In the first part of this series, we discussed the cost to the law student of performing a clerkship. We determined a ballpack estimate that the clerkship will cost the law student about $95K. Now let's take a look at the typical reasons to complete a clerkship that law schools tell students - and whether they are warranted in practice.
1) Will a clerkship help you become a better lawyer?
Here, the comparison should not be "as compared to what you were at graduation", but instead "as compared to what you would be after having completed your first year at a law firm." That is, doing any legal work, including a clerkship, will make you a better lawyer. The real question is whether the clerkship would teach you more about the practice of law than if you worked at a law firm for a year.
In most cases, the answer is no - you would typically get much more experience of the practice of law working for a law firm for that year. First, you are going to be working many more hours at a law firm than at a clerkship. Second, you are going to be actually practicing law - unlike a clerkship where you will not be exposed to the legal business aspects like wooing clients and billing time.
I have worked with many people who have completed clerkships and worked with many first and second year associates. Let's compare a person coming into the firm after a one-year clerkship to a person lateralling into the firm after working at another firm for a year. Here are the typical pros and cons:
The person coming in from a clerkship is going to be slightly better at writing. Their citation will typically be faultless (although it typically would have been faultless anyway). This should be expected because they have had more practice with these.
On the other hand, the people coming in from clerkships often have trouble taking charge and thinking independently - they are used to being told how to write the opinion.
They also sometimes have trouble switching from a "judicial" frame of mind to an "advocacy" frame of mind. For example, as an advocate, it is perfectly acceptable to advance new theories of law to zealously represent your client. However, judges are typically much more bound by stare decisis and the attitude rubs off on the clerks.
Additionally, the people coming in from clerkships face a rough awakening with regard to client service. In a clerkship, the judge can set their schedule and manage their docket. Not so in practice - you are at the service of your client, and if you don't service the client the way that they want to be serviced, then you won't have a client and eventually won't have a job. In this regard, people that have completed clerkships often come in with the wrong attitude.
Also, the sheer number of hours that are worked in a law firm is often a real surprise to people that have completed a clerkship - as well as the fact that there are many hours that you will spend at work dealing with issues that are not billable (and hence are not counted as "work").
Bottom line, if you cloned someone at graduation and one clone did a clerkship and the other worked in a quality law firm for a year - and then both applied to another firm for the same job, I would pick the clone with the year of experience in a law firm, hands down. At the point in time that I am choosing, the clone with the year's experience in a law firm is a "better lawyer", period.
This situation becomes even more pronouced if the clerkship is a 2 year or longer clerkship. The person completing the clerkship is going to be way behind in learning the actual practice of law.
There are two exceptions to this:
First, if you are completing a state court clerkship in a smaller town in which you will be practicing once your complete the clerkship, then a clerkship can be valuable. You would use the clerkship to get to know all of the 3-7 judges in town so that you would have a connection when you later appeared before them. In this case, you will be a more effective lawyer having completed the clerkship than working at the law firm because you will have spent your $95K establishing rapport with the judges that you will be practicing in front of for years. That could be an investment that will pay dividends in future years - if you indeed stay with the practice of law, which many people do not.
However, most cities are just too big for this to be effective. For example, if you practice in a city with 50 judges, you may only get to know about 10 well, so your clerkship could really only help you about 20% of the time (assuming random case distribution).
Second - and I will address this further in the next post - a Supreme Court clerkship can also give you advantages.
In the next post we will take up the discussion of the remaining typical reasons given to take a clerkship.