Judge Cannon’s Clerkship Problem

Is this just garden-variety assholery?

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In this double-guest special, David Lat shares his original reporting on the exodus of Judge Aileen Cannon’s clerks and its implications for Trump’s classified documents case. Judge David Proctor of the Northern District of Alabama then joins to explain the history and function of the federal judiciary and its committees, including the Judicial Conference.

The Agenda:
—Do younger clerks just not understand hard work?
—Judge Cannon’s declining reputation
—Delays in Trump’s documents case
—How the federal judiciary came to be
—Rule-making process for the Federal Rules of Civil Procedure
—Multi-district litigation and its criticisms

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Comments (163)
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  1. Michaelldavis

    Could one of you explain the whole 100 hour work week thing? Are high-end lawyers really expected to work 7 am to 9 pm seven days a week No breaks, no weekends off. If some airline executive ordered the pilots to fly that much, he would GO TO JAIL (the rule is 32 hours per week). Maybe airline pilots are delicate snowflakes and young lawyers are superheros. Maybe lawyering doesn't require the same brain power as piloting. Maybe pilots have a better union. Please help us understand.

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    1. Zlakel

      Yes, working those kind of hours or longer is the expectation at large law firms. It results in worse quality work product, burns people out, and causes severe attrition. Personally, I suspect firms would be more profitable over the long run with more humane expectations (understanding emergencies may require exceeding humane limits), but I'm not a partner at a law firm. Law firms aren't alone in such expectations either. Investment banks' expectations for junior bankers' hours are as long if not longer. Both large law firms and ibanks also expect their people to be on call 24/7/365, including when on vacation.

      Is the 32 hr/week flight time limit imposed by the FAA? Assuming that's the case, I'd guess it's because flying is a safety-critical function, while lawyering isn't.

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      1. Ken Motamed

        Yup.

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  2. British Americanophile

    A question: when a judge is performing as poorly as judge Cannon, is there an informal system within the judiciary where someone senior gets to have a word in her ear? Does a “junior” judge have any sort of management chain who can guide/mentor them?

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    Bill Dyer (aka Beldar)

    In due course I hope y'all will discuss this: "Judge rules John Eastman should be disbarred over efforts to overturn 2020 election," link: https://thehill.com/regulation/court-battles/4560409-judge-rules-john-eastman-should-be-disbarred-over-efforts-to-overturn-2020-election/

    I'm working my way through the 128-page opinion. Link: https://www.documentcloud.org/documents/24521380-sbc-23-o-30029-decision-trial

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    Bill Dyer (aka Beldar)

    Article I, section 3 on impeachment provides in part that "When the President of the United States is tried [in the Senate], the Chief Justice shall preside." But it doesn't actually specify the full title of that person. Nevertheless, with but a brief exception, the various versions of the Judiciary Act since 1789 have referenced the "Chief Justice of the United States" — not "the Chief Justice of the Supreme Court."

    [A personal anecdote regarding this title and the late, revered Prof. Charles Alan Wright of Texas Law School: https://beldar.blogs.com/beldarblog/2004/02/law_review.html]

    Chief Justice Roberts' title, then, reflects his responsibility not only as the chief amongst the Supreme Court's Justices, but as head of the federal judiciary — now through the instrument of the Judicial Conference.

    The role of the Judicial Conference is not well understood by the public, so I commend y'all for having Judge Proctor with his excellent explainer.

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    Bill Dyer (aka Beldar)

    Young judges often seek advice from more senior judges. Sometimes the more senior judges even offer it unasked, although that's rare. The chief judge of a district has particularly standing to have this conversation, whoever initiates it.

    I worked for a new judge (during her second year on the bench) whose practice background was as a securities/deal lawyer. She not only hadn't tried a case, she hadn't seen a case tried. She had the wisdom to aggressively, regularly, continuously seek out mentors on that court. I commend that to all new judges, especially those whose pre-judicial law practices didn't include a lot of trial work.

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    Bill Dyer (aka Beldar)

    I just ordered your book, Mr. Lat: https://www.amazon.com/Supreme-Ambitions-Novel-David-Lat-ebook/dp/B0CKKTGQ24

    If you'll come back again as a guest on AO, I'll review it in comments here then. Always great to hear your take.

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    Bill Dyer (aka Beldar)

    "Garden-variety assholery" is definitely a thing. I still giggled when I heard it from David French. Have you been hanging around with your fellow trial lawyers again, Mr. French? I also got a healthy belly laugh when Mr. French's description of the "whiff" around the Fulton County District Attorney's professionalism was immediately, simultaneously, and emphatically corrected by Ms. Isgur & Mr. Lat to "Odor!" D'accord, my colleagues at the bar, d'accord.

    If you need advice whether to quit your clerkship, you probably didn't deserve it in the first place. Duh. You WISH you find a next job in which you like your boss. The reason they call it work is that they have to pay you to do it. You're in the unique role — as a mere beginner in our profession! — of being an instrument through which is channeled a magnificent professional responsibility, embodied in your judge's office and robes (not the person inside them, to use a phrase that will make Mr. Lat smile).

    Suck it up, untwist your knickers, do your year, and be a grownup lawyer. That's part and parcel, a BIG part in fact, of being a professional. Unless you end up on a bench yourself someday, this job is likely going to be your best, and maybe only, chance to render diligent service not just on behalf of a client, but on behalf of the judiciary and the law. Fritter it not.

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    Bill Dyer (aka Beldar)

    Another great show! For those who missed Ms. Isgur on Bill Maher, here's a repeat of a comment I left on the webpage for the prior episode of AO:

    ======
    Link: https://www.youtube.com/watch?v=yfx7PM1VlCg

    My center-square on my bingo card got marked at 1:55 — "Antitrust laws are totally made-up!" with dramatic gestures. This is the planets humming in their accustomed orbits, and I am reassured that entropy hasn't won yet.

    Ms. Isgur set Maher (or anyone else there) up with one of the best straight lines (3:50) I can imagine: "Being Trump's lawyers is the worst job in the country!" How could no one answer: "And you're in a position to know, as a senior Trump DoJ official when Jeff Sessions was AG!"

    Also priceless, Ms. Isgur's reaction shot (4:38) when Maher says, "And Merrick Garland f*cked everything up." That was surely her "please don't pick on me!" face when unprepared in class. (Or maybe I'm just projecting, because I think that's such a silly argument.) EDIT: Not unprepared, but perhaps realizing that she'd be unable to condense the "Man from All Seasons" extended quote in the time available on Maher's show.
    =====

    Regarding clerkships: During the first week of my and my co-clerks' Fifth Circuit clerkships in 1980-1981, there were two hold-over clerks who took us in hand. Our judge was out of town that week in an oral argument on the far side of the old Fifth, so it was entirely up to these two holdovers to teach us the ropes, get us started on the work the judge had left for us, and basically hold our hands as we got our feet wet.

    That time spent with the holdovers was INVALUABLE. In terms of making me a more efficient and capable clerk, the time spent with them surely saved me and my co-clerks twice or three times as many hours of floundering around.

    However: As I've since learned in practice on behalf of business clients, the Department of Labor, in its enforcement of the federal Fair Labor Standards Act, tends to frown on employers demanding "free work." (And by "frown," I mean: "Sues the employer into oblivion, even if it destroys the jobs in question.") How does this policy get around that law?

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  9. Ejscharf

    I was listening to David Lau describe the difference between trial and appellate lawyers and I had to stop what I was doing to say this: He nailed it. I was lucky enough to have done a fair amount of both types of work in my career. His comments reminded me of a conversation I had years ago with a colleague who was purely an appellate lawyer. She was telling me about a dumb decision that one of our colleagues made during a trial. I asked her how long it took her to realize how stupid the decision was; her reply "just ten minutes." I congratulated her for being so much smarter than our trial colleague, who had about 5 seconds to make his decision. And David is also right about the attitudes of appellate lawyers who are newly-anointed trial judges. I had a case before one such judge. During a particularly rancorous deposition, we called the judge in an effort to have the judge rule on some of our disputes. We were amazed when he took our call; a more-experienced judge would not have. And we were even more amazed about how little he knew about the Fed.R.Civ.P. His ruling was so off-the-wall that we thanked him for his time, and proceeded to resolve the problems ourselves.

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  10. I. Craig Nichols

    I'm not a lawyer, so until now I was only aware of one rule of judicial procedures:
    Carroll, "Alice's Adventures in Wonderland", chap. XII, para 14, rule 42 (1865): "All persons more than a mile high to leave the court.”

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    1. I. Craig Nichols

      But seriously: great episode!

      Lat's article is deeply appreciated, and it's always nice to hear from the author.

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