Federal Pro Se Clerk: Helping Judges Dispose of Cases

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Kimber Russell interviews a federal pro se law clerk about her time in chambers and the challenges she faced after returning to work after taking time off to have a child.

Kimber Russell:

Today we are joined by Vail Gardner, a 1997 graduate of the University of Florida Levin College of Law. Vail did commercial litigation in Miami for a number of years before taking some time off to have a child, and when she returned, she became a pro se clerk for a federal district court.

So Vail, your federal clerkship was a little different than a typical clerkship. You were a career clerk, not a term clerk. Can you tell us what the difference is?

Vail Gardner:

Well, term clerks who are often hired straight out of law school are hired for a particular term. They are generally one or two years, and that could be at the discretion of the judge. District court judges are assigned two clerks, magistrate judges have one, but they generally are a one or two year contract which can be extended up to four years.

Career clerks are hired at will, and they don't have a specified time that they work for the judge. It's essentially at the pleasure of the judge.

Kimber Russell:

What is the benefit of being a career clerk versus being a term clerk to the judiciary, and also to the clerk?

Vail Gardner:

Career clerks don't have any limitation on the time that they can serve. As long as the judge they're working for wants them to continue working for them and the clerk wants to continue in chambers, then that can last through the rest of the judges or the clerk's career. I will say that there were some rule changes a few years back that limits district court chambers to one career clerk at any given time. So if there's a career clerk there, any new clerk that would be hired would be required to be a term clerk. The benefit of it is it's a great job, it can be very fulfilling, and there's a long-term expectation as opposed to a term where you need to move on. The other positive of being a career clerk is the relationship you develop with your judge.Q They can often be very close professional relationships that you develop over a course of time. And of course the learning opportunities over the course of time, as the judge trusts your work more and more you have the opportunity to work on some really interesting things. But as do term clerks.

Kimber Russell:

And in your case you were a pro se clerk. You're not just working with one judge, you're working with several judges and you're actually employed by the district court. So can you explain a little bit how that works?

Vail Gardner:

Districts are allocated a certain number of pro se clerks. It depends on the number of post-conviction prisoner cases, which are generally pro se, the number of those that are filed in the district, I think, within a certain time period a year. And then based on those numbers, they determine need and they will assign a certain number of pro se clerks to that particular district. But each district has the discretion on how to utilize their assigned clerks. So in our district, they had a person who was working full-time doing those post-conviction prisoner filings. I worked on social security appeals, I didn't do the pro se work. They also had, in our district, a half-time death penalty law clerk that works often on habeas and on death penalty appeals that are in front of the federal district. I was interviewed and offered a job by a magistrate judge, and I worked in his chambers exclusively, but I wasn't technically employed as his clerk. I was employed as a pro se law clerk for the middle district of North Carolina.

One of the interesting things, interesting or a bit scary, was that because the number of pro se clerks were determined by the number of cases filed, that position could go away at any time. So there's no long-term commitment. I will say it's never happened in the middle district. It didn't happen while I was there, and I don't believe it's happened since, but there is that possibility.

Kimber Russell:

You got the opportunity to work with multiple judges. Can you tell us how that experience was?

Vail Gardner:

I enjoyed it very much. I worked primarily in my judge's chambers. That was my physical location, but then I worked for two other magistrate judges who were in different courthouses, and I would do that by computer and by phone, and we would send drafts back and forth. The fun part about it was is that each one was very different in style and in the things that they'd like to see in their draft opinions. It was interesting and fun to do it a bit differently for each one of them. We also had the opportunity to develop a relationship with three different judges, as opposed to just meeting them in the hallway.

Kimber Russell:

So let's talk a little bit about the day-to-day responsibilities in this position. What sort of work product would you be responsible for producing, and what would a typical day look like?

Vail Gardner:

Well, I was really fortunate that I had a judge that I worked for that would have a coffee clutch every morning, which I liked very much. It doesn't happen with all the judges, but it was a great way to check in with his other clerk, the judge, and the judicial assistant. Part of being in chambers is that opportunity to create a relationship, so I actually really enjoyed that. But as far as work product goes, I am drafting draft opinions for the judge, I worked on social security appeals. So the way that works is after there's a final determination by the Social Security Administration denying disability, I would receive the administrative file, I would review it, it was motions for judgment on the pleadings. Of course, being an appeal, there was no new evidence. And I would, based on the file and the submissions, draft an opinion affirming or reversing. And then that would go to the judge who would of course make edits and have his own additions or comments, and then the final draft would be completed. He would sign it and it was off.

Kimber Russell:

You actually had a lot of input in what was going out, so you found that you were really kind of the point person creating these documents. It wasn't just you were rubber-stamping things that the judges were providing for you?

Vail Gardner:

Absolutely not. No. I was doing substantive work every day. Particularly once you show the judge what you can do, they trust you to analyze files and the law and to produce a draft opinion that he would be comfortable with. He, of course, always reviewed it and we would have discussions about it and I could go into his chambers, into his office, and ask questions. He was very receptive to that. But yeah, I was the point person and drafted substantive opinions every day.

Kimber Russell:

In the sense that what a clerk does is to kind of act as that gatekeeper and to ease the way for the judges, would you say that that's really what the job of all clerks is?

Vail Gardner:

Pro se clerks are different than elbow clerks. In the district, that's what they call the clerks who are employed by particular judges. They are addressing all different kinds of substantive issues on cases that the judge gives to them. Judge will say, "We have a motion for summary judgment. I'd like you to take a look at this. Let me know what you think about these particular issues." And then the clerk might draft part or whole of the opinions for the judge's comments and review. They're not gatekeepers, no. I wouldn't characterize them as gatekeepers at all. Nor was I, in my position as a pro se clerk doing social security cases.

Kimber Russell:

So how would you characterize your key role in that role?

Vail Gardner:

I would dispose of the appeals. There are quite a few of them, they come in quickly, and my job was to be a decision maker, of course, with the judge's input and final say. I certainly didn't have the authority to do that, but I was the one who was reviewing the file, bringing issues to the judge's attention, bringing questions to the judge's attention, and ultimately creating drafts for the judges review.

Kimber Russell:

What would you say were the biggest pros to this position? What did you like the best about this job?

Vail Gardner:

Well, having been a litigator, there was certainly the practical aspect. It is that it is much more consistent in the hours that you work, never really necessary to work nights or weekends. There was some flexibility with the hours that you were there, and again, that really depends on the judge that you're working for. They are the masters of their own chambers, their own universe. They have a lot of discretion to make their own rules about how they want to run their chambers, but very consistent in the time that you're working. I very much enjoyed the people in chambers. I liked my judge very much. I liked my co clerk very much, we're still very good friends, and the judicial assistant.

The flip side of that is that if it's not a good mix, it can be very uncomfortable, because it is such a tight-knit group that if it doesn't mesh it can be uncomfortable. I did not experience that, but there are some clerks that do. It is well paid, and the work was interesting. I liked research and writing so if that's something that a lawyer enjoys doing, likes the research and writing aspect, then that's certainly a good place to be.

Kimber Russell:

And you did sort of allude to some of the downsides. What other sort of cons are there to this position?

Vail Gardner:

Well, as a pro se law clerk, I was doing the same work all of the time. Once you've learned what there is to learn, it can become a bit rote. The term clerks or career clerks, what we call the elbow clerks, were often getting a much larger variety of the type of issues that they were looking at, because whatever case was in front of the judge was what they were working on. And it could be a million different kinds of issues. So for pro se clerks particularly, it can get rote and you have to keep yourself engaged. It can also be isolated, and sometimes isolating. You are a small group. You are in the chambers. If you have a judge who is not particularly interested in having people in and out of their chambers, then you could be at your desk all day and not really see anybody. So, sometimes there's not an opportunity to socialize or to make those connections with people who are not in this small little group in the chambers.

Kimber Russell:

So Vail, you were a clerk for six years, and then you decided to take some time off. What motivated that decision?

Vail Gardner:

There were personal circumstances that made it a good time to do that. I became a single mother. I commuted about 50 miles each way every day, so close to two and a half hours of my life every day was commuting, and that worked just fine when there were two parents in the household, but it wasn't working with just me. I came to the point of where I felt like I wasn't doing either job, either as a parent or as a clerk, as well as I needed to be. So I had to make the choice between kind of trying to make an unworkable situation work, or to move on. In addition to that, and that was really the primary reason, was for the reason that I talked about earlier. I'd been doing it for six years. I had learned all there was to learn about this particular area of law. I had decided that substantively I'd done what I could with it. And then also, all three of my judges had retired in a short period of time. So it was a good transitional period.

One of the differences between pro se law clerks and elbow clerks is when judges retire, those jobs in those chambers go away. Anybody in chambers who works for the judge needs to get rehired by somebody else, the judicial assistant, the clerks. Pro se clerks who work for the district, their positions remain through the transition from judge to judge.

Kimber Russell:

So Vail, after this transition it appears that you're ready to jump back into practice. How is that going?

Vail Gardner:

It's going okay. I have to tell you that at one point, way back when after I left litigation, I swore I would never practice law again. But as time has gone on, I rethought that. I don't want to litigate, but I am happy to go back into a different kind of practice. That's a big transition in of itself, to go from litigation to something else at age 46 is a big step. It's easier to go back to something you've already done before. But it's going well. It's a process. The job market is tight, and also the way of getting jobs has changed so much since in the 90's and 2000's, where I was out on the job market. It's a huge learning curve for me just in the way that it's done, and that everything's online. It's harder to make those personal connections with potential employers.

Kimber Russell:

The newer attorneys who are coming out, they're very much aware of all of the technological tools at play. What other challenges are you seeing when you're transitioning back into the practice of law?

Vail Gardner:

One of my particular challenges is the fact that I want to do something different than I'd done before. As a litigator, it's hard to convince potential employers. You are able to transition from a litigation practice into something other than that. And I honestly hope to avoid litigation entirely. It's not something I'm interested in returning to.

Kimber Russell:

What do employers think about your experience as a clerk? Or, does it resonate with potential employers?

Vail Gardner:

That's hard to say. With my kind of clerkship, because I was doing one particular kind of law, social security law, it's not resonating as much as perhaps a more typical clerkship. I have found that it's not the same for me. I was the pro se clerk doing a very particular kind of law. And it also has to do with the fact that my career path has not been a straight arrow. It's something that's not as familiar to them as a baby lawyer coming out of a term clerkship where they know what that is, they know it's a good thing, they know they want a clerk. When they see it on my resume, I don't know if it's as familiar to them.

Kimber Russell:

So Vail, looking back on this non-traditional path that you've taken, how do you feel about the choices that you've made and, honestly, the struggles that you're facing making this transition back into the practice of law?

Vail Gardner:

I absolutely am confident in my choice to leave litigation. It was not a good fit for me, I didn't enjoy it, it was not something I wanted to do for my entire career, and I left it before I had kids very consciously. I don't regret leaving my clerkship to take care of my kids. It's a hard decision to make, but I'll come back to what I said earlier about my feeling that I just wasn't doing a good job in my career, and I wasn't doing the job I wanted to be doing giving the time I needed to be giving my kids at that time. It was a big transitional time for them. I didn't think it would be as hard as it has been getting back into the practice.

As the process has gone on, I've had to be more creative, I've had to be more focused. The tendency is to start thinking, "I'll just do anything." And that's not a good way to go through a job search, is being scattershot. So I've had to keep myself focused and keep my eye on the long-term goal. But, and I'll say once again, I don't regret it. I think I made the decisions based on what I knew then, and in hindsight, I'm happy with them.

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