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An Insider's View

|Written By Helen Burnett
An Insider's View

Providing articling students with a once-in-a-lifetime chance to have a behind-the-scenes look at the workings of the court, judicial clerkships are proving to be a popular option not only for aspiring litigators, but for future academics and solicitors as well.

Current and former clerks says the judicial clerkship experience is well worth it, as it gives articling students the chance to interact with judges and refine research and writing skills. However, students who choose this route should be prepared for the differences between this and other articling options.


The number of clerks hired varies with every court in the country, with many courts taking on only a few students per year. Duties and responsibilities, however, are similar. For example, the Supreme Court of Canada hires 27 law clerks each year, three for each judge. The SCC says it gets approximately 185 applications for the positions each year. Law clerks at the Supreme Court level, under the direction of the judges they work for, are responsible for researching points of law, preparing memoranda of law, and assisting the judge in the work of the court.


The British Columbia Supreme Court and Court of Appeal have 29 clerks between them who are responsible for assisting judges with legal research relating to cases that are coming before the court or that have already been heard. In addition to legal research, clerks at the Court of Appeal prepare preliminary memoranda. Clerks are encouraged to attend both courts and to observe as many different sorts of trials, appeals, and chambers hearings as time and their workloads permit.


Krista Smith, currently clerking with the Nova Scotia Court of Appeal, says the bulk of her job is research, but that there is daily interaction with the eight judges she clerks for. She is in court for approximately two hearings a week. Smith started her judicial clerkship last summer after articling for a year in Toronto. She says clerking is something she always wanted to do before she went into practice. “At any court, you have to step back and weigh both sides, and I feel like that’s going to give me a much better perspective when I’m out in the world litigating.”


She and the other clerks divide the cases between them, and any, or all, of the judges will give her legal or evidentiary questions to research on each case. “I guess the other nice thing about it is just the level of interaction with the judges, because their doors are always open.”


Similarly, Ben Pullen, currently finishing up his clerkship with the Court of Queen’s Bench in Calgary, says clerks are encouraged to sit in on trials as well as have the unique experience of afterwards going into the judge’s office to discuss the matter.


The hours are also an attractive element of clerking. Vastly different from most articling positions, Smith says she works a standard 9-to-5 or -6 day. “The thing about appeals, I guess, is that it’s a little sort of longer term. It’s not quite as fast paced, but you have more time to sort of think stuff through and really be comprehensive in your searches. I didn’t find I had as much time as an articling student to look at everything under the sun,” she says. The pay may be lower than articling with a firm, says Pullen, but the hours also allow time to study for the bar admissions course or exam.


Joanna Harris clerked with the Ontario Superior Court during 2006-07, following a year of articling. She is now an associate with Thomson Rogers in Toronto and says during her year as a judge’s law clerk she never worked weekends and always took her lunch break. “That never happened when you were articling.” As the amount of time spent in court was up to the clerk, Harris says she was also in court at least half of every day. “There’s enough flexibility, you’re not under too many tight deadlines that you [can’t] be in court quite a lot,” she says.


Another perk, say many who have had the experience, is the chance to work in various areas of law and the flexibility to request more work in areas of greater interest. “New matters come across the desk obviously weekly, ranging from murder trials to wills and estate matters,” says Pullen, who notes that a clerkship is never dull.


Harris says around 60 to 70 per cent of her work at the Superior Court was focused on criminal law — with some commercial, civil, and family — but was also flexible. At the Nova Scotia Court of Appeal, the clerks divide up the docket themselves, so they each try to choose what they’re most interested in, says Smith. “I guess that was another reason to clerk . . . I think as a practitioner, people tend to specialize these days, and I wanted another year of broad exposure to sort of increase my familiarity overall with the law before I focus in,” she says.


Some students end up doing both a clerkship and articling, either by choice or necessity, as the question of whether a judicial clerkship fulfills all or part of a student’s articling requirements varies across the country. In B.C., for example, time spent as a clerk only partially fulfills the articling requirements, as the Law Society of B.C. states students employed as a judicial clerk for at least eight months can apply to have their articling period reduced by half the time they clerked. The courts note that call to the bar for law clerks in B.C. after graduating can vary between 18 and 22.5 months. In Ontario, on the other hand, judicial clerkships count for the full articling requirement.


One drawback to clerking, says Harris, is that just doing a clerkship without articling experience can be extremely different from practising law. “It’s very academic and it’s legal research and it’s considering a lot of issues and having the time to think about it. When you’re in practice, you have to think about your filing and your court deadlines and all the materials you have to put together, and so all of that is a very steep learning curve,” she says. “I think [that’s true] for any lawyer, but clerking doesn’t really prepare you for the practical aspects. But I don’t think that’s why people do a clerkship,” she adds.


Would Harris recommend the clerking route? She says it depends on what students are thinking of doing. For someone thinking about going into academia, she would suggest a clerkship, but those thinking of practising should bear in mind that it could be even harder in the first year of practice right after clerking — depending on how research-based the practice is — in terms of how to file things and what the rules and procedures are. Clerking is a great experience, says Harris, “but just be prepared for what it provides and what it doesn’t provide.”


Parts of the clerkship experience have proved especially useful in practice, says Harris, include knowing what judges look for and how to make her pleadings, factums, and arguments really concise, as well as learning about all of the evidentiary principles. “I just realize, from a judges perspective, they don’t have a whole lot of time, and so if you can make it really easy for them, they will read your materials and they will appreciate the clarity.”


Smith agrees knowing what judges want will prove useful when she enters practice later this year. “If you are thinking about going into litigation, this would be an especially great opportunity —  just to get a chance to sit in daily or weekly on matters [and] to see some of the best counsel in the city perform at their jobs, and then to get a chance to go behind the scenes and talk to the justices about what they thought was good, what was bad, and you just pick up daily tips on litigation skills,” says Pullen.


The jobs clerks choose also vary dramatically. Harris says many of the former clerks she knows ended up in criminal defence or civil firms, or working for the federal government or legal aid. She says some firms were impressed by her clerkship experience and thought, “Here’s someone who really takes the litigation process seriously and is really well rounded.” Others, however, thought that she had delayed her practice for a year.

Some were also not aware that the Superior Court had clerks. “It just kind of depends on the culture of the firm,” she says.


Harris says she thinks judges “do their best for clerks to try to help them and assist them with finding jobs afterwards, which is very helpful too.”


For Vancouver litigation boutique Hunter Litigation Chambers, where approximately three-quarters of the lawyers on staff are former judicial clerks, the experience is viewed as valuable and significant. “What you have is a group of people who have had the benefit of working beside a judge,” says one of the firm’s founders Peter Voith, where they can learn what works and what doesn’t work, from judges as well as from lawyers. “If you’re interested in counsel work, it would be a real asset. Many firms, certainly I can speak for ours, think well of it.”


Linda Brown, a business lawyer with the Vancouver office of McCarthy Tétrault LLP and former judicial clerk, says the firm has several former clerks on staff, as well as summer students set to do a judicial clerkship and then return to the firm as articling students for 2009-10. “I think it’s valuable regardless of where you think you’re going to end up,” she says. While those who tend to go for clerkships are those who think they will ultimately end up in a litigation career, she notes that there are several former clerks in her office who went on to become business lawyers.


Many notable lawyers and academics began their careers with a judicial clerkship, including McGill University’s law dean Nicholas Kasirer, who was law clerk to Supreme Court justice Jean Beetz from 1987 to 1988; McCarthy Tétrault counsel and former deputy prime minister John Manley clerked for former Supreme Court chief justice Bora Laskin in the late 1970s; and University of British Columbia law Dean Mary Anne Bobinski is a former judicial clerk to Judge Max Rosenn of the United States Court of Appeals for the Third Circuit.


Hugh Verrier, chairman of White & Case LLP in New York, clerked for Supreme Court justice Bertha Wilson in 1982-83. He notes that clerking was a great experience and recommends it to anyone, at any court. “I’ve not worked as a litigator; I’ve been a transactional corporate lawyer, and usually people who do clerkships become litigators, as that’s what they’re interested in. I would have liked to have done that myself, but when I came to New York it was the corporate opportunities that were there that I followed, but I never regretted it. Quite the opposite — I find it gives a wonderful base of understanding that was enriching personally and professionally. It was really a great experience, and anyone who can do a clerkship should do it, I think.”


Learning how courts work and connecting that with the things you’ve learned in a theoretical way gives lawyers an “intuitive understanding of the reality of things that I think can be lost on lawyers who haven’t lived through that,” says Verrier.

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