One Columbus Circle NE
Washington, DC 20002-8003
fjc.dcn • fjc.gov
L aw
Clerk
Handbook
Fourth Edition
The Law Clerk Handbook provides an overview of law clerk
responsibilities, chambers operations, and the work of the
federal courts. Potential and current law clerks, as well as
their colleagues, will find helpful information on conduct,
ethics, types of federal court litigation, chambers and
case management, court governance and administration,
legal research and writing, and resources for additional
information on these topics and more.
LAW CLERK HANDBOOK FOURTH EDITION FEDERAL JUDICIAL CENTER
Law Clerk Handbook
A Handbook for Law Clerks to Federal Judges
Fourth Edition
Law Clerk Handbook
A Handbook for Law Clerks to Federal Judges
Fourth Edition
2020 Fourth Edition
2017 Third Edition
2007 Second Edition
1977 First Edition
Federal Judicial Center
Thurgood Marshall Federal Judiciary Building
One Columbus Circle NE
Washington DC 20002
fjc.dcn • fjc.gov
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory
mission to develop educational materials for the judicial branch. While the Center regards the content
as responsible and valuable, this publication does not reflect policy or recommendations of the Board
of the Federal Judicial Center.
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Contents
Preface......................................................... xiii
1 Introduction................................................... 1
§ 1.1 The Function and Role of Law Clerks ........................... 1
§ 1.2 Preparation and Reference Material........................... 2
§ 1.3 Orientation and Continuing Education ........................ 3
2 Conduct, Ethics, and Protocol .................................... 5
§ 2.1 Conduct and Ethics ......................................... 5
§ 2.2 Protocol ................................................... 7
A. Confidentiality and Loyalty .............................. 7
1. Communication with the Media....................... 8
2. Communication with Attorneys....................... 8
B. Respect............................................... 10
C. Workplace Conduct .................................... 10
D. Courtroom Demeanor ................................... 11
E. Dress.................................................. 11
F. The Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3 Basic Overview of Litigation in U.S. Courts ........................ 13
§ 3.1 The Civil Action ............................................ 13
A. Federal Jurisdiction ..................................... 13
B. The Litigation Process................................... 13
C. Commencement of Action ............................... 15
D. Service of Summons and Complaint and Waiver of Service ... 16
E. Early Pretrial Conference ................................ 16
F. Multidistrict Litigation Problems ......................... 17
G. Motion Practice Before Answer ........................... 18
H. Opinions on Motions Under Submission ................... 19
I. Temporary Restraining Orders .......................... 20
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J. The Answer ........................................... 20
K. Alternative Dispute Resolution ........................... 21
L. Dormant Actions ....................................... 21
M. Motion Practice After Answer ........................... 22
1. Discovery Motions and Schedules .................... 22
2. Summary Judgment and Amended Pleadings Motions .. 23
N. Final Pretrial Conference ............................... 24
O. Pretrial Orders ........................................ 24
P. Sanctions ............................................. 25
Q. Trial ................................................. 25
R. Posttrial Motions and Enforcement of Judgments .......... 26
S. Appeals from Decisions of Administrative Agencies . . . . . . . . 26
§ 3.2 The Criminal Action ....................................... 27
A. Proceedings Before a Magistrate Judge ................... 27
B. Indictment............................................ 29
C. Arraignment and Plea .................................. 29
D. The Speedy Trial Act ................................... 30
E. Pretrial Motions ....................................... 30
F. Discovery and Pretrial Hearing ........................... 31
G. Trial and Posttrial Detention ............................. 31
H. Sentencing............................................ 32
1. Sources........................................... 32
2. Sentencing Procedures ............................. 34
3. Appellate Review .................................. 35
4. Role of Law Clerks ................................. 35
I. Posttrial Motions ...................................... 36
J. Handling Prisoner Petitions ............................. 36
§ 3.3 Bankruptcy Proceedings.................................... 37
A. General Structure and Jurisdiction....................... 37
B. The Authority of the Bankruptcy Judge, Core Versus Noncore
Proceedings, and Jury Trials ............................ 38
C. Relationship to Other Courts ............................ 39
D. Appeals .............................................. 39
E. Chapters of the Bankruptcy Code ........................ 40
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F. Bankruptcy Procedure ................................. 42
1. Rules and Forms ................................... 42
2. Applications and Motions ........................... 42
3. Contested Matters and Adversary Proceedings......... 43
G. U.S. Trustees and Private Trustees........................ 44
§ 3.4 Appeals .................................................. 45
A. Processing Appeals .................................... 45
B. Notice of Appeal ....................................... 46
C. Record Preparation .................................... 47
D. Docketing the Appeal .................................. 47
E. Briefs and Joint Appendices............................. 48
F. Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
G. Deliberation .......................................... 49
H. Opinion and Judgment ................................. 50
I. Rehearing ............................................ 50
J. Mandate............................................... 51
K. Motions ............................................... 51
L. Emergency Proceedings ................................ 52
§ 3.5 Courts of Specialized Jurisdiction............................ 52
A. Court of Appeals for the Federal Circuit................... 53
B. Court of International Trade ............................ 53
C. U.S. Judicial Panel on Multidistrict Litigation.............. 53
D. Foreign Intelligence Surveillance Court................... 53
§ 3.6 Article I Courts............................................ 54
A. U.S. Tax Court ......................................... 54
B. U.S. Court of Federal Claims............................. 54
C. U.S. Court of Appeals for the Armed Forces................ 54
D. U.S. Court of Appeals for Veterans Claims ................. 54
4 Chambers and Case Management ................................ 55
§ 4.1 Chambers Administration .................................. 55
A. Security .............................................. 55
B. Telephone ............................................ 57
C. Correspondence, Email, and Other Mail .................. 57
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D. Internet and Electronic Research ........................ 59
E. Electronic Filing ....................................... 60
F. Judge’s Chambers Calendar ............................. 60
G. Opening Court ......................................... 61
H. Maintaining the Library; Office Supplies, Equipment, and
Furniture .............................................. 61
I. Maintaining Office Records and Files..................... 62
J. Statistical Reporting ................................... 62
K. Out-of-Town Trips ..................................... 63
L. Assisting with Judges’ Extrajudicial Activities ............. 63
M. Preserving Chambers Papers for Historical Purposes ....... 64
N. Rules Regarding the Media in Court ...................... 64
§ 4.2 Local Court Rules and Administrative Policies................. 65
§ 4.3 Case Management: The Trial Court .......................... 66
A. Office Status Sheets .................................... 66
B. Calendaring Systems ................................... 67
C. Trial Scheduling ....................................... 67
D. Jury Management ..................................... 68
1. Random Juror Selection ............................ 68
2. Exemptions, Disqualifications, and Excuses ........... 69
3. Juror Orientation .................................. 70
4. Voir Dire.......................................... 70
5. Jury Supervision................................... 70
E. Distributing Opinions ................................... 71
§ 4.4 Special Duties of Law Clerks to Bankruptcy Judges............. 72
§ 4.5 U.S. Magistrate Judges...................................... 72
A. Initial Proceedings in Criminal Cases..................... 73
B. References of Pretrial Matters from District Judges ........ 73
C. Disposition of Petty Offense and Class A Misdemeanor Cases 74
D. Disposition of Civil Cases ............................... 74
E. Additional Duties ...................................... 74
§ 4.6 Case Management: The Appellate Court ...................... 75
A. Motions .............................................. 75
B. Screening............................................. 75
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C. Order of Assignment of Appeals for Oral Argument:
Calendar Preparation .................................. 76
D. Order of Opinion Writing ............................... 77
E. Distributing Opinions .................................. 77
5 Legal Research and Writing ..................................... 79
§ 5.1 Research ................................................. 79
§ 5.2 Writing................................................... 82
A. General Rules ......................................... 82
B. Editing ............................................... 83
C. Style ................................................. 84
D. Suggested Reference Materials .......................... 85
E. Specific Writing Assignments............................ 85
1. Jury Instructions .................................. 85
2. Memoranda of Law or Fact .......................... 87
3. Resolution of Motions in Trial Courts ................. 89
4. Memos for Criminal Motions ........................ 90
5. Findings of Fact and Conclusions of Law .............. 90
6. District Court Orders ................................ 91
7. Opinions.......................................... 92
F. Correspondence ....................................... 94
1. Official Business Envelopes ......................... 95
2. Juror Letters ...................................... 95
§ 5.3 Proofreading Documents and Checking Citations .............. 95
A. Checking an Opinion................................... 96
B. Final Proofreading ..................................... 97
6 Court Governance and Administration ........................... 99
§ 6.1 Overview of Federal Judicial Administration .................. 99
§ 6.2 The Chief Justice of the United States ........................ 99
§ 6.3 The Judicial Conference of the United States ................. 100
§ 6.4 Circuit Judicial Councils and Circuit Executives ............... 101
§ 6.5 Chief Judges .............................................. 101
A. Courts of Appeals ..................................... 102
B. District Courts ....................................... 102
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C. Bankruptcy Court .................................... 102
§ 6.6 Circuit Judicial Conferences ............................... 102
§ 6.7 Federal Agencies of Judicial Administration ................. 103
A. Administrative Office of the U.S. Courts ................. 103
B. Federal Judicial Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
C. United States Sentencing Commission................... 104
§ 6.8 Active and Senior Judges; Retirement ....................... 104
§ 6.9 Budget Appropriations and Administration ................... 105
7 Relations with Other Court and Justice System Personnel .......... 107
§ 7.1 The Circuit Executive ...................................... 107
§ 7.2 The Clerk of Court (Court of Appeals) ........................ 107
§ 7.3 The Clerk of Court (District and Bankruptcy Courts).......... 108
§ 7.4 District Court Unit Executives .............................. 109
§ 7.5 The Courtroom Deputy and the Docket Clerk ................. 110
§ 7.6 Other Law Clerks .......................................... 111
§ 7.7 Judicial Assistants ......................................... 111
§ 7.8 Pro Se Law Clerks and Staff Attorneys ........................ 112
§ 7.9 The Court Reporter ........................................ 113
§ 7.10 The Circuit Librarian....................................... 114
§ 7.11 The Probation and Pretrial Services Offices ................... 115
§ 7.12 Public Defenders .......................................... 116
§ 7.13 U.S. Attorneys............................................. 116
§ 7.14 United States Marshals Service .............................. 117
§ 7.15 The Federal Bureau of Prisons............................... 118
§ 7.16 Federal Law Enforcement Agencies .......................... 119
§ 7.17 State Courts ............................................. 120
Appendix Code of Conduct for Judicial Employees .................... 121
§ 310 Overview ................................................. 121
§ 310.10 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
§ 310.20 History ........................................... 122
§ 310.30 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
§ 310.40 Further Guidance .................................. 123
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§ 320 Text of the Code .......................................... 124
Canon 1: A Judicial Employee Should Uphold the Integrity
and Independence of the Judiciary and of the
Judicial Employee’s Office ....................... 124
Canon 2: A Judicial Employee Should Avoid Impropriety and
the Appearance of Impropriety in All Activities ..... 124
Canon 3: A Judicial Employee Should Adhere to Appropriate
Standards in Performing the Duties of the Office .... 124
Canon 4: In Engaging in Outside Activities, a Judicial
Employee Should Avoid the Risk of Conflict with
Official Duties, Should Avoid the Appearance of
Impropriety, and Should Comply with Disclosure
Requirements .................................. 130
Canon 5: A Judicial Employee Should Refrain from
Inappropriate Political Activity ................... 134
Resources Federal Judicial Center Resources ........................ 137
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Preface
This is an updated edition of the Law Clerk Handbook, coauthored by Judge Alvin
B. Rubin and Anthony DiLeo and first published by the Federal Judicial Center in
1977. Section 2.2 of this edition was revised in 2020 in response to changes to the
codes of conduct. The handbook provides an overview of chambers operations
and the work of the federal courts; it does not provide detailed procedures on
every aspect of a law clerk’s daily tasks, nor does it review the procedures of each
individual court (largely because law clerks’ duties vary from judge to judge).
Law clerks should familiarize themselves with local court pro cedures and inquire
about local chambers manuals. The Guide to Judiciary Policy, published by the
Administra tive Office of the U.S. Courts, provides more detailed in formation on
administrative, financial, and personnel matters and is available on the website
maintained by the Administrative Office on the judiciary’s intranet, called JNet.
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1
Introduction
§
1.1 The Function and Role of Law Clerks
Law clerks have no statutorily defined du ties; they carry out their judges’ instruc-
tions. Because each judge de cides cases individually and has developed work
habits over the course of a professional career, no two judges use their clerks in
exactly the same way. You will need to become familiar with your judge’s style
and work cooperatively with the other members of the chambers staff, so that as
a team you can effectively assist the judge in fulfilling the judge’s judicial respon-
sibilities.
In most chambers, law clerks concentrate on legal research and writ ing.
Typically, a law clerk’s broad duties include conducting legal research, preparing
bench memos, drafting or ders and opinions, editing and proofreading the judge’s
orders and opinions, and verifying citations. Many judges discuss pending cases
with their law clerks and confer with them about decisions. District court law
clerks often attend conferences in chambers with attorneys. Often, law clerks
also maintain the library, assemble documents, serve as court room crier, handle
exhibits during trial, and perform other administrative tasks as required by the
judge to ensure a smooth-running chambers.
Law clerks for district, bankruptcy, and magistrate judges have much more
contact with attorneys and witnesses than their appellate court counterparts do.
The primary func tion of an appellate court law clerk is to research and write
about the issues presented on appeal, while law clerks for district, bankruptcy,
and magistrate judges may be involved in the many decisions made at ev ery stage
of each case. Chapter 4 describes the operations of district, bankruptcy, and ap-
pellate courts in some detail.
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Law Clerk Handbook§ 1.2
Federal Judicial Center
§
1.2 Preparation and Reference Material
Familiarize yourself with the federal rules that apply to the cases in your court.
Law clerks to appellate, district, and magistrate judges should study the Federal
Rules of Criminal Procedure, the Federal Rules of Civil Proce dure, and the Federal
Rules of Evidence. Law clerks to bankruptcy judges will need to know the Federal
Rules of Bankruptcy Procedure, and clerks to appellate judges should also study
the Federal Rules of Appellate Procedure. Although your judge will have these
items in the library and they are available online, a personal copy will better
help you become familiar with them. Also carefully study the local rules of court,
standing orders, and other operating procedures. Clerks to bankruptcy judges
should study the Bankruptcy Code as well.
The Federal Judicial Center has numerous publications dealing with federal
court operations and with specific subjects such as copyright law, patent law,
pretrial detention, employment discrimination, and civil rights litigation. Other
Center publications, such as the Manual for Complex Litigation (4th ed. 2004)
and the Benchbook for U.S. District Court Judges (6th ed. 2013), contain specific
information about case management and the judicial process in the trial court.
The Center’s site on the judiciary’s intranet, called fjc.dcn (http://fjc.dcn), can
help you find publications, audio and video recordings, and web-based resources
that are especially helpful to law clerks.
Personal reference books will also be helpful, some of which may be available
online through the court library. Law clerks should have a dictionary, a thesaurus,
and the current edition of The Bluebook: A Uniform System of Citation, published
by the Harvard Law Review Association. It is also useful to have a stylebook, such
as the current edition of The Chicago Manual of Style, published by the University
of Chicago Press; the Harbrace Col lege Handbook; or the Gregg Reference Manual.
Before writing your first assignment, you should read Strunk and White’s The
Elements of Style and periodically reread it.
Law clerks will benefit from courses in federal jurisdiction, federal civil
procedure, evi dence (including the Federal Rules of Evidence), criminal proce-
dure, and constitutional law. A particular court may have a lot of litigation in a
particular area, so some judges may suggest that certain courses would be espe-
cially helpful. You should also consider doing some background reading on the
judicial process. Judge Ruggero J. Aldisert’s The Judicial Process is a rich collec-
tion of readings and analy sis. Judge Frank Coffin’s The Ways of a Judge provides
numerous in sights into the decision-making process. How Judges Think, by Judge
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Richard Posner, takes a look at legal decision making. Reading these works will
help you more fully understand both the judge’s role and yours.
§
1.3 Orientation and Continuing Education
Many courts provide orientation for law clerks, and some have various local edu-
cational programs for court personnel generally or for the bar. Ask whether your
court has any such programs. Typically, a training specialist in the clerk’s office
can explain the government-wide and judiciary-wide policies and options.
The Center has an online orientation program for new law clerks, the Inter-
active Orientation for Federal Judicial Law Clerks (iOLC), on fjc.dcn. It provides
an overview of the federal court system and instruction on ethics, legal writing
and editing, federal jurisdiction, and sentencing. The Center also has streaming
video programs on employment discrimination, constitutional law, and bank-
ruptcy organization and jurisdiction; live and recorded webcasts on substantive
legal topics; and other helpful educational resources on fjc.dcn.
Become familiar with the de tails of employee benefits (such as health insur-
ance), leave policies, and other particulars, which you can find on JNet, the site
maintained by the Administrative Office on the judiciary’s intranet (http://jnet.
ao.dcn). Your judge may also have policies and preferences on some matters, such
as office hours and leave.
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2
Conduct, Ethics, and Protocol
§
2.1 Conduct and Ethics
Law clerks play important roles in the judicial pro cess and must maintain its
integrity. Because of the close as sociation between judges and law clerks, your
profes sional and personal actions reflect on your judge and ultimately on the
judiciary as a whole. You are held to the very highest standards of conduct. Like
judges, you hold a position of public trust and must comply with the de manding
requisites of that position.
Many ethics questions can be answered with common sense, but there are
some areas in which you need to be aware of specific rules that impose restrictions
not intuitively obvious. Law clerks most often encounter ethical issues in the
following areas:
• confidentiality
• conflicts of interest
• outside legal activities
• dealings with prospective employers
• outside professional, social, and community activities
• receipt of gifts and honoraria
• political activity
• social media
To avoid embarrassment to yourself and potentially to your judge, it is im-
portant that you understand your obligations in these and all other ethical areas.
5
Law Clerk Handbook§ 2.1
Federal Judicial Center
The Judicial Conference of the United States sets administrative policy for
the federal courts. The Conference has adopted the Code of Conduct for Judicial
Employees and has made it applicable to law clerks. A copy of the code is in the
appendix to this handbook. You should familiarize yourself with the code. You
will also need to familiarize yourself with your judge’s ethical guidelines. These
may differ from chambers to chambers, and your judge may not permit conduct
or activities that would otherwise be acceptable under the Code of Conduct.
To help familiarize law clerks with their ethical obligations, the Center, in
cooperation with the Judicial Conference Committee on the Codes of Conduct
and the Administrative Office, has prepared a pamphlet called Maintaining the
Public Trust: Ethics for Federal Judicial Law Clerks (Revised 4th ed. 2019). The
Center has distributed the pamphlet widely to judges and to courts. If copies of
this pamphlet are not available in your chambers, you can order one on fjc.dcn.
The Center also has a video, Maintaining an Exemplary Workplace, specifically
designed for law clerks, that focuses on workplace conduct, and has developed
an e-learning program for term law clerks as part of its online orientation series
on fjc.dcn. But neither the code, the pamphlet, nor the online program can cover
every possible situation. If you have a question that is not clearly answered by
these resources, you should discuss the matter with your judge.
Guidance on ethical issues is also available from other sources. Volume 2 of
the Guide to Judiciary Policy focuses on ethics and includes the Code of Conduct
and the following helpful resources:
• The Ethics Reform Act of 1989 and Judicial Conference regulations put
into place under it. The provisions applicable to law clerks and judicial
assistants deal with receipt of gifts and honoraria.
• Published advisory opinions of the Codes of Conduct Committee. These
advisory opinions address issues frequently raised or of broad applica-
tion. Advisory Opinion Nos. 51 (working on a case in which a party is
represented by a spouse’s law firm), 64 (employing a judge’s child as law
clerk), 73 (requests for letters of recommendation and similar endorse-
ments), 74 (a law clerk’s future employer), 81 (when a law clerk’s future
employer is the U.S. Attorney’s Office), 83 (payments to law clerks from
future law firm employers), and 92 (political activities) are of special
interest to law clerks.
• The Compendium of Selected Opinions. The Compendium contains
summaries of advice given by the Codes of Conduct Committee in re-
sponse to confidential, fact-specific inquiries. Committee members can
answer questions about a particular opinion without disclosing the iden-
tity of the person who solicited the advice.
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§
2.2 Protocol
A. Confidentiality and Loyalty
Law clerks owe judges complete confidentiality in case-related matters. You can-
not say anything about a case that is not a matter of public record or otherwise
permitted. Canon 3D of the Code of Conduct for Judicial Employees states that
employees should not
• disclose confidential information received in the course of official duties,
except as required in the performance of their duties
• employ such information for personal gain
• comment on the merits of a pending or impending action
Instructions you receive from your judge and discussions about your judge’s
legal assessment of a case should also be treated as confidential. Unless expressly
authorized by your judge, you should never comment on the judge’s views or offer
a personal appraisal of the judge’s opinions; judges are the only ones who can or
should communicate whatever personal views they wish to have known publicly.
After a judge acts, the action or opinion (and if there is an opinion, its reasoning)
is a matter of public record. You should neither comment on it nor try to explain
it. You must also resist the temptation to discuss pend ing or decided cases with, or
in the company of, friends or family. Even discussions of pending cases with staff
from other chambers should be circumspect, and some judges forbid it. Many
district courts also have rules forbidding court personnel to divulge information
about pending cases. Law clerks should be careful about publicly discussing their
judges and chambers-related activities beyond case-related matters. For example,
clerks should not publicly discuss their judges’ personal views about political,
social, or other matters that could arise in litigation, nor should clerks reveal
a judge’s travel plans. In general, clerks should respect and protect the privacy
of their judges. That said, nothing in this handbook, or in the Code of Conduct,
prevents any clerk or judiciary employee from revealing misconduct, including
sexual or other forms of harassment, by their judge or any person. Clerks are
encouraged to bring such matters to the attention of an appropriate judge or
other official.
7
Law Clerk Handbook§ 2.2.A.1
Federal Judicial Center
1. Communication with the Media
Some judges are opposed to having chambers staff discuss anything at all with
the media; you should determine your judge’s policy on this matter. You should
not respond to questions of substance, comment on a pending matter, or reveal
judicial confidences, even when a reporter requests information “just for back-
ground.” You may direct requesters to information that is in the public record and
provide comments on technical and administrative matters, if your judge agrees.
With your judge’s permission, you may also discuss how the court works in general
and its rules and procedures.
Some courts have designated employees to handle media inquiries, and
written guidelines for press inquiries may be available from your judge or the
clerk of court.
2. Communication with Attorneys
Law clerks must be firm in resisting any effort by attorneys to gain improper
advantage, to win favor, or to enlist sympathy. You should not engage in any
discussion with counsel about a pending case or a decision that has been reached
by your judge. In fact, some judges do not permit their law clerks to have any
communication with attorneys at all. Regardless of the exchanges permitted, you
should never discuss or divulge confidential information.
Law clerks who are permitted to communicate with attorneys should abide
by the following standards:
• Do not give any advice on matters of substantive law.
• If the lawyer asks about either local procedure or general federal pro-
cedure for handling a matter, you may read or refer the lawyer to the
appropriate federal rule or local court rule. If the question relates to your
judge’s personal practice in handling matters (e.g., requests for tempo-
rary restraining orders), you may tell the lawyer what you know. Do not
guess at what your judge does or may do. If uncertain about your judge’s
policy, say something like, “I don’t know what the judge would like a
lawyer to do in these circumstances, but I’ll be glad to consult the judge
about the problem and call you back.”
• Do not allow a lawyer to coax you into doing research, even the most
minor.
• Do not hesitate to issue a disclaimer on any information you may give.
Almost all attorneys understand such a position. (“I can’t give you any
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Conduct, Ethics, and Protocol § 2.2.A.2
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legal advice, as you under stand. However, you may find it helpful to look
at local rule 3.09.”)
• When in doubt, politely decline to give in formation. (“I’m really sorry I
can’t help you, but Judge X has instructed me not to answer that kind of
question.”)
All attorneys should be given impartial and equal treatment. You must
resist the temptation to do a favor for a family member, former classmate, or an
old friend. See Advisory Opinion No. 51 (working on a case in which a party is
represented by a spouse’s law firm).
You should inform your judge of informal communications on pending cases.
For example, an attorney may call to state that there is no objection to a pend-
ing motion, or that both attorneys jointly request the continuance of a hearing.
Because of the impact of these events on docket management, the judge may
wish to take some action, such as calling a confer ence of counsel, or may de-
vote increased attention to another matter for which immediate preparation is
necessary. Informal information can save the judge and the staff wasted time
and effort.
Generally, if an attorney asks when an opinion will be rendered, you should
indicate that such information is confidential, unless your judge has instructed
otherwise. In cases of in terest to the general public or media, however, some
judges may wish to notify the attorneys in advance when a prospective judgment,
opin ion, or order is to be filed (except when such information might pro vide
the attorneys and parties with “inside” information of potentially significant
economic advantage). Such notice enables counsel to read the opinion at the
moment it is filed and notify their clients of the result. Attorneys appreciate the
opportunity to be the first to notify their clients, and clients themselves may
wish to notify other inter ested parties of the result. Some embarrassment and
confusion may result if the parties first hear of a ruling through the media. Not
only that, but media reports also may be incomplete and misleading.
If you receive specific information about the progress of settlement negoti-
ations in a case in which your judge is to be the trier of fact, you must be guided
by your judge’s policy. Settlement proposals or dis cussions are ordinarily inad-
missible at trial, and therefore some judges shield themselves from knowledge
of settlement negotiations that might affect their judgment. Other judges either
like or are willing to have this information and are confident that it will not
influence them.
9
Law Clerk Handbook§ 2.2.B
Federal Judicial Center
This caution regarding communication with attorneys and others appearing
before your judge must extend to private, off-hours behavior as well, including the
use of social media. It may be tempting to think that it is safe to post about a case
before your judge on your Facebook page or to tweet about it on Twitter. Maybe
your privacy settings only allow your closest friends to read what you share. But
the confidentiality of the court must be complete and no matter how close you
are to someone or how much you trust them, you should not share information
with them that only you are privileged to know.
B. Respect
Law clerks and judges have a special, multifaceted relationship: employee-
employer, student-teacher, protégé-mentor, and lawyer-lawyer. In all of these
roles, you must respect your judge. Respect does not mean sub servience; you
should not be afraid to express an opinion con trary to your judge’s when asked—
in fact, most judges expect and invite their law clerks to question the judges’
views. They frequently seek their law clerks’ reactions to the issues raised in
pending cases, both for the value of being exposed to varying viewpoints and to
train their law clerks in the process of legal decision making. If, however, your
judge should reach a conclusion that differs from yours, you must carry out your
judge’s instructions with the utmost fidelity. In fact, you must keep this in mind
at every stage of your work. Even if you have a strong conviction about how a
case should be decided, you must be objective in your legal research and always
provide your judge with relevant arguments and precedents from all points of
view. Be careful not to skew your research to lead your judge toward the decision
you think is the right one. The ultimate responsibility for fulfilling the duties of
a judge’s office falls on the judge. As one judge put it, “The commission from the
President issues to me, not my law clerk, and it was I who took the oath of office.”
C. Workplace Conduct
The judiciary strives to ensure an exemplary workplace for all law clerks, judicial
employees, and judges. You should consider how you conduct yourself in dealing
with all persons you encounter in your role as a law clerk. Canon 3C of the Code
of Conduct outlines your ethical obligations regarding workplace conduct.
It provides the standard for your conduct as a law clerk—that you should be
“patient, dignified, respectful, and courteous”—and explains that sexual or other
forms of harassment and retaliation against those who report misconduct are
prohibited. It also states that you should “take appropriate action” to report
conduct contravening the code.
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D. Courtroom Demeanor
The law clerk, like the judge, must be impartial. During a jury trial, physical cues
within view of the jurors may compromise impar tiality and unfairly influence
the jury. Even during a motion hearing, bench trial, or appellate argument, avoid
movements or expressions that might indicate your reaction to the testimony
of witnesses or to the oral arguments of attorneys, because impartiality and
objectivity must al ways be maintained by everyone officially attached to the
court. However, litigants are more likely to expect and accept reflections of at-
titude by the judge, who has a duty to control proceedings and to de cide the case,
than by the judge’s clerks.
E. Dress
Most judges do not have a formal dress code but do expect the kind of dress that
would be appropriate in a profes sional office.
F. The Public
The courts are a public service organization, and the public properly expects
efficient and professional service from them. The public gen erally is unfamiliar
with the court system, and opportunities for the public to view the system in
operation are infrequent. Make every effort to assist the public, including
witnesses or jurors. The brief encounter that jurors or witnesses have with the
federal court system may greatly influence their impression of the quality and
efficacy of the system.
Courtesy and kindness, however, should not include advice. Without permis-
sion from your judge, you must not answer questions from witnesses or jurors
about a case.
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3
Basic Overview of Litigation
in U.S. Courts
Litigation in the federal courts is governed by nationally applicable rules: the
Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the
Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure,
and the Federal Rules of Evi dence. These are supplemented by the local rules of
each individual court and the standing orders of individual judges. You should
keep a copy of these uniform and local rules on hand.
§
3.1 The Civil Action
A. Federal Jurisdiction
Federal courts are courts of limited jurisdiction; they may hear only those cases
described in Article III, Section 2, of the Constitution and authorized by Congress.
Most civil cases in federal court are based on one of two types of jurisdiction:
federal question jurisdiction (28U.S.C. §1331) or diversity of citizenship jurisdic-
tion (28U.S.C. §1332). In addition, federal courts have exclusive ju risdiction over
other special areas, such as bankruptcy cases, trademark and copyright viola-
tions, and incidents at sea. See 28U.S.C. §§1331–1367.
B. The Litigation Process
The major steps in civil cases are as follows:
1. The plaintiff commences the action by filing a complaint with the clerk
of court.
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2. Personal jurisdiction is obtained over the defendant (e.g., by service of
process).
3. The parties meet and confer to identify issues, discuss settlement, and
prepare disclosure and discovery plans.
4. The court conducts an early pretrial (scheduling) conference or issues a
pretrial scheduling order.
5. The defendant may file motions (e.g., motion to dismiss for failure to
state a claim for which relief may be granted; certain motions must be
filed in the defendant’s first responsive pleading, while oth ers may be
filed later).
6. The defendant files an answer.
7. The parties disclose documents, and discovery proceeds.
8. Either party may file additional motions (e.g., summary judg ment or
motions in limine to screen evidence, including expert evidence).
9. The final pretrial conference is held.
10. The trial is held.
11. The judgment is rendered, signed, and filed.
12. Posttrial proceedings may occur.
13. Appeal may be taken; the judgment may or may not be stayed.
14. The appeal is considered either on briefs or after oral argument.
15. Judgment is rendered on the appeal.
16. Supplementary proceedings may occur.
17. The judgment is enforced.
In any given case, some of these steps may be omitted because of in action,
agreement of the parties, or court order. See generally the Civil Litigation Man-
agement Manual (2d ed. 2010), which was prepared under the direction of the
Judicial Conference Committee on Court Administration and Case Management,
with substantial contributions from the Administrative Office and the Federal
Judicial Center. For special considerations in complex cases, see the Manual for
Complex Litigation (Federal Judicial Center, 4th ed. 2004).
Settlement discussions, whether between the parties only or with the
assistance of a judge or an ADR neutral, may occur at any time—and more than
once—during the lifetime of a case. And of course the suit may end by settlement
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§ 3.1.C
or dismissal at any stage. Fewer than 2% of civil actions filed in the federal courts
go to trial, but the court decides motions in many cases that do not make it to trial.
C. Commencement of Action
A civil action in federal court begins with the filing of a written com plaint in the
clerk’s office (which may, or in most cases must, be filed electronically through
the courts’ Case Management/Electronic Case Filing (CM/ECF) system). The
case is then assigned a number, usually referred to as a docket number, containing
two parts: the last two digits of the year in which the case was filed and a number
that is assigned consecutively as suits are filed in each calendar year. The prefix
Cr. or C.A. (sometimes Cv.) indicates whether the case is a criminal or civil
action. In a multijudge court, the clerk’s office, through a preestablished, ran dom
selection process, immediately assigns the case to a particular judge for handling
and ultimate disposition. The clerk’s office maintains the complete record of
the case—a case file and docket sheet (which includes notations to reflect the
progress of the case)—using the CM/ECF system.
When the case is filed, the judge begins the process of monitoring and con-
trolling the progress of the case. Some judges briefly review (or have their clerks
review) all newly filed complaints to identify those that appear frivolous, lack
federal jurisdiction, or are otherwise susceptible to fast-track handling, and to
flag those that may demand special attention. If there is a request for a tempo-
rary restraining order or other immediate emergency relief, or if the case is a
class action, early attention is re quired. Each new case should also be examined
for potential conflicts of interest. Although most courts now maintain electron-
ic lists of such things, each chambers should have procedures, including use of
conflict-screening software, to ensure that possible financial or other conflicts of
interest are identified.
The local rules of court and standard litigation practice usually lead the
lawyer who files a class action to indicate its nature by a caption on the first
page of the com plaint. Federal Rule of Civil Procedure 23(g) calls for the court to
appoint counsel for the class and permits the court to designate interim counsel
to represent a proposed class before ruling on whether the class may be certified.
Rule 23(c)(1)(A) requires judges to decide whether to certify a case as a class
action “at an early practicable time,” so they will usually want to be promptly
alerted to the filing of class actions. Other proceedings requiring the court’s
prompt ac tion are discussed in what follows.
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D. Service of Summons and Complaint and Waiver of Service
The Federal Rules of Civil Procedure give the plaintiff the option of notifying a
defendant of the commencement of a lawsuit by (1) serv ing the defendant with a
summons and a copy of the complaint, or (2)providing the defendant with written
notice of the lawsuit, along with a request that the defendant waive service of the
summons, in order to avoid the costs of service. Service of a summons or filing a
waiver of service establishes jurisdiction over the person of a defendant, subject
to the territorial limits upon effective service contained in Federal Rule of Civil
Procedure 4(k).
The waiver-of-service provisions of Rule 4 apply to individuals, cor por ations,
or associations otherwise subject to service under the rule. They do not apply
to infants, incompetent persons, the United States, or agencies, corporations,
or officers of the United States. These de fen dants must be served with copies of
the summons and complaint in the manner made applicable to them by Rule 4.
Rule4 also contains provisions regulating the manner of service.
E. Early Pretrial Conference
Federal Rule of Civil Procedure 16 gives judges discretion to call for as many
pretrial conferences as the case may require. Many judges convene an early
pretrial conference, often called a scheduling conference, as described by Rule 16,
to meet with the attorneys to narrow the issues, eliminate groundless claims
and defenses, discuss alternative dispute resolution (ADR) options, encourage
settlement discussions, schedule and plan the pretrial and trial stages of the
litigation, and anticipate the procedural and management issues likely to arise in
the litigation. Rule 26(f) directs the parties (generally through their attorneys) to
meet, confer, and prepare a discovery plan prior to this early pretrial conference.
The early pretrial conference generally leads to a pretrial order that identifies
the issues and schedules the events necessary to resolve those issues. Judges
who choose not to hold early pretrial conferences nonetheless generally issue a
scheduling order early on in the case. This order must be issued within 120 days
of when the case was filed.
Many judges require counsel to file and exchange detailed pre trial memoranda
regarding the matters to be considered at the conference. The conference itself
may be held in chambers, with or without a court reporter, or may be conducted as
a formal hearing in open court. Some courts have adopted a local rule describing
the pretrial pro cedure. In other courts, judges issue descriptions of their pretrial
procedures. See the Civil Litigation Management Manual, at 15–28, for discussion
of the Rule 16 conference.
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Depending on how comfortable your judge is with using the CM/ECF and other
online document systems prior to the pretrial conference, you may want to review
the case file, put the documents in sequence, and provide the judge with both the
file and a printout of the docket (or any other portion of the record the judge might
need for the conference). If your judge would rather download the documents to a
laptop, tablet, or other portable device, this paper preparation won’t be necessary.
Do this far enough before the confer ence to give the judge time to look through
the file. If a proposed pre trial order has been submitted, place it at the top of the
file. Some judges may want the courtroom deputy, the law clerk, or both to attend
pretrial conferences. Others permit their law clerks to attend selected conferences
of interest. During the first month or two after beginning work, try to attend as
often as possible to gain insight into the conference procedure.
Judges generally do not schedule pretrial conferences for the types of cases
described in Rule 26(a)(1)(E), such as cases on review of an administrative
record, actions brought without counsel by persons in custody of a governmental
entity, and actions brought by the United States to collect on a student loan.
Many judges also use their Rule 16 authority to convene a final pretrial
conference to focus on issues likely to affect the trial. See section 3.1.N.
F. Multidistrict Litigation Problems
If civil actions involving one or more common questions of fact are pending
in different districts, either the plaintiff or defendant may petition the United
States Judicial Panel on Multidistrict Litigation (JPML) to trans fer the cases to
a single district and to consolidate them for pretrial proceedings. See 28U.S.C.
§1407. The rules of the panel are found in the rules section of Title 28. If the panel
decides that the cases should be consolidated, it enters an appropriate order and
all of the cases are transferred to the district designated by the panel. While a
petition to transfer a case is pending before the JPML, the district judge retains
full jurisdiction over the case (JPML Rule 1.5).
The district judge may independently invoke intervention of the JPML by
writing to the panel at the address listed on JNet. The letter should say that
the judge has a case that may be related to a case or cases pending in another
district, giving the name and docket number of each case, and that it might be
worth while for the panel to examine these cases to determine whether pre trial
consolidation would be appropriate. The judge will attach to the letter a copy
of the complaint and any other documents that may be useful to the panel. The
judge might also wish to send copies to counsel. The functions of the JPML are
described in section 3.5.C.
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G. Motion Practice Before Answer
After the complaint is filed, the defendant may respond with motions, an answer,
or both. Your judge may ask you to perform any or all of the following duties in
connection with a motion:
• maintain in-office records and call mo tions that are ready for decision
to the judge’s attention
• read and analyze the motion, any responses, and briefs
• perform independent research supplementary to that contained in the
briefs of the parties
• attend hearings
• prepare memoranda on factual or le gal issues presented by the motion
for the judge to use
• discuss the motion with the judge
• draft, for the judge’s approval, an order disposing of the motion
The motions most frequently filed early in proceedings are those that challenge
the court’s jurisdiction over the parties or the subject matter, attack venue,
raise issues relating to joinder of parties, and test the legal sufficiency of the
complaint. Some courts refuse to accept a motion unless a memoran dum of law
is filed simultaneously. Although some courts do not re quire reply memoranda,
opposing counsel are usually required to file a memorandum of law if the motion
is opposed. After receiving a motion or a response to a motion, the clerk of court
makes appropriate record entries and then routes the motion and supporting
papers to the judge assigned to the case.
The judge’s chambers, as well as the clerk of court (through CM/ECF),
usually maintains a list of all pending motions. Some motions are perfunctory
and can be ruled on without a hear ing or oral argument. Some judges require
moving counsel to request oral argument in the body of the motion, state the
reason why counsel believes oral argument would be helpful to the court, and
provide an estimate of the time required for the argument. The court may then,
at its discretion, set the motion for argument and notify counsel in writing of
the day and time. Other judges decide independently without input from counsel
whether to hear argument or decide the matter on the briefs.
The local rules of the district court usually require a party opposing a motion
to respond within a certain number of days after the motion is filed, or at least
a certain number of days before the date set for hear ing. Some motions involve
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§ 3.1.H
disputed factual issues and therefore require evidentiary hearings. These and all
motions for which the judge will hear oral argument must be scheduled at times
convenient for the court and, insofar as possible, for counsel and witnesses. Four
dif ferent approaches to scheduling have been adopted:
1. Selection of a specific date and time by the judge or judge’s staff with
notice to both counsel
2. Selection of a date and time convenient for all involved after telephone
or personal conferences among counsel and court personnel
3. Selection of a date and time acceptable to the court by one attorney who
then gives notice to other counsel
4. Permanent scheduling by the court of a weekly or monthly mo tion day at
which any motions that are at issue may be heard as a matter of course,
or, alternatively, for which particular motions are scheduled through one
of the processes described above
In courts that hear oral argument on a number of motions on the same day, it
is not unusual for the court to receive requests for a continuance of the argument
on motions. Many judges will agree to continue a motion based on a lawyer’s
telephone request if the lawyer advises the judge that opposing coun sel has been
informed of the request and has no objection. Other judges require counsel to file
a written motion for a continuance, even when opposing counsel has no objection.
A law clerk usually assists the judge during the motions day argu ments by
making materials available to the judge relevant to particular mo tions, by noting
any new authority cited by either counsel, and, if the judge decides the motion
from the bench, by making notes of the judge’s decision (though the courtroom
deputy officially records the court’s judgment or decision, and the judge later signs
a summary order pre pared by that deputy or submitted by prevailing counsel).
Helping to ensure that your judge is prepared whenever taking the bench is one
of your most important duties. Accord ingly, you must keep abreast of the motion
calendar and be familiar with time limits under local rules.
H. Opinions on Motions Under Submission
Whenever the judge hears argument on a motion and does not rule from the bench,
it is necessary to prepare an order disposing of the motion. If the judge instructs
you to do this, start with samples of orders previously issued that can serve as
guides, but take care to tailor your draft to the case at hand. A common mistake
when using a previous document is failing to make all the changes necessary
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to adapt it. The judge may instead direct one of the parties to prepare the order
for court approval. See section 5.2.E.6. After an order ruling on the motion has
been signed, it is sent to the office of the clerk of court, where appropriate record
entries are made. The clerk’s office then notifies all attorneys of record of the
judge’s ruling and usually sends them a copy of the order.
Matters taken under consideration must be carefully followed to ensure they
are decided as promptly as possible. Chambers staff should keep a list of matters
under consideration, deleting cases as rulings on each are completed. This list can
be kept electronically using CM/ECF and other document management systems.
I. Temporary Restraining Orders
The procedural rules governing applications for temporary restraining orders are
set forth in Federal Rule of Civil Procedure 65. When these orders are sought, the
plaintiff’s counsel may assert that the matter is so urgent that it requires an ex
parte restraining order—that is, with out giving the defendant prior notice or an
opportunity to be heard. If the judge is not in chambers at the time, the plaintiff’s
counsel may urge chambers staff to bring the order to the judge in open court, to
locate the judge, or to assist in some other way. Early on you should ask about your
judge’s policy on emergency matters like this so that you are prepared to handle
them. You may, for example, be told to advise the lawyer that the judge does not
ordinarily sign tem porary restraining orders without hearing what the lawyer for
the other side has to say. This may be done by arranging for the judge to see both
counsel in person or by a telephone conference, depending on the judge’s policy.
While the conference is being arranged, you should attempt to read all documents
pertinent to the request, collect and examine authorities, and be prepared to brief
your judge about the request or take such other action as your judge may require.
J. The Answer
Except when the United States is the defendant, twenty days after the complaint
is served, or ten days after notice of disposition of a preliminary motion, the de-
fendant must answer the complaint. If the defendant fails to do so, the plaintiff
may have the defendant’s default made a matter of record in the clerk’s office and
then proceed to obtain a default judgment as outlined in Federal Rule of Civil
Procedure 55.
Along with answering the complaint, the defendant may assert a counterclaim
against the plaintiff or a cross-claim against another defen dant. The party against
whom a counterclaim or cross-claim is made has twenty-one days after service or
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§ 3.1.L
fourteen days after disposition of a motion relating to the counterclaim or cross-
claim in which to reply. In the event of a failure to answer, the defendant may
obtain a default judg ment in accordance with Rule 55.
Many courts and individual judges permit counsel, by agreement, to extend
the time for answering. Others require counsel to appear—even if only to obtain
an extension of time—so that the judge can be promptly informed of counsel’s
identity and determine what progress is being made.
Motions relating to third-party practice or to jurisdiction over, or sufficiency
of, a counterclaim or cross-claim may be filed at this stage of the proceedings.
They are processed in the same manner as prelim inary motions.
K. Alternative Dispute Resolution
Courts have developed several forms of court-annexed alternative dis pute
resolution to assist parties in resolving their case. (Litigants may, of course,
agree to avail themselves of private ADR programs that are not affiliated with
the court.) Section 651(b) of Title 28 of the U.S. Code directs each district court to
“authorize, by local rule... the use of alternative dispute resolution processes in
all civil actions, including adversary proceedings in bankruptcy.”
Some ADR programs may be more suitable for certain types of cases than
others. For more information on ADR procedures in the courts and the judge’s
role, see ADR in the Federal District Courts: An Initial Report (Federal Judicial
Center 2011) (available on fjc.dcn) and the Guide to Judicial Management of Cases
in ADR (Federal Judicial Center 2001).
L. Dormant Actions
Most federal courts do not permit actions to remain dormant indefinitely. Each
court, and sometimes the judges within each court, will have a different policy
on this. Counsel have their own priorities for processing litigation, and these
frequently relate to their internal office demands and other personal matters.
But in general, the policy of the federal courts is that litigation is not merely the
lawyers’ business but also the public’s business, and the court is responsible for
monitoring it.
All courts adopted civil justice expense- and delay-reduction plans under the
Civil Justice Reform Act of 1990 (and many courts have incorporated provisions
from these plans into their local rules). The courts are also required to report semi-
annually for each judge, for publication by the Administrative Office, motions that
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have been pending and bench trials that have been submitted for more than six
months and cases that have not been terminated within three years after filing.
28U.S.C. §476. Many courts have the docket clerk or someone in the clerk’s office
periodically call cases to the judge’s attention that have been dormant for more
than six months (or some other period of time) because either no answer was filed
or, after pleadings were filed, no further action was taken. Many judges will have
a periodic “docket call,” at which counsel will be asked to report on the status of
cases that have been dormant for a certain period of time and explain the lack
of progress. In some instances, failure of counsel to appear at the docket call re-
sults in dismissal of the case. For more on case management in civil litigation, see
section 4.3 and the Civil Litigation Management Manual.
M. Motion Practice After Answer
1. Discovery Motions and Schedules
The purpose of discovery is to allow each party to obtain relevant evi dence or
sources of relevant evidence from other parties and to avoid evidentiary surprises
at trial. General provisions governing discovery are outlined in Federal Rule of
Civil Procedure 26, which requires parties to disclose certain types of information
to each other without waiting for a formal discovery request. These dis closures
must be exchanged at, or soon after, the attorneys’ meet-and-confer session man-
dated by Rule 26(f), which should take place prior to the initial pretrial confer-
ence. At the Rule 26(f) meeting, the parties are to confer to develop a discovery
plan, which they must submit to the court before the Rule 16 conference. Rule 26
permits each judge to decide (and the parties to stipulate) whether to apply cer-
tain of its disclosure requirements to a given case. Otherwise, Rule 26 requires
disclosure of the specified documents to all categories of cases not exempted in
Rule 26(a)(1)(E).
The following are specific discovery methods available to a party:
• deposition on oral examination (Rule 30)
• deposition on written questions (Rule 31)
• interrogatories to parties (Rule 33)
• production of documents and things (Rule 34)
• permission to enter upon land and other property for inspection and
other purposes (Rule 34)
• physical and mental examinations (Rule 35)
• requests for admission of fact (Rule 36)
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A variety of motions may arise as a result of discovery proceedings, including
motions to
• compel answers or other compliance with discovery rules
• obtain protective orders against undue harassment, unrea sonable
demands, or disclosure of confidential or protected in formation
• obtain additional time to comply with discovery requests
• terminate a deposition
• pose objections to written interrogatories or other discovery requests
• impose sanctions for failure to comply with discovery requests.
Some district judges handle discovery motions by telephone. In other courts,
all motions pertaining to discovery are referred to a magistrate judge, who is
then responsible for overseeing discovery procedures and ruling on discovery
motions. The magistrate judge’s orders may be appealed to the district judge.
For discussion of the special problems posed by discovery of electronically
stored information, see Managing Discovery of Electronic Information: A Pocket
Guide for Judges (Federal Judicial Center, 3d ed. 2017), Technology-Assisted Review
for Discovery Requests: A Pocket Guide for Judges (Federal Judicial Center 2017),
and Criminal e-Discovery: A Pocket Guide for Judges (Federal Judicial Center 2015).
2. Summary Judgment and Amended Pleadings Motions
During discovery or after its completion, other motions may be filed. These tend
to fall into three categories:
1. Motions for summary judgment as to some or all of the issues raised in
the case on the grounds that there is no genuine dispute as to any mate-
rial fact (Rule 56)
2. Motions to amend pleadings or to add or remove parties (Rule 15)
3. Motions to exclude or limit the introduction of scientific or other evi-
dence that fails to meet the standards of the Federal Rules of Evidence
Such motions usually arise out of information the moving party obtains
during discovery. They are processed in the same manner as other motions.
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N. Final Pretrial Conference
The final pretrial conference is governed by Federal Rule of Civil Procedure 16
and is intended to simplify the subsequent trial. Whether to hold a conference in
a specific case is up to the judge, and the practice varies substantially throughout
the federal judiciary. Many judges hold pretrial conferences routinely in every
case; others hold conferences only when requested by counsel or on their own
order when a case seems likely to proceed to trial.
During the conference, the judge and counsel may consider any “matters
that may aid in the disposition of the action.” The following matters are most
commonly considered:
• simplification of the issues
• necessary or desirable amendments to the pleadings
• the avoidance of unnecessary evidence at trial by obtaining ad missions
of uncontested facts
• limiting the number of expert witnesses
• limiting the time for each side to present its case
• referring issues to a special master, court-appointed expert, or other
judicial adjunct
• exchanging lists of witnesses
• the marking of exhibits
• final discovery procedures
• using procedures that might resolve the case through settlement
• ruling on some, if not all, evidentiary objections to exhibits
O. Pretrial Orders
In civil cases other than those involving simple issues of law or fact, Federal Rule
of Civil Procedure 16 requires a scheduling order (within 120 days of filing) and
specifies matters to be discussed at any pretrial conference held pursuant to the
rule, followed by a pretrial order. Al most all district courts have adopted a form
for the pretrial order. Usu ally the court requires the pretrial order to contain a
concise summary of disputed issues of fact and law, a succinct statement of the
position of each party, and a list of the witnesses and documents expected to be
introduced at trial. In some districts, the final pretrial order must be presented to
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§ 3.1.Q
the court at least twenty-four hours before the face-to-face pretrial conference,
which is held with all lawyers and the judge. Other courts require only that
counsel bring the pretrial order with them to the conference.
Most judges consider a properly pre pared pretrial order essential to the
orderly and efficient trial of a com plicated case. In simpler cases, judges may
require counsel to prepare only a list of witnesses and exhibits. An individual
judge may want the lawyers to incorporate something other than what the local
rules require.
P. Sanctions
Provisions of Rules 11, 16, and 37 of the Federal Rules of Civil Procedure authorize
the judge to impose sanctions on attorneys or parties or both if, for example,
papers filed are not well grounded in fact and supported by a reasonable argument
of law. Judges differ in their propensity to impose sanctions and in their view of
the proper severity of sanctions. You should be familiar with the rules regarding
sanctions and with the jurisprudence of the circuit court of appeals concerning
the rules’ interpretation and application.
Q. Trial
Law clerks often do not attend trials because they are engaged in other activities
relating to the case or in other matters that require their at tention. However, you
may be called on to attend a trial and perform one or more of the following duties:
• assist in jury selection (see section 4.3.D for more infor mation on jury
selection and management)
• check the case file (or online document management systems) before
trial to ensure that the judge is aware of all necessary doc uments and
submissions
• serve as court crier
• act as a messenger for the judge
• take notes of the testimony
• research matters that arise during the course of the trial
• assist in the preparation of jury instructions
• in nonjury cases, assist in drafting findings of fact and conclusions of law
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Trials offer valuable experience for law clerks, and most judges en courage
their clerks to attend interesting and skillfully presented trials when this does not
interfere with the clerks’ other responsibilities. A convenient alternative is for
the court to have an audio connection from the courtroom microphones to a law
clerk’s office so the law clerk can listen when time is available.
R. Posttrial Motions and Enforcement of Judgments
Most posttrial motions involve attacks on the verdict or the judgment and are
governed by specific provisions in the Federal Rules of Civil Procedure. Included
are the following:
• motions for a new trial (Rule 59)
• motions to alter or amend a judgment (Rule 59(e))
• renewal of motions for judgment after trial (Rule 50(b))
• motions for attorney fees when authorized by statute or rule
• motions for relief from a judgment on the ground of a clerical mistake
(Rule 60(a)) or the following grounds under Rule 60(b): inadvertence,
surprise, excusable neglect, newly discovered evidence, fraud, void judg-
ment, or satisfaction, release, or discharge
These motions are processed like pretrial motions, but your judge may pre fer
to handle them without oral argument because of famil iarity with the issue from
earlier proceedings.
The procedures for execution and for supplementary proceedings in aid of
judgment and execution are generally those of the state in which the court sits.
Fed. R. Civ. P. 69. The most common procedures are execution, attachment, gar-
nishment, sequestration, proceedings against sureties, and contempt. During the
course of these proceedings the judge may be called on to conduct evidentiary
hearings, rule on motions, and supervise dis covery in the same manner as during
the original litigation on the merits.
S. Appeals from Decisions of Administrative Agencies
Some districts are presented with a large numbers of appeals from the decisions
of administrative agencies and have created special proce dures to handle them.
One example is a petition for review of adverse decisions of the Social Security
Administration (SSA). Some district judges re fer these to magistrate judges.
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Others handle these cases themselves with the assistance of their law clerks.
District court review is statutorily limited to a deferential examina tion of the
record to determine whether adequate procedures were fol lowed, whether the SSA
relied on correct legal standards, and whether substantial evidence supports the
decision of an administrative-law judge. Most districts have a general procedural
order for the review procedure in such cases. This order requires the assistant
U.S. attorney to file a motion for summary judgment to affirm the SSA’s decision.
The claimant may file a reply brief within a period fixed by the local rules, and
the matter is then automatically taken under submission without oral argument,
unless the judge orders oth erwise. Once the matter is under submission, the law
clerk typically prepares a draft order or opinion affirming the SSA’s decision
(the most common result because of the limited scope of review), reversing it, or
remand ing it either for a new hearing (because of a procedural or legal error) or
to take new evidence. You should obtain sample opinions rendered by the judge
in other Social Security cases and use them as models.
§
3.2 The Criminal Action
In federal law there are no common-law crimes, only statutory offenses. Most
federal crimes are defined in Titles 18 and 21 of the U.S. Code, but some criminal
penalties are set forth in other stat utes. The procedure in criminal cases is
governed by the Federal Rules of Criminal Procedure; misdemeanor cases
are governed by Federal Rule of Criminal Procedure 58. Much of law clerks’
involvement in crimi nal cases is similar to their responsibilities in civil cases.
The following materials outline the major stages in a criminal case. This is
only a generalization to aid in understanding the pro cess. Individual cases may
proceed differently, and cases can terminate at various stages, such as when
the defendant enters a guilty plea, the court grants a motion to dismiss the
indictment, or the jury finds the defendant not guilty. See the Benchbook for U.S.
District Court Judges (Federal Judicial Center, 6th ed. 2013) for more information
on criminal proceedings.
A. Proceedings Before a Magistrate Judge
A criminal case may begin in any of the following ways:
• arrest without warrant followed by the filing of a complaint (Fed. R.
Crim. P.3); appearance before a magistrate judge (Fed. R. Crim. P.5);
commitment or release on bail (18 U.S.C. §§ 3141–3151); preliminary
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hearing before a magistrate judge (Fed. R. Crim. P.5.1); and grand jury
presentment (Fed. R. Crim. P.6)
• arrest on warrant issued upon a complaint (Fed. R. Crim. P.4) followed
by appearance before a magistrate judge; commitment or release on bail;
preliminary hearing before a magistrate judge; and grand jury indict-
ment (Fed. R. Crim. P.6)
• arrest on warrant issued upon indictment (Fed. R. Crim. P.9) followed
by appearance before a magistrate judge and commitment or release
on bail
• issuance of summons (Fed. R. Crim. P.9), which directs the de fendant to
appear without being arrested
Upon arrest, a defendant must be brought before a magistrate judge “without
unnecessary delay.” Federal Rule of Criminal Procedure 5 re quires that at the
initial appearance before the magistrate judge, the de fendant must be advised of
the following:
• the charges contained in the complaint or the indictment and the content
of any affidavits filed with the complaint
• the right to retain counsel
• the right to have counsel appointed if the defendant is financially unable
to retain counsel
• the right to a preliminary hearing
• the fact that the defendant is not required to make a statement and that
any statement made may be used against the defendant
The magistrate judge may take the following additional actions:
• if the defendant cannot afford to retain counsel, appointing counsel
unless the defendant declines the assistance of counsel (18 U.S.C.
§3006A(b))
• determining bail or other conditions for release (18U.S.C. §3142)
• if the defendant is unable to post bail or meet the conditions for release
established by the magistrate judge, committing the defendant to custody
(18U.S.C. §3142(e))
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B. Indictment
The Fifth Amendment guarantees a person charged with a serious fed eral crime
the right to have the charge presented to a grand jury.
District courts empanel grand juries as needed. A grand jury consists of
sixteen to twenty-three members, selected in accordance with the jury selection
plan of the district court. Fed. R. Crim. P. 6. The jury continues to serve until dis-
charged by the court, but it may not serve for more than eighteen months, unless
the court determines that an extension is in the public interest, in which case the
jury’s service can be extended up to six months more.
Rule 6(c) states that the court “shall appoint one of the jurors to be foreperson
and another to be deputy foreperson.” The foreperson is responsible for recording
the number of jurors concurring in the finding on each indictment and for filing
that record with the clerk of court.
Grand jury proceedings are usually secret with limited exceptions, including
disclosure authorized by the judge. Fed. R. Crim. P. 6(e). Government counsel, the
witness, and necessary court reporters and interpreters may be present while evi-
dence is being presented, but only the jurors themselves may be present during
deliberation and voting. Grand jury indictments are presented to a judge or
magistrate judge in open court.
A defendant who is entitled to be prosecuted by indictment may waive that
right in open court. In that case, prosecution is by information. Fed. R. Crim. P. 7(b).
C. Arraignment and Plea
The purpose of an arraignment is to ensure that the defendant is informed of
the charges and has a chance to enter a plea. The defendant may plead guilty,
not guilty, or nolo contendere. The court may refuse to accept a plea of guilty
or nolo contendere. If the defendant pleads guilty or nolo contendere, the court
must be satisfied that the defendant understands the nature of the charge and the
maximum and minimum mandatory penalties, and must determine that the plea
is made voluntarily. Fed. R. Crim. P. 11(c) and (d).
At the time of arraignment, the defendant will usually plead not guilty. This
gives counsel time to research the legal rules governing the charges, investigate
the evidence against the client, ascertain whether any of the evidence may
be suppressed, and determine whether a plea bargain is desirable or possible.
Thereafter, a plea of guilty or nolo con tendere is frequently entered as a result
of plea bargaining between the prosecution and the defense. Plea bargaining is a
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process through which the defendant agrees to enter a guilty plea on the condition
that the prosecution reduce the charge, dismiss some of a group of multiple
charges, or grant some other concession. When the defendant pleads guilty, the
judge must inquire of the defendant whether there has been any agreement or
plea bargain, and if so, the understanding or agreement must be fully set forth in
the record. Fed. R. Crim. P.11(b).
If the defendant pleads not guilty and does not thereafter change the plea,
the case proceeds to trial.
D. The Speedy Trial Act
The Speedy Trial Act of 1974 (18U.S.C. §§3161–3174) has an important impact
on proceedings in criminal cases. The Act requires the court “at the earliest
practicable time... after consultation with the counsel for the defendant and
the attorney for the Government” to set the case for trial “on a day certain, or
list it for trial on a weekly or other short-term trial calendar.” 18U.S.C. §3161(a).
Each district has adopted a plan for the disposition of criminal cases pursuant
to the Act.
Under the Act, the prosecutor must file an information or indictment within
thirty days of arrest or service of summons. 18 U.S.C. §3161(b). An addi tional
thirty days is allowed if no grand jury has met in the district within the first
thirty-day period. That begins an inexorable movement toward trial. Further
time limits are prescribed in §3161, along with exclusions for delays that will not
violate speedy trial requirements.
Because criminal trials must take place within the Act’s time limits, criminal
trials generally take precedence over civil cases. Judges and chambers staff must
pay close attention to the time limits and exclusions when scheduling criminal
cases. Failure to meet the prescribed time limits requires dismissal of the charges.
E. Pretrial Motions
Motions are most frequently filed before trial for the following rea sons:
• to challenge the sufficiency of the indictment or information, by way of
a motion to dismiss
• to challenge the jurisdiction or venue
• to suppress evidence, usually on the ground that it was obtained in a
manner that violated the defendant’s constitutional rights
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• to discover evidence
• to obtain release of the defendant on reduced bail or the defendant’s own
recognizance while awaiting trial
In cases involving indigent defendants, motions or ex parte applications are
often filed to request that specialized services such as psychiatric exam inations,
special investigations, or expert services be provided at the expense of the United
States and to obtain the appointment of counsel if this has not already been done.
Motions are sometimes filed late in the proceedings. For example, a motion
for severance of a trial from the trial of a codefendant may be filed three or four
days before the pretrial conference, which may be set only a week or two before
trial. The assistant U.S. attorney charged with the prosecution of the case may
not respond until the pretrial conference. Therefore, when a motion is filed in a
criminal case, it usually requires prompt attention, and often the law clerk will
brief the judge orally or write a memo summarizing the motion and the law on the
subject before the opposition papers are filed.
F. Discovery and Pretrial Hearing
Traditionally, discovery in criminal cases has been extremely limited. However,
Federal Rule of Criminal Procedure 16 permits the defendant to discover some of
the evidentiary material in the government’s pos session. If the defendant does
seek discovery under Rule 16, the gov ernment is entitled to a limited amount of
discovery in return. The matters that are subject to such discovery are set forth
specifically in that rule. Moreover federal prosecutors are obliged under the U.S.
Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), to disclose
exculpatory matter to the defense, even in the absence of a defense request for
such material. The Court held that not to do so would violate the defendant’s due
process rights under the Fifth Amendment of the U.S. Constitution.
Many courts conduct a pretrial hearing to determine what motions will be
filed, to simplify issues, and to expedite disclosure of the government’s evidence.
G. Trial and Posttrial Detention
The jury in a criminal case consists of twelve jurors and as many al ternates as the
court thinks necessary. At trial, the jury is impaneled, evidence is presented, and
the jury renders a verdict. If the ver dict is guilty, the court must decide whether
to alter the custody of the defendant pending sentencing and must set a date to
impose sentence. If the defendant is not in custody, the judge usually inquires
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whether the defendant should be at large on the same bond, pending imposition
of sentence. A person found guilty and awaiting imposition of sentence must
be de tained unless the judge finds “by clear and convincing evidence that the
person is not likely to flee or pose a danger to the safety of any other person or
the community” if released. 18U.S.C. §3143(a). The judge usually orders a pre-
sentence investigation. The defendant is either notified to appear for sentencing
on a fixed date or informed that the court will give notice by mail of the date the
sentence is to be imposed.
H. Sentencing
1. Sources
Sentencing and sentencing procedures in federal court are guided by four main
sources: the statutory maximums and minimums pre scribed for the offenses in
Titles 18 and 21 and other sections of the U.S. Code; the Sentencing Reform Act
of 1984 and various subsequent amending statutes; the federal Sentencing Guide-
lines that are set forth in the Guidelines Manual issued by the U.S. Sentencing
Commission in keeping with the Sentencing Reform Act; and the Federal Rules of
Crimi nal Procedure, especially Rule 32 (“Sentence and Judgment”) and Rule 35
(“Correction or Reduction of Sentence”).
Since their inception in 1987, the Sentencing Guidelines were mandatory, with
exceptions to a guideline sentence allowed only under limited circumstances.
In 2005, however, the Supreme Court ruled that in order to avoid violating the
Sixth Amendment, the provisions of the Sentencing Reform Act that made the
Sentencing Guidelines mandatory must be excised. United States v. Booker,
125 S. Ct. 738 (2005). Although the Sentencing Guidelines are now “advisory,”
they must still be “considered” along with the other sentencing factors listed in
18U.S.C. §3553(a). Courts must continue to calculate the guideline range, and
determine whether a departure from that range may be warranted under the
guidelines, before deciding whether other factors in §3553(a) call for a different
sentence. A sentence will be upheld if it is not “unreasonable” under an abuse-of-
discretion standard.
Each judge’s chambers has a copy of the Sentencing Commission’s Guidelines
Manual. Other instructional material that the Com mission or the Federal Judicial
Center may distribute should also be kept on hand and can be found on their
respective websites.
The Sentencing Guidelines—strictly defined and identified as such in the
Guidelines Manual—are used to calculate a defendant’s guideline sentencing
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range. The Sentencing Re form Act also authorized the Commission to issue “policy
statements” to explain the guidelines and their application. In its guidelines
document, the Commission has also provided “commentary” and applica tion
notes, which further explain the guidelines and the Commission’s intent.
In keeping with the Sentencing Reform Act, the Sentencing Commission
established numerous categories of offense conduct to which it assigned levels
ac cording to the seriousness of the offense. The levels are to be adjusted based
on the particular characteristics of the offense (such as use of a weapon), so that
the sentence reflects the “total offense conduct,” not simply the offense charged
in the indictment. Also in keeping with the statute, the Commission established
criminal history categories, based on the number and seriousness of a defendant’s
prior offenses. A defendant’s sentencing range, in months, is based on the
combination of offense level and criminal history category. However, if a statutory
mandatory minimum sentence applies to an offense, and the guideline sentence
is lower than the mandatory minimum, the mandatory minimum sentence must
be used (subject to exceptions outlined in U.S.S.G. §5C1.2). Similarly, a statutory
maximum will limit a guideline sentence.
The applicable sentencing range may be adjusted up or down if “the court
finds that there exists an aggravating or mitigating circumstance of a kind, or
to a degree, that was not ad equately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence
different from that described.” Circumstances that may warrant such a departure
are set forth in several of the guidelines, policy statements, and application
notes. A judge who departs from the sentence determined by the application of
the guidelines must state “the specific reason” for not following the guidelines.
18U.S.C. §3553(c).
Whether the judge decides to impose the applicable guideline sentence or
depart from it, Booker requires the judge to also consider the other sentencing
factors in §3553(a). If circumstances warrant, the judge may impose a sentence
that, subject to statutory minimums and maximums, is outside of the guideline
range or is a guideline departure. A judge is required by §3553(c) to “state in
open court the reasons for . . . imposition of the particular sentence.” Either
the defendant or the government may appeal a sentence imposed as a result of
an incorrect application of the guidelines, 18U.S.C. §3742(f), or, after Booker,
a sentence that is alleged to be “unreasonable.” The sentence imposed will be
the length of time actually to be served, except that fifty-four days of good time
credit may be earned on a sentence greater than one year. The guidelines also tell
how to determine the fine to be imposed in addition to any statutorily required
restitution, and they indicate when probation or some other sentence instead of
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incarcera tion may be imposed. Although the Sentencing Reform Act does not
provide for parole, the sentence may include a term of supervised re lease to
follow the prison sentence.
2. Sentencing Procedures
In most courts, the basic document judges use to determine a sentence is the
presentence report prepared by a probation officer. Federal Rule of Criminal
Procedure 32(d) prescribes the contents of the presentence report. The report
presents the facts of the case relevant to sentencing, including information
relevant to the factors in 18U.S.C. §3553(a); explains the results of the officer’s
application of the sentencing guidelines; and provides the officer’s confidential
sentencing recommendation. It may contain an addendum listing statements in
the report to which one of the parties objects and also the officer’s comments on
those objections. Officers use a standard form for the presentence report, which is
available from the Administrative Office on JNet (http://jnet.ao.dcn/resources/
forms/worksheet-presentence-report).
Federal Rule of Criminal Procedure 32(e)(2) requires disclosure of the
presentence report to the defendant at least thirty-five days before sentencing,
unless the defendant waives that period. This early disclosure allows the attorneys
to review the report and discuss their objections with the probation officer. The
probation officer can revise the report to take into account legitimate objections
and to summarize and comment on unresolved objections in an addendum to the
revised presentence report, as mentioned earlier. Some courts have adopted local
rules that do not involve the probation officer so extensively in the fact-finding
process. They direct the parties to file a motion or memorandum discussing
unresolved issues directly with the judge.
If there are disputed factual issues that could affect the sentence, the judge may
find it necessary to hold an evidentiary hearing before imposing a sentence. (The
Federal Rules of Evidence do not apply at the sentencing hearing.) Additionally,
if there is a dispute concerning the correct interpretation of the guidelines, the
court may wish to hear argument from the attorneys. After resolving the disputes,
the judge imposes sentence. Title 18 U.S.C. §3553(c) requires the court to state
the reasons for the sentence on the record in order to facilitate appellate review.
The statement of reasons may also be contained in the order of judgment and
commitment (AO Form 245B, rev’d Sept. 2011, http://jnet.ao.dcn/resources/forms/
judgment-criminal-case), which provides the details of a defendant’s conviction
and sentencing and the findings of the court. Both must be furnished to the
probation office and to the Sentencing Commission and, if the sentence includes
imprisonment, to the Bureau of Prisons (BOP). The Sentencing Commission
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uses the information for statistical analysis and its ongoing research on the
administration of the Sentencing Guidelines. For sentencing after Booker, the
information is also used to analyze sentences imposed outside of the now-advisory
guidelines. The Bureau of Prisons uses the judgment and commitment order, along
with the presentence report, in its classification and designation decisions, and it is
particularly important for the BOP to receive the statement of reasons in case the
court has made findings that differ from the information in the presentence report.
3. Appellate Review
Either the defendant or the government may appeal the sentence on the grounds
that it was imposed in violation of law or represents an incorrect application of
the guidelines. Also, guideline departures are appealable by the defendant, if
the sentence is above the guidelines, or by the government, if it is below. See
18U.S.C. §3742(a) & (b). Following Booker, a sentence may also be appealed as
“unreasonable.” If the appeals court reverses the sentence, the case is remanded
to the district court for resentencing, unless the same sentence would have been
imposed absent any invalid factors.
4. Role of Law Clerks
District judges vary on what they require of their law clerks when it comes to
sentencing. Law clerks who are asked to review the presentence re port to assess the
correctness of the probation officer’s guidelines ap plication will have to become
thoroughly familiar with the Commission’s Guidelines Manual and guidelines
case law in their cir cuit. The guidelines, policy statements, and commentary can
be quite complex and sometimes yield more than one plausible interpretation.
Simply consulting the guideline for the type of offense in question will rarely
produce a correct offense-level determination. A correct deter mination will also
reflect, for example, how much of the offender’s actual conduct should be taken
into account in applying the specific offense characteristics. You must be familiar
with the en tire structure of the guidelines in order to apply them to any particular
case. Sample sentencing worksheets prepared by the Commission are found as
an appendix in the Federal Sentencing Guidelines Manual, on the Sentencing
Commission’s website at http://www.ussc.gov/sites/default/files/pdf/training/
online-learning-center/supporting-materials/Worksheets_for_Individuals.pdf,
as well as dis tributed by West Publishing Company. You also should pay special
attention to the effective dates for the relevant legislative and guideline provisions
to determine which provisions apply to the offense in question.
Some judges may wish their law clerks to draft a tentative statement of
reasons for the sentence. Bear in mind that the sentence, and thus the statement
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of reasons, may depend on the resolution of disputed issues of law or fact; these
issues may appear in the addendum to the presentence report or may be raised at
the sentencing hearing.
I. Posttrial Motions
The usual posttrial motions in a criminal case are for a new trial, for arrest of
judgment, or to correct or reduce the sentence. Federal Rule of Criminal Procedure
35 limits the judge’s authority to correct or reduce the sentence. Posttrial motions
are generally pro cessed in the same manner as other motions. Motions under
28U.S.C. §2255 are discussed in the next subsection.
J. Handling Prisoner Petitions
Federal courts receive many petitions from prison inmates requesting relief
from their sentences or protesting their conditions of confinement. The majority
of petitions are from state prisoners alleging state officials’ violation of the
prisoners’ federally protected procedural rights and seeking release from state
custody under the federal habeas corpus act, 28U.S.C. §2254. These are to be
distinguished from petitions seek ing damages or injunctive relief for violation of
a prisoner’s civil rights under 42U.S.C. §1983. Both §2254 and §1983 actions are
civil proceedings.
Federal prisoners may seek release from custody under 28 U.S.C. § 2255.
Although §2255 is similar to habeas corpus, and is also a civil proceeding, it
requires the petition to be filed in the sentencing court rather than in the
court having jurisdiction over the place of incarceration (a § 2255 pro ceeding
is considered a continuation of the original criminal action). This eliminates
problems of transferring case files and usually permits ready access to witnesses
and other evidence.
Prisoner petitions are frequently handwritten and poorly drafted. As a result,
they may be difficult to read and understand. The rules governing cases under
§2254 and §2255 may be found in the United States Code Annotated following the
statutory sections. Pro se petitioners in such cases must complete a standard form
in order to make the alleged facts and the nature of the claim more intelligible.
The forms assist prisoners and the court by ensuring that critical information is
pro vided in a coherent format. In a further attempt to process the large volume of
prisoner petitions, some courts have created the position of motions law clerk or
pro se law clerk. Some district courts also have standard forms for use in pro se
petitions based on §1983. (Addi tional discussion of prisoner correspondence can
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be found in section 4.1.C.) Judges can decide many of the postconviction petitions
by exam ining the papers, but if material factual issues are raised, the judge must
conduct an evidentiary hearing.
§
3.3 Bankruptcy Proceedings
A. General Structure and Jurisdiction
Article I, Section 8, of the U.S. Constitution authorizes Congress to enact “uni-
form Laws on the subject of Bankruptcies throughout the United States.” The pri-
mary source of such law is Title 11 of the U.S. Code, commonly referred to as the
Bankruptcy Code. In addition, Title 28, the Judicial Code, contains provisions on
bankruptcy judges and bankruptcy courts, jurisdiction and venue, appeals, the
U.S. trustee system, and bankruptcy fees.
The district court in which a bankruptcy case is commenced has original and
ex clusive jurisdiction of the bankruptcy case and of all property of the debtor,
wherever located, as of the commencement of the case. 28U.S.C. §1334(a),(e).
The district court also has original but not exclusive jurisdiction of all civil
proceedings “arising under Title 11” or “arising in” or “related to” cases under Title
11. 28U.S.C. §1334(b). A “case” refers to the entire matter relating to a particular
debtor. A “proceeding” is any dis puted matter arising in the course of a case. Thus
a single case may involve many proceedings.
Each judicial district has a bankruptcy court, which constitutes a unit of the
district court. 28U.S.C. §151. The district court may refer all bankruptcy cases and
proceedings (28U.S.C. §157(a)), except those involving personal injury tort and
wrongful death claims (28U.S.C. §157(b)(5)), to the bankruptcy court. Currently,
each district court has a general order referring all eligible bankruptcy cases
and proceedings to the bankruptcy court. The district court may withdraw the
reference of a case or proceeding, in whole or in part, for cause, and is required to
do so under certain limited circumstances. 28U.S.C. §157(d).
Bankruptcy judges are appointed by the court of appeals for a term of
fourteen years and may be removed from office by the circuit judicial council only
for incompe tence, misconduct, neglect of duty, or physical or mental disability.
They may be reappointed for additional terms. If the district has more than one
bankruptcy judge, judges of the district court designate a chief bankruptcy judge.
Each bankruptcy judge is entitled to a staff consisting of either a judicial assistant
and a law clerk, or two law clerks. 28U.S.C. §§152, 154, 156.
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In almost all dis tricts, the bankruptcy court has its own clerk of court. In a few
districts, the clerk of the district court also serves as clerk of the bankruptcy court.
The functions of the bankruptcy clerk’s office are similar to those of the clerk of
the district court. As a practical matter, bankruptcy cases and proceedings are
filed in the bankruptcy court clerk’s office, not in the district court clerk’s office.
Most bankruptcy courts permit or require documents to be filed electronically,
except those filed by pro se debtors. 28 U.S.C. §156.
B. The Authority of the Bankruptcy Judge, Core Versus
Noncore Proceedings, and Jury Trials
The Judicial Code draws an important distinction between core and noncore
bankruptcy proceedings. Core proceedings are those “arising under Title 11”
or “arising in a case,” whereas noncore proceedings are those that are “related
to a case.” 28 U.S.C. §157(b)(2) contains a nonexclusive list of sixteen types of
proceedings that are core. The bankruptcy judge has an independent duty to
determine if a proceeding is core or noncore, which can be a complex matter.
A helpful dis cussion is found in the treatise Collier on Bankruptcy (16th rev.
ed. 2009).
The bankruptcy judge may “hear and determine... and may enter appropriate
orders and judgments” relating to cases and core proceedings arising under Title
11 referred to that judge. 28U.S.C. §157(b)(1). A bankruptcy judge may hear a
proceeding that is not a core proceeding but can only submit proposed findings
of fact and conclusions of law to the district court. 28U.S.C. § 157(c)(1). After
considering the bankruptcy judge’s proposed findings and conclusions, and after
reviewing de novo those matters to which any party has timely and specifically
objected, the district judge enters the final judgment. 28U.S.C. §157.
Stern v. Marshall, 131 S. Ct. 2594 (2011), introduced the possibility that a
proceeding defined as core under the Bankruptcy Code (“counterclaims by
the estate against persons filing claims against the estate”) may nevertheless
lie beyond the constitutional power of a bankruptcy judge to adjudicate finally.
The Court expressly stated that its decision should be interpreted narrowly and
that Congress had exceeded constitutional limitations “in one isolated respect.”
Nonetheless, owing to broad language in Stern, its implications seemed to be
uncertain to some at the time.
The Court tried to clarify its ruling in Stern when it decided Executive
Benefits Insurance Agency v. Arkison, 134 S. Ct. 2165 (2014). There the Court held
that because of the severability provision of the Federal Judgeship Act of 1984,
Stern claims—that is, claims that were statutorily defined as core claims, but
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which the Court found bankruptcy courts could not finally adjudicate without
violating Article III of the Constitution—could be adjudicated in the same
manner as noncore claims under §157(c)(1) of the statute. Hence Stern claims
could be treated as noncore claims, for which the bankruptcy court could only
issue proposed findings of fact and conclusions of law that the district court could
review de novo. If the right to jury trial applies to a proceeding the bankruptcy
judge is authorized to hear, the bankruptcy judge may conduct the jury trial if
specially designated to do so by the district court and with the express consent
of all the parties. 28 U.S.C. §157(e). Jury trials in bankruptcy court, however, are
extremely rare. When they do occur, the bankruptcy court works closely with the
district court, since it has the necessary jury procedures in place and may need
to provide a courtroom equipped with a jury box.
C. Relationship to Other Courts
Because federal jurisdiction over bankruptcy proceedings is nonexclusive, other
federal and state courts are not deprived of jurisdiction over matters to which
bankruptcy jurisdiction extends. However, bankruptcy jurisdiction, even when
nonexclusive, is para mount. Litigation in other courts is generally automatically
stayed by the filing of a bankruptcy petition under 11 U.S.C. § 362, or may be
enjoined by an affirmative injunction issued under 11 U.S.C. § 105(a). Moreover,
actions in other courts may be removed to the district court sitting in bankruptcy.
28U.S.C. §1452.
It is frequently de sirable to permit litigation to proceed elsewhere, even
though the bankruptcy court has jurisdiction to hear it. Thus, the district court
or the bankruptcy court may for various reasons choose (or may occa sionally be
required) to abstain from hearing a particular proceeding (28 U.S.C. §1334(c)),
may remand an action removed to it (28U.S.C. § 1452), or may authorize an
action to be filed originally in some other court.
D. Appeals
Law clerks in the bankruptcy courts, district courts, and courts of appeals may
face issues related to bankruptcy appeals, so all need to be familiar with the
structure of the bankruptcy appellate system.
Appeals from final judgments, orders, and decrees of the bankruptcy court
are ordinarily taken to the district court or to the bankruptcy appellate panel
(BAP), if one has been established in the circuit. In the district court, a single
judge decides the appeal; in the BAP, a panel of three bankruptcy judges does
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so, sometimes with and sometimes without oral argument. The district court
and BAP also have discretion to review interlocutory appeals. Further appeals
from district court and BAP decisions are taken to the circuit court of appeals.
28U.S.C. §158.
In addition, 28 U.S.C. § 158 provides that the courts of appeals may hear
appeals from final and interlocutory orders directly from bankruptcy courts
under certain circumstances, bypassing review by a district court or BAP. The
availability of this appellate route requires a certification by the bankruptcy
court, district court, or bankruptcy appellate panel or a joint certification by all
the appellants and appellees that one of the following three conditions is met:
1. The judgment, order, or decree involves a question of law for which there
is no controlling authority by the court of appeals or the Supreme Court,
or it involves a matter of public importance.
2. The judgment, order, or decree involves a question of law requiring reso-
lution of conflicting decisions.
3. An immediate appeal may materially advance the progress of the case
or proceeding.
Upon certification of a direct appeal, the court of appeals has discretion
whether it will accept the appeal.
E. Chapters of the Bankruptcy Code
Chapters 1, 3, and 5 of the Bankruptcy Code cover issues that are relevant to
all bankruptcy cases. Chapter 1 defines who may file bankruptcy, includes an
important general provision about the power of the court, and contains definitions,
rules of construction, and other general rules. Chapter 3 describes how a case is
begun (vol untary and involuntary petitions); deals with officers and their com-
pensation; and contains various administrative provisions and powers, including
the automatic stay (§362), the use, sale, and lease of property (§363), and the
assumption or rejection of executory contracts (§365). Chapter 5 contains much
of the substantive bankruptcy law concerning credi tors, debtors, and the estate.
The provisions found in Chapters 7, 9, 11, 12, 13, and 15 of the code apply only to
cases brought under each particular chapter, with one exception. Section 901 of
Chapter 9 makes some of the Chapter 11 provisions applicable to cases filed under
Chapter 9. (Chapters 2, 4, 6, 8, and 10 do not exist.)
A case in bankruptcy court usually begins with the debtor filing a petition
under a specific chapter of the code. Creditors may initiate involuntary cases
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§ 3.3.E
against debtors, but only under Chapters 7 and 11. With some ex ceptions, cases
can be converted from one chapter to an other.
Under Chapter 7 (entitled “Liquidation”), which is available to individuals,
partnerships, and corporations, a trustee is appointed to liquidate (i.e., reduce
to cash) the debtor’s property and make distributions to creditors, subject to
an individual debtor’s right to retain certain exempt property and the rights of
secured creditors. In most cases, the debtor’s assets are not actually liquidated
because all of the debtor’s assets are exempt. If an individual debtor has complied
with applicable law, the debtor will receive a discharge within a few months
after the petition is filed that releases the debtor from personal liability for the
dischargeable debts. A creditor may object to the discharge of the debtor or to
the discharge of a particular debt. The Bankruptcy Code requires application of a
“means” test to determine whether individual consumer debtors qualify for relief
under Chapter 7; if the debtor’s income exceeds certain thresholds, the debtor
may not be eligible.
Chapter 9 (“Debts of Municipalities”) gives municipalities and smaller
government entities such as water districts a breathing spell from debt collection
efforts so that they can work out a repayment plan for creditors. It is invoked
rela tively infrequently.
Chapter 11 (“Reorganization”) permits a business to restructure its finances so
it can continue to operate. A trustee usually is not appointed in a Chapter 11 case;
instead, the debtor is allowed to remain in possession (as a debtor-in-possession,
or DIP) of its property. A plan for reorganization is developed that permits a
debtor to discharge some of its debt and to, for example, rescale its operations,
terminate burdensome contracts and leases, and recover assets. The code
requires full disclosure to interested parties and confirmation of the plan by the
court. As an alternative to reorganization, the code permits liquidating plans so
as to maximize distributions to creditors. Individuals may also file a Chapter 11
bankruptcy case, but this is not common.
Chapter 12 (“Adjustment of Debts of a Family Farmer or Fisherman with
Regular Annual Income”) is structured like a Chapter 13 case in that the family
farmer or fisherman files a plan to repay debts over a period of time—no more than
three years, unless the court approves a longer period, not to exceed five years—
and receives a discharge after all payments are made. The farmer or fisherman
can continue to operate the business while the payments are being made.
Chapter 13 (“Adjustment of Debts of an Individual with Regular Income”) is
designed for individuals or married couples with regular income whose debts do
not exceed specified amounts. The debtor files a plan in which the debtor agrees
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to pay a portion of future earnings to a Chapter 13 trustee, who makes payments to
creditors. Usually over three to five years, the debtor makes regular payments on
all secured debts and pays a portion of unsecured debts. In exchange, the debtor
gets a discharge or release of personal liability from most debts. The debtor’s
incentive to propose a plan rather than use Chapter 7 stems from the ability of the
debtor to retain all property rather than turn it over to a trustee for liquidation
and from the somewhat broader discharge provisions.
The purpose of Chapter 15 (“Ancillary and Other Cross-Border Cases”) is to
provide effective mechanisms for dealing with cases of cross-border insolvency.
F. Bankruptcy Procedure
1. Rules and Forms
The Federal Rules of Bankruptcy Procedure contain detailed procedures for
bankruptcy cases as well as for the proceedings that are connected to them.
These must be considered in tandem with the Bankruptcy Code, which also sets
forth some procedural requirements. The rules are organized into parts that
correspond to various aspects of bankruptcy procedure.
Compared to practice in other areas of law, bankruptcy practice relies to a
greater degree on standard forms. Bankruptcy Rule 9009 states that the official
bankruptcy forms prescribed by the Judicial Conference must be used to file and
take action in bankruptcy cases, although some variation in format is allowed.
The rule also provides that the director of the Administrative Office may
prescribe additional forms for use under the code, although it does not make use
of these forms mandatory. The official forms and director’s procedural forms are
published as an appendix to the Federal Rules of Bankruptcy Procedure.
In addition to the Federal Rules of Bankruptcy Procedure, each judicial
district may adopt its own set of local bankruptcy rules to facilitate administration
of bankruptcy cases. Local bankruptcy rules must be consistent with the federal
rules, but they may add additional requirements.
2. Applications and Motions
Federal Rule of Bankruptcy Procedure 9013 provides that to request an order
from a judge, a motion must be filed, unless the rules authorize the request to
be made by application. The rules authorize the use of an application in only
a few situations that generally concern matters for which there is no apparent
adverse party at the time of filing. For example, requests for the employment of
professional persons and for their compensation are made by application. The
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procedural rules governing motions practice are found primarily in parts VII
and IX of the Federal Rules of Bankruptcy Procedure. If there is opposition to
an application or motion (outside the context of an adversary proceeding), the
resulting procedure is a contested matter governed by Bankruptcy Rule 9014. See
below concerning adversary proceedings and contested matters.
Compared to other federal judges, bankruptcy judges often handle very large
numbers of unrelated matters in one session of court and may group them by
the relief being sought and whether or not an evidentiary hearing is necessary.
Judges will differ in the type of matters they hear and how they calendar and
otherwise manage them, but they all are likely to call on their law clerks to assist
them in preparing for potential hearings and in drafting opinions.
3. Contested Matters and Adversary Proceedings
Procedurally, proceedings to resolve disputes in bankruptcy cases fall into two
categories: contested matters and adversary proceedings. The Bankruptcy Rules
establish the types of matters that fall into each category and the procedures that
govern each.
Adversary proceedings are literally civil lawsuits within bankruptcy cases.
They are initiated by complaint and require a filing fee, case number, and docket
sheet separate from the main bankruptcy case, and they are conducted much
like a civil case in the district court. Bankruptcy Rule 7001 sets out the ten types
of actions that must be brought as an adversary proceeding. See also Fed. R.
Bankr. P. 3007 & 9025. These include actions for money judgments, actions to
determine the validity, extent, or priority of a lien or other interest in property,
objections to discharge, dischargeability actions, requests for injunctions unless
provided for by the plan, and matters removed from other state or federal courts.
Adversary proceedings and motions filed within them are governed by part VII of
the Bankruptcy Rules, which incorporates by reference most of the Federal Rules
of Civil Procedure, either verbatim or with modification.
Whenever there is an actual dispute other than an adversary proceeding
before the bankruptcy court, the litigation to resolve that dispute is a contested
matter. Additionally, specific Bankruptcy Rules expressly provide that requests
for certain types of relief, whether opposed or not, are contested matters. See,
e.g., Rules 1017(d) (dismissal, conversion, or suspension of a case); 3020(b)(1)
(objection to the confirmation of a Chapter 9 or Chapter 11 plan); 4001 (relief from
the automatic stay, use of cash collateral, obtaining credit); 4003(d) (avoidance
by debtor of lien or other transfer of exempt property); and 6006(a) (assuming,
rejecting, or assigning an executory contract or unexpired lease). Contested
matters are governed by Bankruptcy Rule 9014, which provides that part VII
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Rules 7021, 7025, 7026, 7028–7037, 7041, 7042, 7052, 7054–7056, 7062, 7064, 7069,
and 7071, which incorporate certain civil rules or modifications thereof, generally
apply in contested matters. The court may order, as it deems appropriate, that
one or more of these rules will not apply or that other part VII rules will apply.
Contested matters do not have a separate case number or docket sheet. Only
certain contested matters, such as motions for relief from the automatic stay,
require an additional filing fee.
The functions of the bankruptcy judges’ law clerks in adver sary proceedings
(and to varying extents in contested matters) are essentially the same as those of
district court law clerks in civil cases. See section 3.1.
G. U.S. Trustees and Private Trustees
The U.S. Trustee Program is part of the federal government’s Department of
Justice, not a part of the courts. It was established to handle the administrative
functions of bankruptcy cases and to ensure the integrity of the bankruptcy
system across the nation. The program operates with twenty-one regional offices
and ninety-four field offices, which are headed by U.S. trustees and assistant U.S.
trustees, respectively. See 28U.S.C. §§581–589b. In the six judicial districts in
Alabama and North Carolina, the Bankruptcy Administrator Program, rather
than the U.S. Trustee Program, handles the administrative functions. See §302(d)
(3)(1) of the Bankruptcy Judges, United States Trustees, and Family Farmer Act
of 1986, P.L. 99-554, 100 Stat. 3119, 3123, and §317(b) of the Federal Courts Study
Committee Implementation Act of 1990.
The functions of the U.S. trustees are enumerated in 28U.S.C. §581(a), and
primarily include (1) appointing and supervising the private trustees who collect and
disburse funds to creditors in Chapter 7, 12, and 13 cases; (2) ensuring compliance
with the Bankruptcy Code with respect to information provided in schedules,
disclosure statements, reorganization plans, and other filings; (3) reviewing fee
applications of professionals, such as attorneys and accountants, who serve in
Chapter 11 reorganization cases; and (4) monitoring bankruptcy cases for fraud and
referring criminal matters to the U.S. attorney for prosecution. Trustees do not have
independent enforcement powers; rather, they must request the court to rule on
matters of administration for which there is no voluntary compliance.
The U.S. trustee is responsible for establishing a panel of private trustees to
serve in Chapter 7 cases. When a bankruptcy petition is filed under Chapter 7, the
U.S. trustee appoints a disinterested person from this panel to serve as in terim
trustee. At the first meeting of creditors, the creditors may elect another person
as trustee, although such elections are rare. The U.S. trustee is also responsible
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§ 3.4.A
for appointing one or more “standing” trustees to administer all Chapter 12 and
13 cases filed in a geographic region. In Chapter 11 cases, no trustee is appointed
unless the court orders the appointment after notice and a hearing. If the court
orders an appointment, the U.S. trustee designates the person who will serve,
unless a party-in-interest timely requests that the trustee be elected by the
creditors. In Chapter 7, 12, and 13 cases, the U.S. trustee may act as trustee if a
private trustee is unavailable, although this is rarely done. The code does not
provide for the appointment of a trustee in Chapter 9 cases. 28 U.S.C. § 586,
11U.S.C. §§701–704, 1202, 1104–1106, 1302.
§
3.4 Appeals
A. Processing Appeals
The steps in an appeal are as follows:
1. Filing a notice of appeal
2. Preparing the record on appeal
3. Docketing the appeal
4. Filing the appellant’s brief
5. Filing the appellee’s brief
6. Filing the appellant’s reply brief
7. Deciding if the court dispenses with oral argument, or sched uling of
oral argument
8. Hearing oral argument
9. Deliberating by the court
10. Filing the opinion
11. Filing a petition for rehearing
12. Issuing the mandate (the final stage in the ap pellate process unless the
party applies to the Supreme Court for a writ of certiorari)
The Federal Rules of Appellate Procedure establish certain procedural uni-
formity among the thirteen courts of appeals. However, there are still some dif-
ferences in the procedures in the various circuits. Each court has local rules and
internal operating procedures that describe the precise procedure to be followed
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when there is any variation from the rules and, in some instances, that elaborate
on or am plify the rules. See section 4.2.
B. Notice of Appeal
The timely filing of a notice of appeal is a jurisdictional requirement for any
appeal. Appeals may be filed to challenge decisions of the district court, an
administrative agency, or a bankruptcy appellate panel. Appeals of agency
decisions may be classified as original proceedings in the court of appeals. The
notice of appeal is filed in the district court. The purpose of the notice is to inform
opposing coun sel and the court that an appeal is being taken. The clerk of that
court is required by Federal Rule of Appellate Procedure 3(d) to forward a copy of
the notice to the clerk of the court of appeals.
The time for filing commences when the judgment or order is entered in the
district court from which the appeal is taken. The running of that time is tolled by
the filing of certain posttrial motions in the district court, and the filing of such
motions after a notice of appeal has been filed may viti ate the notice, requiring a
new notice of appeal to be filed after the motion is decided. Fed. R. App. P. 4(a).
Rule 4 provides the following time periods for filing notices of ap peal:
• private civil cases: 30 days
• civil cases in which the United States is a party: 60 days
• criminal cases: 10 days
• criminal cases in which appeal by the government is authorized by stat-
ute (such as appeals from sentences under the 1984 Sen tencing Reform
Act): 30 days
Upon receipt of the notice of appeal, courts of appeals take steps to ensure that
all procedural requirements have been met. The clerk’s office may send counsel
a case-opening letter to establish schedules for record preparation and briefing.
Circuit mediators may conduct initial mediation/settlement conferences to dis-
cuss the issues in the case, with a view to eliminating the briefing of frivolous
issues and to discuss the possibility of set tlement. See Mediation & Conference
Programs in the Federal Courts of Appeals: A Sourcebook for Judges and Lawyers
(Federal Judicial Center, 2d ed. 2006).
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§ 3.4.D
C. Record Preparation
For an appellate court to review the proceedings in a trial court, appellate judges
must have a record available of what occurred in the trial court. Local court rules
prescribe the requirements for counsel to provide the district court with the
record or excerpts of the record (sometimes referred to as a short record), which
may include original pa pers and exhibits filed in the trial court plus a reporter’s
transcript of any relevant proceedings. The Sentencing Reform Act requires that
the record in a criminal case must also include “(1) that portion of the record...
that is designated as pertinent by either of the parties; (2) the presentence report;
and (3) the informa tion submitted during the sentencing proceeding.” 18U.S.C.
§3742(d). This information will often be under seal, because it is confidential.
The Federal Rules prescribe time limits (deadlines) for providing the record
on appeal to the court of appeals. During this time, the appellant must order a
transcript of proceedings if one is needed and make arrangements to pay the
court reporter for services or, in courts using electronic sound recording for the
official record, the clerk of court. The district court clerk assembles the other
papers or electronic files that consti tute the record on appeal. The district court
has the power to extend for an additional fifty days the time for preparing and
sending the record on appeal, after which the court of appeals itself may grant
extensions. Additional time may be needed if the court reporter has not finished
transcribing the proceedings or if counsel has failed to order the transcript in a
timely manner.
To prevent undue delay, the appellate courts have the discretion to refuse to
grant time extensions and may impose sanctions on the appellant or the reporter
for unreasonable delays in preparing the record on appeal.
D. Docketing the Appeal
When the record is completed, or earlier if desired, the appellant must docket
the appeal. This is primarily a clerical process and is performed in the office of
the clerk of the court of appeals. Unless the appellant is exempt from payment, a
docket fee is charged. The clerk of court opens an appropriate file and record and
sends a notice to the parties. Frequently, docketing takes place when the record
on appeal is filed.
The filing of the record provides the base date for most subsequent proceed-
ings in the case.
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E. Briefs and Joint Appendices
Because the appellant has the burden of es tablishing that the trial court erred, it
files the opening brief. The ap pellee then files a brief in response; if the appellant
wishes, the appellant may file a reply brief responding to new matters raised in
the appellee’s brief. The Federal Rules of Appellate Procedure establish standards
for for mat, color of brief covers, content, methods of reproduction, number of
copies, and times for filing of briefs. The local rules for a circuit may impose
further requirements. The schedule for filing briefs is as follows:
• appellant’s brief: 40 days after filing the record
• appellee’s brief: 30 days after service of appellant’s brief
• reply brief: 14 days after service of appellee’s brief
Some courts of appeals have modified the requirements and standards of
the federal rules in certain cases or classes of cases. One of the more common
modifications permits parties appealing in forma pauperis to file fewer copies
of their briefs. While the briefs are being prepared, the parties are required to
de termine which portions of the record on appeal are relevant to the issues
raised; the appellant is required to reproduce these portions as an appendix to
the briefs. There may be only one appendix con taining the portions relied on
by both the appellant and the appellee, which would be referred to as a joint
appendix. If any relevant material is omit ted from the appendix, the court is free
to refer to the original record. Multiple copies of the appendix may be filed so that
each judge and, if needed, each law clerk may have one. Some courts of appeals
have eliminated the requirement of an appendix and permit the substitution of
photocopies of relatively few parts of the record, usually called record excerpts.
The local rules of those courts describe the substitute requirements. Local rules
also address procedures for electronic filing. You should become familiar with the
rules and procedures in your court.
F. Oral Argument
If the court does not decide a case exclusively on the basis of the briefs and written
record (see section 4.6.B on screening cases to select those appeals to be decided
without oral argument), the parties are given an opportunity to present their
arguments to the court orally. Federal Rule of Appellate Procedure 34 permits
the court to fix the time allowed for oral argument. Courts may allow counsel to
file a request in advance for additional time, and the courts have the discretion
whether to grant these requests. Generally, not more than two attorneys are
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§ 3.4.G
permitted to argue for each side. Some court rules encourage argument by only
one attorney for each party.
Many appellate judges require their law clerks to prepare a memo randum
on each case (called a bench memo) for the judge to review before hearing
oral arguments. In some circuits, the law clerk for one judge may prepare a
memorandum to be circulated among the three judges on the panel prior to oral
argument. The judges will study the briefs before oral argument.
The appellant begins the argument. Because the judges have read the briefs
and are therefore familiar with the issues, they some times begin questioning the
attorney shortly after the argument be gins. After the appellant’s argument is
completed, the appellee responds, followed by any reply by the appellant (if the
appellant reserved time for rebuttal).
Although the arguments are recorded, so that the judges and their law clerks
may later review them, some circuit judges may request one of their law clerks
to attend oral argument and take notes of important matters, citations of new
authorities, and concessions made during the argument.
Most cases are heard by a panel of three judges, but a case may be heard en
banc in cases involving a question of exceptional importance or in order to secure
or maintain uniformity of decisions. A case heard en banc is heard by all of the
active judges on the court and any senior judge of the circuit who sat on the panel
that originally heard the case (or, in the Ninth Circuit, by a limited en banc, con-
sisting of the chief judge and ten additional judges selected by lot). En banc hear-
ings are held only when ordered by a majority of the active judges on the court.
Some courts hold hearings in only one location, but most hold court in a
number of locations within the circuit.
G. Deliberation
After a case has been argued and submitted to the court, the panel of judges who
heard the argument meets to arrive at a decision. In most courts, these meetings
are held immediately after the completion of each day’s arguments.
Appellate courts perform three distinct functions. First, they decide the
controversies before them. Second, they supervise the courts within their juris-
diction. Third, they determine the growth and development of the common law
and the interpretation of federal statutory and constitutional law within their
jurisdiction. Each of these functions can become important during the decisional
phase of an appeal be cause the court must not only reach the correct result but
also explain in its opinion the rationale for its decision.
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In most cases, the court arrives at a tentative decision at the first meeting. At
that time, the presiding judge (the senior active circuit judge sitting on the panel)
assigns the case to one member of the panel, who later writes an opinion to be
submitted to the others for approval. When the judges do not reach agreement so
readily, panel members may ex change memoranda about the case and schedule
additional meetings or telephone conferences for further discussion. Law clerks
for appellate judges should know and follow the court’s internal rules and its
customs concerning communications between chambers.
H. Opinion and Judgment
The final product of the court in most appeals is a written opinion setting forth
the decision and the reasoning behind it. The increased number of cases and the
burden of writing formal opinions in every case has caused appellate courts to
use alternatives to formal opinions (such as memorandum, order, or summary
opinions) in many cases, such as those involving only the application of settled
principles to a specific fact situation. Local rules or policies may guide the mem-
bers of the court in deciding which cases deserve full opinions and which opinions
should be published.
When a panel has agreed on an opinion, the authoring judge electronically
transmits it to the clerk of court for public docketing and release. All courts
post opinions on the court’s public website. In some courts, before opinions are
released, they are circulated to all active judges on the court with a time limit for
making suggestions. Sometimes when a judge or a group of judges disagrees with
the majority decision reached by their colleagues and they feel strongly enough
about it, the judge or judges will write a dissenting opinion explaining what
aspects of the decision they disagree with and why. Even though they express
opinions that did not prevail, dissents can contribute to the legal debate over the
issues at hand and provide judges in similar cases with different perspectives.
I. Rehearing
The party who loses an appeal may file a petition for rehearing within fourteen
days after judgment is entered. That petition attempts to per suade the panel that
the decision was erroneous and should be with drawn or revised. The prevailing
party may not file a response to the petition unless one is requested by the court.
Most petitions for rehear ing are denied.
The losing party may also move for a rehearing en banc. That mo tion is cir-
culated to all members of the original panel and all active judges who did not sit
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§ 3.4.K
on the panel. Only the active circuit judges and any senior judge who was a mem-
ber of the original panel may request a vote on the suggestion to rehear the appeal
en banc, and only the active circuit judges may vote on whether the appeal should
be reheard en banc; if a rehearing en banc is granted, only active circuit judges
and senior circuit judges from the circuit who were members of the original panel
may sit on the rehearing. By local rule, a circuit may impose time limitations
within which a member of the court may re quest an answer to a petition for re-
hearing or rehearing en banc or a vote on such a petition.
J. Mandate
The mandate is the document by which the court of appeals formally notifies the
district court of its decision and by which jurisdiction for any necessary addition-
al proceedings is conferred upon the district court. The mandate is issued by the
clerk of court seven calendar days after the time to file a petition for rehearing
expires, or seven calendar days after entry of an order denying a timely petition
for panel rehearing, petition for rehearing en banc, or motion for stay of mandate,
whichever is later. These times may be shortened or lengthened by court order.
Fed. R. App. P. 41(b). The losing party may request by motion that the issuance of
the mandate be stayed in order to maintain the status quo during the pen dency
of an application for a writ of certiorari to the Supreme Court. The court of ap-
peals may require that a bond be posted as a condition to staying the issuance of
the mandate.
K. Motions
During the course of an appeal, the parties may file a variety of mo tions. Most of
these are procedural and, to the extent permitted by the Federal Rules of Appel-
late Procedure, some courts have authorized their clerks of court or other court
unit executives to act on motions, for example, motions
• for extensions of time to perform any of the acts required by local rules
or the Federal Rules of Appellate Procedure
• for relief from specific requirements of the local rules or the Federal
Rules of Appellate Procedure
• for permission to alter the form or content of the record on appeal;
• for leave to file amicus curiae briefs
• for delay in the issuance of the mandate
• for voluntary dismissal of the appeal
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Motions requiring action by a judge or panel of judges are those
• on issues relating to criminal cases or suits for postconviction relief such
as motions for appointment of counsel, leave to appeal in forma pauperis,
certificates of probable cause, and bail pending appeal
• for stays or injunctions pending appeal
• for leave to file interlocutory appeals
• for issues relating to stays granted in the district court
• for permission to file a brief containing more pages than the number
fixed by the rules
• for issues relating to the time allowed for oral argument
• to dismiss an appeal filed by the appellee
In most courts, the staff attorney’s office is responsible for reviewing motions
and referring them to judges for appropriate disposition.
L. Emergency Proceedings
Both district courts and courts of appeals are frequently asked to make decisions
on an emergency basis. In the appellate courts, these occa sions usually arise when
a litigant or a lower court is about to take some action that may cause irreparable
injury. The potentially aggrieved party seeks redress by motion for stay or
injunction pending appeal or by petition for writ of mandamus or prohibition. In
the district courts, these matters usually arise through a request for a temporary
restrain ing order.
Each court has developed internal procedures for handling these matters
efficiently, but the procedures vary among courts. Courts have also established
special procedures for handling emergency appeals of capital (death penalty)
cases. Law clerks should become familiar with the procedures established by the
local rules and the judge’s own practices.
§
3.5 Courts of Specialized Jurisdiction
You may also encounter litigation from one of the various special courts established
by Congress. The term special courts derives from their specialized jurisdiction.
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§ 3.5.D
A. Court of Appeals for the Federal Circuit
The Court of Appeals for the Fed eral Circuit, based in Washington, D.C., has juris-
diction over appeals from the following: district courts in cases involving patents
and certain claims against the United States; the U.S. Court of Federal Claims; the
Court of International Trade; the Court of Veterans Appeals; the Merit Systems
Protection Board; the Patent and Trademark Office; the boards that decide gov-
ernment contract issues; and a few other Article I agen cies.
B. Court of International Trade
The Court of International Trade, based in New York City, hears cases concerning
the value or classification of imports. Its judges may sit by designa tion on other
Article III courts.
C. U.S. Judicial Panel on Multidistrict Litigation
This panel was created to consider transferring civil actions involving one or
more common questions of fact pending in different districts to a single district
for coordinated or consolidated pretrial proceedings. The panel consists of seven
district and circuit judges who are appointed by the Chief Justice and sit on the
panel in addition to their regular judicial assignments. The panel maintains a
roster of transferee judges to whom it assigns the cases it certifies for transfer. For
discussion of multidistrict litigation problems, see section 3.1.F.
D. Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court (FISC), or the FISA court, as it is
popularly called (after the Act that created it), is composed of eleven federal
judges, selected by the Chief Justice to a nonrenewable seven-year term. The
court’s job is to review applications for governmental surveillance of persons
within the United States whom the government suspects of having connections to
foreign governments and/or terrorist organizations. A Foreign Intelligence Court
of Review was also established to review applications denied by the FISA court.
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§
3.6 Article I Courts
Congress has created many tribunals to assist it in meeting its legisla tive respon-
sibilities under Article I of the Constitution. These courts do not exercise judicial
power conferred by Article III, and the judges are appointed for fixed terms rather
than given life tenure. They include the many administrative law judges serving
in the executive agencies who hear disputes over claims and benefits, subject to
review by agency officials.
A. U.S. Tax Court
The U.S. Tax Court has jurisdiction over controversies involving deficiencies de-
termined by the commissioner of internal revenue in income, estate, and gift
taxes, as well as other tax-related disputes between taxpayers and the Internal
Revenue Service. The principal office of the court is located in Washington, D.C.,
and it conducts trial sessions in other cities throughout the United States.
B. U.S. Court of Federal Claims
The U.S. Court of Federal Claims was originally called the U.S. Claims Court. The
court has jurisdiction over claims brought against the U.S. government. The court
is located in Washington, D.C.; however, its jurisdiction is nationwide, enabling it
to conduct trials in locations convenient to the parties involved in the case.
C. U.S. Court of Appeals for the Armed Forces
Congress established the U.S. Court of Appeals for the Armed Forces as an ap-
pellate criminal court, hearing all cases involving military courts-martial. It is
located in Washington, D.C.
D. U.S. Court of Appeals for Veterans Claims
The U.S. Court of Appeals for Veterans Claims has exclusive jurisdiction to review
the decisions of the Board of Veterans Appeals. The court’s principal location is in
Washington, D.C., but it may hold court anywhere in the United States.
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4
Chambers and Case
Management
§
4.1 Chambers Administration
This chapter gives you a broad overview of some of your responsibilities as a law
clerk in maintaining a well-run chambers. These responsibilities include helping
to ensure chambers security; answering telephones and mail; maintaining the
judge’s motion, hearing, and trial calendars; and other miscellaneous matters.
Discussing all such duties would, of course, be impossible, and some judges have
chambers manuals detailing how they expect their chambers to operate. Under-
standing and accommodating your judge’s preferences is key to maintaining an
efficient chambers, and regardless of the general guidance offered in this chapter,
you should always follow the particular policies and practices of your judge.
Effective management is essential to the efficient administration of justice.
While judicial assistants often have principal responsibility for managing various
aspects of chambers administration, as a law clerk you should be familiar with
the standard operating procedures in your chambers and be available to pitch in
when needed.
A. Security
The safety and security of federal buildings and the people who work in and visit
them are major concerns for the U.S. Marshals Service (USMS). Attorneys and
other members of the public must pass through magnetometers and have their
briefcases and other items screened by an X-ray machine to enter most court-
houses and other federal buildings. In addition, all judges’ chambers are equipped
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with an entry control system that consists of a security camera and monitor and
a door release strike. Courthouse employees may be issued key cards enabling
them to enter the courthouse without passing through metal detectors and to
access secured, nonpublic sectors of the building, including judges’ chambers, de-
pending on the individual court’s access-control security plans. Employees may
also have after-hours and weekend access to the building through use of these
keycards, which should be kept in a secure place and reported immediately if lost.
All courthouse employees should carefully follow security procedures and report
potential problems to the USMS.
The U.S. Marshals Service is principally responsible for security of the court
and its personnel, though most courthouse security functions are performed by
court security officers (CSOs), who are funded by the judiciary’s Court Security
Program and by the Federal Protective Service on a limited basis. Become familiar
with the court’s Occupant Emergency Plan and other related USMS security
plans in your courthouse, and help to maintain a secure chambers. Do not let
unauthorized strangers into secure areas of the courthouse, and report suspicious
mail or threatening phone calls. During security-sensitive proceedings, a judge
may request that a deputy from the U.S. Marshals Service or a CSO be present in
the courtroom.
Because federal judges are occasionally the targets of terrorists or disgrun-
tled litigants, be careful when opening mail. Mail received in the courthouse is
routinely screened by the USMS before distribution to chambers and offices. Still,
it pays to be alert to suspicious-looking items. Common recognition points for
letter and package bombs include the following:
• foreign mail, air mail, and special delivery
• restrictive markings (e.g., confidential, personal)
• excessive postage
• handwritten or poorly typed addresses
• incorrect titles
• titles, but no names
• misspelled common words
• oily stains or discolorations
• no return addresses
• rigid envelopes
• lopsided or uneven envelopes
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• protruding wires or tinfoil
• excessive securing material such as masking tape or string
• drawings, diagrams, or illustrations
If a letter or package arouses attention, do not attempt to open it. Instead,
immediately notify the marshals’ office or a CSO.
B. Telephone
Practices for dealing with incoming calls (e.g., how to answer the telephone, how
to take messages, and when and if to transfer a call to the judge) will vary from
chambers to chambers. In general, however, answer calls promptly, identify the
office (e.g., “Judge Smith’s chambers”), and treat all callers courteously. And, of
course, hold personal calls to a minimum, both in length and in number. See
section 2.2.A.1 on communication with the media.
C. Correspondence, Email, and Other Mail
In addition to correspondence by U.S. postal and messenger service, many cham-
bers now correspond by email with a wide variety of people, including counsel.
While email has in some ways made communicating easier and more efficient, it
has also made it even more important to stay on top of organizing and processing
the mail. Email also presents serious potential problems relating to the accidental
forwarding of messages, either to unintended parties or containing information
not intended for the recipient. And bear in mind how easily emails can be broadly
disseminated through forwarding and posting on websites and social media. Take
special care to avoid sending and forwarding email messages that may result in
embarrassment, a breach of confidence, or worse, and review and carefully proof-
read any outgoing messages (and fight the temptation not to proofread email as
carefully as paper correspondence).
Most chambers have practices and procedures for handling incoming and
outgoing mail, including email (whether and when to delete email messages,
how to store important messages for future reference, and other matters of email
retention and organization). Quickly become familiar with these practices to
help mitigate complications arising from the enormous number of emails that
many chambers receive.
Depending on office procedure, either a judicial assistant or a law clerk will
open and review correspondence and make an initial decision concerning how
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it should be handled. Many judges receive their own emails directly, though
some may ask staff to review messages first. Incoming mail and emails should
be reviewed as soon as they are received because they may relate to matters
scheduled for that day. When correspondence referring to a pending suit is for-
warded to any counsel of record over the signature of the judge, law clerk, or
judicial assistant, copies should be sent to all other counsel of record to avoid
inappropriate ex parte contact. Appellate judges seldom correspond directly with
counsel on case-related matters, because appellate judges work on cases as part
of a panel or court rather than individually. Instead, appellate judges will send
instructions to the clerk of court on how to respond to counsel.
Correspondence from the general public that is not related to a case is still
important because citizens have a right to courteous treatment. Also, the public’s
opinions about the fairness, responsiveness, and effectiveness of the judiciary
are influenced by the promptness and appropriateness of the court’s answers. In
the district court, some of the correspondence from the public involves requests
to be excused from jury service. That subject is dealt with in section 4.3.D.2.
Some correspondence contains character references on behalf of an offender
who is sched uled for sentencing. Judges differ in their handling of such corre-
spondence. Many simply acknowledge receipt of the letter and refer the letter to
the probation office.
Other correspondence from the public may express reactions to a judge’s
ruling. Whether positive or negative, expressions of opinion by members of the
public generally call only for courteous acknowledgment, not for an explanation
or justification of the judge’s action. If a letter requests information about a
ruling, many judges simply acknowledge receipt of the letter and send a copy of
the opinion, if there is one. If more information is requested, many judges refer
the writer to the record in the clerk of court’s office.
Some judges may wish to respond to a letter that indicates a misunderstand-
ing concerning a significant fact, proceeding, or legal conclusion. Judges who
adopt this policy may ask law clerks to prepare a draft of a response for the judge
to review. The response should not be argumentative or defensive; it should mere-
ly state the relevant facts or legal conclusion as necessary to alleviate the misun-
derstanding.
Prisoners and persons who have been convicted and are awaiting sentence
frequently write district and appellate judges. Handle the correspondence of a
prisoner represented by counsel the same way as that of any other litigant. Ask
your judge how to handle correspondence from prisoners who are proceeding
pro se. In some instances, this correspondence may be handled by district court
pro se law clerks or, in the appellate courts, either the clerk’s office or staff attor-
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ney’s office. In other instances, your judge may have a form letter explaining, for
example, that federal law prohibits judges from giving legal advice and suggest-
ing that the prisoner communicate with a lawyer, or a form letter for responding
to requests for transfers to another penal institution (which only the Bureau of
Prisons can grant). You should never write anything in a letter that would give a
prisoner false hope or could compromise the position of the court.
D. Internet and Electronic Research
New law clerks will receive a Westlaw and/or a LexisNexis password, which may
come with additional electronic research training and certain usage guidelines.
All computer-assisted legal research (CALR) use via judiciary contracts is to be
limited to official judiciary-related research purposes. In addition to these re-
search services, the Internet also offers more informal avenues of research, in-
cluding access to nearly every newspaper and magazine in the country, as well
as to government and law school websites, Internet search engines, and myriad
other sources. Contact the circuit library CALR coordinator for assistance with
CALR access or training. The CALR coordinators and reference librarians are
also available to assist with your research questions.
Become familiar with fjc.dcn (http://fjc.dcn), the Federal Judicial Center’s
site on the judiciary’s intranet. It provides access to manuals, monographs, desk
references, and other publications, as well as to web-based training and ori-
entation programs, streaming media programs, discussion forums, and other
resources. JNet (http://jnet.ao.dcn), the intranet site maintained by the Admin-
istrative Office of the U.S. Courts, offers information and forms on a range of
topics relevant to judicial employees, including benefits, court security, emer-
gency preparedness, human resources, information technology, legal and general
research, and travel. The Internet has also posed some serious security and usage
challenges for employees and information technology departments in courthous-
es across the country. The judiciary provides you with a computer and Internet
access to help you do your work. Depending on the policy in your court or cham-
bers, you may use it on a limited basis for personal needs if doing so does not
interfere with your work and does not cause congestion, delay, or disruption of
service to any government system. You should not do anything on your office
computer that would embarrass you or the court if it were made public.
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E. Electronic Filing
The federal judiciary’s Case Management/Electronic Case Filing (CM/ECF) system
allows courts to maintain case documents in electronic form and provides enhanced
and updated docket management services. It also gives each court the option to
permit case documents—pleadings, motions, petitions—to be filed electronically
with the court.
CM/ECF uses an Internet connection and a browser and accepts documents
in Portable Document Format (PDF). It is easy to use. Filers prepare documents
using conventional word-processing software and save them as PDF files. After
logging on to the court’s website with a court-issued password, the filer enters basic
information about the case and document being filed, attaches the document,
and submits it to the court. CM/ECF automatically generates a notice verifying
that the court received the filing, and it also sends an email to other parties in the
case notifying them of the filing.
There are no added fees for filing documents using CM/ECF, but existing
document filing fees do apply. Litigants receive one free copy of documents filed
electronically in their cases, which they can save or print for their files. Public
electronic access to court data is available through the Public Access to Court
Electronic Records (PACER) program. Additional copies are available for a small
fee to attorneys and the general public for viewing or downloading.
The process for receiving and reviewing daily filings in the cases filed before
the judge may vary among courts and chambers; you should quickly learn the
process in your chambers and your role in implementing and maintaining it.
Although familiarity with the workings of the system is helpful, you should refer
counsel’s questions to docketing clerks or others in the clerk’s office who deal with
the system on a daily basis.
F. Judge’s Chambers Calendar
The judicial assistant is usually in charge of maintaining the chambers calendar
covering the judge’s scheduled court proceedings and other activities. If the
calendar is maintained online, other staff on the chambers network may also
have limited access to the judge’s schedule. In appellate courts, the clerk of court
advises the judge of panel assignments and hearing dates. The judicial assistant,
in consultation with the judge, will then schedule all other engagements and
commitments around the hearings. In trial courts, the judicial assistant usually
confers with the judge and then typically advises the courtroom deputy in charge
of scheduling the court calendar of the dates on which trials and hearings are to
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be set. The judicial assistant then schedules the judge’s remaining commitments
around the trials and hearings. Some judges choose not to have a judicial assistant,
which allows them to have an additional law clerk. In these instances, a law clerk
may maintain the chambers calendar.
G. Opening Court
In district courts, a law clerk or courtroom deputy usually opens court. One
common method is for the clerk or deputy to rap on the door before the judge
en ters, open the door, then call out, “All rise.” The judge then enters and walks to
the bench. The law clerk or deputy walks to the front of the bench and says: “The
United States District Court for the ____ District of ____ is now in session. The
Honorable ______ presiding.” The judge usually stands during this call, then says,
“Please be seated,” and sits.
H. Maintaining the Library; Office Supplies, Equipment,
and Furniture
Many chambers maintain their own libraries, though electronic databases and
Internet research reduce the need for access to hard-copy sources and have
enabled chambers in the same courthouse to share libraries. In any event, the
employee who maintains the library, either a law clerk or a judicial assistant,
should regularly file any advance sheets, pocket parts, slip opinions, replacement
volumes, and inserts for loose-leaf services that arrive in the mail. File materials
daily so that library maintenance does not become burdensome and the materials
are current.
Procurement and ordering of all law books is done by the circuit library; con-
tact the librarian if you have questions. Promptly rubber-stamp every incoming
library book to identify it as U.S. property. Keep track of books borrowed by attor-
neys for courtroom use and make sure that books are not taken outside the cham-
bers and courtroom. Promptly reshelve books used during the course of research.
They will then be easier to find, and the library will be neater. Also be sure that
legal pads, book markers, pencils, and pens are always available in the li brary.
Requests for supplies, equipment, and furniture ordinarily are handled in the
clerk of court’s office.
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I. Maintaining Office Records and Files
You may have to maintain some of the records in your judge’s office, including
the following:
• case files
• trial schedules or calendars
• “tickler” records to remind the judge about future case activi ties
• indices to the judge’s prior decisions
• indices to slip opinions
• work papers relating to cases in progress
Such materials may be stored in hard copy, electronically, or both. Some
chambers may also maintain office form books, either in hard copy or electron-
ically. The form books may contain office procedure checklists and frequently
used forms, such as samples of letters, orders, opinions, jury charges, minute en-
tries, and office or file memoranda written by prior law clerks. The books describe
the format and method for written documents issued by the judge or presented to
the judge by chambers staff. The form books provide continuity and consistency
in office administration and can help educate new law clerks.
If case records are being used in the judge’s chambers, make sure that the
records are not mis placed and are returned to the office of the clerk of court as
soon as the judge or staff member has finished with them.
J. Statistical Reporting
The JS-10 form, “Monthly Report of Trials and Other Court Activity,” is a report
of the trials and nontrial proceedings that a district judge conducted during the
month. The clerk of the district court submits a JS-10 form to the Administrative
Office for each active or senior district judge, plus any visiting district judges or
appellate judges, who conducted trials or proceedings in the district during the
month. The form reports both the number and type of trials and proceedings and
the amount of time the judge spent conducting them. Some judges fill out the
forms themselves, but usually a member of the chambers staff or the courtroom
deputy fills out the form for the judge. The CM/ECF systems in some courts can
automatically generate the JS-10 reports based on additional information about
the trials and proceedings entered during the normal docketing process. Data
on magistrate judge workloads and activities are collected through the MJSTAR
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function in district CM/ECF systems, which stores that data in the NewStats
database. This includes not only the number of tasks completed by magistrate
judges, but the time burden of many of these duties, including time spent with
attorneys and parties. Bankruptcy courts report trials and other court activity
on a monthly basis using the B-102 form. Courts of appeals use the JS-30 form
to report the number of appellate cases, interlocutory appeals, and petitions for
rehearing each month.
K. Out-of-Town Trips
Some judges must travel to other cities to attend court ses sions and may require a
chambers staff member to travel with them if the court to which they are traveling
does not provide staffing. Judges may also travel on court-related business.
Judicial assistants usually arrange travel (although when the judge has chosen to
have an additional law clerk in lieu of a judicial assistant, a law clerk may have to
make travel arrangements).
If your judge is traveling to hold court in another location, pre pare for the
judge to take along necessary case files and materials; any personal notes or
memoranda relating to the cases to be heard; the judge’s robe; paper, pencils,
stationery, and other needed supplies (if the site for the out-of-town session is
one frequently used by the court, there may be a permanent stock of stationery
and supplies); necessary equipment such as a gavel, recording or dictating equip-
ment, and a laptop or tablet computer; the briefs and any other case materials;
and mailing labels and envelopes for returning material that the judge does not
wish to carry back.
Judges and chambers staff who travel on court business will be reimbursed
for transportation, food, lodging, and related expenses according to the detailed
rules set forth in the Guide to Judiciary Policy. These rules generally reimburse
either a flat dollar amount per day, regardless of actual expenses, or itemized
actual expenses not in ex cess of a fixed dollar amount. The judicial assistant
should have forms for travel reimbursement—these forms can also be found on
JNet. Judges must also report travel not related to cases under regulations found
in Volume 19, section 270, of the Guide to Judiciary Policy.
L. Assisting with Judges’ Extrajudicial Activities
Many judges engage in teaching, writing, lecturing, and other extra judicial activi-
ties. While law clerks may be called on to assist judges in these activities, the Code
of Conduct for United States Judges says that judges should not use staff “to any
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substantial degree” to engage in extrajudicial activities to improve the law, the
legal system, and the administration of justice; and judges should not use staff
to engage in other extrajudicial activities, “except for uses that are de minimis.”
M. Preserving Chambers Papers for Historical Purposes
The chambers papers of a district or appellate court judge have historical signif-
icance as an essential supplement to the official court record. Many papers in
judges’ chambers are widely considered valuable, such as correspondence and
background material concerning a case, including memoranda between judges
and law clerks and judges on an appeals panel; drafts of orders and opinions (par-
ticularly draft opinions that have handwritten comments on them, or that have
been circulated to other judges and returned with their comments); and corre-
spondence/memoranda concerning court administration, legal activities in the
community, and issues of governance, politics, and law.
Chambers papers are the personal property of the judge. Each judge has the
prerogative to make final decisions about the preservation of chambers papers
and the terms of access. Judges can preserve their personal papers and make
them available for eventual study by donating them to a manuscript repository.
An FJC publication, A Guide to the Preservation of Federal Judges’ Papers (3d
ed. 2018), reviews the organization and preservation of historically significant
records created by federal judges. The Federal Judicial History Office at the FJC
will also provide assistance on issues concerning judges’ papers.
N. Rules Regarding the Media in Court
Guidelines for allowing cameras and electronic reproduction equip ment in the
courtroom are published in Volume 10 of the Guide to Judiciary Policy. The guide-
lines allow the photographing, recording, or broadcasting of appellate arguments.
In trial courts, a presiding judge may authorize broadcasting, televising, recording,
or taking photographs in the courtroom during ceremonial proceedings. For non-
ceremonial proceedings, such activities may be allowed for presenting evidence,
perpetuating a record of the proceedings, and for security or judicial administra-
tion purposes. Federal Rule of Criminal Procedure 53 prohibits photographing and
radio broad casting of criminal proceedings.
Some circuit judicial councils have adopted specific instructions for the use
of cameras in the courtroom. Although local rules restrict the means by which
news may be re ported (e.g., no cameras or broadcasting from the trial courtroom
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or envi rons), “there is nothing that proscribes the press from reporting events
that transpire in the courtroom.”
§
4.2 Local Court Rules and Administrative
Policies
Section 2071 of Title 28 of the U.S. Code authorizes federal courts to adopt their
own rules, which must be consistent with the national rules and available to the
public; it also authorizes the circuit judicial council to abrogate district and bank-
ruptcy courts’ local rules, and authorizes the Judicial Conference to abrogate
rules of courts of appeals. Federal Rules of Appellate Procedure 47, Bankruptcy
Procedure 9029, Civil Procedure 83, and Criminal Procedure 57 provide addi-
tional requirements for local rule adoption and characteristics. The local rules
of almost all courts follow the same numbering sequence as the corresponding
national rules.
These local rules include the procedures for setting cases for trial, scheduling
pretrial conferences, setting motions for oral argument, serving memoranda of
law, and other details relating to trial. They may also state the procedure for
admission of attorneys to practice in the specific district or circuit, the term of
the court, the functions of the clerk of court, the rules for filing motions, and
more specific data, such as the number of copies required to be filed, limi tations
on the length of memoranda, the time within which memo randa must be filed,
and restrictions on page length, typeface, and margin size.
Each court of appeals has local rules concerning procedures for or dering
transcripts; filing and docketing the appeal; calendaring; mo tions; summary dis-
position of appeals; setting cases for oral argu ment; time limits on oral argument;
petitions for rehearing; pe titions for en banc consideration; and stay of mandate.
The local rules and internal operating procedures of the courts of appeals are
printed in the United States Code Annotated following Title 28 of the Judicial
Code, and are available on the courts’ websites.
A court’s local rules and any internal operating procedures it adopts establish
specific procedures for the court and litigants to follow. You should get these
rules and procedures from the court’s website or the clerk’s office and become
familiar with them. Keep them available for reference and be on the lookout for
any modifications the court may adopt.
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§
4.3 Case Management: The Trial Court
Many judges believe that the responsibility for moving a case through the trial
court is not solely that of the attorneys, and the function of the court is not simply
to be available if and when counsel want a hearing. The disposition of all cases
as speedily and economically as is consistent with justice is paramount. The Fed-
eral Rules of Civil Procedure are to be “construed to secure the just, speedy, and
inexpensive determination of every action.” Fed. R. Civ. P. 1. The courts are also
required to report semiannually (on April 30 and September 30) for each judge
the motions that have been pending and the bench trials that have been submit-
ted for more than six months, and cases that have not been terminated within
three years of filing, for publication by the Administrative Office. 28U.S.C. §476.
Effective docket control means that, early in a case, the judge assumes re-
sponsibility for guiding the case to a conclu sion. This may include establish-
ing deadlines for filing mo tions, a time limit for discovery, a date for counsel
to take the next step in its prosecution, and a trial date. For specific techniques
of case management, consult the Civil Litigation Management Manual. See also
Schwarzer & Hirsch, The Elements of Case Management (Federal Judicial Center,
3d ed. 2017). Note that many of the same considerations apply in criminal cases,
with the additional complication of computations required by the Speedy Trial
Act. 18U.S.C. §§3161–3174. Law clerks should be familiar with the requirements of
the Act, since failure to bring a case to trial within the Act’s time limits can have
serious repercussions.
A. Office Status Sheets
Some judges maintain an office status sheet and post it where it is accessible to
chambers staff. Its purpose is to keep the judge, the law clerks, and judicial assis-
tants apprised of legal mat ters under advisement and awaiting disposition. When
a matter has been taken under advisement, the assistant or law clerk assigned to
the case should indicate it on the status sheet.
Keep a personal sta tus list, which can be revised each week, listing all matters
for which you are responsible. It will help you make effective use of your time
and remember all pending assignments. Some judges require their law clerks to
submit personal status lists weekly.
Some judges require their judicial assistants to keep a list of all pending mat-
ters, the initials or name of the law clerk assigned to work on the matter, and
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any other pertinent infor mation. If so, keep the assistant advised of all matters
assigned, matters completed, and other relevant status information.
CM/ECF helps judges use computer technology for docket control and to
maintain case inventories and case-status records. Other systems may also be
employed. Regardless of which system is used, it is important that it be regu larly
maintained and continually monitored.
B. Calendaring Systems
Multijudge trial courts need a system for deter mining which judge is responsible
for each case. In an individual cal endar system, each case is randomly assigned
to a particular judge at the time it is filed, or soon thereafter, and that judge has
complete responsibility for the case until it is terminated. There are also standard
procedures for reassigning cases from which the original judge is disqualified,
for ensuring that related cases are all assigned to the same judge, and for special
assignment of unusual and protracted cases. Local rules usually describe these
procedures.
C. Trial Scheduling
A single trial may be set for a specific date, or the court may set mul tiple cases for
trial on the same day. Some courts use the trailing calendar or trailing docket, in
which the court schedules a num ber of cases for trial beginning on a stated date.
The cases are tried in the order reflected by the schedule. Counsel must obtain
information from the court and from the attor neys whose cases precede them
on the calendar about the progress of those cases, so that they can go to trial
whenever the court reaches their case.
Most civil cases do not go to trial but are disposed of in some other manner,
including dispositive motions and settlement. Judges differ in their approach to
encouraging settlement, but the decision whether to settle or proceed to trial is
the parties’ alone. If settlement is to be reached, negotiations should be com pleted
in a timely manner. Last-minute settlements may disrupt the court’s schedule,
leaving the judges, and sometimes jurors, with unscheduled time. The trailing
calendar and other multiple-case-setting devices alle viate some problems caused
by last-minute settlement by providing substitute cases to replace those that do
not go to trial. Although this resolves the court’s problems, it does not resolve the
problems that eve-of-trial settlements cause litigants and counsel.
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Criminal cases take priority on the court’s calendar because they must be tried
within the time limits set forth in the Speedy Trial Act. While criminal cases do
not settle, the vast majority of them are disposed of by way of plea bargaining and
guilty pleas, which again make multiple-case-setting an important calendaring
device for the court.
D. Jury Management
1. Random Juror Selection
The selection of grand and petit jurors in both criminal and civil cases is governed
by 28U.S.C. §§1861–1878, under which each district must have a jury selection
plan that has been approved by a panel comprising the circuit judicial council
and the chief district judge or the chief judge’s designee.
The statutory goal of the selection process is to ensure “grand and petit ju ries
selected at random from a fair cross section of the community in the district or
division wherein the court convenes” (28U.S.C. §1861), and to avoid excluding
any citizen “from service as a grand or petit juror... on account of race, color,
religion, sex, national ori gin, or economic status” (28U.S.C. §1862).
The clerk of court usually manages the process of selecting prospective
jurors, under the supervision and control of the court. Although the jury selection
process may differ slightly in each dis trict, it is generally as follows:
1. The clerk’s office performs a random selection of prospective jurors’
names by computer or manually, using voter registration lists or oth-
er sources specified by the court’s plan, and places the names selected
in a master jury wheel, which is usually a computer file. The minimum
number of names in the master jury wheel must be one-half of 1% of the
number on the source lists, or 1,000, whichever is less.
2. As needed by the court, the clerk’s office draws names publicly at ran-
dom from the master jury wheel and sends jury-qualification question-
naires to those persons whose names are drawn.
3. From the responses to the questionnaires, a determination is made as
to which persons are qualified for jury service and which persons are
disqualified, exempt, or excused.
4. The names of those determined to be qualified are placed in a second
jury wheel consisting of qualified jurors.
5. As needed, the clerk’s office selects names from the qualified jury wheel
and prepares lists of the names selected.
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6. The clerk’s office issues summonses to the necessary number of persons
needed for the jury venire several weeks in advance of each trial calendar
advising those summoned of the time and place to report for jury service.
Some district courts qualify and summons jurors in one step and do not
establish a qualified jury wheel.
2. Exemptions, Disqualifications, and Excuses
A person is qualified for jury service unless the person
• is not a citizen of the United States
• is unable to read, write, and understand English with a degree of proficien-
cy sufficient to complete the juror-qualification form satisfactorily
• is incapable of rendering satisfactory service because of mental or phys-
ical infirmity
• is charged with or has been convicted in a state or federal court of record
of a crime punishable by imprisonment for more than one year without
subsequent restoration of civil rights
28U.S.C. §1865.
Some district courts have adopted other grounds for exemptions, which are
specified in the court’s jury selection plan. Section1863 of Title 18 requires the
plan to provide for the exemption of members of the armed forces in active ser-
vice; mem bers of state or local fire or police departments; and public officers of
the federal, state, and local governments who are actively engaged in the perfor-
mance of official duties.
Jury service is a citizen’s duty as well as a privilege, and courts do not readily
grant excuses. A person may, however, be excused from jury service temporarily
if the plan states that such service would result in undue hardship or extreme
inconvenience. In such a case, the name of an excused juror is placed back in
the qualified jury wheel. If a prospective juror ap proaches you about an excuse,
do not ex press any opinion regarding the request, but simply refer the requester
to the clerk’s office or jury administrator for action. Treat persons called for jury
service with courtesy; they are providing an important service to the court and
the public.
Judges in multijudge courthouses often begin jury trials at different hours
to obtain maximum use of people summoned for jury service, sending persons
examined and not selected to another courtroom so they can be examined for
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selection on an other jury, and sometimes using jurors who have served in one
trial in a succeeding trial. When prospective jury panels report for possible
selection in a case, they should be segregated from other people in the courtroom.
Law clerks may be responsible for clearing a portion of the spectator section for
the jury panel’s exclu sive use.
3. Juror Orientation
Most courts conduct a juror orientation program to inform jurors of their respon-
sibilities and to explain the trial process. Orientation videos, including the Feder-
al Judicial Center’s Called to Serve, are available in most courts.
4. Voir Dire
In most courts, the judge personally conducts voir dire examination. Federal
Rule of Civil Procedure 47 and Federal Rule of Criminal Procedure 24, however,
authorize the judge to permit the lawyers to conduct voir dire. If the judge conducts
voir dire, the rules au thorize counsel to submit specific questions or areas of
inquiry that they want the judge to probe. In some courts, magistrate judges con-
duct voir dire. The law in most circuits permits this in civil cases, though some
require consent of the parties. The Supreme Court has held that a magistrate
judge may conduct voir dire in a criminal case if the de fendant consents (Peretz
v. United States, 501 U.S. 923 (1991)), but not if the defendant objects (Gomez v.
United States, 490 U.S. 858 (1989)).
5. Jury Supervision
In most courts, a deputy clerk is responsible for jury supervision. However, some-
times law clerks have this responsibility. If so, you should be present early enough
in the morning to accommodate those mem bers of the jury who arrive before the
normal court time. The jury room should be open and available for use by the
jurors as they ar rive.
If the judge permits the jury to take notes, either you or the deputy clerk
should provide pads of paper and pencils for distribution to the jurors before the
trial begins. Extra pads and pencils should also be placed in the jury room for use
during deliberations.
If you are responsible for jury supervision, ensure that there is no commu-
nication—in the courtroom, jury room, or hallways adjacent to the courtroom
and chambers—between jurors and litigants, lawyers, witnesses, or others at-
tending court.
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Jurors are usually free to go where they wish during recesses, and they may
go home at night. Occasionally, however, when there is unusual publicity about
the trial or there is reason to believe that someone will attempt to exert improper
influence on jurors, the judge may di rect that the jury be sequestered. When this
occurs, deputy marshals keep the jurors together at all times and supervise them
when court is not in session. Jurors in criminal and civil cases are some times
sequestered from the time they begin deliberating until they reach a verdict.
Judges sometimes have law clerks steward the jury during de liberations.
Some judges require the law clerk to take a special oath with respect to this duty
just before the jury retires. Once the oath is taken, the law clerk assumes primary
responsibility for guarding the jury until relieved of this duty by the judge. Re-
main outside the jury-room door during the entire deliberation pro cess and take
every reasonable precaution to ensure that the ju rors do not come into contact
with other people, especially the liti gants, their attorneys, or witnesses. You must
never comment on the evidence, the litigants, the attorneys, or the wit nesses to
any juror (or, for that matter, to anyone else). If a juror has any questions about
the trial, at any stage, you should sim ply state that such questions should be
addressed to the judge in writ ing. Do not answer the question, however simple it
may appear.
E. Distributing Opinions
Federal Rule of Civil Procedure 52(a) requires the judge to make findings of fact
and conclusions of law in all actions tried without a jury or with only an advisory
jury. The rule permits the judge to do this orally on the record or in writing in an
opinion or memoran dum. The judge may also write a formal opinion to explain
rulings on particular motions. The judicial assistant sends the original of the
findings or the opinion and the original of any order for judgment to the docket
clerk for filing in the official record. Then the judicial assistant or clerk of court
sends a copy of each set of findings or the opinion to each counsel of record,
making and distributing other copies in accordance with the judge’s instructions.
In most district courts, the clerk of court handles the distribution of opinions,
but in a few district courts, this responsibility falls to the law clerk or judicial
assistant. The judge decides whether the opinion or findings are to be pub lished.
If you are responsible for distributing opinions, check with the judge to determine
whether the judge wishes the opinion to be published and make such distribution
as the judge directs. In each case, the opinion should be accompanied by a cover
letter from the judge; the judge may have a form letter for this purpose.
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4.4 Special Duties of Law Clerks to
Bankruptcy Judges
The duties of law clerks to bankruptcy judges are gen erally similar to the duties
of those working for district judges. The volume of cases and proceedings in
bankruptcy court is generally greater than in other trial courts, and the chambers
must be organized to handle this volume effectively. Bankruptcy judges hold
more, and faster, hearings than do district judges. For the chambers staff, that
means more scheduling problems, more substantial prehearing preparation of
memoranda, and shorter time limits. It also means more pressure from attorneys
telephoning to ask for expedited schedules and to ask about procedures, the
disposition of motions, and various other matters. Like district judges, bankruptcy
judges differ in their attitudes about direct contact between law clerks and
attorneys.
Some bankruptcy judges hold court in more than one place. Law clerks and
judicial assistants to those judges usually have substantial duties in preparing
for travel, including assembly of materials (such as ap propriate portions of case
records necessary for the trip). The judge’s staff will usually have extra duties in
the additional places of holding court because the other staff available may not
be as complete as in the home court.
§
4.5 U.S. Magistrate Judges
The authority of magistrate judges derives primarily from the Federal Magistrates
Act of 1968 and as amended numerous times since. 28U.S.C. §§631–639. Significant
Supreme Court cases interpreting the Act include Mathews v. Weber, 423 U.S. 261
(1976) (upholding magistrate judge authority to hear Social Security appeals
on a report and recommendation basis); United States v. Raddatz, 447 U.S. 667
(1980) (upholding magistrate judge authority to conduct hearings on motions
to suppress evidence in felony cases on a report and recommendation basis);
Peretz v. United States, 501 U.S. 923 (1991) (upholding magistrate judge authority
to conduct felony voir dire proceedings with the parties’ consent); and Roell v.
Withrow, 538 U.S. 580 (2003) (holding that parties’ consent to disposition of a
civil case by a magistrate judge under 28U.S.C. §636(c) could be inferred from
the parties’ conduct during the case). A general outline of the duties performed
by magistrate judges is described below.
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A. Initial Proceedings in Criminal Cases
Under 28 U.S.C. §636(a), a magistrate judge may perform various duties and
conduct proceedings in criminal cases, including the following:
• accept criminal complaints
• issue arrest warrants and summonses
• issue search warrants
• conduct initial appearance proceedings and detention for criminal de-
fendants, informing them of the charges against them and of their rights
• set bail or other conditions of release or detention under the Bail Reform
Act, 18U.S.C. §§3141–3145
• appoint attorneys for defendants who are unable to afford or obtain counsel
• hold preliminary examinations, or “probable cause” hearings
• administer oaths and take bail, acknowledgments, affidavits, and depositions
• conduct extradition proceedings
B. References of Pretrial Matters from District Judges
Under 28U.S.C. §636(b), district judges may delegate a wide variety of duties to
magistrate judges to assist the district judges in expediting the disposition of civil
and criminal cases, including the following:
• hearing and determining any pretrial matters that are not case-dispositive,
such as procedural and discovery motions
• hearing case-dispositive motions (such as motions for summary judg-
ment or dismissal, or for suppression of evidence), and submitting find-
ings and a recommended disposition of such motions to a district judge
• reviewing and recommending disposition of Social Security appeals
and prisoner litigation (including state habeas corpus petitions under
28U.S.C. §2254, federal habeas corpus matters under 28U.S.C. §§2241
and 2255, and prisoner civil rights actions under 42U.S.C. §1983), and
conducting necessary evidentiary hearings in prisoner cases
• conducting calendar calls, pretrial conferences, and settlement conferences
• serving as a special master in complex cases under Federal Rule of Civil
Procedure 53
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C. Disposition of Petty Offense and Class A
Misdemeanor Cases
Under 28U.S.C. §636(a) and 18U.S.C. §3401, magistrate judges have the author-
ity to dispose of all federal petty offense and Class A misdemeanor cases (the
maximum terms of imprisonment are six months or less and one year, respec-
tively). In all petty offense cases, including cases involving juveniles, a magistrate
judge may conduct the trial and impose the sentence without the consent of the
defendant. In a Class A misdemeanor case, the magistrate judge may conduct
the trial, either with or without a jury, and impose the sentence only when the
defendant has consented to disposition of the case by a magistrate judge and has
waived the right to disposition of the case by a district judge.
D. Disposition of Civil Cases
Under 28 U.S.C. § 636(c), a full-time magistrate judge may conduct the trial,
either with or without a jury, and dispose of any federal civil case with the consent
of the litigants. In such cases, a magistrate judge sits in lieu of a district judge on
stipulation of the parties and on reference from a district judge. In this capacity,
a magistrate judge exercises case-dispositive authority and may order the entry
of a final judgment.
E. Additional Duties
Under 28U.S.C. §636(b)(3), a magistrate judge may also be assigned any “ad-
ditional duties as are not inconsistent with the Constitution and the laws of the
United States.” In light of this provision, several courts have authorized magis-
trate judges to conduct allocution proceedings to accept felony guilty pleas under
Federal Rule of Criminal Procedure 11. A magistrate judge may also be called on
to assist the district court in administrative matters.
For additional information on matters that may be referred to magistrate
judges, see the Benchbook for U.S. District Court Judges (Federal Judicial Center,
6th ed. 2013), at sections 1.13 and 6.09; the Inventory of United States Magistrate
Judge Duties, available online at http://jnet . ao.dcn/cour t-ser vices/judges-corner/
magistrate-judges/authority-magistrate-judges/inventory-united-states-magistrate-
judge-duties; and A Procedures Manual for United States Magistrate Judges, available
at http://jnet.ao.dcn/court-services/judges-corner/procedures-manual-united-
states-magistrate-judges. The last two are Administrative Office publications.
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Under 28U.S.C. §636(b)(4), each district court is required to “establish rules
pursuant to which the magistrate judges shall discharge their duties.” In some
courts, magistrate judges are used to the full extent permitted by the Federal
Magistrates Act. For example, many courts delegate pretrial management of all
civil cases to magistrate judges, while in other courts matters may be referred to
magistrate judges on a case-by-case basis.
§
4.6 Case Management: The Appellate Court
Each appellate court has a system for assigning cases, managing mo tions, and
scheduling hearings. In contrast to district court practices, most appellate case-
management functions are performed in the clerk’s office, not in judges’ chambers.
Check your court’s specific procedures and in ternal operating procedures.
A. Motions
The processing of motions on appeal is described in the appellate court’s internal
operating procedures. Federal Rule of Appellate Procedure 27 describes the
prescribed form for motions. Some mo tions are decided by a panel of judges,
some by a single judge, and some are delegated by court rule to the clerk of court
or another court officer. The local rules list those motions on which a single judge
or the clerk of court may act. Courts of appeals differ on procedures for deciding
motions. Some courts assign panels specifically to decide motions. Although
the court may hear oral presentation on motions, motions are more commonly
decided on the papers. Each court has procedures for handling emergency
motions exigently.
B. Screening
Federal Rule of Appellate Procedure 34(a) allows oral argument in all cases
unless, pursuant to local rule, a panel of three judges unanimously decides that
oral argument is not needed, after examination of the briefs and record. The rule
provides that oral argument is to be al lowed unless (1) the appeal is frivolous;
(2) the dispositive issue or set of issues has been recently authoritatively decided;
or (3) the facts and legal arguments are adequately presented in the briefs and
record, and the decisional process would not be significantly aided by oral
argument. In keeping with this rule, most courts employ a procedure known as
screening to review jurisdictional issues and to select those appeals to be decided
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without oral argument (i.e., on the briefs and written record alone). Screening
may be done within the clerk’s office, by staff attorneys, or by a judge.
Other methods are used to manage the court’s caseload. Every court of ap-
peals has a circuit mediation program. The circuit mediators (also referred to as
conference attorneys or settlement counsel) assist the court in settling cases on
appeal, thereby conserving judicial resources. Court local rules outline the prac-
tices of each mediation office. See Niemic, Mediation & Conference Programs in
the Federal Courts of Appeals: A Sourcebook for Judges and Lawyers (Federal
Judicial Center, 2d ed. 2006).
C. Order of Assignment of Appeals for Oral Argument:
Calendar Preparation
In the courts of appeals, cases are sent to appellate panels for disposition, with or
without oral argument.
There are two separate procedures in the assignment of cases to panels of
judges that together maintain the integrity of the case-assignment process.
Typically, the clerk of court or the circuit executive sets up a calendar of three-
judge panels, generally a year or more in advance. Separate from the assignment
of judges to panels is a process for the assignment of cases to particular panels for
oral argument or summary disposition. Generally, once a case has been designated
for panel disposition, someone in the clerk’s office (e.g., a calendar clerk) will
randomly assign the case to a panel. Court practices vary as to the timing of the
announcement of panel members and the assignment of cases to particular panels.
Typically, this information is disclosed to the litigants and the public a short time
prior to the date of oral argument. Courts that sit in more than one location try to
schedule an appeal for hearing at the location most convenient to counsel.
Whoever makes the assignments for a particular session operates under
court guidelines to determine the number and kinds of appeals to be scheduled
for each day. Some courts try to equalize the workload for each day of the session
and, if more than one panel is sitting, to equalize the workload among the panels.
Others try only to equalize the workload for a week of sitting. In some courts,
the person making the assignments also schedules appeals with related issues or
facts for the same panel. Alternatively, if a controlling appeal is awaiting decision
by another panel in the court, the hearing may be delayed until the other panel
decides the controlling appeal. In most courts, the fact that the Supreme Court
has granted certiorari in an appeal presenting the same issue is not sufficient
reason to postpone assignment, although panels, after hearing argument, often
await the Supreme Court’s decision before preparing an opinion.
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The senior active judge on the panel is the panel’s presiding judge and con-
trols the proceedings during the hearing. The courtroom deputy, under the su-
pervision of the judge, opens and closes court and maintains order and decorum.
Each judge’s law clerk or the courtroom deputy is responsible for supplying the
courtroom with materials needed by the judge and counsel.
Each court has its own rules and customs regarding protocol, dress, and
courtroom behavior.
Courts of appeals do not have reporters, although they record oral argument
for the use of the court. Litigants who want transcripts must request court approval
and arrange for a reporter or some other person to prepare the transcript. Many
courts maintain lists of qualified persons for this purpose.
D. Order of Opinion Writing
Most courts issue signed opinions in only a minority of cases. Although there is
no statutory requirement that opinions be issued within a fixed time or in any
particular order, judges generally determine priority based on three criteria: the
importance and urgency of the decision; the nature of the appeal, giving direct
criminal appeals pri ority over civil cases; and the order in which appeals were
argued to the court (or in which briefing was completed).
At any time, each judge will have drafts of opinions in various stages of
preparation. The length of time between preparation of the initial draft and
issuance of the final opinion varies greatly depend ing on the number and
complexity of issues that must be treated, the extent of suggested revisions and
additions by other members of the appellate panel, and whether concurring or
dissenting opinions are also issued.
E. Distributing Opinions
After an opinion is issued, the original is filed with the clerk of court. When the
opinion is filed, the clerk of court prepares a judgment in accordance with the
operative language of the opinion. Fed. R. App. P. 36. The judgment is usually
quite simple, merely stating whether the judgment of the trial court is affirmed,
reversed, or otherwise modified, and giving directions on remand.
The clerk of court arranges for posting the opinion on the court’s website and
distributes copies to attorneys and parties, in accordance with court procedures.
The public availability of the opinions on the Internet offers access to the posted
opinions to legal publishers and interested parties. In addition, each court has its
own practices for printing opinions, either in-house or through a contract printer.
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You may be responsible for assisting your judge in proofreading and editing
opinions prior to publication. Your judge may also direct you to submit opinions to
publishers or other individuals in accordance with local practices and procedures.
Law clerks should be aware that when creating and editing files with standard
computer applications, those applications store document revisions, comments,
and other information within the files. This private information, known as
metadata, remains in documents when they are finalized and distributed, and
can be accessed with publicly available software. Follow procedures in your court
for creating and transmitting electronic documents to ensure that metadata has
been removed before sending files outside of the court.
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5
Legal Research and Writing
§
5.1 Research
Legal research is perhaps the most impor tant task of any law clerk. You must make
sure your judge has the mate rial needed to understand the jurisprudence related
to the case. Adequate judicial research includes not only checking the authorities
cited in the lawyers’ briefs to deter mine their relevance and the accuracy of the
citations, but also con ducting independent research to determine whether the
lawyers have overlooked controlling precedent or any helpful authority that may
not be precedential.
The following suggestions may be of assistance.
• Understand the purpose of the research project. For example, the extent
and depth of research for a bench memo is less than that for an opinion.
• Understand the facts. Judges apply law to specific factual situa tions, and
if the facts of prior cases are distinguishable, those decisions may have
little relevance, even if the same legal prin ciple is at issue.
• Understand the legal issue. It helps to restate the issue in writing; articu-
lation helps to clarify the issue and often indicates whether the research-
er’s understanding is adequate and precise.
• If the legal area in which the issue arises is unfamiliar, perform a pre-
liminary survey of the field using secondary sources such as specialized
treatises and texts (e.g., the Federal Judicial Center’s series of mono-
graphs); ALR annotations; law review articles; loose-leaf services; and
legal encyclopedias. Call or email your local court librarian for help
identifying appropriate research tools and for help in designing your
research strategy. When using secondary sources, such as those noted
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above, make sure you are distinguishing between the actual decisions
being cited and the author’s characterization or opinion of them.
• On Westlaw, identify useful West key numbers pertinent to the subject
through cases cited in the parties’ briefs; cases or key numbers located
through the preliminary survey of secondary sources referred to above;
and examination of the appropriate key number outlines of the West
Digest System.
• On LexisNexis, use the headnote and legal topics to gather similar cases
on a given point of law.
• Use LexisNexis or Westlaw to search for additional authorities. The court
librarian is a great resource to help formulate your research strategy.
• In cases involving federal statutes, examine the annotations to the ap-
propriate statutes in the U.S. Code Annotated. In cases involving state
statutes, refer to the annotations in the state statute source.
• Read the opinions in full. Carefully examine the actual opinions to deter-
mine their applicability to the problem.
• Distinguish the holding of the case from dicta.
• Read all dissents and concurrences. These special opinions may be par-
ticularly helpful in understanding complex or novel legal questions.
• Find binding precedent. Distinguish carefully between controlling and
persuasive precedents. A state court decision on a procedural matter is
usually not binding on a federal court, but a substan tive decision of a
state court may be controlling in a diversity case. Check to find whether
there is conflicting authority within the circuit.
• Shepardize or KeyCite (on LexisNexis or Westlaw) any cases found to
be on point to locate or determine their continued authority; more re-
cent decisions; similar cases from a controlling jurisdiction; and more
authoritative or better-reasoned decisions.
• Exhaust all sources. If you have not located appropriate prece dents,
turn to secondary sources, or Shepardize or KeyCite simi lar but non-
controlling cases or analogous cases with the hope of locating more
controlling precedents, or ones at least more simi lar to the one to be
decided. Be sure to look up cases cited within your primary case; often,
the cases on which an opinion relies are more on point than the primary
opinion itself.
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• Search legal periodicals and use a periodicals index. Law reviews can
provide a thorough explication of an area of law with citation to the es-
sential primary legal authority. In addition to searching the full-text law
review and periodical databases on Westlaw and LexisNexis, try using
the major indices: the Legal Resource Index and the Index to Legal Peri-
odicals. (These are likely also available at your library in paper format.)
You can search by topic or by case (to find a case note).
• Do not overlook the American Law Institute’s Restatements of the Law,
both in final and draft form, and the model and uniform codes. (The
Uniform Acts can be found in Martindale–Hubbell.)
• If you are spending more than fifteen minutes doing online research
without success, stop and call your local court librarian for assistance.
• Use your judge’s files. If your judge maintains an indexed file of prior
opinions (as many do), consult these files. They may be extremely help-
ful if they contain work on a case similar to the one being researched.
You will usually relay the results of your research to your judge in writing, by
either a memo or a draft opinion. However, judges will sometimes want an oral
briefing, particularly when the informa tion is needed quickly.
In addition to research on specific cases, law clerks have a professional re-
sponsibility to keep up with developments in the law. Examine all Su preme Court
opinions as promptly as possible. The Supreme Court usually issues opinions on
days it is in session, which can be determined from its calendar posted on its
website. The Supreme Court posts its opinions to its website the day they are is-
sued. Both appellate and district court law clerks must examine all slip opinions
published by their circuit as soon as possible; they are mandatory precedent to
district courts and law of the circuit for other panels of the circuit court. You
should immediately call to your judge’s attention any opinion bearing on a pend-
ing case. District court law clerks should also review all opinions of their district
that appear in the advance sheets of the Federal Supplement.
If time permits, law clerks should review decisions published in the Federal
Reporter and Federal Rules Decisions. Because of the large number of opinions
now being published, it is impossible to read the full text of all opinions. After
reviewing the headnote of each case, you should examine in full at least those
opinions applicable to cases pending before your judge or presenting issues
frequently occurring in the court, as well as other decisions of particular interest.
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§
5.2 Writing
A. General Rules
Decision making remains exclusively your judge’s responsibility, but judges vary
widely in how much writing they do personally and how much they expect law
clerks to do.
You may be assigned writing tasks for some or all of these kinds of documents:
• memoranda to the judge
• orders and minute entries (in the district court); orders and short per
curiams or other brief dispositions (in the courts of appeals)
• opinions including findings of fact and conclusions of law (in the district
court); both memorandum orders and opinions (in the courts of appeals)
• correspondence
Law clerks must write clearly, concisely, and logically. Certain gen eral rules
of good writing style are as follows:
• Prepare an outline before starting. The best way to organize your thoughts
and ensure that everything pertinent is included is to prepare a logical
sentence or topical outline before beginning to write. Such an outline is
essential before writing a draft opinion or any long document.
• Introduce the subject. At the outset, let the reader know the subject of
the document. When preparing a memorandum on a specific issue, begin
with a precise statement of the issue, followed by your conclusions as to
its resolution. If preparing an opinion or a memorandum summarizing
an entire case, identify the parties, explain at the outset the history of
the case, and state the issues, their resolution, and the action taken by
the court (e.g., judg ment vacated, motion for summary judgment denied,
affirmed). While it is critical to state the relevant and material facts, do
not include inconsequential information that does not bear directly on
the question to be decided.
• Avoid the use of generic terms as specific identifiers. Federal Rule of Ap-
pellate Procedure 28(d) requires that designations such as “appellant”
and “appellee” be kept to a minimum in briefs and oral arguments. The
rule says that it is clearer “to use the designations used in the lower court
or in the agency proceedings, or the actual names of parties, or descrip-
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tive terms such as ‘the employee,’ ‘the injured persons,’ ‘the taxpayer,’
‘the ship,’ ‘the stevedore.’” This is a good policy to follow in all judicial
writing as well.
• Follow the proper format. Your judge may require a special organization
and arrangement of intraoffice written materials and may have stan-
dardized formats for other written materials. Learn these standard for-
mats and follow them. (Examples from past cases can be found in your
judge’s files.) The judicial assistant or career law clerk may be able to
advise you whether your judge has a prescribed format.
• Be accurate and give appropriate references. Be careful to quote accu-
rately from a cited authority. Be sure that the cited authority has not
been overruled or qualified. Some judges require their law clerks to give
citations to the sources of factual statements. Thus, if a particular fact is
established by Smith’s deposition, its statement is followed with “(Smith
dep. p. 10).” This reference allows the judge to locate the statement easily,
read it in context, and verify its accuracy. Often, lawyers will support
their state ments of fact in a brief by citing a deposition, a transcript of
trial, or an exhibit. You should verify those citations before incorpo-
rating them.
• Write succinctly, clearly, and precisely. Good legal writing is simple,
brief, and clear. Unnecessarily abstract or complex words and phrases,
flowery language, or literary devices may interfere with the reader’s abil-
ity to understand the point. Unless your judge in structs otherwise, leave
embellishment to your judge.
• Subdivide. In a lengthy opinion or order, the reader may find it easier to
follow if the material is divided into subparts, each la beled with letters,
numbers, or short subtitles.
B. Editing
The four primary goals of editing are
1. To correct errors in grammar and punctuation
2. To eliminate ambiguities and promote clarity
3. To improve the manner and order of presentation of the law or facts
4. To improve the writing style
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Editing includes deleting words and phrases that may create con fusion, elim-
inating redundant material, and correcting verbosity. Similar principles apply
whether you are editing your own work or that of another law clerk or the judge.
• If you are editing your own work, you should set the draft aside and work
on something else for a while before beginning edit ing. A fresh view may
suggest improvements that might not oth erwise occur to you.
• Read the material to be edited aloud; this may reveal previ ously unno-
ticed problems.
• Ask a co-clerk to read and comment on the draft, especially if the co-
clerk has not worked on it.
• Brevity and clarity are both important. Short, simple sentences are gen-
erally better than lengthy, compound, or complex sen tences. However,
strings of sentences of the same length are mo notonous; a series of short
sentences should be broken with an occasional longer one.
• The use of excessive punctuation may indicate that the sentence should
be broken into two or more sentences.
C. Style
Each judge has a different writing style. Some prefer simple declarative sentences
and use plain language. Others employ complex sentences and a varied vocabulary.
Some use metaphor and simile to make a point. Whatever the judge’s personal
style, most judges prefer that their law clerks try to write in the manner that the
judge has adopted. The judge issues opinions year after year; continuity in style is
desirable. Read several of your judge’s prior opinions to become familiar with the
style. If in doubt, ask your judge what stylistic embellishment is desired.
Avoid using gender-specific pronouns when speaking generally or hypothet-
ically; use ungendered language instead (e.g., the defendant instead of he or she;
plural instead of singular). Acquaint yourself with your judge’s preference regard-
ing gender-specific language, and keep in mind the fed eral judicial system’s com-
mitment to gender fairness.
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D. Suggested Reference Materials
All chambers should have a comprehensive dictionary, thesaurus, and The
Bluebook. In addition, the following references will help you with your writing
assignments.
• Judicial Writing Manual: A Pocket Guide for Judges (Federal Judicial
Center, 2d ed. 2013)
• Ruggero J. Aldisert, Opinion Writing (Carolina Academic Press
3d ed. 2012)
• Wilson Follett, Modern American Usage: A Guide (E. Wensberg ed., Hill
& Wang 1998)
• Bryan A. Garner, The Elements of Legal Style (2d ed. 2002)
• Bryan A. Garner, The Redbook: A Manual of Legal Style (4th ed. 2018)
• Joyce J. George, Judicial Opinion Writing Handbook (5th ed. 2007)
• William D. Popkin, Evolution of the Judicial Opinion: Institutional and
Individual Styles (2007)
• Antonin Scalia and Bryan Garner, Making Your Case: The Art of
Persuading Judges (Thomson West 2008)
• William Strunk, Jr. & E.B. White, The Elements of Style (4th ed. 1999)
• Bernard E. Witkin, Manual of Appellate Court Opinions (1977)
• Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers (Carolina
Academic Press 6th ed. 2019)
• U.S. Government Printing Office Style Manual (31st ed. 2016)
E. Specific Writing Assignments
1. Jury Instructions
Many district judges expect their law clerks to assume a major role in preparing
proposed jury instructions. Instructions must be finished before the end of the
presentation of evidence.
The judge will indicate whether the case will be submitted to the jury for a
general verdict or on special interrogatories. The use of special interrogatories
may substantially affect the content of the instructions. In addition, the judge
will decide whether the trial of one or more issues is to be separated; for example,
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it is common in tort cases to try the liability issue separately and to ask the jury
first to reach a verdict on this issue. If the jury decides for the defendant, it will
be unnecessary for it to decide damages. If it decides for the plaintiff, the parties
may reach a compromise without going to trial on damages.
The judge will have told trial counsel to submit proposed jury instructions.
Most local court rules require that proposed instructions be submitted at the
beginning of the trial or at some earlier time. They may, of course, be supplemented
if unforeseen matters arise during the course of the trial. Counsel are instructed
to prepare each proposed instruction on a separate, numbered page with the
description at the top. For example: Plaintiff’s Requested Jury Instruction No. 1,
with a citation of authority, such as a case or statute, at the end. (The citations
are not read to the jury, but enable the judge or law clerk to determine quickly
whether the requested instruction is correct.) Most likely, your judge will review
counsel’s requested instructions and will give you preliminary reactions.
Most circuits have developed pattern or model jury instructions. Each judge
in those circuits has a copy of the pattern instructions, and most judges use them
as a starting point. If your circuit does not have pattern instructions, refer to
the pattern instructions in other circuits whose law is the same as the law in
your circuit.
Federal Rule of Civil Procedure 51 and Federal Rule of Criminal Pro cedure 30
require that before closing arguments, the judge must inform coun sel which jury
instructions will be given. Some judges hold a confer ence with counsel (usually
in chambers, but on the record), discuss the proposed instructions, and permit
counsel to argue for their requests. Other judges do not hold conferences, but
provide copies of their pro posed instructions to all counsel and give counsel an
opportunity to comment, object, or request additional instructions in writing.
In any event, before the jury is instructed, each counsel must be given an
opportunity to make objections to the proposed instructions. This can be done
in conference or in open court, but must not be in the presence of the jury. Some
judges require counsel to write their objec tions directly on a copy of the proposed
charge and then file this copy in the record for purposes of appellate review. If
changes are made after a lawyer voices objections, the charge is retyped and a
copy of the charge as delivered is filed in the record. This procedure accurately
records the instructions requested, any objections, and the charge de livered, in
order to provide a complete and accurate record to the ap pellate court.
Once a final set of jury instructions has been prepared for a specific type of
case, a copy should be retained in the chambers files. Those instructions can be
used as a starting point for the next case involving similar issues.
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2. Memoranda of Law or Fact
A memorandum is an informal document intended to communicate the results
of a research assignment or a summary of a case. All memo randa should indicate
the following:
• the person who prepared the memo (some judges want the law clerk to
use initials only)
• the date it was prepared
• the type of memo, or a short summary of the subject discussed
What follow are some of the most common memoranda.
The Bench Memo
This is a document prepared by a law clerk for the judge to use during oral argu-
ment. Most judges want bench memos to be brief, often only a page or two, and
do not expect a significant amount of independent research by the law clerk. The
bench memo is most often a summary of the briefs of the parties, together with
(when requested) analysis of the validity of the respective positions of the parties
and identification of issues that require further inquiry.
One commonly used organizational format for a bench memo con tains the
following:
• the docket number, a short caption of the case, and names of the mem-
bers of the panel
• in an appeal, the district court and the name of the judge from whom the
appeal is taken
• a statement of the case, reflecting how the case arose, the procedural
history and status, and in appellate cases, the trial court’s ruling and
which party appealed
• a brief statement of the facts of the case
• a statement of the issues raised by the parties
• a summary of the arguments raised by the parties
• matters that should be clarified, expanded upon, or explained dur ing
oral argument
• if requested by the judge, the law clerk’s views on the merits of the case,
supported by analysis and explanation, and rec ommendations on dis-
position of the case (some judges do not wish their law clerks to express
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any views; others dis courage any conclusory language until after the
case has been argued and thoroughly researched)
The Statement of Facts
Frequently, a judge wants the facts in a particular case, or the facts relating to a
specific issue, summarized in writing. In an appellate court, the sources for this
kind of memo are the briefs and appendix or record excerpts. In a trial court, the
sources are the case file, trial exhibits, the law clerk’s notes taken during hearings,
and, when necessary, the court reporter’s notes or transcripts.
In preparing a statement of facts, strive for ac curacy and objectivity, and if
there are disputed factual issues, present the evidence supporting each position.
It is essential that you neither allow a personal opinion to shade the statement
of facts nor present a partisan view of the evidence. A narrative statement of the
facts, arranged chronologically, is usually the easiest to understand. Depending
on the status of the case, the judge may ask you to express a view about how any
conflicts in the evidence should be resolved.
The Single-Issue Memo
The need for a memo dealing with a single issue may arise from in adequate
preparation by counsel, an unexpected development during trial, or the judge’s
wish to pursue an aspect of the case not fully de veloped by the attorneys. This
memo may have to be prepared under extreme time pressure during trial but
must nevertheless be completed with accuracy and care.
The Full-Case Memo
This type of memo is usually preliminary to an opinion, and unless otherwise
instructed, you should approach it in that manner. It is usually better to overwrite
this kind of memo, including facts of borderline relevancy and legal research that,
although not directly on point, may have some bearing on the outcome of the
case—it is easier to delete unnecessary material than to insert material omitted
from an earlier draft. Some judges like this memo in the form of an opinion.
Legal problems often repeat themselves. After completing a research memo
or reading a brief submitted to the court that is unusually thorough, you should
file a copy in the judge’s legal memoranda files for future use. Such files can be an
invaluable resource and prevent needless duplication of effort.
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3. Resolution of Motions in Trial Courts
The resolution of motions is often a substantial part of the trial court’s work on a
case. Some motions may require an opinion equivalent in substance and length to
a final opinion after trial. But for most, the judge may write only a short opinion
or order, dictate rea sons into the record, or simply indicate disposition with a
single word: Granted or Denied. The law clerk is usually the member of the judge’s
staff charged with responsibility for knowing which motions are pending, what
memoranda or other pleadings have been filed for each motion, and the status
of each motion. Your judge will instruct you about the type of memorandum or
order indi cated. Motion management is discussed in more detail in chapter 3.
Some judges want their law clerks to prepare a memorandum on every mo-
tion. Others require memoranda only on certain matters or for certain types of
cases. If you are required to prepare a memorandum, first examine the briefs or
memoranda from both the moving party and the opposition. The legal standard
or rule that applies is often fairly clear; the difficulty is in applying the rule to the
facts. The facts are almost always incompletely presented, or at least slanted in
the party’s favor. You must examine and compare each party’s version and then
check them against the exhibits, declarations, or other materials in the record.
Look for samples of predecessors’ memos on motions and use them as guides.
There is no one style or format for such memos, but certain features are common:
• name and number of the case, perhaps the category of case (e.g., antitrust,
diversity tort case), date of the memo, and the writer’s initials
• statement of the nature of the motion or motions now under consider-
ation, identifying the moving party
• recommended disposition, summarized
• discussion of the parties’ chief arguments, the legal standard set by con-
trolling statutes, rules, or precedent, and a succinct expla nation of your
reasons for recommending a particular result on each point
• statement of facts and procedural posture
The statement of facts should include a description of the parties and their rela-
tionships to one another, key events, and a notation of facts in dispute. The memo
should indicate the source of the facts stated, particularly when they are contro-
verted or perhaps intentionally vague, such as the para graph of the complaint,
the identification of the relevant affidavit and paragraph number, or the number
of the exhibit from which the fact stated is derived.
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Some judges may also wish to have a draft of a proposed order or judgment
disposing of the matter along the lines recommended by the law clerk.
You should avoid two common errors: (1) failing to pay at tention to the pro-
cedural status of the case, and (2) writing a law-re view-style piece rather than a
memorandum that meets the judge’s needs.
4. Memos for Criminal Motions
Law clerks are not usually required to prepare a memo for each mo tion in a crim-
inal case. In some districts, motions are made in an om nibus pleading. In others,
they may be made separately, but without a predetermined schedule, because
the Speedy Trial Act requires that a criminal defendant be brought to trial within
seventy days of the ini tiation of proceedings, and there is little time for briefing
schedules.
Before writing a memorandum, check with the courtroom deputy (or, if the
judge’s policy permits, with opposing coun sel) to determine whether opposing
counsel will oppose the motion. The judge may handle last-minute evidentiary
or procedural motions personally, as they often surface first during the pretrial
conference. When a memo must be written, the process is essentially the same as
that used in preparing memos in civil cases.
5. Findings of Fact and Conclusions of Law
A district judge who sits as the trier of fact in an evidentiary hearing or trial
may prepare either a conventional opinion or findings of fact (a statement in
separately numbered paragraphs of each material fact that the judge concludes
was proved) and conclusions of law (these follow the findings of fact, and state in
separate paragraphs the principles of law the judge finds applicable to the facts).
Arranging findings of fact and conclusions of law in separately num bered
paragraphs, each consisting of one or two relatively brief de clarative statements,
helps the parties understand the opinion and makes appellate review easier. Your
judge may direct you to prepare a draft of either the opinion or the findings of fact
and con clusions of law.
In some cases, the court requires the plaintiff’s counsel to prepare pro posed
findings of fact and conclusions of law and requires defense coun sel to respond.
Other judges may require each counsel to prepare a separate proposal. The court
reviews the proposals and makes neces sary revisions or additions before adopting
any of them.
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If proposed findings of fact are based on transcribed testimony (ei ther by
deposition or of the trial), the court may insert citations to page numbers of the
various transcripts at the end of each paragraph of conclusions of fact. The judge
may ask the law clerk to review those citations and to review legal authorities cited
by the parties in their trial briefs to determine whether the proposed conclusions
of law are correct.
6. District Court Orders
Federal Rule of Civil Procedure 58 requires that unless the court orders otherwise,
the clerk of court must promptly prepare, sign, and enter a judgment when the
jury returns a general verdict, when the court awards only costs or a sum certain,
or when the court denies all relief. However, if the court grants other relief, or
the jury returns a special verdict or a general verdict accompanied by answers
to interrogatories, the clerk of court prepares a form of judgment, and “the court
must promptly approve the form of the judgment.”
Routine orders are usually prepared in the office of the clerk of court. In some
cases, however, it may be necessary for the court to prepare an order that states
the relief to be granted. These orders are prepared in the judge’s chambers and are
sometimes drafted by the law clerk. In some courts, judges direct the prevailing
party to prepare an order and submit it to opposing counsel for approval.
Most courts have a standardized format for orders, and the judicial assistant
or career law clerk will be familiar with that format. This usually includes the
name of the court, the docket number of the case, the caption of the case with
the names of the parties, and a descriptive title indicating the nature of the order.
The order should include a paragraph stating the date of the hearing (if any),
appearances of counsel, and the nature of the matter decided by the order.
An order has two functional parts: (1) the factual or legal basis for the deter-
mination; and (2) a statement that tells the parties what ac tion the court is taking
and what they must do as a result of that ac tion.
No specific language is required to make an order effective. Use simple and
unambiguous language. The purpose of the order is to tell the person to whom the
order is directed precisely what to do and to allow others to determine whether
that person has done it correctly and com pletely.
The parties may submit a proposed order or judgment for the district judge’s
signature in the following circumstances: the judge ruled from the bench on a
legal matter and asked the prevailing party to submit an appropriate order for
the judge’s signature; the judge decided a nonjury case, announced the findings
or reasons and grounds from the bench, and asked the prevailing party to submit
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an appropriate judgment; or the parties stipulated to a result in a particular case,
with or without the judge’s prior involvement, and submitted a proposed order,
accompanied by their stipulation, for the judge’s approval and signature. In other
cases, pursuant to Federal Rule of Civil Procedure 58, the clerk of court may
submit a prepared form of judgment for court approval.
When these documents arrive at chambers, a law clerk is usually responsible
for their detailed review and should take the following steps:
• If the order or judgment is submitted after the judge has made a determi-
nation in court with all parties present, check to be sure that the losing
party agrees that the order or judgment conforms to the judge’s decision.
Such ap proval is usually indicated by the signatures of counsel for the
losing party (e.g., “Approved as to form. Signed J. Attorney, Coun sel for
Defendant”).
• If the parties agreed or stipulated to the decision, with or with out the
judge’s prior involvement, confirm that the submitted order or judgment
is accompanied by the stipu lation, signed by the parties, and that the
form and substance of the order or judgment itself have been approved
by all parties.
• Check the substance of the order or judg ment to ensure that it complies
with the judge’s directions on the stipulation or agreement.
7. Opinions
Opinion writing involves five basic steps.
First, become thoroughly familiar with the arguments from both sides. Care-
fully review the briefs. Listen to the oral arguments. If you weren’t present for
oral arguments, obtain recordings or transcripts if available. Annotate briefs or
make your own notes, as you should refer back to the briefs during the following
steps. Discuss the proposed opinion with the judge, examining the struc ture, the
rationale, and the result to be reached.
Second, research. See section 5.1 for specific pointers. Frequently, additional
research is necessary as the opinion is drafted.
The third step is planning the opinion. Write a clear statement of the facts
and legal issues presented in the case. Then, determine which issues must be
decided. If the case turns on a procedural issue, any discussion of substantive
issues raised by the parties may be gratuitous. Occasionally, if the same result
would have been reached after considering the sub stantive issues, so stating may
strengthen the opinion.
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Determine which parts of the opinion raise issues to be treated in detail. If
there is a circuit decision directly on point, a lengthy analysis of the precedents
and principles related to that particular issue has little value.
Fourth, outline the opinion. In opinions, as in any other kind of writing, a good
outline will help the writer produce a clear, complete, and well-organized product.
The fifth and final step is writing the opinion. Opinions usually have the fol-
lowing components:
• The introduction (opening paragraph). The introduction should establish
clearly who the parties are and, if the case is on appeal, what agency or
court decisions are being reviewed. In addition, many judges like to state
at the outset the princi pal issues and the decision made by the writing
court. This practice has the advantage of immediately informing the
reader of the result in the case.
• The facts. State the facts developed at the trial or in the record in
chronological order. Do this in a narrative style, using short sentences.
Recite all of the relevant facts, but omit everything else. Avoid verbatim
quotations of excerpts from the plead ings or the transcript. In an
appellate opinion, this part of the opinion may conclude with a summary
of the trial court’s or agency’s reasons for its decision and a statement of
the issues on appeal.
• Applicable law. Discuss the legal principles applicable to the case. (In
appellate opinions, the applicable law usually in cludes the standard
of review.) Avoid lengthy quotations from cases or treatises. Cite the
authorities for these principles, but avoid string citations. Meritless
points do not require detailed discussion. Many law yers will present a
smorgasbord of issues in a brief, hoping that the judge may find some
tempting morsel among the offerings. In such cases, mention these
issues so the lawyers will know they were noticed and simply say they
are without merit (e.g., “Considering the testimony of the informant,
the argument that the evidence was insufficient to warrant con viction
merits no discussion”).
• Disposition. Apply the legal principles to the facts.
• Closing. Close with a specific statement of the disposition: judgment
is rendered for the plaintiff for a specific dollar amount; the judgment
appealed is affirmed, revised and rendered, or reversed and the case
is remanded, with appropriate instruc tions to the lower court. These
instructions should not leave the lower court any doubt as to what is
required on remand.
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When reviewing a heavily footnoted opinion, the reader’s eyes must constantly
move from text to footnotes and back again. This is distracting and wastes time.
For this reason, some judges object to any footnotes. Others use foot notes only for
citations. Some judges use them to expand on the text of an opinion, to explain
an inference in the opin ion, or to discuss authorities. Follow your judge’s practice.
Finally, remember that this is a judicial opinion, not an essay or a law review
article. Avoid personalized ar gument (and abuse of other judges). Write simply.
Stick to the active voice where possible. Avoid excessive use of adjec tives and
adverbs. Make the meaning clear by using verbs and nouns. Do not clutter the
opinion by citing every case you have read. Pare the message to its essentials. The
opinion should cogently state the court’s decision and the basis for it.
F. Correspondence
Some district judges prohibit law clerks from corresponding with law yers; the
judges either draft their own correspondence, direct their law clerks or judicial
assistants to prepare drafts of correspondence for their signa ture, or delegate
correspondence entirely to their judicial assistants. Other judges, however, direct
their law clerks to correspond with lawyers from time to time on various matters,
for example, inquiring about the progress of a case, scheduling a trial or hearing
date, or requesting compliance with the court’s procedural requirements. The
judicial assistant can provide a sample of letters written or approved by the judge.
Refer to these samples or consult the judicial assistant about technical matters
like the form of the letter heading and opening address. The following suggestions
re lating to court correspondence may be helpful:
• Let the reader know immediately what the letter refers to. In a large law
firm, someone must sort the mail to see that it is de livered to the proper
lawyer, and once that lawyer receives it, some one must determine to
which case the letter relates. You can sim plify these tasks by addressing
your letter to a specific lawyer rather than to a firm and by placing the
case title and docket number near the top of the page.
• Let the reader know why you, rather than the judge, are writing. Lawyers
may wonder why a staff member is giving them instructions or requesting
information, so use a simple introductory phrase such as “Judge Smith
has asked me to advise you...” or “Judge Smith has directed....”
• Remember that although the letter may bear your signature, it is written
on behalf of your judge. Exces sive formality is not required, but undue
familiarity is in appropriate.
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• Get to the point. For example, it may be helpful to the reader to know that
this is in response to a letter the addressee wrote earlier. You can do this
by simply starting with, “In response to your letter of May 1, Judge Smith
has asked me to advise you that matters of this kind must be raised by
written motion served upon opposing counsel.”
• Remember that you, like your judge, are a neutral party dealing with
advocates. Unless your judge specifically directs otherwise, send copies
of case-related cor respondence to all counsel in the case. Even though
you may believe that a letter is of significance only to the addressee, the
court has an obligation to avoid ex parte communications.
See section 4.1.C for special considerations when corresponding by email.
1. Official Business Envelopes
Court envelopes and postage meters should be used only for court business—
they should not be used to mail personal items.
2. Juror Letters
Some district judges send a letter to each of the jurors after service on a given
case, expressing the court’s appreciation. If the judge follows this practice, the
office files will contain sample letters. The jury clerk can furnish a list of the
jurors and their addresses. If the judge directs you to prepare such a letter, select
a form for the letter, or compose a new one, and send a letter to each member of
the jury, including alternates. If a particular juror serves a second or third time,
make sure that the letter is different each time.
§
5.3 Proofreading Documents and Checking
Citations
The need for accuracy in every document issued by the court cannot be overem-
phasized. A document that contains misspelled words or inaccurate citations in-
dicates a lack of care in its final preparation. Ev ery document must be proofread
meticulously both for substantive correctness and to eliminate typographical and
grammatical errors.
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Proofreading demands painstaking care. In checking citations, ensure the
following:
• The cases cited in the opinion stand for the proposition of law for which
they are cited.
• The parties’ names are spelled correctly, and the volume, court, page
number, and year of the decision are correctly given.
• The style of the citation is consistent with the style usually fol lowed by
the court. (Most judges use The Bluebook: A Uniform System of Citation as
a guide. Others may use The Chicago Manual of Legal Citation.)
It is a good idea for a law clerk other than the one responsible for an opinion
to check the citations in the last draft of the opinion. A fresh pair of eyes is more
likely to catch errors—occasional errors occur no matter how carefully the judge
and the law clerk try to avoid them.
A. Checking an Opinion
You may be asked to review an opinion drafted by your judge. As a preliminary
matter, verify the following:
• that the court has jurisdiction
• that the procedural status of the case is correctly stated
• that the court’s ruling—the holding of the opinion—is stated clearly and
succinctly
• that the facts supporting the losing party have been stated
• that the arguments of the losing party have been stated and adequately
addressed
• that the cases cited stand for the propositions for which they are as serted
• that the conclusions are supported by clear reasoning and authori ties
You should also seek to eliminate any errors that may have occurred in
preparation. An opinion may be checked by following these four steps:
1. Check the formal elements. Compare the case title to the docket sheet
in the clerk’s office. Compare the listing of counsel who appeared in the
case to the briefs and minute order or submission order in the file (in
appellate courts, this is usually done in the office of the clerk of court). If
the hearing was before a multi-judge panel, compare the judges’ names
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and the order in which they are listed to the records of the clerk of court
or the judges’ notes.
2. Check all factual statements. Check factual statements against the origi-
nal transcripts, if any, and documents. Do not rely on factual representa-
tions in the briefs or appendix. Factual statements may be supported
by citations to the original depositions, transcripts, or exhibits in the
following manner: “(Smith dep., p. 10).” Proofread, word for word, each
direct quotation from an ex hibit or a witness’s testimony. Make sure all
omissions from quotations have been indicated by ellipses or asterisks.
Verify all dates and numbers.
3. Check the accuracy of citations and quotations.
4. Review the briefs to be certain all issues have been covered.
B. Final Proofreading
After an opinion has been checked and edited, the working draft may have in-
terlineations, marginal inserts, strikeouts, and sections that have been moved
around by a word processor. Proofread the final draft to make sure that it is iden-
tical to the working draft.
Proofreading is important and must be done with care and accuracy. It is
most accurate when one person reads aloud from the copy being verified to an-
other person who follows on the correct, master copy. The reader should read all
punctuation, spell out all proper nouns and foreign or technical words and phras-
es, and indicate whether num bers are spelled out or in figures. This technique
minimizes the risk that typographical errors will be missed.
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6
Court Governance
and Administration
§
6.1 Overview of Federal Judicial Administration
Each of the ninety-four federal district courts and thirteen federal courts of
appeals is responsible for its own management. However, each is subject to statu-
tory restrictions and policies set by national and regional judicial ad ministrative
agencies. The national agencies are the Judicial Confer ence of the United
States and its agent, the Administrative Office of the U.S. Courts (AO). The
Federal Judicial Center has educational and research responsibilities, and the
U.S. Sentencing Commission has guideline-promulgating authority, but neither
has administrative re sponsibilities for the federal courts. As much as possible,
administra tive policy making is decentralized. Judicial councils in each regional
circuit, with staff assistance by circuit executives, set administrative policy for the
courts within the circuit, but the individual courts are responsible for most of the
day-to-day administration. Clerks of the district and bankruptcy courts provide
staff assistance to their respective courts. See generally Russel R. Wheeler, A New
Judge’s Introduction to Federal Judicial Administration (Federal Judicial Center,
2d ed. 2020).
§
6.2 The Chief Justice of the United States
The Chief Justice, who is presiding officer of the Supreme Court, pre siding officer
of the Judicial Conference of the United States, and chair of the Board of the
Federal Judicial Center, often speaks for the federal judiciary on major matters in
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its relations with the other branches of government and with the public at large.
The Chief Justice ap points an administrative assistant, the counselor to the Chief
Justice, to help with both internal Supreme Court administrative matters and
matters related to the entire judi ciary.
§
6.3 The Judicial Conference of the United States
The Chief Justice presides over the Judicial Conference, which comprises the
chief judges of the courts of appeals, one district judge from each circuit, and the
chief judge of the Court of Interna tional Trade. The Chief Justice is directed by
statute to call at least one annual meeting; the practice is to hold two meetings
each year, one in the spring and one in the fall. The Executive Committee of the
Con ference proposes the agendas for the meetings and acts on the Conference’s
behalf on limited matters between meetings.
The Conference is generally referred to as the federal courts’ prin cipal
policy-making body for administration on the national level, but its organic stat-
ute (28U.S.C. §331) does not describe or suggest so broad a role. The statute
directs the Conference to “make a com prehensive survey of the condition of busi-
ness” in the federal courts, prepare plans for temporary assignment of judges,
receive certificates of judicial unfitness from judicial councils, study the operation
of fed eral procedural rules, and submit suggestions for legislation through the
Chief Justice’s report on Conference proceedings. Although Con gress has vested
relatively little authority in the Judicial Con ference directly, the Conference has
considerable practical authority, which arises from its statutory responsibility to
supervise and direct the Ad ministrative Office of the U.S. Courts, including the Ad-
ministrative Office’s control of the distribution of funds appropriated by Congress.
The committees of the Judicial Conference perform a vital role in the Con-
ference’s policy-making process. Normally, committees meet in person twice
each year for one or two days to discuss and prepare ma terials for submission
to the Conference prior to its next meeting; these meetings are supplemented
by telephone conference calls, written memoranda, and occasional subcommit-
tee meetings.
Most of the judges who serve on commit tees are life-tenured (district and cir-
cuit) judges rather than term-appointed (bankruptcy and magistrate) judges. In
addition, some com mittees include Justice Department officials, state supreme
court jus tices, law professors, and practicing lawyers. The Chief Justice makes
committee appointments after receiving information from several sources, in-
cluding applications from judges and advice from the Ad ministrative Office.
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§
6.4 Circuit Judicial Councils and Circuit
Executives
Congress created circuit judicial councils in 1939. The chief judge of the circuit
is the presiding officer of each circuit judicial council. In addition to the chief
circuit judge, each circuit judicial council consists of an equal number of circuit
and district judges as determined by majority vote of active circuit and district
judges of the circuit. 28U.S.C. §332(a)(1). The creation of the councils reflected
a commitment to decen tralized administration of the courts. The circuit judicial
councils re view numerous district court operational plans (for jury utilization
and representation under the Criminal Justice Act, for example) and take action
as appropriate. A council may also review final orders of the chief judge regarding
complaints of judicial misconduct if requested to do so by the person who filed
the complaint or the judge complained against. Each circuit judicial council also
reviews all local rules within its circuit to be certain they do not conflict with the
national rules.
Each circuit judicial council has appointed a circuit executive and assigned
that person duties specified in the statute. 28 U.S.C. § 332(e). The circuit
executive’s role is discussed at section 7.1. The circuit council, by statute, meets
at least twice a year.
§
6.5 Chief Judges
Each court of appeals and each district court has a chief judge. A vacancy in the
chief judgeship of a court of appeals or district court is filled by the active judge
who, at the time of the vacancy, is senior in commission, is un der sixty-five years
of age, has served on the court at least a year, and has not previously served
as chief judge. A chief judge’s term is limited to seven years unless no eligible
judge is available to serve as chief judge. In bankruptcy courts with more than
one judge, the district judges, by majority vote, desig nate one of the bankruptcy
judges as chief judge. The chief district judge makes the designation if a majority
of the district judges cannot agree.
Chief judges have no authority over the actual decision of cases by other
judges. In judicial matters, their authority is exactly the same as that of any
other judge.
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A. Courts of Appeals
The chief judge for the court of appeals for any circuit is referred to as the chief
judge of the circuit. The chief judge supervises the staff and most administrative
matters for the court of appeals. Among numerous other responsibilities, the
chief judge also presides at ju dicial council meetings and the circuit’s judicial
conferences; serves as one of the circuit’s two representatives to the Judicial
Conference; as signs circuit and district judges in the circuit to temporary duty on
other courts in the circuit; certifies to the Chief Justice the need for temporary
assistance from additional judges from other circuits; and reviews complaints of
judicial misconduct. Chief judges often appoint committees of judges or individual
judges to assist in various administrative matters.
B. District Courts
The chief judges of district courts have much of the responsibility for the ad-
ministration of the court. Usually they supervise the clerk’s office, the probation
office, the pretrial services office (if there is one), and the administration of the
magistrate judge system. They also exercise some oversight responsibility for the
bankruptcy court. By statute, the chief judge is responsible for carrying out the
rules and orders of the court that divide the court’s business between the judges.
28U.S.C. §137. In most courts, the allotment of cases to judges is made randomly
by the clerk of court, but the chief judge may, on occasion, make a special assign-
ment for an unusual case, such as one of consid erable length or complexity. Once
the cases are assigned to another judge, however, the chief judge has no jurisdic-
tion over them.
C. Bankruptcy Court
Chief bankruptcy judges have a more specific statutory mandate than circuit or
district chief judges, but their duties are similar to those of chief district judges.
28U.S.C. §154(b).
§
6.6 Circuit Judicial Conferences
The circuit, district, bankruptcy, and magistrate judges of each circuit may attend
the annual or biennial circuit judicial conference to consider ways of improving
the administration of justice in the cir cuit. 28U.S.C. §333. The statute mandates
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the court of appeals to pre scribe rules for participation by the bar. The conferences
vary consider ably from circuit to circuit but usually feature programs relating to
the administration of justice in the circuit.
§
6.7 Federal Agencies of Judicial Administration
A. Administrative Office of the U.S. Courts
Congress established the Administrative Office in 1939, at the request of the ju-
diciary, to create an “administra tive officer of the United States courts... under
the supervision and direction” of the judicial branch rather than the executive
branch. 28U.S.C. §§604–612. The director of the AO carries out the AO’s statu-
tory responsibilities and other duties under the supervision and direction of the
Judicial Con ference.
The AO’s duties include: supervising administrative matters; gathering
caseload statistics; procuring supplies and space; and preparing and administering
the budget, with all the attendant financial management duties.
The AO’s Annual Report of the Director, published along with the Re port of
the Proceedings of the Judicial Conference of the United States, pro vides detailed
statistical data on all aspects of federal court operations. The AO publishes the
Guide to Judiciary Policy, which includes rules and guidance on most administrative
matters in the judiciary, including human resources, procurement, and travel. The
AO maintains a site called JNet on the judiciary’s intranet at http://jnet.ao.dcn.
JNet contains a wealth of information about judiciary activities, initiatives, and
policies, and it is a good idea to be familiar with it. The AO also maintains the
judiciary’s Internet site at http://www.uscourts.gov.
B. Federal Judicial Center
In 1967, at the re quest of the Judicial Conference, Congress created the Federal
Judicial Center to provide research and education for the federal courts in a single,
independent agency. The Center’s policies are set by a board, chaired by the Chief
Justice, that consists of seven judges, elected by the Judicial Conference, and the
director of the Administrative Office as an ex officio member. The Center and the
Administrative Office are separate but maintain a close working relationship. The
Center is responsible for designing and conducting programs for the orientation
and continuing education and training of judges and other court personnel,
policy planning and research on matters of judicial administration, promoting
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study of the history of the federal courts, and assisting judges of foreign judicial
systems in learn ing about the federal judiciary. It produces various publications
and audiovisual materials available to judges and other judicial branch employees
(some of these materials have been mentioned above). The organization of the
Center is explained in its annual report. Current list ings of available materials
as well as other information about the Center can be found on its site on the
judiciary’s intranet at http://fjc.dcn, or on the Internet at http://www.fjc.gov.
C. United States Sentencing Commission
Congress created the U.S. Sentencing Commission in 1984 and directed it to es-
tablish federal sentencing policies and practices to guide judges in sentencing
criminal offenders. 28 U.S.C. § 991. The Commission’s seven voting members,
appointed by the president, may include up to three federal judges. The Com-
mission has the authority to submit annual guideline amendments to Congress,
which automatically take effect 180 days after submission unless a law is enacted
to the contrary. The Commission’s Internet site (http://www.ussc.gov) contains
extensive information about the guidelines and Commission activities.
§
6.8 Active and Senior Judges; Retirement
At the age of sixty-five, district and circuit judges may elect to become senior
judges provided they meet the “rule of 80”—that is, if the combined total of the
judge’s age and years of service equals or exceedseighty. 28U.S.C. §371(c). Taking
senior status is at the discretion of the judge. A judge who elects senior status
creates a vacancy, which is filled in the usual manner by presidential appointment
and senatorial confirmation. Judges on senior status have retired “from regular
active service” (28 U.S.C. §371(b)), but continue to receive the salary of an active
judge on the same court if they are certified by the chief circuit judge as having
met certain workload requirements. Senior judges who are certified by the cir-
cuit council as performing substantial judicial service are entitled to chambers
and an office staff equivalent to that of active judges or to a lesser number of
assistants as their work may require. Some circuits have adopted guidelines for
staff requirements.
Senior judges often continue to serve their courts, usually taking a reduced
caseload and sometimes requesting that they not be assigned certain types of
cases. Particularly in recent years with the increasing caseloads in the federal
courts, the services rendered by senior judges have been vital.
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Judges who meet the “rule of 80” may also “retire from the office,” in which
case they are no longer judicial officers. Retired judges may not continue to hear
cases, but they are entitled to an annuity equal to their salary at the time of
retirement. 28U.S.C. §371(a). Of course, judges who do not meet the requirement
of the “rule of 80” may simply resign from office, thereby forfeiting all future pay
and benefits.
§
6.9 Budget Appropriations and Administration
The director of the Administrative Office, under supervision of the Ju dicial Con-
ference, provides the Office of Management and Budget with the federal judi-
ciary’s annual requests for legislative appropriations to fund the various court
operations for the forthcoming fiscal year. These are incorporated unchanged
into the president’s annual judiciary bud get request, which is submitted to Con-
gress, which in turn enacts a statute providing the courts with appropriations for
the fiscal year.
Although the director of the AO has statutory responsibility for how the
courts spend their appropriated funds, the AO has implemented an extensive pro-
gram that delegates this spending responsibility to the courts themselves, under
AO supervision. Clerks of court and other court unit executives are respon sible,
under the chief judge’s supervision, for receiving and disbursing funds and man-
aging the budget. For example, the clerk of court dis burses funds appropriated
for the court’s normal operation and maintenance, and collects moneys received
for court services and court-imposed fines, penalties, and forfeitures. Court ex-
penditures are generally subject to the same fiscal laws as the rest of the federal
government. In addition, under the direction of the Judicial Conference, the AO
has promulgated rules for expenditures. All court employees have a responsibil-
ity to ensure that government funds, and the supplies, equipment, and services
they buy, are used wisely and appropriately.
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7
Relations with Other Court
and Justice System Personnel
Law clerks work closely with other court personnel. Fa miliarity with the other
personnel and what they do will help run a smooth office.
§
7.1 The Circuit Executive
Each circuit’s judicial council appoints a circuit executive. Specific duties of cir-
cuit executives vary from circuit to circuit. Tasks in the courts of appeals may
include administering nonju dicial matters, especially the personnel system and
budget. Circuit-wide tasks may include conducting studies and preparing re-
ports on the work of the courts; serving as the circuit’s liaison to state courts, bar
groups, the media, and the public; and arranging circuit judicial council and con-
ference meetings. The circuit executive may also maintain an ac counting system
or establish a property-control and space-management system. Most circuit ex-
ecutives provide advice and assistance on auto mation and circuit-wide training;
others assist judges and committees in delicate areas such as processing judicial
complaints.
§
7.2 The Clerk of Court (Court of Appeals)
Each court of appeals has a clerk who is appointed by and serves at the pleasure of
the court. The clerk of court appoints necessary deputies and clerical assistants
with the approval of the court.
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The primary duties and responsibilities of a court-of-appeals clerk are as
follows:
• receiving and maintaining the files and records of the court
• ensuring that all papers filed comply with the Federal Rules of Appellate
Procedure and the rules of the court
• entering all orders and judgments of the court
• scheduling cases for hearing under guidelines established by law, rules,
and orders of the court
• distributing needed case materials to the members of the court
• collecting, disbursing, and accounting for required fees
• arranging for distribution of the court’s opin ions
• giving procedural assistance to attorneys and litigants
• maintaining the roster of attorneys admitted to practice before the court
• administering oaths
• providing clerical staff for courtroom services
• providing necessary statistical case information to the court and the
Administrative Office
In addition, the court may authorize the clerk of court to act on certain kinds
of uncontested procedural motions.
§
7.3 The Clerk of Court (District and Bankruptcy
Courts)
The clerk of a U.S. district court is appointed by and serves at the pleasure of
the court. The clerk of court serves as the chief administrative officer (except in
the handful of districts that have a district court unit executive; see section 7.4),
implementing the court’s policies and reporting to the chief district judge. The
clerk’s responsibilities include
• receiving the pleadings, papers, and exhibits that constitute case filings
and developing and implementing a records management system to
properly maintain and safeguard the official records of the court
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• recruiting, hiring, classifying, training, and managing the staff of the
clerk’s office
• developing and maintaining a system to ensure the proper collection, ac-
counting, and disbursement of funds and securities in the court’s custody
• developing budgetary estimates of future staffing requirements and oth-
er substantive expense items, such as supplies, equipment, furniture,
services, and travel
• collecting and analyzing statistical data that reflect the per formance
of the court
• managing the jury selection process, including the responsibility for
making a continuing evaluation of juror utilization
• maintaining liaison with all branches of the court and related govern-
ment agencies
• preparing and disseminating reports, bulletins, and other official infor-
mation concerning the work of the court
• coordinating the construction of court facilities and periodically in-
specting such facilities
The judges of the bankruptcy court may appoint a clerk of the bankruptcy
court, upon certification to the circuit judicial council and the Administrative
Office that the court’s business justifies it. 28U.S.C. §156(b). (In some courts,
the clerk of the district court also serves as the bankruptcy court clerk.) With
the approval of the bankruptcy judges, the clerk may appoint deputies. The
bankruptcy clerk is accountable for bankruptcy fees and costs collected pursuant
to 28U.S.C. §1930, and is the official custodian of the records and dockets of the
bankruptcy court.
§
7.4 District Court Unit Executives
A few districts have district court unit executives or a position such as “court
administrator” that performs the overall management responsibilities that would
other wise be assigned to the clerk of court. In such districts the clerk’s duties are
related primarily to the management and monitoring of the cases filed with the
court.
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7.5 The Courtroom Deputy and the
Docket Clerk
A courtroom deputy’s duties and responsibilities vary significantly from court
to court. The deputy, sometimes called a “case manager,” is an employee of the
clerk of court’s office, although the deputy serves the judge to whom the deputy
is assigned and may have a desk in chambers. It is important to remember that
although a courtroom deputy may over time become so much a part of a judge’s
judicial “family” that the deputy seems to be another member of chambers’ staff,
that person is ultimately answerable to the clerk of court.
Courtroom deputies assist judges with scheduling trials or hearings on mo-
tions. The deputy must keep the judge aware of all calendar activity. The depu-
ty handles communication with the attorneys and schedules their ap pearances
for hearings.
Other duties of courtroom deputies include
• administering oaths to jurors, witnesses, and interpreters
• maintaining custody of trial exhibits
• entering or causing to be entered on the permanent records of the clerk’s
office a description of all relevant actions taken in open court or in
chambers (usually called a minute entry)
• serving as liaison between the judge’s chambers and the clerk of court’s
office
• performing routine clerk’s office duties as needed and when avail able
The docket clerk (sometimes called the “case administra tor”) works in the
office of the clerk of court and is responsible for maintaining the official records
for each case pending before the judge. The docket clerk also makes the docket
entries, recording all filings in a case with the clerk of court. In most courts,
these dockets are now automated. Whenever a court employee needs to remove a
court record from the clerk’s office files, the record must be signed out so that the
clerks’ office can identify where the record is at all times.
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§
7.6 Other Law Clerks
While it is important for law clerks to know the roles of and establish sound
professional relations with various personnel in the judicial system, it is especially
important to know the roles of the other members of the chambers staff and to
enjoy a healthy working relationship with them.
Most judges have all of their law clerks perform the same functions. Some
judges have a combination of permanent and (one- or two-year) term law clerks.
A permanent law clerk, already thor oughly familiar with the judge’s practices
and office administration, may play a more significant role than a term law clerk.
Each judge has a system for assigning work to law clerks, and each makes
an effort to balance the workload. In order to equalize the work among the law
clerks, allocations may be made on the basis of how much work will be required
on a particular case. If a law clerk has a preference for a particular subject matter,
a judge may try to ac commodate that preference.
Although there are sometimes salary differences between law clerks due to
variations in experience and prior salary history, the responsibilities are usually
the same. In district courts, the law clerks may, during alternate weeks, exchange
the primary re sponsibility for administrative matters such as opening court,
assem bling files and records for the motion day, or preparing the conference
room for a pretrial conference. Such assignments are flexible, and each law clerk
should be cooperative in assisting the others when there is more work than can
readily be completed in the time available.
§
7.7 Judicial Assistants
In general, most judicial assistants (or secretaries, in some chambers) help in the
day-to-day conduct of court business. In addi tion to traditional secretarial duties,
a judicial assistant often deals with lawyers and members of the public on behalf
of the judge. Judicial assistants also help maintain the chambers collection of law
books, assemble documents, assist with case management, serve as courtroom
crier, and provide general assistance to the judge. Judges may hire an additional
law clerk in lieu of a judicial assistant and many judges do so. In such circum-
stances, one or more of the law clerks assumes administrative duties that would
have been performed by a judicial assistant.
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§
7.8 Pro Se Law Clerks and Staff Attorneys
District courts with heavy prisoner filings may request funding for the appointment
of pro se law clerks to review civil cases filed by prisoners, including petitions for
writ of habeas corpus and complaints for violations of civil rights under 42 U.S.C.
§1983. Pro se clerks assist the court by screening the complaints and petitions for
substance, analyzing their merits, and preparing rec ommendations and orders
for judicial action, including orders of dis missal. Many pro se law clerks also work
on nonprisoner pro se cases.
Each circuit has a staff attorneys’ office that serves as a centralized legal staff
for the court of appeals. The manager of the office is usually called the senior
staff attorney or the director of the staff counsel’s office. One or more of the staff
attorneys also may be assigned supervisory duties.
Although the precise duties assigned to the staff attorneys’ office vary from
circuit to circuit, two key tasks are often assigned.
First, the staff attorneys’ office is typically assigned to work on pro se prisoner
and other pro se cases, including reviewing correspondence from pro se litigants
in or der to determine whether any communications are legally sufficient to consti-
tute an appeal or a request for mandamus. Many of the letters or purported plead-
ings are prepared without legal assistance and consist of incomplete handwritten
papers that are difficult to read and understand. When deciphered, they may be
sufficient to constitute an appeal or petition for writ. If the correspondence, how-
ever, does not present an issue that may be considered by the court, the staff attor-
ney may be autho rized to so advise the author. If the correspondence is sufficient
to invoke the court’s jurisdiction, the staff attorney is usually directed to prepare
a memorandum stating the issues in the case and, after doing any necessary re-
search, to brief the issues.
The second task is reviewing appeals and applications for mandamus involving
collateral attacks on state or federal criminal convictions and sentencing guidelines
issues. The staff attorneys’ office usually reviews each such petition, analyzes the
legal issues, prepares a memorandum of law concerning each issue raised, and
recommends the disposition of the case. In some instances, the district court may
have denied the certificate of probable cause (Certificate of Appealability) that
is the prerequisite for an appeal in forma pauperis or may have failed to act on a
request for such a certificate. If so, the staff attorney makes a recommendation
con cerning whether such a certificate should be issued. In many in stances, the
case will be sent to a panel of the court for decision on the merits without oral
argument. In others, when the appel lant is proceeding pro se, the staff attorney
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may recommend to the panel of judges to whom the case will be assigned that
coun sel be appointed. A panel of the court, however, makes the final decision in
each case.
Along with working on pro se cases and reviewing the appeals and applications
for mandamus described above, staff attorneys’ offices are commonly assigned
the following other tasks as well:
• identifying and analyzing cases for recommended summary disposition
• screening counseled and pro se cases
• screening cases to identify jurisdictional issues
• reviewing, analyzing, and recommending disposition of substantive and
procedural motions, including emergency matters
• preparing memoranda of law concerning the issues in, and rec ommended
disposition of, motions
• preparing memoranda of law concerning the issues in, and rec ommended
disposition of, criminal and civil cases, and in some courts, capital (death
penalty) cases
• assisting in case management
• carrying out other duties assigned by the court
The staff attorneys’ office may work under the supervision of the chief judge,
a committee of judges, a single judge, a senior attorney, the circuit executive,
or the clerk of court. Some staff attorneys are employed for terms of one or two
years; others serve for longer periods.
§
7.9 The Court Reporter
Each district court has permanent court reporters in numbers approved by the
Judicial Conference. The standard ratio is one reporter per ac tive judge. Judicial
Conference policy requires court reporters to work for the court (in a pooling
arrangement) rather than for individual judges, although the implementation
of this arrangement varies with the number of judges and the places of holding
court in the district. In practice, in some courts, individual court reporters work
primarily in the courtroom of a specific judge. However, a court reporter must
ad here to the court’s plan for pooling reporters and is not assigned to work only
for a specific judge.
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The duties of the court reporter include
• recording all court proceedings verbatim by stenographic methods,
electronic sound recording, or other methods (such as real-time report-
ing technologies) subject to Judicial Conference regulations and the
court’s approval
• transcribing all arraignments, pleas, and proceedings in con nection with
the imposition of sentence in criminal cases, or filing a voice or sound
recording of the proceedings (28U.S.C. §753)
• transcribing any proceedings upon request of a judge or any party to a
proceeding
Court reporters are federal court employees subject to the supervi sion of the
court, but they also collect personal fees for transcripts prepared for parties at
rates determined by the Judicial Con ference. Transcripts are usually prepared
only after a trial is completed and an appeal filed. Litigants may, however, re-
quest daily transcripts by notice in advance. Because they earn private income,
court reporters must provide their own equipment and supplies and may not use
govern ment postage for their correspondence.
The reporter must file a copy of every transcript with the clerk of court. This
is a public record that may be inspected by any person with out charge during the
business hours of the clerk’s office.
Subject to Judicial Conference regulations, district judges and bank ruptcy
judges may direct the record to be taken by electronic sound recording rather
than by a court reporter. If the court does so, an em ployee of the clerk of court
is responsible for operating the equipment and seeing to the preparation of any
requested transcripts. Statutes and rules govern the process of recording specific
proceedings before mag istrate judges. Electronic sound recording is used more
extensively by magistrate and bankruptcy judges than by district judges.
§
7.10 The Circuit Librarian
Each court of appeals maintains a library at its headquarters, and all circuits
(except D.C. and the Federal Circuit) have additional branch libraries at other
locations. These libraries are primarily for the use of the judges and their staff,
but may also be open to members of the bar, employees of other governmental
agencies, and the public.
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Each library is managed by a librarian appointed by and serving at the
pleasure of the court. The librarian may be responsible to the chief circuit judge, a
committee of judges, the circuit executive, or the clerk of court, as determined by
the court.
Each circuit library has a staff of librarians who have special training in legal
research and can help law clerks and judges in all aspects of legal and general
re search. Many of the U.S. court librarians also have a J.D. In some circuits, for
example, the library staff will prepare a legislative history of a statute for a judge
upon request. For help with computer-assisted legal research (CALR), you should
contact the circuit library CALR coordinator. If your judge is not in a city that
has a main or branch library, librarians will mail books to a judge or a law clerk
working in another city or will photocopy, scan, or download materials needed
for research and deliver them via fax, email, or regular mail. They will also try to
borrow from other libraries materials that are not available in their own.
The Law Library of Congress offers assistance for hard-to-locate materials,
and research librarians are able to search the library’s databases for unique
collections, some of which can be borrowed through special loan privileges
via the court’s library. Additionally, the law library provides access to foreign,
international, and comparative law material. Your first point of contact for
research assistance should be your own circuit or satellite librarian. A full list of
all U.S. court librarians is available on JNet.
§
7.11 The Probation and Pretrial Services Offices
Each district court appoints probation officers, including a chief pro bation officer.
Larger offices generally also have a deputy chief probation officer. Some probation
offices—for example, those with many probationers with drug-related or
organized-crime convictions—establish specialized supervisory units. Probation
officers serve at the pleasure of the court.
The responsibilities and duties of a probation officer include
• conducting presentence investigations and preparing presentence reports
on convicted defendants
• supervising probationers and persons on supervised release
• overseeing payment of fines and restitution by convicted de fendants
• supervising persons transferred under the Victim and Witness Protection
Act
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The 1982 Pretrial Services Act directed that pretrial services be pro vided in
all federal judicial districts. The services include evaluating persons proposed
for pretrial release, monitoring and assisting those released, and reporting to the
court on these activities. See 18U.S.C. §3154. Most district courts provide pretrial
services through their probation office; others have separate pretrial offices. The
circuit judicial council must approve creation of a separate office.
§
7.12 Public Defenders
The Criminal Justice Act of 1964 (CJA) requires each district to have a plan to
ensure that federal defendants are not deprived of legal representation because
they cannot afford it. 18U.S.C. §3006A. In some districts, this need is met entirely
by assigning cases to private attorneys who are paid under the Criminal Justice
Act. Districts in which at least 200 appointments are made annually, however,
may establish either pub lic defender organizations or community defender
organizations to take no more than 75% of the cases.
Federal public defender organizations are staffed by attorneys who are fed-
eral employees; the court of appeals appoints the federal public defender, who
appoints assistant federal defenders. Although federal public defender office
attorneys and staff are federal employees paid by funds administered by the
Administra tive Office, they are not part of the district court staff. Their location
in the judicial branch is primarily for the purpose of administrative con venience.
Community de fender organizations are nonprofit defense-counsel service groups
au thorized by the court’s CJA plan to provide rep resentation. Their personnel are
not federal judicial branch employees.
§
7.13 U.S. Attorneys
In all cases in which the United States is a party, a representative of the Depart-
ment of Justice is the attorney for the government. The repre sentative is usually
the U.S. attorney or an assistant U.S. attorney for the district in which the case
is pending, but in some cases the repre sentative will be a special assistant from
the Department of Justice headquarters in Washington, D.C., also sometimes
referred to as Main Justice. In some situations, such as federal tax-refund suits
against the United States, a lawyer from Main Justice may have primary respon-
sibility for defense of the case, and the U.S. attorney may serve as co-counsel of
record. When the government party is a federal agency, such as the Equal Em-
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ployment Opportunity Commission, agency coun sel will usually represent the
government party.
Each judicial district has a U.S. attorney, appointed by the president with the
advice and consent of the Senate. The U.S. attorney is ap pointed for a term of
four years, but is subject to removal by the presi dent. Assistant U.S. attorneys are
appointed by, and may be removed by, the attorney general.
The authority of a U.S. attorney is set forth in 28U.S.C. §547. The responsi-
bilities generally include
• prosecuting all criminal offenses against the United States
• prosecuting or defending for the government all civil actions in which
the United States is a party
• defending collectors or other officers of the revenue or customs in actions
brought against them for official acts
• prosecuting proceedings for the collection of fines, penalties, and forfei-
tures owed to the United States
In connection with prosecutorial duties, the U.S. attorney (or an assistant
U.S. attorney) is always present during sessions of a federal grand jury, but does
not (and may not) remain while the grand jury is deliberating or voting.
§
7.14 United States Marshals Service
The president, with the advice and consent of the Senate, appoints a U.S. marshal
for each judicial district who serves for a term of four years, but who, like the U.S.
attorney, is subject to removal. The marshal, in turn, appoints deputies.
The U.S. Marshals Service is part of the Department of Justice and is respon-
sible for moving prisoners, supervising the department’s Wit ness Security Pro-
gram, apprehending federal fugitives, executing all writs, processes, and orders
issued by the courts, and, of most direct interest to chambers’ staff, providing
security to the court and its person nel.
The marshal develops a court security plan, subject to review and approval
by each district court’s security committee, providing basic security services to
judges and supporting personnel in that district. Under some plans, judges have
emergency buzzer buttons beneath their desks and beneath their benches in
the courtroom; if the button is pressed, an alarm sounds in the marshal’s office.
The marshal also has a deputy present in court whenever the judge so requests.
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Marshals and their deputies are authorized to carry firearms and may make ar-
rests without a warrant within statutory and constitutional limits. Marshals and
their deputies may exercise the same powers as sheriffs of the state in which they
are located.
Although the parties themselves are ordinarily responsible for the service
of process and subpoenas in civil cases, Federal Rule of Civil Procedure 4(c)
(3) provides that a summons and complaint shall, at the request of the party,
be served by the marshal on behalf of a person authorized to proceed in forma
pauperis, on behalf of the United States or an officer or agency of the United
States, or by order of the court in special cases.
In many courts, the marshal or the marshal’s deputy is in complete charge of
the jury. Law clerks are sometimes told to avoid all contact with the jurors. You
should inquire about and become famil iar with the procedures in your court. See
also section 4.3.D.5 on jury supervision.
§
7.15 The Federal Bureau of Prisons
The Federal Bureau of Prisons manages the penal and correctional in stitutions
maintained by the United States. Its director is appointed by the attorney general.
When the judge sentences a person convicted of a federal crime, the order of
commitment consigns the defendant to the custody of the attorney general. Al-
though the judge may recommend a preferred place of imprisonment, the attor-
ney general has the final authority to designate the actual place of confinement.
The bureau must provide suitable quarters, care, subsistence, and safekeeping
for all persons held under the authority of the United States; provide for the
protection, instruction, and discipline of all persons charged with or convicted
of offenses against the United States; and provide technical assistance to state
and local correctional institutions and officials. Each judge has a pamphlet
describing all institutions maintained by the Bureau of Prisons, their facilities,
and their programs.
In most judicial districts, there is no federal jail for the confinement of
persons awaiting trial or after sentencing, so federal prisoners are confined in a
state institution, under a contractual arrangement.
A judge may permit a sentenced defendant to report directly to the place
of confinement. This avoids interim detention in state institutions that may be
crowded or otherwise undesirable, and it saves the govern ment the expense of
housing, feeding, and transportation. If the prisoner is deemed to be a danger to
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himself or the community or is judged to be a flight risk, is not likely to report on
time, or cannot afford transportation, the judge is likely to require the marshal to
main tain custody of the prisoner and to transport the prisoner to the insti tution
designated by the bureau.
§
7.16 Federal Law Enforcement Agencies
Apart from the U.S. attorney’s office, the U.S. Marshals Service, and the Bureau
of Prisons, there are other federal law enforcement agencies that you may
come in contact with, particularly during crimi nal trials. A brief description of
them follows.
• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Enforces and
ad ministers firearms and explosives laws as well as those laws cov ering
the production, use, and distribution of alcohol and to bacco products.
The ATF is a bureau of the Department of Justice.
• U.S. Customs and Border Protection (CBP). Manages, controls, and pro-
tects the nation’s borders and performs inspections related to customs,
immigration, and animal and plant health inspection laws. The CBP is a
bureau of the Department of Homeland Security.
• U.S. Immigration and Customs Enforcement (ICE). Provides investigative
and security services including enforcement of immigration and customs
laws. Also includes the Federal Protective Service (FPS), which provides
security at federally owned and leased buildings nationwide, including
courthouses. It is a bureau of the Department of Homeland Security.
• Drug Enforcement Administration (DEA). The primary narcotics en-
forcement agency for the United States. It is a bureau of the De partment
of Justice.
• Federal Bureau of Investigation (FBI). Investigates violations of cer tain
federal statutes, collects evidence in which the United States is or may be
an interested party, and performs other duties im posed by law or pres-
idential directive, such as performing back ground checks on judicial
nominees. The FBI is a bureau of the Department of Justice.
• Internal Revenue Service (IRS). Administers and enforces federal inter-
nal revenue laws and related statutes, except those relating to alcohol,
tobacco, firearms, and explosives. The IRS is a bureau of the Treasury
Department.
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• International Criminal Police Organization–U.S. National Central Bureau
(INTERPOL–USNCB). Facilitates international law enforcement cooper-
ation as the U.S. representative to INTERPOL, an intergovernmental or-
ganization of over 150 country mem bers. INTERPOL–USNCB is a bureau
of the Department of Jus tice.
• U.S. Citizenship and Immigration Services (USCIS). Administers im-
migration and naturalization adjudication functions and establishes
immigration services policies and priorities. These functions include ad-
judication of immigrant visa and naturalization petitions; adjudication
of asylum and refugee applications; and other adjudications formerly
performed by the U.S. Immigration and Naturalization Service (INS). It
is a bureau of the Department of Homeland Security.
• U.S. Secret Service. Not only provides security to high government offi-
cials, but enforces federal laws relating to cur rency, coins, and obliga-
tions or securities of the United States or a foreign government. The
Secret Service is a bureau of the Department of Homeland Security.
§
7.17 State Courts
Many cases that are brought in federal court may also be brought in state court.
Although some cases must be brought in federal court, many more must be brought
in state court. Some fed eral courts have established working relationships with
state and local courts to help resolve scheduling conflicts, to share some services
(such as jury rolls), and to promote cooperation in addressing common prob lems.
State-federal judicial councils facilitate good relations between the federal
and state courts. Such councils are usually created by orders of the state supreme
court and the federal district court or court of ap peals.
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Appendix
Code of Conduct for
Judicial Employees
§ 310 Overview
§ 310.10 Scope
(a) This Code of Conduct applies to all employees of the judicial branch,
including interns, externs, and other volunteer court employees, except
it does not apply to Justices; judges; and employees of the United States
Supreme Court, the Administrative Office of the United States Courts,
the Federal Judicial Center, the Sentencing Commission, and federal
public defender offices.
(b) Justices and employees of the Supreme Court are subject to standards
established by the Justices of that Court. Judges are subject to the Code
of Conduct for United States Judges (Guide, Vol. 2A, Ch. 2). Employees
of the AO and the FJC are subject to their respective agency codes.
Employees of the Sentencing Commission are subject to standards
established by the Commission. Federal public defender employees are
subject to the Code of Conduct for Federal Public Defender Employees
(Guide, Vol. 2A, Ch. 4). Intermittent employees [HR Manual, Sec. 5,
Ch. 4.7] are subject to canons 1, 2, and 3 and such other provisions of this
code as may be determined by the appointing authority.
(c) Employees who occupy positions with functions and responsibilities
similar to those for a particular position identified in this code should be
guided by the standards applicable to that position, even if the position
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title differs. When in doubt, employees may seek an advisory opinion as
to the applicability of specific code provisions.
(d) Contractors and other nonemployees not covered above who serve the
judiciary are not covered by this code, but appointing authorities may
impose these or similar ethical standards on such nonemployees, as
appropriate.
§ 310.20 History
(a) With the adoption of the Code of Conduct for Judicial Employees
on September 19, 1995, the Judicial Conference repealed the Code of
Conduct for Clerks (and Deputy Clerks), the Code of Conduct for United
States Probation Officers (and Pretrial Services Officers), the Code
of Conduct for Circuit Executives, the Director of the Administrative
Office, the Director of the Federal Judicial Center, the Administrative
Assistant to the Chief Justice, and All Administrative Office Employees
Grade GS-15 and Above, the Code of Conduct for Staff Attorneys of the
United States, the Code of Conduct for Federal Public Defenders, and the
Code of Conduct for Law Clerks. JCUS-SEP 95, p. 74.
(b) This Code of Conduct for Judicial Employees took effect on January 1,
1996.
(c) In March 2001, the Conference revised Canon 3F(4). JCUS-MAR 01,
pp. 10–12.
(d) The Conference revised the following provisions in March 2013: “Scope”
(§ 310.10(a) and (d)); “Definitions” (§ 310.30(a)); Canon 1; Canon 3F(2)
(a)(ii); Canon 4A; and Canon 5B. JCUS-MAR 13, p. 9.
(e) The Conference revised the following provisions in March 2019: Canon
3C(1); Canon 3D(2); and Canon 3D(3). JCUS-MAR 19, p. ____.
§ 310.30 Definitions
(a) Member of a Judge’s Personal Staff
As used in this code in canons 3F(2)(b), 3F(5), 4B(2), 4C(1), and
5B, a member of a judge’s personal staff means a judge’s secretary or
judicial assistant, a judge’s law clerk, intern, extern, or other volunteer
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court employee, and a courtroom deputy clerk or court reporter whose
assignment with a particular judge is reasonably perceived as being
comparable to a member of the judge’s personal staff.
(b) Third Degree of Relationship
As used in this code, the third degree of relationship is calculated ac-
cording to the civil law system to include the following relatives: parent,
child, grandparent, grandchild, great grandparent, great grandchild,
brother, sister, aunt, uncle, niece and nephew.
§ 310.40 Further Guidance
(a) The Judicial Conference has authorized its Committee on Codes of Con-
duct to render advisory opinions concerning the application and inter-
pretation of this code. Employees should consult with their supervisor
and/or appointing authority for guidance on questions concerning this
code and its applicability before a request for an advisory opinion is
made to the Committee on Codes of Conduct.
(b) In assessing the propriety of one’s proposed conduct, a judicial employee
should take care to consider all relevant canons in this code, the Ethics
Reform Act, and other applicable statutes and regulations (e.g., receipt
of a gift may implicate canon 2 as well as canon 4C(2) and the Ethics
Reform Act gift regulations).
(c) Should a question remain after this consultation, the affected judicial
employee, or the chief judge, supervisor, or appointing authority of
such employee, may request an advisory opinion from the Committee.
Requests for advisory opinions may be addressed to the chair of the
Committee on Codes of Conduct by email or as follows:
Chair of the Committee on Codes of Conduct
c/o Office of the General Counsel
Administrative Office of the United States Courts
One Columbus Circle, N.E.
Washington, D.C. 20544
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§ 320 Text of the Code
Canon 1: A Judicial Employee Should Uphold the Integrity and
Independence of the Judiciary and of the Judicial
Employee’s Office
An independent and honorable Judiciary is indispensable to justice in our society.
A judicial employee should personally observe high standards of conduct so that
the integrity and independence of the Judiciary are preserved and the judicial
employee’s office reflects a devotion to serving the public. Judicial employees
should require adherence to such standards by personnel subject to their direction
and control. The provisions of this code should be construed and applied to further
these objectives. The standards of this code do not affect or preclude other more
stringent standards required by law, by court order, or by the appointing authority.
Canon 2: A Judicial Employee Should Avoid Impropriety and
the Appearance of Impropriety in All Activities
A judicial employee should not engage in any activities that would put into question
the propriety of the judicial employee’s conduct in carrying out the duties of the
office. A judicial employee should not allow family, social, or other relationships
to influence official conduct or judgment. A judicial employee should not lend the
prestige of the office to advance or to appear to advance the private interests of
others. A judicial employee should not use public office for private gain.
Canon 3: A Judicial Employee Should Adhere to Appropriate
Standards in Performing the Duties of the Office
In performing the duties prescribed by law, by resolution of the Judicial Confer-
ence of the United States, by court order, or by the judicial employee’s appointing
authority, the following standards apply:
A. A judicial employee should respect and comply with the law and these
canons. A judicial employee should report to the appropriate supervising
authority any attempt to induce the judicial employee to violate these
canons.
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Note: A number of criminal statutes of general applicability govern
federal employees’ performance of official duties. These include:
• 18 U.S.C. § 201 (bribery of public officials and witnesses);
• 18 U.S.C. § 211 (acceptance or solicitation to obtain appointive
public office);
• 18 U.S.C. § 285 (taking or using papers relating to government
claims);
• 18 U.S.C. § 287 (false, fictitious, or fraudulent claims against the
government);
• 18 U.S.C. § 508 (counterfeiting or forging transportation
requests);
• 18 U.S.C. § 641 (embezzlement or conversion of government
money, property, or records);
• 18 U.S.C. § 643 (failing to account for public money);
• 18 U.S.C. § 798 and 50 U.S.C. § 783 (disclosure of classified
information);
• 18 U.S.C. § 1001 (fraud or false statements in a government
matter);
• 18 U.S.C. § 1719 (misuse of franking privilege);
• 18 U.S.C. § 2071 (concealing, removing, or mutilating a public
record);
• 31 U.S.C. § 1344 (misuse of government vehicle);
• 31 U.S.C. § 3729 (false claims against the government).
In addition, provisions of specific applicability to court officers include:
• 18 U.S.C. § § 153, 154 (court officers embezzling or purchasing
property from bankruptcy estate);
• 18 U.S.C. § 645 (embezzlement and theft by court officers);
• 18 U.S.C. § 646 (court officers failing to deposit registry moneys);
• 18 U.S.C. § 647 (receiving loans from registry moneys from
court officer).
This is not a comprehensive listing but sets forth some of the more sig-
nificant provisions with which judicial employees should be familiar.
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B. A judicial employee should be faithful to professional standards and
maintain competence in the judicial employee’s profession.
C. Standards of Conduct
(1) A judicial employee should be patient, dignified, respectful, and
courteous to all persons with whom the judicial employee deals
in an official capacity, including other employees and the general
public. A judicial employee should not engage in sexual or other
forms of harassment of court employees or retaliate against those
who report misconduct. A judicial employee should hold court per-
sonnel under the judicial employee’s direction to similar standards.
A judicial employee should take appropriate action upon receipt of
reliable information indicating a likelihood of conduct contraven-
ing this Code. Appropriate action depends on the circumstances
and may include, for example, reporting such conduct to a super-
visor, court executive, or chief judge. For relevant elaboration, see
Code of Conduct for United States Judges, Commentary to Canons
3B(4) and 3B(6).
(2) A judicial employee should diligently discharge the responsibilities
of the office in a prompt, efficient, nondiscriminatory, fair, and
professional manner. A judicial employee should never influence
or attempt to influence the assignment of cases, or perform any
discretionary or ministerial function of the court in a manner that
improperly favors any litigant or attorney, nor should a judicial
employee imply that he or she is in a position to do so.
D. Duty of Confidentiality
(1) A judicial employee should avoid making public comment on the
merits of a pending or impending action and should require similar
restraint by personnel subject to the judicial employee’s direction
and control. This proscription does not extend to public statements
made in the course of official duties or to the explanation of court
procedures.
(2) A judicial employee should not use for personal gain any confiden-
tial information received in the course of official duties.
(3) A judicial employee should never disclose any confidential infor-
mation received in the course of official duties except as required
in the performance of such duties. A former judicial employee
should observe the same restriction on disclosure of confidential
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information that applies to a current judicial employee, except as
modified by the appointing authority. This general restriction on
use or disclosure of confidential information does not prevent, nor
should it discourage, an employee or former employee from report-
ing or disclosing misconduct, including sexual or other forms of
harassment, by a judge, supervisor, or other person.
E. A judicial employee should not engage in nepotism prohibited by law
Note: See also 5 U.S.C. § 3110 (employment of relatives); 28 U.S.C. § 458
(employment of judges’ relatives).
F. Conflicts of Interest
(1) A judicial employee should avoid conflicts of interest in the perfor-
mance of official duties. A conflict of interest arises when a judicial
employee knows that he or she (or the spouse, minor child residing
in the judicial employee’s household, or other close relative of the
judicial employee) might be so personally or financially affected by
a matter that a reasonable person with knowledge of the relevant
facts would question the judicial employee’s ability properly to per-
form official duties in an impartial manner.
(2) Certain judicial employees, because of their relationship to a judge
or the nature of their duties, are subject to the following additional
restrictions:
(a) A staff attorney or law clerk should not perform any official
duties in any matter with respect to which such staff attorney
or law clerk knows that:
(i) he or she has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding;
(ii) he or she served as lawyer in the matter in controversy,
or a lawyer with whom he or she previously practiced
law had served (during such association) as a lawyer
concerning the matter (provided that the prohibition
relating to the previous practice of law does not apply
if he or she did not work on the matter, did not access
confidential information relating to the matter, and did
not practice in the same office as the lawyer), or he, she,
or such lawyer has been a material witness;
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(iii) he or she, individually or as a fiduciary, or the spouse
or minor child residing in his or her household, has a
financial interest in the subject matter in controversy or
in a party to the proceeding;
(iv) he or she, a spouse, or a person related to either within
the third degree of relationship (as defined above in
§ 310.40), or the spouse of such person (A) is a party
to the proceeding, or an officer, director, or trustee of a
party; (B) is acting as a lawyer in the proceeding; (C)
has an interest that could be substantially affected by
the outcome of the proceeding; or (D) is likely to be a
material witness in the proceeding;
(v) he or she has served in governmental employment and
in such capacity participated as counsel, advisor, or
material witness concerning the proceeding or has ex-
pressed an opinion concerning the merits of the partic-
ular case in controversy.
(b) A secretary to a judge, or a courtroom deputy or court report-
er whose assignment with a particular judge is reasonably
perceived as being comparable to a member of the judge’s
personal staff, should not perform any official duties in any
matter with respect to which such secretary, courtroom dep-
uty, or court reporter knows that he or she, a spouse, or a per-
son related to either within the third degree of relationship, or
the spouse of such person (i) is a party to the proceeding, or
an officer, director, or trustee of a party; (ii) is acting as a law-
yer in the proceeding; (iii) has an interest that could be sub-
stantially affected by the outcome of the proceeding; or (iv)
is likely to be a material witness in the proceeding; provided,
however, that when the foregoing restriction presents undue
hardship, the judge may authorize the secretary, courtroom
deputy, or court reporter to participate in the matter if no
reasonable alternative exists and adequate safeguards are in
place to ensure that official duties are properly performed. In
the event the secretary, courtroom deputy, or court reporter
possesses any of the foregoing characteristics and so advises
the judge, the judge should also consider whether the Code
of Conduct for United States Judges may require the judge
to recuse.
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(c) A probation or pretrial services officer should not perform
any official duties in any matter with respect to which the
probation or pretrial services officer knows that:
(i) he or she has a personal bias or prejudice concerning
a party;
(ii) he or she is related within the third degree of relationship
to a party to the proceeding, or to an officer, director, or
trustee of a party, or to a lawyer in the proceeding;
(iii) he or she, or a relative within the third degree of rela-
tionship, has an interest that could be substantially af-
fected by the outcome of the proceeding.
(3) When a judicial employee knows that a conflict of interest may be
presented, the judicial employee should promptly inform his or her
appointing authority. The appointing authority, after determining
that a conflict or the appearance of a conflict of interest exists,
should take appropriate steps to restrict the judicial employee’s
performance of official duties in such matter so as to avoid a con-
flict or the appearance of a conflict of interest. A judicial employee
should observe any restrictions imposed by his or her appointing
authority in this regard.
(4) A judicial employee who is subject to canon 3F(2)(a) should keep
informed about his or her personal and fiduciary financial in-
terests and make a reasonable effort to keep informed about the
personal financial interests of a spouse or minor child residing in
the judicial employee’s household. For purposes of this canon, “fi-
nancial interest” means ownership of a legal or equitable interest,
however small, or a relationship as director, advisor, or other active
participant in the affairs of a party, except that:
(a) ownership in a mutual or common investment fund that holds
securities is not a “financial interest” in such securities unless
the employee participates in the management of the fund;
(b) an office in an educational, religious, charitable, fraternal,
or civic organization is not a “financial interest” in securities
held by the organization;
(c) the proprietary interest of a policy holder in a mutual insur-
ance company, or a depositor in a mutual savings association,
or a similar proprietary interest, is a “financial interest” in
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the organization only if the outcome of the proceeding could
substantially affect the value of the interest;
(d) ownership of government securities is a “financial interest”
in the issuer only if the outcome of the proceeding could
substantially affect the value of the securities.
(5) A member of a judge’s personal staff should inform the appointing
judge of any circumstance or activity of the staff member that might
serve as a basis for disqualification of either the staff member or
the judge, in a matter pending before the judge.
Canon 4: In Engaging in Outside Activities, a Judicial Employee
Should Avoid the Risk of Conflict with Official Duties,
Should Avoid the Appearance of Impropriety, and
Should Comply with Disclosure Requirements
A. Outside Activities
A judicial employee’s activities outside of official duties should not detract
from the dignity of the court, interfere with the performance of official
duties, or adversely reflect on the operation and dignity of the court or
office the judicial employee serves. Subject to the foregoing standards
and the other provisions of this code, a judicial employee may engage in
such activities as civic, charitable, religious, professional, educational,
cultural, avocational, social, fraternal, and recreational activities, and
may speak, write, lecture, and teach. If such outside activities concern
the law, the legal system, or the administration of justice, the judicial
employee should first consult with the appointing authority to determine
whether the proposed activities are consistent with the foregoing
standards and the other provisions of this code. A judicial employee
should not accept a governmental appointment that has the potential
for dual service to and/or supervision by independent branches of
government (including state courts) or different governments during
judicial employment.
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B. Solicitation of Funds
A judicial employee may solicit funds in connection with outside
activities, subject to the following limitations:
(1) A judicial employee should not use or permit the use of the prestige
of the office in the solicitation of funds.
(2) A judicial employee should not solicit subordinates to contribute
funds to any such activity but may provide information to them
about a general fund-raising campaign. A member of a judge’s
personal staff should not solicit any court personnel to contribute
funds to any such activity under circumstances where the staff
member’s close relationship to the judge could reasonably be con-
strued to give undue weight to the solicitation.
(3) A judicial employee should not solicit or accept funds from lawyers
or other persons likely to come before the judicial employee or the
court or office the judicial employee serves, except as an incident
to a general fund-raising activity.
C. Financial Activities
(1) A judicial employee should refrain from outside financial and
business dealings that tend to detract from the dignity of the court,
interfere with the proper performance of official duties, exploit
the position, or associate the judicial employee in a substantial
financial manner with lawyers or other persons likely to come
before the judicial employee or the court or office the judicial
employee serves, provided, however, that court reporters are not
prohibited from providing reporting services for compensation
to the extent permitted by statute and by the court. A member
of a judge’s personal staff should consult with the appointing
judge concerning any financial and business activities that might
reasonably be interpreted as violating this code and should refrain
from any activities that fail to conform to the foregoing standards or
that the judge concludes may otherwise give rise to an appearance
of impropriety.
(2) A judicial employee should not solicit or accept a gift from anyone
seeking official action from or doing business with the court or oth-
er entity served by the judicial employee, or from anyone whose
interests may be substantially affected by the performance or non-
performance of official duties; except that a judicial employee may
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accept a gift as permitted by the Ethics Reform Act of 1989 and
the Judicial Conference regulations thereunder. A judicial employ-
ee should endeavor to prevent a member of a judicial employee’s
family residing in the household from soliciting or accepting any
such gift except to the extent that a judicial employee would be per-
mitted to do so by the Ethics Reform Act of 1989 and the Judicial
Conference regulations thereunder.
Note: See 5 U.S.C. § 7353 (gifts to federal employees). See also
5 U.S.C. § 7342 (foreign gifts); 5 U.S.C. § 7351 (gifts to superiors).
(3) A judicial employee should report the value of gifts to the extent a
report is required by the Ethics Reform Act, other applicable law,
or the Judicial Conference of the United States.
Note: See 5 U.S.C. App. § § 101 to 111 (Ethics Reform Act financial
disclosure provisions).
(4) During judicial employment, a law clerk or staff attorney may
seek and obtain employment to commence after the completion of
the judicial employment. However, the law clerk or staff attorney
should first consult with the appointing authority and observe
any restrictions imposed by the appointing authority. If any law
firm, lawyer, or entity with whom a law clerk or staff attorney has
been employed or is seeking or has obtained future employment
appears in any matter pending before the appointing authority, the
law clerk or staff attorney should promptly bring this fact to the
attention of the appointing authority.
D. Practice of Law
A judicial employee should not engage in the practice of law except that a
judicial employee may act pro se, may perform routine legal work incident
to the management of the personal affairs of the judicial employee or
a member of the judicial employee’s family, and may provide pro bono
legal services in civil matters, so long as such pro se, family, or pro bono
legal work does not present an appearance of impropriety, does not take
place while on duty or in the judicial employee’s workplace, and does not
interfere with the judicial employee’s primary responsibility to the office
in which the judicial employee serves, and further provided that:
(1) in the case of pro se legal work, such work is done without compen-
sation (other than such compensation as may be allowed by statute
or court rule in probate proceedings);
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(2) in the case of family legal work, such work is done without com-
pensation (other than such compensation as may be allowed by
statute or court rule in probate proceedings) and does not involve
the entry of an appearance in a federal court;
(3) in the case of pro bono legal services, such work (a) is done without
compensation; (b) does not involve the entry of an appearance
in any federal, state, or local court or administrative agency; (c)
does not involve a matter of public controversy, an issue likely to
come before the judicial employee’s court, or litigation against
federal, state or local government; and (d) is reviewed in advance
with the appointing authority to determine whether the proposed
services are consistent with the foregoing standards and the other
provisions of this code.
Judicial employees may also serve as uncompensated mediators or ar-
bitrators for nonprofit organizations, subject to the standards applicable
to pro bono practice of law, as set forth above, and the other provisions
of this code.
A judicial employee should ascertain any limitations imposed by the
appointing judge or the court on which the appointing judge serves
concerning the practice of law by a former judicial employee before the
judge or the court and should observe such limitations after leaving such
employment.
Note: See also 18 U.S.C. § 203 (representation in matters involving the
United States); 18 U.S.C. § 205 (claims against the United States);
28 U.S.C. § 955 (restriction on clerks of court practicing law).
E. Compensation and Reimbursement
A judicial employee may receive compensation and reimbursement of
expenses for outside activities provided that receipt of such compensation
and reimbursement is not prohibited or restricted by this code, the Ethics
Reform Act, and other applicable law, and provided that the source or
amount of such payments does not influence or give the appearance of
influencing the judicial employee in the performance of official duties or
otherwise give the appearance of impropriety. Expense reimbursement
should be limited to the actual cost of travel, food, and lodging reasonably
incurred by a judicial employee and, where appropriate to the occasion,
by the judicial employee’s spouse or relative. Any payment in excess of
such an amount is compensation.
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A judicial employee should make and file reports of compensation and
reimbursement for outside activities to the extent prescribed by the
Ethics Reform Act, other applicable law, or the Judicial Conference of
the United States.
Notwithstanding the above, a judicial employee should not receive any
salary, or any supplementation of salary, as compensation for official
government services from any source other than the United States,
provided, however, that court reporters are not prohibited from receiving
compensation for reporting services to the extent permitted by statute
and by the court.
Note: See 5 U.S.C. App. §§ 101 to 111 (Ethics Reform Act financial disclo-
sure provisions); 28 U.S.C. § 753 (court reporter compensation). See also
5 U.S.C. App. §§ 501 to 505 (outside earned income and employment).
Canon 5: A Judicial Employee Should Refrain from
Inappropriate Political Activity
A. Partisan Political Activity
A judicial employee should refrain from partisan political activity;
should not act as a leader or hold any office in a partisan political orga-
nization; should not make speeches for or publicly endorse or oppose a
partisan political organization or candidate; should not solicit funds for
or contribute to a partisan political organization, candidate, or event;
should not become a candidate for partisan political office; and should
not otherwise actively engage in partisan political activities.
B. Nonpartisan Political Activity
A member of a judge’s personal staff, lawyer who is employed by the court
and assists judges on cases, clerk of court, chief probation officer, chief
pretrial services officer, circuit executive, and district court executive
should refrain from nonpartisan political activity such as campaigning
for or publicly endorsing or opposing a nonpartisan political candidate;
soliciting funds for or contributing to a nonpartisan political candidate
or event; and becoming a candidate for nonpartisan political office.
Other judicial employees may engage in nonpartisan political activity
only if such activity does not tend to reflect adversely on the dignity or
impartiality of the court or office and does not interfere with the proper
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performance of official duties. A judicial employee may not engage in
such activity while on duty or in the judicial employee’s workplace and
may not utilize any federal resources in connection with any such activity.
Note: See also 18 U.S.C. chapter 29 (elections and political activities).
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Resources
Federal Judicial Center Resources
ADR in the Federal District Courts: An Initial Report (2011)
http://fjc.dcn/content/adr-federal-district-courts-initial-report
Basics of Employment Discrimination Law
http://fjc.dcn/content/332938/basics-employment-discrimination-law
Benchbook for U.S. District Court Judges (6th ed. 2013)
http://fjc.dcn/content/benchbook-us-district-court-judges-sixth-edition
Civil Litigation Management Manual (2d ed. 2010)
http://fjc.dcn/content/civil-litigation-management-manual-second-edition
Criminal e-Discovery: A Pocket Guide for Judges (2015)
http://fjc.dcn/content/309106/criminal-e-discovery-pocket-guide-judges
The Elements of Case Management (3d ed. 2017)
http://fjc.dcn/content/323373/elements-case-management-third-edition
Guide to Judicial Management of Cases in ADR (2001)
http://fjc.dcn/content/guide-judicial-management-cases-adr
A Guide to the Preservation of Federal Judges’ Papers (3d ed. 2018)
http://fjc.dcn/content/330702/guide-preservation-judges-papers-third-edition
Interactive Orientation for Federal Judicial Law Clerks (iOLC)
http://fjc.dcn/content/322873/interactive-orientation-federal-judicial-law-
clerks-iolc
137
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Law Clerk Handbook
Federal Judicial Center
Judicial Writing Manual: A Pocket Guide for Judges (2d ed. 2013)
http://fjc.dcn/content/judicial-writing-manual-pocket-guide-judges-
second-edition
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks
(2019 rev. 4th ed.)
http://fjc.dcn/content/340624/maintaining-public-trust-ethics-federal-judicial-
law-clerks-revised-fourth-edition
Managing Discovery of Electronic Information (3d ed. 2017)
http://fjc.dcn/content/323370/managing-discovery-electronic-information-
third-edition
Manual for Complex Litigation (4th ed. 2004)
http://fjc.dcn/content/manual-complex-litigation-fourth
Mediation & Conference Programs in the Federal Courts of Appeals:
A Sourcebook for Judges and Lawyers (2d ed. 2006)
http://fjc.dcn/content/mediation-conference-programs-federal-courts-appeals-
sourcebook-judges-and-lawyers-second-edition
A New Judge’s Introduction to Federal Judicial Administration (2d ed. 2020)
http://fjc.dcn/content/346988/new-judge’s-introduction-federal-judicial-
administration-second-edition
Organization and Jurisdiction of the U.S. Bankruptcy Courts
http://fjc.dcn/content/308820/organization-and-jurisdiction-us-
bankruptcy-courts
Technology-Assisted Review for Discovery Requests: A Pocket Guide for
Judges (2017)
http://fjc.dcn/content/321579/technology-assisted-review-discovery-requests
138
The Federal Judicial Center
Board
The Chief Justice of the United States, Chair
Judge Carol Amon, U.S. District Court for the Eastern District of New York
Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indiana
Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit
Judge Nancy Freudenthal, U.S. District Court for the District of Wyoming
Judge Thomas Hardiman, U.S. Court of Appeals for the Third Circuit
Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of Texas
Judge Raymond Jackson, U.S. District Court for the Eastern District of Virginia
James C. Duff, Director of the Administrative Office of the U.S. Courts
Director
John S. Cooke
Deputy Director
Clara J. Altman
About the Federal Judicial Center
The Federal Judicial Center is the research and education agency of the federal
judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the
recommendation of the Judicial Conference of the United States.
By statute, the Chief Justice of the United States chairs the Center’s Board, which
also includes the director of the Administrative Office of the U.S. Courts and seven judges
elected by the Judicial Conference.
The organization of the Center reflects its primary statutory mandates. The Education
Division plans and produces education and training for judges and court staff, including
in-person programs, video programs, publications, curriculum packages for in-district
training, and web-based programs and resources. The Research Division examines and
evaluates current and alternative federal court practices and policies. This research assists
Judicial Conference committees, who request most Center research, in developing policy
recommendations. The Center’s research also contributes substantially to its educational
programs. The Federal Judicial History Office helps courts and others study and preserve
federal judicial history. The International Judicial Relations Office provides information
to judicial and legal officials from foreign countries and informs federal judicial personnel
of developments in international law and other court systems that may affect their work.
Two units of the Director’s Office—the Information Technology Office and the Editorial &
Information Services Office—support Center missions through technology, editorial and
design assistance, and organization and dissemination of Center resources.
One Columbus Circle NE
Washington, DC 20002-8003
fjc.dcn • fjc.gov
L aw
Clerk
Handbook
Fourth Edition
The Law Clerk Handbook provides an overview of law clerk
responsibilities, chambers operations, and the work of the
federal courts. Potential and current law clerks, as well as
their colleagues, will find helpful information on conduct,
ethics, types of federal court litigation, chambers and
case management, court governance and administration,
legal research and writing, and resources for additional
information on these topics.
LAW CLERK HANDBOOK FOURTH EDITION FEDERAL JUDICIAL CENTER
