“It is essential in any form of writing,” wrote 7th U.S. Circuit Court of Appeals Judge Richard A. Posner in “The Federal Courts: Challenge and Reform,” “to know who your audience is.” The audience of a litigation brief includes the judge, the client and opposing counsel, plus other lawyers at one’s own firm and possibly the media.
An often overlooked audience member, however, is the law clerk. Thousands of them serve judges across the country. Clerks not only draft opinions, they prepare jury instructions and may influence judicial decisions in discovery and evidentiary disputes. Given the important role clerks play, overlooking them in crafting litigation briefs puts the client’s interests at unnecessary risk.
