By Dmitry S. Feofanov
The role of a judicial clerk (or a staff attorney) in the appellate process is often overlooked.
A practitioner may search for court decisions shedding light on the thinking of a particular judge on a particular subject. That mysterious creature, the Clerk, however, is cloaked in anonymity.
Yet, it is likely to be the Clerk who will read the briefs first, and, depending on a particular local practice, will either write a research memo for a judge, or prepare either the first draft of an opinion or an order disposing of the case.
What can a practitioner do to predispose a Clerk favorably to his or her client’s side?
Writing Dos and Don’ts
1. Cite to all three reporters, with pinpoint cites. Appellate courts cite to both official and commercial reporters. Very often, the only set easily available for cite-checking by the Clerk is Illinois Decisions. When a brief cites only to Ill. Dec., the Clerk has to obtain cites from official (Ill. or Ill. App.) and commercial (N.E.) reporters. The Clerk will do this, but while muttering about the high fees charged by the attorneys of record, who expect someone else to do their work.
2. Don’t attempt to pull the wool over the Clerk’s (and the court’s) eyes. Occasionally, when a lawyer has no case, the Clerk will encounter a brief arguing about the oranges instead of the apples. This may provoke a sardonic comment, orally in chambers, or the hallways, or in a research memo, and the lawyer’s name (and reputation) will be besmirched, at least until the current crop of Clerks leaves.
3. Avoid intemperance. The author recalls a brief in which a lawyer impugned the integrity of the courts and of a particular trial judge. In addition to impugning the judge’s integrity, the lawyer impugned the judge’s intelligence. To underline the latter point, the lawyer attached a page from a hornbook, purportedly making the point. That brief was read at the office table—aloud—by the Clerks for its entertainment value.
4. File your Reply Brief early. The Clerk very likely has a deadline when his or her work product is due. This deadline allows the judge(s) to read research memos or proposed dispositions well ahead of oral arguments. If your Reply Brief is filed past the briefing deadline, the Clerk may not have the opportunity to consider it. Moreover, even if you file it exactly on time, it takes time for the filed materials to filter down from the Keeper of Documents to the Clerk. Since the Clerk most likely has a set number of research memos or case dispositions to prepare, he or she will be anxious to begin work on the currently pending matters. If your Reply Brief is not accounted for, the Clerk’s assumption would be that it is not forthcoming, and the Clerk will begin work on the case without the benefit of the Reply Brief.
Oral Argument Dos and Don’ts
1. Do not bring clients to hear you argue. If your client is in the courtroom during the appellate argument, you may not be willing or able to concede points that are not in your favor. Needless to say, counsel’s credibility is very much at stake during an appellate argument. Conceding a point may go a long way toward establishing your credibility with the court, thus allowing the court to take your other arguments more seriously.
2. Do not stick to your outline. Having read the briefs, some judges like to ask pointed questions. In addition, the Clerk is likely to have provided them with an objective research memo, weighing both sides of the argument. Why do they need to hear a lawyer regurgitating one side’s position once again? Knowing the weaknesses on both sides, the judges would rather concentrate on these. Therefore, when a question comes your way, answer it. Do not reply, as one of the lawyers arguing before the Supreme Court of Illinois did, "I’m getting to that point in about two minutes."
3. Do not perceive a barrage of skeptical questions from the bench as a sign that you are losing. Very often, skeptical questions from the bench indicate that one or more judges need reassurance from you, because they are leaning in your favor. It is counterproductive to become defensive at this point. Of course, it may be that the skeptical questions indicate a real weakness in your position. In either case, however, the best stratagem is to adopt the tone of convincing reassurance. From experience, the author knows that one’s physical state affects one’s emotional state as well as the other way around. Therefore, when the going gets tough—smile broadly.
Dmitry S. Feofanov is an Associate at Brooks, Adams & Tarulis, Naperville.
He has worked as a law clerk for the Honorable David K. Harris, Iowa Supreme Court, and as a research attorney for the Illinois Appellate Court, Fourth District.