Monday, October 15, 2007

The fun of really researching an issue

One thing that I miss from my law review days is the ability to commiserate and complain about various authors' "suggestions" and "papers" (and "ideas") to my fellow board members. As a clerk, the only comparable experience is with the written "briefs" and the "ideas" contained therein to my fellow clerks. But that is not my point to this particular entry. Unlike law school, where you can discuss various aspects of the legal world with your study group or other law school friends or professors, your ability to do so is limited to the court in which you work. And depending on your court rules and judge, maybe it's limited to your chambers. I certainly respect and understand the confidentiality and reasoning behind such rules, but it makes for that much more ground work and hope that your reasoning on a complex issue is right. And in the end, if you're wrong, I guess that gives the academic world something to write about.

In that sense it's no different than how you do work around a firm. Unlike the firm though, the universe of people you can bounce work-related ideas off of is much smaller (acknowledging the universe in a firm is small as it is). It's frustrating in some senses that you see or read something interesting related to a case you are working on and are duty bound not to talk about it. I guess that's the experience that a firm pays for when you get hired post-clerkship. Nevertheless, it's pretty annoying. Less may be more, but sometimes you need more in order to say less if that makes any sense.

On a related note, I saw that the AP wire had picked up a story on something I had worked on (this was last week or the week before, and left over from last year's clerk, but still). It's funny reading things written by a non-lawyer trying to interpret a legal document. Oh, the things you miss, AP reporter. Of course, I also remember a former clerk telling me about some commentator's blog entry about a case, and she told me that the blogger totally got caught up on a sentence in the case that was utterly unimportant to the issues. To both types of interpreters, I can only say that with my various entries, I try and explain things the best I can. With my opinions, I obviously put a lot more effort in. I think the key word with published stuff is "effort." If the WSJ can't do it, I'm not sure what the average newspaper reader is being led to believe. I would venture to say that the answer is "whatever the writer wants the reader to believe." Such biased reporting is fine for blogs, I guess, but somewhere along the line, I think the newspaper has lost its focus. Speaking of which, this entry is long enough and football is about to come on.

In more cheerful news (and unrelated to the topic at hand), a couple of my friends who took the Virginia bar tell me that the results are due out by the end of the week. According to the Virginia Board of Bar examiners website, they are due out Oct. 18. My friends who took Texas, South Carolina and the remaining states still are a few more weeks away, but the day to announce whether or not I passed the bar is certainly inching closer.

6 comments:

Anonymous said...

Your point about being free to discuss cases with more voices in a law firm than in chambers is interesting. Is there anything in an ongoing case you're allowed to discuss outside chambers? I mean I've talked to clerks before about their ongoing cases in the hypothetical, where they are just trying to get an outside point of view. And it seems like my friends who work for firms worry about what they can disclose and their confidentiality obligations to the firm and their clients. Like, "man, I'd love to tell you what evil thing my firm did today, but I can't." So maybe they have more people within the firm they can talk to, but clerks have more freedom to talk outside the office?

ECL said...

Well, for me, we're not allowed to discuss ongoing cases outside of chambers. I don't think that's any different than any other clerk. So in that sense, it's really no different than a law firm. I think what I was trying to say was that because law firms are bigger, there are more people to bounce ideas or spin hypotheticals with.

Hypotheticals for clerks are really no different than what you suggest, although I try not to even do that except maybe to different law clerks (sometimes in different jurisdictions), for the fear that someone may misconstrue my point for something else. Thanks for your post.

Anonymous said...

So you're saying if a clerk met some ladies in a bar one weekend and talked about the arguments he favored in a specific case that was going to argument Monday (the facts of which are in the public domain), that would likely be a breach of the rules of his judge's chambers?

ECL said...

I would suspect that most courts follow the same procedure as mine. You really need to keep the cases and such hypotheticals behind closed doors. I could certainly envision some case where a clerk or associate, after a couple of drinks, says something that could be misconstrued by the public.

For example, the SEC keeps close watch on unusual trading patterns, and catches most people. That's an easy one. But what if a clerk or first year associate made some comment about a G-phone, speaking in code, and a nosy newspaper reporter thinks they are talking about Google's solution to the iPhone. If the story breaks, and it's fake, who really suffers? Probably nobody, but I think the better answer is that the court and the profession suffers. Whether the disclosure is on purpose or inadvertent, it is shaking the public's confidence in the judicial system and the whole confidentiality policy. Maybe I'm being too harsh about it, but I don't think so.

A better example to illustrate my point deals with a lawyer who discussed part of his views of a current case with his wife at a restaurant. A client of opposing counsel overheard his lawyer's name during this conversation, paid closer attention to what the other lawyer was saying, and ultimately, gave opposing counsel fodder for appeal. That, I submit, is the real danger of discussing work out of work. Nosy eavesdroppers.

So, I would say that the answer to your question should be yes. Further, the clerks in your bar hypothetical might have traded their integrity for a phone number or a short conversation and also exposed themselves for potentially bigger problems down the road. If I'm being too black and white about this issue though, I am interested in hearing the counterargument.

Instead of a hypothetical fact pattern to try and impress someone with the work that you do, I can think of hundreds of more interesting, non-confidential things to talk about in a bar. But maybe not... I am currently single, so maybe I'm going about bar conversation the wrong way. Thoughts?

Anonymous said...

I totally agree with you. I doubt the clerk trying to impress me and my pretty cousin did any harm b/c he didn't indicate that the court would definitely rule one way or another. And besides, who would I have told about it? But the case did end up coming out the way he was arguing, and the bar was next to a courthouse and chock full of lawyers. Kind of playing with fire. I am a little relieved to know it's not really allowed.

I wouldn't suggest using cases as pickup material on a regular basis, but it did manage to get me as an impressionable 1L. If you're going to break any rules, do it strategically :)

ECL said...

I've definitely gone out with clerks to bars near the courthouses and even in the biggest towns, the lawyer circle is pretty small. Hopefully it wasn't someone I know (obviously some clerks are more chatty than others after a couple drinks).

And, if it was, I guess it's just the "no harm, no foul" argument. To his defense, maybe he thought you were another clerk, but I still say an open bar isn't the right spot to have that conversation. I agree with you; it's playing with fire. But back to my original point, aren't there more interesting things to talk about that aren't so professionally dangerous?

All this set aside, I would suspect, based on your description, that that person worked for a trial court and not an appellate court. Functionally, the workload is pretty different and so is maybe the training. Regardless, however, I would think that discussing a current trial is as worse if not moreso than discussing a pending appeal (particularly if it's a juicy murder trial). Then again, I tend to see things in this particular area in black and white (as compared to the rest of the law where the gray pervades).