11.4 The Work of a Clerk – Research, Writing & Reflection
Asvini Kulanayagam and Sai Bala
Introduction
The range of tasks assigned to each student will depend on the court’s resources. This includes the ratio of students to judges and whether the court has an in-house staffed research position. Some courts have moved to electronic filing systems while others continue to keep file folders transported on carts. The administrative staff will be able to provide guidance on the ways of working at each courthouse. Work expectations may also depend on the school’s expectations in terms of weekly time commitment. Students who attend court on a full-time schedule are more likely to be involved in larger research projects.
Across placements, the judicial intern’s duty during placement has at least two core components: a work-related component and a reflective component. The work-related component typically includes research and written works that assist the judges. The reflective component is discussed further, below.
Written Work Products
There are two types of typical assignments: a bench brief and a research memo.
Bench Briefs
A bench brief is a document that summarizes key information about each matter that is scheduled to appear in court. The docket is the sheet that states the parties in the style of cause and the order in which they will be called. Jurisdictions and individual courthouses differ in their processes. At some courthouses, a judge may ask if there are any short matters to speak to first before working through the docket list in order. In the absence of further instructions, it is common sense to brief each matter in the order it appears on the docket. In Ontario, students can familiarize themselves with the layout of a docket and the type of information that it displays by visiting https://www.ontariocourtdates.ca/ and selecting a level of court, location, and type of case.
The docket is viewed by the judge, court clerk, and parties for an overview of the matters to be heard on a given date. A bench brief is a supplemental piece of writing for the judge only. The purpose of the document is to provide context at-a-glance on each case. A judicial intern should consult with the supervising judge to get more instruction of the level of detail to include. Generally speaking, the intern will review the file and include the current positions of the parties. For example, if a party is bringing an application, the student would write what the Applicant is seeking, information such as date of service to the respondent, and whether the application is on consent or contested. If it is contested, include the Respondent’s position based on the materials they filed. If they have not filed materials, indicate that in the brief. It may also be helpful to include logistical information such as who represents each party and how they will be appearing (I.e. video, teleconference, in person) if the jurisdiction does not display this information on the docket itself.
Example: Family Law Chambers Bench Brief
MALLARD V SWAN
Parties
Applicant Ms. Mallard is represented by Mr. Waters.
Respondent Ms. Swan is self-represented.
- Ms. Mallard is seeking retroactive and ongoing support payment for one child (the Ugly Duckling DOB: April 22, 2022). Child has resided with Ms. Mallard since birth
- Ms. Mallard is seeking to impute Ms. Swan’s income at $80k
- Personal service effected on September 6, 2023; Ms. Swan has not filed material in response
- Last chambers on October 25, 2023, an order was made for full financial disclosure
Research Memo
A research memo is a piece of writing that students will be familiar with, typically through the law school’s required legal research and writing course. See chapter 8 for guidance on legal research in placements. As a general rule, research memos in a work context should be treated as practical pieces of writing. The purpose of a memo is to provide a direct, supported answer to the requesting judge’s question. The judicial intern should ask for clear directions on the scope and context of the question to provide the most helpful and relevant information. Writing assignments in the context of a judicial internship will rarely if ever come with a page limit or word count. Students may wish to ask the judge questions such as: how long the memo should be, when it is needed, how much time it might take, and any preferred style and sources. This is also the time to exercise judgment in balancing the depth of an answer with the goal of brevity. As with any piece of writing, it is important to write for the audience. Students may wish to ask themselves: how long has this judge been practicing in this area of the law? How much explanation will they need? Should I write for an expert or for someone knowledgeable in law, but perhaps not this particular area?
If the student is unsure, it is safe to include summary information or a link to the case. Do not assume the judge will know and recall every case. The goal is to provide information that will be helpful in reaching an informed decision. Further, research memos are not pieces of advocacy. A well-researched memo will be balanced and forthcoming in summarizing the state of the law as it is. It is important to write for the jurisdiction and mark which cases are binding or persuasive.
Judicial decisions are made within a greater social context. It is helpful to search a brief history of how the law on an issue has moved over time. The social, political, and legal attitudes around cannabis, medically assisted death, land claims, sex work laws, and mandatory minimum sentences are just a few examples to illustrate how legal decisions can differ vastly in a relatively short period of time. This serves as a reminder to be sensitive to the dates of sources and to watch for live issues where a would-be authority decision is on reserve. Perhaps the legal issue is at a national inflection point and is the topic of debate in parliament. Locality also matters. For example, judges are bound to respect the sentencing principle of parity. See R v Parranto at paragraph 10. Judges’ own colleagues set the jurisdictional norms. When researching how other cases with similar facts in the same province or territory have been decided, check who wrote the judgment.
Reflection
Reflection is a major component of clinical and experiential learning across law school programs. Law students can become accustomed to a very fast pace of work; being placed in a largely observational role can feel strange and unfamiliar. In fact, most new judicial interns will spend quite a lot of time simply observing, particularly in the early weeks of their placement. A judicial intern might question whether they are doing enough or meeting the requirements of the position. We begin this section with a reassurance that students should not feel selfish or unhelpful for dedicating course time to the active work of “professional noticing” and reflective practice (see chapter 4.1). In fact, many school programs, including the court placements facilitated through Queens Law and Windsor Law, include a graded reflection as an evaluative component of the course. Each program will have particular approaches to reflection. However, some common practices can be helpful. One way to help structure this practice of reflection is to keep a diary for every court appearance. Students may begin diary entries with the basic components of a court appearance, especially when learning the rhythm of the court operations. Perhaps students will start to notice patterns in procedural routines around publication bans or accused remand appearances. Observation in this way might help to reinforce the rules of civil and criminal procedure. As students become comfortable with the process of court and of documenting observations, students may wish to expand their commentary and make note of the strength of legal arguments and how they are delivered. Students might have the benefit of watching different judges sit on the bench. If so, notice how each judge chooses to engage with others in the courtroom, and the advocacy of lawyers and (as relevant) self-represented litigants.
Sample Questions for Reflection & Professional Noticing
1) What does the judge do to establish relationships with the accused? For example, does the judge make eye contact and speak directly to the accused? What effect do you think this has? At what moments during the life of a case do they do this?
2) How does the judge give instructions to the jury? How do they frame the role of the jury to make their duty understood?
3) How does the judge engage with family members who might be in the gallery?
4) How much or little does the judge reveal their thinking with counsel? Do the questions help counsel understand where to focus their submissions? Do you find that counsel are effective at answering questions?
5) What is the value of a roadmap when listening to submissions?
6) What common phrases are used by counsel? Why are these phrases mainstays in their professional vocabulary? What do they tell you about the relationship between counsel and the bench? Examples include “if it pleases the court…” and “I am in the court’s hands…”
A Student Reflection – Different Ways of Being an Advocate
“Each person plays a pivotal role in the balance of justice, but it is the witness who often embodies those instances where humanity is at its most vulnerable. At the preliminary inquiry hearing I attended, the witness’s vulnerability was a stark reminder of the real people impacted by legal proceedings, and the importance of cultural and interpersonal competence.
The case before us centered on three co-accused, each facing charges of first-degree murder in the tragic death of a young man, aged somewhere between his late twenties and early thirties. The victim’s life story was marked by hardship; he had a tumultuous, street-involved upbringing before recently securing assisted housing in an apartment complex.
The key witness in this case was the victim’s girlfriend. Her life, much like the victim’s, was scarred by profound substance issues. They had lived on the streets together; a shared struggle that seemed to have deepened their bond. The witness expressed a sense of pride in how they had finally received a housing appointment—a significant milestone for them. When asked about any additional occupants in the unit, she revealed their open-hearted nature. They never turned away those in need, extending help to others as they intimately understood the hardships of street life. This gesture, she noted, was their way of honouring the unwritten code of loyalty that often binds those who form a family on the streets. Tragically, it was in their modest bachelor apartment where the witness’s life changed irreversibly. She witnessed firsthand the traumatic event of her partner being fatally stabbed in front of her. The witness managed only preliminary details about her background and identity before her composure began to unravel. As questions shifted to her relationship with the victim, the emotional weight became too much. She began breaking down, highlighting the immense challenges she faced.
The contrast in advocacy styles among the three counsels became evident immediately. Counsels X and Y adopted a robust, aggressive approach. Right from the outset, they raised objections about the witness’s state, questioning her credibility based on perceived signs of intoxication. They demanded a voir dire to assess her soundness of mind, pointing out her slow speech, slurred words, droopy eyes, and loose gait. They insisted these were reasonable indicators of her being under the influence. Amidst this aggressive scrutiny, Counsel Z’s empathetic approach stood out. He chose to reserve judgment, demonstrating empathy and respect for the witness’s state and the trauma she undoubtedly bore.
The objection raised by Counsels X and Y led to a private deliberation, where they argued for the need to note on the record the witness’s demeanor for “threshold reliability,” especially if her previous statement was to be considered as hearsay evidence through a future application. Counsel Z, however, cautioned against the lawyers turning into witnesses themselves and expressed readiness to proceed without overburdening the witness so early on in the proceeding.
The judge, after questioning the witness about her condition and learning of her consumption of alcohol earlier the night prior, decided to continue with the examination. Counsel X’s response was dismissive. Reacting to the judge’s determination, he remarked, “if she was pulled over right now, she’d be charged with being impaired – but if all we’re relying on is her statements, then sure, I’m okay to proceed.” This comment starkly highlighted his unsympathetic stance, contrasting vividly with the witness’s evident emotional turmoil. Counsel Y, more strategic in his approach, attempted to extend his line of questioning but was halted by an objection from the Crown.
When the witness struggled to speak about her relationship with the victim and requested her sister’s presence for moral support, it further illuminated the differing approaches of the counsels. Counsel X, with an unexpected demeaning tone, questioned her sobriety again, citing her drug addiction. Counsel Y suggested further evaluations by the judge, while Counsel Z maintained his stance of proceeding with respect and consideration for the witness’s emotional state.
Counsel Z’s off-record remarks during the subsequent break about the need to remain humane in the face of the witness’s emotional tribulations struck me profoundly. It highlighted the importance of balancing strong advocacy with genuine empathy, especially when dealing with individuals experiencing the worst days of their lives – “she watched her boyfriend die before her” he reminded his peers with evident frustration towards their callousness.
Notably, during our debrief with the Justice, it was apparent that Counsel Z, despite being the youngest of the three lawyers, was held in high regard. The presiding Judge commended Counsel Z for his approach, praising the balance he struck in his advocacy. This recognition from the bench was telling. It emphasized that even in the competitive arena of the courtroom, empathy and a measured approach do not go unnoticed.
In reflection, the divergent approaches of the counsels offered me a valuable lesson in legal advocacy. Counsel X’s aggressive style was desensitized to the witness’s plight. Counsel Y was cunning, yet still focused on his litigation strategy. In contrast, Counsel Z’s empathetic, human-first approach underscored the significance of understanding and respecting the emotional and psychological states of vulnerable individuals in the legal process. Understanding witnesses’ lived realities and adapting advocacy to fit the unique needs of each witness is an essential tool for lawyers.”
Other Work
Clerks may also be tasked with editing and drafting written decisions for judges or speeches for public engagements. These tasks are more personal because, unlike memos, they are outward facing and reflect directly on the judge as the author. Being assigned this type of work may depend on the judge’s personal preferences and capacity. If invited to assist with this work, be open to the opportunity to receive feedback that will help the student grow as a writer and build the mentorship relationship with the judge.
