THIS ONE’S FOR YOU!

What follows is dedicated to all the bar members, who have the knowledge, but have not shared it, and those bar members, by spreading disinformation, have tried to hinder those wanting to obtain it.

Larry Bolin

Recently, as writings, about the use of law clerks and other non judicial staff in the Courts, have been circulated around the internet in ever increasing numbers, there have been a few responses posted to a couple of bulletin boards, by lawyers, questioning the accuracy of these writings. For all the “doubting Thomases” and other distributors of misinformation, quoting of one of our American breweries, “this one’s for you.”

First, a bit of background that will lay the groundwork of this present discussion. It has been this writer’s contention that staff attorneys, law clerks and externs (non degreed law students, working behind the scenes in the judiciary, doing the work of law clerks, receiving only college credits) draft and write what eventually becomes an opinion or ruling of a court. The actions by non judicial staff can determine the direction of a court case. These actions by non judicial personnel usurp the duties of a judge. One Federal judge, Alvin Rubin from the Eastern District of Louisiana, used the term para judges to describe these members of non judicial staff. Rubin, Views From the Lower Court, 23 UCLA L. Rev. 448, 456 (1976).

Two articles that this writer discovered puts the proverbial pen into these individuals’ hands and state unequivocally that these para judges literally perform the duties of a judge. The law clerks, staff attorneys and externs have been and continue to write bench memoranda, which the judges issue as their opinions. And these admissions are found in scholarly legal journals and how to manuals by the people who should know - judges, lawyers, and non-judicial staff.

A few passages from these articles should send those doubters and adversaries fleeing for higher ground. One of the articles, by Arthur M. Boley, entitled Pretrial Motions in a U. S. District Court: The Role of the Law Clerk, is found in the publication, Judicature, Volume 74, Number 1, June-July, 1990 edition. This publication has a limited circulation and will not be found on the average person’s coffee table or discovered in your neighborhood doctor’s lounge. After a review of Pretrial Motions found in this law journal, one will grasp why such material is not readily available.

Pretrial Motions was the report of a study conducted in 1986 and 1987 as part of a Stanford Law School off-campus program. The author, Author M. Boley, who conducted the study, was a fulltime extern for a U.S. district judge in the Eastern District of Michigan. Boley’s revelations substantiate this writer’s previous contentions that non-judicial personnel are usurping the duties of judges. The article also reveals that the inner workings of the judicial chambers, which according to a Federal Judicial Center publication, should remain guarded and secure from the prying eyes of the great unwashed or peasant class. A Guide to the Preservation of Federal Judges’ Papers, at page 3. (1994).

A few brief remarks by Mr. Boley, a licensed attorney, at the time of the publication of his article, Pretrial Motions, the subject matter of this discussion will come into its proper focus:

As a law student I served as a full-time extern . . . [and] was given many of the responsibilities normally carried out by the judge’s law clerk, and was able to observe important aspects of the judicial system at close range.

Pretrial Motions, 74 Judicature No. 1, p. 44 (1990).

Later in the same article, Mr. Boley states, “As an extern I assisted with about a dozen pretrial motions, each one under the supervision of one of the judge’s two clerks.” Id., p. 46 (emphasis added). What is this??? Notice, there is no mention of a judge supervising this extern’s work. The law clerks are the ones directing the actions of the extern! Later, Mr. Boley, still an extern, declares, “The clerk would give me the briefs which had been submitted by the parties and any material relevant to the motion, such as deposition transcripts.” Ibid.

If you have been a litigant in the federal courts, it must console you to know, especially if you lost the case, that your filings in a legal contest were used as an on-the-job training tool for future lawyers. In this particular instance, if your case by happenstance made it into this U.S. District Court in Michigan during the time of this study, your legal problems were treated like laboratory mice trying to circumvent a maze, i.e. a legal labyrinth, which the parties try to escape without losing their shirts or in a worse case scenario their liberty.

Mr. Boley, commenting on his working relationship with law clerks, declared, “We would discuss the motion briefly and she would tell me when oral argument was scheduled. I would then prepare a pre-argument memorandum or ‘bench memo’ for the judge, describing the procedural background of the motion, summarizing and evaluating the arguments advanced by the parties, and warning of any issues he should be particularly alert for at argument. I was told to read and ‘Shepardize’ as many of the important cases cited by the parties as I had time for.” Id., p. 46.

Imagine an extern and law clerk discussing how a particular filing in a case would be decided. Excuse me!!! Am I missing something here??? Where is the judge? We are now two steps removed from oversight by the ones who have lifetime tenure–those in the black dresses–the judges. What a scam! The law clerk, a college student, who sometimes has just graduated, and an extern, who has not graduated, are dissecting legal cases, like a biology student would cut open a pickled frog.

What is the most startling point concerning this whole perverted operation is there is no mention of supervision by the ones, who supposedly have the experience. And these operations will affect the litigants’ lives forever. That whirring noise in the background is either my ears ringing or the founders of what remains of this Republic, acting like augurs, propelling themselves deeper into the ground.

“Even if a decision by the judge called for an exercise of discretion, I was asked to recommend that the judge either grant or deny the motion, and to explain the recommendation.” Ibid. Discretion is described as a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of the law. Black’s Law Dictionary, 6th Ed., p. 467 (1990). The exercise of such discretion is reviewable only for the abuse thereof. Manekas v. Allied Discount Co., 100 N.Y.S.2d 366, 369. According to Mr. Boley, the writings of a judge are not reviewed; it is the inexperienced law clerks and externs’ work, which is passed upon by the various higher Courts (who, by the way employ, the use of staff attorneys, law clerks and externs in a similar fashion as discussed herein). Sadly, these folks are not held responsible for their actions because most Americans do not even know externs or law clerks exist or what they are doing behind the scenes.

Continuing with Mr. Boley’s study, he remarks, “I was encouraged to reproduce verbatim whole paragraphs and sections from the parties’ brief if it seemed helpful.” Ibid. Again, the decision is placed into the hands of one who has does not have (at least in theory) the authority or experience to “judge” what is helpful.

One member of the judiciary expressed his feelings about shenanigans as these thusly, “It never fails to amaze me how little guidance we give to 23-year-old law clerks who have never tried a case, sat as a judge, or practiced law. They tend to worry too much about problems, over-research, explain the obvious, and write far too long.” (Internal citations omitted.) Associate Justice Charles G. Douglas, III, New Hampshire Supreme Court, How to Write a Concise Opinion, Manual for Louisiana Judicial Clerks, p. 64, 70, Louisiana Judicial College (1985). Wonder what “hiz honor” would say about law clerks supervising law students, not yet graduated and with no bar card, writing “bench memos” and recommending decisions for judges?????

Judge Douglas goes on to comment, “[The judges] need to tightly control their product. There is no reason why an experienced judge can’t say, ‘This is a simple case that should take about three days to write and should be about four or five pages tops.’” Id., p. 71. Conversely, there is no reason why an experienced judge cannot write the opinion, instead of handing off this duty to a 23-year old. Justice Douglas so accurately summed up “the law clerk problem” (the judge’s words–not mine), “[The judges] have the experience–[the clerks] don’t.” Ibid. The Judges are supposedly independent, paid handsomely, and tenured to issue rulings on the facts in a case and not be swayed by outside influences. At least that is what the parties expected when they entered into the court, paying big bucks to their lawyers or acting pro se.

By his own admission, Arthur M Boley, as an extern, was not even given directions by a Judge. What next? It is time we opened the vaults to the judges’ chambers. Based on the writings chronicling the activities, which occur in these chambers, the veil that has shrouded these rooms have been there entirely too long.

As for the few members of the bar, who were quick to make me out a loony, an explanation is in order. As for the others who are still doubtful, I pray neither you nor your family members ever experience the meat grinder known as the legal system. Based on my own experiences, the courts do not in any fashion resemble what is portrayed on “Matlock,” “Perry Mason” or other numerous “Court TV” shows now bombarding the airwaves.

Larry Bolin © FTG Publishing.

Permission to spread far and wide, just give credit to the writer.