interest in what a term law clerk does every single day. A term law clerk must be comfortable with writing a twenty-to-fifty-page term paper every week.
What do the judges not want to see from applicants? Universally, the one thing judges and career law clerks mentioned that would hinder an applicant and make for a poor law clerk is a lack of flexibility. A term law clerk position is not one where you are trying to rewrite history or make new laws. Often, law clerks use stock language that chambers has honed over time when discussing black-letter law or legal standards. A term law clerk has to subscribe to how a chambers functions and the way it writes its decisions. This idea of flexibility and originality was discussed in terms of whether an applicant could be in practice for too long that they would no longer be an ideal candidate. The response was that there is no cut-off for when it is appropriate to be a term law clerk. However, it is possible that the longer someone is in practice, the more rigid their mentality becomes. A clerkship requires a high level of intellectual malleability. A law clerk cannot be averse to criticism, and it is important to be willing to engage in a discussion of ideas. If an applicant has been in practice for many years, it is important to directly address a career shift in the cover letter.
Do you have to be from the Northern District of New York, or intend to remain here, in order to clerk here? No judge or career law clerk will toss your application to the side because of a lack of connection to the area. With that being said, every judge and career law clerk noted that it would be a plus if you have connections to the area and/or have an intention to remain in the area after a clerkship.[12] It is seen as a positive if chambers is taking the time to train a law clerk, for that law clerk to then practice in the area and bring good lawyering before the Court. Term law clerks who are from the area or wish to stay also appear to be generally more engaged during their clerkship because they want to form connections with the litigants and community. If you have no connection to the area, be upfront about it in a cover letter and convince chambers that if it were to make an offer, you are going to accept and come to the Northern District of New York. The bottom line is that if you are miserable living where the clerkship is located, neither you nor chambers will enjoy the term. You should research the area surrounding the Court and decide if you are truly willing to move and make an effort to engage with the Court and the community.
In sum, take your time in deciding whether a clerkship is right for you and work to gain valuable experiences to set yourself up for success in the application process.
III. Experiences of Term Law Clerks
The purpose of speaking to current term law clerks was to understand the experiences they had in practice that were beneficial to their clerkship and what the biggest challenges of their clerkship have been. Each of the seven term law clerks practiced in New York City prior to clerking. Each was in private practice, but at various size law firms from boutique to international law firms. The key takeaways from their time in practice are understanding the realities of discovery and litigation and feeling confident in their research and writing. They entered their clerkships knowing how to quickly research a topic, ask the right questions, differentiate between a small or big issue in a case, and interact in a professional setting. They also understood the value in criticism and knew not to take things personally.
In terms of the challenges that they have faced, the overall sentiment is that clerking is like drinking from a fire hose. There is a high level of independence involved in a clerkship and there is very little hand-holding. A term law clerk often drafts entire decisions with edits from the career law clerk and the judge. Those decisions may be in areas of law you have never seen or heard of before. In terms of areas of law that were new to the term law clerks and which required more time to become an expert in, the term clerks mentioned pro se litigation,[13] particularly 42 U.S.C. § 1983 actions and 28 U.S.C. § 1915 review, and Social Security cases. They also mentioned a small learning curve in terms of the rules and procedures concerning Report-Recommendations and Orders versus Decisions and Orders.[14]
Most of the term law clerks also noted the increased stress that comes with trying to write a decision with the correct conclusion. In practice, the arguments that an attorney must make are those in favor of the client. In some ways, this makes things easier, because the attorney is focusing primarily on the specific cases that are good for their side. As a term law clerk, there are no sides. A law clerk must review every single aspect of the applicable law and determine the legally correct answer. It takes a lot of time to learn when enough is enough in terms of research and to feel confident in making a conclusion. It also takes time to understand where judicial discretion begins and ends.
As for advice to students who are thinking about practicing before clerking, or to individuals currently in practice, the term law clerks all agreed that if you have any desire to clerk, you should do it. They spoke very highly of their time in practice and felt that their practice experience made their clerkships better. They advised not to get discouraged by the process if clerking is really what you want to do. They also noted the importance of developing relationships with senior associates and partners at a law firm because their letters of recommendation may be what sets you apart in your clerkship application.
Most, if not all, law firms value clerkship experience. Many firms will allow a new associate to defer their start date for one year to allow the individual to clerk. Engage in a frank discussion with the law firm about whether they would allow a deferment of your start date and prefer you to clerk before starting or would want you to work at the firm for a year or two before clerking. Additionally, be mindful of a law firm’s policies on pay and bonuses in relation to a clerkship if finances are a factor in your determination. Some law firms will not include clerking for a U.S. Magistrate Judge as a clerkship that gets you a bonus or pay increase. Some law firms limit a clerkship bonus to those who have clerked for a state’s highest court, or a U.S. District Court Judge, Circuit Court Judge, or Supreme Court Justice. Each term law clerk could not emphasize the value of clerking enough, and would encourage anyone who is considering a clerkship to apply.
IV. Conclusion
Clerking drastically increases research and writing skills and provides invaluable insight into the inner workings of chambers. There is no information that can be given that will ensure that you land a clerkship because clerkships are highly competitive and extremely difficult to obtain. If you put in the time and effort to gain helpful experiences and personal letters of recommendation, and you are willing to be flexible, it can work out.[15]
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[1] Ariel Shuster is the term law clerk to a United States magistrate judge in the United States District Court for the Northern District of New York. This article is intended to be informational and does not express any views of the United States District Court for the Northern District of New York, where the author is employed.
[2] The information in this article is premised on conversations with numerous Northern District of New York judges, career law clerks, and term law clerks. Approval for this article was obtained from all participants prior to publication. The participants included: Chief Judge Brenda K. Sannes and her Career Law Clerk, Stephanie Reagan; Reg Miller, Career Law Clerk, and Jeffrey Intravatola, Term Law Clerk, to District Judge David N. Hurd; Michael Langan, Career Law Clerk to District Judge Glenn T. Suddaby; District Judge Mae A. D’Agostino; District Judge Anne M. Nardacci and her Term Law Clerks, Jay Wexler, Karen Zwickel, and Amella Viso; Joshua Bean, former Term Law Clerk to Senior District Judge Lawrence E. Kahn; Andrew Scampoli, Term Law Clerk to Senior District Judge Gary L. Sharpe; and Magistrate Judge Daniel J. Stewart and his Career Law Clerk, Gerald Rock.
[3] See Aaron L. Nielson, The Future of Federal Law Clerk Hiring, 98 Marq. L. Rev. 181, 196 (2014) (citation omitted).
[4] See OSCAR, https://oscar.uscourts.gov/ (last visited June 3, 2023).
[5] See OSCAR, https://oscar.uscourts.gov/federal_law_clerk_hiring_pilot (last visited June 3, 2023); see also Law Clerk Hiring Plan Extended, U.S. Courts, (Nov. 12, 2012), https://www.uscourts.gov/news/2020/11/12/law-clerk-hiring-plan-extended.
[6] See Search Judiciary Jobs, U.S. Courts, https://www.uscourts.gov/careers/search-judiciary-jobs (last visited June 3, 2023); Employment, U.S. Dist. Ct. for the N.D.N.Y., https://www.nynd.uscourts.gov/employment/ (last visited June 3, 2023).
[7] A prior N.D.N.Y. term law clerk, with good grades and a judicial internship, had played water polo, which, during the hiring process, attracted the attention of the career law clerk who had also played the sport. In addition, the hiring judge valued applicants who played team sports. This example shows that what may set you apart from other applicants may be something that is non-work-related, but which provides insight into your work ethic and ability to be part of a team.
[8] Reg Miller, District Judge Hurd’s Career Law Clerk, stated that chambers prefers to hire one law clerk who is in practice and another law clerk who would be coming directly from law school, in order to gain a diversity of perspectives. A number of term law clerks currently clerking in the Northern District of New York came directly from law school, including the author of this article.
[9] Phone Interview with Stephanie Reagan, Career Law Clerk, U.S. District Court for the Northern District of New York (Apr. 7, 2023).
[10] In a 2006 survey of federal district court judges, and of 311 responses, “[s]lightly over 70% of the judges considered service on a law review and roughly 20% considered it first or second in importance. Similar percentages were given to the quality of the writing sample submitted by a candidate.” Todd C. Peppers, Micheal W. Giles, Bridget Tainer-Parkins, Inside Judicial Chambers: How Federal District Court Judges Select and Use Their Law Clerks, 71 Alb. L. Rev. 623, 633 (2008). “The most important factor considered by the judges . . . is law school class rank. Over 85% of the judges indicated that they considered this factor in selecting clerks and 60% of those indicated that it was either the most important or second most important factor they considered.” Id. “Seventy-six percent of the judges considered the quality of a candidate’s law school in selecting clerks and 30% of those ranked it first or second in importance.” Id. An applicant’s personality rivaled law school performance as 85.3% of judges considered it as a factor and 32.4% ranked it as first or second in importance for selection. See id.
[11] Interview with District Judge Mae A. D’Agostino, U.S. Dist. Ct. for the N.D.N.Y. (Apr. 12, 2023).
[12] The undergraduate institution or law school you attended can prove to be a valuable connection to the area. It is also possible that a judge considers the school you attended for its rank. “The 10 law schools with the highest percentage of federal clerks produced one-third of all clerks nationwide this year.” Karen Sloan, These law schools sent the most grads to federal clerkships, Reuters, (May 1, 2023, 2:18 PM), https://www.reuters.com/legal/government/these-law-schools-sent-most-grads-federal-clerkships-2023-05-01/; see also Stacy Zarestsky, The Law Schools Where The Most Graduates Got Federal Clerkships (2020), Above The Law (May 3, 2021 at 12:45 PM), https://abovethelaw.com/2021/05/the-law-schools-where-the-most-graduates-got-federal-clerkships-2020/. However, “judges who did not graduate from law schools in the top 20 as ranked by U.S. News & World Report were [] more likely to hire clerks from outside those elite schools.” Karen Sloan, Federal judges want diverse clerks but struggle to hire them – study, Reuters, (Dec. 1, 20222:51 PM), https://www.reuters.com/legal/government/federal-judges-want-diverse-clerks-struggle-hire-them-study-2022-12-01/. This rings true for most judges in the Northern District of New York who did not attend top-20 law schools and who hire outside of the top-20 schools. Here, judges have often hired from institutions such as Albany Law School, Syracuse University College of Law, and St. John’s University College of Law. The author of this article attended the University of Cincinnati College of Law.
[13] The author of this article recently wrote an article concerning pro se litigation in the Northern District of New York. See Ariel Shuster, Special Solicitude: A Quick Guide to its Application and Limitations in Civil Litigation in the Northern District of New York, N.D.N.Y. Fed. Ct. Bar Assoc. (Mar. 26, 2023), https://ndnyfcba.org/2023/03/26/special-solicitude-a-quick-guide-to-its-application-and-limitations-in-civil-litigation-in-the-northern-district-of-new-york/.
[14] The distinction stems from jurisdiction. Magistrate judges have limited jurisdiction. See generally 28 U.S.C. § 636. If a magistrate judge does not have jurisdiction in a specific case, they will sometimes draft a Report-Recommendation and Order recommending disposition of a motion to the district judge assigned to the case. Magistrate judges in different districts handle different types of cases. Review a court’s local rules and general orders to understand what types of cases magistrate judges and district judges handle in a specific district.
[15] Chief Judge Sannes currently has three openings for the 2024-2025 term posted on OSCAR. The closing date for the application is September 6, 2023.