Lots of people are going to tell you that if you want to be a litigator, you have to have a clerkship first. First: stop listening to other people. Second: start listening to yourself.
I’ll say, I think clerkships can be incredibly helpful in not only landing a future job, but in preparing you to become a litigator. The experience not only provides you with significant writing opportunities alongside countless hours of legal research, but it can also offer you a lifelong mentorship with your judge and a fierce advocate as you search for your next career opportunity. That said, clerkships aren’t for everyone, and I refuse to accept the fabled notion that you must clerk if you want to litigate.
What are some reasons not to clerk, you may be wondering.
First, you might only get an offer to clerk for a judge who isn’t widely respected in the community, which can ultimately hurt you as you look for work. Clerking for a judge whose opinions are considered unpersuasive or flat-out wrong half the time means that his or her reputation may be imputed onto you as one of the people who helped draft the judge’s orders. Of course, most judges are well respected in their communities, but that isn’t universally true and I would make sure to do your research before clerking for a judge you don’t know.
Second, you might only get an offer from a judge where you can tell the fit isn’t great. I remember that out of five clerkship interviews, two were clear no’s for me. And I don’t mean no’s where I could tell I wasn’t getting an offer. In fact, one of the judges told me to keep my phone by me, causing me to panic and call a much more diplomatic friend to get her sage advice on how to decline any clerkship he had to offer. (Luckily, he never called.) Just like with any job, if you can tell the fit will not be good from the get go, get the heck out. There’s no way to hide a bad fit, and that judge is almost certainly never going to become your mentor, let alone your advocate for future opportunities.
Third, you might already recognize that you don’t have the capacity to be neutral. Being a clerk does not mean getting to make a year-long string of decisions that fit your moral compass or personal legal views. Instead, you have a duty to be neutral, and that can often mean taking positions that you do not agree with. That mattered a lot to me, so I made sure to research the opinions of every judge I was considering applying to so I could ensure our legal views relatively lined up. I knew I would not feel comfortable drafting opinions on key legal issues for certain judges, and I chose not to apply to those judges for that precise reason.
Still, you don’t know what cases will come your way when you clerk. No matter how much research your do in advance, if you take the job, you’ve gotta do the job. And for some, even the potential that they might have to take a position they fundamentally disagree with is enough to dissuade them from becoming a clerk.
Fourth – and somewhat in line with the third point – you might be eager to advocate straight out of the gate, and clerking is the opposite of advocacy. As a clerk, you are distinctly not an advocate. For many – especially those who want to go into civil rights – the entire purpose of obtaining a legal degree is to become a fierce advocate. And waiting might not be worth it to you.
Personally, I found my clerkship to be one of the most rewarding experiences of my life, and certainly of my legal career. That said, I was lucky enough to clerk for an incredibly kind, compassionate, and respectful judge who is now a mentor and fierce advocate of mine. I also learned an incredible amount not only with respect to the substantive law, but also as to the entire process of pleading and litigating a federal district court case. My clerkship (and really my judge) also took me from a truly mediocre writer and turned me into a very strong one. And writing is one of the most important skills for a litigator to have. So for me, the experience was more than worth it.
However, you should always keep in mind that what is right for one person may not be right for you. If you have a nagging feeling inside that you just don’t want to clerk – or don’t want to clerk on a specific court – then listen to your inner voice. You need to stay true to yourself in this profession, and that includes deciding which opportunities are right – or wrong – for you.