Editor’s Desk: Lessons from chambers that even decades of practice hadn’t taught me

Advertisers in this issue:
Effres & Efrres
Fox Law Corporation
Krycler Ervin Taubman & Kaminsky
Law Offices of Lawrence C. Noble
Lawyers' Mutual
Lewitt Hackman
One Legal
Scheideman Design
Valley Community Legal Foundation

Download this issue of Valley Lawyer.

By M. Jonathan Hayes

I was exchanging emails with my friend, retired bankruptcy Judge Meredith Jury, a few years ago when she mentioned that Judge Laura Taylor in San Diego, the Chief Judge of the Ninth Circuit Bankruptcy Appellate Panel (“BAP”), was looking for a BAP law clerk.  I raised my hand immediately, “I’ll do it!” 

I had daydreamed for many years about such a position, sitting next door to the judge, assisting with the caseload, seeing what goes on behind the curtain, gaining insight into the judicial decision-making process.  I had participated in several programs with Judge Taylor, argued before her at the BAP several times, and met her casually at conferences.  I had no doubt that we would work well together.  Suddenly it seemed possible. 

I emailed her the next morning.  “Judge, I’m interested in the job.”  She called me and we talked for an hour.  She hired me a few days later.

There are six BAP judges in the Ninth Circuit, each supported with a separate BAP law clerk.  Each month, Judge Taylor was assigned four to six appeals, sitting with two other BAP judges, and was designated as “lead” judge for one or two of the cases.  A big part of my job was to write the “bench memorandum” for her lead cases. 

The bench memorandum resembled the panel’s final disposition in structure and content, including an introduction, statement of facts, standard of review, and legal analysis.  Once the BAP provided the case names and docket numbers, I retrieved the pleadings from PACER.  Judge Taylor and I discussed each case in detail, with her giving me instructions as we went. 

Drafting the memorandum was a huge job, especially figuring out what really happened at the trial court level.   The facts had to be 100% accurate and complete, meaning based on the record.  In almost every case, I went to the trial court docket to see what else was there, to make sure that nothing material was overlooked.  I didn’t worry about putting in too much detail; it would be easier to pare down later than to fill in gaps after the fact. 

By the time I had a good set of facts, I usually had a good sense of the legal issues presented and often a view of the outcome.  Judge Taylor and I would talk some more, at least several times, about each case.  She would review the drafts in process and make changes and give me further directions about what further efforts were required. 

We also discussed the non-lead cases, and I occasionally prepared research memoranda about discrete legal issues she wanted to dig into a little more.  

A week before oral argument, the three-judge panel would exchange the bench memorandums.   The judges met the night before oral argument to discuss each case.  The BAP clerks were permitted to attend that conference but rarely spoke unless some request was made.  That was certainly the highlight of my time with her.    

After oral argument the following day, the judges would meet again and discuss the cases reaching a tentative decision.  Judge Taylor and I would speak again right after that.  She would explain the modifications she wanted in the bench memorandum for her lead cases which I typically completed over the next few days.

Then the magic happened: Judge Taylor would take the bench memorandum and rewrite it.  She often put in a new introduction that explained, in a few sentences, the case and the result with astonishing clarity.  She routinely trimmed significant portions of the factual and legal discussion, while expanding and sharpening others.  I could hear her talking as I read the revised memo.  She sounded like she was sitting on a couch causally talking to some friends, albeit with total command of the room.  

It is often said that youth is wasted on the young. I sometimes wish I had been able to observe judges at work earlier in my career, though I doubt I would have appreciated the experience as fully as I do now.  Judge Taylor’s ten-year tenure on the BAP concluded at the end of the year I worked for her, and she retired the following year. I remain deeply grateful to her for the opportunity to serve as her law clerk and for an experience I will always value.