Advice to aspiring law clerks: ‘Be clear and succinct’

The Hon. Mark Davis, Elon Law’s Visiting Distinguished Jurist in Residence and a former justice on the North Carolina Supreme Court, advised students interested in clerkships (or serving as a judge) during an online conversation moderated by Professor Steve Friedland.

The Hon. Mark Davis (left), Elon Law’s Visiting Distinguished Jurist in Residence, with Professor and Senior Scholar Steve Friedland.

A self-described “biggest proponent of judicial clerkships that could ever exist” offered practical knowledge to Elon Law students in an early April online conversation inspired by his years of experience as an appellate judge in North Carolina.

The Hon. Mark Davis, Elon Law’s Visiting Distinguished Jurist in Residence and a former member of both the North Carolina Supreme Court and the North Carolina Court of Appeals, addressed more than two dozen students on April 8, 2021, in a wide-ranging discussion of judicial selection, achieving success in law school, and what lawyers should (or should not) do when appearing before a judge.

So where does your best chance of success start as an appellate attorney arguing before a judge? Razor-sharp writing.

“Be clear and succinct. … If you take nothing else away from this presentation, take this: the type of writing you do in law journals is completely different from what judges want to see,” Davis said. “They want arguments in briefs to be as clear and succinct as humanly possible.”

Pay attention to details, too. Proofread work product, whether legal briefs or cover letters for clerkships where judges pay just as much attention to how you present yourself as what you present.

“We’re all humans, and goodness, judges are as human as anyone,” Davis said. “It is understandable that once in a while, on page 48 of your brief, you’re going to type ‘martial’ instead of ‘marital’ as every lawyer in history has done. But every now and then as appellate judges, we get briefs where every third page has a misspelling or a typo or bad grammar.”

Why does that matter? Davis explained that judges – who often spend hours reading each day – begin to question whether an attorney is substantively sloppy when her or his legal briefs are stylistically sloppy. If you have interest in working as a law clerk, grammar mistakes and misspelled words can equally doom your chances of securing work.

“That may sound petty, but let me tell you, if you’re a judge, you’re hiring a clerk to do very detailed work,” he said. “If an applicant did not take the time to scrutinize and proofread a letter, is it really someone I want to hire?”

And clerkships are among the most coveted opportunities for law school graduates, he said. “Anything that gets you inside the door of a judge’s chambers is absolutely invaluable,” Davis added. “You’ll love it. You’ll learn a ton. You’ll see what judges actually do. You’ll pull back the curtain to see how they decide cases.”

Davis was recently nominated by Gov. Roy Cooper to serve as a special Superior Court judge and designated as a North Carolina Business Court judge for a term beginning July 1, 2021. He previously served as an associate justice on the North Carolina Supreme Court from 2019-2020 and on the North Carolina Court of Appeals from 2012-2019.

Before joining the Court of Appeals, Davis worked as general counsel in the Office of the Governor, and he served as Special Deputy Attorney General in the Special Litigation section where he defended constitutional challenges to North Carolina statutes while handling lawsuits brought against state agencies.

From 1993-2006, Davis practiced at Womble Carlyle Sandridge & Rice where he represented local governments on a wide variety of issues and handled general tort litigation. Davis litigated more than 200 cases during his years with the firm and handled dozens of appeals in the U.S. Court of Appeals for the Fourth Circuit, the North Carolina Supreme Court, and the North Carolina Court of Appeals.

Davis also is the author of the 2019 book “A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina,” which explores the jurisprudence that evolved when former North Carolina Chief Justice James Exum, Jr. presided over the court from 1986 to 1994. Exum is a founding member of the Elon Law Advisory Board and a retired member of the Elon Law faculty.

The April 8 afternoon conversation on Zoom was moderated by Professor and Senior Scholar Steve Friedland.

Advice from Justice Mark Davis for Effective Oral Arguments

  • Speak slowly and clearly. “If a judge does not understand what you’re saying, you’re not going to win!” Attach a note to your outline to remind yourself to slow your speech.
  • “Answer questions directly from the bench.” Davis has seen lots of lawyers dodge questions they thought would hurt their case. Without an answer, judges will reach their own conclusions. “Always, always, always, answer tough questions. As you’re preparing for the argument, you can usually anticipate what the tough questions will be.”
  • Every case will turn on key occurrences in the factual record. “The things that are the most important to the appeal, you really need to have at your fingertips to answer specific questions.”
  • Relatedly, it’s apparent when a lawyer is trying not to answer a question that everyone in the courtroom knows is the most important point in the case. “The worst answer you can give when an appellate judge asks about a question in the record is to say, ‘I’m sorry, your honor. I was not trial counsel and am not sure what happened.’ The judge expects you to be the master of the record regardless of whether you handled the case at trial.”
  • “Be flexible.” Don’t adhere to a set presentation. Lawyers can grow disoriented if a judge interrupts an argument with a question the lawyer had planned to address later. Davis recommends a technique espoused by Chief Justice John Roberts of the Supreme Court of the United States: as you rehearse your argument, use index cards that each contain a particular point – and then randomly pull cards from the stack to quickly address whatever question might be posed with no notice.