One Columbus Circle NE

Washington, DC 20002-8003

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The Law Clerk Handbook provides an overview of law clerk 

responsibilities, chambers operations, and the work of the 

federal courts. Potential and current law clerks, as well as 

their colleagues, will find helpful information on conduct, 

ethics, types of federal court litigation, chambers and 

case management, court governance and administration, 

legal research and writing, and resources for additional 

information on these topics and more.

Law Clerk Handbook

A Handbook for Law Clerks to Federal Judges

Fourth Edition

Law Clerk Handbook

A Handbook for Law Clerks to Federal Judges

Fourth Edition
2020 Fourth Edition

2017 Third Edition

2007 Second Edition

1977 First Edition

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle NE

Washington DC 20002

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This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory 

mission to develop educational materials for the judicial branch. While the Center regards the content 

as responsible and valuable, this publication does not reflect policy or recommendations of the Board 

of the Federal Judicial Center.
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Contents

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

§ 1.1 The Function and Role of Law Clerks .

§ 1.2 Preparation and Reference Material .

§ 1.3 Orientation and Continuing Education .

2 Conduct, Ethics, and Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§ 2.1 Conduct and Ethics .

§ 2.2 Protocol .

A. Confidentiality and Loyalty .

1. Communication with the Media .

2. Communication with Attorneys .

B. Respect . 

C. Workplace Conduct . 

D. Courtroom Demeanor . 

E. Dress . 

F. The Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3 Basic Overview of Litigation in U.S. Courts . . . . . . . . . . . . . . . . . . . . . . . . 

§ 3.1 The Civil Action . 

A. Federal Jurisdiction . 

B. The Litigation Process . 

C. Commencement of Action . 

D. Service of Summons and Complaint and Waiver of Service . 

E. Early Pretrial Conference . 

F. Multidistrict Litigation Problems . 

G. Motion Practice Before Answer . 

H. Opinions on Motions Under Submission . 

I. Temporary Restraining Orders . 

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J. The Answer . 

K. Alternative Dispute Resolution . 

L. Dormant Actions . 

M. Motion Practice After Answer . 

1. Discovery Motions and Schedules . 

2. Summary Judgment and Amended Pleadings Motions . 

N. Final Pretrial Conference . 

O. Pretrial Orders . 

P. Sanctions . 

Q. Trial . 

R. Posttrial Motions and Enforcement of Judgments . 

S. Appeals from Decisions of Administrative Agencies . . . . . . . . 26

§ 3.2 The Criminal Action . 

A. Proceedings Before a Magistrate Judge . 

B. Indictment . 

C. Arraignment and Plea . 

D. The Speedy Trial Act . 

E. Pretrial Motions . 

F. Discovery and Pretrial Hearing . 

G. Trial and Posttrial Detention . 

H. Sentencing . 

1. Sources . 

2. Sentencing Procedures . 

3. Appellate Review . 

4. Role of Law Clerks . 

I. Posttrial Motions . 

J. Handling Prisoner Petitions . 

§ 3.3 Bankruptcy Proceedings . 

A. General Structure and Jurisdiction . 

B. The Authority of the Bankruptcy Judge, Core Versus Noncore 

Proceedings, and Jury Trials . 

C. Relationship to Other Courts . 

D. Appeals . 

E. Chapters of the Bankruptcy Code . 

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F. Bankruptcy Procedure . 

1. Rules and Forms . 

2. Applications and Motions . 

3. Contested Matters and Adversary Proceedings . 

G. U.S. Trustees and Private Trustees . 

§ 3.4 Appeals . 

A. Processing Appeals . 

B. Notice of Appeal . 

C. Record Preparation . 

D. Docketing the Appeal . 

E. Briefs and Joint Appendices . 

F. Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

G. Deliberation . 

H. Opinion and Judgment . 

I. Rehearing . 

J. Mandate . 

K. Motions . 

L. Emergency Proceedings . 

§ 3.5 Courts of Specialized Jurisdiction . 

A. Court of Appeals for the Federal Circuit . 

B. Court of International Trade . 

C. U.S. Judicial Panel on Multidistrict Litigation . 

D. Foreign Intelligence Surveillance Court . 

§ 3.6 Article I Courts . 

A. U.S. Tax Court . 

B. U.S. Court of Federal Claims . 

C. U.S. Court of Appeals for the Armed Forces . 

D. U.S. Court of Appeals for Veterans Claims . 

4 Chambers and Case Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

§ 4.1 Chambers Administration . 

A. Security . 

B. Telephone . 

C. Correspondence, Email, and Other Mail . 

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D. Internet and Electronic Research . 

E. Electronic Filing . 

F. Judge’s Chambers Calendar . 

G. Opening Court . 

H. Maintaining the Library; Office Supplies, Equipment, and 

Furniture . 

I. Maintaining Office Records and Files . 

J. Statistical Reporting . 

K. Out-of-Town Trips . 

L. Assisting with Judges’ Extrajudicial Activities . 

M. Preserving Chambers Papers for Historical Purposes . 

N. Rules Regarding the Media in Court . 

§ 4.2 Local Court Rules and Administrative Policies . 

§ 4.3 Case Management: The Trial Court . 

A. Office Status Sheets . 

B. Calendaring Systems . 

C. Trial Scheduling . 

D. Jury Management . 

1. Random Juror Selection . 

2. Exemptions, Disqualifications, and Excuses . 

3. Juror Orientation . 

4. Voir Dire . 

5. Jury Supervision . 

E. Distributing Opinions . 

§ 4.4 Special Duties of Law Clerks to Bankruptcy Judges . 

§ 4.5 U.S. Magistrate Judges . 

A. Initial Proceedings in Criminal Cases . 

B. References of Pretrial Matters from District Judges . 

C. Disposition of Petty Offense and Class A Misdemeanor Cases 74

D. Disposition of Civil Cases . 

E. Additional Duties . 

§ 4.6 Case Management: The Appellate Court . 

A. Motions . 

B. Screening . 

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C. Order of Assignment of Appeals for Oral Argument: 

Calendar Preparation . 

D. Order of Opinion Writing . 

E. Distributing Opinions . 

5 Legal Research and Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

§ 5.1 Research . 

§ 5.2 Writing . 

A. General Rules . 

B. Editing . 

C. Style . 

D. Suggested Reference Materials . 

E. Specific Writing Assignments . 

1. Jury Instructions . 

2. Memoranda of Law or Fact . 

3. Resolution of Motions in Trial Courts . 

4. Memos for Criminal Motions . 

5. Findings of Fact and Conclusions of Law . 

6. District Court Orders . 

7. Opinions . 

F. Correspondence . 

1. Official Business Envelopes . 

2. Juror Letters . 

§ 5.3 Proofreading Documents and Checking Citations . 

A. Checking an Opinion . 

B. Final Proofreading . 

6 Court Governance and Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

§ 6.1 Overview of Federal Judicial Administration . 

§ 6.2 The Chief Justice of the United States . 

§ 6.3 The Judicial Conference of the United States . .

§ 6.4 Circuit Judicial Councils and Circuit Executives . .

§ 6.5 Chief Judges . .

A. Courts of Appeals . .

B. District Courts . .

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C. Bankruptcy Court . .

§ 6.6 Circuit Judicial Conferences . .

§ 6.7 Federal Agencies of Judicial Administration . .

A. Administrative Office of the U.S. Courts . .

B. Federal Judicial Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

C. United States Sentencing Commission . .

§ 6.8 Active and Senior Judges; Retirement . .

§ 6.9 Budget Appropriations and Administration . .

7 Relations with Other Court and Justice System Personnel . . . . . . . . . . 107

§ 7.1 The Circuit Executive . .

§ 7.2 The Clerk of Court (Court of Appeals) . .

§ 7.3 The Clerk of Court (District and Bankruptcy Courts) . .

§ 7.4 District Court Unit Executives . .

§ 7.5 The Courtroom Deputy and the Docket Clerk . .

§ 7.6 Other Law Clerks . .

§ 7.7 Judicial Assistants . .

§ 7.8 Pro Se Law Clerks and Staff Attorneys . .

§ 7.9 The Court Reporter . .

§ 7.10 The Circuit Librarian . .

§ 7.11 The Probation and Pretrial Services Offices . .

§ 7.12 Public Defenders . .

§ 7.13 U.S. Attorneys . .

§ 7.14 United States Marshals Service . .

§ 7.15 The Federal Bureau of Prisons . .

§ 7.16 Federal Law Enforcement Agencies . .

§ 7.17 State Courts . .

Appendix Code of Conduct for Judicial Employees . . . . . . . . . . . . . . . . . . .  12

§ 310 Overview . .

§ 310.10 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

§ 310.20 History . .

§ 310.30 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

§ 310.40 Further Guidance . .

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§ 320 Text of the Code . .

Canon 1: A Judicial Employee Should Uphold the Integrity 

and Independence of the Judiciary and of the 

Judicial Employee’s Office . .

Canon 2: A Judicial Employee Should Avoid Impropriety and 

the Appearance of Impropriety in All Activities . .

Canon 3: A Judicial Employee Should Adhere to Appropriate 

Standards in Performing the Duties of the Office . .

Canon 4: In Engaging in Outside Activities, a Judicial 

Employee Should Avoid the Risk of Conflict with 

Official Duties, Should Avoid the Appearance of 

Impropriety, and Should Comply with Disclosure 

Requirements . .

Canon 5: A Judicial Employee Should Refrain from 

Inappropriate Political Activity . .

Resources Federal Judicial Center Resources . . . . . . . . . . . . . . . . . . . . . . . . 137

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Preface

This is an updated edition of the Law Clerk Handbook, coauthored by Judge Alvin 

B. Rubin and Anthony DiLeo and first published by the Federal Judicial Center in 

1977. Section 2.2 of this edition was revised in 2020 in response to changes to the 

codes of conduct. The handbook provides an overview of chambers operations 

and the work of the federal courts; it does not provide detailed procedures on 

every aspect of a law clerk’s daily tasks, nor does it review the procedures of each 

individual court (largely because law clerks’ duties vary from judge to judge). 

Law clerks should familiarize themselves with local court procedures and inquire 

about local chambers manuals. The Guide to Judiciary Policy, published by the 

Administrative Office of the U.S. Courts, provides more detailed information on 

administrative, financial, and personnel matters and is available on the website 

maintained by the Administrative Office on the judiciary’s intranet, called JNet.

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1

Introduction

  

§ 1.1 The Function and Role of Law Clerks 

Law clerks have no statutorily defined duties; they carry out their judges’ instructions. Because each judge decides cases individually and has developed work 

habits over the course of a professional career, no two judges use their clerks in 

exactly the same way. You will need to become familiar with your judge’s style 

and work cooperatively with the other members of the chambers staff, so that as 

a team you can effectively assist the judge in fulfilling the judge’s judicial responsibilities.

In most chambers, law clerks concentrate on legal research and writing. 

Typically, a law clerk’s broad duties include conducting legal research, preparing 

bench memos, drafting orders and opinions, editing and proofreading the judge’s 

orders and opinions, and verifying citations. Many judges discuss pending cases 

with their law clerks and confer with them about decisions. District court law 

clerks often attend conferences in chambers with attorneys. Often, law clerks 

also maintain the library, assemble documents, serve as courtroom crier, handle 

exhibits during trial, and perform other administrative tasks as required by the 

judge to ensure a smooth-running chambers.

Law clerks for district, bankruptcy, and magistrate judges have much more 

contact with attorneys and witnesses than their appellate court counterparts do. 

The primary function of an appellate court law clerk is to research and write 

about the issues presented on appeal, while law clerks for district, bankruptcy, 

and magistrate judges may be involved in the many decisions made at every stage 

of each case. Chapter 4 describes the operations of district, bankruptcy, and appellate courts in some detail. 

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§ 1.2 Preparation and Reference Material 

Familiarize yourself with the federal rules that apply to the cases in your court. 

Law clerks to appellate, district, and magistrate judges should study the Federal 

Rules of Criminal Procedure, the Federal Rules of Civil Procedure, and the Federal 

Rules of Evidence. Law clerks to bankruptcy judges will need to know the Federal 

Rules of Bankruptcy Procedure, and clerks to appellate judges should also study 

the Federal Rules of Appellate Procedure. Although your judge will have these 

items in the library and they are available online, a personal copy will better 

help you become familiar with them. Also carefully study the local rules of court, 

standing orders, and other operating procedures. Clerks to bankruptcy judges 

should study the Bankruptcy Code as well.

The Federal Judicial Center has numerous publications dealing with federal 

court operations and with specific subjects such as copyright law, patent law, 

pretrial detention, employment discrimination, and civil rights litigation. Other 

Center publications, such as the Manual for Complex Litigation (4th ed. 2004) 

and the Benchbook for U.S. District Court Judges (6th ed. 2013), contain specific 

information about case management and the judicial process in the trial court. 

The Center’s site on the judiciary’s intranet, called fjc.dcn (http://fjc.dcn), can 

help you find publications, audio and video recordings, and web-based resources 

that are especially helpful to law clerks.

Personal reference books will also be helpful, some of which may be available 

online through the court library. Law clerks should have a dictionary, a thesaurus, 

and the current edition of The Bluebook: A Uniform System of Citation, published 

by the Harvard Law Review Association. It is also useful to have a stylebook, such 

as the current edition of The Chicago Manual of Style, published by the University 

of Chicago Press; the Harbrace College Handbook; or the Gregg Reference Manual. 

Before writing your first assignment, you should read Strunk and White’s The 

Elements of Style and periodically reread it.

Law clerks will benefit from courses in federal jurisdiction, federal civil 

procedure, evidence (including the Federal Rules of Evidence), criminal procedure, and constitutional law. A particular court may have a lot of litigation in a 

particular area, so some judges may suggest that certain courses would be especially helpful. You should also consider doing some background reading on the 

judicial process. Judge Ruggero J. Aldisert’s The Judicial Process is a rich collection of readings and analysis. Judge Frank Coffin’s The Ways of a Judge provides 

numerous insights into the decision-making process. How Judges Think, by Judge 

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Richard Posner, takes a look at legal decision making. Reading these works will 

help you more fully understand both the judge’s role and yours.

  

§ 1.3 Orientation and Continuing Education 

Many courts provide orientation for law clerks, and some have various local educational programs for court personnel generally or for the bar. Ask whether your 

court has any such programs. Typically, a training specialist in the clerk’s office 

can explain the government-wide and judiciary-wide policies and options.

The Center has an online orientation program for new law clerks, the Interactive Orientation for Federal Judicial Law Clerks (iOLC), on fjc.dcn. It provides 

an overview of the federal court system and instruction on ethics, legal writing 

and editing, federal jurisdiction, and sentencing. The Center also has streaming 

video programs on employment discrimination, constitutional law, and bankruptcy organization and jurisdiction; live and recorded webcasts on substantive 

legal topics; and other helpful educational resources on fjc.dcn.

Become familiar with the details of employee benefits (such as health insurance), leave policies, and other particulars, which you can find on JNet, the site 

maintained by the Administrative Office on the judiciary’s intranet (http://jnet.

ao.dcn). Your judge may also have policies and preferences on some matters, such 

as office hours and leave.

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2

Conduct, Ethics, and Protocol

  

§ 2.1 Conduct and Ethics 

Law clerks play important roles in the judicial process and must maintain its 

integrity. Because of the close association between judges and law clerks, your 

professional and personal actions reflect on your judge and ultimately on the 

judiciary as a whole. You are held to the very highest standards of conduct. Like 

judges, you hold a position of public trust and must comply with the demanding 

requisites of that position.

Many ethics questions can be answered with common sense, but there are 

some areas in which you need to be aware of specific rules that impose restrictions 

not intuitively obvious. Law clerks most often encounter ethical issues in the 

following areas:

• confidentiality

• conflicts of interest

• outside legal activities

• dealings with prospective employers

• outside professional, social, and community activities

• receipt of gifts and honoraria

• political activity

• social media

To avoid embarrassment to yourself and potentially to your judge, it is important that you understand your obligations in these and all other ethical areas.

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The Judicial Conference of the United States sets administrative policy for 

the federal courts. The Conference has adopted the Code of Conduct for Judicial 

Employees and has made it applicable to law clerks. A copy of the code is in the 

appendix to this handbook. You should familiarize yourself with the code. You 

will also need to familiarize yourself with your judge’s ethical guidelines. These 

may differ from chambers to chambers, and your judge may not permit conduct 

or activities that would otherwise be acceptable under the Code of Conduct.

To help familiarize law clerks with their ethical obligations, the Center, in 

cooperation with the Judicial Conference Committee on the Codes of Conduct 

and the Administrative Office, has prepared a pamphlet called Maintaining the 

Public Trust: Ethics for Federal Judicial Law Clerks (Revised 4th ed. 2019). The 

Center has distributed the pamphlet widely to judges and to courts. If copies of 

this pamphlet are not available in your chambers, you can order one on fjc.dcn. 

The Center also has a video, Maintaining an Exemplary Workplace, specifically 

designed for law clerks, that focuses on workplace conduct, and has developed 

an e-learning program for term law clerks as part of its online orientation series 

on fjc.dcn. But neither the code, the pamphlet, nor the online program can cover 

every possible situation. If you have a question that is not clearly answered by 

these resources, you should discuss the matter with your judge.

Guidance on ethical issues is also available from other sources. Volume 2 of 

the Guide to Judiciary Policy focuses on ethics and includes the Code of Conduct 

and the following helpful resources:

• The Ethics Reform Act of 1989 and Judicial Conference regulations put 

into place under it. The provisions applicable to law clerks and judicial 

assistants deal with receipt of gifts and honoraria.

• Published advisory opinions of the Codes of Conduct Committee. These 

advisory opinions address issues frequently raised or of broad application. Advisory Opinion Nos. 51 (working on a case in which a party is 

represented by a spouse’s law firm), 64 (employing a judge’s child as law 

clerk), 73 (requests for letters of recommendation and similar endorsements), 74 (a law clerk’s future employer), 81 (when a law clerk’s future 

employer is the U.S. Attorney’s Office), 83 (payments to law clerks from 

future law firm employers), and 92 (political activities) are of special 

interest to law clerks.

• The Compendium of Selected Opinions. The Compendium contains 

summaries of advice given by the Codes of Conduct Committee in response to confidential, fact-specific inquiries. Committee members can 

answer questions about a particular opinion without disclosing the identity of the person who solicited the advice. 

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§ 2.2 Protocol 

A. Confidentiality and Loyalty 

Law clerks owe judges complete confidentiality in case-related matters. You cannot say anything about a case that is not a matter of public record or otherwise 

permitted. Canon 3D of the Code of Conduct for Judicial Employees states that 

employees should not

• disclose confidential information received in the course of official duties, 

except as required in the performance of their duties

• employ such information for personal gain

• comment on the merits of a pending or impending action

Instructions you receive from your judge and discussions about your judge’s 

legal assessment of a case should also be treated as confidential. Unless expressly 

authorized by your judge, you should never comment on the judge’s views or offer 

a personal appraisal of the judge’s opinions; judges are the only ones who can or 

should communicate whatever personal views they wish to have known publicly. 

After a judge acts, the action or opinion (and if there is an opinion, its reasoning) 

is a matter of public record. You should neither comment on it nor try to explain 

it. You must also resist the temptation to discuss pending or decided cases with, or 

in the company of, friends or family. Even discussions of pending cases with staff 

from other chambers should be circumspect, and some judges forbid it. Many 

district courts also have rules forbidding court personnel to divulge information 

about pending cases. Law clerks should be careful about publicly discussing their 

judges and chambers-related activities beyond case-related matters. For example, 

clerks should not publicly discuss their judges’ personal views about political, 

social, or other matters that could arise in litigation, nor should clerks reveal 

a judge’s travel plans. In general, clerks should respect and protect the privacy 

of their judges. That said, nothing in this handbook, or in the Code of Conduct, 

prevents any clerk or judiciary employee from revealing misconduct, including 

sexual or other forms of harassment, by their judge or any person. Clerks are 

encouraged to bring such matters to the attention of an appropriate judge or 

other official.

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1. Communication with the Media

Some judges are opposed to having chambers staff discuss anything at all with 

the media; you should determine your judge’s policy on this matter. You should 

not respond to questions of substance, comment on a pending matter, or reveal 

judicial confidences, even when a reporter requests information “just for background.” You may direct requesters to information that is in the public record and 

provide comments on technical and administrative matters, if your judge agrees. 

With your judge’s permission, you may also discuss how the court works in general 

and its rules and procedures.

Some courts have designated employees to handle media inquiries, and 

written guidelines for press inquiries may be available from your judge or the 

clerk of court.

2. Communication with Attorneys

Law clerks must be firm in resisting any effort by attorneys to gain improper 

advantage, to win favor, or to enlist sympathy. You should not engage in any 

discussion with counsel about a pending case or a decision that has been reached 

by your judge. In fact, some judges do not permit their law clerks to have any 

communication with attorneys at all. Regardless of the exchanges permitted, you 

should never discuss or divulge confidential information.

Law clerks who are permitted to communicate with attorneys should abide 

by the following standards:

• Do not give any advice on matters of substantive law.

• If the lawyer asks about either local procedure or general federal procedure for handling a matter, you may read or refer the lawyer to the 

appropriate federal rule or local court rule. If the question relates to your 

judge’s personal practice in handling matters (e.g., requests for temporary restraining orders), you may tell the lawyer what you know. Do not 

guess at what your judge does or may do. If uncertain about your judge’s 

policy, say something like, “I don’t know what the judge would like a 

lawyer to do in these circumstances, but I’ll be glad to consult the judge 

about the problem and call you back.”

• Do not allow a lawyer to coax you into doing research, even the most 

minor.

• Do not hesitate to issue a disclaimer on any information you may give. 

Almost all attorneys understand such a position. (“I can’t give you any 

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legal advice, as you understand. However, you may find it helpful to look 

at local rule 3.09.”)

• When in doubt, politely decline to give information. (“I’m really sorry I 

can’t help you, but Judge X has instructed me not to answer that kind of 

question.”)

All attorneys should be given impartial and equal treatment. You must 

resist the temptation to do a favor for a family member, former classmate, or an 

old friend. See Advisory Opinion No. 51 (working on a case in which a party is 

represented by a spouse’s law firm).

You should inform your judge of informal communications on pending cases. 

For example, an attorney may call to state that there is no objection to a pending motion, or that both attorneys jointly request the continuance of a hearing. 

Because of the impact of these events on docket management, the judge may 

wish to take some action, such as calling a conference of counsel, or may devote increased attention to another matter for which immediate preparation is 

necessary. Informal information can save the judge and the staff wasted time 

and effort.

Generally, if an attorney asks when an opinion will be rendered, you should 

indicate that such information is confidential, unless your judge has instructed 

otherwise. In cases of interest to the general public or media, however, some 

judges may wish to notify the attorneys in advance when a prospective judgment, 

opinion, or order is to be filed (except when such information might provide 

the attorneys and parties with “inside” information of potentially significant 

economic advantage). Such notice enables counsel to read the opinion at the 

moment it is filed and notify their clients of the result. Attorneys appreciate the 

opportunity to be the first to notify their clients, and clients themselves may 

wish to notify other interested parties of the result. Some embarrassment and 

confusion may result if the parties first hear of a ruling through the media. Not 

only that, but media reports also may be incomplete and misleading.

If you receive specific information about the progress of settlement negotiations in a case in which your judge is to be the trier of fact, you must be guided 

by your judge’s policy. Settlement proposals or discussions are ordinarily inadmissible at trial, and therefore some judges shield themselves from knowledge 

of settlement negotiations that might affect their judgment. Other judges either 

like or are willing to have this information and are confident that it will not 

influence them.

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This caution regarding communication with attorneys and others appearing 

before your judge must extend to private, off-hours behavior as well, including the 

use of social media. It may be tempting to think that it is safe to post about a case 

before your judge on your Facebook page or to tweet about it on Twitter. Maybe 

your privacy settings only allow your closest friends to read what you share. But 

the confidentiality of the court must be complete and no matter how close you 

are to someone or how much you trust them, you should not share information 

with them that only you are privileged to know.

B. Respect 

Law clerks and judges have a special, multifaceted relationship: employeeemployer, student-teacher, protégé-mentor, and lawyer-lawyer. In all of these 

roles, you must respect your judge. Respect does not mean subservience; you 

should not be afraid to express an opinion contrary to your judge’s when asked—

in fact, most judges expect and invite their law clerks to question the judges’ 

views. They frequently seek their law clerks’ reactions to the issues raised in 

pending cases, both for the value of being exposed to varying viewpoints and to 

train their law clerks in the process of legal decision making. If, however, your 

judge should reach a conclusion that differs from yours, you must carry out your 

judge’s instructions with the utmost fidelity. In fact, you must keep this in mind 

at every stage of your work. Even if you have a strong conviction about how a 

case should be decided, you must be objective in your legal research and always 

provide your judge with relevant arguments and precedents from all points of 

view. Be careful not to skew your research to lead your judge toward the decision 

you think is the right one. The ultimate responsibility for fulfilling the duties of 

a judge’s office falls on the judge. As one judge put it, “The commission from the 

President issues to me, not my law clerk, and it was I who took the oath of office.”

C. Workplace Conduct 

The judiciary strives to ensure an exemplary workplace for all law clerks, judicial 

employees, and judges. You should consider how you conduct yourself in dealing 

with all persons you encounter in your role as a law clerk. Canon 3C of the Code 

of Conduct outlines your ethical obligations regarding workplace conduct. 

It provides the standard for your conduct as a law clerk—that you should be 

“patient, dignified, respectful, and courteous”—and explains that sexual or other 

forms of harassment and retaliation against those who report misconduct are 

prohibited. It also states that you should “take appropriate action” to report 

conduct contravening the code.

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D. Courtroom Demeanor 

The law clerk, like the judge, must be impartial. During a jury trial, physical cues 

within view of the jurors may compromise impartiality and unfairly influence 

the jury. Even during a motion hearing, bench trial, or appellate argument, avoid 

movements or expressions that might indicate your reaction to the testimony 

of witnesses or to the oral arguments of attorneys, because impartiality and 

objectivity must always be maintained by everyone officially attached to the 

court. However, litigants are more likely to expect and accept reflections of attitude by the judge, who has a duty to control proceedings and to decide the case, 

than by the judge’s clerks.

E. Dress 

Most judges do not have a formal dress code but do expect the kind of dress that 

would be appropriate in a professional office.

F. The Public 

The courts are a public service organization, and the public properly expects 

efficient and professional service from them. The public generally is unfamiliar 

with the court system, and opportunities for the public to view the system in 

operation are infrequent. Make every effort to assist the public, including 

witnesses or jurors. The brief encounter that jurors or witnesses have with the 

federal court system may greatly influence their impression of the quality and 

efficacy of the system.

Courtesy and kindness, however, should not include advice. Without permission from your judge, you must not answer questions from witnesses or jurors 

about a case.

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Basic Overview of Litigation 

in U.S. Courts

Litigation in the federal courts is governed by nationally applicable rules: the 

Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the 

Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, 

and the Federal Rules of Evidence. These are supplemented by the local rules of 

each individual court and the standing orders of individual judges. You should 

keep a copy of these uniform and local rules on hand.

  

§ 3.1 The Civil Action 

A. Federal Jurisdiction 

Federal courts are courts of limited jurisdiction; they may hear only those cases 

described in Article III, Section 2, of the Constitution and authorized by Congress. 

Most civil cases in federal court are based on one of two types of jurisdiction: 

federal question jurisdiction (28 U.S.C. § 1331) or diversity of citizenship jurisdiction (28 U.S.C. § 1332). In addition, federal courts have exclusive jurisdiction over 

other special areas, such as bankruptcy cases, trademark and copyright violations, and incidents at sea. See 28 U.S.C. §§ 1331–1367.

B. The Litigation Process 

The major steps in civil cases are as follows:

1. The plaintiff commences the action by filing a complaint with the clerk 

of court.

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2. Personal jurisdiction is obtained over the defendant (e.g., by service of 

process).

3. The parties meet and confer to identify issues, discuss settlement, and 

prepare disclosure and discovery plans.

4. The court conducts an early pretrial (scheduling) conference or issues a 

pretrial scheduling order.

5. The defendant may file motions (e.g., motion to dismiss for failure to 

state a claim for which relief may be granted; certain motions must be 

filed in the defendant’s first responsive pleading, while others may be 

filed later).

6. The defendant files an answer.

7. The parties disclose documents, and discovery proceeds.

8. Either party may file additional motions (e.g., summary judgment or 

motions in limine to screen evidence, including expert evidence).

9. The final pretrial conference is held.

10. The trial is held.

11. The judgment is rendered, signed, and filed.

12. Posttrial proceedings may occur.

13. Appeal may be taken; the judgment may or may not be stayed.

14. The appeal is considered either on briefs or after oral argument.

15. Judgment is rendered on the appeal.

16. Supplementary proceedings may occur.

17. The judgment is enforced.

In any given case, some of these steps may be omitted because of inaction, 

agreement of the parties, or court order. See generally the Civil Litigation Management Manual (2d ed. 2010), which was prepared under the direction of the 

Judicial Conference Committee on Court Administration and Case Management, 

with substantial contributions from the Administrative Office and the Federal 

Judicial Center. For special considerations in complex cases, see the Manual for 

Complex Litigation (Federal Judicial Center, 4th ed. 2004).

Settlement discussions, whether between the parties only or with the 

assistance of a judge or an ADR neutral, may occur at any time—and more than 

once—during the lifetime of a case. And of course the suit may end by settlement 

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or dismissal at any stage. Fewer than 2% of civil actions filed in the federal courts 

go to trial, but the court decides motions in many cases that do not make it to trial.

C. Commencement of Action 

A civil action in federal court begins with the filing of a written complaint in the 

clerk’s office (which may, or in most cases must, be filed electronically through 

the courts’ Case Management/Electronic Case Filing (CM/ECF) system). The 

case is then assigned a number, usually referred to as a docket number, containing 

two parts: the last two digits of the year in which the case was filed and a number 

that is assigned consecutively as suits are filed in each calendar year. The prefix 

Cr. or C.A. (sometimes Cv.) indicates whether the case is a criminal or civil 

action. In a multijudge court, the clerk’s office, through a preestablished, random 

selection process, immediately assigns the case to a particular judge for handling 

and ultimate disposition. The clerk’s office maintains the complete record of 

the case—a case file and docket sheet (which includes notations to reflect the 

progress of the case)—using the CM/ECF system.

When the case is filed, the judge begins the process of monitoring and controlling the progress of the case. Some judges briefly review (or have their clerks 

review) all newly filed complaints to identify those that appear frivolous, lack 

federal jurisdiction, or are otherwise susceptible to fast-track handling, and to 

flag those that may demand special attention. If there is a request for a temporary restraining order or other immediate emergency relief, or if the case is a 

class action, early attention is required. Each new case should also be examined 

for potential conflicts of interest. Although most courts now maintain electronic lists of such things, each chambers should have procedures, including use of 

conflict-screening software, to ensure that possible financial or other conflicts of 

interest are identified.

The local rules of court and standard litigation practice usually lead the 

lawyer who files a class action to indicate its nature by a caption on the first 

page of the complaint. Federal Rule of Civil Procedure 23(g) calls for the court to 

appoint counsel for the class and permits the court to designate interim counsel 

to represent a proposed class before ruling on whether the class may be certified. 

Rule 23(c)(1)(A) requires judges to decide whether to certify a case as a class 

action “at an early practicable time,” so they will usually want to be promptly 

alerted to the filing of class actions. Other proceedings requiring the court’s 

prompt action are discussed in what follows.

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D. Service of Summons and Complaint and Waiver of Service 

The Federal Rules of Civil Procedure give the plaintiff the option of notifying a 

defendant of the commencement of a lawsuit by (1) serving the defendant with a 

summons and a copy of the complaint, or (2) providing the defendant with written 

notice of the lawsuit, along with a request that the defendant waive service of the 

summons, in order to avoid the costs of service. Service of a summons or filing a 

waiver of service establishes jurisdiction over the person of a defendant, subject 

to the territorial limits upon effective service contained in Federal Rule of Civil 

Procedure 4(k).

The waiver-of-service provisions of Rule 4 apply to individuals, corporations, 

or associations otherwise subject to service under the rule. They do not apply 

to infants, incompetent persons, the United States, or agencies, corporations, 

or officers of the United States. These defendants must be served with copies of 

the summons and complaint in the manner made applicable to them by Rule 4. 

Rule 4 also contains provisions regulating the manner of service.

E. Early Pretrial Conference 

Federal Rule of Civil Procedure 16 gives judges discretion to call for as many 

pretrial conferences as the case may require. Many judges convene an early 

pretrial conference, often called a scheduling conference, as described by Rule 16, 

to meet with the attorneys to narrow the issues, eliminate groundless claims 

and defenses, discuss alternative dispute resolution (ADR) options, encourage 

settlement discussions, schedule and plan the pretrial and trial stages of the 

litigation, and anticipate the procedural and management issues likely to arise in 

the litigation. Rule 26(f) directs the parties (generally through their attorneys) to 

meet, confer, and prepare a discovery plan prior to this early pretrial conference. 

The early pretrial conference generally leads to a pretrial order that identifies 

the issues and schedules the events necessary to resolve those issues. Judges 

who choose not to hold early pretrial conferences nonetheless generally issue a 

scheduling order early on in the case. This order must be issued within 120 days 

of when the case was filed.

Many judges require counsel to file and exchange detailed pretrial memoranda 

regarding the matters to be considered at the conference. The conference itself 

may be held in chambers, with or without a court reporter, or may be conducted as 

a formal hearing in open court. Some courts have adopted a local rule describing 

the pretrial procedure. In other courts, judges issue descriptions of their pretrial 

procedures. See the Civil Litigation Management Manual, at 15–28, for discussion 

of the Rule 16 conference.

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Depending on how comfortable your judge is with using the CM/ECF and other 

online document systems prior to the pretrial conference, you may want to review 

the case file, put the documents in sequence, and provide the judge with both the 

file and a printout of the docket (or any other portion of the record the judge might 

need for the conference). If your judge would rather download the documents to a 

laptop, tablet, or other portable device, this paper preparation won’t be necessary. 

Do this far enough before the conference to give the judge time to look through 

the file. If a proposed pretrial order has been submitted, place it at the top of the 

file. Some judges may want the courtroom deputy, the law clerk, or both to attend 

pretrial conferences. Others permit their law clerks to attend selected conferences 

of interest. During the first month or two after beginning work, try to attend as 

often as possible to gain insight into the conference procedure.

Judges generally do not schedule pretrial conferences for the types of cases 

described in Rule 26(a)(1)(E), such as cases on review of an administrative 

record, actions brought without counsel by persons in custody of a governmental 

entity, and actions brought by the United States to collect on a student loan.

Many judges also use their Rule 16 authority to convene a final pretrial 

conference to focus on issues likely to affect the trial. See section 3.1.N.

F. Multidistrict Litigation Problems 

If civil actions involving one or more common questions of fact are pending 

in different districts, either the plaintiff or defendant may petition the United 

States Judicial Panel on Multidistrict Litigation (JPML) to transfer the cases to 

a single district and to consolidate them for pretrial proceedings. See 28 U.S.C. 

§ 1407. The rules of the panel are found in the rules section of Title 28. If the panel 

decides that the cases should be consolidated, it enters an appropriate order and 

all of the cases are transferred to the district designated by the panel. While a 

petition to transfer a case is pending before the JPML, the district judge retains 

full jurisdiction over the case (JPML Rule 1.5).

The district judge may independently invoke intervention of the JPML by 

writing to the panel at the address listed on JNet. The letter should say that 

the judge has a case that may be related to a case or cases pending in another 

district, giving the name and docket number of each case, and that it might be 

worthwhile for the panel to examine these cases to determine whether pretrial 

consolidation would be appropriate. The judge will attach to the letter a copy 

of the complaint and any other documents that may be useful to the panel. The 

judge might also wish to send copies to counsel. The functions of the JPML are 

described in section 3.5.C.

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§ 3.1.G

G. Motion Practice Before Answer 

After the complaint is filed, the defendant may respond with motions, an answer, 

or both. Your judge may ask you to perform any or all of the following duties in 

connection with a motion:

• maintain in-office records and call motions that are ready for decision 

to the judge’s attention

• read and analyze the motion, any responses, and briefs

• perform independent research supplementary to that contained in the 

briefs of the parties

• attend hearings

• prepare memoranda on factual or legal issues presented by the motion 

for the judge to use

• discuss the motion with the judge

• draft, for the judge’s approval, an order disposing of the motion

The motions most frequently filed early in proceedings are those that challenge 

the court’s jurisdiction over the parties or the subject matter, attack venue, 

raise issues relating to joinder of parties, and test the legal sufficiency of the 

complaint. Some courts refuse to accept a motion unless a memorandum of law 

is filed simultaneously. Although some courts do not require reply memoranda, 

opposing counsel are usually required to file a memorandum of law if the motion 

is opposed. After receiving a motion or a response to a motion, the clerk of court 

makes appropriate record entries and then routes the motion and supporting 

papers to the judge assigned to the case.

The judge’s chambers, as well as the clerk of court (through CM/ECF), 

usually maintains a list of all pending motions. Some motions are perfunctory 

and can be ruled on without a hearing or oral argument. Some judges require 

moving counsel to request oral argument in the body of the motion, state the 

reason why counsel believes oral argument would be helpful to the court, and 

provide an estimate of the time required for the argument. The court may then, 

at its discretion, set the motion for argument and notify counsel in writing of 

the day and time. Other judges decide independently without input from counsel 

whether to hear argument or decide the matter on the briefs.

The local rules of the district court usually require a party opposing a motion 

to respond within a certain number of days after the motion is filed, or at least 

a certain number of days before the date set for hearing. Some motions involve 

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disputed factual issues and therefore require evidentiary hearings. These and all 

motions for which the judge will hear oral argument must be scheduled at times 

convenient for the court and, insofar as possible, for counsel and witnesses. Four 

different approaches to scheduling have been adopted:

1. Selection of a specific date and time by the judge or judge’s staff with 

notice to both counsel

2. Selection of a date and time convenient for all involved after telephone 

or personal conferences among counsel and court personnel

3. Selection of a date and time acceptable to the court by one attorney who 

then gives notice to other counsel

4. Permanent scheduling by the court of a weekly or monthly motion day at 

which any motions that are at issue may be heard as a matter of course, 

or, alternatively, for which particular motions are scheduled through one 

of the processes described above

In courts that hear oral argument on a number of motions on the same day, it 

is not unusual for the court to receive requests for a continuance of the argument 

on motions. Many judges will agree to continue a motion based on a lawyer’s 

telephone request if the lawyer advises the judge that opposing counsel has been 

informed of the request and has no objection. Other judges require counsel to file 

a written motion for a continuance, even when opposing counsel has no objection.

A law clerk usually assists the judge during the motions day arguments by 

making materials available to the judge relevant to particular motions, by noting 

any new authority cited by either counsel, and, if the judge decides the motion 

from the bench, by making notes of the judge’s decision (though the courtroom 

deputy officially records the court’s judgment or decision, and the judge later signs 

a summary order prepared by that deputy or submitted by prevailing counsel). 

Helping to ensure that your judge is prepared whenever taking the bench is one 

of your most important duties. Accordingly, you must keep abreast of the motion 

calendar and be familiar with time limits under local rules.

H. Opinions on Motions Under Submission 

Whenever the judge hears argument on a motion and does not rule from the bench, 

it is necessary to prepare an order disposing of the motion. If the judge instructs 

you to do this, start with samples of orders previously issued that can serve as 

guides, but take care to tailor your draft to the case at hand. A common mistake 

when using a previous document is failing to make all the changes necessary 

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to adapt it. The judge may instead direct one of the parties to prepare the order 

for court approval. See section 5.2.E.6. After an order ruling on the motion has 

been signed, it is sent to the office of the clerk of court, where appropriate record 

entries are made. The clerk’s office then notifies all attorneys of record of the 

judge’s ruling and usually sends them a copy of the order.

Matters taken under consideration must be carefully followed to ensure they 

are decided as promptly as possible. Chambers staff should keep a list of matters 

under consideration, deleting cases as rulings on each are completed. This list can 

be kept electronically using CM/ECF and other document management systems.

I. Temporary Restraining Orders 

The procedural rules governing applications for temporary restraining orders are 

set forth in Federal Rule of Civil Procedure 65. When these orders are sought, the 

plaintiff’s counsel may assert that the matter is so urgent that it requires an ex 

parte restraining order—that is, without giving the defendant prior notice or an 

opportunity to be heard. If the judge is not in chambers at the time, the plaintiff’s 

counsel may urge chambers staff to bring the order to the judge in open court, to 

locate the judge, or to assist in some other way. Early on you should ask about your 

judge’s policy on emergency matters like this so that you are prepared to handle 

them. You may, for example, be told to advise the lawyer that the judge does not 

ordinarily sign temporary restraining orders without hearing what the lawyer for 

the other side has to say. This may be done by arranging for the judge to see both 

counsel in person or by a telephone conference, depending on the judge’s policy. 

While the conference is being arranged, you should attempt to read all documents 

pertinent to the request, collect and examine authorities, and be prepared to brief 

your judge about the request or take such other action as your judge may require.

J. The Answer 

Except when the United States is the defendant, twenty days after the complaint 

is served, or ten days after notice of disposition of a preliminary motion, the defendant must answer the complaint. If the defendant fails to do so, the plaintiff 

may have the defendant’s default made a matter of record in the clerk’s office and 

then proceed to obtain a default judgment as outlined in Federal Rule of Civil 

Procedure 55.

Along with answering the complaint, the defendant may assert a counterclaim 

against the plaintiff or a cross-claim against another defendant. The party against 

whom a counterclaim or cross-claim is made has twenty-one days after service or 

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§ 3.1.L

fourteen days after disposition of a motion relating to the counterclaim or crossclaim in which to reply. In the event of a failure to answer, the defendant may 

obtain a default judgment in accordance with Rule 55.

Many courts and individual judges permit counsel, by agreement, to extend 

the time for answering. Others require counsel to appear—even if only to obtain 

an extension of time—so that the judge can be promptly informed of counsel’s 

identity and determine what progress is being made.

Motions relating to third-party practice or to jurisdiction over, or sufficiency 

of, a counterclaim or cross-claim may be filed at this stage of the proceedings. 

They are processed in the same manner as preliminary motions.

K. Alternative Dispute Resolution 

Courts have developed several forms of court-annexed alternative dispute 

resolution to assist parties in resolving their case. (Litigants may, of course, 

agree to avail themselves of private ADR programs that are not affiliated with 

the court.) Section 651(b) of Title 28 of the U.S. Code directs each district court to 

“authorize, by local rule . . . the use of alternative dispute resolution processes in 

all civil actions, including adversary proceedings in bankruptcy.”

Some ADR programs may be more suitable for certain types of cases than 

others. For more information on ADR procedures in the courts and the judge’s 

role, see ADR in the Federal District Courts: An Initial Report (Federal Judicial 

Center 2011) (available on fjc.dcn) and the Guide to Judicial Management of Cases 

in ADR (Federal Judicial Center 2001).

L. Dormant Actions 

Most federal courts do not permit actions to remain dormant indefinitely. Each 

court, and sometimes the judges within each court, will have a different policy 

on this. Counsel have their own priorities for processing litigation, and these 

frequently relate to their internal office demands and other personal matters. 

But in general, the policy of the federal courts is that litigation is not merely the 

lawyers’ business but also the public’s business, and the court is responsible for 

monitoring it.

All courts adopted civil justice expense- and delay-reduction plans under the 

Civil Justice Reform Act of 1990 (and many courts have incorporated provisions 

from these plans into their local rules). The courts are also required to report semiannually for each judge, for publication by the Administrative Office, motions that 

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§ 3.1.M

have been pending and bench trials that have been submitted for more than six 

months and cases that have not been terminated within three years after filing. 

28 U.S.C. § 476. Many courts have the docket clerk or someone in the clerk’s office 

periodically call cases to the judge’s attention that have been dormant for more 

than six months (or some other period of time) because either no answer was filed 

or, after pleadings were filed, no further action was taken. Many judges will have 

a periodic “docket call,” at which counsel will be asked to report on the status of 

cases that have been dormant for a certain period of time and explain the lack 

of progress. In some instances, failure of counsel to appear at the docket call results in dismissal of the case. For more on case management in civil litigation, see 

section 4.3 and the Civil Litigation Management Manual.

M. Motion Practice After Answer 

1. Discovery Motions and Schedules

The purpose of discovery is to allow each party to obtain relevant evidence or 

sources of relevant evidence from other parties and to avoid evidentiary surprises 

at trial. General provisions governing discovery are outlined in Federal Rule of 

Civil Procedure 26, which requires parties to disclose certain types of information 

to each other without waiting for a formal discovery request. These disclosures 

must be exchanged at, or soon after, the attorneys’ meet-and-confer session mandated by Rule 26(f), which should take place prior to the initial pretrial conference. At the Rule 26(f) meeting, the parties are to confer to develop a discovery 

plan, which they must submit to the court before the Rule 16 conference. Rule 26 

permits each judge to decide (and the parties to stipulate) whether to apply certain of its disclosure requirements to a given case. Otherwise, Rule 26 requires 

disclosure of the specified documents to all categories of cases not exempted in 

Rule 26(a)(1)(E).

The following are specific discovery methods available to a party:

• deposition on oral examination (Rule 30)

• deposition on written questions (Rule 31)

• interrogatories to parties (Rule 33)

• production of documents and things (Rule 34)

• permission to enter upon land and other property for inspection and 

other purposes (Rule 34)

• physical and mental examinations (Rule 35)

• requests for admission of fact (Rule 36)

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§ 3.1.M.2

A variety of motions may arise as a result of discovery proceedings, including 

motions to

• compel answers or other compliance with discovery rules

• obtain protective orders against undue harassment, unreasonable 

demands, or disclosure of confidential or protected information

• obtain additional time to comply with discovery requests

• terminate a deposition

• pose objections to written interrogatories or other discovery requests

• impose sanctions for failure to comply with discovery requests.

Some district judges handle discovery motions by telephone. In other courts, 

all motions pertaining to discovery are referred to a magistrate judge, who is 

then responsible for overseeing discovery procedures and ruling on discovery 

motions. The magistrate judge’s orders may be appealed to the district judge.

For discussion of the special problems posed by discovery of electronically 

stored information, see Managing Discovery of Electronic Information: A Pocket 

Guide for Judges (Federal Judicial Center, 3d ed. 2017), Technology-Assisted Review 

for Discovery Requests: A Pocket Guide for Judges (Federal Judicial Center 2017), 

and Criminal e-Discovery: A Pocket Guide for Judges (Federal Judicial Center 2015).

2. Summary Judgment and Amended Pleadings Motions

During discovery or after its completion, other motions may be filed. These tend 

to fall into three categories:

1. Motions for summary judgment as to some or all of the issues raised in 

the case on the grounds that there is no genuine dispute as to any material fact (Rule 56)

2. Motions to amend pleadings or to add or remove parties (Rule 15)

3. Motions to exclude or limit the introduction of scientific or other evidence that fails to meet the standards of the Federal Rules of Evidence

Such motions usually arise out of information the moving party obtains 

during discovery. They are processed in the same manner as other motions.

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N. Final Pretrial Conference 

The final pretrial conference is governed by Federal Rule of Civil Procedure 16 

and is intended to simplify the subsequent trial. Whether to hold a conference in 

a specific case is up to the judge, and the practice varies substantially throughout 

the federal judiciary. Many judges hold pretrial conferences routinely in every 

case; others hold conferences only when requested by counsel or on their own 

order when a case seems likely to proceed to trial.

During the conference, the judge and counsel may consider any “matters 

that may aid in the disposition of the action.” The following matters are most 

commonly considered:

• simplification of the issues

• necessary or desirable amendments to the pleadings

• the avoidance of unnecessary evidence at trial by obtaining admissions 

of uncontested facts

• limiting the number of expert witnesses

• limiting the time for each side to present its case

• referring issues to a special master, court-appointed expert, or other 

judicial adjunct

• exchanging lists of witnesses

• the marking of exhibits

• final discovery procedures

• using procedures that might resolve the case through settlement

• ruling on some, if not all, evidentiary objections to exhibits

O. Pretrial Orders 

In civil cases other than those involving simple issues of law or fact, Federal Rule 

of Civil Procedure 16 requires a scheduling order (within 120 days of filing) and 

specifies matters to be discussed at any pretrial conference held pursuant to the 

rule, followed by a pretrial order. Almost all district courts have adopted a form 

for the pretrial order. Usually the court requires the pretrial order to contain a 

concise summary of disputed issues of fact and law, a succinct statement of the 

position of each party, and a list of the witnesses and documents expected to be 

introduced at trial. In some districts, the final pretrial order must be presented to 

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§ 3.1.Q

the court at least twenty-four hours before the face-to-face pretrial conference, 

which is held with all lawyers and the judge. Other courts require only that 

counsel bring the pretrial order with them to the conference.

Most judges consider a properly prepared pretrial order essential to the 

orderly and efficient trial of a complicated case. In simpler cases, judges may 

require counsel to prepare only a list of witnesses and exhibits. An individual 

judge may want the lawyers to incorporate something other than what the local 

rules require.

P. Sanctions 

Provisions of Rules 11, 16, and 37 of the Federal Rules of Civil Procedure authorize 

the judge to impose sanctions on attorneys or parties or both if, for example, 

papers filed are not well grounded in fact and supported by a reasonable argument 

of law. Judges differ in their propensity to impose sanctions and in their view of 

the proper severity of sanctions. You should be familiar with the rules regarding 

sanctions and with the jurisprudence of the circuit court of appeals concerning 

the rules’ interpretation and application.

Q. Trial 

Law clerks often do not attend trials because they are engaged in other activities 

relating to the case or in other matters that require their attention. However, you 

may be called on to attend a trial and perform one or more of the following duties:

• assist in jury selection (see section 4.3.D for more information on jury 

selection and management)

• check the case file (or online document management systems) before 

trial to ensure that the judge is aware of all necessary documents and 

submissions

• serve as court crier

• act as a messenger for the judge

• take notes of the testimony

• research matters that arise during the course of the trial

• assist in the preparation of jury instructions

• in nonjury cases, assist in drafting findings of fact and conclusions of law

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Trials offer valuable experience for law clerks, and most judges encourage 

their clerks to attend interesting and skillfully presented trials when this does not 

interfere with the clerks’ other responsibilities. A convenient alternative is for 

the court to have an audio connection from the courtroom microphones to a law 

clerk’s office so the law clerk can listen when time is available.

R. Posttrial Motions and Enforcement of Judgments 

Most posttrial motions involve attacks on the verdict or the judgment and are 

governed by specific provisions in the Federal Rules of Civil Procedure. Included 

are the following:

• motions for a new trial (Rule 59)

• motions to alter or amend a judgment (Rule 59(e))

• renewal of motions for judgment after trial (Rule 50(b))

• motions for attorney fees when authorized by statute or rule

• motions for relief from a judgment on the ground of a clerical mistake 

(Rule 60(a)) or the following grounds under Rule 60(b): inadvertence, 

surprise, excusable neglect, newly discovered evidence, fraud, void judgment, or satisfaction, release, or discharge

These motions are processed like pretrial motions, but your judge may prefer 

to handle them without oral argument because of familiarity with the issue from 

earlier proceedings.

The procedures for execution and for supplementary proceedings in aid of 

judgment and execution are generally those of the state in which the court sits. 

Fed. R. Civ. P. 69. The most common procedures are execution, attachment, garnishment, sequestration, proceedings against sureties, and contempt. During the 

course of these proceedings the judge may be called on to conduct evidentiary 

hearings, rule on motions, and supervise discovery in the same manner as during 

the original litigation on the merits.

S. Appeals from Decisions of Administrative Agencies 

Some districts are presented with a large numbers of appeals from the decisions 

of administrative agencies and have created special procedures to handle them. 

One example is a petition for review of adverse decisions of the Social Security 

Administration (SSA). Some district judges refer these to magistrate judges. 

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§ 3.2.A

Others handle these cases themselves with the assistance of their law clerks. 

District court review is statutorily limited to a deferential examination of the 

record to determine whether adequate procedures were followed, whether the SSA 

relied on correct legal standards, and whether substantial evidence supports the 

decision of an administrative-law judge. Most districts have a general procedural 

order for the review procedure in such cases. This order requires the assistant 

U.S. attorney to file a motion for summary judgment to affirm the SSA’s decision. 

The claimant may file a reply brief within a period fixed by the local rules, and 

the matter is then automatically taken under submission without oral argument, 

unless the judge orders otherwise. Once the matter is under submission, the law 

clerk typically prepares a draft order or opinion affirming the SSA’s decision 

(the most common result because of the limited scope of review), reversing it, or 

remanding it either for a new hearing (because of a procedural or legal error) or 

to take new evidence. You should obtain sample opinions rendered by the judge 

in other Social Security cases and use them as models.

  

§ 3.2 The Criminal Action 

In federal law there are no common-law crimes, only statutory offenses. Most 

federal crimes are defined in Titles 18 and 21 of the U.S. Code, but some criminal 

penalties are set forth in other statutes. The procedure in criminal cases is 

governed by the Federal Rules of Criminal Procedure; misdemeanor cases 

are governed by Federal Rule of Criminal Procedure 58. Much of law clerks’ 

involvement in criminal cases is similar to their responsibilities in civil cases.

The following materials outline the major stages in a criminal case. This is 

only a generalization to aid in understanding the process. Individual cases may 

proceed differently, and cases can terminate at various stages, such as when 

the defendant enters a guilty plea, the court grants a motion to dismiss the 

indictment, or the jury finds the defendant not guilty. See the Benchbook for U.S. 

District Court Judges (Federal Judicial Center, 6th ed. 2013) for more information 

on criminal proceedings.

A. Proceedings Before a Magistrate Judge 

A criminal case may begin in any of the following ways:

• arrest without warrant followed by the filing of a complaint (Fed. R. 

Crim. P. 3); appearance before a magistrate judge (Fed. R. Crim. P. 5); 

commitment or release on bail (18  U.S.C. §§  3141–3151); preliminary 

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hearing before a magistrate judge (Fed. R. Crim. P. 5.1); and grand jury 

presentment (Fed. R. Crim. P. 6)

• arrest on warrant issued upon a complaint (Fed. R. Crim. P. 4) followed 

by appearance before a magistrate judge; commitment or release on bail; 

preliminary hearing before a magistrate judge; and grand jury indictment (Fed. R. Crim. P. 6)

• arrest on warrant issued upon indictment (Fed. R. Crim. P. 9) followed 

by appearance before a magistrate judge and commitment or release 

on bail

• issuance of summons (Fed. R. Crim. P. 9), which directs the defendant to 

appear without being arrested

Upon arrest, a defendant must be brought before a magistrate judge “without 

unnecessary delay.” Federal Rule of Criminal Procedure 5 requires that at the 

initial appearance before the magistrate judge, the defendant must be advised of 

the following:

• the charges contained in the complaint or the indictment and the content 

of any affidavits filed with the complaint

• the right to retain counsel

• the right to have counsel appointed if the defendant is financially unable 

to retain counsel

• the right to a preliminary hearing

• the fact that the defendant is not required to make a statement and that 

any statement made may be used against the defendant

The magistrate judge may take the following additional actions:

• if the defendant cannot afford to retain counsel, appointing counsel 

unless the defendant declines the assistance of counsel (18  U.S.C. 

§ 3006A(b))

• determining bail or other conditions for release (18 U.S.C. § 3142)

• if the defendant is unable to post bail or meet the conditions for release 

established by the magistrate judge, committing the defendant to custody 

(18 U.S.C. § 3142(e))

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B. Indictment 

The Fifth Amendment guarantees a person charged with a serious federal crime 

the right to have the charge presented to a grand jury.

District courts empanel grand juries as needed. A grand jury consists of 

sixteen to twenty-three members, selected in accordance with the jury selection 

plan of the district court. Fed. R. Crim. P. 6. The jury continues to serve until discharged by the court, but it may not serve for more than eighteen months, unless 

the court determines that an extension is in the public interest, in which case the 

jury’s service can be extended up to six months more.

Rule 6(c) states that the court “shall appoint one of the jurors to be foreperson 

and another to be deputy foreperson.” The foreperson is responsible for recording 

the number of jurors concurring in the finding on each indictment and for filing 

that record with the clerk of court.

Grand jury proceedings are usually secret with limited exceptions, including 

disclosure authorized by the judge. Fed. R. Crim. P. 6(e). Government counsel, the 

witness, and necessary court reporters and interpreters may be present while evidence is being presented, but only the jurors themselves may be present during 

deliberation and voting. Grand jury indictments are presented to a judge or 

magistrate judge in open court.

A defendant who is entitled to be prosecuted by indictment may waive that 

right in open court. In that case, prosecution is by information. Fed. R. Crim. P. 7(b).

C. Arraignment and Plea 

The purpose of an arraignment is to ensure that the defendant is informed of 

the charges and has a chance to enter a plea. The defendant may plead guilty, 

not guilty, or nolo contendere. The court may refuse to accept a plea of guilty 

or nolo contendere. If the defendant pleads guilty or nolo contendere, the court 

must be satisfied that the defendant understands the nature of the charge and the 

maximum and minimum mandatory penalties, and must determine that the plea 

is made voluntarily. Fed. R. Crim. P. 11(c) and (d).

At the time of arraignment, the defendant will usually plead not guilty. This 

gives counsel time to research the legal rules governing the charges, investigate 

the evidence against the client, ascertain whether any of the evidence may 

be suppressed, and determine whether a plea bargain is desirable or possible. 

Thereafter, a plea of guilty or nolo contendere is frequently entered as a result 

of plea bargaining between the prosecution and the defense. Plea bargaining is a 

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process through which the defendant agrees to enter a guilty plea on the condition 

that the prosecution reduce the charge, dismiss some of a group of multiple 

charges, or grant some other concession. When the defendant pleads guilty, the 

judge must inquire of the defendant whether there has been any agreement or 

plea bargain, and if so, the understanding or agreement must be fully set forth in 

the record. Fed. R. Crim. P. 11(b).

If the defendant pleads not guilty and does not thereafter change the plea, 

the case proceeds to trial.

D. The Speedy Trial Act 

The Speedy Trial Act of 1974 (18 U.S.C. §§ 3161–3174) has an important impact 

on proceedings in criminal cases. The Act requires the court “at the earliest 

practicable time . . . after consultation with the counsel for the defendant and 

the attorney for the Government” to set the case for trial “on a day certain, or 

list it for trial on a weekly or other short-term trial calendar.” 18 U.S.C. § 3161(a). 

Each district has adopted a plan for the disposition of criminal cases pursuant 

to the Act.

Under the Act, the prosecutor must file an information or indictment within 

thirty days of arrest or service of summons. 18 U.S.C. § 3161(b). An additional 

thirty days is allowed if no grand jury has met in the district within the first 

thirty-day period. That begins an inexorable movement toward trial. Further 

time limits are prescribed in § 3161, along with exclusions for delays that will not 

violate speedy trial requirements.

Because criminal trials must take place within the Act’s time limits, criminal 

trials generally take precedence over civil cases. Judges and chambers staff must 

pay close attention to the time limits and exclusions when scheduling criminal 

cases. Failure to meet the prescribed time limits requires dismissal of the charges.

E. Pretrial Motions 

Motions are most frequently filed before trial for the following reasons:

• to challenge the sufficiency of the indictment or information, by way of 

a motion to dismiss

• to challenge the jurisdiction or venue

• to suppress evidence, usually on the ground that it was obtained in a 

manner that violated the defendant’s constitutional rights

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• to discover evidence

• to obtain release of the defendant on reduced bail or the defendant’s own 

recognizance while awaiting trial

In cases involving indigent defendants, motions or ex parte applications are 

often filed to request that specialized services such as psychiatric examinations, 

special investigations, or expert services be provided at the expense of the United 

States and to obtain the appointment of counsel if this has not already been done.

Motions are sometimes filed late in the proceedings. For example, a motion 

for severance of a trial from the trial of a codefendant may be filed three or four 

days before the pretrial conference, which may be set only a week or two before 

trial. The assistant U.S. attorney charged with the prosecution of the case may 

not respond until the pretrial conference. Therefore, when a motion is filed in a 

criminal case, it usually requires prompt attention, and often the law clerk will 

brief the judge orally or write a memo summarizing the motion and the law on the 

subject before the opposition papers are filed.

F. Discovery and Pretrial Hearing 

Traditionally, discovery in criminal cases has been extremely limited. However, 

Federal Rule of Criminal Procedure 16 permits the defendant to discover some of 

the evidentiary material in the government’s possession. If the defendant does 

seek discovery under Rule 16, the government is entitled to a limited amount of 

discovery in return. The matters that are subject to such discovery are set forth 

specifically in that rule. Moreover federal prosecutors are obliged under the U.S. 

Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), to disclose 

exculpatory matter to the defense, even in the absence of a defense request for 

such material. The Court held that not to do so would violate the defendant’s due 

process rights under the Fifth Amendment of the U.S. Constitution.

Many courts conduct a pretrial hearing to determine what motions will be 

filed, to simplify issues, and to expedite disclosure of the government’s evidence.

G. Trial and Posttrial Detention 

The jury in a criminal case consists of twelve jurors and as many alternates as the 

court thinks necessary. At trial, the jury is impaneled, evidence is presented, and 

the jury renders a verdict. If the verdict is guilty, the court must decide whether 

to alter the custody of the defendant pending sentencing and must set a date to 

impose sentence. If the defendant is not in custody, the judge usually inquires 

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whether the defendant should be at large on the same bond, pending imposition 

of sentence. A person found guilty and awaiting imposition of sentence must 

be detained unless the judge finds “by clear and convincing evidence that the 

person is not likely to flee or pose a danger to the safety of any other person or 

the community” if released. 18 U.S.C. § 3143(a). The judge usually orders a presentence investigation. The defendant is either notified to appear for sentencing 

on a fixed date or informed that the court will give notice by mail of the date the 

sentence is to be imposed.

H. Sentencing 

1. Sources

Sentencing and sentencing procedures in federal court are guided by four main 

sources: the statutory maximums and minimums prescribed for the offenses in 

Titles 18 and 21 and other sections of the U.S. Code; the Sentencing Reform Act 

of 1984 and various subsequent amending statutes; the federal Sentencing Guidelines that are set forth in the Guidelines Manual issued by the U.S. Sentencing 

Commission in keeping with the Sentencing Reform Act; and the Federal Rules of 

Criminal Procedure, especially Rule 32 (“Sentence and Judgment”) and Rule 35 

(“Correction or Reduction of Sentence”).

Since their inception in 1987, the Sentencing Guidelines were mandatory, with 

exceptions to a guideline sentence allowed only under limited circumstances. 

In 2005, however, the Supreme Court ruled that in order to avoid violating the 

Sixth Amendment, the provisions of the Sentencing Reform Act that made the 

Sentencing Guidelines mandatory must be excised. United States v. Booker, 

125 S. Ct. 738 (2005). Although the Sentencing Guidelines are now “advisory,” 

they must still be “considered” along with the other sentencing factors listed in 

18 U.S.C. § 3553(a). Courts must continue to calculate the guideline range, and 

determine whether a departure from that range may be warranted under the 

guidelines, before deciding whether other factors in § 3553(a) call for a different 

sentence. A sentence will be upheld if it is not “unreasonable” under an abuse-ofdiscretion standard.

Each judge’s chambers has a copy of the Sentencing Commission’s Guidelines 

Manual. Other instructional material that the Commission or the Federal Judicial 

Center may distribute should also be kept on hand and can be found on their 

respective websites.

The Sentencing Guidelines—strictly defined and identified as such in the 

Guidelines Manual—are used to calculate a defendant’s guideline sentencing 

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range. The Sentencing Reform Act also authorized the Commission to issue “policy 

statements” to explain the guidelines and their application. In its guidelines 

document, the Commission has also provided “commentary” and application 

notes, which further explain the guidelines and the Commission’s intent.

In keeping with the Sentencing Reform Act, the Sentencing Commission 

established numerous categories of offense conduct to which it assigned levels 

according to the seriousness of the offense. The levels are to be adjusted based 

on the particular characteristics of the offense (such as use of a weapon), so that 

the sentence reflects the “total offense conduct,” not simply the offense charged 

in the indictment. Also in keeping with the statute, the Commission established 

criminal history categories, based on the number and seriousness of a defendant’s 

prior offenses. A defendant’s sentencing range, in months, is based on the 

combination of offense level and criminal history category. However, if a statutory 

mandatory minimum sentence applies to an offense, and the guideline sentence 

is lower than the mandatory minimum, the mandatory minimum sentence must 

be used (subject to exceptions outlined in U.S.S.G. § 5C1.2). Similarly, a statutory 

maximum will limit a guideline sentence.

The applicable sentencing range may be adjusted up or down if “the court 

finds that there exists an aggravating or mitigating circumstance of a kind, or 

to a degree, that was not adequately taken into consideration by the Sentencing 

Commission in formulating the guidelines that should result in a sentence 

different from that described.” Circumstances that may warrant such a departure 

are set forth in several of the guidelines, policy statements, and application 

notes. A judge who departs from the sentence determined by the application of 

the guidelines must state “the specific reason” for not following the guidelines. 

18 U.S.C. § 3553(c).

Whether the judge decides to impose the applicable guideline sentence or 

depart from it, Booker requires the judge to also consider the other sentencing 

factors in § 3553(a). If circumstances warrant, the judge may impose a sentence 

that, subject to statutory minimums and maximums, is outside of the guideline 

range or is a guideline departure. A judge is required by § 3553(c) to “state in 

open court the reasons for  .  .  . imposition of the particular sentence.” Either 

the defendant or the government may appeal a sentence imposed as a result of 

an incorrect application of the guidelines, 18 U.S.C. § 3742(f), or, after Booker, 

a sentence that is alleged to be “unreasonable.” The sentence imposed will be 

the length of time actually to be served, except that fifty-four days of good time 

credit may be earned on a sentence greater than one year. The guidelines also tell 

how to determine the fine to be imposed in addition to any statutorily required 

restitution, and they indicate when probation or some other sentence instead of 

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incarceration may be imposed. Although the Sentencing Reform Act does not 

provide for parole, the sentence may include a term of supervised release to 

follow the prison sentence.

2. Sentencing Procedures

In most courts, the basic document judges use to determine a sentence is the 

presentence report prepared by a probation officer. Federal Rule of Criminal 

Procedure 32(d) prescribes the contents of the presentence report. The report 

presents the facts of the case relevant to sentencing, including information 

relevant to the factors in 18 U.S.C. § 3553(a); explains the results of the officer’s 

application of the sentencing guidelines; and provides the officer’s confidential 

sentencing recommendation. It may contain an addendum listing statements in 

the report to which one of the parties objects and also the officer’s comments on 

those objections. Officers use a standard form for the presentence report, which is 

available from the Administrative Office on JNet (http://jnet.ao.dcn/resources/

forms/worksheet-presentence-report).

Federal Rule of Criminal Procedure 32(e)(2) requires disclosure of the 

presentence report to the defendant at least thirty-five days before sentencing, 

unless the defendant waives that period. This early disclosure allows the attorneys 

to review the report and discuss their objections with the probation officer. The 

probation officer can revise the report to take into account legitimate objections 

and to summarize and comment on unresolved objections in an addendum to the 

revised presentence report, as mentioned earlier. Some courts have adopted local 

rules that do not involve the probation officer so extensively in the fact-finding 

process. They direct the parties to file a motion or memorandum discussing 

unresolved issues directly with the judge.

If there are disputed factual issues that could affect the sentence, the judge may 

find it necessary to hold an evidentiary hearing before imposing a sentence. (The 

Federal Rules of Evidence do not apply at the sentencing hearing.) Additionally, 

if there is a dispute concerning the correct interpretation of the guidelines, the 

court may wish to hear argument from the attorneys. After resolving the disputes, 

the judge imposes sentence. Title 18  U.S.C. §  3553(c) requires the court to state 

the reasons for the sentence on the record in order to facilitate appellate review. 

The statement of reasons may also be contained in the order of judgment and 

commitment (AO Form 245B, rev’d Sept. 2011, http://jnet.ao.dcn/resources/forms/

judgment-criminal-case), which provides the details of a defendant’s conviction 

and sentencing and the findings of the court. Both must be furnished to the 

probation office and to the Sentencing Commission and, if the sentence includes 

imprisonment, to the Bureau of Prisons (BOP). The Sentencing Commission 

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uses the information for statistical analysis and its ongoing research on the 

administration of the Sentencing Guidelines. For sentencing after Booker, the 

information is also used to analyze sentences imposed outside of the now-advisory 

guidelines. The Bureau of Prisons uses the judgment and commitment order, along 

with the presentence report, in its classification and designation decisions, and it is 

particularly important for the BOP to receive the statement of reasons in case the 

court has made findings that differ from the information in the presentence report.

3. Appellate Review

Either the defendant or the government may appeal the sentence on the grounds 

that it was imposed in violation of law or represents an incorrect application of 

the guidelines. Also, guideline departures are appealable by the defendant, if 

the sentence is above the guidelines, or by the government, if it is below. See 

18 U.S.C. § 3742(a) & (b). Following Booker, a sentence may also be appealed as 

“unreasonable.” If the appeals court reverses the sentence, the case is remanded 

to the district court for resentencing, unless the same sentence would have been 

imposed absent any invalid factors.

4. Role of Law Clerks

District judges vary on what they require of their law clerks when it comes to 

sentencing. Law clerks who are asked to review the presentence report to assess the 

correctness of the probation officer’s guidelines application will have to become 

thoroughly familiar with the Commission’s Guidelines Manual and guidelines 

case law in their circuit. The guidelines, policy statements, and commentary can 

be quite complex and sometimes yield more than one plausible interpretation. 

Simply consulting the guideline for the type of offense in question will rarely 

produce a correct offense-level determination. A correct determination will also 

reflect, for example, how much of the offender’s actual conduct should be taken 

into account in applying the specific offense characteristics. You must be familiar 

with the entire structure of the guidelines in order to apply them to any particular 

case. Sample sentencing worksheets prepared by the Commission are found as 

an appendix in the Federal Sentencing Guidelines Manual, on the Sentencing 

Commission’s website at http://www.ussc.gov/sites/default/files/pdf/training/

online-learning-center/supporting-materials/Worksheets_for_Individuals.pdf, 

as well as distributed by West Publishing Company. You also should pay special 

attention to the effective dates for the relevant legislative and guideline provisions 

to determine which provisions apply to the offense in question.

Some judges may wish their law clerks to draft a tentative statement of 

reasons for the sentence. Bear in mind that the sentence, and thus the statement 

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of reasons, may depend on the resolution of disputed issues of law or fact; these 

issues may appear in the addendum to the presentence report or may be raised at 

the sentencing hearing.

I. Posttrial Motions 

The usual posttrial motions in a criminal case are for a new trial, for arrest of 

judgment, or to correct or reduce the sentence. Federal Rule of Criminal Procedure 

35 limits the judge’s authority to correct or reduce the sentence. Posttrial motions 

are generally processed in the same manner as other motions. Motions under 

28 U.S.C. § 2255 are discussed in the next subsection.

J. Handling Prisoner Petitions 

Federal courts receive many petitions from prison inmates requesting relief 

from their sentences or protesting their conditions of confinement. The majority 

of petitions are from state prisoners alleging state officials’ violation of the 

prisoners’ federally protected procedural rights and seeking release from state 

custody under the federal habeas corpus act, 28 U.S.C. § 2254. These are to be 

distinguished from petitions seeking damages or injunctive relief for violation of 

a prisoner’s civil rights under 42 U.S.C. § 1983. Both § 2254 and § 1983 actions are 

civil proceedings.

Federal prisoners may seek release from custody under 28  U.S.C. §  2255. 

Although §  2255 is similar to habeas corpus, and is also a civil proceeding, it 

requires the petition to be filed in the sentencing court rather than in the 

court having jurisdiction over the place of incarceration (a §  2255 proceeding 

is considered a continuation of the original criminal action). This eliminates 

problems of transferring case files and usually permits ready access to witnesses 

and other evidence.

Prisoner petitions are frequently handwritten and poorly drafted. As a result, 

they may be difficult to read and understand. The rules governing cases under 

§ 2254 and § 2255 may be found in the United States Code Annotated following the 

statutory sections. Pro se petitioners in such cases must complete a standard form 

in order to make the alleged facts and the nature of the claim more intelligible. 

The forms assist prisoners and the court by ensuring that critical information is 

provided in a coherent format. In a further attempt to process the large volume of 

prisoner petitions, some courts have created the position of motions law clerk or 

pro se law clerk. Some district courts also have standard forms for use in pro se 

petitions based on § 1983. (Additional discussion of prisoner correspondence can 

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be found in section 4.1.C.) Judges can decide many of the postconviction petitions 

by examining the papers, but if material factual issues are raised, the judge must 

conduct an evidentiary hearing.

  

§ 3.3 Bankruptcy Proceedings 

A. General Structure and Jurisdiction 

Article I, Section 8, of the U.S. Constitution authorizes Congress to enact “uniform Laws on the subject of Bankruptcies throughout the United States.” The primary source of such law is Title 11 of the U.S. Code, commonly referred to as the 

Bankruptcy Code. In addition, Title 28, the Judicial Code, contains provisions on 

bankruptcy judges and bankruptcy courts, jurisdiction and venue, appeals, the 

U.S. trustee system, and bankruptcy fees.

The district court in which a bankruptcy case is commenced has original and 

exclusive jurisdiction of the bankruptcy case and of all property of the debtor, 

wherever located, as of the commencement of the case. 28 U.S.C. § 1334(a),(e). 

The district court also has original but not exclusive jurisdiction of all civil 

proceedings “arising under Title 11” or “arising in” or “related to” cases under Title 

11. 28 U.S.C. § 1334(b). A “case” refers to the entire matter relating to a particular 

debtor. A “proceeding” is any disputed matter arising in the course of a case. Thus 

a single case may involve many proceedings.

Each judicial district has a bankruptcy court, which constitutes a unit of the 

district court. 28 U.S.C. § 151. The district court may refer all bankruptcy cases and 

proceedings (28 U.S.C. § 157(a)), except those involving personal injury tort and 

wrongful death claims (28 U.S.C. § 157(b)(5)), to the bankruptcy court. Currently, 

each district court has a general order referring all eligible bankruptcy cases 

and proceedings to the bankruptcy court. The district court may withdraw the 

reference of a case or proceeding, in whole or in part, for cause, and is required to 

do so under certain limited circumstances. 28 U.S.C. § 157(d).

Bankruptcy judges are appointed by the court of appeals for a term of 

fourteen years and may be removed from office by the circuit judicial council only 

for incompetence, misconduct, neglect of duty, or physical or mental disability. 

They may be reappointed for additional terms. If the district has more than one 

bankruptcy judge, judges of the district court designate a chief bankruptcy judge. 

Each bankruptcy judge is entitled to a staff consisting of either a judicial assistant 

and a law clerk, or two law clerks. 28 U.S.C. §§ 152, 154, 156.

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In almost all districts, the bankruptcy court has its own clerk of court. In a few 

districts, the clerk of the district court also serves as clerk of the bankruptcy court. 

The functions of the bankruptcy clerk’s office are similar to those of the clerk of 

the district court. As a practical matter, bankruptcy cases and proceedings are 

filed in the bankruptcy court clerk’s office, not in the district court clerk’s office. 

Most bankruptcy courts permit or require documents to be filed electronically, 

except those filed by pro se debtors. 28 U.S.C. § 156.

B. The Authority of the Bankruptcy Judge, Core Versus 

Noncore Proceedings, and Jury Trials 

The Judicial Code draws an important distinction between core and noncore 

bankruptcy proceedings. Core proceedings are those “arising under Title 11” 

or “arising in a case,” whereas noncore proceedings are those that are “related 

to a case.” 28 U.S.C. § 157(b)(2) contains a nonexclusive list of sixteen types of 

proceedings that are core. The bankruptcy judge has an independent duty to 

determine if a proceeding is core or noncore, which can be a complex matter. 

A helpful discussion is found in the treatise Collier on Bankruptcy (16th rev. 

ed. 2009).

The bankruptcy judge may “hear and determine . . . and may enter appropriate 

orders and judgments” relating to cases and core proceedings arising under Title 

11 referred to that judge. 28 U.S.C. § 157(b)(1). A bankruptcy judge may hear a 

proceeding that is not a core proceeding but can only submit proposed findings 

of fact and conclusions of law to the district court. 28 U.S.C. § 157(c)(1). After 

considering the bankruptcy judge’s proposed findings and conclusions, and after 

reviewing de novo those matters to which any party has timely and specifically 

objected, the district judge enters the final judgment. 28 U.S.C. § 157.

Stern v. Marshall, 131 S. Ct. 2594 (2011), introduced the possibility that a 

proceeding defined as core under the Bankruptcy Code (“counterclaims by 

the estate against persons filing claims against the estate”) may nevertheless 

lie beyond the constitutional power of a bankruptcy judge to adjudicate finally. 

The Court expressly stated that its decision should be interpreted narrowly and 

that Congress had exceeded constitutional limitations “in one isolated respect.” 

Nonetheless, owing to broad language in Stern, its implications seemed to be 

uncertain to some at the time.

The Court tried to clarify its ruling in Stern when it decided Executive 

Benefits Insurance Agency v. Arkison, 134 S. Ct. 2165 (2014). There the Court held 

that because of the severability provision of the Federal Judgeship Act of 1984, 

Stern claims—that is, claims that were statutorily defined as core claims, but 

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which the Court found bankruptcy courts could not finally adjudicate without 

violating Article III of the Constitution—could be adjudicated in the same 

manner as noncore claims under § 157(c)(1) of the statute. Hence Stern claims 

could be treated as noncore claims, for which the bankruptcy court could only 

issue proposed findings of fact and conclusions of law that the district court could 

review de novo. If the right to jury trial applies to a proceeding the bankruptcy 

judge is authorized to hear, the bankruptcy judge may conduct the jury trial if 

specially designated to do so by the district court and with the express consent 

of all the parties. 28 U.S.C. § 157(e). Jury trials in bankruptcy court, however, are 

extremely rare. When they do occur, the bankruptcy court works closely with the 

district court, since it has the necessary jury procedures in place and may need 

to provide a courtroom equipped with a jury box.

C. Relationship to Other Courts 

Because federal jurisdiction over bankruptcy proceedings is nonexclusive, other 

federal and state courts are not deprived of jurisdiction over matters to which 

bankruptcy jurisdiction extends. However, bankruptcy jurisdiction, even when 

nonexclusive, is paramount. Litigation in other courts is generally automatically 

stayed by the filing of a bankruptcy petition under 11 U.S.C. § 362, or may be 

enjoined by an affirmative injunction issued under 11 U.S.C. § 105(a). Moreover, 

actions in other courts may be removed to the district court sitting in bankruptcy. 

28 U.S.C. § 1452.

It is frequently desirable to permit litigation to proceed elsewhere, even 

though the bankruptcy court has jurisdiction to hear it. Thus, the district court 

or the bankruptcy court may for various reasons choose (or may occasionally be 

required) to abstain from hearing a particular proceeding (28 U.S.C. § 1334(c)), 

may remand an action removed to it (28  U.S.C. §  1452), or may authorize an 

action to be filed originally in some other court.

D. Appeals 

Law clerks in the bankruptcy courts, district courts, and courts of appeals may 

face issues related to bankruptcy appeals, so all need to be familiar with the 

structure of the bankruptcy appellate system.

Appeals from final judgments, orders, and decrees of the bankruptcy court 

are ordinarily taken to the district court or to the bankruptcy appellate panel 

(BAP), if one has been established in the circuit. In the district court, a single 

judge decides the appeal; in the BAP, a panel of three bankruptcy judges does 

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so, sometimes with and sometimes without oral argument. The district court 

and BAP also have discretion to review interlocutory appeals. Further appeals 

from district court and BAP decisions are taken to the circuit court of appeals. 

28 U.S.C. § 158.

In addition, 28  U.S.C. §  158 provides that the courts of appeals may hear 

appeals from final and interlocutory orders directly from bankruptcy courts 

under certain circumstances, bypassing review by a district court or BAP. The 

availability of this appellate route requires a certification by the bankruptcy 

court, district court, or bankruptcy appellate panel or a joint certification by all 

the appellants and appellees that one of the following three conditions is met:

1. The judgment, order, or decree involves a question of law for which there 

is no controlling authority by the court of appeals or the Supreme Court, 

or it involves a matter of public importance.

2. The judgment, order, or decree involves a question of law requiring resolution of conflicting decisions.

3. An immediate appeal may materially advance the progress of the case 

or proceeding.

Upon certification of a direct appeal, the court of appeals has discretion 

whether it will accept the appeal.

E. Chapters of the Bankruptcy Code 

Chapters 1, 3, and 5 of the Bankruptcy Code cover issues that are relevant to 

all bankruptcy cases. Chapter 1 defines who may file bankruptcy, includes an 

important general provision about the power of the court, and contains definitions, 

rules of construction, and other general rules. Chapter 3 describes how a case is 

begun (voluntary and involuntary petitions); deals with officers and their compensation; and contains various administrative provisions and powers, including 

the automatic stay (§ 362), the use, sale, and lease of property (§ 363), and the 

assumption or rejection of executory contracts (§ 365). Chapter 5 contains much 

of the substantive bankruptcy law concerning creditors, debtors, and the estate. 

The provisions found in Chapters 7, 9, 11, 12, 13, and 15 of the code apply only to 

cases brought under each particular chapter, with one exception. Section 901 of 

Chapter 9 makes some of the Chapter 11 provisions applicable to cases filed under 

Chapter 9. (Chapters 2, 4, 6, 8, and 10 do not exist.)

A case in bankruptcy court usually begins with the debtor filing a petition 

under a specific chapter of the code. Creditors may initiate involuntary cases 

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§ 3.3.E

against debtors, but only under Chapters 7 and 11. With some exceptions, cases 

can be converted from one chapter to another.

Under Chapter 7 (entitled “Liquidation”), which is available to individuals, 

partnerships, and corporations, a trustee is appointed to liquidate (i.e., reduce 

to cash) the debtor’s property and make distributions to creditors, subject to 

an individual debtor’s right to retain certain exempt property and the rights of 

secured creditors. In most cases, the debtor’s assets are not actually liquidated 

because all of the debtor’s assets are exempt. If an individual debtor has complied 

with applicable law, the debtor will receive a discharge within a few months 

after the petition is filed that releases the debtor from personal liability for the 

dischargeable debts. A creditor may object to the discharge of the debtor or to 

the discharge of a particular debt. The Bankruptcy Code requires application of a 

“means” test to determine whether individual consumer debtors qualify for relief 

under Chapter 7; if the debtor’s income exceeds certain thresholds, the debtor 

may not be eligible.

Chapter 9 (“Debts of Municipalities”) gives municipalities and smaller 

government entities such as water districts a breathing spell from debt collection 

efforts so that they can work out a repayment plan for creditors. It is invoked 

relatively infrequently.

Chapter 11 (“Reorganization”) permits a business to restructure its finances so 

it can continue to operate. A trustee usually is not appointed in a Chapter 11 case; 

instead, the debtor is allowed to remain in possession (as a debtor-in-possession, 

or DIP) of its property. A plan for reorganization is developed that permits a 

debtor to discharge some of its debt and to, for example, rescale its operations, 

terminate burdensome contracts and leases, and recover assets. The code 

requires full disclosure to interested parties and confirmation of the plan by the 

court. As an alternative to reorganization, the code permits liquidating plans so 

as to maximize distributions to creditors. Individuals may also file a Chapter 11 

bankruptcy case, but this is not common.

Chapter 12 (“Adjustment of Debts of a Family Farmer or Fisherman with 

Regular Annual Income”) is structured like a Chapter 13 case in that the family 

farmer or fisherman files a plan to repay debts over a period of time—no more than 

three years, unless the court approves a longer period, not to exceed five years—

and receives a discharge after all payments are made. The farmer or fisherman 

can continue to operate the business while the payments are being made.

Chapter 13 (“Adjustment of Debts of an Individual with Regular Income”) is 

designed for individuals or married couples with regular income whose debts do 

not exceed specified amounts. The debtor files a plan in which the debtor agrees 

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to pay a portion of future earnings to a Chapter 13 trustee, who makes payments to 

creditors. Usually over three to five years, the debtor makes regular payments on 

all secured debts and pays a portion of unsecured debts. In exchange, the debtor 

gets a discharge or release of personal liability from most debts. The debtor’s 

incentive to propose a plan rather than use Chapter 7 stems from the ability of the 

debtor to retain all property rather than turn it over to a trustee for liquidation 

and from the somewhat broader discharge provisions.

The purpose of Chapter 15 (“Ancillary and Other Cross-Border Cases”) is to 

provide effective mechanisms for dealing with cases of cross-border insolvency.

F. Bankruptcy Procedure 

1. Rules and Forms

The Federal Rules of Bankruptcy Procedure contain detailed procedures for 

bankruptcy cases as well as for the proceedings that are connected to them. 

These must be considered in tandem with the Bankruptcy Code, which also sets 

forth some procedural requirements. The rules are organized into parts that 

correspond to various aspects of bankruptcy procedure.

Compared to practice in other areas of law, bankruptcy practice relies to a 

greater degree on standard forms. Bankruptcy Rule 9009 states that the official 

bankruptcy forms prescribed by the Judicial Conference must be used to file and 

take action in bankruptcy cases, although some variation in format is allowed. 

The rule also provides that the director of the Administrative Office may 

prescribe additional forms for use under the code, although it does not make use 

of these forms mandatory. The official forms and director’s procedural forms are 

published as an appendix to the Federal Rules of Bankruptcy Procedure.

In addition to the Federal Rules of Bankruptcy Procedure, each judicial 

district may adopt its own set of local bankruptcy rules to facilitate administration 

of bankruptcy cases. Local bankruptcy rules must be consistent with the federal 

rules, but they may add additional requirements.

2. Applications and Motions

Federal Rule of Bankruptcy Procedure 9013 provides that to request an order 

from a judge, a motion must be filed, unless the rules authorize the request to 

be made by application. The rules authorize the use of an application in only 

a few situations that generally concern matters for which there is no apparent 

adverse party at the time of filing. For example, requests for the employment of 

professional persons and for their compensation are made by application. The 

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procedural rules governing motions practice are found primarily in parts VII 

and IX of the Federal Rules of Bankruptcy Procedure. If there is opposition to 

an application or motion (outside the context of an adversary proceeding), the 

resulting procedure is a contested matter governed by Bankruptcy Rule 9014. See 

below concerning adversary proceedings and contested matters.

Compared to other federal judges, bankruptcy judges often handle very large 

numbers of unrelated matters in one session of court and may group them by 

the relief being sought and whether or not an evidentiary hearing is necessary. 

Judges will differ in the type of matters they hear and how they calendar and 

otherwise manage them, but they all are likely to call on their law clerks to assist 

them in preparing for potential hearings and in drafting opinions.

3. Contested Matters and Adversary Proceedings

Procedurally, proceedings to resolve disputes in bankruptcy cases fall into two 

categories: contested matters and adversary proceedings. The Bankruptcy Rules 

establish the types of matters that fall into each category and the procedures that 

govern each.

Adversary proceedings are literally civil lawsuits within bankruptcy cases. 

They are initiated by complaint and require a filing fee, case number, and docket 

sheet separate from the main bankruptcy case, and they are conducted much 

like a civil case in the district court. Bankruptcy Rule 7001 sets out the ten types 

of actions that must be brought as an adversary proceeding. See also Fed. R. 

Bankr. P. 3007 & 9025. These include actions for money judgments, actions to 

determine the validity, extent, or priority of a lien or other interest in property, 

objections to discharge, dischargeability actions, requests for injunctions unless 

provided for by the plan, and matters removed from other state or federal courts. 

Adversary proceedings and motions filed within them are governed by part VII of 

the Bankruptcy Rules, which incorporates by reference most of the Federal Rules 

of Civil Procedure, either verbatim or with modification.

Whenever there is an actual dispute other than an adversary proceeding 

before the bankruptcy court, the litigation to resolve that dispute is a contested 

matter. Additionally, specific Bankruptcy Rules expressly provide that requests 

for certain types of relief, whether opposed or not, are contested matters. See, 

e.g., Rules 1017(d) (dismissal, conversion, or suspension of a case); 3020(b)(1) 

(objection to the confirmation of a Chapter 9 or Chapter 11 plan); 4001 (relief from 

the automatic stay, use of cash collateral, obtaining credit); 4003(d) (avoidance 

by debtor of lien or other transfer of exempt property); and 6006(a) (assuming, 

rejecting, or assigning an executory contract or unexpired lease). Contested 

matters are governed by Bankruptcy Rule 9014, which provides that part VII 

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Rules 7021, 7025, 7026, 7028–7037, 7041, 7042, 7052, 7054–7056, 7062, 7064, 7069, 

and 7071, which incorporate certain civil rules or modifications thereof, generally 

apply in contested matters. The court may order, as it deems appropriate, that 

one or more of these rules will not apply or that other part VII rules will apply. 

Contested matters do not have a separate case number or docket sheet. Only 

certain contested matters, such as motions for relief from the automatic stay, 

require an additional filing fee.

The functions of the bankruptcy judges’ law clerks in adversary proceedings 

(and to varying extents in contested matters) are essentially the same as those of 

district court law clerks in civil cases. See section 3.1.

G. U.S. Trustees and Private Trustees 

The U.S. Trustee Program is part of the federal government’s Department of 

Justice, not a part of the courts. It was established to handle the administrative 

functions of bankruptcy cases and to ensure the integrity of the bankruptcy 

system across the nation. The program operates with twenty-one regional offices 

and ninety-four field offices, which are headed by U.S. trustees and assistant U.S. 

trustees, respectively. See 28  U.S.C. §§  581–589b. In the six judicial districts in 

Alabama and North Carolina, the Bankruptcy Administrator Program, rather 

than the U.S. Trustee Program, handles the administrative functions. See § 302(d)

(3)(1) of the Bankruptcy Judges, United States Trustees, and Family Farmer Act 

of 1986, P.L. 99-554, 100 Stat. 3119, 3123, and § 317(b) of the Federal Courts Study 

Committee Implementation Act of 1990.

The functions of the U.S. trustees are enumerated in 28 U.S.C. § 581(a), and 

primarily include (1) appointing and supervising the private trustees who collect and 

disburse funds to creditors in Chapter 7, 12, and 13 cases; (2) ensuring compliance 

with the Bankruptcy Code with respect to information provided in schedules, 

disclosure statements, reorganization plans, and other filings; (3) reviewing fee 

applications of professionals, such as attorneys and accountants, who serve in 

Chapter 11 reorganization cases; and (4) monitoring bankruptcy cases for fraud and 

referring criminal matters to the U.S. attorney for prosecution. Trustees do not have 

independent enforcement powers; rather, they must request the court to rule on 

matters of administration for which there is no voluntary compliance.

The U.S. trustee is responsible for establishing a panel of private trustees to 

serve in Chapter 7 cases. When a bankruptcy petition is filed under Chapter 7, the 

U.S. trustee appoints a disinterested person from this panel to serve as interim 

trustee. At the first meeting of creditors, the creditors may elect another person 

as trustee, although such elections are rare. The U.S. trustee is also responsible 

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for appointing one or more “standing” trustees to administer all Chapter 12 and 

13 cases filed in a geographic region. In Chapter 11 cases, no trustee is appointed 

unless the court orders the appointment after notice and a hearing. If the court 

orders an appointment, the U.S. trustee designates the person who will serve, 

unless a party-in-interest timely requests that the trustee be elected by the 

creditors. In Chapter 7, 12, and 13 cases, the U.S. trustee may act as trustee if a 

private trustee is unavailable, although this is rarely done. The code does not 

provide for the appointment of a trustee in Chapter 9 cases. 28  U.S.C. §  586, 

11 U.S.C. §§ 701–704, 1202, 1104–1106, 1302.

  

§ 3.4 Appeals 

A. Processing Appeals 

The steps in an appeal are as follows:

1. Filing a notice of appeal

2. Preparing the record on appeal

3. Docketing the appeal

4. Filing the appellant’s brief

5. Filing the appellee’s brief

6. Filing the appellant’s reply brief

7. Deciding if the court dispenses with oral argument, or scheduling of 

oral argument

8. Hearing oral argument

9. Deliberating by the court

10. Filing the opinion

11. Filing a petition for rehearing

12. Issuing the mandate (the final stage in the appellate process unless the 

party applies to the Supreme Court for a writ of certiorari)

The Federal Rules of Appellate Procedure establish certain procedural uniformity among the thirteen courts of appeals. However, there are still some differences in the procedures in the various circuits. Each court has local rules and 

internal operating procedures that describe the precise procedure to be followed 

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when there is any variation from the rules and, in some instances, that elaborate 

on or amplify the rules. See section 4.2.

B. Notice of Appeal 

The timely filing of a notice of appeal is a jurisdictional requirement for any 

appeal. Appeals may be filed to challenge decisions of the district court, an 

administrative agency, or a bankruptcy appellate panel. Appeals of agency 

decisions may be classified as original proceedings in the court of appeals. The 

notice of appeal is filed in the district court. The purpose of the notice is to inform 

opposing counsel and the court that an appeal is being taken. The clerk of that 

court is required by Federal Rule of Appellate Procedure 3(d) to forward a copy of 

the notice to the clerk of the court of appeals.

The time for filing commences when the judgment or order is entered in the 

district court from which the appeal is taken. The running of that time is tolled by 

the filing of certain posttrial motions in the district court, and the filing of such 

motions after a notice of appeal has been filed may vitiate the notice, requiring a 

new notice of appeal to be filed after the motion is decided. Fed. R. App. P. 4(a).

Rule 4 provides the following time periods for filing notices of appeal:

• private civil cases: 30 days

• civil cases in which the United States is a party: 60 days

• criminal cases: 10 days

• criminal cases in which appeal by the government is authorized by statute (such as appeals from sentences under the 1984 Sentencing Reform 

Act): 30 days

Upon receipt of the notice of appeal, courts of appeals take steps to ensure that 

all procedural requirements have been met. The clerk’s office may send counsel 

a case-opening letter to establish schedules for record preparation and briefing. 

Circuit mediators may conduct initial mediation/settlement conferences to discuss the issues in the case, with a view to eliminating the briefing of frivolous 

issues and to discuss the possibility of settlement. See Mediation & Conference 

Programs in the Federal Courts of Appeals: A Sourcebook for Judges and Lawyers 

(Federal Judicial Center, 2d ed. 2006).

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C. Record Preparation 

For an appellate court to review the proceedings in a trial court, appellate judges 

must have a record available of what occurred in the trial court. Local court rules 

prescribe the requirements for counsel to provide the district court with the 

record or excerpts of the record (sometimes referred to as a short record), which 

may include original papers and exhibits filed in the trial court plus a reporter’s 

transcript of any relevant proceedings. The Sentencing Reform Act requires that 

the record in a criminal case must also include “(1) that portion of the record . . . 

that is designated as pertinent by either of the parties; (2) the presentence report; 

and (3) the information submitted during the sentencing proceeding.” 18 U.S.C. 

§ 3742(d). This information will often be under seal, because it is confidential.

The Federal Rules prescribe time limits (deadlines) for providing the record 

on appeal to the court of appeals. During this time, the appellant must order a 

transcript of proceedings if one is needed and make arrangements to pay the 

court reporter for services or, in courts using electronic sound recording for the 

official record, the clerk of court. The district court clerk assembles the other 

papers or electronic files that constitute the record on appeal. The district court 

has the power to extend for an additional fifty days the time for preparing and 

sending the record on appeal, after which the court of appeals itself may grant 

extensions. Additional time may be needed if the court reporter has not finished 

transcribing the proceedings or if counsel has failed to order the transcript in a 

timely manner.

To prevent undue delay, the appellate courts have the discretion to refuse to 

grant time extensions and may impose sanctions on the appellant or the reporter 

for unreasonable delays in preparing the record on appeal.

D. Docketing the Appeal 

When the record is completed, or earlier if desired, the appellant must docket 

the appeal. This is primarily a clerical process and is performed in the office of 

the clerk of the court of appeals. Unless the appellant is exempt from payment, a 

docket fee is charged. The clerk of court opens an appropriate file and record and 

sends a notice to the parties. Frequently, docketing takes place when the record 

on appeal is filed.

The filing of the record provides the base date for most subsequent proceedings in the case.

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E. Briefs and Joint Appendices 

Because the appellant has the burden of establishing that the trial court erred, it 

files the opening brief. The appellee then files a brief in response; if the appellant 

wishes, the appellant may file a reply brief responding to new matters raised in 

the appellee’s brief. The Federal Rules of Appellate Procedure establish standards 

for format, color of brief covers, content, methods of reproduction, number of 

copies, and times for filing of briefs. The local rules for a circuit may impose 

further requirements. The schedule for filing briefs is as follows:

• appellant’s brief: 40 days after filing the record

• appellee’s brief: 30 days after service of appellant’s brief

• reply brief: 14 days after service of appellee’s brief

Some courts of appeals have modified the requirements and standards of 

the federal rules in certain cases or classes of cases. One of the more common 

modifications permits parties appealing in forma pauperis to file fewer copies 

of their briefs. While the briefs are being prepared, the parties are required to 

determine which portions of the record on appeal are relevant to the issues 

raised; the appellant is required to reproduce these portions as an appendix to 

the briefs. There may be only one appendix containing the portions relied on 

by both the appellant and the appellee, which would be referred to as a joint 

appendix. If any relevant material is omitted from the appendix, the court is free 

to refer to the original record. Multiple copies of the appendix may be filed so that 

each judge and, if needed, each law clerk may have one. Some courts of appeals 

have eliminated the requirement of an appendix and permit the substitution of 

photocopies of relatively few parts of the record, usually called record excerpts. 

The local rules of those courts describe the substitute requirements. Local rules 

also address procedures for electronic filing. You should become familiar with the 

rules and procedures in your court.

F. Oral Argument 

If the court does not decide a case exclusively on the basis of the briefs and written 

record (see section 4.6.B on screening cases to select those appeals to be decided 

without oral argument), the parties are given an opportunity to present their 

arguments to the court orally. Federal Rule of Appellate Procedure 34 permits 

the court to fix the time allowed for oral argument. Courts may allow counsel to 

file a request in advance for additional time, and the courts have the discretion 

whether to grant these requests. Generally, not more than two attorneys are 

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permitted to argue for each side. Some court rules encourage argument by only 

one attorney for each party.

Many appellate judges require their law clerks to prepare a memorandum 

on each case (called a bench memo) for the judge to review before hearing 

oral arguments. In some circuits, the law clerk for one judge may prepare a 

memorandum to be circulated among the three judges on the panel prior to oral 

argument. The judges will study the briefs before oral argument.

The appellant begins the argument. Because the judges have read the briefs 

and are therefore familiar with the issues, they sometimes begin questioning the 

attorney shortly after the argument begins. After the appellant’s argument is 

completed, the appellee responds, followed by any reply by the appellant (if the 

appellant reserved time for rebuttal).

Although the arguments are recorded, so that the judges and their law clerks 

may later review them, some circuit judges may request one of their law clerks 

to attend oral argument and take notes of important matters, citations of new 

authorities, and concessions made during the argument.

Most cases are heard by a panel of three judges, but a case may be heard en 

banc in cases involving a question of exceptional importance or in order to secure 

or maintain uniformity of decisions. A case heard en banc is heard by all of the 

active judges on the court and any senior judge of the circuit who sat on the panel 

that originally heard the case (or, in the Ninth Circuit, by a limited en banc, consisting of the chief judge and ten additional judges selected by lot). En banc hearings are held only when ordered by a majority of the active judges on the court.

Some courts hold hearings in only one location, but most hold court in a 

number of locations within the circuit.

G. Deliberation 

After a case has been argued and submitted to the court, the panel of judges who 

heard the argument meets to arrive at a decision. In most courts, these meetings 

are held immediately after the completion of each day’s arguments.

Appellate courts perform three distinct functions. First, they decide the 

controversies before them. Second, they supervise the courts within their jurisdiction. Third, they determine the growth and development of the common law 

and the interpretation of federal statutory and constitutional law within their 

jurisdiction. Each of these functions can become important during the decisional 

phase of an appeal because the court must not only reach the correct result but 

also explain in its opinion the rationale for its decision.

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In most cases, the court arrives at a tentative decision at the first meeting. At 

that time, the presiding judge (the senior active circuit judge sitting on the panel) 

assigns the case to one member of the panel, who later writes an opinion to be 

submitted to the others for approval. When the judges do not reach agreement so 

readily, panel members may exchange memoranda about the case and schedule 

additional meetings or telephone conferences for further discussion. Law clerks 

for appellate judges should know and follow the court’s internal rules and its 

customs concerning communications between chambers.

H. Opinion and Judgment 

The final product of the court in most appeals is a written opinion setting forth 

the decision and the reasoning behind it. The increased number of cases and the 

burden of writing formal opinions in every case has caused appellate courts to 

use alternatives to formal opinions (such as memorandum, order, or summary 

opinions) in many cases, such as those involving only the application of settled 

principles to a specific fact situation. Local rules or policies may guide the members of the court in deciding which cases deserve full opinions and which opinions 

should be published.

When a panel has agreed on an opinion, the authoring judge electronically 

transmits it to the clerk of court for public docketing and release. All courts 

post opinions on the court’s public website. In some courts, before opinions are 

released, they are circulated to all active judges on the court with a time limit for 

making suggestions. Sometimes when a judge or a group of judges disagrees with 

the majority decision reached by their colleagues and they feel strongly enough 

about it, the judge or judges will write a dissenting opinion explaining what 

aspects of the decision they disagree with and why. Even though they express 

opinions that did not prevail, dissents can contribute to the legal debate over the 

issues at hand and provide judges in similar cases with different perspectives.

I. Rehearing 

The party who loses an appeal may file a petition for rehearing within fourteen 

days after judgment is entered. That petition attempts to persuade the panel that 

the decision was erroneous and should be withdrawn or revised. The prevailing 

party may not file a response to the petition unless one is requested by the court. 

Most petitions for rehearing are denied.

The losing party may also move for a rehearing en banc. That motion is circulated to all members of the original panel and all active judges who did not sit 

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§ 3.4.K

on the panel. Only the active circuit judges and any senior judge who was a member of the original panel may request a vote on the suggestion to rehear the appeal 

en banc, and only the active circuit judges may vote on whether the appeal should 

be reheard en banc; if a rehearing en banc is granted, only active circuit judges 

and senior circuit judges from the circuit who were members of the original panel 

may sit on the rehearing. By local rule, a circuit may impose time limitations 

within which a member of the court may request an answer to a petition for rehearing or rehearing en banc or a vote on such a petition.

J. Mandate 

The mandate is the document by which the court of appeals formally notifies the 

district court of its decision and by which jurisdiction for any necessary additional proceedings is conferred upon the district court. The mandate is issued by the 

clerk of court seven calendar days after the time to file a petition for rehearing 

expires, or seven calendar days after entry of an order denying a timely petition 

for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, 

whichever is later. These times may be shortened or lengthened by court order. 

Fed. R. App. P. 41(b). The losing party may request by motion that the issuance of 

the mandate be stayed in order to maintain the status quo during the pendency 

of an application for a writ of certiorari to the Supreme Court. The court of appeals may require that a bond be posted as a condition to staying the issuance of 

the mandate.

K. Motions 

During the course of an appeal, the parties may file a variety of motions. Most of 

these are procedural and, to the extent permitted by the Federal Rules of Appellate Procedure, some courts have authorized their clerks of court or other court 

unit executives to act on motions, for example, motions

• for extensions of time to perform any of the acts required by local rules 

or the Federal Rules of Appellate Procedure

• for relief from specific requirements of the local rules or the Federal 

Rules of Appellate Procedure

• for permission to alter the form or content of the record on appeal;

• for leave to file amicus curiae briefs

• for delay in the issuance of the mandate

• for voluntary dismissal of the appeal

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Motions requiring action by a judge or panel of judges are those

• on issues relating to criminal cases or suits for postconviction relief such 

as motions for appointment of counsel, leave to appeal in forma pauperis, 

certificates of probable cause, and bail pending appeal

• for stays or injunctions pending appeal

• for leave to file interlocutory appeals

• for issues relating to stays granted in the district court

• for permission to file a brief containing more pages than the number 

fixed by the rules

• for issues relating to the time allowed for oral argument

• to dismiss an appeal filed by the appellee

In most courts, the staff attorney’s office is responsible for reviewing motions 

and referring them to judges for appropriate disposition.

L. Emergency Proceedings 

Both district courts and courts of appeals are frequently asked to make decisions 

on an emergency basis. In the appellate courts, these occasions usually arise when 

a litigant or a lower court is about to take some action that may cause irreparable 

injury. The potentially aggrieved party seeks redress by motion for stay or 

injunction pending appeal or by petition for writ of mandamus or prohibition. In 

the district courts, these matters usually arise through a request for a temporary 

restraining order.

Each court has developed internal procedures for handling these matters 

efficiently, but the procedures vary among courts. Courts have also established 

special procedures for handling emergency appeals of capital (death penalty) 

cases. Law clerks should become familiar with the procedures established by the 

local rules and the judge’s own practices.

  

§ 3.5 Courts of Specialized Jurisdiction 

You may also encounter litigation from one of the various special courts established 

by Congress. The term special courts derives from their specialized jurisdiction.

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A. Court of Appeals for the Federal Circuit 

The Court of Appeals for the Federal Circuit, based in Washington, D.C., has jurisdiction over appeals from the following: district courts in cases involving patents 

and certain claims against the United States; the U.S. Court of Federal Claims; the 

Court of International Trade; the Court of Veterans Appeals; the Merit Systems 

Protection Board; the Patent and Trademark Office; the boards that decide government contract issues; and a few other Article I agencies.

B. Court of International Trade 

The Court of International Trade, based in New York City, hears cases concerning 

the value or classification of imports. Its judges may sit by designation on other 

Article III courts.

C. U.S. Judicial Panel on Multidistrict Litigation 

This panel was created to consider transferring civil actions involving one or 

more common questions of fact pending in different districts to a single district 

for coordinated or consolidated pretrial proceedings. The panel consists of seven 

district and circuit judges who are appointed by the Chief Justice and sit on the 

panel in addition to their regular judicial assignments. The panel maintains a 

roster of transferee judges to whom it assigns the cases it certifies for transfer. For 

discussion of multidistrict litigation problems, see section 3.1.F.

D. Foreign Intelligence Surveillance Court 

The Foreign Intelligence Surveillance Court (FISC), or the FISA court, as it is 

popularly called (after the Act that created it), is composed of eleven federal 

judges, selected by the Chief Justice to a nonrenewable seven-year term. The 

court’s job is to review applications for governmental surveillance of persons 

within the United States whom the government suspects of having connections to 

foreign governments and/or terrorist organizations. A Foreign Intelligence Court 

of Review was also established to review applications denied by the FISA court.

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§ 3.6

  

§ 3.6 Article I Courts 

Congress has created many tribunals to assist it in meeting its legislative responsibilities under Article I of the Constitution. These courts do not exercise judicial 

power conferred by Article III, and the judges are appointed for fixed terms rather 

than given life tenure. They include the many administrative law judges serving 

in the executive agencies who hear disputes over claims and benefits, subject to 

review by agency officials.

A. U.S. Tax Court 

The U.S. Tax Court has jurisdiction over controversies involving deficiencies determined by the commissioner of internal revenue in income, estate, and gift 

taxes, as well as other tax-related disputes between taxpayers and the Internal 

Revenue Service. The principal office of the court is located in Washington, D.C., 

and it conducts trial sessions in other cities throughout the United States.

B. U.S. Court of Federal Claims 

The U.S. Court of Federal Claims was originally called the U.S. Claims Court. The 

court has jurisdiction over claims brought against the U.S. government. The court 

is located in Washington, D.C.; however, its jurisdiction is nationwide, enabling it 

to conduct trials in locations convenient to the parties involved in the case.

C. U.S. Court of Appeals for the Armed Forces 

Congress established the U.S. Court of Appeals for the Armed Forces as an appellate criminal court, hearing all cases involving military courts-martial. It is 

located in Washington, D.C.

D. U.S. Court of Appeals for Veterans Claims 

The U.S. Court of Appeals for Veterans Claims has exclusive jurisdiction to review 

the decisions of the Board of Veterans Appeals. The court’s principal location is in 

Washington, D.C., but it may hold court anywhere in the United States.

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4

Chambers and Case 

Management

  

§ 4.1 Chambers Administration 

This chapter gives you a broad overview of some of your responsibilities as a law 

clerk in maintaining a well-run chambers. These responsibilities include helping 

to ensure chambers security; answering telephones and mail; maintaining the 

judge’s motion, hearing, and trial calendars; and other miscellaneous matters. 

Discussing all such duties would, of course, be impossible, and some judges have 

chambers manuals detailing how they expect their chambers to operate. Understanding and accommodating your judge’s preferences is key to maintaining an 

efficient chambers, and regardless of the general guidance offered in this chapter, 

you should always follow the particular policies and practices of your judge.

Effective management is essential to the efficient administration of justice. 

While judicial assistants often have principal responsibility for managing various 

aspects of chambers administration, as a law clerk you should be familiar with 

the standard operating procedures in your chambers and be available to pitch in 

when needed.

A. Security 

The safety and security of federal buildings and the people who work in and visit 

them are major concerns for the U.S. Marshals Service (USMS). Attorneys and 

other members of the public must pass through magnetometers and have their 

briefcases and other items screened by an X-ray machine to enter most courthouses and other federal buildings. In addition, all judges’ chambers are equipped 

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with an entry control system that consists of a security camera and monitor and 

a door release strike. Courthouse employees may be issued keycards enabling 

them to enter the courthouse without passing through metal detectors and to 

access secured, nonpublic sectors of the building, including judges’ chambers, depending on the individual court’s access-control security plans. Employees may 

also have after-hours and weekend access to the building through use of these 

keycards, which should be kept in a secure place and reported immediately if lost. 

All courthouse employees should carefully follow security procedures and report 

potential problems to the USMS.

The U.S. Marshals Service is principally responsible for security of the court 

and its personnel, though most courthouse security functions are performed by 

court security officers (CSOs), who are funded by the judiciary’s Court Security 

Program and by the Federal Protective Service on a limited basis. Become familiar 

with the court’s Occupant Emergency Plan and other related USMS security 

plans in your courthouse, and help to maintain a secure chambers. Do not let 

unauthorized strangers into secure areas of the courthouse, and report suspicious 

mail or threatening phone calls. During security-sensitive proceedings, a judge 

may request that a deputy from the U.S. Marshals Service or a CSO be present in 

the courtroom.

Because federal judges are occasionally the targets of terrorists or disgruntled litigants, be careful when opening mail. Mail received in the courthouse is 

routinely screened by the USMS before distribution to chambers and offices. Still, 

it pays to be alert to suspicious-looking items. Common recognition points for 

letter and package bombs include the following:

• foreign mail, air mail, and special delivery

• restrictive markings (e.g., confidential, personal)

• excessive postage

• handwritten or poorly typed addresses

• incorrect titles

• titles, but no names

• misspelled common words

• oily stains or discolorations

• no return addresses

• rigid envelopes

• lopsided or uneven envelopes

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• protruding wires or tinfoil

• excessive securing material such as masking tape or string

• drawings, diagrams, or illustrations

If a letter or package arouses attention, do not attempt to open it. Instead, 

immediately notify the marshals’ office or a CSO.

B. Telephone 

Practices for dealing with incoming calls (e.g., how to answer the telephone, how 

to take messages, and when and if to transfer a call to the judge) will vary from 

chambers to chambers. In general, however, answer calls promptly, identify the 

office (e.g., “Judge Smith’s chambers”), and treat all callers courteously. And, of 

course, hold personal calls to a minimum, both in length and in number. See 

section 2.2.A.1 on communication with the media.

C. Correspondence, Email, and Other Mail 

In addition to correspondence by U.S. postal and messenger service, many chambers now correspond by email with a wide variety of people, including counsel. 

While email has in some ways made communicating easier and more efficient, it 

has also made it even more important to stay on top of organizing and processing 

the mail. Email also presents serious potential problems relating to the accidental 

forwarding of messages, either to unintended parties or containing information 

not intended for the recipient. And bear in mind how easily emails can be broadly 

disseminated through forwarding and posting on websites and social media. Take 

special care to avoid sending and forwarding email messages that may result in 

embarrassment, a breach of confidence, or worse, and review and carefully proofread any outgoing messages (and fight the temptation not to proofread email as 

carefully as paper correspondence).

Most chambers have practices and procedures for handling incoming and 

outgoing mail, including email (whether and when to delete email messages, 

how to store important messages for future reference, and other matters of email 

retention and organization). Quickly become familiar with these practices to 

help mitigate complications arising from the enormous number of emails that 

many chambers receive.

Depending on office procedure, either a judicial assistant or a law clerk will 

open and review correspondence and make an initial decision concerning how 

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it should be handled. Many judges receive their own emails directly, though 

some may ask staff to review messages first. Incoming mail and emails should 

be reviewed as soon as they are received because they may relate to matters 

scheduled for that day. When correspondence referring to a pending suit is forwarded to any counsel of record over the signature of the judge, law clerk, or 

judicial assistant, copies should be sent to all other counsel of record to avoid 

inappropriate ex parte contact. Appellate judges seldom correspond directly with 

counsel on case-related matters, because appellate judges work on cases as part 

of a panel or court rather than individually. Instead, appellate judges will send 

instructions to the clerk of court on how to respond to counsel.

Correspondence from the general public that is not related to a case is still 

important because citizens have a right to courteous treatment. Also, the public’s 

opinions about the fairness, responsiveness, and effectiveness of the judiciary 

are influenced by the promptness and appropriateness of the court’s answers. In 

the district court, some of the correspondence from the public involves requests 

to be excused from jury service. That subject is dealt with in section 4.3.D.2. 

Some correspondence contains character references on behalf of an offender 

who is scheduled for sentencing. Judges differ in their handling of such correspondence. Many simply acknowledge receipt of the letter and refer the letter to 

the probation office.

Other correspondence from the public may express reactions to a judge’s 

ruling. Whether positive or negative, expressions of opinion by members of the 

public generally call only for courteous acknowledgment, not for an explanation 

or justification of the judge’s action. If a letter requests information about a 

ruling, many judges simply acknowledge receipt of the letter and send a copy of 

the opinion, if there is one. If more information is requested, many judges refer 

the writer to the record in the clerk of court’s office.

Some judges may wish to respond to a letter that indicates a misunderstanding concerning a significant fact, proceeding, or legal conclusion. Judges who 

adopt this policy may ask law clerks to prepare a draft of a response for the judge 

to review. The response should not be argumentative or defensive; it should merely state the relevant facts or legal conclusion as necessary to alleviate the misunderstanding.

Prisoners and persons who have been convicted and are awaiting sentence 

frequently write district and appellate judges. Handle the correspondence of a 

prisoner represented by counsel the same way as that of any other litigant. Ask 

your judge how to handle correspondence from prisoners who are proceeding 

pro se. In some instances, this correspondence may be handled by district court 

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ney’s office. In other instances, your judge may have a form letter explaining, for 

example, that federal law prohibits judges from giving legal advice and suggesting that the prisoner communicate with a lawyer, or a form letter for responding 

to requests for transfers to another penal institution (which only the Bureau of 

Prisons can grant). You should never write anything in a letter that would give a 

prisoner false hope or could compromise the position of the court.

D. Internet and Electronic Research 

New law clerks will receive a Westlaw and/or a LexisNexis password, which may 

come with additional electronic research training and certain usage guidelines. 

All computer-assisted legal research (CALR) use via judiciary contracts is to be 

limited to official judiciary-related research purposes. In addition to these research services, the Internet also offers more informal avenues of research, including access to nearly every newspaper and magazine in the country, as well 

as to government and law school websites, Internet search engines, and myriad 

other sources. Contact the circuit library CALR coordinator for assistance with 

CALR access or training. The CALR coordinators and reference librarians are 

also available to assist with your research questions.

Become familiar with fjc.dcn (http://fjc.dcn), the Federal Judicial Center’s 

site on the judiciary’s intranet. It provides access to manuals, monographs, desk 

references, and other publications, as well as to web-based training and orientation programs, streaming media programs, discussion forums, and other 

resources. JNet (http://jnet.ao.dcn), the intranet site maintained by the Administrative Office of the U.S. Courts, offers information and forms on a range of 

topics relevant to judicial employees, including benefits, court security, emergency preparedness, human resources, information technology, legal and general 

research, and travel. The Internet has also posed some serious security and usage 

challenges for employees and information technology departments in courthouses across the country. The judiciary provides you with a computer and Internet 

access to help you do your work. Depending on the policy in your court or chambers, you may use it on a limited basis for personal needs if doing so does not 

interfere with your work and does not cause congestion, delay, or disruption of 

service to any government system. You should not do anything on your office 

computer that would embarrass you or the court if it were made public.

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E. Electronic Filing 

The federal judiciary’s Case Management/Electronic Case Filing (CM/ECF) system 

allows courts to maintain case documents in electronic form and provides enhanced 

and updated docket management services. It also gives each court the option to 

permit case documents—pleadings, motions, petitions—to be filed electronically 

with the court.

CM/ECF uses an Internet connection and a browser and accepts documents 

in Portable Document Format (PDF). It is easy to use. Filers prepare documents 

using conventional word-processing software and save them as PDF files. After 

logging on to the court’s website with a court-issued password, the filer enters basic 

information about the case and document being filed, attaches the document, 

and submits it to the court. CM/ECF automatically generates a notice verifying 

that the court received the filing, and it also sends an email to other parties in the 

case notifying them of the filing.

There are no added fees for filing documents using CM/ECF, but existing 

document filing fees do apply. Litigants receive one free copy of documents filed 

electronically in their cases, which they can save or print for their files. Public 

electronic access to court data is available through the Public Access to Court 

Electronic Records (PACER) program. Additional copies are available for a small 

fee to attorneys and the general public for viewing or downloading.

The process for receiving and reviewing daily filings in the cases filed before 

the judge may vary among courts and chambers; you should quickly learn the 

process in your chambers and your role in implementing and maintaining it. 

Although familiarity with the workings of the system is helpful, you should refer 

counsel’s questions to docketing clerks or others in the clerk’s office who deal with 

the system on a daily basis.

F. Judge’s Chambers Calendar 

The judicial assistant is usually in charge of maintaining the chambers calendar 

covering the judge’s scheduled court proceedings and other activities. If the 

calendar is maintained online, other staff on the chambers network may also 

have limited access to the judge’s schedule. In appellate courts, the clerk of court 

advises the judge of panel assignments and hearing dates. The judicial assistant, 

in consultation with the judge, will then schedule all other engagements and 

commitments around the hearings. In trial courts, the judicial assistant usually 

confers with the judge and then typically advises the courtroom deputy in charge 

of scheduling the court calendar of the dates on which trials and hearings are to 

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be set. The judicial assistant then schedules the judge’s remaining commitments 

around the trials and hearings. Some judges choose not to have a judicial assistant, 

which allows them to have an additional law clerk. In these instances, a law clerk 

may maintain the chambers calendar.

G. Opening Court 

In district courts, a law clerk or courtroom deputy usually opens court. One 

common method is for the clerk or deputy to rap on the door before the judge 

enters, open the door, then call out, “All rise.” The judge then enters and walks to 

the bench. The law clerk or deputy walks to the front of the bench and says: “The 

United States District Court for the ____ District of ____ is now in session. The 

Honorable ______ presiding.” The judge usually stands during this call, then says, 

“Please be seated,” and sits.

H. Maintaining the Library; Office Supplies, Equipment, 

and Furniture 

Many chambers maintain their own libraries, though electronic databases and 

Internet research reduce the need for access to hard-copy sources and have 

enabled chambers in the same courthouse to share libraries. In any event, the 

employee who maintains the library, either a law clerk or a judicial assistant, 

should regularly file any advance sheets, pocket parts, slip opinions, replacement 

volumes, and inserts for loose-leaf services that arrive in the mail. File materials 

daily so that library maintenance does not become burdensome and the materials 

are current.

Procurement and ordering of all law books is done by the circuit library; contact the librarian if you have questions. Promptly rubber-stamp every incoming 

library book to identify it as U.S. property. Keep track of books borrowed by attorneys for courtroom use and make sure that books are not taken outside the chambers and courtroom. Promptly reshelve books used during the course of research. 

They will then be easier to find, and the library will be neater. Also be sure that 

legal pads, book markers, pencils, and pens are always available in the library.

Requests for supplies, equipment, and furniture ordinarily are handled in the 

clerk of court’s office.

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I. Maintaining Office Records and Files 

You may have to maintain some of the records in your judge’s office, including 

the following:

• case files

• trial schedules or calendars

• “tickler” records to remind the judge about future case activities

• indices to the judge’s prior decisions

• indices to slip opinions

• work papers relating to cases in progress

Such materials may be stored in hard copy, electronically, or both. Some 

chambers may also maintain office form books, either in hard copy or electronically. The form books may contain office procedure checklists and frequently 

used forms, such as samples of letters, orders, opinions, jury charges, minute entries, and office or file memoranda written by prior law clerks. The books describe 

the format and method for written documents issued by the judge or presented to 

the judge by chambers staff. The form books provide continuity and consistency 

in office administration and can help educate new law clerks.

If case records are being used in the judge’s chambers, make sure that the 

records are not misplaced and are returned to the office of the clerk of court as 

soon as the judge or staff member has finished with them.

J. Statistical Reporting 

The JS-10 form, “Monthly Report of Trials and Other Court Activity,” is a report 

of the trials and nontrial proceedings that a district judge conducted during the 

month. The clerk of the district court submits a JS-10 form to the Administrative 

Office for each active or senior district judge, plus any visiting district judges or 

appellate judges, who conducted trials or proceedings in the district during the 

month. The form reports both the number and type of trials and proceedings and 

the amount of time the judge spent conducting them. Some judges fill out the 

forms themselves, but usually a member of the chambers staff or the courtroom 

deputy fills out the form for the judge. The CM/ECF systems in some courts can 

automatically generate the JS-10 reports based on additional information about 

the trials and proceedings entered during the normal docketing process. Data 

on magistrate judge workloads and activities are collected through the MJSTAR 

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function in district CM/ECF systems, which stores that data in the NewStats 

database. This includes not only the number of tasks completed by magistrate 

judges, but the time burden of many of these duties, including time spent with 

attorneys and parties. Bankruptcy courts report trials and other court activity 

on a monthly basis using the B-102 form. Courts of appeals use the JS-30 form 

to report the number of appellate cases, interlocutory appeals, and petitions for 

rehearing each month.

K. Out-of-Town Trips 

Some judges must travel to other cities to attend court sessions and may require a 

chambers staff member to travel with them if the court to which they are traveling 

does not provide staffing. Judges may also travel on court-related business. 

Judicial assistants usually arrange travel (although when the judge has chosen to 

have an additional law clerk in lieu of a judicial assistant, a law clerk may have to 

make travel arrangements).

If your judge is traveling to hold court in another location, prepare for the 

judge to take along necessary case files and materials; any personal notes or 

memoranda relating to the cases to be heard; the judge’s robe; paper, pencils, 

stationery, and other needed supplies (if the site for the out-of-town session is 

one frequently used by the court, there may be a permanent stock of stationery 

and supplies); necessary equipment such as a gavel, recording or dictating equipment, and a laptop or tablet computer; the briefs and any other case materials; 

and mailing labels and envelopes for returning material that the judge does not 

wish to carry back.

Judges and chambers staff who travel on court business will be reimbursed 

for transportation, food, lodging, and related expenses according to the detailed 

rules set forth in the Guide to Judiciary Policy. These rules generally reimburse 

either a flat dollar amount per day, regardless of actual expenses, or itemized 

actual expenses not in excess of a fixed dollar amount. The judicial assistant 

should have forms for travel reimbursement—these forms can also be found on 

JNet. Judges must also report travel not related to cases under regulations found 

in Volume 19, section 270, of the Guide to Judiciary Policy.

L. Assisting with Judges’ Extrajudicial Activities 

Many judges engage in teaching, writing, lecturing, and other extrajudicial activities. While law clerks may be called on to assist judges in these activities, the Code 

of Conduct for United States Judges says that judges should not use staff “to any 

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substantial degree” to engage in extrajudicial activities to improve the law, the 

legal system, and the administration of justice; and judges should not use staff 

to engage in other extrajudicial activities, “except for uses that are de minimis.”

M. Preserving Chambers Papers for Historical Purposes 

The chambers papers of a district or appellate court judge have historical significance as an essential supplement to the official court record. Many papers in 

judges’ chambers are widely considered valuable, such as correspondence and 

background material concerning a case, including memoranda between judges 

and law clerks and judges on an appeals panel; drafts of orders and opinions (particularly draft opinions that have handwritten comments on them, or that have 

been circulated to other judges and returned with their comments); and correspondence/memoranda concerning court administration, legal activities in the 

community, and issues of governance, politics, and law.

Chambers papers are the personal property of the judge. Each judge has the 

prerogative to make final decisions about the preservation of chambers papers 

and the terms of access. Judges can preserve their personal papers and make 

them available for eventual study by donating them to a manuscript repository.

An FJC publication, A Guide to the Preservation of Federal Judges’ Papers (3d 

ed. 2018), reviews the organization and preservation of historically significant 

records created by federal judges. The Federal Judicial History Office at the FJC 

will also provide assistance on issues concerning judges’ papers.

N. Rules Regarding the Media in Court 

Guidelines for allowing cameras and electronic reproduction equipment in the 

courtroom are published in Volume 10 of the Guide to Judiciary Policy. The guidelines allow the photographing, recording, or broadcasting of appellate arguments. 

In trial courts, a presiding judge may authorize broadcasting, televising, recording, 

or taking photographs in the courtroom during ceremonial proceedings. For nonceremonial proceedings, such activities may be allowed for presenting evidence, 

perpetuating a record of the proceedings, and for security or judicial administration purposes. Federal Rule of Criminal Procedure 53 prohibits photographing and 

radio broadcasting of criminal proceedings. 

Some circuit judicial councils have adopted specific instructions for the use 

of cameras in the courtroom. Although local rules restrict the means by which 

news may be reported (e.g., no cameras or broadcasting from the trial courtroom 

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or environs), “there is nothing that proscribes the press from reporting events 

that transpire in the courtroom.”

  

§ 4.2Local Court Rules and Administrative 

Policies 

Section 2071 of Title 28 of the U.S. Code authorizes federal courts to adopt their 

own rules, which must be consistent with the national rules and available to the 

public; it also authorizes the circuit judicial council to abrogate district and bankruptcy courts’ local rules, and authorizes the Judicial Conference to abrogate 

rules of courts of appeals. Federal Rules of Appellate Procedure 47, Bankruptcy 

Procedure 9029, Civil Procedure 83, and Criminal Procedure 57 provide additional requirements for local rule adoption and characteristics. The local rules 

of almost all courts follow the same numbering sequence as the corresponding 

national rules.

These local rules include the procedures for setting cases for trial, scheduling 

pretrial conferences, setting motions for oral argument, serving memoranda of 

law, and other details relating to trial. They may also state the procedure for 

admission of attorneys to practice in the specific district or circuit, the term of 

the court, the functions of the clerk of court, the rules for filing motions, and 

more specific data, such as the number of copies required to be filed, limitations 

on the length of memoranda, the time within which memoranda must be filed, 

and restrictions on page length, typeface, and margin size.

Each court of appeals has local rules concerning procedures for ordering 

transcripts; filing and docketing the appeal; calendaring; motions; summary disposition of appeals; setting cases for oral argument; time limits on oral argument; 

petitions for rehearing; petitions for en banc consideration; and stay of mandate. 

The local rules and internal operating procedures of the courts of appeals are 

printed in the United States Code Annotated following Title 28 of the Judicial 

Code, and are available on the courts’ websites.

A court’s local rules and any internal operating procedures it adopts establish 

specific procedures for the court and litigants to follow. You should get these 

rules and procedures from the court’s website or the clerk’s office and become 

familiar with them. Keep them available for reference and be on the lookout for 

any modifications the court may adopt.

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§ 4.3 Case Management: The Trial Court 

Many judges believe that the responsibility for moving a case through the trial 

court is not solely that of the attorneys, and the function of the court is not simply 

to be available if and when counsel want a hearing. The disposition of all cases 

as speedily and economically as is consistent with justice is paramount. The Federal Rules of Civil Procedure are to be “construed to secure the just, speedy, and 

inexpensive determination of every action.” Fed. R. Civ. P. 1. The courts are also 

required to report semiannually (on April 30 and September 30) for each judge 

the motions that have been pending and the bench trials that have been submitted for more than six months, and cases that have not been terminated within 

three years of filing, for publication by the Administrative Office. 28 U.S.C. § 476.

Effective docket control means that, early in a case, the judge assumes responsibility for guiding the case to a conclusion. This may include establishing deadlines for filing motions, a time limit for discovery, a date for counsel 

to take the next step in its prosecution, and a trial date. For specific techniques 

of case management, consult the Civil Litigation Management Manual. See also 

Schwarzer & Hirsch, The Elements of Case Management (Federal Judicial Center, 

3d ed. 2017). Note that many of the same considerations apply in criminal cases, 

with the additional complication of computations required by the Speedy Trial 

Act. 18 U.S.C. §§ 3161–3174. Law clerks should be familiar with the requirements of 

the Act, since failure to bring a case to trial within the Act’s time limits can have 

serious repercussions.

A. Office Status Sheets 

Some judges maintain an office status sheet and post it where it is accessible to 

chambers staff. Its purpose is to keep the judge, the law clerks, and judicial assistants apprised of legal matters under advisement and awaiting disposition. When 

a matter has been taken under advisement, the assistant or law clerk assigned to 

the case should indicate it on the status sheet.

Keep a personal status list, which can be revised each week, listing all matters 

for which you are responsible. It will help you make effective use of your time 

and remember all pending assignments. Some judges require their law clerks to 

submit personal status lists weekly.

Some judges require their judicial assistants to keep a list of all pending matters, the initials or name of the law clerk assigned to work on the matter, and 

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any other pertinent information. If so, keep the assistant advised of all matters 

assigned, matters completed, and other relevant status information.

CM/ECF helps judges use computer technology for docket control and to 

maintain case inventories and case-status records. Other systems may also be 

employed. Regardless of which system is used, it is important that it be regularly 

maintained and continually monitored.

B. Calendaring Systems 

Multijudge trial courts need a system for determining which judge is responsible 

for each case. In an individual calendar system, each case is randomly assigned 

to a particular judge at the time it is filed, or soon thereafter, and that judge has 

complete responsibility for the case until it is terminated. There are also standard 

procedures for reassigning cases from which the original judge is disqualified, 

for ensuring that related cases are all assigned to the same judge, and for special 

assignment of unusual and protracted cases. Local rules usually describe these 

procedures.

C. Trial Scheduling 

A single trial may be set for a specific date, or the court may set multiple cases for 

trial on the same day. Some courts use the trailing calendar or trailing docket, in 

which the court schedules a number of cases for trial beginning on a stated date. 

The cases are tried in the order reflected by the schedule. Counsel must obtain 

information from the court and from the attorneys whose cases precede them 

on the calendar about the progress of those cases, so that they can go to trial 

whenever the court reaches their case.

Most civil cases do not go to trial but are disposed of in some other manner, 

including dispositive motions and settlement. Judges differ in their approach to 

encouraging settlement, but the decision whether to settle or proceed to trial is 

the parties’ alone. If settlement is to be reached, negotiations should be completed 

in a timely manner. Last-minute settlements may disrupt the court’s schedule, 

leaving the judges, and sometimes jurors, with unscheduled time. The trailing 

calendar and other multiple-case-setting devices alleviate some problems caused 

by last-minute settlement by providing substitute cases to replace those that do 

not go to trial. Although this resolves the court’s problems, it does not resolve the 

problems that eve-of-trial settlements cause litigants and counsel.

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Criminal cases take priority on the court’s calendar because they must be tried 

within the time limits set forth in the Speedy Trial Act. While criminal cases do 

not settle, the vast majority of them are disposed of by way of plea bargaining and 

guilty pleas, which again make multiple-case-setting an important calendaring 

device for the court.

D. Jury Management 

1. Random Juror Selection

The selection of grand and petit jurors in both criminal and civil cases is governed 

by 28 U.S.C. §§ 1861–1878, under which each district must have a jury selection 

plan that has been approved by a panel comprising the circuit judicial council 

and the chief district judge or the chief judge’s designee.

The statutory goal of the selection process is to ensure “grand and petit juries 

selected at random from a fair cross section of the community in the district or 

division wherein the court convenes” (28 U.S.C. § 1861), and to avoid excluding 

any citizen “from service as a grand or petit juror . . . on account of race, color, 

religion, sex, national origin, or economic status” (28 U.S.C. § 1862).

The clerk of court usually manages the process of selecting prospective 

jurors, under the supervision and control of the court. Although the jury selection 

process may differ slightly in each district, it is generally as follows:

1. The clerk’s office performs a random selection of prospective jurors’ 

names by computer or manually, using voter registration lists or other sources specified by the court’s plan, and places the names selected 

in a master jury wheel, which is usually a computer file. The minimum 

number of names in the master jury wheel must be one-half of 1% of the 

number on the source lists, or 1,000, whichever is less.

2. As needed by the court, the clerk’s office draws names publicly at random from the master jury wheel and sends jury-qualification questionnaires to those persons whose names are drawn.

3. From the responses to the questionnaires, a determination is made as 

to which persons are qualified for jury service and which persons are 

disqualified, exempt, or excused.

4. The names of those determined to be qualified are placed in a second 

jury wheel consisting of qualified jurors.

5. As needed, the clerk’s office selects names from the qualified jury wheel 

and prepares lists of the names selected.

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6. The clerk’s office issues summonses to the necessary number of persons 

needed for the jury venire several weeks in advance of each trial calendar 

advising those summoned of the time and place to report for jury service.

Some district courts qualify and summons jurors in one step and do not 

establish a qualified jury wheel.

2. Exemptions, Disqualifications, and Excuses

A person is qualified for jury service unless the person

• is not a citizen of the United States

• is unable to read, write, and understand English with a degree of proficiency sufficient to complete the juror-qualification form satisfactorily

• is incapable of rendering satisfactory service because of mental or physical infirmity

• is charged with or has been convicted in a state or federal court of record 

of a crime punishable by imprisonment for more than one year without 

subsequent restoration of civil rights

28 U.S.C. § 1865.

Some district courts have adopted other grounds for exemptions, which are 

specified in the court’s jury selection plan. Section 1863 of Title 18 requires the 

plan to provide for the exemption of members of the armed forces in active service; members of state or local fire or police departments; and public officers of 

the federal, state, and local governments who are actively engaged in the performance of official duties.

Jury service is a citizen’s duty as well as a privilege, and courts do not readily 

grant excuses. A person may, however, be excused from jury service temporarily 

if the plan states that such service would result in undue hardship or extreme 

inconvenience. In such a case, the name of an excused juror is placed back in 

the qualified jury wheel. If a prospective juror approaches you about an excuse, 

do not express any opinion regarding the request, but simply refer the requester 

to the clerk’s office or jury administrator for action. Treat persons called for jury 

service with courtesy; they are providing an important service to the court and 

the public.

Judges in multijudge courthouses often begin jury trials at different hours 

to obtain maximum use of people summoned for jury service, sending persons 

examined and not selected to another courtroom so they can be examined for 

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selection on another jury, and sometimes using jurors who have served in one 

trial in a succeeding trial. When prospective jury panels report for possible 

selection in a case, they should be segregated from other people in the courtroom. 

Law clerks may be responsible for clearing a portion of the spectator section for 

the jury panel’s exclusive use.

3. Juror Orientation

Most courts conduct a juror orientation program to inform jurors of their responsibilities and to explain the trial process. Orientation videos, including the Federal Judicial Center’s Called to Serve, are available in most courts.

4. Voir Dire

In most courts, the judge personally conducts voir dire examination. Federal 

Rule of Civil Procedure 47 and Federal Rule of Criminal Procedure 24, however, 

authorize the judge to permit the lawyers to conduct voir dire. If the judge conducts 

voir dire, the rules authorize counsel to submit specific questions or areas of 

inquiry that they want the judge to probe. In some courts, magistrate judges conduct voir dire. The law in most circuits permits this in civil cases, though some 

require consent of the parties. The Supreme Court has held that a magistrate 

judge may conduct voir dire in a criminal case if the defendant consents (Peretz 

v. United States, 501 U.S. 923 (1991)), but not if the defendant objects (Gomez v. 

United States, 490 U.S. 858 (1989)). 

5. Jury Supervision

In most courts, a deputy clerk is responsible for jury supervision. However, sometimes law clerks have this responsibility. If so, you should be present early enough 

in the morning to accommodate those members of the jury who arrive before the 

normal court time. The jury room should be open and available for use by the 

jurors as they arrive.

If the judge permits the jury to take notes, either you or the deputy clerk 

should provide pads of paper and pencils for distribution to the jurors before the 

trial begins. Extra pads and pencils should also be placed in the jury room for use 

during deliberations.

If you are responsible for jury supervision, ensure that there is no communication—in the courtroom, jury room, or hallways adjacent to the courtroom 

and chambers—between jurors and litigants, lawyers, witnesses, or others attending court.

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Jurors are usually free to go where they wish during recesses, and they may 

go home at night. Occasionally, however, when there is unusual publicity about 

the trial or there is reason to believe that someone will attempt to exert improper 

influence on jurors, the judge may direct that the jury be sequestered. When this 

occurs, deputy marshals keep the jurors together at all times and supervise them 

when court is not in session. Jurors in criminal and civil cases are sometimes 

sequestered from the time they begin deliberating until they reach a verdict.

Judges sometimes have law clerks steward the jury during deliberations. 

Some judges require the law clerk to take a special oath with respect to this duty 

just before the jury retires. Once the oath is taken, the law clerk assumes primary 

responsibility for guarding the jury until relieved of this duty by the judge. Remain outside the jury-room door during the entire deliberation process and take 

every reasonable precaution to ensure that the jurors do not come into contact 

with other people, especially the litigants, their attorneys, or witnesses. You must 

never comment on the evidence, the litigants, the attorneys, or the witnesses to 

any juror (or, for that matter, to anyone else). If a juror has any questions about 

the trial, at any stage, you should simply state that such questions should be 

addressed to the judge in writing. Do not answer the question, however simple it 

may appear.

E. Distributing Opinions 

Federal Rule of Civil Procedure 52(a) requires the judge to make findings of fact 

and conclusions of law in all actions tried without a jury or with only an advisory 

jury. The rule permits the judge to do this orally on the record or in writing in an 

opinion or memorandum. The judge may also write a formal opinion to explain 

rulings on particular motions. The judicial assistant sends the original of the 

findings or the opinion and the original of any order for judgment to the docket 

clerk for filing in the official record. Then the judicial assistant or clerk of court 

sends a copy of each set of findings or the opinion to each counsel of record, 

making and distributing other copies in accordance with the judge’s instructions. 

In most district courts, the clerk of court handles the distribution of opinions, 

but in a few district courts, this responsibility falls to the law clerk or judicial 

assistant. The judge decides whether the opinion or findings are to be published. 

If you are responsible for distributing opinions, check with the judge to determine 

whether the judge wishes the opinion to be published and make such distribution 

as the judge directs. In each case, the opinion should be accompanied by a cover 

letter from the judge; the judge may have a form letter for this purpose.

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§ 4.4 Special Duties of Law Clerks to 

Bankruptcy Judges 

The duties of law clerks to bankruptcy judges are generally similar to the duties 

of those working for district judges. The volume of cases and proceedings in 

bankruptcy court is generally greater than in other trial courts, and the chambers 

must be organized to handle this volume effectively. Bankruptcy judges hold 

more, and faster, hearings than do district judges. For the chambers staff, that 

means more scheduling problems, more substantial prehearing preparation of 

memoranda, and shorter time limits. It also means more pressure from attorneys 

telephoning to ask for expedited schedules and to ask about procedures, the 

disposition of motions, and various other matters. Like district judges, bankruptcy 

judges differ in their attitudes about direct contact between law clerks and 

attorneys.

Some bankruptcy judges hold court in more than one place. Law clerks and 

judicial assistants to those judges usually have substantial duties in preparing 

for travel, including assembly of materials (such as appropriate portions of case 

records necessary for the trip). The judge’s staff will usually have extra duties in 

the additional places of holding court because the other staff available may not 

be as complete as in the home court.

  

§ 4.5 U.S. Magistrate Judges 

The authority of magistrate judges derives primarily from the Federal Magistrates 

Act of 1968 and as amended numerous times since. 28 U.S.C. §§ 631–639. Significant 

Supreme Court cases interpreting the Act include Mathews v. Weber, 423 U.S. 261 

(1976) (upholding magistrate judge authority to hear Social Security appeals 

on a report and recommendation basis); United States v. Raddatz, 447 U.S. 667 

(1980) (upholding magistrate judge authority to conduct hearings on motions 

to suppress evidence in felony cases on a report and recommendation basis); 

Peretz v. United States, 501 U.S. 923 (1991) (upholding magistrate judge authority 

to conduct felony voir dire proceedings with the parties’ consent); and Roell v. 

Withrow, 538 U.S. 580 (2003) (holding that parties’ consent to disposition of a 

civil case by a magistrate judge under 28 U.S.C. § 636(c) could be inferred from 

the parties’ conduct during the case). A general outline of the duties performed 

by magistrate judges is described below.

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§ 4.5.B

A. Initial Proceedings in Criminal Cases 

Under 28  U.S.C. §  636(a), a magistrate judge may perform various duties and 

conduct proceedings in criminal cases, including the following:

• accept criminal complaints

• issue arrest warrants and summonses

• issue search warrants

• conduct initial appearance proceedings and detention for criminal defendants, informing them of the charges against them and of their rights

• set bail or other conditions of release or detention under the Bail Reform 

Act, 18 U.S.C. §§ 3141–3145

• appoint attorneys for defendants who are unable to afford or obtain counsel

• hold preliminary examinations, or “probable cause” hearings

• administer oaths and take bail, acknowledgments, affidavits, and depositions

• conduct extradition proceedings

B. References of Pretrial Matters from District Judges 

Under 28 U.S.C. § 636(b), district judges may delegate a wide variety of duties to 

magistrate judges to assist the district judges in expediting the disposition of civil 

and criminal cases, including the following:

• hearing and determining any pretrial matters that are not case-dispositive, 

such as procedural and discovery motions

• hearing case-dispositive motions (such as motions for summary judgment or dismissal, or for suppression of evidence), and submitting findings and a recommended disposition of such motions to a district judge

• reviewing and recommending disposition of Social Security appeals 

and prisoner litigation (including state habeas corpus petitions under 

28 U.S.C. § 2254, federal habeas corpus matters under 28 U.S.C. §§ 2241 

and 2255, and prisoner civil rights actions under 42 U.S.C. § 1983), and 

conducting necessary evidentiary hearings in prisoner cases

• conducting calendar calls, pretrial conferences, and settlement conferences

• serving as a special master in complex cases under Federal Rule of Civil 

Procedure 53

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C. Disposition of Petty Offense and Class A 

Misdemeanor Cases 

Under 28 U.S.C. § 636(a) and 18 U.S.C. § 3401, magistrate judges have the authority to dispose of all federal petty offense and Class A misdemeanor cases (the 

maximum terms of imprisonment are six months or less and one year, respectively). In all petty offense cases, including cases involving juveniles, a magistrate 

judge may conduct the trial and impose the sentence without the consent of the 

defendant. In a Class A misdemeanor case, the magistrate judge may conduct 

the trial, either with or without a jury, and impose the sentence only when the 

defendant has consented to disposition of the case by a magistrate judge and has 

waived the right to disposition of the case by a district judge.

D. Disposition of Civil Cases 

Under 28  U.S.C. §  636(c), a full-time magistrate judge may conduct the trial, 

either with or without a jury, and dispose of any federal civil case with the consent 

of the litigants. In such cases, a magistrate judge sits in lieu of a district judge on 

stipulation of the parties and on reference from a district judge. In this capacity, 

a magistrate judge exercises case-dispositive authority and may order the entry 

of a final judgment.

E. Additional Duties 

Under 28 U.S.C. § 636(b)(3), a magistrate judge may also be assigned any “additional duties as are not inconsistent with the Constitution and the laws of the 

United States.” In light of this provision, several courts have authorized magistrate judges to conduct allocution proceedings to accept felony guilty pleas under 

Federal Rule of Criminal Procedure 11. A magistrate judge may also be called on 

to assist the district court in administrative matters.

For additional information on matters that may be referred to magistrate 

judges, see the Benchbook for U.S. District Court Judges (Federal Judicial Center, 

6th ed. 2013), at sections 1.13 and 6.09; the Inventory of United States Magistrate 

Judge Duties, available online at http://jnet.ao.dcn/court-services/judges-corner/

magistrate-judges/authority-magistrate-judges/inventory-united-states-magistratejudge-duties; and A Procedures Manual for United States Magistrate Judges, available

at http://jnet.ao.dcn/court-services/judges-corner/procedures-manual-unitedstates-magistrate-judges. The last two are Administrative Office publications.

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§ 4.6.B

Under 28 U.S.C. § 636(b)(4), each district court is required to “establish rules 

pursuant to which the magistrate judges shall discharge their duties.” In some 

courts, magistrate judges are used to the full extent permitted by the Federal 

Magistrates Act. For example, many courts delegate pretrial management of all 

civil cases to magistrate judges, while in other courts matters may be referred to 

magistrate judges on a case-by-case basis.

  

§ 4.6 Case Management: The Appellate Court 

Each appellate court has a system for assigning cases, managing motions, and 

scheduling hearings. In contrast to district court practices, most appellate casemanagement functions are performed in the clerk’s office, not in judges’ chambers. 

Check your court’s specific procedures and internal operating procedures.

A. Motions 

The processing of motions on appeal is described in the appellate court’s internal 

operating procedures. Federal Rule of Appellate Procedure 27 describes the 

prescribed form for motions. Some motions are decided by a panel of judges, 

some by a single judge, and some are delegated by court rule to the clerk of court 

or another court officer. The local rules list those motions on which a single judge 

or the clerk of court may act. Courts of appeals differ on procedures for deciding 

motions. Some courts assign panels specifically to decide motions. Although 

the court may hear oral presentation on motions, motions are more commonly 

decided on the papers. Each court has procedures for handling emergency 

motions exigently.

B. Screening 

Federal Rule of Appellate Procedure 34(a) allows oral argument in all cases 

unless, pursuant to local rule, a panel of three judges unanimously decides that 

oral argument is not needed, after examination of the briefs and record. The rule 

provides that oral argument is to be allowed unless (1) the appeal is frivolous; 

(2) the dispositive issue or set of issues has been recently authoritatively decided; 

or (3) the facts and legal arguments are adequately presented in the briefs and 

record, and the decisional process would not be significantly aided by oral 

argument. In keeping with this rule, most courts employ a procedure known as 

screening to review jurisdictional issues and to select those appeals to be decided 

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without oral argument (i.e., on the briefs and written record alone). Screening 

may be done within the clerk’s office, by staff attorneys, or by a judge.

Other methods are used to manage the court’s caseload. Every court of appeals has a circuit mediation program. The circuit mediators (also referred to as 

conference attorneys or settlement counsel) assist the court in settling cases on 

appeal, thereby conserving judicial resources. Court local rules outline the practices of each mediation office. See Niemic, Mediation & Conference Programs in 

the Federal Courts of Appeals: A Sourcebook for Judges and Lawyers (Federal 

Judicial Center, 2d ed. 2006).

C. Order of Assignment of Appeals for Oral Argument: 

Calendar Preparation 

In the courts of appeals, cases are sent to appellate panels for disposition, with or 

without oral argument. 

There are two separate procedures in the assignment of cases to panels of 

judges that together maintain the integrity of the case-assignment process. 

Typically, the clerk of court or the circuit executive sets up a calendar of threejudge panels, generally a year or more in advance. Separate from the assignment 

of judges to panels is a process for the assignment of cases to particular panels for 

oral argument or summary disposition. Generally, once a case has been designated 

for panel disposition, someone in the clerk’s office (e.g., a calendar clerk) will 

randomly assign the case to a panel. Court practices vary as to the timing of the 

announcement of panel members and the assignment of cases to particular panels. 

Typically, this information is disclosed to the litigants and the public a short time 

prior to the date of oral argument. Courts that sit in more than one location try to 

schedule an appeal for hearing at the location most convenient to counsel.

Whoever makes the assignments for a particular session operates under 

court guidelines to determine the number and kinds of appeals to be scheduled 

for each day. Some courts try to equalize the workload for each day of the session 

and, if more than one panel is sitting, to equalize the workload among the panels. 

Others try only to equalize the workload for a week of sitting. In some courts, 

the person making the assignments also schedules appeals with related issues or 

facts for the same panel. Alternatively, if a controlling appeal is awaiting decision 

by another panel in the court, the hearing may be delayed until the other panel 

decides the controlling appeal. In most courts, the fact that the Supreme Court 

has granted certiorari in an appeal presenting the same issue is not sufficient 

reason to postpone assignment, although panels, after hearing argument, often 

await the Supreme Court’s decision before preparing an opinion.

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§ 4.6.E

The senior active judge on the panel is the panel’s presiding judge and controls the proceedings during the hearing. The courtroom deputy, under the supervision of the judge, opens and closes court and maintains order and decorum. 

Each judge’s law clerk or the courtroom deputy is responsible for supplying the 

courtroom with materials needed by the judge and counsel.

Each court has its own rules and customs regarding protocol, dress, and 

courtroom behavior.

Courts of appeals do not have reporters, although they record oral argument 

for the use of the court. Litigants who want transcripts must request court approval 

and arrange for a reporter or some other person to prepare the transcript. Many 

courts maintain lists of qualified persons for this purpose.

D. Order of Opinion Writing 

Most courts issue signed opinions in only a minority of cases. Although there is 

no statutory requirement that opinions be issued within a fixed time or in any 

particular order, judges generally determine priority based on three criteria: the 

importance and urgency of the decision; the nature of the appeal, giving direct 

criminal appeals priority over civil cases; and the order in which appeals were 

argued to the court (or in which briefing was completed).

At any time, each judge will have drafts of opinions in various stages of 

preparation. The length of time between preparation of the initial draft and 

issuance of the final opinion varies greatly depending on the number and 

complexity of issues that must be treated, the extent of suggested revisions and 

additions by other members of the appellate panel, and whether concurring or 

dissenting opinions are also issued.

E. Distributing Opinions 

After an opinion is issued, the original is filed with the clerk of court. When the 

opinion is filed, the clerk of court prepares a judgment in accordance with the 

operative language of the opinion. Fed. R. App. P. 36. The judgment is usually 

quite simple, merely stating whether the judgment of the trial court is affirmed, 

reversed, or otherwise modified, and giving directions on remand.

The clerk of court arranges for posting the opinion on the court’s website and 

distributes copies to attorneys and parties, in accordance with court procedures. 

The public availability of the opinions on the Internet offers access to the posted 

opinions to legal publishers and interested parties. In addition, each court has its 

own practices for printing opinions, either in-house or through a contract printer.

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You may be responsible for assisting your judge in proofreading and editing 

opinions prior to publication. Your judge may also direct you to submit opinions to 

publishers or other individuals in accordance with local practices and procedures.

Law clerks should be aware that when creating and editing files with standard 

computer applications, those applications store document revisions, comments, 

and other information within the files. This private information, known as 

metadata, remains in documents when they are finalized and distributed, and 

can be accessed with publicly available software. Follow procedures in your court 

for creating and transmitting electronic documents to ensure that metadata has 

been removed before sending files outside of the court.

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5

Legal Research and Writing

  

§ 5.1 Research 

Legal research is perhaps the most important task of any law clerk. You must make 

sure your judge has the material needed to understand the jurisprudence related 

to the case. Adequate judicial research includes not only checking the authorities 

cited in the lawyers’ briefs to determine their relevance and the accuracy of the 

citations, but also conducting independent research to determine whether the 

lawyers have overlooked controlling precedent or any helpful authority that may 

not be precedential.

The following suggestions may be of assistance.

• Understand the purpose of the research project. For example, the extent 

and depth of research for a bench memo is less than that for an opinion.

• Understand the facts. Judges apply law to specific factual situations, and 

if the facts of prior cases are distinguishable, those decisions may have 

little relevance, even if the same legal principle is at issue.

• Understand the legal issue. It helps to restate the issue in writing; articulation helps to clarify the issue and often indicates whether the researcher’s understanding is adequate and precise.

• If the legal area in which the issue arises is unfamiliar, perform a preliminary survey of the field using secondary sources such as specialized 

treatises and texts (e.g., the Federal Judicial Center’s series of monographs); ALR annotations; law review articles; loose-leaf services; and 

legal encyclopedias. Call or email your local court librarian for help 

identifying appropriate research tools and for help in designing your 

research strategy. When using secondary sources, such as those noted 

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above, make sure you are distinguishing between the actual decisions 

being cited and the author’s characterization or opinion of them.

• On Westlaw, identify useful West key numbers pertinent to the subject 

through cases cited in the parties’ briefs; cases or key numbers located 

through the preliminary survey of secondary sources referred to above; 

and examination of the appropriate key number outlines of the West 

Digest System.

• On LexisNexis, use the headnote and legal topics to gather similar cases 

on a given point of law.

• Use LexisNexis or Westlaw to search for additional authorities. The court 

librarian is a great resource to help formulate your research strategy.

• In cases involving federal statutes, examine the annotations to the appropriate statutes in the U.S. Code Annotated. In cases involving state 

statutes, refer to the annotations in the state statute source.

• Read the opinions in full. Carefully examine the actual opinions to determine their applicability to the problem.

• Distinguish the holding of the case from dicta.

• Read all dissents and concurrences. These special opinions may be particularly helpful in understanding complex or novel legal questions.

• Find binding precedent. Distinguish carefully between controlling and 

persuasive precedents. A state court decision on a procedural matter is 

usually not binding on a federal court, but a substantive decision of a 

state court may be controlling in a diversity case. Check to find whether 

there is conflicting authority within the circuit.

• Shepardize or KeyCite (on LexisNexis or Westlaw) any cases found to 

be on point to locate or determine their continued authority; more recent decisions; similar cases from a controlling jurisdiction; and more 

authoritative or better-reasoned decisions.

• Exhaust all sources. If you have not located appropriate precedents, 

turn to secondary sources, or Shepardize or KeyCite similar but noncontrolling cases or analogous cases with the hope of locating more 

controlling precedents, or ones at least more similar to the one to be 

decided. Be sure to look up cases cited within your primary case; often, 

the cases on which an opinion relies are more on point than the primary 

opinion itself.

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• Search legal periodicals and use a periodicals index. Law reviews can 

provide a thorough explication of an area of law with citation to the essential primary legal authority. In addition to searching the full-text law 

review and periodical databases on Westlaw and LexisNexis, try using 

the major indices: the Legal Resource Index and the Index to Legal Periodicals. (These are likely also available at your library in paper format.) 

You can search by topic or by case (to find a case note).

• Do not overlook the American Law Institute’s Restatements of the Law, 

both in final and draft form, and the model and uniform codes. (The 

Uniform Acts can be found in Martindale–Hubbell.)

• If you are spending more than fifteen minutes doing online research 

without success, stop and call your local court librarian for assistance.

• Use your judge’s files. If your judge maintains an indexed file of prior 

opinions (as many do), consult these files. They may be extremely helpful if they contain work on a case similar to the one being researched.

You will usually relay the results of your research to your judge in writing, by 

either a memo or a draft opinion. However, judges will sometimes want an oral 

briefing, particularly when the information is needed quickly.

In addition to research on specific cases, law clerks have a professional responsibility to keep up with developments in the law. Examine all Supreme Court 

opinions as promptly as possible. The Supreme Court usually issues opinions on 

days it is in session, which can be determined from its calendar posted on its 

website. The Supreme Court posts its opinions to its website the day they are issued. Both appellate and district court law clerks must examine all slip opinions 

published by their circuit as soon as possible; they are mandatory precedent to 

district courts and law of the circuit for other panels of the circuit court. You 

should immediately call to your judge’s attention any opinion bearing on a pending case. District court law clerks should also review all opinions of their district 

that appear in the advance sheets of the Federal Supplement.

If time permits, law clerks should review decisions published in the Federal 

Reporter and Federal Rules Decisions. Because of the large number of opinions 

now being published, it is impossible to read the full text of all opinions. After 

reviewing the headnote of each case, you should examine in full at least those 

opinions applicable to cases pending before your judge or presenting issues 

frequently occurring in the court, as well as other decisions of particular interest.

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§ 5.2

  

§ 5.2 Writing 

A. General Rules 

Decision making remains exclusively your judge’s responsibility, but judges vary 

widely in how much writing they do personally and how much they expect law 

clerks to do.

You may be assigned writing tasks for some or all of these kinds of documents:

• memoranda to the judge

• orders and minute entries (in the district court); orders and short per 

curiams or other brief dispositions (in the courts of appeals)

• opinions including findings of fact and conclusions of law (in the district 

court); both memorandum orders and opinions (in the courts of appeals)

• correspondence

Law clerks must write clearly, concisely, and logically. Certain general rules 

of good writing style are as follows:

• Prepare an outline before starting. The best way to organize your thoughts 

and ensure that everything pertinent is included is to prepare a logical 

sentence or topical outline before beginning to write. Such an outline is 

essential before writing a draft opinion or any long document.

• Introduce the subject. At the outset, let the reader know the subject of 

the document. When preparing a memorandum on a specific issue, begin 

with a precise statement of the issue, followed by your conclusions as to 

its resolution. If preparing an opinion or a memorandum summarizing 

an entire case, identify the parties, explain at the outset the history of 

the case, and state the issues, their resolution, and the action taken by 

the court (e.g., judgment vacated, motion for summary judgment denied, 

affirmed). While it is critical to state the relevant and material facts, do 

not include inconsequential information that does not bear directly on 

the question to be decided.

• Avoid the use of generic terms as specific identifiers. Federal Rule of Appellate Procedure 28(d) requires that designations such as “appellant” 

and “appellee” be kept to a minimum in briefs and oral arguments. The 

rule says that it is clearer “to use the designations used in the lower court 

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tive terms such as ‘the employee,’ ‘the injured persons,’ ‘the taxpayer,’ 

‘the ship,’ ‘the stevedore.’” This is a good policy to follow in all judicial 

writing as well.

• Follow the proper format. Your judge may require a special organization 

and arrangement of intraoffice written materials and may have standardized formats for other written materials. Learn these standard formats and follow them. (Examples from past cases can be found in your 

judge’s files.) The judicial assistant or career law clerk may be able to 

advise you whether your judge has a prescribed format.

• Be accurate and give appropriate references. Be careful to quote accurately from a cited authority. Be sure that the cited authority has not 

been overruled or qualified. Some judges require their law clerks to give 

citations to the sources of factual statements. Thus, if a particular fact is 

established by Smith’s deposition, its statement is followed with “(Smith 

dep. p. 10).” This reference allows the judge to locate the statement easily, 

read it in context, and verify its accuracy. Often, lawyers will support 

their statements of fact in a brief by citing a deposition, a transcript of 

trial, or an exhibit. You should verify those citations before incorporating them.

• Write succinctly, clearly, and precisely. Good legal writing is simple, 

brief, and clear. Unnecessarily abstract or complex words and phrases, 

flowery language, or literary devices may interfere with the reader’s ability to understand the point. Unless your judge instructs otherwise, leave 

embellishment to your judge.

• Subdivide. In a lengthy opinion or order, the reader may find it easier to 

follow if the material is divided into subparts, each labeled with letters, 

numbers, or short subtitles.

B. Editing 

The four primary goals of editing are

1. To correct errors in grammar and punctuation

2. To eliminate ambiguities and promote clarity

3. To improve the manner and order of presentation of the law or facts

4. To improve the writing style

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Editing includes deleting words and phrases that may create confusion, eliminating redundant material, and correcting verbosity. Similar principles apply 

whether you are editing your own work or that of another law clerk or the judge.

• If you are editing your own work, you should set the draft aside and work 

on something else for a while before beginning editing. A fresh view may 

suggest improvements that might not otherwise occur to you.

• Read the material to be edited aloud; this may reveal previously unnoticed problems.

• Ask a co-clerk to read and comment on the draft, especially if the coclerk has not worked on it.

• Brevity and clarity are both important. Short, simple sentences are generally better than lengthy, compound, or complex sentences. However, 

strings of sentences of the same length are monotonous; a series of short 

sentences should be broken with an occasional longer one.

• The use of excessive punctuation may indicate that the sentence should 

be broken into two or more sentences.

C. Style 

Each judge has a different writing style. Some prefer simple declarative sentences 

and use plain language. Others employ complex sentences and a varied vocabulary. 

Some use metaphor and simile to make a point. Whatever the judge’s personal 

style, most judges prefer that their law clerks try to write in the manner that the 

judge has adopted. The judge issues opinions year after year; continuity in style is 

desirable. Read several of your judge’s prior opinions to become familiar with the 

style. If in doubt, ask your judge what stylistic embellishment is desired.

Avoid using gender-specific pronouns when speaking generally or hypothetically; use ungendered language instead (e.g., the defendant instead of he or she; 

plural instead of singular). Acquaint yourself with your judge’s preference regarding gender-specific language, and keep in mind the federal judicial system’s commitment to gender fairness.

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§ 5.2.E.1

D. Suggested Reference Materials 

All chambers should have a comprehensive dictionary, thesaurus, and The 

Bluebook. In addition, the following references will help you with your writing 

assignments.

• Judicial Writing Manual: A Pocket Guide for Judges (Federal Judicial 

Center, 2d ed. 2013)

• Ruggero J. Aldisert, Opinion Writing (Carolina Academic Press 

3d ed. 2012)

• Wilson Follett, Modern American Usage: A Guide (E. Wensberg ed., Hill 

& Wang 1998)

• Bryan A. Garner, The Elements of Legal Style (2d ed. 2002)

• Bryan A. Garner, The Redbook: A Manual of Legal Style (4th ed. 2018)

• Joyce J. George, Judicial Opinion Writing Handbook (5th ed. 2007)

• William D. Popkin, Evolution of the Judicial Opinion: Institutional and 

Individual Styles (2007)

• Antonin Scalia and Bryan Garner, Making Your Case: The Art of 

Persuading Judges (Thomson West 2008)

• William Strunk, Jr. & E.B. White, The Elements of Style (4th ed. 1999)

• Bernard E. Witkin, Manual of Appellate Court Opinions (1977)

• Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers (Carolina 

Academic Press 6th ed. 2019)

• U.S. Government Printing Office Style Manual (31st ed. 2016)

E. Specific Writing Assignments 

1. Jury Instructions

Many district judges expect their law clerks to assume a major role in preparing 

proposed jury instructions. Instructions must be finished before the end of the 

presentation of evidence.

The judge will indicate whether the case will be submitted to the jury for a 

general verdict or on special interrogatories. The use of special interrogatories 

may substantially affect the content of the instructions. In addition, the judge 

will decide whether the trial of one or more issues is to be separated; for example, 

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it is common in tort cases to try the liability issue separately and to ask the jury 

first to reach a verdict on this issue. If the jury decides for the defendant, it will 

be unnecessary for it to decide damages. If it decides for the plaintiff, the parties 

may reach a compromise without going to trial on damages.

The judge will have told trial counsel to submit proposed jury instructions. 

Most local court rules require that proposed instructions be submitted at the 

beginning of the trial or at some earlier time. They may, of course, be supplemented 

if unforeseen matters arise during the course of the trial. Counsel are instructed 

to prepare each proposed instruction on a separate, numbered page with the 

description at the top. For example: Plaintiff’s Requested Jury Instruction No. 1, 

with a citation of authority, such as a case or statute, at the end. (The citations 

are not read to the jury, but enable the judge or law clerk to determine quickly 

whether the requested instruction is correct.) Most likely, your judge will review 

counsel’s requested instructions and will give you preliminary reactions.

Most circuits have developed pattern or model jury instructions. Each judge 

in those circuits has a copy of the pattern instructions, and most judges use them 

as a starting point. If your circuit does not have pattern instructions, refer to 

the pattern instructions in other circuits whose law is the same as the law in 

your circuit.

Federal Rule of Civil Procedure 51 and Federal Rule of Criminal Procedure 30 

require that before closing arguments, the judge must inform counsel which jury 

instructions will be given. Some judges hold a conference with counsel (usually 

in chambers, but on the record), discuss the proposed instructions, and permit 

counsel to argue for their requests. Other judges do not hold conferences, but 

provide copies of their proposed instructions to all counsel and give counsel an 

opportunity to comment, object, or request additional instructions in writing.

In any event, before the jury is instructed, each counsel must be given an 

opportunity to make objections to the proposed instructions. This can be done 

in conference or in open court, but must not be in the presence of the jury. Some 

judges require counsel to write their objections directly on a copy of the proposed 

charge and then file this copy in the record for purposes of appellate review. If 

changes are made after a lawyer voices objections, the charge is retyped and a 

copy of the charge as delivered is filed in the record. This procedure accurately 

records the instructions requested, any objections, and the charge delivered, in 

order to provide a complete and accurate record to the appellate court.

Once a final set of jury instructions has been prepared for a specific type of 

case, a copy should be retained in the chambers files. Those instructions can be 

used as a starting point for the next case involving similar issues.

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2. Memoranda of Law or Fact

A memorandum is an informal document intended to communicate the results 

of a research assignment or a summary of a case. All memoranda should indicate 

the following:

• the person who prepared the memo (some judges want the law clerk to 

use initials only)

• the date it was prepared

• the type of memo, or a short summary of the subject discussed

What follow are some of the most common memoranda.

The Bench Memo

This is a document prepared by a law clerk for the judge to use during oral argument. Most judges want bench memos to be brief, often only a page or two, and 

do not expect a significant amount of independent research by the law clerk. The 

bench memo is most often a summary of the briefs of the parties, together with 

(when requested) analysis of the validity of the respective positions of the parties 

and identification of issues that require further inquiry.

One commonly used organizational format for a bench memo contains the 

following:

• the docket number, a short caption of the case, and names of the members of the panel

• in an appeal, the district court and the name of the judge from whom the 

appeal is taken

• a statement of the case, reflecting how the case arose, the procedural 

history and status, and in appellate cases, the trial court’s ruling and 

which party appealed

• a brief statement of the facts of the case

• a statement of the issues raised by the parties

• a summary of the arguments raised by the parties

• matters that should be clarified, expanded upon, or explained during 

oral argument

• if requested by the judge, the law clerk’s views on the merits of the case, 

supported by analysis and explanation, and recommendations on disposition of the case (some judges do not wish their law clerks to express 

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any views; others discourage any conclusory language until after the 

case has been argued and thoroughly researched)

The Statement of Facts

Frequently, a judge wants the facts in a particular case, or the facts relating to a 

specific issue, summarized in writing. In an appellate court, the sources for this 

kind of memo are the briefs and appendix or record excerpts. In a trial court, the 

sources are the case file, trial exhibits, the law clerk’s notes taken during hearings, 

and, when necessary, the court reporter’s notes or transcripts.

In preparing a statement of facts, strive for accuracy and objectivity, and if 

there are disputed factual issues, present the evidence supporting each position. 

It is essential that you neither allow a personal opinion to shade the statement 

of facts nor present a partisan view of the evidence. A narrative statement of the 

facts, arranged chronologically, is usually the easiest to understand. Depending 

on the status of the case, the judge may ask you to express a view about how any 

conflicts in the evidence should be resolved.

The Single-Issue Memo

The need for a memo dealing with a single issue may arise from inadequate 

preparation by counsel, an unexpected development during trial, or the judge’s 

wish to pursue an aspect of the case not fully developed by the attorneys. This 

memo may have to be prepared under extreme time pressure during trial but 

must nevertheless be completed with accuracy and care.

The Full-Case Memo

This type of memo is usually preliminary to an opinion, and unless otherwise 

instructed, you should approach it in that manner. It is usually better to overwrite 

this kind of memo, including facts of borderline relevancy and legal research that, 

although not directly on point, may have some bearing on the outcome of the 

case—it is easier to delete unnecessary material than to insert material omitted 

from an earlier draft. Some judges like this memo in the form of an opinion.

Legal problems often repeat themselves. After completing a research memo 

or reading a brief submitted to the court that is unusually thorough, you should 

file a copy in the judge’s legal memoranda files for future use. Such files can be an 

invaluable resource and prevent needless duplication of effort.

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3. Resolution of Motions in Trial Courts

The resolution of motions is often a substantial part of the trial court’s work on a 

case. Some motions may require an opinion equivalent in substance and length to 

a final opinion after trial. But for most, the judge may write only a short opinion 

or order, dictate reasons into the record, or simply indicate disposition with a 

single word: Granted or Denied. The law clerk is usually the member of the judge’s 

staff charged with responsibility for knowing which motions are pending, what 

memoranda or other pleadings have been filed for each motion, and the status 

of each motion. Your judge will instruct you about the type of memorandum or 

order indicated. Motion management is discussed in more detail in chapter 3.

Some judges want their law clerks to prepare a memorandum on every motion. Others require memoranda only on certain matters or for certain types of 

cases. If you are required to prepare a memorandum, first examine the briefs or 

memoranda from both the moving party and the opposition. The legal standard 

or rule that applies is often fairly clear; the difficulty is in applying the rule to the 

facts. The facts are almost always incompletely presented, or at least slanted in 

the party’s favor. You must examine and compare each party’s version and then 

check them against the exhibits, declarations, or other materials in the record.

Look for samples of predecessors’ memos on motions and use them as guides. 

There is no one style or format for such memos, but certain features are common:

• name and number of the case, perhaps the category of case (e.g., antitrust, 

diversity tort case), date of the memo, and the writer’s initials

• statement of the nature of the motion or motions now under consideration, identifying the moving party

• recommended disposition, summarized

• discussion of the parties’ chief arguments, the legal standard set by controlling statutes, rules, or precedent, and a succinct explanation of your 

reasons for recommending a particular result on each point

• statement of facts and procedural posture

The statement of facts should include a description of the parties and their relationships to one another, key events, and a notation of facts in dispute. The memo 

should indicate the source of the facts stated, particularly when they are controverted or perhaps intentionally vague, such as the paragraph of the complaint, 

the identification of the relevant affidavit and paragraph number, or the number 

of the exhibit from which the fact stated is derived.

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Some judges may also wish to have a draft of a proposed order or judgment 

disposing of the matter along the lines recommended by the law clerk.

You should avoid two common errors: (1) failing to pay attention to the procedural status of the case, and (2) writing a law-review-style piece rather than a 

memorandum that meets the judge’s needs.

4. Memos for Criminal Motions

Law clerks are not usually required to prepare a memo for each motion in a criminal case. In some districts, motions are made in an omnibus pleading. In others, 

they may be made separately, but without a predetermined schedule, because 

the Speedy Trial Act requires that a criminal defendant be brought to trial within 

seventy days of the initiation of proceedings, and there is little time for briefing 

schedules.

Before writing a memorandum, check with the courtroom deputy (or, if the 

judge’s policy permits, with opposing counsel) to determine whether opposing 

counsel will oppose the motion. The judge may handle last-minute evidentiary 

or procedural motions personally, as they often surface first during the pretrial 

conference. When a memo must be written, the process is essentially the same as 

that used in preparing memos in civil cases.

5. Findings of Fact and Conclusions of Law

A district judge who sits as the trier of fact in an evidentiary hearing or trial 

may prepare either a conventional opinion or findings of fact (a statement in 

separately numbered paragraphs of each material fact that the judge concludes 

was proved) and conclusions of law (these follow the findings of fact, and state in 

separate paragraphs the principles of law the judge finds applicable to the facts).

Arranging findings of fact and conclusions of law in separately numbered 

paragraphs, each consisting of one or two relatively brief declarative statements, 

helps the parties understand the opinion and makes appellate review easier. Your 

judge may direct you to prepare a draft of either the opinion or the findings of fact 

and conclusions of law.

In some cases, the court requires the plaintiff’s counsel to prepare proposed 

findings of fact and conclusions of law and requires defense counsel to respond. 

Other judges may require each counsel to prepare a separate proposal. The court 

reviews the proposals and makes necessary revisions or additions before adopting 

any of them.

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If proposed findings of fact are based on transcribed testimony (either by 

deposition or of the trial), the court may insert citations to page numbers of the 

various transcripts at the end of each paragraph of conclusions of fact. The judge 

may ask the law clerk to review those citations and to review legal authorities cited 

by the parties in their trial briefs to determine whether the proposed conclusions 

of law are correct.

6. District Court Orders

Federal Rule of Civil Procedure 58 requires that unless the court orders otherwise, 

the clerk of court must promptly prepare, sign, and enter a judgment when the 

jury returns a general verdict, when the court awards only costs or a sum certain, 

or when the court denies all relief. However, if the court grants other relief, or 

the jury returns a special verdict or a general verdict accompanied by answers 

to interrogatories, the clerk of court prepares a form of judgment, and “the court 

must promptly approve the form of the judgment.”

Routine orders are usually prepared in the office of the clerk of court. In some 

cases, however, it may be necessary for the court to prepare an order that states 

the relief to be granted. These orders are prepared in the judge’s chambers and are 

sometimes drafted by the law clerk. In some courts, judges direct the prevailing 

party to prepare an order and submit it to opposing counsel for approval.

Most courts have a standardized format for orders, and the judicial assistant 

or career law clerk will be familiar with that format. This usually includes the 

name of the court, the docket number of the case, the caption of the case with 

the names of the parties, and a descriptive title indicating the nature of the order. 

The order should include a paragraph stating the date of the hearing (if any), 

appearances of counsel, and the nature of the matter decided by the order.

An order has two functional parts: (1) the factual or legal basis for the determination; and (2) a statement that tells the parties what action the court is taking 

and what they must do as a result of that action.

No specific language is required to make an order effective. Use simple and 

unambiguous language. The purpose of the order is to tell the person to whom the 

order is directed precisely what to do and to allow others to determine whether 

that person has done it correctly and completely.

The parties may submit a proposed order or judgment for the district judge’s 

signature in the following circumstances: the judge ruled from the bench on a 

legal matter and asked the prevailing party to submit an appropriate order for 

the judge’s signature; the judge decided a nonjury case, announced the findings 

or reasons and grounds from the bench, and asked the prevailing party to submit 

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an appropriate judgment; or the parties stipulated to a result in a particular case, 

with or without the judge’s prior involvement, and submitted a proposed order, 

accompanied by their stipulation, for the judge’s approval and signature. In other 

cases, pursuant to Federal Rule of Civil Procedure 58, the clerk of court may 

submit a prepared form of judgment for court approval.

When these documents arrive at chambers, a law clerk is usually responsible 

for their detailed review and should take the following steps:

• If the order or judgment is submitted after the judge has made a determination in court with all parties present, check to be sure that the losing 

party agrees that the order or judgment conforms to the judge’s decision. 

Such approval is usually indicated by the signatures of counsel for the 

losing party (e.g., “Approved as to form. Signed J. Attorney, Counsel for 

Defendant”).

• If the parties agreed or stipulated to the decision, with or without the 

judge’s prior involvement, confirm that the submitted order or judgment 

is accompanied by the stipulation, signed by the parties, and that the 

form and substance of the order or judgment itself have been approved 

by all parties.

• Check the substance of the order or judgment to ensure that it complies 

with the judge’s directions on the stipulation or agreement.

7. Opinions

Opinion writing involves five basic steps.

First, become thoroughly familiar with the arguments from both sides. Carefully review the briefs. Listen to the oral arguments. If you weren’t present for 

oral arguments, obtain recordings or transcripts if available. Annotate briefs or 

make your own notes, as you should refer back to the briefs during the following 

steps. Discuss the proposed opinion with the judge, examining the structure, the 

rationale, and the result to be reached.

Second, research. See section 5.1 for specific pointers. Frequently, additional 

research is necessary as the opinion is drafted.

The third step is planning the opinion. Write a clear statement of the facts 

and legal issues presented in the case. Then, determine which issues must be 

decided. If the case turns on a procedural issue, any discussion of substantive 

issues raised by the parties may be gratuitous. Occasionally, if the same result 

would have been reached after considering the substantive issues, so stating may 

strengthen the opinion.

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Determine which parts of the opinion raise issues to be treated in detail. If 

there is a circuit decision directly on point, a lengthy analysis of the precedents 

and principles related to that particular issue has little value.

Fourth, outline the opinion. In opinions, as in any other kind of writing, a good 

outline will help the writer produce a clear, complete, and well-organized product.

The fifth and final step is writing the opinion. Opinions usually have the following components:

• The introduction (opening paragraph). The introduction should establish 

clearly who the parties are and, if the case is on appeal, what agency or 

court decisions are being reviewed. In addition, many judges like to state 

at the outset the principal issues and the decision made by the writing 

court. This practice has the advantage of immediately informing the 

reader of the result in the case.

• The facts. State the facts developed at the trial or in the record in 

chronological order. Do this in a narrative style, using short sentences. 

Recite all of the relevant facts, but omit everything else. Avoid verbatim 

quotations of excerpts from the pleadings or the transcript. In an 

appellate opinion, this part of the opinion may conclude with a summary 

of the trial court’s or agency’s reasons for its decision and a statement of 

the issues on appeal.

• Applicable law. Discuss the legal principles applicable to the case. (In 

appellate opinions, the applicable law usually includes the standard 

of review.) Avoid lengthy quotations from cases or treatises. Cite the 

authorities for these principles, but avoid string citations. Meritless 

points do not require detailed discussion. Many lawyers will present a 

smorgasbord of issues in a brief, hoping that the judge may find some 

tempting morsel among the offerings. In such cases, mention these 

issues so the lawyers will know they were noticed and simply say they 

are without merit (e.g., “Considering the testimony of the informant, 

the argument that the evidence was insufficient to warrant conviction 

merits no discussion”).

• Disposition. Apply the legal principles to the facts.

• Closing. Close with a specific statement of the disposition: judgment 

is rendered for the plaintiff for a specific dollar amount; the judgment 

appealed is affirmed, revised and rendered, or reversed and the case 

is remanded, with appropriate instructions to the lower court. These 

instructions should not leave the lower court any doubt as to what is 

required on remand.

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When reviewing a heavily footnoted opinion, the reader’s eyes must constantly 

move from text to footnotes and back again. This is distracting and wastes time. 

For this reason, some judges object to any footnotes. Others use footnotes only for 

citations. Some judges use them to expand on the text of an opinion, to explain 

an inference in the opinion, or to discuss authorities. Follow your judge’s practice.

Finally, remember that this is a judicial opinion, not an essay or a law review 

article. Avoid personalized argument (and abuse of other judges). Write simply. 

Stick to the active voice where possible. Avoid excessive use of adjectives and 

adverbs. Make the meaning clear by using verbs and nouns. Do not clutter the 

opinion by citing every case you have read. Pare the message to its essentials. The 

opinion should cogently state the court’s decision and the basis for it.

F. Correspondence 

Some district judges prohibit law clerks from corresponding with lawyers; the 

judges either draft their own correspondence, direct their law clerks or judicial 

assistants to prepare drafts of correspondence for their signature, or delegate 

correspondence entirely to their judicial assistants. Other judges, however, direct 

their law clerks to correspond with lawyers from time to time on various matters, 

for example, inquiring about the progress of a case, scheduling a trial or hearing 

date, or requesting compliance with the court’s procedural requirements. The 

judicial assistant can provide a sample of letters written or approved by the judge. 

Refer to these samples or consult the judicial assistant about technical matters 

like the form of the letter heading and opening address. The following suggestions 

relating to court correspondence may be helpful:

• Let the reader know immediately what the letter refers to. In a large law 

firm, someone must sort the mail to see that it is delivered to the proper 

lawyer, and once that lawyer receives it, someone must determine to 

which case the letter relates. You can simplify these tasks by addressing 

your letter to a specific lawyer rather than to a firm and by placing the 

case title and docket number near the top of the page.

• Let the reader know why you, rather than the judge, are writing. Lawyers 

may wonder why a staff member is giving them instructions or requesting 

information, so use a simple introductory phrase such as “Judge Smith 

has asked me to advise you . . . ” or “Judge Smith has directed . . . .”

• Remember that although the letter may bear your signature, it is written 

on behalf of your judge. Excessive formality is not required, but undue 

familiarity is inappropriate.

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• Get to the point. For example, it may be helpful to the reader to know that 

this is in response to a letter the addressee wrote earlier. You can do this 

by simply starting with, “In response to your letter of May 1, Judge Smith 

has asked me to advise you that matters of this kind must be raised by 

written motion served upon opposing counsel.”

• Remember that you, like your judge, are a neutral party dealing with 

advocates. Unless your judge specifically directs otherwise, send copies 

of case-related correspondence to all counsel in the case. Even though 

you may believe that a letter is of significance only to the addressee, the 

court has an obligation to avoid ex parte communications.

See section 4.1.C for special considerations when corresponding by email.

1. Official Business Envelopes

Court envelopes and postage meters should be used only for court business—

they should not be used to mail personal items.

2. Juror Letters

Some district judges send a letter to each of the jurors after service on a given 

case, expressing the court’s appreciation. If the judge follows this practice, the 

office files will contain sample letters. The jury clerk can furnish a list of the 

jurors and their addresses. If the judge directs you to prepare such a letter, select 

a form for the letter, or compose a new one, and send a letter to each member of 

the jury, including alternates. If a particular juror serves a second or third time, 

make sure that the letter is different each time.

  

§ 5.3 Proofreading Documents and Checking 

Citations 

The need for accuracy in every document issued by the court cannot be overemphasized. A document that contains misspelled words or inaccurate citations indicates a lack of care in its final preparation. Every document must be proofread 

meticulously both for substantive correctness and to eliminate typographical and 

grammatical errors.

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Proofreading demands painstaking care. In checking citations, ensure the 

following:

• The cases cited in the opinion stand for the proposition of law for which 

they are cited.

• The parties’ names are spelled correctly, and the volume, court, page 

number, and year of the decision are correctly given.

• The style of the citation is consistent with the style usually followed by 

the court. (Most judges use The Bluebook: A Uniform System of Citation as 

a guide. Others may use The Chicago Manual of Legal Citation.)

It is a good idea for a law clerk other than the one responsible for an opinion 

to check the citations in the last draft of the opinion. A fresh pair of eyes is more 

likely to catch errors—occasional errors occur no matter how carefully the judge 

and the law clerk try to avoid them.

A. Checking an Opinion 

You may be asked to review an opinion drafted by your judge. As a preliminary 

matter, verify the following:

• that the court has jurisdiction

• that the procedural status of the case is correctly stated

• that the court’s ruling—the holding of the opinion—is stated clearly and 

succinctly

• that the facts supporting the losing party have been stated

• that the arguments of the losing party have been stated and adequately 

addressed

• that the cases cited stand for the propositions for which they are asserted

• that the conclusions are supported by clear reasoning and authorities

You should also seek to eliminate any errors that may have occurred in 

preparation. An opinion may be checked by following these four steps:

1. Check the formal elements. Compare the case title to the docket sheet 

in the clerk’s office. Compare the listing of counsel who appeared in the 

case to the briefs and minute order or submission order in the file (in 

appellate courts, this is usually done in the office of the clerk of court). If 

the hearing was before a multi-judge panel, compare the judges’ names 

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and the order in which they are listed to the records of the clerk of court 

or the judges’ notes.

2. Check all factual statements. Check factual statements against the original transcripts, if any, and documents. Do not rely on factual representations in the briefs or appendix. Factual statements may be supported 

by citations to the original depositions, transcripts, or exhibits in the 

following manner: “(Smith dep., p. 10).” Proofread, word for word, each 

direct quotation from an exhibit or a witness’s testimony. Make sure all 

omissions from quotations have been indicated by ellipses or asterisks. 

Verify all dates and numbers.

3. Check the accuracy of citations and quotations.

4. Review the briefs to be certain all issues have been covered.

B. Final Proofreading 

After an opinion has been checked and edited, the working draft may have interlineations, marginal inserts, strikeouts, and sections that have been moved 

around by a word processor. Proofread the final draft to make sure that it is identical to the working draft.

Proofreading is important and must be done with care and accuracy. It is 

most accurate when one person reads aloud from the copy being verified to another person who follows on the correct, master copy. The reader should read all 

punctuation, spell out all proper nouns and foreign or technical words and phrases, and indicate whether numbers are spelled out or in figures. This technique 

minimizes the risk that typographical errors will be missed.

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6

Court Governance 

and Administration

  

§ 6.1 Overview of Federal Judicial Administration 

Each of the ninety-four federal district courts and thirteen federal courts of 

appeals is responsible for its own management. However, each is subject to statutory restrictions and policies set by national and regional judicial administrative 

agencies. The national agencies are the Judicial Conference of the United 

States and its agent, the Administrative Office of the U.S. Courts (AO). The 

Federal Judicial Center has educational and research responsibilities, and the 

U.S. Sentencing Commission has guideline-promulgating authority, but neither 

has administrative responsibilities for the federal courts. As much as possible, 

administrative policy making is decentralized. Judicial councils in each regional 

circuit, with staff assistance by circuit executives, set administrative policy for the 

courts within the circuit, but the individual courts are responsible for most of the 

day-to-day administration. Clerks of the district and bankruptcy courts provide 

staff assistance to their respective courts. See generally Russel R. Wheeler, A New 

Judge’s Introduction to Federal Judicial Administration (Federal Judicial Center, 

2d ed. 2020).

  

§ 6.2 The Chief Justice of the United States 

The Chief Justice, who is presiding officer of the Supreme Court, presiding officer 

of the Judicial Conference of the United States, and chair of the Board of the 

Federal Judicial Center, often speaks for the federal judiciary on major matters in 

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its relations with the other branches of government and with the public at large. 

The Chief Justice appoints an administrative assistant, the counselor to the Chief 

Justice, to help with both internal Supreme Court administrative matters and 

matters related to the entire judiciary.

  

§ 6.3 The Judicial Conference of the United States

The Chief Justice presides over the Judicial Conference, which comprises the 

chief judges of the courts of appeals, one district judge from each circuit, and the 

chief judge of the Court of International Trade. The Chief Justice is directed by 

statute to call at least one annual meeting; the practice is to hold two meetings 

each year, one in the spring and one in the fall. The Executive Committee of the 

Conference proposes the agendas for the meetings and acts on the Conference’s 

behalf on limited matters between meetings.

The Conference is generally referred to as the federal courts’ principal 

policy-making body for administration on the national level, but its organic statute (28  U.S.C. §  331) does not describe or suggest so broad a role. The statute 

directs the Conference to “make a comprehensive survey of the condition of business” in the federal courts, prepare plans for temporary assignment of judges, 

receive certificates of judicial unfitness from judicial councils, study the operation 

of federal procedural rules, and submit suggestions for legislation through the 

Chief Justice’s report on Conference proceedings. Although Congress has vested 

relatively little authority in the Judicial Conference directly, the Conference has 

considerable practical authority, which arises from its statutory responsibility to 

supervise and direct the Administrative Office of the U.S. Courts, including the Administrative Office’s control of the distribution of funds appropriated by Congress.

The committees of the Judicial Conference perform a vital role in the Conference’s policy-making process. Normally, committees meet in person twice 

each year for one or two days to discuss and prepare materials for submission 

to the Conference prior to its next meeting; these meetings are supplemented 

by telephone conference calls, written memoranda, and occasional subcommittee meetings.

Most of the judges who serve on committees are life-tenured (district and circuit) judges rather than term-appointed (bankruptcy and magistrate) judges. In 

addition, some committees include Justice Department officials, state supreme 

court justices, law professors, and practicing lawyers. The Chief Justice makes 

committee appointments after receiving information from several sources, including applications from judges and advice from the Administrative Office.

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§ 6.4 Circuit Judicial Councils and Circuit 

Executives 

Congress created circuit judicial councils in 1939. The chief judge of the circuit 

is the presiding officer of each circuit judicial council. In addition to the chief 

circuit judge, each circuit judicial council consists of an equal number of circuit 

and district judges as determined by majority vote of active circuit and district 

judges of the circuit. 28 U.S.C. § 332(a)(1). The creation of the councils reflected 

a commitment to decentralized administration of the courts. The circuit judicial 

councils review numerous district court operational plans (for jury utilization 

and representation under the Criminal Justice Act, for example) and take action 

as appropriate. A council may also review final orders of the chief judge regarding 

complaints of judicial misconduct if requested to do so by the person who filed 

the complaint or the judge complained against. Each circuit judicial council also 

reviews all local rules within its circuit to be certain they do not conflict with the 

national rules.

Each circuit judicial council has appointed a circuit executive and assigned 

that person duties specified in the statute. 28  U.S.C. §  332(e). The circuit 

executive’s role is discussed at section 7.1. The circuit council, by statute, meets 

at least twice a year.

  

§ 6.5 Chief Judges 

Each court of appeals and each district court has a chief judge. A vacancy in the 

chief judgeship of a court of appeals or district court is filled by the active judge 

who, at the time of the vacancy, is senior in commission, is under sixty-five years 

of age, has served on the court at least a year, and has not previously served 

as chief judge. A chief judge’s term is limited to seven years unless no eligible 

judge is available to serve as chief judge. In bankruptcy courts with more than 

one judge, the district judges, by majority vote, designate one of the bankruptcy 

judges as chief judge. The chief district judge makes the designation if a majority 

of the district judges cannot agree.

Chief judges have no authority over the actual decision of cases by other 

judges. In judicial matters, their authority is exactly the same as that of any 

other judge.

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A. Courts of Appeals 

The chief judge for the court of appeals for any circuit is referred to as the chief 

judge of the circuit. The chief judge supervises the staff and most administrative 

matters for the court of appeals. Among numerous other responsibilities, the 

chief judge also presides at judicial council meetings and the circuit’s judicial 

conferences; serves as one of the circuit’s two representatives to the Judicial 

Conference; assigns circuit and district judges in the circuit to temporary duty on 

other courts in the circuit; certifies to the Chief Justice the need for temporary 

assistance from additional judges from other circuits; and reviews complaints of 

judicial misconduct. Chief judges often appoint committees of judges or individual 

judges to assist in various administrative matters.

B. District Courts 

The chief judges of district courts have much of the responsibility for the administration of the court. Usually they supervise the clerk’s office, the probation 

office, the pretrial services office (if there is one), and the administration of the 

magistrate judge system. They also exercise some oversight responsibility for the 

bankruptcy court. By statute, the chief judge is responsible for carrying out the 

rules and orders of the court that divide the court’s business between the judges. 

28 U.S.C. § 137. In most courts, the allotment of cases to judges is made randomly 

by the clerk of court, but the chief judge may, on occasion, make a special assignment for an unusual case, such as one of considerable length or complexity. Once 

the cases are assigned to another judge, however, the chief judge has no jurisdiction over them.

C. Bankruptcy Court 

Chief bankruptcy judges have a more specific statutory mandate than circuit or 

district chief judges, but their duties are similar to those of chief district judges. 

28 U.S.C. § 154(b).

  

§ 6.6 Circuit Judicial Conferences 

The circuit, district, bankruptcy, and magistrate judges of each circuit may attend 

the annual or biennial circuit judicial conference to consider ways of improving 

the administration of justice in the circuit. 28 U.S.C. § 333. The statute mandates 

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§ 6.7.B

the court of appeals to prescribe rules for participation by the bar. The conferences 

vary considerably from circuit to circuit but usually feature programs relating to 

the administration of justice in the circuit.

  

§ 6.7Federal Agencies of Judicial Administration 

A. Administrative Office of the U.S. Courts 

Congress established the Administrative Office in 1939, at the request of the judiciary, to create an “administrative officer of the United States courts . . . under 

the supervision and direction” of the judicial branch rather than the executive 

branch. 28 U.S.C. §§ 604–612. The director of the AO carries out the AO’s statutory responsibilities and other duties under the supervision and direction of the 

Judicial Conference.

The AO’s duties include: supervising administrative matters; gathering 

caseload statistics; procuring supplies and space; and preparing and administering 

the budget, with all the attendant financial management duties.

The AO’s Annual Report of the Director, published along with the Report of 

the Proceedings of the Judicial Conference of the United States, provides detailed 

statistical data on all aspects of federal court operations. The AO publishes the 

Guide to Judiciary Policy, which includes rules and guidance on most administrative 

matters in the judiciary, including human resources, procurement, and travel. The 

AO maintains a site called JNet on the judiciary’s intranet at http://jnet.ao.dcn. 

JNet contains a wealth of information about judiciary activities, initiatives, and 

policies, and it is a good idea to be familiar with it. The AO also maintains the 

judiciary’s Internet site at http://www.uscourts.gov.

B. Federal Judicial Center 

In 1967, at the request of the Judicial Conference, Congress created the Federal 

Judicial Center to provide research and education for the federal courts in a single, 

independent agency. The Center’s policies are set by a board, chaired by the Chief 

Justice, that consists of seven judges, elected by the Judicial Conference, and the 

director of the Administrative Office as an ex officio member. The Center and the 

Administrative Office are separate but maintain a close working relationship. The 

Center is responsible for designing and conducting programs for the orientation 

and continuing education and training of judges and other court personnel, 

policy planning and research on matters of judicial administration, promoting 

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study of the history of the federal courts, and assisting judges of foreign judicial 

systems in learning about the federal judiciary. It produces various publications 

and audiovisual materials available to judges and other judicial branch employees 

(some of these materials have been mentioned above). The organization of the 

Center is explained in its annual report. Current listings of available materials 

as well as other information about the Center can be found on its site on the 

judiciary’s intranet at http://fjc.dcn, or on the Internet at http://www.fjc.gov.

C. United States Sentencing Commission 

Congress created the U.S. Sentencing Commission in 1984 and directed it to establish federal sentencing policies and practices to guide judges in sentencing 

criminal offenders. 28  U.S.C. §  991. The Commission’s seven voting members, 

appointed by the president, may include up to three federal judges. The Commission has the authority to submit annual guideline amendments to Congress, 

which automatically take effect 180 days after submission unless a law is enacted 

to the contrary. The Commission’s Internet site (http://www.ussc.gov) contains 

extensive information about the guidelines and Commission activities.

  

§ 6.8 Active and Senior Judges; Retirement 

At the age of sixty-five, district and circuit judges may elect to become senior 

judges provided they meet the “rule of 80”—that is, if the combined total of the 

judge’s age and years of service equals or exceeds eighty. 28 U.S.C. § 371(c). Taking 

senior status is at the discretion of the judge. A judge who elects senior status 

creates a vacancy, which is filled in the usual manner by presidential appointment 

and senatorial confirmation. Judges on senior status have retired “from regular 

active service” (28 U.S.C. § 371(b)), but continue to receive the salary of an active 

judge on the same court if they are certified by the chief circuit judge as having 

met certain workload requirements. Senior judges who are certified by the circuit council as performing substantial judicial service are entitled to chambers 

and an office staff equivalent to that of active judges or to a lesser number of 

assistants as their work may require. Some circuits have adopted guidelines for 

staff requirements.

Senior judges often continue to serve their courts, usually taking a reduced 

caseload and sometimes requesting that they not be assigned certain types of 

cases. Particularly in recent years with the increasing caseloads in the federal 

courts, the services rendered by senior judges have been vital.

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Judges who meet the “rule of 80” may also “retire from the office,” in which 

case they are no longer judicial officers. Retired judges may not continue to hear 

cases, but they are entitled to an annuity equal to their salary at the time of 

retirement. 28 U.S.C. § 371(a). Of course, judges who do not meet the requirement 

of the “rule of 80” may simply resign from office, thereby forfeiting all future pay 

and benefits.

  

§ 6.9 Budget Appropriations and Administration 

The director of the Administrative Office, under supervision of the Judicial Conference, provides the Office of Management and Budget with the federal judiciary’s annual requests for legislative appropriations to fund the various court 

operations for the forthcoming fiscal year. These are incorporated unchanged 

into the president’s annual judiciary budget request, which is submitted to Congress, which in turn enacts a statute providing the courts with appropriations for 

the fiscal year.

Although the director of the AO has statutory responsibility for how the 

courts spend their appropriated funds, the AO has implemented an extensive program that delegates this spending responsibility to the courts themselves, under 

AO supervision. Clerks of court and other court unit executives are responsible, 

under the chief judge’s supervision, for receiving and disbursing funds and managing the budget. For example, the clerk of court disburses funds appropriated 

for the court’s normal operation and maintenance, and collects moneys received 

for court services and court-imposed fines, penalties, and forfeitures. Court expenditures are generally subject to the same fiscal laws as the rest of the federal 

government. In addition, under the direction of the Judicial Conference, the AO 

has promulgated rules for expenditures. All court employees have a responsibility to ensure that government funds, and the supplies, equipment, and services 

they buy, are used wisely and appropriately.

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Relations with Other Court 

and Justice System Personnel

Law clerks work closely with other court personnel. Familiarity with the other 

personnel and what they do will help run a smooth office.

  

§ 7.1 The Circuit Executive 

Each circuit’s judicial council appoints a circuit executive. Specific duties of circuit executives vary from circuit to circuit. Tasks in the courts of appeals may 

include administering nonjudicial matters, especially the personnel system and 

budget. Circuit-wide tasks may include conducting studies and preparing reports on the work of the courts; serving as the circuit’s liaison to state courts, bar 

groups, the media, and the public; and arranging circuit judicial council and conference meetings. The circuit executive may also maintain an accounting system 

or establish a property-control and space-management system. Most circuit executives provide advice and assistance on automation and circuit-wide training; 

others assist judges and committees in delicate areas such as processing judicial 

complaints.

  

§ 7.2 The Clerk of Court (Court of Appeals) 

Each court of appeals has a clerk who is appointed by and serves at the pleasure of 

the court. The clerk of court appoints necessary deputies and clerical assistants 

with the approval of the court.

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The primary duties and responsibilities of a court-of-appeals clerk are as 

follows:

• receiving and maintaining the files and records of the court

• ensuring that all papers filed comply with the Federal Rules of Appellate 

Procedure and the rules of the court

• entering all orders and judgments of the court

• scheduling cases for hearing under guidelines established by law, rules, 

and orders of the court

• distributing needed case materials to the members of the court

• collecting, disbursing, and accounting for required fees

• arranging for distribution of the court’s opinions

• giving procedural assistance to attorneys and litigants

• maintaining the roster of attorneys admitted to practice before the court

• administering oaths

• providing clerical staff for courtroom services

• providing necessary statistical case information to the court and the 

Administrative Office

In addition, the court may authorize the clerk of court to act on certain kinds 

of uncontested procedural motions.

  

§ 7.3 The Clerk of Court (District and Bankruptcy 

Courts) 

The clerk of a U.S. district court is appointed by and serves at the pleasure of 

the court. The clerk of court serves as the chief administrative officer (except in 

the handful of districts that have a district court unit executive; see section 7.4), 

implementing the court’s policies and reporting to the chief district judge. The 

clerk’s responsibilities include

• receiving the pleadings, papers, and exhibits that constitute case filings 

and developing and implementing a records management system to 

properly maintain and safeguard the official records of the court

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• recruiting, hiring, classifying, training, and managing the staff of the 

clerk’s office

• developing and maintaining a system to ensure the proper collection, accounting, and disbursement of funds and securities in the court’s custody

• developing budgetary estimates of future staffing requirements and other substantive expense items, such as supplies, equipment, furniture, 

services, and travel

• collecting and analyzing statistical data that reflect the performance 

of the court

• managing the jury selection process, including the responsibility for 

making a continuing evaluation of juror utilization

• maintaining liaison with all branches of the court and related government agencies

• preparing and disseminating reports, bulletins, and other official information concerning the work of the court

• coordinating the construction of court facilities and periodically inspecting such facilities

The judges of the bankruptcy court may appoint a clerk of the bankruptcy 

court, upon certification to the circuit judicial council and the Administrative 

Office that the court’s business justifies it. 28 U.S.C. § 156(b). (In some courts, 

the clerk of the district court also serves as the bankruptcy court clerk.) With 

the approval of the bankruptcy judges, the clerk may appoint deputies. The 

bankruptcy clerk is accountable for bankruptcy fees and costs collected pursuant 

to 28 U.S.C. § 1930, and is the official custodian of the records and dockets of the 

bankruptcy court.

  

§ 7.4 District Court Unit Executives 

A few districts have district court unit executives or a position such as “court 

administrator” that performs the overall management responsibilities that would 

otherwise be assigned to the clerk of court. In such districts the clerk’s duties are 

related primarily to the management and monitoring of the cases filed with the 

court.

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§ 7.5 The Courtroom Deputy and the 

Docket Clerk 

A courtroom deputy’s duties and responsibilities vary significantly from court 

to court. The deputy, sometimes called a “case manager,” is an employee of the 

clerk of court’s office, although the deputy serves the judge to whom the deputy 

is assigned and may have a desk in chambers. It is important to remember that 

although a courtroom deputy may over time become so much a part of a judge’s 

judicial “family” that the deputy seems to be another member of chambers’ staff, 

that person is ultimately answerable to the clerk of court.

Courtroom deputies assist judges with scheduling trials or hearings on motions. The deputy must keep the judge aware of all calendar activity. The deputy handles communication with the attorneys and schedules their appearances 

for hearings.

Other duties of courtroom deputies include

• administering oaths to jurors, witnesses, and interpreters

• maintaining custody of trial exhibits

• entering or causing to be entered on the permanent records of the clerk’s 

office a description of all relevant actions taken in open court or in 

chambers (usually called a minute entry)

• serving as liaison between the judge’s chambers and the clerk of court’s 

office

• performing routine clerk’s office duties as needed and when available

The docket clerk (sometimes called the “case administrator”) works in the 

office of the clerk of court and is responsible for maintaining the official records 

for each case pending before the judge. The docket clerk also makes the docket 

entries, recording all filings in a case with the clerk of court. In most courts, 

these dockets are now automated. Whenever a court employee needs to remove a 

court record from the clerk’s office files, the record must be signed out so that the 

clerks’ office can identify where the record is at all times.

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§ 7.6 Other Law Clerks 

While it is important for law clerks to know the roles of and establish sound 

professional relations with various personnel in the judicial system, it is especially 

important to know the roles of the other members of the chambers staff and to 

enjoy a healthy working relationship with them.

Most judges have all of their law clerks perform the same functions. Some 

judges have a combination of permanent and (one- or two-year) term law clerks. 

A permanent law clerk, already thoroughly familiar with the judge’s practices 

and office administration, may play a more significant role than a term law clerk.

Each judge has a system for assigning work to law clerks, and each makes 

an effort to balance the workload. In order to equalize the work among the law 

clerks, allocations may be made on the basis of how much work will be required 

on a particular case. If a law clerk has a preference for a particular subject matter, 

a judge may try to accommodate that preference.

Although there are sometimes salary differences between law clerks due to 

variations in experience and prior salary history, the responsibilities are usually 

the same. In district courts, the law clerks may, during alternate weeks, exchange 

the primary responsibility for administrative matters such as opening court, 

assembling files and records for the motion day, or preparing the conference 

room for a pretrial conference. Such assignments are flexible, and each law clerk 

should be cooperative in assisting the others when there is more work than can 

readily be completed in the time available.

  

§ 7.7Judicial Assistants 

In general, most judicial assistants (or secretaries, in some chambers) help in the 

day-to-day conduct of court business. In addition to traditional secretarial duties, 

a judicial assistant often deals with lawyers and members of the public on behalf 

of the judge. Judicial assistants also help maintain the chambers collection of law 

books, assemble documents, assist with case management, serve as courtroom 

crier, and provide general assistance to the judge. Judges may hire an additional 

law clerk in lieu of a judicial assistant and many judges do so. In such circumstances, one or more of the law clerks assumes administrative duties that would 

have been performed by a judicial assistant.

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§ 7.8 Pro Se Law Clerks and Staff Attorneys 

District courts with heavy prisoner filings may request funding for the appointment 

of pro se law clerks to review civil cases filed by prisoners, including petitions for 

writ of habeas corpus and complaints for violations of civil rights under 42 U.S.C. 

§ 1983. Pro se clerks assist the court by screening the complaints and petitions for 

substance, analyzing their merits, and preparing recommendations and orders 

for judicial action, including orders of dismissal. Many pro se law clerks also work 

on nonprisoner pro se cases.

Each circuit has a staff attorneys’ office that serves as a centralized legal staff 

for the court of appeals. The manager of the office is usually called the senior 

staff attorney or the director of the staff counsel’s office. One or more of the staff 

attorneys also may be assigned supervisory duties.

Although the precise duties assigned to the staff attorneys’ office vary from 

circuit to circuit, two key tasks are often assigned.

First, the staff attorneys’ office is typically assigned to work on pro se prisoner 

and other pro se cases, including reviewing correspondence from pro se litigants 

in order to determine whether any communications are legally sufficient to constitute an appeal or a request for mandamus. Many of the letters or purported pleadings are prepared without legal assistance and consist of incomplete handwritten 

papers that are difficult to read and understand. When deciphered, they may be 

sufficient to constitute an appeal or petition for writ. If the correspondence, however, does not present an issue that may be considered by the court, the staff attorney may be authorized to so advise the author. If the correspondence is sufficient 

to invoke the court’s jurisdiction, the staff attorney is usually directed to prepare 

a memorandum stating the issues in the case and, after doing any necessary research, to brief the issues.

The second task is reviewing appeals and applications for mandamus involving 

collateral attacks on state or federal criminal convictions and sentencing guidelines 

issues. The staff attorneys’ office usually reviews each such petition, analyzes the 

legal issues, prepares a memorandum of law concerning each issue raised, and 

recommends the disposition of the case. In some instances, the district court may 

have denied the certificate of probable cause (Certificate of Appealability) that 

is the prerequisite for an appeal in forma pauperis or may have failed to act on a 

request for such a certificate. If so, the staff attorney makes a recommendation 

concerning whether such a certificate should be issued. In many instances, the 

case will be sent to a panel of the court for decision on the merits without oral 

argument. In others, when the appellant is proceeding pro se, the staff attorney 

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may recommend to the panel of judges to whom the case will be assigned that 

counsel be appointed. A panel of the court, however, makes the final decision in 

each case.

Along with working on pro se cases and reviewing the appeals and applications 

for mandamus described above, staff attorneys’ offices are commonly assigned 

the following other tasks as well:

• identifying and analyzing cases for recommended summary disposition

• screening counseled and pro se cases

• screening cases to identify jurisdictional issues

• reviewing, analyzing, and recommending disposition of substantive and 

procedural motions, including emergency matters

• preparing memoranda of law concerning the issues in, and recommended 

disposition of, motions

• preparing memoranda of law concerning the issues in, and recommended 

disposition of, criminal and civil cases, and in some courts, capital (death 

penalty) cases

• assisting in case management

• carrying out other duties assigned by the court

The staff attorneys’ office may work under the supervision of the chief judge, 

a committee of judges, a single judge, a senior attorney, the circuit executive, 

or the clerk of court. Some staff attorneys are employed for terms of one or two 

years; others serve for longer periods.

  

§ 7.9 The Court Reporter 

Each district court has permanent court reporters in numbers approved by the 

Judicial Conference. The standard ratio is one reporter per active judge. Judicial 

Conference policy requires court reporters to work for the court (in a pooling 

arrangement) rather than for individual judges, although the implementation 

of this arrangement varies with the number of judges and the places of holding 

court in the district. In practice, in some courts, individual court reporters work 

primarily in the courtroom of a specific judge. However, a court reporter must 

adhere to the court’s plan for pooling reporters and is not assigned to work only 

for a specific judge.

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The duties of the court reporter include

• recording all court proceedings verbatim by stenographic methods, 

electronic sound recording, or other methods (such as real-time reporting technologies) subject to Judicial Conference regulations and the 

court’s approval

• transcribing all arraignments, pleas, and proceedings in connection with 

the imposition of sentence in criminal cases, or filing a voice or sound 

recording of the proceedings (28 U.S.C. § 753)

• transcribing any proceedings upon request of a judge or any party to a 

proceeding

Court reporters are federal court employees subject to the supervision of the 

court, but they also collect personal fees for transcripts prepared for parties at 

rates determined by the Judicial Conference. Transcripts are usually prepared 

only after a trial is completed and an appeal filed. Litigants may, however, request daily transcripts by notice in advance. Because they earn private income, 

court reporters must provide their own equipment and supplies and may not use 

government postage for their correspondence.

The reporter must file a copy of every transcript with the clerk of court. This 

is a public record that may be inspected by any person without charge during the 

business hours of the clerk’s office.

Subject to Judicial Conference regulations, district judges and bankruptcy 

judges may direct the record to be taken by electronic sound recording rather 

than by a court reporter. If the court does so, an employee of the clerk of court 

is responsible for operating the equipment and seeing to the preparation of any 

requested transcripts. Statutes and rules govern the process of recording specific 

proceedings before magistrate judges. Electronic sound recording is used more 

extensively by magistrate and bankruptcy judges than by district judges.

  

§ 7.10 The Circuit Librarian 

Each court of appeals maintains a library at its headquarters, and all circuits 

(except D.C. and the Federal Circuit) have additional branch libraries at other 

locations. These libraries are primarily for the use of the judges and their staff, 

but may also be open to members of the bar, employees of other governmental 

agencies, and the public.

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Each library is managed by a librarian appointed by and serving at the 

pleasure of the court. The librarian may be responsible to the chief circuit judge, a 

committee of judges, the circuit executive, or the clerk of court, as determined by 

the court.

Each circuit library has a staff of librarians who have special training in legal 

research and can help law clerks and judges in all aspects of legal and general 

research. Many of the U.S. court librarians also have a J.D. In some circuits, for 

example, the library staff will prepare a legislative history of a statute for a judge 

upon request. For help with computer-assisted legal research (CALR), you should 

contact the circuit library CALR coordinator. If your judge is not in a city that 

has a main or branch library, librarians will mail books to a judge or a law clerk 

working in another city or will photocopy, scan, or download materials needed 

for research and deliver them via fax, email, or regular mail. They will also try to 

borrow from other libraries materials that are not available in their own.

The Law Library of Congress offers assistance for hard-to-locate materials, 

and research librarians are able to search the library’s databases for unique 

collections, some of which can be borrowed through special loan privileges 

via the court’s library. Additionally, the law library provides access to foreign, 

international, and comparative law material. Your first point of contact for 

research assistance should be your own circuit or satellite librarian. A full list of 

all U.S. court librarians is available on JNet.

  

§ 7.11 The Probation and Pretrial Services Offices

Each district court appoints probation officers, including a chief probation officer. 

Larger offices generally also have a deputy chief probation officer. Some probation 

offices—for example, those with many probationers with drug-related or 

organized-crime convictions—establish specialized supervisory units. Probation 

officers serve at the pleasure of the court.

The responsibilities and duties of a probation officer include

• conducting presentence investigations and preparing presentence reports 

on convicted defendants

• supervising probationers and persons on supervised release

• overseeing payment of fines and restitution by convicted defendants

• supervising persons transferred under the Victim and Witness Protection 

Act

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The 1982 Pretrial Services Act directed that pretrial services be provided in 

all federal judicial districts. The services include evaluating persons proposed 

for pretrial release, monitoring and assisting those released, and reporting to the 

court on these activities. See 18 U.S.C. § 3154. Most district courts provide pretrial 

services through their probation office; others have separate pretrial offices. The 

circuit judicial council must approve creation of a separate office.

  

§ 7.12 Public Defenders 

The Criminal Justice Act of 1964 (CJA) requires each district to have a plan to 

ensure that federal defendants are not deprived of legal representation because 

they cannot afford it. 18 U.S.C. § 3006A. In some districts, this need is met entirely 

by assigning cases to private attorneys who are paid under the Criminal Justice 

Act. Districts in which at least 200 appointments are made annually, however, 

may establish either public defender organizations or community defender 

organizations to take no more than 75% of the cases.

Federal public defender organizations are staffed by attorneys who are federal employees; the court of appeals appoints the federal public defender, who 

appoints assistant federal defenders. Although federal public defender office 

attorneys and staff are federal employees paid by funds administered by the 

Administrative Office, they are not part of the district court staff. Their location 

in the judicial branch is primarily for the purpose of administrative convenience. 

Community defender organizations are nonprofit defense-counsel service groups 

authorized by the court’s CJA plan to provide representation. Their personnel are 

not federal judicial branch employees.

  

§ 7.13 U.S. Attorneys 

In all cases in which the United States is a party, a representative of the Department of Justice is the attorney for the government. The representative is usually 

the U.S. attorney or an assistant U.S. attorney for the district in which the case 

is pending, but in some cases the representative will be a special assistant from 

the Department of Justice headquarters in Washington, D.C., also sometimes 

referred to as Main Justice. In some situations, such as federal tax-refund suits 

against the United States, a lawyer from Main Justice may have primary responsibility for defense of the case, and the U.S. attorney may serve as co-counsel of 

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ployment Opportunity Commission, agency counsel will usually represent the 

government party.

Each judicial district has a U.S. attorney, appointed by the president with the 

advice and consent of the Senate. The U.S. attorney is appointed for a term of 

four years, but is subject to removal by the president. Assistant U.S. attorneys are 

appointed by, and may be removed by, the attorney general.

The authority of a U.S. attorney is set forth in 28 U.S.C. § 547. The responsibilities generally include

• prosecuting all criminal offenses against the United States

• prosecuting or defending for the government all civil actions in which 

the United States is a party

• defending collectors or other officers of the revenue or customs in actions 

brought against them for official acts

• prosecuting proceedings for the collection of fines, penalties, and forfeitures owed to the United States

In connection with prosecutorial duties, the U.S. attorney (or an assistant 

U.S. attorney) is always present during sessions of a federal grand jury, but does 

not (and may not) remain while the grand jury is deliberating or voting.

  

§ 7.14 United States Marshals Service 

The president, with the advice and consent of the Senate, appoints a U.S. marshal 

for each judicial district who serves for a term of four years, but who, like the U.S. 

attorney, is subject to removal. The marshal, in turn, appoints deputies.

The U.S. Marshals Service is part of the Department of Justice and is responsible for moving prisoners, supervising the department’s Witness Security Program, apprehending federal fugitives, executing all writs, processes, and orders 

issued by the courts, and, of most direct interest to chambers’ staff, providing 

security to the court and its personnel.

The marshal develops a court security plan, subject to review and approval 

by each district court’s security committee, providing basic security services to 

judges and supporting personnel in that district. Under some plans, judges have 

emergency buzzer buttons beneath their desks and beneath their benches in 

the courtroom; if the button is pressed, an alarm sounds in the marshal’s office. 

The marshal also has a deputy present in court whenever the judge so requests. 

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Marshals and their deputies are authorized to carry firearms and may make arrests without a warrant within statutory and constitutional limits. Marshals and 

their deputies may exercise the same powers as sheriffs of the state in which they 

are located.

Although the parties themselves are ordinarily responsible for the service 

of process and subpoenas in civil cases, Federal Rule of Civil Procedure 4(c)

(3) provides that a summons and complaint shall, at the request of the party, 

be served by the marshal on behalf of a person authorized to proceed in forma 

pauperis, on behalf of the United States or an officer or agency of the United 

States, or by order of the court in special cases.

In many courts, the marshal or the marshal’s deputy is in complete charge of 

the jury. Law clerks are sometimes told to avoid all contact with the jurors. You 

should inquire about and become familiar with the procedures in your court. See 

also section 4.3.D.5 on jury supervision.

  

§ 7.15 The Federal Bureau of Prisons 

The Federal Bureau of Prisons manages the penal and correctional institutions 

maintained by the United States. Its director is appointed by the attorney general.

When the judge sentences a person convicted of a federal crime, the order of 

commitment consigns the defendant to the custody of the attorney general. Although the judge may recommend a preferred place of imprisonment, the attorney general has the final authority to designate the actual place of confinement.

The bureau must provide suitable quarters, care, subsistence, and safekeeping 

for all persons held under the authority of the United States; provide for the 

protection, instruction, and discipline of all persons charged with or convicted 

of offenses against the United States; and provide technical assistance to state 

and local correctional institutions and officials. Each judge has a pamphlet 

describing all institutions maintained by the Bureau of Prisons, their facilities, 

and their programs.

In most judicial districts, there is no federal jail for the confinement of 

persons awaiting trial or after sentencing, so federal prisoners are confined in a 

state institution, under a contractual arrangement.

A judge may permit a sentenced defendant to report directly to the place 

of confinement. This avoids interim detention in state institutions that may be 

crowded or otherwise undesirable, and it saves the government the expense of 

housing, feeding, and transportation. If the prisoner is deemed to be a danger to 

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himself or the community or is judged to be a flight risk, is not likely to report on 

time, or cannot afford transportation, the judge is likely to require the marshal to 

maintain custody of the prisoner and to transport the prisoner to the institution 

designated by the bureau.

  

§ 7.16 Federal Law Enforcement Agencies 

Apart from the U.S. attorney’s office, the U.S. Marshals Service, and the Bureau 

of Prisons, there are other federal law enforcement agencies that you may 

come in contact with, particularly during criminal trials. A brief description of 

them follows.

• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Enforces and 

administers firearms and explosives laws as well as those laws covering 

the production, use, and distribution of alcohol and tobacco products. 

The ATF is a bureau of the Department of Justice.

• U.S. Customs and Border Protection (CBP). Manages, controls, and protects the nation’s borders and performs inspections related to customs, 

immigration, and animal and plant health inspection laws. The CBP is a 

bureau of the Department of Homeland Security.

• U.S. Immigration and Customs Enforcement (ICE). Provides investigative 

and security services including enforcement of immigration and customs 

laws. Also includes the Federal Protective Service (FPS), which provides 

security at federally owned and leased buildings nationwide, including 

courthouses. It is a bureau of the Department of Homeland Security.

• Drug Enforcement Administration (DEA). The primary narcotics enforcement agency for the United States. It is a bureau of the Department 

of Justice.

• Federal Bureau of Investigation (FBI). Investigates violations of certain 

federal statutes, collects evidence in which the United States is or may be 

an interested party, and performs other duties imposed by law or presidential directive, such as performing background checks on judicial 

nominees. The FBI is a bureau of the Department of Justice.

• Internal Revenue Service (IRS). Administers and enforces federal internal revenue laws and related statutes, except those relating to alcohol, 

tobacco, firearms, and explosives. The IRS is a bureau of the Treasury 

Department.

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• International Criminal Police Organization–U.S. National Central Bureau 

(INTERPOL–USNCB). Facilitates international law enforcement cooperation as the U.S. representative to INTERPOL, an intergovernmental organization of over 150 country members. INTERPOL–USNCB is a bureau 

of the Department of Justice.

• U.S. Citizenship and Immigration Services (USCIS). Administers immigration and naturalization adjudication functions and establishes 

immigration services policies and priorities. These functions include adjudication of immigrant visa and naturalization petitions; adjudication 

of asylum and refugee applications; and other adjudications formerly 

performed by the U.S. Immigration and Naturalization Service (INS). It 

is a bureau of the Department of Homeland Security.

• U.S. Secret Service. Not only provides security to high government officials, but enforces federal laws relating to currency, coins, and obligations or securities of the United States or a foreign government. The 

Secret Service is a bureau of the Department of Homeland Security.

  

§ 7.17 State Courts 

Many cases that are brought in federal court may also be brought in state court. 

Although some cases must be brought in federal court, many more must be brought 

in state court. Some federal courts have established working relationships with 

state and local courts to help resolve scheduling conflicts, to share some services 

(such as jury rolls), and to promote cooperation in addressing common problems.

State-federal judicial councils facilitate good relations between the federal 

and state courts. Such councils are usually created by orders of the state supreme 

court and the federal district court or court of appeals.

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Appendix

Code of Conduct for 

Judicial Employees

§ 310 Overview

§ 310.10 Scope

(a) This Code of Conduct applies to all employees of the judicial branch, 

including interns, externs, and other volunteer court employees, except 

it does not apply to Justices; judges; and employees of the United States 

Supreme Court, the Administrative Office of the United States Courts, 

the Federal Judicial Center, the Sentencing Commission, and federal 

public defender offices.

(b) Justices and employees of the Supreme Court are subject to standards 

established by the Justices of that Court. Judges are subject to the Code 

of Conduct for United States Judges (Guide, Vol. 2A, Ch. 2). Employees 

of the AO and the FJC are subject to their respective agency codes. 

Employees of the Sentencing Commission are subject to standards 

established by the Commission. Federal public defender employees are 

subject to the Code of Conduct for Federal Public Defender Employees 

(Guide, Vol. 2A, Ch. 4). Intermittent employees [HR Manual, Sec. 5, 

Ch. 4.7] are subject to canons 1, 2, and 3 and such other provisions of this 

code as may be determined by the appointing authority.

(c) Employees who occupy positions with functions and responsibilities 

similar to those for a particular position identified in this code should be 

guided by the standards applicable to that position, even if the position 

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title differs. When in doubt, employees may seek an advisory opinion as 

to the applicability of specific code provisions.

(d) Contractors and other nonemployees not covered above who serve the 

judiciary are not covered by this code, but appointing authorities may 

impose these or similar ethical standards on such nonemployees, as 

appropriate.

§ 310.20 History

(a) With the adoption of the Code of Conduct for Judicial Employees 

on September 19, 1995, the Judicial Conference repealed the Code of 

Conduct for Clerks (and Deputy Clerks), the Code of Conduct for United 

States Probation Officers (and Pretrial Services Officers), the Code 

of Conduct for Circuit Executives, the Director of the Administrative 

Office, the Director of the Federal Judicial Center, the Administrative 

Assistant to the Chief Justice, and All Administrative Office Employees 

Grade GS-15 and Above, the Code of Conduct for Staff Attorneys of the 

United States, the Code of Conduct for Federal Public Defenders, and the 

Code of Conduct for Law Clerks. JCUS-SEP 95, p. 74.

(b) This Code of Conduct for Judicial Employees took effect on January 1, 

1996.

(c) In March 2001, the Conference revised Canon 3F(4). JCUS-MAR 01, 

pp. 10–12.

(d) The Conference revised the following provisions in March 2013: “Scope” 

(§ 310.10(a) and (d)); “Definitions” (§ 310.30(a)); Canon 1; Canon 3F(2)

(a)(ii); Canon 4A; and Canon 5B. JCUS-MAR 13, p. 9.

(e) The Conference revised the following provisions in March 2019: Canon 

3C(1); Canon 3D(2); and Canon 3D(3). JCUS-MAR 19, p. ____.

§ 310.30 Definitions

(a) Member of a Judge’s Personal Staff

As used in this code in canons 3F(2)(b), 3F(5), 4B(2), 4C(1), and 

5B, a member of a judge’s personal staff means a judge’s secretary or 

judicial assistant, a judge’s law clerk, intern, extern, or other volunteer 

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court employee, and a courtroom deputy clerk or court reporter whose 

assignment with a particular judge is reasonably perceived as being 

comparable to a member of the judge’s personal staff.

(b) Third Degree of Relationship

As used in this code, the third degree of relationship is calculated according to the civil law system to include the following relatives: parent, 

child, grandparent, grandchild, great grandparent, great grandchild, 

brother, sister, aunt, uncle, niece and nephew.

§ 310.40 Further Guidance

(a) The Judicial Conference has authorized its Committee on Codes of Conduct to render advisory opinions concerning the application and interpretation of this code. Employees should consult with their supervisor 

and/or appointing authority for guidance on questions concerning this 

code and its applicability before a request for an advisory opinion is 

made to the Committee on Codes of Conduct.

(b) In assessing the propriety of one’s proposed conduct, a judicial employee 

should take care to consider all relevant canons in this code, the Ethics 

Reform Act, and other applicable statutes and regulations (e.g., receipt 

of a gift may implicate canon 2 as well as canon 4C(2) and the Ethics 

Reform Act gift regulations).

(c) Should a question remain after this consultation, the affected judicial 

employee, or the chief judge, supervisor, or appointing authority of 

such employee, may request an advisory opinion from the Committee. 

Requests for advisory opinions may be addressed to the chair of the 

Committee on Codes of Conduct by email or as follows:

Chair of the Committee on Codes of Conduct

c/o Office of the General Counsel

Administrative Office of the United States Courts

One Columbus Circle, N.E.

Washington, D.C. 20544

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§ 320 Text of the Code

Canon 1: A Judicial Employee Should Uphold the Integrity and 

Independence of the Judiciary and of the Judicial 

Employee’s Office

An independent and honorable Judiciary is indispensable to justice in our society. 

A judicial employee should personally observe high standards of conduct so that 

the integrity and independence of the Judiciary are preserved and the judicial 

employee’s office reflects a devotion to serving the public. Judicial employees 

should require adherence to such standards by personnel subject to their direction 

and control. The provisions of this code should be construed and applied to further 

these objectives. The standards of this code do not affect or preclude other more 

stringent standards required by law, by court order, or by the appointing authority.

Canon 2: A Judicial Employee Should Avoid Impropriety and 

the Appearance of Impropriety in All Activities

A judicial employee should not engage in any activities that would put into question 

the propriety of the judicial employee’s conduct in carrying out the duties of the 

office. A judicial employee should not allow family, social, or other relationships 

to influence official conduct or judgment. A judicial employee should not lend the 

prestige of the office to advance or to appear to advance the private interests of 

others. A judicial employee should not use public office for private gain.

Canon 3: A Judicial Employee Should Adhere to Appropriate 

Standards in Performing the Duties of the Office

In performing the duties prescribed by law, by resolution of the Judicial Conference of the United States, by court order, or by the judicial employee’s appointing 

authority, the following standards apply:

A. A judicial employee should respect and comply with the law and these 

canons. A judicial employee should report to the appropriate supervising 

authority any attempt to induce the judicial employee to violate these 

canons.

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Note: A number of criminal statutes of general applicability govern 

federal employees’ performance of official duties. These include:

• 18 U.S.C. § 201 (bribery of public officials and witnesses);

• 18 U.S.C. § 211 (acceptance or solicitation to obtain appointive 

public office);

• 18 U.S.C. § 285 (taking or using papers relating to government 

claims);

• 18 U.S.C. § 287 (false, fictitious, or fraudulent claims against the 

government);

• 18 U.S.C. § 508 (counterfeiting or forging transportation 

requests);

• 18 U.S.C. § 641 (embezzlement or conversion of government 

money, property, or records);

• 18 U.S.C. § 643 (failing to account for public money);

• 18 U.S.C. § 798 and 50 U.S.C. § 783 (disclosure of classified 

information);

• 18 U.S.C. § 1001 (fraud or false statements in a government 

matter);

• 18 U.S.C. § 1719 (misuse of franking privilege);

• 18 U.S.C. § 2071 (concealing, removing, or mutilating a public 

record);

• 31 U.S.C. § 1344 (misuse of government vehicle);

• 31 U.S.C. § 3729 (false claims against the government).

In addition, provisions of specific applicability to court officers include:

• 18 U.S.C. § § 153, 154 (court officers embezzling or purchasing 

property from bankruptcy estate);

• 18 U.S.C. § 645 (embezzlement and theft by court officers);

• 18 U.S.C. § 646 (court officers failing to deposit registry moneys);

• 18 U.S.C. § 647 (receiving loans from registry moneys from 

court officer).

This is not a comprehensive listing but sets forth some of the more significant provisions with which judicial employees should be familiar.

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B. A judicial employee should be faithful to professional standards and 

maintain competence in the judicial employee’s profession.

C. Standards of Conduct

(1) A judicial employee should be patient, dignified, respectful, and 

courteous to all persons with whom the judicial employee deals 

in an official capacity, including other employees and the general 

public. A judicial employee should not engage in sexual or other 

forms of harassment of court employees or retaliate against those 

who report misconduct. A judicial employee should hold court personnel under the judicial employee’s direction to similar standards. 

A judicial employee should take appropriate action upon receipt of 

reliable information indicating a likelihood of conduct contravening this Code. Appropriate action depends on the circumstances 

and may include, for example, reporting such conduct to a supervisor, court executive, or chief judge. For relevant elaboration, see 

Code of Conduct for United States Judges, Commentary to Canons 

3B(4) and 3B(6).

(2) A judicial employee should diligently discharge the responsibilities 

of the office in a prompt, efficient, nondiscriminatory, fair, and 

professional manner. A judicial employee should never influence 

or attempt to influence the assignment of cases, or perform any 

discretionary or ministerial function of the court in a manner that 

improperly favors any litigant or attorney, nor should a judicial 

employee imply that he or she is in a position to do so.

D. Duty of Confidentiality

(1) A judicial employee should avoid making public comment on the 

merits of a pending or impending action and should require similar 

restraint by personnel subject to the judicial employee’s direction 

and control. This proscription does not extend to public statements 

made in the course of official duties or to the explanation of court 

procedures.

(2) A judicial employee should not use for personal gain any confidential information received in the course of official duties.

(3) A judicial employee should never disclose any confidential information received in the course of official duties except as required 

in the performance of such duties. A former judicial employee 

should observe the same restriction on disclosure of confidential 

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information that applies to a current judicial employee, except as 

modified by the appointing authority. This general restriction on 

use or disclosure of confidential information does not prevent, nor 

should it discourage, an employee or former employee from reporting or disclosing misconduct, including sexual or other forms of 

harassment, by a judge, supervisor, or other person.

E. A judicial employee should not engage in nepotism prohibited by law

Note: See also 5 U.S.C. § 3110 (employment of relatives); 28 U.S.C. § 458

(employment of judges’ relatives).

F. Conflicts of Interest

(1) A judicial employee should avoid conflicts of interest in the performance of official duties. A conflict of interest arises when a judicial 

employee knows that he or she (or the spouse, minor child residing 

in the judicial employee’s household, or other close relative of the 

judicial employee) might be so personally or financially affected by 

a matter that a reasonable person with knowledge of the relevant 

facts would question the judicial employee’s ability properly to perform official duties in an impartial manner.

(2) Certain judicial employees, because of their relationship to a judge 

or the nature of their duties, are subject to the following additional 

restrictions:

(a) A staff attorney or law clerk should not perform any official 

duties in any matter with respect to which such staff attorney 

or law clerk knows that:

(i) he or she has a personal bias or prejudice concerning 

a party, or personal knowledge of disputed evidentiary 

facts concerning the proceeding;

(ii) he or she served as lawyer in the matter in controversy, 

or a lawyer with whom he or she previously practiced 

law had served (during such association) as a lawyer 

concerning the matter (provided that the prohibition 

relating to the previous practice of law does not apply 

if he or she did not work on the matter, did not access 

confidential information relating to the matter, and did 

not practice in the same office as the lawyer), or he, she, 

or such lawyer has been a material witness;

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(iii) he or she, individually or as a fiduciary, or the spouse 

or minor child residing in his or her household, has a 

financial interest in the subject matter in controversy or 

in a party to the proceeding;

(iv) he or she, a spouse, or a person related to either within 

the third degree of relationship (as defined above in 

§ 310.40), or the spouse of such person (A) is a party 

to the proceeding, or an officer, director, or trustee of a 

party; (B) is acting as a lawyer in the proceeding; (C) 

has an interest that could be substantially affected by 

the outcome of the proceeding; or (D) is likely to be a 

material witness in the proceeding;

(v) he or she has served in governmental employment and 

in such capacity participated as counsel, advisor, or 

material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.

(b) A secretary to a judge, or a courtroom deputy or court reporter whose assignment with a particular judge is reasonably 

perceived as being comparable to a member of the judge’s 

personal staff, should not perform any official duties in any 

matter with respect to which such secretary, courtroom deputy, or court reporter knows that he or she, a spouse, or a person related to either within the third degree of relationship, or 

the spouse of such person (i) is a party to the proceeding, or 

an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) has an interest that could be substantially affected by the outcome of the proceeding; or (iv) 

is likely to be a material witness in the proceeding; provided, 

however, that when the foregoing restriction presents undue 

hardship, the judge may authorize the secretary, courtroom 

deputy, or court reporter to participate in the matter if no 

reasonable alternative exists and adequate safeguards are in 

place to ensure that official duties are properly performed. In 

the event the secretary, courtroom deputy, or court reporter 

possesses any of the foregoing characteristics and so advises 

the judge, the judge should also consider whether the Code 

of Conduct for United States Judges may require the judge 

to recuse.

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(c) A probation or pretrial services officer should not perform 

any official duties in any matter with respect to which the 

probation or pretrial services officer knows that:

(i) he or she has a personal bias or prejudice concerning 

a party;

(ii) he or she is related within the third degree of relationship 

to a party to the proceeding, or to an officer, director, or 

trustee of a party, or to a lawyer in the proceeding;

(iii) he or she, or a relative within the third degree of relationship, has an interest that could be substantially affected by the outcome of the proceeding.

(3) When a judicial employee knows that a conflict of interest may be 

presented, the judicial employee should promptly inform his or her 

appointing authority. The appointing authority, after determining 

that a conflict or the appearance of a conflict of interest exists, 

should take appropriate steps to restrict the judicial employee’s 

performance of official duties in such matter so as to avoid a conflict or the appearance of a conflict of interest. A judicial employee 

should observe any restrictions imposed by his or her appointing 

authority in this regard.

(4) A judicial employee who is subject to canon 3F(2)(a) should keep 

informed about his or her personal and fiduciary financial interests and make a reasonable effort to keep informed about the 

personal financial interests of a spouse or minor child residing in 

the judicial employee’s household. For purposes of this canon, “financial interest” means ownership of a legal or equitable interest, 

however small, or a relationship as director, advisor, or other active 

participant in the affairs of a party, except that:

(a) ownership in a mutual or common investment fund that holds 

securities is not a “financial interest” in such securities unless 

the employee participates in the management of the fund;

(b) an office in an educational, religious, charitable, fraternal, 

or civic organization is not a “financial interest” in securities 

held by the organization;

(c) the proprietary interest of a policy holder in a mutual insurance company, or a depositor in a mutual savings association, 

or a similar proprietary interest, is a “financial interest” in 

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the organization only if the outcome of the proceeding could 

substantially affect the value of the interest;

(d) ownership of government securities is a “financial interest” 

in the issuer only if the outcome of the proceeding could 

substantially affect the value of the securities.

(5) A member of a judge’s personal staff should inform the appointing 

judge of any circumstance or activity of the staff member that might 

serve as a basis for disqualification of either the staff member or 

the judge, in a matter pending before the judge.

Canon 4: In Engaging in Outside Activities, a Judicial Employee 

Should Avoid the Risk of Conflict with Official Duties, 

Should Avoid the Appearance of Impropriety, and 

Should Comply with Disclosure Requirements

A. Outside Activities

A judicial employee’s activities outside of official duties should not detract 

from the dignity of the court, interfere with the performance of official 

duties, or adversely reflect on the operation and dignity of the court or 

office the judicial employee serves. Subject to the foregoing standards 

and the other provisions of this code, a judicial employee may engage in 

such activities as civic, charitable, religious, professional, educational, 

cultural, avocational, social, fraternal, and recreational activities, and 

may speak, write, lecture, and teach. If such outside activities concern 

the law, the legal system, or the administration of justice, the judicial 

employee should first consult with the appointing authority to determine 

whether the proposed activities are consistent with the foregoing 

standards and the other provisions of this code. A judicial employee 

should not accept a governmental appointment that has the potential 

for dual service to and/or supervision by independent branches of 

government (including state courts) or different governments during 

judicial employment.

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B. Solicitation of Funds

A judicial employee may solicit funds in connection with outside 

activities, subject to the following limitations:

(1) A judicial employee should not use or permit the use of the prestige 

of the office in the solicitation of funds.

(2) A judicial employee should not solicit subordinates to contribute 

funds to any such activity but may provide information to them 

about a general fund-raising campaign. A member of a judge’s 

personal staff should not solicit any court personnel to contribute 

funds to any such activity under circumstances where the staff 

member’s close relationship to the judge could reasonably be construed to give undue weight to the solicitation.

(3) A judicial employee should not solicit or accept funds from lawyers 

or other persons likely to come before the judicial employee or the 

court or office the judicial employee serves, except as an incident 

to a general fund-raising activity.

C. Financial Activities

(1) A judicial employee should refrain from outside financial and 

business dealings that tend to detract from the dignity of the court, 

interfere with the proper performance of official duties, exploit 

the position, or associate the judicial employee in a substantial 

financial manner with lawyers or other persons likely to come 

before the judicial employee or the court or office the judicial 

employee serves, provided, however, that court reporters are not 

prohibited from providing reporting services for compensation 

to the extent permitted by statute and by the court. A member 

of a judge’s personal staff should consult with the appointing 

judge concerning any financial and business activities that might 

reasonably be interpreted as violating this code and should refrain 

from any activities that fail to conform to the foregoing standards or 

that the judge concludes may otherwise give rise to an appearance 

of impropriety.

(2) A judicial employee should not solicit or accept a gift from anyone 

seeking official action from or doing business with the court or other entity served by the judicial employee, or from anyone whose 

interests may be substantially affected by the performance or nonperformance of official duties; except that a judicial employee may 

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accept a gift as permitted by the Ethics Reform Act of 1989 and 

the Judicial Conference regulations thereunder. A judicial employee should endeavor to prevent a member of a judicial employee’s 

family residing in the household from soliciting or accepting any 

such gift except to the extent that a judicial employee would be permitted to do so by the Ethics Reform Act of 1989 and the Judicial 

Conference regulations thereunder.

Note: See 5 U.S.C. § 7353 (gifts to federal employees). See also

5 U.S.C. § 7342 (foreign gifts); 5 U.S.C. § 7351 (gifts to superiors).

(3) A judicial employee should report the value of gifts to the extent a 

report is required by the Ethics Reform Act, other applicable law, 

or the Judicial Conference of the United States.

Note: See 5 U.S.C. App. § § 101 to 111 (Ethics Reform Act financial 

disclosure provisions).

(4) During judicial employment, a law clerk or staff attorney may 

seek and obtain employment to commence after the completion of 

the judicial employment. However, the law clerk or staff attorney 

should first consult with the appointing authority and observe 

any restrictions imposed by the appointing authority. If any law 

firm, lawyer, or entity with whom a law clerk or staff attorney has 

been employed or is seeking or has obtained future employment 

appears in any matter pending before the appointing authority, the 

law clerk or staff attorney should promptly bring this fact to the 

attention of the appointing authority.

D. Practice of Law

A judicial employee should not engage in the practice of law except that a 

judicial employee may act pro se, may perform routine legal work incident 

to the management of the personal affairs of the judicial employee or 

a member of the judicial employee’s family, and may provide pro bono 

legal services in civil matters, so long as such pro se, family, or pro bono 

legal work does not present an appearance of impropriety, does not take 

place while on duty or in the judicial employee’s workplace, and does not 

interfere with the judicial employee’s primary responsibility to the office 

in which the judicial employee serves, and further provided that:

(1) in the case of pro se legal work, such work is done without compensation (other than such compensation as may be allowed by statute 

or court rule in probate proceedings);

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(2) in the case of family legal work, such work is done without compensation (other than such compensation as may be allowed by 

statute or court rule in probate proceedings) and does not involve 

the entry of an appearance in a federal court;

(3) in the case of pro bono legal services, such work (a) is done without 

compensation; (b) does not involve the entry of an appearance 

in any federal, state, or local court or administrative agency; (c) 

does not involve a matter of public controversy, an issue likely to 

come before the judicial employee’s court, or litigation against 

federal, state or local government; and (d) is reviewed in advance 

with the appointing authority to determine whether the proposed 

services are consistent with the foregoing standards and the other 

provisions of this code.

Judicial employees may also serve as uncompensated mediators or arbitrators for nonprofit organizations, subject to the standards applicable 

to pro bono practice of law, as set forth above, and the other provisions 

of this code.

A judicial employee should ascertain any limitations imposed by the 

appointing judge or the court on which the appointing judge serves 

concerning the practice of law by a former judicial employee before the 

judge or the court and should observe such limitations after leaving such 

employment.

Note: See also 18 U.S.C. § 203 (representation in matters involving the 

United States); 18 U.S.C. § 205 (claims against the United States); 

28 U.S.C. § 955 (restriction on clerks of court practicing law).

E. Compensation and Reimbursement

A judicial employee may receive compensation and reimbursement of 

expenses for outside activities provided that receipt of such compensation 

and reimbursement is not prohibited or restricted by this code, the Ethics 

Reform Act, and other applicable law, and provided that the source or 

amount of such payments does not influence or give the appearance of 

influencing the judicial employee in the performance of official duties or 

otherwise give the appearance of impropriety. Expense reimbursement 

should be limited to the actual cost of travel, food, and lodging reasonably 

incurred by a judicial employee and, where appropriate to the occasion, 

by the judicial employee’s spouse or relative. Any payment in excess of 

such an amount is compensation.

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A judicial employee should make and file reports of compensation and 

reimbursement for outside activities to the extent prescribed by the 

Ethics Reform Act, other applicable law, or the Judicial Conference of 

the United States.

Notwithstanding the above, a judicial employee should not receive any 

salary, or any supplementation of salary, as compensation for official 

government services from any source other than the United States, 

provided, however, that court reporters are not prohibited from receiving 

compensation for reporting services to the extent permitted by statute 

and by the court.

Note: See 5 U.S.C. App. §§ 101 to 111 (Ethics Reform Act financial disclosure provisions); 28 U.S.C. § 753 (court reporter compensation). See also 

5 U.S.C. App. §§ 501 to 505 (outside earned income and employment).

Canon 5: A Judicial Employee Should Refrain from 

Inappropriate Political Activity

A. Partisan Political Activity

A judicial employee should refrain from partisan political activity; 

should not act as a leader or hold any office in a partisan political organization; should not make speeches for or publicly endorse or oppose a 

partisan political organization or candidate; should not solicit funds for 

or contribute to a partisan political organization, candidate, or event; 

should not become a candidate for partisan political office; and should 

not otherwise actively engage in partisan political activities.

B. Nonpartisan Political Activity

A member of a judge’s personal staff, lawyer who is employed by the court 

and assists judges on cases, clerk of court, chief probation officer, chief 

pretrial services officer, circuit executive, and district court executive 

should refrain from nonpartisan political activity such as campaigning 

for or publicly endorsing or opposing a nonpartisan political candidate; 

soliciting funds for or contributing to a nonpartisan political candidate 

or event; and becoming a candidate for nonpartisan political office. 

Other judicial employees may engage in nonpartisan political activity 

only if such activity does not tend to reflect adversely on the dignity or 

impartiality of the court or office and does not interfere with the proper 

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performance of official duties. A judicial employee may not engage in 

such activity while on duty or in the judicial employee’s workplace and 

may not utilize any federal resources in connection with any such activity.

Note: See also 18 U.S.C. chapter 29 (elections and political activities).

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Resources

Federal Judicial Center Resources

ADR in the Federal District Courts: An Initial Report (2011)

http://fjc.dcn/content/adr-federal-district-courts-initial-report

Basics of Employment Discrimination Law

http://fjc.dcn/content/332938/basics-employment-discrimination-law

Benchbook for U.S. District Court Judges (6th ed. 2013)

http://fjc.dcn/content/benchbook-us-district-court-judges-sixth-edition

Civil Litigation Management Manual (2d ed. 2010)

http://fjc.dcn/content/civil-litigation-management-manual-second-edition

Criminal e-Discovery: A Pocket Guide for Judges (2015)

http://fjc.dcn/content/309106/criminal-e-discovery-pocket-guide-judges

The Elements of Case Management (3d ed. 2017)

http://fjc.dcn/content/323373/elements-case-management-third-edition

Guide to Judicial Management of Cases in ADR (2001)

http://fjc.dcn/content/guide-judicial-management-cases-adr

A Guide to the Preservation of Federal Judges’ Papers (3d ed. 2018)

http://fjc.dcn/content/330702/guide-preservation-judges-papers-third-edition

Interactive Orientation for Federal Judicial Law Clerks (iOLC)

http://fjc.dcn/content/322873/interactive-orientation-federal-judicial-lawclerks-iolc

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Judicial Writing Manual: A Pocket Guide for Judges (2d ed. 2013)

http://fjc.dcn/content/judicial-writing-manual-pocket-guide-judgessecond-edition

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

(2019 rev. 4th ed.)

http://fjc.dcn/content/340624/maintaining-public-trust-ethics-federal-judiciallaw-clerks-revised-fourth-edition

Managing Discovery of Electronic Information (3d ed. 2017)

http://fjc.dcn/content/323370/managing-discovery-electronic-informationthird-edition

Manual for Complex Litigation (4th ed. 2004)

http://fjc.dcn/content/manual-complex-litigation-fourth

Mediation & Conference Programs in the Federal Courts of Appeals: 

A Sourcebook for Judges and Lawyers (2d ed. 2006)

http://fjc.dcn/content/mediation-conference-programs-federal-courts-appealssourcebook-judges-and-lawyers-second-edition

A New Judge’s Introduction to Federal Judicial Administration (2d ed. 2020)

http://fjc.dcn/content/346988/new-judge’s-introduction-federal-judicialadministration-second-edition

Organization and Jurisdiction of the U.S. Bankruptcy Courts

http://fjc.dcn/content/308820/organization-and-jurisdiction-usbankruptcy-courts

Technology-Assisted Review for Discovery Requests: A Pocket Guide for 

Judges (2017)

http://fjc.dcn/content/321579/technology-assisted-review-discovery-requests

138

The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Carol Amon, U.S. District Court for the Eastern District of New York

Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indian

Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit

Judge Nancy Freudenthal, U.S. District Court for the District of Wyoming

Judge Thomas Hardiman, U.S. Court of Appeals for the Third Circuit

Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of Texa

Judge Raymond Jackson, U.S. District Court for the Eastern District of Virginia

James C. Duff, Director of the Administrative Office of the U.S. Court

Director

John S. Cook

Deputy Director

Clara J. Altma

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal 

judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven judges 

elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training for judges and court staff, including 

in-person programs, video programs, publications, curriculum packages for in-district 

training, and web-based programs and resources. The Research Division examines and 

evaluates current and alternative federal court practices and policies. This research assists 

Judicial Conference committees, who request most Center research, in developing policy 

recommendations. The Center’s research also contributes substantially to its educational 

programs. The Federal Judicial History Office helps courts and others study and preserve 

federal judicial history. The International Judicial Relations Office provides information 

to judicial and legal officials from foreign countries and informs federal judicial personnel 

of developments in international law and other court systems that may affect their work. 

Two units of the Director’s Office—the Information Technology Office and the Editorial & 

Information Services Office—support Center missions through technology, editorial and 

design assistance, and organization and dissemination of Center resources.

One Columbus Circle NE

Washington, DC 20002-8003

fjc.dcn • fjc.gov

The Law Clerk Handbook provides an overview of law clerk 

responsibilities, chambers operations, and the work of the 

federal courts. Potential and current law clerks, as well as 

their colleagues, will find helpful information on conduct, 

ethics, types of federal court litigation, chambers and 

case management, court governance and administration, 

legal research and writing, and resources for additional 

information on these topics.