One Set of Eyes, Two Perspectives: Clerking in the State Trial Court and Federal Court of Appeals

The Bencher—September/October 2014

By Jared M. Moser, Esquire

I do not hesitate to acknowledge that, through my judicial clerkships, I have been far more fortunate than many. After beginning my law practice in Honolulu, Hawai`i, I was given the opportunity to clerk for Judge Nancy L. Allf of the Eighth Judicial District Court and a member of the Howard D. McKibben American Inn of Court. After clerking for Judge Allf, I was accepted as a law clerk to Judge Johnnie B. Rawlinson of the U.S. Court of Appeals for the Ninth Circuit.

So, why Hawai`i? And, why go from Hawai`i to Las Vegas? Born and raised in Carson City, Nevada, I moved to Hawai`i with little more than aspirations and my acceptance to Hawai`i Pacific University. I graduated from college, and although I enjoyed my time there, I needed something more. I returned to Nevada to attend the William S. Boyd School of Law at the University of Nevada-Las Vegas. All the while, Hawai`i was still calling me, and I would return to the University of Hawai`i- Mānoa for my final semester of law school. After graduation, I began practicing family law and was encouraged to pursue a clerkship. I thought about what that meant-a chance to really learn how the legal system worked, a behind-the-scenes education that no law school is known to provide. The acceptance of that first clerkship will always be one of the best decisions, both personally and professionally, that I have ever made.

State Trial Court

Clerkships vary in their training methods, but I received one week of on-the-job, monkey-see-monkey-do training from my predecessor, with whom I still remain friends. When he left, I began to scale the steep learning curve, but I cannot say I did it alone. One of the best characteristics of my state court clerkship was my peers' willingness to help. Many of them have gone on to public service or to great law firms, which illustrates another benefit of clerking-the power to open doors. I am confident that the relationships my fellow clerks and I developed will make practicing law much more enjoyable.

Law school teaches you how to think like a lawyer. Professors instruct their students on torts, contracts, constitutional law, civil procedure, and property law. Nonetheless, I learned more in the first six months of my clerkship than in three years of law school. Analogous to learning a foreign language by living in a foreign country, the immersion into legal practice from a judicial perspective taught me the practical side of what I learned from my professors at Boyd. In my state court clerkship, I observed a wide variety of cases. Judge Allf refereed the proceedings as gracefully as anyone could have done. I also observed admirable lawyering, as well as examples of how not to practice law. Another invaluable feature of a clerkship is the chance to learn from others' mistakes.

Trial advocacy and litigation courses in law school can teach a person about being in the courtroom, but nothing compares to actually being there. Watching some of the best trial attorneys in the western United States is also more informative than any class because the presentations are in much clearer context.

I clerked for Judge Allf until my successor finished taking the bar exam. Both of my judges have great respect for judicial canons, and Judge Allf often emphasized the importance of being patient, dignified, and courteous. She also introduced me to many people and organizations that continue to improve my lawyering. I learned more than I ever imagined was possible in the position, I met incredible people, and I developed lifelong friends and professional relationships.

U.S. Court of Appeals for the Ninth Circuit

I was loving my state court clerkship, to such an extent that I considered staying for another year. "That's not fair to anyone," Judge Allf told me, "especially to you." So I began to pursue what, to me, was the holy grail of clerkships. Roughly 800 lawyers and law students from around the country vie for the position. Of those 800, less than 20 receive an interview. Of those 20, only three are selected. How would I stand a chance? The answer: excellent legal writing, those previously mentioned professional relationships, and perhaps surprisingly, personality.

As is true for any job interview, but especially for a clerkship, research is critical, and I conducted as much research as I could in preparation. I read opinions, listened to oral arguments, read biographical articles, and talked to those more knowledgeable than I. I had the opportunity to attend Judge Rawlinson's surprise birthday party with many others in the legal community a few months prior. When she asked me what I had learned about her that surprised me the most, I referenced her ability to perform the electric slide, at which she, I, and her career clerk got a good laugh. Not to laugh off her question, I shifted and told her in all honesty, "I wouldn't say I was surprised, but one thing I thought stood out as very admirable was that your name was being discussed as a potential Supreme Court Justice when Justice Sotomayor was appointed." Having worked for Judge Rawlinson for a year by the date of publication of this article, I completely understand why she garners such respect. Not only is Judge Rawlinson a very rational, experienced, and well-respected legal thinker, she is down to earth as well, which is fortunate for me because the electric slide comment might not have gone over as well with other judges.

The clerkship similar, but different. All assignments, whether state or federal, involved reviewing the parties' arguments, researching the legal issues, and recommending an appropriate resolution to the judge. One of my predecessors contrasted the state and appellate courts for me during my interview quite accurately. The state court requires numerous tasks to be managed, prioritized, and completed-answering the telephone, reviewing orders submitted by counsel, drafting proposed opinions for the judge's review, and writing bench memoranda on between 10 and 50 motions to be heard in any given week. The appellate court, too, requires a law clerk to manage, prioritize, and complete assignments. Contrarily, however, an appellate law clerk rarely gets a phone call. An appellate law clerk is expected to draft bench memoranda, but the exact system and number of cases assigned depends on the chambers in which one works. The cases in the appellate court were completely different from those I saw during my experience in the state court. Appellate cases involved federal habeas petitions, issues of diversity jurisdiction, social security, immigration, and direct criminal appeals, among others. Judge Rawlinson's career clerk gave me and my other two co-clerks a crash course on writing and logistics for our judge, and I will never be able to thank him enough for his guidance throughout the term.

Regardless of the system, case load, or case topics, an appellate law clerk must thoroughly research a complex legal issue, or several, and present the arguments and legal authority to the judge in a cogent yet succinct manner. Not to understate the implications of state court proceedings to individuals, the ripples of an appellate court decision can be much more far-reaching. The decisions of the Ninth Circuit directly affect nine different states and two U.S. territories and often make national news. While all Nevada state court judges are elected and are therefore scrutinized by the electorate, the Ninth Circuit judges are under greater public scrutiny. For these reasons, one must be even more diligent in the presentation of oneself as a surrogate to the judge.

Much like my experience in the state trial court, the appellate clerkship allowed me to read impressive appellate briefs, witness skillfully crafted oral arguments, and meet incredible people with whom I hope to maintain some connection throughout our respective careers beyond clerking. My appellate clerkship allowed me to learn from one of the best in the legal profession. Judge Rawlinson's mentoring improved my legal writing and oral advocacy techniques going forward, made me more cognizant of my professional image, and gave me opportunities to go places and see things I never imagined even five years ago.
To Judges Allf and Rawlinson, I am eternally grateful.

Jared M. Moser, Esq. is a member of the Howard D. McKibben American Inn of Court. As of October 2014, he will be an associate with Marquis Aurbach Coffing in Las Vegas, Nevada.

© 2014 JARED M. MOSER, ESQ. This article was originally published in the September/October 2014 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.