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B. Trial Court Documents
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Law school education often focuses on appellate cases. Unless you have taken a
course in trial practice or certain clinics, your first day at a trial-level clerkship may be
your first substantial exposure to trial documents. Below is a non-exhaustive list of
documents that clerks and interns often work on in chambers.
• Orders announce the decision of the court on motions. The term “order” is used
broadly and can refer to everything from a two-dozen-page order resolving a
motion for summary judgment (sometimes also called an “order and
memorandum of law”), to a half-page “minute order” (a written order that
memorializes a ruling made by the judge orally), to a “letter order” (an informal
order sent to the parties in the form of a letter, often used for procedural details
such as setting a schedule).
• In cases where the judge is serving as the finder of fact, rather than a jury (a
“bench trial”), the judge will issue findings of fact and conclusions of law to
announce his or her resolution of the matter. As the name suggests, this document
will contain facts the court has been persuaded of (often with citations to the
relevant portions of the record) as well as legal conclusions regarding those facts.
• A judge will give jury instructions
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to a jury usually before and after a trial. The
instructions are often a combination of proposed instructions from the two sides,
form instructions a judge and his or her chambers may use in every case, and
“pattern instructions” which are “best practice” type documents issued by
professional associations, academics, and similar entities. Because the same or
similar issues will appear before a judge repeatedly, it is important to see what
types of instructions your judge has given in similar cases and start from those.
C. Appellate Opinions
Along with bench memos, drafting appellate opinions makes up the bulk of many
appellate clerks’ experience in chambers. In terms of process, a clerk’s role will vary
between chambers. In some, clerks do research and prepare an outline, while the judge
actually drafts. In others, clerks prepare an entire first draft in consultation with the judge,
who reviews and significantly edits the final product.
In terms of substance, the term “opinion” (like “order,” discussed above) is used
broadly. The Federal Judicial Center discusses the term as a spectrum. At one end are
what it terms “full dress” opinions (which include a discussion of the facts, legal
principles, and governing authorities), at the other end are “summary orders” which just
give the disposition (and perhaps the briefest discussion of the issues) and somewhere in
the middle are “memorandum opinions,” which address issues that are complex enough
to warrant some explanation (these may appear as “per curiam” opinions).
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Full dress
opinions, at least, will typically include five elements: (1) a brief introduction; (2) the
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This discussion of trial court documents is based largely on the work of Professor Dunnewold and her colleagues. Id. at 147-214.
8
In addition to the work by Professor Dunnewold and her colleagues, detailed guidance on drafting jury instructions can be found in
J
ENNIFER L. SHEPPARD, IN CHAMBERS: A GUIDE FOR JUDICIAL CLERKS AND EXTERNS 157-193 (2012).
9
See FJC MANUAL, supra note 3, at 3.