Clerk Status #1: Guy Walks Into a Courtroom…

As my clerkship begins to wind down, I’m putting together a series of posts about what I’ve learned, as a way of helping young lawyers navigate court. Future posts will handle specific topics, including demeanor, motion practice, and dress (and will not be this long). In my first Clerk Status, though, I’m going to give some basic advice for anybody who’s going to a court call for the first time.

First, a caveat: I know my courtroom. There are a lot of different types of courts, and a lot of different places where court is held. Each one of them has its own nuances. I have tried to make the information here as universal as possible, and where my knowledge is limited to my experience, I’ll try to make that clear. Right off the bat, I will tell you that traffic court, criminal court and case-specific courts1 can be very different places than what I’m describing here.

So You’re Going to Court

Congratulations! Yes, you, peon. You, new graduate2 settling into life as a lawyer. You hungry, passionate young lawyer ready for action, ready for the thrill of adversarial contests in the vaunted halls of justice. You, the low-man-on-the-totem-pole. Your days and nights of researching, memo-ing, summarizing dep transcripts, have all paid off. You have just been handed a file folder from a more senior associate, who received said folder yesterday from a partner, who received it from his assistant.

You have been chosen to appear on behalf of a client. In court. Look out.

I’m glad you’re still excited – this will wear off around the 11th or 12th time you have to do this, probably. Or the first time you have to go to Macon County for a 9:00 a.m. status on discovery.

I can imagine you are a little anxious about the experience, and you should be. As a newly-minted attorney, going to court on a status call is not unlike being on stage as an understudy. You are expected to perform at equal level with experts, and afterward you’ll have to report to the guy who does this all the time. So here’s a couple of things to remember on your big day.

1. Get There Early (and Check In)

This is common advice. Most attorneys recommend you arrive early so you can sit back and see other lawyers in action, like it’s an educational exercise. Being early is good advice, but this explanation makes it sound like it’s for your edification, and therefore flexible. It’s not. And it’s not.

Plan to get to court twenty minutes early. If you’re lucky, you’ll walk in 5 minutes before the call. It’s Murphy’s Law: You will have to find parking. You will have to find your courtroom. You will have to find your case on the calendar.You will have to find another courtroom because whoever printed up your instructions or sent out the notice got the courtroom wrong. Case in point: in the Daley Center, between 8:45 and 10:00 (when all the calls are going on), it can take twenty minutes just to get an elevator.

In busy courtrooms, status calls are cattle calls. When you walk in on a busy call, the room is filled with lawyers. They are talking, laughing, roaming around looking for people, lining up at a counter. It’s a scene. It’s also a time-suck. Point being, assume everything will take longer than you expect, including finding a seat.

Also, while it hardly ever happens, you have to go to court assuming two things:

1. the Judge will enter the room at the exact time the call is supposed to start; and
2. your case will be the first one called.

If you are “on time”, and your case is first, you will have no time to check in, set your bag down, get your bearings, etc. If your case isn’t going to be called for twenty minutes, it’s still tough to do these things after the judge is on the bench. It’s like walking in late to church. You can’t make noise and everyone turns around when the door opens.

Also, in some courtrooms you have to check-in with the court clerk before the call. Getting there early gives you a chance to see if the other attorneys are doing so, without having to walk up to the clerk yourself and look like you’re lost. Even if you don’t have to check in, there’s usually a list of the cases on the call, and you’ll want to make sure yours is on it, so you know you’re in the right place.

One last reason to be early: a lot of lawyers will want to discuss the case before the judge comes out, and will be looking for you before the call. If something can be dealt with by agreement3 it’s best to take care of it before the call starts. Which brings me to my next point…

2. Be Prepared

It’s probably the most-repeated, least-followed piece of advice about a court call. Don’t walk into a courtroom with a pending motion or the last court order and no idea what the case is about.

If you’re like I was, you’ve heard this advice over and over, and even taken it to heart, but when it comes down to the day-to-day work of being a lawyer, and someone walks into your office at 5:15 with a folder for the next morning’s cases, it’s hard to justify spending unbillable time reviewing files for a 30-second motion call.

Make the time.

Aside from the cautionary-tale consequences of being unprepared,4 let me be the first to add an element to this oft-ignored advice: no matter how mundane you think appearing in court is, it is the height of your professional duty to represent your client before a judge. You owe some level of basic preparation to your client, to opposing counsel, and (maybe most of all) to the judge.

At some point before the call, your judge will have gone through every motion and every file that is on that call. They are prepared for you to apprise them of the case, and have recommendations for next steps. They are prepared to set briefing schedules and the like. They are prepared.

My judge can have anywhere from 3 to 30 cases on a call, and I’ve never seen him step onto the bench unprepared for a single case. You have one case on the call. Take 15 30 minutes and figure out what it’s about.

3. Wear a Suit

I’ll be doing a whole post on this, so I’m not going to belabor the details here. I will say this: For court purposes, no one cares if you look like Don Draper, but your reputation (not to mention your client’s and your bosses’) is going to be carried by the way you present yourself to the court and opposing counsel. That’s a big burden; it helps to have some shoulder pads.

4. Speak to the Judge (and Only to the Judge)

So you prepared the night before, you showed up on time, your case has been called, and there you are – at the bar. What do you do? Do not – I repeat do not – look wide-eyed at your opposing counsel, as if to ask “How did I get here? Who are all you people?”

This happens too often, and is totally unnecessary. You are there for a status of some kind. Either someone filed a motion, or the case is in the pretrial stages and the judge wants an update. Someone’s going to have to talk to the judge. But who?

If you’re there for a motion call, it’s easy: whomever filed the motion does the talking, followed by the opposing counsel. If you’re there for a general status, that’s easy, too – you do the talking. Why? If you talk, you guide the story. Whether you’re late on filing discovery, or neither side has gotten on top of scheduling depositions, if you talk, you get to present the picture you want the judge to see. If you let the other side talk, they get to paint the picture. And, you know, they’re called “opposing counsel” for a reason…

Like any proactive effort, being the first to talk opens you up to be the point man for incurring judicial wrath. So be it. Welcome to the practice of law. Trust me, being the talker is beneficial because you might get yelled at, not in spite of it. Experience comes in many forms.

One side note on this issue: When you are at the bar, you and your opposing counsel are both officers of the court. You should not talk to each other at the judge’s exclusion. Talk only to the judge. This rule keeps some very contentious issues civilized inside the courtroom, and when it breaks down, it can be very ugly for all involved.

5. Write the Order

In state court here in Illinois, attorneys generally hand-write an order summarizing the results of the call, and then the judge signs it. You want to write the order. Mostly for all the same reasons you want to be the one to talk to the judge, but there’s one other reason here:

Experienced attorneys will notice.

Writing an order is not something a lot of young lawyers think of as important. It takes time, and it involves ancient skills like long-hand writing5. But an order must be approved by all sides, and so it carries something of a special place in courtroom practice, because it’s something that isn’t anyone’s responsibility, but has to be done. By writing the order, you’re indicating that – even as a young attorney – you understand some of the nuances of the practice. That can be a powerful thing.

6. Get Back to Work.

So, there you go. A little advice to get you started. Get back to your office and brief your superior on a job well done. And remember, it may not feel like much, but the experience you gain making court call appearances is invaluable, trust me.

If anything in this article differs where you practice, or you disagree with something, feel free to put it in the comments.

1. e.g., foreclosure, probate & juvenile courts [↩]
2. or, alternatively, fourth-year biglaw asscoiate [↩]
3. read: without bothering the judge [↩]
4. Judge: Any reason I shouldn’t rule on this motion immediately? You:  Well, Judge, I’m just covering this for someone… Judge: Yeah, motion denied. Tell your boss to come to court next time. [↩]
5. and sometimes carbon paper [↩]