Communicating with the Court: Tips from a Seasoned Law Clerk
By Jenifer J. Soulikias
Jenifer Soulikias is a former law clerk in the U.S. District Court, Southern District of Florida, for the following judges: Jose E. Martinez, Paul C. Huck, and Chris M. McAliley. She is now a litigation associate at Ferrell Law in Miami and can be contacted at jenifer@ferrellworldwide.com.
I recently finished my third federal clerkship, and to my surprise, I identified one major faux pas that lawyers make—they communicate poorly with chambers. Here’s how to avoid stumbling.
• Return calls.
• Research first. Check the docket/PACER; orders; rules, especially the local rules; and the court’s Web site for administrative orders and notices.
• Call the court first. If you have a general question (e.g., docketing, transcripts), call the appropriate court division (e.g., clerk’s office or court reporter).
• Think twice before calling chambers. Law clerks must follow the Code of Conduct for Judicial Employees, which is similar to that for judges. If a judge cannot tell you something, neither can the law clerk. Particularly, law clerks cannot comment on pending matters outside the public record, so a law clerk’s answers probably will fall into one of five categories:
1. It’s under advisement;
2. File a motion;
3. I cannot give you advice;
4. - It’s improper ex parte, which is anything regarding the merits; or
5. - I can give you an actual answer to a procedural question (i.e., you can fax documents under 25 pages), but you could have found that on the Web site.
If your question will receive any of the above answers, do not call. If you do call, DO NOT:
• misquote the law clerk;
• assume the law clerk is a recent graduate—many clerks practice for several years first;
• say it is an “emergency,” unless the house is on fire, the ship is sinking, or the plane is departing;
• be rude or argue; or
• - assume no one is working on your case. Trust me, nothing makes a law clerk want to push a case aside faster than hearing accusations that no work is being done on the case, especially after working weekends.
Always assume you are speaking with the judge—some judges even answer the phone! Most likely the judge will hear about your conversation from the clerk and that conversation should not start with: “You won’t believe what this attorney said . . .”
If you cannot call to check on the status of your motion, consider:
• filing a status report, especially if something has changed since the motion was briefed (e.g., how the dismissal of one defendant affected the pending motion for summary judgment, especially if something is moot); or
• requesting a hearing. Many judges are reluctant to set hearings, particularly if the motion is pending for a while. However, if a party requests a hearing, the judge may reconsider.
Finally, your goal should be avoiding the need to call. To achieve that, prepare superb filings that educate the law clerk and make it easy for her to formulate a recommendation to the judge, resulting in a timely resolution. Include the basics—legal standards and elements—in your filings. Think of your interaction with the court as a dance routine—you don’t want to miss a step because you might trip over your own feet.
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