Speaking to… Gioia Gensini

Published: July 1, 2018

Gioia GensiniGioia Gensini is career law clerk to the Hon. Andrew T. Baxter, United States Magistrate Judge. She has been a clerk for more than 35 years at the federal courthouse in Syracuse, first with the Hon. Edward M. Conan (1982-1987), followed by the Hon. Gustave J. Di Bianco (1987-2010), and finally with Judge Baxter since 2010.

Gensini is also an active member of the Onondaga County Bar Association (having served as its president in 2011), and the New York State Bar Association (having served as a member of the House of Delegates, the Nominating Committee, a member of the Leadership Development Committee, and presently serving on the Board of Directors of the New York State Bar Foundation). She is also a certified fitness instructor.

Gioia discussed what it’s been like to serve as a law clerk since 1982 (before there were many career law clerks in federal courts), and her enjoyment of the job across three judges. “I’ve seen a lot of changes in the Northern District of New York, and I’ve been incredibly lucky to work for these three judges,” she said. “I would not still be working here if it weren’t for the people with whom I work.”

How did you first get hired as a clerk?

In my third year of law school, I saw a job posting for a clerk position with a Magistrate in the Northern District of New York.  Magistrate Judges were only called Magistrates then. The term Magistrate Judge was adopted later by statute. The posting for the job stated that the work of the Magistrate included habeas corpus, civil rights and Social Security and because I enjoyed the subject of habeas corpus, I applied for the position. I interviewed with Magistrate Conan, and he offered me the job. That was right out of law school in 1982, and I have been here ever since.

What were your plans when you first took the job, did you plan to stay long-term?

When I first took the job, Judge Conan said, “We’ll try it out for a year, see how we like each other and then go from there.” Originally the judge didn’t plan on having me stay for more than a year or two, but we ended up getting along very well, and I served as his clerk until he passed away in 1987.

What attracted you to habeas litigation?

Two of the best courses that I took in law school were Professor Gary Kelder’s criminal law and criminal procedure classes. That was where I was first exposed to what I consider to be the interesting topic of habeas corpus. As a member of the Moot Court Board in my third year of law school, I supervised the criminal portion of the fall moot court appellate program. Professor Kelder was very involved with habeas corpus advocacy at the time, and in a conversation that we had he said, “I’ve got a great problem for your group of appellate advocates. It’s being argued in the Supreme Court right now, and the name of the case is Engle v. Isaac.” He knew the attorneys on the case, put me in touch with them, and they were kind enough to send me their filed briefs. So I ended up with quite an education about the topic of habeas corpus before I even started working for the court.

Are you aware of any career clerks who have served longer than you have, either within the Second Circuit or beyond it?

I don’t know of anyone who has served longer. There is a career law clerk email list, and last year the woman who runs it sent around an email asking people how long they had served. I sent my time in, and she wrote back to say that, based upon the responses she had received, I was the longest-serving career law clerk in the country. This could be correct because I started when there were very few, if any, career positions for law clerks.

Nowadays, Magistrate Judges also hire term clerks, who are typically recent law school graduates who may leave after a year. Is it difficult adjusting to new colleagues each year?

Since I participate in the hiring process, I have never had a problem adjusting to new law clerks, and I have always enjoyed the opportunity. I try to meet all the law clerks, not just the people I work with in my own chambers. And I am willing to help out or give the benefit of my experience to anybody else who has questions or reaches out to me.

What’s the most important thing a law student should know when interviewing for a term clerk position?

I would tell that person to be himself or herself. In the interview, focus on writing ability and experience that may be relevant to the job. It is also helpful to know what the work of a Magistrate Judge entails.

Have you ever wanted to argue a case instead of helping decide it?

I actually prefer helping to decide the cases. While I wouldn’t mind arguing a case, the analysis of the opposing positions, the applicable law, and the production of a decision, are much more satisfying to me. Sometimes, I get the opportunity to “argue” cases when I discuss them with the judge.

What changes have you seen to the work of the Magistrate Judges?

In 1990 the Civil Justice Reform Act created a huge shift in the work and caseload of Magistrate Judges. The court redesigned the way cases were assigned and the way cases were decided. We retained the automatic assignment of habeas, Social Security and prisoner’s civil rights cases. The dual assignment system was initiated so that each civil case that was filed was assigned both to a Magistrate Judge and a District Judge. The Magistrate Judge addressed non-dispositive matters, such as discovery, while the District Judges handled dispositive matters. The District Judges could also decide to refer anything else to the Magistrate Judge. The Magistrate Judges were also given the opportunity for consent jurisdiction by the District Judges, so the Magistrate Judges could handle trials and other dispositive matters with the consent of all parties. So the civil work of the Magistrate Judge has greatly increased in volume and become more complex since I started.

The criminal work is pretty much the same, with the Magistrate Judges handling the arrest warrants, search warrants, initial appearances, arraignments and bail review, among other criminal matters. Magistrate Judges may also handle suppression hearings and issue recommended decisions if the District Judge makes the reference. Magistrate Judges still do misdemeanor trials by consent of the defendant.

Do you have a favorite kind of case to work on?

I like working on all of them because I love the challenges of research and writing a good decision. I like the medical aspects of Social Security Disability law, and I have a special place in my heart for the pro se cases. I like to think that I am fluent in “pro se”, and some of my biggest challenges have been how to interpret the claims of these litigants and draft an appropriate decision or recommendation for the Judge.

What’s the most frequent mistake you’ve seen lawyers make?

Often it is saying too much. The simplest and most direct argument is still the best. Another common mistake I see is not citing to the proper cases. The Second Circuit has a phenomenal volume of case law on just about every topic imaginable and, when it comes to our decision process, it is far more helpful to a litigant’s case to cite the relevant law from our circuit.

You’re fluent in Italian?

Yes I am. Italian is my first language. My father was a bright young Italian physician who came to the United States as the recipient of a cardiac research fellowship in Denver, in the early 1950s. I was born there several years later, and at home my parents would communicate with me in Italian. I learned English by osmosis from my surroundings. My Italian was then reinforced by summer vacations spent in the Tuscan countryside. In fact, my Florentine cousin says my Florentine accent is better than his.

What do you like to do in your free time?

I devote time to both the Onondaga County and New York State Bar Associations. I also like to stay physically active, and among other things, I teach about 8 fitness classes a week at a local gym with locations in Syracuse and DeWitt. I’ve been teaching fitness for almost as long as I’ve been an attorney, and about the only thing that I am not certified to teach is yoga. I have always enjoyed bicycling, but this year I took up racing, after being asked to join the Cork Monkeys – a local women’s bike racing team.