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Judge Nazarian to Judges: Take the Accountability Pledge

Tim Kowal     February 27, 2024

There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial clerks, but it needs judges to pledge that they will invite their clerks to fill out the surveys.

Uncomfortable taking the pledge publicly? No problem: please invite your clerks to do the survey anyway.

Why should you support the Legal Accountability Project? Judge Nazarian explains:

  • The laudable work of gathering data to facilitate quality clerkships is nothing new. Law schools do it. But that means the data is fragmented and incomplete. The LAP centralizes it.
  • The data is credible. Only confirmed clerks can submit surveys.
  • The data is confidential. Only clerkship applicants can access it.
  • Still, many clerks may feel insecure about submitting a survey without their judges’ endorsement.

If you are a judge, please sign the pledge, and encourage your feeder law schools to support the Legal Accountability Project’s work.

If you are a clerk or a former, submit a survey.

If you are an attorney, tell your alma mater that, next time you sign a check, you’d like to know if they support the Legal Accountability Project.

 

Judge Douglas R. M. Nazarian’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Transcript:

Announcer  0:03  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome,

Jeff Lewis  0:17  
everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Although Jeff and I are certified appellate specialist and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague. And

Jeff Lewis  0:33 
before we jump into this week's discussion, we want to thank case techs for sponsoring our podcast casetext is a legal technology company that's developed AI back tools to help lawyers practice more efficiently since 2013. Casetexas relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext's launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use all while maintaining security and privacy. Our listeners enjoy special discounted case texts on key stakes basic research at casetext.com/calp. That's casetext.com/C A LP. Now,

Tim Kowal  1:14 
Jeff, you and I have discussed the legal accountability project on this podcast a couple of times we were we were privileged to have its founder Elisa Schatz, Ben Come on, and we learned about the genesis of the project and how it's doing and in the news. Recently, we've been pleased to learn that a number of jurists have now signed on to the legal accountability projects mission to shine a light on mistreatment of judicial clerks and one of those jurists is the honorable Douglas R. M. Nazarian. And it's our privilege to welcome judge Nazarian to the show today, judges Aryan has served as served on the Appellate Court of Maryland since January 2013. He joined the court after five years at the Maryland Public Service Commission and 15 years as a litigator in law firms in Washington and Baltimore. He's a graduate of Yale College and Duke law school and he clerked for Judge James B. Logan on the Eighth Circuit judges Aryan is a legal accountability project board member and wants attorneys and judges in California to know about the legal accounting accountability projects initiative, new initiative called the LA P pledge, and we'll be talking about that today with Judge in his area. And so welcome to the podcast. Your honor, thank you for taking some time with us today. Thank you for having me. Now, Judge Nazarian, you've been on the bench for over 10 years. And the mission of the legal accountability project is to improve transparency and accountability in the working conditions for people who work in courts. And I suspect many judges might say that the the LLP isn't necessary. And I wonder why did you decide to join the legal accountability projects board?

Douglas R. M. Nazarian  2:46 
Well, the this story there is similar to actually conversation we were having that Jeff mentioned right before we we started recording, I became aware of the project itself right around when it was getting started right around when Lisa testified in Congress about her her very negative clerkship experience in the post clerkship aftermath of it and I imagine you've talked about that when when she came on the podcast, so I won't, I won't belabor it, but in my role is as a judge, but also, I teach at University of Maryland law school and, and I was a clerk myself. And, you know, my clerkship was, I guess, the opposite of Elisa, it was the best job I had before I got this one. And it was incredibly formative not only, you know, for someone who's a young lawyer, wanted the litigator to, you know, really see how decisions get made and do the writing and get the reps and really just, you know, test yourself judge loket Who is I was in his first class of law clerks in 1991 92. He is still on active status in the Eighth Circuit at age 83. Oh, that's and yeah, we're there. There are 107 of us who have clerked for him and, you know, his network comes back together every five years or so for reunions and you know, being a local clerk is a big part of who I am as a who I was as a lawyer who I tried to be as a judge and and I think that's what clerkships are supposed to be like, I think that's an you know, Judge look and clerked for Judge Lombard on the Second Circuit and Justice White and those were two incredibly formative relationships for him and so, it it hurt my heart to hear about Elisa and other some of the other negative experiences people have had in clerkships and and, you know, when I learned about the project, you know, my first reaction was, this is not something that's designed to burn clerkships down right, it is designed to avoid what happened to Elisa and to, you know, to some of the other folks who've had the bad experiences and so I honestly can't remember whether she reached out to me or I reached out to her but I came in contact with her early on because I think I've been pretty visibly. I've been a visible adult clerkships in, especially in the law, student space, and here in Maryland, in particular, and, and have tried to preach the gospel and help connect students to my colleagues into, into into judges in whatever sphere of influence I have. And so it was a natural extension of, of that work that I've been doing. And, and consistent with the general value that like, on the one hand, we as jurists need and depend on our law clerks to do the work of the people. On the other hand, that experience should be a positive personal and professional developmental experience for the clerk, we have a responsibility as judges to be good bosses, good managers, good leaders. And, you know, the process by which students apply to and, and connect with and become law clerks is, you know, a less than carefully organized one, it's, you know, we're all, we're all free agents. The federal courts have this, you know, this big, you know, online portal thing called Oscar, but that just, you know, is a, it's a membrane through which the information flows that the judges, here's their hiring plan that the judges can, the federal judges can follow voluntarily, but some of them don't, a lot of them don't, there is no such thing in the state systems, at least in any broader sense. There are some courts that have a little more organization to the way, but mostly, you know, there are, what 10s of 1000s of free agent judges who hire clerks every year. And so anything that sort of enhances the the information that's available to students about data and the candidates about the experience that helps make better connections between candidates and judges is all to the good. I know a lot of this has historically flowed through law schools. I don't think this is intended remotely to displace that I think it's intended to enhance it and augmented. You know, one of the things that schools have said is like, well, you know, we have our database. Well, your database reflects the information you're able to gather from your lungs, your students might be interested in learning about judges that your alums haven't clerked, for learning about the experience of other schools, students with those judges, it's, you know, more is better. It's, it's not, it's not meant to displace anybody it's meant to, meant to augment it and and create greater transparency.

Tim Kowal  7:24 
Yeah. When you heard Elise's story, and if our listeners, we discussed her story back in episode 39 of the podcast, and then we had her back on to discuss further developments of the legal accountability project on episode 98. But when judgment is there, and when you first heard Elisa story, did you think were you surprised? Do you think that that the stories are are more common than the many people may think? What was your initial reaction to it? Well,

Douglas R. M. Nazarian  7:51  
as I said, it made me sad, and it made my heart hurt. I think it's, it's hard to imagine, you know, going into into a professional setting like this in a relationship like this, that it's going to go that badly. And, you know, it's not unlike what you hear across the legal profession at times, you know, there are law firm settings that are toxic, there are, you know, government agency settings that are it's not, it's not confined just to this, so and so. So at starting point, you know, her her individual experience was terrible, both during the clerkship and then even more to the point after and I think one of the one of the issues that's motivated her is the absence at least in the DC superior court setting where she was, and I know across the federal judiciary, in sort of the absence of complaint and, and HR sort of mechanisms that are there to deal with Locklear complaints when they arise, we actually don't have that structural problem here in Maryland, we're subject to the to the to the state personnel article. And and there are there are multiple paths that a law clerk in the Maryland State courts would have to raise complaint and we train on that during Locklear training. So that said, having having a mechanism and having it actually work for you, or are sometimes different things and I think one of the reasons we don't know as much as the data on bad clerkship experiences anecdotal, is there are power differentials and there are reasons you know, people not to want to talk about it. First of all, I think it's incredibly painful. If you had an experience like Elisa's to talk about it just in general, but also, you know, to go out there and say, you know, this, I had this failed clerkship experience and then to name names about it, you know, is, is challenging and potentially risky. You know, in a lot of instances, you know, maybe the problems in in an employer employment relationship are are black and white and easy to document and understand and others you know, maybe it was just a bad fit, and the employer has a different version of the story. or even who knows. It's just it could get murky quickly. And, you know, there are other layers to it. The law schools want to have a relationship with judges and to help guide students in different ways. And I think they're concerned about antagonizing those in a situation where the judge might disagree with with the clerk's version of it.

Tim Kowal  10:19 
Do you think? Do you think law schools? Do you think laws law schools are feeling cut out of the relationship, because of the work of the legal accountability project and trying to make this more of a centralized database? I

Douglas R. M. Nazarian  10:31 
don't want to speak for what's motivating the law school, but what I will say is they have struggled to embrace the project there, you know, there are some that have been outwardly hostile, there are others that have been skeptical. There are others that have been more inviting in terms of connecting with students and programming but less inclined to be directly supportive. And I think, you know, it may be as simple as the independence means it's, it's an element of the process. They they don't control. I don't, I don't want to point fingers or make accusations about what's motivating law schools. But I think, you know, the value here is, when this database is launched and available, it's it's, it's an independent resource that's available to students wherever and, and they can, they can use it to, to enhance and supplement the information that's available through their schools and hopefully use that to make better decisions, you know, for themselves about what, what clerkships are good for them. Yeah,

Jeff Lewis  11:40  
and it's not just about avoiding bad judges or bad experiences. Sometimes, a clerkship can vary in terms of the experience, how much exposure they have to certain kinds of cases. And I would think that this, it's kind of like online dating, that this database would help a proposed law clerk find a match that matches their personality for a successful candidate. I gotta just gotta tell you, it strikes me as counterintuitive that any school would be hostile to an additional resource that could ensure a successful clerkship experience for one of their kids. I just, I don't get that.

Douglas R. M. Nazarian  12:17  
Well, I don't, I don't either. I have the same reaction to you. And there's another even a whole nother layer, a whole nother couple of layers of potential upside for everybody, right. So the, from the students perspective, a national database that covers state and federal courts across the United States, you know, allows you to search around and think of judges or courts you maybe didn't even think about, that may be a good fit for you out for whatever reason, I mean, it allows students to cast a broader research net when they think about clerkships. And in addition to that, one of the huge problems across across the law school environment and the judiciary is, is growing the diversity across the pool of law clerk. And what I've found over the years and working with not only the candidates that come to me, but with the students that I teach, and that I talked to about this is there's there can be enormous asymmetries in just what students know about this profession when they show up to law school, you know, I have a daughter who's one L right now, she has the luxury of having, you know, a father who's lived through this profession and, and spends a lot of time thinking about this law, a lot of law students don't know what a clerkship is, let alone, you know, the kinds of things you can and shouldn't be doing, beginning you know, in the early days of law school to sort of prepare yourself and get ready for this. And, and so starting just the conversation, and making information available, can only grow that and what I found is in order to get a diverse pool of applicants to come clerk for me and my colleagues, you have to you have to go out and speak to student groups from across the demographic spectrum. I do annual meetings with the the Black Law Students to Latin law students, the Asian Law students, the all the different affinity groups, and I do it in any law school who will have me just to sort of reach the gospel that like this is out there for you. And a judicial internship may be sort of the gateway gives you you know, you can get a semester and get a feel for whether this is something you want to do. But here's the stuff you should start thinking about here are the timelines, here's and it, but you have to get that word out. Okay, so how does the database Well, if you're a student of color, a student from an underrepresented background, you're a first generation law student you're reading around in this database And you, you start to see survey responses that say, here's a judge that hired me when I was this kind of student. And here's the experience I had there, this was welcoming to me, this was a good fit for me, that's now a judge who's going to get candidates that Judge otherwise wouldn't get. And it may also get the word out. From the judges perspective, it may get the word out about us, right, a judge who gets positive reviews in his database might get applicants they otherwise wouldn't, right? Because everything else that's driving the decision is what I mean, sometimes, you know, a lot of times it's stuff like geography and your personal circuits. And but a lot of times, it's this sort of perception of what courts and what judges are prestigious, or we're going to feed you to this place or that place. And you're doing it based on those kinds of they, they you think they're tangible, but they really aren't and, and kind of considerations and this way, you know, you learn some more concrete things about what it's like when you get there, what you're going to learn. And, you know, here's, here's some more information about what the former clerks are doing, you know, you can come here, I could tell you what all 26 of my former law clerks are doing, and it's this incredible range of things. And, you know, that's not anything you can find in a database, or that the law schools are going to have at the ready. So maybe, maybe, I think in both directions, there's opportunities to grow the diversity, diversity of candidates for us and to and to answer support diversity at the judiciary with the candidates themselves. So I'm with you, I don't, I don't really understand the reluctance. But it's there. And you know, we're continuing to work on that. But we're also not depending on the database is going to launch, you know, in a way that allows students to sign up themselves without requiring their law schools to subscribe or anything like that. So that, you know, it's not dependent on a specific law school relationship. It's, it's, you know, it's available in different modalities can actually help the students. It's

Tim Kowal  17:08 
like when people started listening to music on mp3 is, you know, you could you could still release CDs and hope people will buy them, but you're probably going to be left behind. Yeah,

Jeff Lewis  17:17 
Napster went out of business.

Douglas R. M. Nazarian  17:19  
Well, the first mover often struggles with these kinds of adaptation challenges. And I think, you know, the beauty of being a nonprofit is that you don't have to make money. But you also have to figure out a viable business model for to operate it. And I think we're, I think we're trying to figure out the best way to be most available to the broadest range of students. And

Tim Kowal  17:45 
let's give our listeners a little bit more nuts and bolts about what we're talking about. We've been talking about a database of judges based on their clerks, experiences working, clerking with those judges, and that database is populated by way of surveys. And the legal accountability project has as initiated a pledge to to judges to get their clerks to, to buy in and fill out those surveys so that the legal account accountability projects database can be more robust. Judges area would you tell us a little bit more about the about the this pledge and what it hopes to accomplish what I think I think it's got about over 1000 surveys filled out so far, what is the pledge meant to do? What are your your hopes and expectations for for the coming year or so? Right?

Douglas R. M. Nazarian  18:37 
So one of the big challenges, of course, is populating this database, right? It didn't, didn't exist, projects been around for a little over 18 months, you got to build this with something, right? We I've been talking all about how great this information is going to be but you got to gather it. And so you know. So challenge number one has been to gather the surveys, where do you get well, you can you there's not some you know, listserv of former law clerks across the country. You can just put this out too. You've got to you've got to find people out in the world. So one approach has been to ask judges Hey, will you send this survey link out to your clerk families and ask them to fill out the survey and and we did that you know, informally we did that with with judges who you know the project had contact with in one way or another relationship or you know, the judging weed appeared in front over judges we knew however, you know, that however, lawyers now, I don't know the exact number but it's many hundreds of surveys have come in yet. You know, you ask the clerks then the former clerks you tell them okay, tell your friends to who you know clerk and so you get a you get some of that effect. But you also Throughout all this, you get some questions. I think even though the survey submissions can be anonymous If people want them to be in their bedded boat, as they come in, and they're edited in terms of access to the database itself, once it launches, people had questions about whether, you know, am I going to annoy my judge? If I do this are, you know, there's been a question about judicial acceptance of this. And so the pledge was, is an idea that's designed to signal to not only the clerk world and the candidate world, but to the rest of the judicial world, that there are judges who, in fact, align with these principles of transparency and, and diversity. And so by putting our names out there, we're saying, there are a couple of things that taking the pledge says, I mean, the biggest is that I have sent this survey to my clerks and ask them to please fill it out and to tell their friends, and then I'll do that with each set of clerks as they leave. And I allowed the legal accountability project to say that I've done this, it's really that's really all the pledge is. But by putting your name on it, you're telling others, you're telling both the potential consumers of this, you're telling the law schools, and you're telling other judges, you know, you're not, you're not alone in this, and you're not going to be hung out there. You know, numbers aren't huge. There are a dozen or so of us at this point, who are sort of early pledge takers, but the number has grown. And so instead of, you know, when you're contacting other judges saying, oh, yeah, there are other judges that have done this, trust us. Now, there's a way to say, here's some specific other judges who have done it. And, you know, we have a growing number of judges from different states, and different levels of courts. And, you know, we have a federal judge and, and the goal is then to have that signal acceptance in the judiciary in a way that builds on it, you know, there are some judges who may be I suppose, less, they may be more reluctant to take the pledge and be visible, but the fact that there are other judges that are better able and willing to put their names out there says, okay, you know, maybe I'll send it you know, maybe I'll maybe I'll circulate the survey anyway, even if I don't think so that that's that's what it's meant to. That's what he's meant to do.

Tim Kowal  22:24 
Do you get a sense whether any of the of the former clerks are reluctant to take the survey? And would they be more? Would they would they be more likely to embrace taking the survey if their judge invited them to take it and sent that list took the pledge, and it sent them the link? Lincoln welcomed it? Yeah,

Douglas R. M. Nazarian  22:43 
I think the ladder is absolutely true. Right? I mean, if your judges telling you please take this mean, that's, that's an invitation to take it into populate the database with it. Look, I think it's hard to know whether there's going to be there are going to be judges who are going to be happy unhappy about this. And I and I think judges who, who don't put their name on it, or, you know, you know, we have some uncertainty in that regard. Now, there are some safeguard around this. I mean, even though I'm on the board of this project, but because I'm a judge, I don't actually get to see any of the survivors. I have sent this out to my law clerks, but actually don't know, and I'm not allowed to know whether any of them or how many of them send it in, or what they said, I hope the reviews are positive. But I don't know. And it's because the judges are not allowed to have access to this, the only people who get access to it are students who can be connected to a law school email address, or who can be, you know, if they're, if they're out, you know, a couple of years from school, when they're applying to clerkships who can be who can be confirmed to be real clerkship candidates, and, and law school, you know, clerkship directors, and and appropriate administrators can get access to it. So there are people out in the world who can see what's in this. And I suppose, you know, there's some risk that people are going to get in this database, and then they're going to talk about what they see in there and stuff could filter back. They're not supposed to do that. But, you know, sure. It's like anything else, you you guys raise the potential the robot, right, the rubbing room is sort of the, the opposite sort of unhinged version of this, right? Because there's no vetting on the way in and there's no vetting on the way out, right. It's just,

Jeff Lewis  24:25  
it's, and judges can see it, they can see all about it. So whatever. Yeah.

Douglas R. M. Nazarian  24:32  
You know, that's the free range version, I guess. I mean, this is meant to be, it's meant to be a lot more professional and a lot more controlled. It's not meant to be. It seems that there was there was someone recently reported recently referred to it as the Yelp for judges. And actually, I think we resisted the Yelp analogy, if maybe it's a little more like Glassdoor, but I don't even know like what control Glassdoor has about what comes in to this. This is As best we can, we possibly can, the goal is to make sure that the people who are putting survey results in our confirmed former law clerks. So you don't have sort of anonymous angry people, or quite frankly anonymous happy people going in and, you know, Miss populating this database in a way that's designed to get me that's one thing you see in the robing room, you can almost tell, right, like, here's a in court. Well, right, those are easy. And but you can also tell sometimes, like, Oh, here's somebody who went in and put in a bunch of 10 stars, right, to try and skew this bad, you can see it. This, you know, as, as best as humanly possible, that shouldn't happen in this database. And it's just a more accessible version of what I know, I've tried to do on a lot like, I have invited candidates to talk to my former clerks, and I've given them contact information when they want it. I know, the schools do have done some of that similar kind of connecting. But again, it's haphazard, it's it's it works as well as sort of it's organized. And so yeah, I know that my former clerks have talked to some candidates here and there. But if there's, if there's information in a, in a single place that they can easily get access to, and they can read and think about and in, in their leisure and whatever step in the process. And that's just, that's just all to the good.

Tim Kowal  26:24  
Does the legal accountability project ever take any of the survey results? And if they see something, let's say that there are allegations of, of criminal activity or or or civil activity that would make the judge civilly liable, say, Does illegal Accountability Project ever escalate? Or report those results to to the authorities to the to the judges, Chief Judge, or to the state Supreme Court or whatever body would would govern the judge?

Douglas R. M. Nazarian  26:52  
You know, that's a that's a great question that I haven't thought about. I mean, the the answer is, you know, at this point, you know, we haven't launched the database. So nobody's been reading anything like that. And I, again, I don't myself know what's in the database, because I'm not allowed to see it. I think we'd have to think very carefully about whether something like that had to be addressed and how, and I don't want to give a a categorical answer to that question. And it's absolutely, I guess it's possible that someone could put information like that in the survey, the survey has, you know, it's, it's largely qualitative, not quantitative. And so there are places where people could could give detail that could raise those kinds of questions, I guess, I guess we'll see if it if it comes to that. So

Tim Kowal  27:43  
the end does illegal accountability. You talked about how these results are meant to be shared only through through select vetted channels, like through through law school people, people who are law students who are actually actively seeking a clerkship and they want to know I'm submitting a an application to this judge, but I want to know what I'm getting into first. Beyond that, does a legal Accountability Project intend on? Maybe do any anything else you mentioned, you know, quantitative analysis of the data? Or is there an opportunity to use a survey results to kind of give some broader trend pictures to the to the public at large? Is that, is that something? Or is that something that's outside? He's not?

Douglas R. M. Nazarian  28:26  
We haven't talked about that. And I'm not a data scientist. But my first reaction to the question is that I don't know how reliable it would be. And it's because you don't know, you don't know enough about your sample. Right? You're, you know, one of the challenges you got to make this database big enough to to be useful and significant. But you also, you know, like, let's say you had some, you know, nice round number, or you have 10,000 responses, and you could say, well, you know, 1000 of them are negative, something like that. But it's been a while since I took any statistics, but like, you'd have to, you'd have to know a lot more about where those surveys came from, you know, unpack like, how many of them came from how many judges and what that sample told you about? I don't know, I just as I tried to say it out loud. It makes me twitchy about whether you could you could draw any meaningful, like statistically meaningful or, or qualitatively meaningful conclusions from the project didn't have any plans to do anything like that with it. I mean, I did there's people are submitting this stuff in confidence. There's there, there's no plan intention, or I think there were any. Quite frankly, I think we would we would risk reaching the promises we've made to the, to the survey participants if we if we tried to do anything like that. Yeah, yeah, there's I don't I don't I don't think it would. I don't think that's that at all in the in the cards, I think that the goal is much more focused around clerkship experience and and improving the opportunities there.

Tim Kowal  30:10  
Yeah. Yeah. Something that that made me think about that was something that Elisa had had posted. I think she posted on on LinkedIn. And she mentioned about that some of legal accountability projects, biggest supporters have been young. And she's talking about how it's this is a nonpartisan endeavor, and that some of its biggest supporters have been young, conservative appointees, and some of our biggest roadblocks have been older progressives. And she says she has some theories on this, it could be that there's both a generational and cultural factor involved. And the project now has the data to back this up. If this bothers you ask yourself why that is. And I thought it was just interesting. And it maybe I'll just point out for our listeners, I wanted to go into a little bit of the types of questions that are in the survey, as it asks it has some some work life balance type issues, it starts with Who was your judge? And what was the clerk where you worked? And then some work life balance issues, like what what days and hours? Were you expected to work? Was there an option for remote work? And and then I thought one of the important questions, did you leave your clerkship prior to the end of the scheduled clerkship period? And why? And I wondered, based on the the 1000 responses that that had been received, as far as I know, you can't see the individual results. But if you if you know, are, are a lot of the clerks who are who are responding these to these early surveys, are they leaving early? And are they leaving early and percentages higher or lower than you would have expected?

Douglas R. M. Nazarian  31:36  
I don't know, one way or the other answer that, okay. And you know, there are different reasons people leave early. There's a, there's a, it just anecdotally, in our courts here in Maryland, it's, it'd be uncommon for somebody to leave an appellate clerkship early. But the some of my trial judge friends tell me that, you know, they'll have a Locklear, who's doing great. And in the middle of the year, you know, lawyer who appears in that court all the time will make them a job offer. And they'll they'll, you know, especially if it's in a smaller firm that does something, you know, that this clerk wants to do. They'll hop to that. So, you know, it can happen for a variety of reasons, but no, I don't know the answer about what the what the surveys are showing. Yeah.

Tim Kowal  32:24 
And then one of the other questions is, what is the judges political ideology and or political affiliation? And, and I wondered if that was partly why why asked about, you know, maybe using some of this data to point to some some trends and maybe dispel suspicions that, oh, it's all the liberal judge, right. All the conservative judges, whatever it is to try to put everything through the partisan lens that everyone wants to do or ideological lens. And and but I wondered if you thought that judges, some judges might balk at taking the pledge, if they suspect that there's some some angle to put an ideological bent on the results? Well, I'll be mine.

Douglas R. M. Nazarian  33:00  
I haven't heard any of that. And and, you know, the project is not set up to accomplish any ideological bent. It's designed to get as many judges in it as possible, wherever their whatever their provenance before they got on. Got on their courts.

Tim Kowal  33:14 
Yeah. And you mentioned that the judges are not are not privy to the results. But if there are there are negative results, or responses do well, what would be an aspiring law clerks route to be able to find out? Well, you know, there was this one, there was this one response, all the all the survey responses for my judge, or my prospective judge look pretty good. But there was one that was a little iffy. And I like to know what some further explanation on it well, judges have any ability to, I guess there's no no ability to comment if they are not allowed to see it.

Douglas R. M. Nazarian  33:52  
Right? There isn't. There isn't at this point. And and what I also thought you were going to ask is, well, what if the student wants to follow up with that with that submitter and and so you'll see the survey allows the submission to come in anonymously, but doesn't require it. So it's possible that the person who submits might put their name on it, and that that might allow the student to follow up with them if they are willing to be named, but if they're not, then then that would go in anonymously. And you would have that information, but you the database would not reveal a way to connect those dots. Now, one of the one of the reasons that we want to make sure that there's a good critical mass of responses before it goes live, and, and a reason why some of the identifiers might be fuzzed up a little bit is you want to make sure that you're not outing somebody who wants to be anonymous by revealing like, oh, they clerked for this judge in this exact year, right. And there's only one, you know, one such response in the database, right. So. So the goal is to allow The response, the survey responses to come in and anonymously and not reveal the comment or if that's the way they want, if they want to remain anonymous. And, you know, there, if you have someone who puts in a survey response that is anonymous and vague, it may be less useful. I think, you know, but, but hopefully there will be enough information in there. First of all, we'll be more than they have anyone. And second of all, you know, hopefully it will it will be detailed enough or, or send the signals that that is, you know, the student can, can pick up on and, and, you know, make their own decisions.

Tim Kowal  35:46 
Yeah, yeah, we want to get as much information as we can, it's, we want to make sure that it meets a minimum threshold of quality. But so, a survey response with a with someone who's willing to put their name on it is a higher quality. But just because it's anonymous, doesn't mean it doesn't meet that threshold.

Douglas R. M. Nazarian  36:04 
Right now, the one the one bit of quality control, even with the anonymous one is they're not anonymous to the project, right? They're anonymous to the database user. Yeah. But they they can't be, you can't come in anonymously. And get it in there. It's got it's got to be clear, before it goes into database. So we, we will have some assurance that it's a real live former law clerk. And, and so, so you'll have that, that assurance. Yeah, you know, the quality of what they say or not, you know, it'll, it'll, it'll be what it is, but it'll start off with being more than you're gonna get through normal channels, right? Because Because that otherwise, the only way you you hear from that clerk is if you have the ability to know who that person is, and get to them. And, you know, there is some reluctance to talk by clerks to talk about negative experiences, right? They, they, your if you're going to practice in that quarter in that town, you don't want to, you may not want the word to get out that you're out there talking negatively about your judge, right? And there are, I'm sure situations where, you know, the judge might have a different view of why the clerkship didn't go well. Or, you know, maybe maybe it's one of those situations where it was just a really bad fit, and it was a miserable year. And the judge might have written the reasons for the year differently. Right, like, and so if, if the judge finds out or you thinks that you're out there, trashing them or trashing the clerkship experience, people may see or that that's bad for them, you know, in their, in their community. And so, the anonymity is a safeguard, you know, in favor of getting more information. And and, you know, and protecting, as best you can the the people who have, yeah,

Tim Kowal  38:00 
yeah, so the the survey respondents are, can remain anonymous to the world and even to their judge, that they've given the response, but they're not anonymous to the legal accountability project or actually vetting them. And that's, that's an important difference between the legal accountability projects and what we talked about earlier, the role being room, which all you have is a working email address.

Douglas R. M. Nazarian  38:20 
Right? Right. Right. You could you could get a burner email address, right, exactly. Whatever you want to wrote. And you cannot do that with the legal

Tim Kowal  38:26 
accountability. Yeah. So you're so you can be confident that the people who have left these responses are people who actually did clerked for this judge. Correct. And so the the responses are probably, you know, again, the user will have discretion to, you know, take whatever the response is, whatever credibility they determined, but they can at least know that these are people who actually clerked for the judge. Yep, yep, exactly. Right. Now, I wondered what would happen if, you know, we've talked about the legal accountability project as being, you know, ostensibly, maybe actually, for the purpose of protecting prospective law clerks and and in current law clerks. But is there is there a broader a broader purpose of there are other other benefits that go beyond just the law clerks or their benefits to judges and to the judicial integrity as a whole. So when you pitch this to other judges to say you should really take this pledge, not only because because you're you're going to have a feather in your cap with clerks, because you're doing your good deed for the day, but because it promotes the judicial system at large? Well, I

Douglas R. M. Nazarian  39:32 
 
think, I mean, I think that's part of it. It's maybe the less direct maybe it's the down hopefully, the downstream effect of, of of this particular initiative, right, that, you know, the word accountability is in the title. Right. And I know, the project and Elisa have had spent some time advocating for, you know, legislation that that relates to, you know, employment accountability. For law clerks and and, you know, get create some of these HR protections, for example, that don't exist for law clerks in the federal judiciary in some other places. That is a component of of what the nonprofit has done. But the real, you know, the, it's, it's the old brand ice and sunlight is the greatest disinfectant. Like, I guess, if there is a sense that a judge who was a bad manager, a judge who treats their clerks badly is going to be revealed for that, that may serve as a deterrent, it may, in some instances, it may reveal to the judge in the first place that you are a bad manager, it may encourages and enhances just the concept of, of employment accountability across the judiciary in a way that that does not seem universally understood or appreciated. So, yeah, I mean, you know, the, the, the immediate effect, of course, is to create this database and put this information out there. And, you know, one of a judge from Georgia, Steve Dillard, who's who's, who's been a supporter, he hasn't taken the pledge yet, but he described it one time, as you know, a free market solution, right, you you put you put more sort of information out there and let the market decide where the good clerkship is where the where the bad clerkship is, and let and let those let those forces do their work, you know, you can you can put you can put different orientations on it. But the idea is that, when you do all that, you know, judges who who don't hold up well against that kind of sunlight will will either, you know, have to change their ways or or, you know, will feel the accountability. indirectly. I, you know, I don't do it that that it's really about as simple as that. What

Tim Kowal  42:00 
is a? Is there a critical mass that the legal accountability project has identified that they want to reach? You know, I don't know how many clerks there are in the United States. But is there a lot?

Douglas R. M. Nazarian  42:10  
Yeah, a lot. There's something like 30,000 judges across the United States. Not all of us have law clerks. But many of us have multiplied three. So you know, I offset a couple others that don't have any. So is

Tim Kowal  42:24  
there a percentage of law clerks that the project is trying to try to hit? I mean, probably 100%.

Douglas R. M. Nazarian  42:30 
But the goal is, the goal is obviously everybody and the targets always moving because, you know, judges retire, and then maybe aren't gonna hire anymore. And then, and then new ones come on, and, you know, so the pool? You know, I think, I think we have a sort of a rough number in mind. And we're almost there. In terms of surveys, but But it's that that's to just get sort to the launch of critical mass. And I don't actually know the exact number that are in there right now. But I know we're, I know, we're approaching the ball number and,

Tim Kowal  43:00 
and is a project more focused on getting a number of clerks or getting at least one survey result for for every judge or a large percentage of judges,

Douglas R. M. Nazarian  43:09
 
right now, it's, it's meant to just increase the number of surveys period, and there are, you know, there's going to be some lumpiness in how those are distributed, there are going to be some judges, you know, I hope I have 26 in there, I don't know if I do. But there are going to be some judges who have encouraged their, their clerk families who probably have multiple surveys in there, there are going to be some others where the connection was a little less direct. And it may be one here and one there. I mean, it's more effective when you have multiple surveys from each judge, and you have that spread more broadly. But the goal at this point is to just get as many surveys from as many different judges on as many different courts as possible, and focus on surveys rather than judging. Let's say

Tim Kowal  43:51 
at some point in the future, a couple of years from now, the legal accountability project has got a robust database feels good about the number of clerks who have reported surveys and the number of judges who have surveys on them. And and you can reach a good conclusion that that looks like working for a judge, it makes you less likely to to incur any kind of workplace harassment, would that in any way undermine the legal accountability projects mission? Is it? Is it is it out there? Is it based on a premise that the judges are our worst to work for? Or is it? Is there something else? Would it in any way undermine the mission to find that the judges actually are pretty good to work for?

Douglas R. M. Nazarian  44:32  
No, I look, I don't think it puts us out of business, if the answer is that every single clerkship experience is positive, right? I mean, that's the goal. You know, and I don't think we shut down the database. When that happens, I think then Then what you're doing is figuring out which great clerkship experience you're going to connect somebody because they're all wildly different, right? You state versus federal trial versus appellate. You know, there's, there's, there's there's a role anyway, but of course, we're not going to live in a world where there's zero negative experiences? You know, look, I think there are some, I think there's I don't think we know with great certainty, you know, the scope of the negative clerkship experience that's out there, right. If you're, if you're someone who had a really bad one, your, your experience is 100%. Pat. And that's hard. It's hard to go from that. And, and not start off thinking that clerkships can be really bad, you know, I had a, like I said, an A plus clerkship experience. And I, I view that as exactly how it should be. And again, I've used that, to try to guide the experience that I give to my team, most are probably somewhere in between. and, and, you know, a big part of this transparency objective is to learn more about where the negative clerkship experiences are, to the extent people are for very good reasons reluctant to talk about it too reluctant to reveal it reluctant to broadcast it, then, you know, it can be perpetuating, if you have a if you have chambers, that's that's not a great place to work, but no one tells you that, or you have no way to learn that you might go there and have, you might go there and have a terrible experience. You could go to a great chambers is not a good fit for you. And, and, and you could, you know, the goal is to find some way to avoid that. But like I like I've said, you know, I know, again, Elisa had a very bad experience. And I think sometimes the people she talks to perceive her as being negative about just the the concept of the clerkship. But when you look, you don't start a project that is designed to create transparency and clerkships if your goal is to burn it down, right? Like there's, why do all this right, if your goal is to kill it, your goal in doing this is to is to avoid the bad thing, to avoid the bad experience to make the the make the system work. And the reality is I can't do my job without, you know, I put it as I've got, I've got to write, you know, 7020 page papers a year, and then vote on another 300 cases where I have to know what I'm doing. I can't do that. If I have to do that myself. It's not gonna get done well, right. The way it gets done. Well, the way that people get served is when I have a team that works well together. And so it's in my interest to make that experience positive. It's in the public's interest for it to go well. And it's an it's in the professions interest to have that relationship in that pipeline of developing positive ways.

Tim Kowal  47:44 
And let me ask you about potential fixes. Let's say again, that in the in the future, the legal accountability project has got a robust database. And and, again, judges can't see it. But but let's say, Well, let me ask it this way. You know, it said that, that Law School doesn't teach someone how to be a lawyer, and for that matter, becoming a lawyer doesn't teach you how to run a law firm. And then probably none of that teaches you how to be a good judge, and the judge doesn't necessarily mean that you're a good manager, right? Where Where did those tools come from? is? And how can we provide those tools better to judges so that they become better managers, better people to work for,

Douglas R. M. Nazarian  48:23 
you know, it's on, it's should be part of the Judiciary's responsibility to provide that, that training? I mean, I know we here in Maryland, we have a statutorily created in house continuing ed wing, that's, that is a requirement that we take, you know, a certain number of hours every year, including now starting this year, a certain number of hours and, you know, di equity related training. I mean, that should be part of what, what the judicial branch does, you know, whether it does itself, whether it, you know, makes resources available to judges to, you know, get better at what they're doing. I know, part of, you know, part of the answer may be in some places to, to have more of a, you know, HR structure available for law clerks, and we do now I mean, a big part of it, quite frankly, I mean, remember this now, five or six years ago when the when the metoo movement started and and the judge Kozinski allegations came out, right, his position. His public position at the time was that his clerks duty of confidentiality and loyalty to him precluded them from even mentioning anything negative about the courtroom or anything that happened there. And the Federal Judicial Conference came out and and like specifically debunked that right and said, No, your duty of loyalty and confidentiality does not mean you have to endure harassment or stay silent about about personnel experiences that are, you know, inappropriate or inconsistent or actionable. or whatever the term is, right. And they actually put that in the federal law clerk manual, effective 2017, in a way had never been there before. So that, you know, you have to start with sort of blowing up the idea that the chambers is a in a substantively closed and, and confidential place in terms of the work we do. But you're not, you don't you don't take an oath of, you know, blind loyalty and an oath to endure harassment or mistreatment by by agreeing to come in and being awkward. So you start with sort of blowing up that mindset that had not occurred to me until he said, it's like, oh, wait a minute, really? Like, okay, so if there are some that believe that, then we need to, we need to start by cracking that open. And then, you know, maybe there are in in some places, in some systems, maybe there are tools, you need to address that more specifically, and then it's part of the judiciary's role to, you know, run itself, like a branch of government and, and be efficient and be and treat people fairly. And, and I, you know, I we could we could talk about the specific ways we try to do that here in Maryland. But, you know, judges are also human beings, and we all can do our jobs better and learn from our, our experiences and experiences of others. Yeah,

Tim Kowal  51:23  
yeah. And when you mentioned the judiciary, of course, we don't have one judiciary and in the United States, we have 51 plus. Judiciary's, right, I wonder if it's at some point in the future, the legal accountability project might consider taking its robust dataset that it's building, and maybe be able to take some built some takeaways and say, Look, this state is doing things pretty well, you got problems in this state, maybe you should kind of take some of the lessons from from state y and implement them to state Z.

Douglas R. M. Nazarian  51:53 
Maybe, yeah, maybe, you know, maybe, maybe, you know, it could be that people who, you know, could read around in the database would learn some things, you know, that that could could set you on a path to, to understand where, where some of the problems are. That's, that's not currently part of the part of the objective. But yeah, you get to a certain size, you might a reader might be able to take some conclusions away.

Tim Kowal  52:21 
Yeah. Now let's, let's close with, with some action items for our listeners, you know, giving some of our listeners who are judges attorneys, maybe law professors, or law school administrators, some some actionable steps to what to do with the pledge in the survey. So Joseph is Aryan for judges listening. What do you want judges to pick up and do as soon as they finish listen to this podcast? Well,

Douglas R. M. Nazarian  52:44  
we would we would love judges to to go to the LAPD website, which is legal accountability. project.org. Learn a little bit about what we're doing answer your questions so that you can get comfortable taking the pledge yourself. Right. We would love more judges from every state, federal, the federal system, any any judge who hires law clerks, we would love to have you take the pledge. What and again, what does that pledge entail? The Pledge entails an agreement to send the survey link out to your, your former law clerks, right, the people who are out who completed the clerkship who are in a position to fill out the study the survey, and you're and you're agreeing, if you take the pledge, you're agreeing to share it with your your outgoing law clerks as they complete their clerkships. And then the other component of taking the pledge is is your you would allow your name to appear on the LEP pledge page of the of the website as someone who who took the pledge now, you know, look, if you're uncomfortable taking the pledge, if there are some judges who may feel oh, this is affirmative support of a nonprofit that, you know, might be more than I'm comfortable doing. Okay? I don't you know, I obviously, don't subscribe to that view, because I've put my name on it. But if for whatever reason a judge is uncomfortable being named, we will be grateful if you would send a survey out anyway. Because as you mentioned before, having your judge say to you, I would like you to take this survey is as good an indication as you're ever going to get that your judge would like you to take the survey. And so you fill the survey out and it grows that way. That's all to the good. Anybody else who's who is listening who was a law clerk, you don't need your judge to tell you to do it. You can come to the website, go go to the survey, Link yourself and fill it out. It would be great if your judge got a few maybe what you could do is you could encourage the judge to take the pledge. Maybe you could make it maybe maybe there are judges who don't listen to your podcast. I hope they all do. But if if there if there are judges who for some reason might not listen to this episode. And you clerked for a judge you you might encourage the judge themselves to take the pledge. Share the survey with your co clerks and your Fellow clerk family, but you could ask the judge to send around we all we all know where our former clerks are, I have their pictures on the wall, we have a reunion every year, like, there's ways that we're all in touch with each other. And that's, that's, that's, that's the most efficient way to do it chambers by chambers if you and if you had a positive experience and you and you want to encourage other people to clerked for your judge, getting a bunch of surveys in the database, is a great way to do it. And as I'm looking at the pledge page, right now, I owe my colleague Steve Dillard an apology, he is on the on the pledge taker page. So he's one of the newer additions to it, but but he's, he's on there.

Tim Kowal  55:39 
Okay, there's an attaboy to the judge Dillard, and and I'm sure you would welcome it. If if judges would, would take to the, to the papers of their, their local bar journals and magazines, and and explain to to their local bar, in their, in their jurisdiction, why it's important that judges take the pledge and increase the visibility of this project,

Douglas R. M. Nazarian  56:00 
we we would, we would appreciate that. But even if they even if they did nothing more than say, I have done this myself, and I think it's important, and you should do it too. That would be that would be a tremendous help. Because Because again, part of this, it's like, like anything else, it's sort of the first movers have more friction to overcome, right? And when you see other people who have done it, you know, I don't want to overstate my own significance, or those of the people who are already on this page. But you know, you see these 12 judges from a bunch of different states who have done it, you can say, Well, alright, then maybe I can do it, too.

Tim Kowal  56:38 
Okay, so we've covered what we'd like judges to do what we'd like law clerks to do. Judges should take the pledge last year law clerk should fill out the survey. What about attorney? Is there anything else, that the attorneys listening to the podcast today can do to further the project? Project? Well,

Douglas R. M. Nazarian  56:54 

attorneys who are themselves law clerks fall into that earlier category. Right? And if they're if they're not, I think there are a couple of ways we actually we have had, we have had law firms who have engaged with LAPD and and, and signaled their support for the project. So it's, you know, in a, in a way that, that, you know, the bar and the legal community and the law schools perhaps can see. So that that would be helpful if you weren't a law clerk yourself, but you believe in this, you know, having what you believe in these in these values of transparency and diversity, then, you know, again, perhaps, reassuring students, perhaps reassuring judges, that you support these values might help overcome some reluctance to, to participating directly if you're if you're an attorney, who's not yourself a law clerk and don't have a survey to fill out. But you, but you, you signal, your acceptance of these values, that that may help others who do fall into one of those buckets, overcome some reluctance participants?

Jeff Lewis  57:59 
Tim, I think I hear the judge saying we should keep a link to the pledge and the project to on our podcast web page.

Douglas R. M. Nazarian  58:06 
That would be a terrific step. I'm not enough of a season podcast guest to to fall naturally to that. But I appreciate to appreciate you guys. Putting that on there.

Tim Kowal  58:17 

We will certainly do that. We'll put that in the show notes. I don't know. You know, we talked about your the project is about improving transparency. And it's hard to think of objections to more transparency, we talked about, you know, some some institutional interests that may may be reluctant to do to do it. Maybe it's a Who Moved My Cheese type of mentality, sometimes just hard to change is just hard. But it's again, it's hard to we talked about none of us could imagine a good valid objection against transparency. And that's what what this is and most, most attorneys that I know, we talked about the wellbeing room, everyone at least loves to go to the robing room, at least when they're in a bad mood and they lost and they want to read some bad things about that judge, you just handed him a bad day. And this is just this is more than then the legal accountability projects. Survey and database is much higher quality, obviously, than that we talked about its high level of vetting, you know that you are getting information from a former clerk of that judge. And it's only available to people who actually are applying to work for that judges who need that information. Before they they may wind up facing a very bad time of employment. It's maybe it's not a good fit for the clerk and not a good fit for for the judge. In some cases, it might not be anyone's fault. It's right. More More information will help make a better fit in those instances. So so we so both both Jeff and I are fans of this project and judgments Aryan We're so glad that you took the time to share more information about the pledge and the growing database with us.

Douglas R. M. Nazarian  59:56  
Well, thank you for having me. Can I can I put one more bug In the year of all the attorneys who are listening, please, you have a relationship with a law school, your law school, this, this would be an important connection to try to draw as well. We want to work with the laws, we want to have the law schools supporting the idea of making this information available to their students. And so if you're if you're an attorney, whether you clerked or not, and you have a relationship with your law school with your law school clerkship director are the people at the law schools who are involved in in helping move students into into clerkship opportunities that, you know, maybe maybe that would, that would be a nice, a nice bridge. We want we want more law schools to to be involved in and we're working with as many as we possibly can. But, but if you're an attorney who has a relationship with a law school that can that can help connect those dots we would we would be grateful and, and I know you know, our Elisa, our board members are happy to come talk to students into bar groups and whoever might be might be interested in learning more and getting their questions answered. Okay.

Tim Kowal  1:01:04 
Well, that's that's a terrific action item for our attorneys, and any judges who have contacts with with their local law schools and and lawyers who are part of the Alumni Association. Next time you write a big check, make a call and say we really would really be interested and, and grateful if the if I saw my alma mater partner up with the legal accountability project. There you go. That would be great. All right. Well, Jeff, I think that's gonna wrap us up for today. Again, we want to thank casetext for sponsoring the podcast each week, we include links to cases we discussed, and we use casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on casetext's basic research when they visit casetext.com/calp. That's casetext.com/C A LP Yeah,

Jeff Lewis  1:01:50 
and if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  1:01:59  
All right, thanks again, judges area and we'll see you next time. You

Announcer  1:02:02  
have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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