TALP 31 | Texas Supreme Court Clerk

 

Law school is tough—just a few short years to decide the trajectory of your legal career. For Marshall Bowen, testing the legal waters through state court clerkships was the way to go. In this episode, Marshall joins Todd Smith and Jody Sanders to discuss his experiences clerking at Texas’s two highest state courts—the Texas Supreme Court and the Texas Court of Criminal Appeals. Marshall provides an insider’s perspective on the clerkship process at both courts and offers insights from a combined experience few attorneys have achieved. Marshall also offers advice for law students who are thinking about clerking but might not know how to start, where to look, or what to expect. Join us for an episode that takes a deeper look at clerkship and Texas’s two high courts from a unique perspective.

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Clerking at the Texas Court of Criminal Appeals and the Texas Supreme Court | Marshall Bowen

We have with us, Marshall Bowen. Marshall, welcome to the show.

Thank, Todd. Thanks, Jody. I’m glad to be here.

Marshall is unique. Not only is he a proud St. Mary’s Law grad like yours truly, but he has come off a succession of clerkships at the Court of Criminal Appeals here in Texas and the Supreme Court clerking for our past guest Justice Paul Green. Marshall brings some different viewpoints about clerkships and now he’s headed into private practice. Why don’t you give us a little overview, Marshall, of your background to fill in the gaps for what I said?

Thanks again for having me. I love listening to the podcast and I’m grateful to get to spend some time with you. I grew up in Austin. I’m an Austin native. I went to Texas A&M for undergrad and I studied political science. After I graduated in 2012, I moved back to Austin and I worked for a small public affairs consulting firm here. I worked in the legislature for a member of the Texas House during the 84th session and thought I wanted to do public policy work. During that session, I realized that I wanted to become an attorney.

I went to St. Mary’s in 2015. My wife is from San Antonio and I was born in San Antonio so it was a good fit. I started clerking for Judge Yeary on the Court of Criminal Appeals. After I graduated in 2018, I was with the Court of Criminal Appeals for the 2018 and 2019 term and then I moved up one floor in the Supreme Court building to start working for Justice Green on the Supreme Court from 2019 to 2020. I joined the Appellate Practice Group of Butler Snow here in Austin. I’m excited about being there.

Congratulations on that. We’ve had a couple of your co-workers on our show in earlier episodes.

I was listening to those.

Amanda Taylor and Scott Field are friends of ours and friends of the show. They’ve got a good thing going on over there at Butler Snow. You’ll enjoy working with them. That’ll be a good setup for you.

I’m grateful to be working with two incredible appellate lawyers there.

I know you worked at the legislature and got firsthand experience of how the sauce is made over there at the capital. What made you decide after law school that you wanted to go the clerkship route?

I’ve always been interested in our state government working in the legislature. I worked on drafting legislation but the judiciary was a place I’d never worked because I hadn’t gone to law school. The impetus for my interest in clerking came from my dad’s experience as a law clerk. He clerked for Judge Raul Gonzalez, who Todd clerked for, during the 1991, 1992 term. He told me what an incredible experience that was. I had that seed planted in my head as I went to law school. Once I started law school, I started interning in the chambers of a few federal judges and I realized this is work I would enjoy doing. I saw the value that it would add to my career immediately after I finished. I set my sights from my first day at St. Mary’s that I wanted to clerk somewhere. I tried to do all the things along the way, get good grades, do the law journal and the typical boxes you need to check to put yourself in a position to be a clerk.

Clerkship helps students get ahead in their career trajectory. Click To Tweet

Do you have advice for law students who might be thinking about clerkships, things they can do, ways that they can position themselves, or steps that you took that you think are helpful? You mentioned a couple, I don’t know if there’s anything else.

First, as a preliminary matter, I would recommend clerking to almost anybody. I don’t think there’s a better bang for your buck in terms of time you can spend right out of law school to get experience to become an attorney. I’m speaking from my brief time as a practicing attorney but the insight you get into the judiciary, the way you get to see how judges develop their judicial philosophy, the way you see a vast array of briefing strategies. That experience enables you to add value immediately to your clients when you get into practice and to the partners you’re working for.

Along the way, doing well in your classes is the first step. Earning high grades is an important criteria. Being on Law Journal is a very important piece of a clerkship application but then also developing strong relationships, preferably with professors who also clerked who can write letters on your behalf to the judges you’re applying to and being on top of the deadlines. Increasingly now, clerkship deadlines start popping up a couple of years in advance of the opening. You need to be mindful of the deadlines and get your applications in quickly because they’re increasingly competitive.

This is happening mostly in the 2L year now, isn’t it?

I think the fall of your 2L year is when you need to start because you have a full year of grades at that point so you have something to stand on. That’s when judges start to hire.

Is Vincent Johnson still the clerkship advisor at St. Mary’s?

As far as I know. That’s who I went to for all my clerkship questions. He was extremely helpful and guiding me through so if you’re a St. Mary’s student, you talked to Professor Johnson.

He’s who I talked to way back in the day. It’s funny because I noticed within the last couple of years that St. Mary’s had done a good job of trying to market their students for clerkships. They put out a brochure with photos. I laughed at that time because in my day in the ‘90s, it was me going to Professor Johnson’s office saying, “I am interested in this clerkship thing. What should I do?” He gave me some tips and I went from there but I didn’t have any glossy brochure to help market me. St. Mary’s is a good source of clerkships although, over the years, I’ll say there had been a number of St. Mary’s grads who have clerked in very important positions including as you have in the Supreme Court as I did. There’s a good track record over the years, I would say, of placing clerks.

The more that folks like me and you, Todd, we want to go back for all the mothers and say, “We clerked and this is how it helped me get ahead in my career trajectory and is very beneficial,” to show students the value. A lot of times, law students think, “I need to get out, start practicing and making money.” That one year, if you can do it, is worth delaying that start.

Did you apply outside of the Court of Criminal Appeals and the Supreme Court? Did you look at federal clerkships for example?

I did. I applied to federal clerkships as well and I got one interview in a federal clerkship but those are competitive because folks compete all across the country for a very limited number of spots. I was a little more targeted in knowing that I wanted to clerk, be in Texas, and wanted to practice in Texas long-term. I sought out Judge Yeary because I respect him a lot as a judge and as a person. I really wanted to work under him and the same thing for Justice Green. On those two courts, I was seeking out those individual judges but I did put out a wide net.

TALP 31 | Texas Supreme Court Clerk

Texas Supreme Court Clerk: There is no better bang for your buck than the experience of a judicial clerkship right out of law school.

 

Judge Yeary being yet another St. Mary’s law grad. The network does take care of itself, I will say. Judge Green was a big supporter of hiring clerks from St. Mary’s. Those connections don’t hurt.

I do target those judges who are graduates from your law school because your application will definitely stand out across those judges’ desks.

Had you done much or had a lot of experience thinking about wanting to do criminal law when you went to the Court of Criminal Appeals or was it more you’re interested in working for Judge Yeary?

I applied for that clerkship during my 2L year. I was up in the air at that point. I wasn’t sure exactly where I wanted to practice. I thought about going into the public service and so I was open genuinely and curious about what I enjoy doing criminal law. I thought it was a good fit to see the inside of that world clerking for Judge Yeary but then I wasn’t sure so I figured maybe I should apply to the Supreme Court too for the next year and give myself a full mini Master’s degree in Texas Law in the two-year program. That was how I came to deciding to apply to both courts was with an open mind and where I wanted to practice. I did feel at that point that I wanted to go into appellate law. I loved written advocacy, writing and research. I began to feel a draw to want to do appellate law. I knew wherever I ended up, clerkships at high appellate courts would be beneficial.

Can you describe for us what the Court of Criminal Appeals experience was like? Todd and I were talking, neither one of us knows a lot of workings of that Court.

I took on a little fascination with our unique system in Texas after clerking there. As far as I can tell, there haven’t been too many people that have chosen to clerk at both high courts. Wayne Scott who’s a professor at St. Mary’s did it back in the ‘60s. Since the Court of Criminal Appeals received Discretionary Review Authority in 1980, I’ve asked around to the clerks at the Court and no one knows. If there are other folks out there, I’d love to chat with them but I’ve never met anyone else who chose to do this. Texas is the only state in the country with two true high courts. Oklahoma has a Court of Criminal Appeals that has exclusive criminal jurisdiction but the Supreme Court of Oklahoma can decide conflicts of jurisdiction between the two courts.

We don’t have a provision like that in our constitution. The Oklahoma constitution allows the legislature to change the jurisdiction of the Court of Criminal Appeals. Our constitution has separate sections delegating the jurisdiction to the Supreme Court and to the Court of Criminal Appeals. While they have a high Criminal Court, it’s not an entirely standalone quarter blast result that’s constitutionally mandated like the Court of Criminal Appeals. The Court of Criminal Appeals came to be because of the caseload overload on the Supreme Court in 1876. They created the Court of Appeals and then that helped alleviate the burden from the Supreme Court. Over the years, that morphed into constitutional amendments into the Court of Criminal Appeals when they gave the Courts of Appeals criminal jurisdiction and they created discretion of the authority for the Court of Criminal Appeals.

It’s been this evolution of docket management that is a large piece of it. As you all talked about on the show before, there’s a great benefit to this because the Supreme Court gets to focus on civil matters and the Court of Criminal Appeals gets to focus on criminal matters. It creates up an appellate practice that’s unique before the two courts. The Court of Criminal Appeals is still extremely busy. They handle thousands of writs of habeas corpus. They are the final fact-finder on the writs of habeas corpus. They have a discretionary review under, petitions for discretionary review, is what they’re called at that Court.

PDR is not PFRs and they have direct appeals on death penalty cases. Capital cases skip the intermediate Courts of Appeals and go straight to the Court of Criminal Appeals and those have to be reviewed. The jurisdiction is a little different but in terms of the posture, it’s very similar. It’s a lot of reviewing petitions and deciding whether to grant. The writ workload makes the Court of Criminal Appeals unique just because you have thousands and thousands of writs of habeas corpus and mandamus that are filed that have to be disposed of. That takes up a lot of the court’s time.

Those capital cases also have unique word count limits or page limits as I recall from seeing that in the appellate rules. I would imagine that those are very serious matters when they come in and often involve lengthy detailed briefs that the court and the clerks have to pour through.

That raises a good point, Todd, about the difference between the workload at the two courts. At the Court of Criminal Appeals, each judge has one law clerk, one staff attorney and an executive assistant. At the Supreme Court, each justice has two law clerks, a staff attorney and an executive assistant. You have one less law clerk in each chamber of the Court of Criminal Appeals. That’s because they have a big office of Central Staff Lawyers, 18, 19 lawyers who are divided up into three divisions, the capital cases, the petitions for discretionary review and the writs of habeas corpus. Those staff lawyers do the initial intake of cases and do summaries of the cases for the chamber. The CCA puts a lot of the work into the central staff of lawyers whereas, at the Supreme Court, a lot of that work’s handled by the chambers because we have decent small central staff lawyers, the general counsel, the rules attorney and mandamus attorney. The workload is divided a little bit different between the two courts.

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The Supreme Court takes 80 to 100-ish cases a year. How many cases does the CCA take for oral argument in any given year, do you know?

That’s another interesting point. For oral argument, the Court of Criminal Appeals hears a lot less cases. The Supreme Court grants oral argument in most cases that are granted, not in procurement, but in signed opinions. In the Court of Criminal Appeals, they’ll grant lots of petitions and denials of oral argument, the parties won’t ask for it, or they won’t grant it. The percentage of grants from my recollection is similar between the two courts but the oral argument percentage is a lot lower at the Court of Criminal Appeals. In the term, argument sittings are almost three weeks a month or something like you would see at the Supreme Court.

Did the clerk still get to participate in the conferences at the CCA like you do at Supreme Court?

That’s another unique experience at the Supreme Court is that all the law clerks get to sit in the conference room during the conference. That’s an incredible experience because you get to sit there and literally be a fly on the wall and watch the judges get into it until they call on you and say, “Marshall, what do you think about this memo that you wrote?” You have to stand up before all nine justices and hope you can fill the questions they ask. That was the coolest part about the clerkship at the Supreme Court. At the CCA, it is just the judges at the conference so you’re waiting there to see when your judge comes back and say, “What happened at the conference?” You have to frantically write down everything he says.

It’s like your first experience in advocating before the Supreme Court is sitting in a conference and being called on almost like law school. You don’t know when that’s going to happen. That is a tremendous experience. As I understand it, the Supreme Court is the only court in the country that allows that.

We worked for a long time. I heard that Kentucky has since followed us and changed their model to allow law clerks. I don’t know if anyone else has but in terms of a Texas clerking experience, it’s the only way to get in the room.

You mentioned in the habeas petitions that the Court is the final fact-finder. Is there a fact-finding role even though it’s an appellate Court there?

It’s unique. When a writ of habeas corpus is filed in the convicting court, as we call it, that was the court that oversaw their conviction. There’s a timeline for the clerk of that court to automatically forward the petition to the Court of Criminal Appeals, no matter what happened in the case. The convicting court can hold hearings to gather evidence. They can take affidavits. They can almost use any discovery mechanism to build a habeas record. Even if they’re not done with it yet, the petition gets forwarded to the Court of Criminal Appeals. It’s 145 days, 90 days, or sometimes a limit when it gets forwarded. It could have been forwarded to the Court of Criminal Appeals in the middle of a fact-finding expedition.

The Court of Criminal Appeals often will remand that case back to the convicting court to finish the fact-finding. Sometimes the criminal court doesn’t do anything and it gets forwarded so the Court of Criminal Appeals will send it back to develop more facts for the habeas record. Oftentimes, the convicting court will make a recommendation about whether to grant or deny habeas. That recommendation comes up to the Court of Criminal Appeals. The Court of Criminal Appeals can look at the record, make their own determination, reject the recommendation of the convicting court and enter their own findings. It is unique that this high appellate court is the final fact-finder in writs of habeas corpus. A lot of times, the court will follow the recommendation of the convicting court but sometimes the court will enter its own decision and reject the recommendation of the convicting court. It’s a very fascinating kind of appellate posture.

Habeas Corpus is its own animal. We see the writ of habeas corpus on the civil side infrequently. On the criminal side, I suppose it is or if it sounds subspecialty because I see criminal lawyers who focused their practices on that and yet they are in the appellate courts not only in the state system but in the federal system too. As I recall from my law school days, that system is long, windy and can go from state to federal and then go up from there.

It bounces back and forth between the whole federal writ reprocess and the state writ process. You’re right, Todd, that you can gain this experience and a real specialty in doing criminal writ work. As a clerk on the Court of Criminal Appeals, you get exposed to that process in incredible detail so you become very familiar with how it all works, the different arguments that are made, and the case law surrounding The Code of Criminal Procedures. If you have any interest at all in doing that work, a clerkship at the Court of Criminal Appeals is the best place to go.

TALP 31 | Texas Supreme Court Clerk

Texas Supreme Court Clerk: The insight into the judiciary you get from a judicial clerkship enables you to add value immediately when you get into practice.

 

The board of legal specialization within the last few years has started offering a specialization in criminal appellate law. My next question, aside from that commentary was, in your time at the Court of Criminal Appeals, did you see advocates come in who had that specialization? Were there the kinds of specialists practicing in that area like what you now see at the Supreme Court?

We had lots of advocates who are very specialized in the criminal appellate process, who appeared frequently before the court and were very involved in high profile cases. I’m sure I saw some that had that designation but as you do in civil appellate law, you see the same advocates in a lot of cases who have created a specialty in complex criminal appellate litigation.

After you had your year at the CCA, you moved upstairs or across the hall to the Supreme Court. How was the transition? What was the experience like going over to the civil side of the docket?

Fortunately, because I was moving into the building, it was a smooth transition. All of the folks in the clerk’s offices know each other. Everyone was a little taken back. They’re like, “You’re going to go do civil law now?” A lot of times folks that love criminal law are like, “Why would you go do civil law? This is a so much more interesting practice.” I moved over to civil law into the Supreme Court and, as I said at the beginning, it was a similar posture. It’s reviewing decisions of the Courts of Appeals and reading briefs. The biggest difference was the variety of law that you see at the Supreme Court.

You can be popping from a property law issue, contract issue to a tort issue all throughout the day. Whereas in the Court of Criminal Appeals, there are tons of different crimes and different laws surrounding those, the posture is always the same. It’s the government versus an individual. You start to see things emerge in criminal law jurisprudence in Texas but in the civil law context, it’s all over the map. That was the biggest adjustment. It was having to dive into new areas of the law as you read new briefs. I was well prepared for drafting opinions and for reading briefs because I had done that for a year with Judge Yeary.

What you described is the same experience that every civil appellate lawyer goes through on a regular basis unless you have a super-specialized tort practice or something. It’s one of the things that’s so great about it and I always shout praises for is the ability to be involved in so many different areas of the law that are interesting. Some might say that that’s a bit of a disadvantage because it’s hard to develop a real specialty in the substantive law, but one thing that we’ve done, all of us who’ve gone through this and become civil appellate lawyers is we know how to learn. We know how to teach ourselves the law and usually how to write. Most of us do. The skillset applies seemingly across the board. It’s funny what you said about being involved in so many different areas of the law because that’s been my experience throughout my career as a civil appellate lawyer.

Mine too. You become a little mini expert in a silo of some specific topic that you never would have thought, “I want to learn about this.” A couple of months later, you jump over and you become a mini expert in some totally new random area of the law that you thought, “I never would’ve thought about learning this.” It is fun to dive in and do a real deep dive into something that you never would have thought you’d learn about.

My favorite way to express it is that I practice bathtub law which is I fill the bathtub up, learning about a substantive area and when I finished that project, I pull the plug, drain it, and fill it up again.

I like that analogy. That’s apt. That’s very similar to my experience. Sometimes you start to see patterns that come through in different types of cases in different issues. It’s interesting and satisfying to be able to do it that way. Our expertise is in the process, presentation, and advocacy, not so much the substance.

That’s what drew me to appellate law to begin with was an interest in a variety of practice areas and not being confined to one type of case but getting to see a bunch of different areas of the law. Doing it all in the written advocacy context was what drew me into appellate law.

We’ve had a lot of guests here that have clerked at the Supreme Court but I don’t know that anybody has talked about what clerks do at the Supreme Court day-to-day. Can you talk about what a clerk’s role is and the various chambers?

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I would break the clerk’s role into three categories. One is drafting memos, primarily study memos which you remember from your time are summaries of the case, analysis of the brief and a recommendation to the court about that petition. The primary role is the study memo drafting because that’s only done by law clerks. Within that or other memos that you are asked to draft for the court or for your judge, internal memos about pending cases or whatever issue the court or your judge would like a memo about, you’re responsible for that.

The second bucket is drafting opinions which were my favorite part about clerking. That involves working with your judge to come up with how the case should be decided. Depending on how the judge from the chambers operate, taking the first step in drafting the opinion, that to me, was the most fun experience because you get to be creative in your writing. You get to shape the case. You get to put pen to paper on how we’re going to resolve this very difficult dispute. That’s a huge learning experience and understanding the law surrounding the issue, the parties’ arguments and what happened at the Court of Appeals. That’s a big responsibility. That also includes drafting dissenting opinions and concurrences which are also very fun to draft because you get to be a little more free in those than you do when you’re drafting a majority opinion.

The last thing is administrative work around the court, primarily oral argument assistance. We serve as the marshals. We coordinate the oral argument on the morning of the arguments. We sit in the courtroom as you all know. The two folks sitting at the desk are law clerks and they alternate each week on who’s up to do that. That’s a very intimidating part of the job. Your first time, you have to announce the party’s names, make sure you don’t misstate someone’s name or say it at the right time. That’s a fun part of the job too. It’s administrative, drafting opinions and writing memos.

Not only do you get to present to the Supreme Court and the confines of the conference room, but you also get to speak out loud in the courtroom to set up an oral argument. You left off the most important thing. You got to learn how to pronounce oyez appropriately.

That’s true. I was a pro by the time I got there because I’d been saying oyez at the Court of Criminal Appeals for a year. I was training all my new clerks about the proper enunciation of oyez.

I always thought marshaling was one of the more fun parts because that’s the closest you get to real-world practice aside from conference room experience. Observing appellate lawyers who are there to present their cases to the court and being part of that is very special.

It was neat to have a literally front row seat to appellate advocacy right there in the courtroom.

You get to see some of the best of the best in there, too, which is fun. You got the unique and unenviable experience of living through COVID and ransomware while you were clerking, didn’t you?

I did.

How was that? Especially having had a full regular clerkship to have yours derailed 2/3 of the way through.

The most frustrating part about it was the lack of camaraderie with my co-clerks at the court. One of the biggest benefits of clerking, in my opinion, at the Supreme Court especially, is this unique community you’re thrust into of all newly licensed or newly graduated attorneys, law students who are entering into this special place for one year when everyone is on the same level. There’s no competition for trying to get ahead.

TALP 31 | Texas Supreme Court Clerk

Texas Supreme Court Clerk: Law students feel pressure to get out, start practicing, and make money right away. If you can do a clerkship, then it is definitely worth delaying that start.

 

You’re all doing the same thing. It’s a sprint because you’re there for a year and you’re all excited because you’re out of law school. It creates this perfect community. The biggest bummer was not having that for the second half of our clerkship. I was sad because we had built this strong bond, the eighteen of us. We had to resort to doing Zoom happy hours and try to stay in touch. I hope to keep our class together in some connections throughout our careers because it’ll be a valuable network down the road.

I can say that I remain very good friends with some folks that I clerked with. I don’t know how it is in the Court of Criminal Appeals but the Supreme Court does treat everyone like family. Once you’re in the family, there’s the mafia that you can never leave but from a way more positive perspective. I can only imagine the way it must have been from March 2020 forward. It didn’t exactly get to wind up on a note that you would have liked but I’m happy. It’s very interesting the way the timing worked out with Judge Green deciding to retire. I guess he’d had enough of his clerks and decided it was time to ride off into the sunset.

We pushed him out. I was joking, I barely beat him out the door finishing up my clerkship on August 21st 2020 but I was grateful. I told him that I didn’t know when I was hired and he didn’t know that I would be one of his last two clerks. I was so grateful because I wanted to clerk for Justice Green. I was so grateful to get to slide in there right under the wire. Back at this interesting time, I’ll come in the court because we cleared our docket on time as you all know and it’s a good work in this throughout the ransomware and the virus. It’s a testament to the people that work at the court especially the clerk’s office and the staff that we were able to have a successful year but it’s difficult to be at home alone working on memos, not being able to walk down the hall and talk to your co-clerk about this case. That was a little difficult.

How did the court handle communications with staff over that time? I know generally how they communicate with each other but that’s a whole different dynamic. Judge Green having to communicate with you, your co-clerk, the staff attorney, or his EA about day-to-day stuff. Did the court set up a system that allowed you all to have a private chat or were you texting or how did it go?

We each had a chamber Zoom account. Justice Green is an incredibly responsive judge. He was always on top of everything so I could email him something and I would get a response almost immediately. He was very responsive to us, especially during that time. For our chambers, we could pick up the phone and call the judge whenever we had a question. He would answer or call us back immediately. The court did give us Zoom and we had Microsoft Teams which we are all familiar with Microsoft Teams. The clerks utilize that more to talk with each other. In terms of our chambers, even before this pandemic hit, he was great about having very clear lines of communication with him.

The key was to be able to pick up the phone and call your judge because you can’t walk into his office or wait to grab him when he comes back from the argument. All those natural situations that you have at the court are gone. You have to feel comfortable. Justice Green did this and I assume every judge did this to be saying, “Call me when you need to talk about this.” It was difficult because even a phone call isn’t as helpful as sitting next to someone and talking to them.

The most important question, were you able to go flying with him before COVID shut everything down?

I wasn’t. I’m hopeful I will get to because my in-laws live in San Antonio. We go down there a lot. I’m going to keep bugging him to pick me up on the plane one day.

It sounds like it won’t be too hard to twist.

He loves it and it’s fun to hear about all of his adventures where he’s flying all over the country.

He told us a story about taking Judge Brown and Judge Boyd to an oral argument in Huntsville. I can only imagine what the cockpit must’ve been like for that trip with those three. Now you’re in private practice and you’re brand new in your firm. How has that been getting hired on and brought into a firm during the pandemic time?

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I was grateful to Butler Snow. It’s been a difficult landscape out there for a lot of firms navigating the pandemic. Butler Snow maintains great communication with us about our start date and about all the information. I felt good about where I was starting in the midst of all of this but it was a lot of Zoom orientation talking to lawyers from our offices around the country and meeting the different practice group leaders in Zoom but it’s been great working with Amanda and Scott because they are great people and great mentors. They’ve been able to help me get acclimated to how we work. I do go to the office sometimes and we can go in as we want. I have made my office my home which is nice after being in here for so long. It’s nice to have a new venue but I’m jumping right into it. I’m grateful to be working with them and I am enjoying the work.

One of the partners there, Eric Nichols I believe, has a lot of criminal law experience. I wonder if Eric is going to be knocking on your door before too long.

I’m hopeful. I told him I’d be happy to help out with some criminal law stuff. I don’t want to miss out on leveraging my experience from the Court of Criminal Appeals to the future. I’ve talked to Scott and Amanda too, I didn’t avoid still doing some criminal appellate work if those kinds of opportunities presented themselves because I did enjoy that subject matter of the law. It’s outlaw type of stuff. It’s the 4th and 5th Amendments a lot of time. It’s a fun area of the law to get to litigate. I would love to, if it was possible, to still do some criminal appellate work.

Do you feel the benefits of the clerkships that you did now that you’re in as a practicing lawyer has helped you?

The biggest benefits are you understand the internal process of the court and how things move through the court. What judges are interested in in briefs and what piques their interest. Also understanding your audience is important. A lot of times, when you’re drafting a brief as a law clerk who’s going to dig into the brief. Having come from reading a bunch of briefs and knowing that it was helpful when the advocate did this in a brief, this was not helpful, or this was confusing. Coming off of reading all those briefs to now you’re getting to work on briefs, it’s an incredibly helpful background. It’s also eye-opening. You see things like a notice of appeal when you’re at the court but then when you have to file a notice of appeal, you’re like, “How do you file a notice of appeal?” It’s funny how these things you see on the screen and how they come to real life in the practice.

All of this talking to you is a good reminder to anybody who’s a law student. A lot of times, law school is stressed. Federal clerkships are the holy grail but there’s a whole world of state clerkships that bring you in contact with a lot of interesting stuff and practical experience because that’s where most of the litigation happens frankly.

Clerking at a Federal Court set a great experience but if you have an interest in being a Texas trial or appellate lawyer, clerking at the Supreme Court might be the best place for you to go because you become familiar with the contours of the law on different issues, you understand the judicial philosophy of the Court, you understand what kind of cases are likely to end up in the court, you understand how to avoid problems in the trial court that often appear on appeal. All those things are beneficial to you if you’re going to be a Texas litigator and the Texas Supreme Court might be the best in terms of practical experience for you, a board of clerk.

You described your clerkship experience as almost an extension of law school. That was the way that I viewed it. What you said about the Supreme Court clerkship for a Texas appellate lawyer is exactly right. That’s been my experience for more years than I care to think of now. I do lament, though, that the intermediate courts have moved away from a clerkship model into a permanent staff model. It’s great for folks to be able to have those permanent staff jobs and become court specialists like they have in the federal system as a career clerk. Unfortunately, that’s turned up the competition for the Supreme Court and Court of Criminal Appeals clerkships. As a result, there are fewer people that are able to take advantage of that experience at the intermediate court level which had a tremendous amount of value too.

I can understand why they did away with it to some degree because you have to go through that hiring every year. Those courts are extremely busy and have year-round dockets. It is a bummer because the more people that can clerk, the better the practice of law will be ultimately if you can have more folks that are filtered through that system to see how it’s done. Hopefully, you have attorneys that are coming out ready to practice right away in a meaningful way. Clerking is not at all a requirement and there’s plenty of lawyers who don’t clerk. For me, I thought that from what I was interested in and I enjoyed the intellectual experience of studying the law. If you don’t want to dig in and do a bunch of writing and a bunch of research, then clerking is definitely not for you.

Neither is appellate work for that matter.

For that matter, you’re probably not reading this blog but if that’s an interest to you, then clerking for sure would be a good fit.

TALP 31 | Texas Supreme Court Clerk

Texas Supreme Court Clerk: Appellate lawyers know how to learn and teach themselves the law, and they know how to write.

 

We’ve come to the end of the time that we usually reserve. We’ve covered the waterfront. We always like to ask our guests if they have a tip or a war story to leave as a parting thought for our guests. We are speaking specifically to law students who are considering clerkships. I don’t want to limit you Marshall, but do you have anything that we haven’t covered that you would like to throw out there as being something for these people to consider?

I got a call from a St. Mary’s law student. He’s a first year. He was asking me what steps should he be taking as he thinks about his future. That’s a good idea for young law students even in your first year to try to find people that have done what you are interested in doing, preferably went to your law school, and reach out to them. Don’t be afraid to have those kinds of conversations. I did that a lot when I was in 1L and I reached out to folks and said, “I’m interested in what you did. Can you tell me a little bit about how you got there?” Almost always, people will be willing to have those conversations.

Aside from the things we talked about earlier, getting good grades, trying to do the law journal and check the obvious boxes, find people who are a little bit ahead of you in what you’re doing and reach out to him and say, “Can I pick your brain about what you did?” That’s the biggest piece of advice I have for law students as they navigate the decision to be a clerk and how to put themselves in a position to do that starting from your first day at law school.

Call Marshall, he’s got lots of tips for you.

I’m always happy to chat. I love helping younger students. I went to law school a little bit later like I shared. I felt that there were a lot of students who were younger than me when I was in law school. If you went straight through college to law school, I was a few years older. I’m always happy to chat about those decisions with anyone.

Thanks for spending the time with us, Marshall. It’s extremely valuable and it’s a great overview. I appreciate comparing the contrast between the CCA and the Supreme Court, speaking to clerkships and how valuable they are. Thanks for coming on the show.

Thanks so much for having me. I enjoyed spending some time with you all. I hope to see you all in person sometime.

One day, we hope. Sooner rather than later, maybe.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About Marshall Bowen

TALP 31 | Texas Supreme Court ClerkPrior to joining Butler Snow, Marshall clerked at both of Texas’s high courts: the Supreme Court of Texas and the Texas Court of Criminal Appeals.  Marshall also worked as a public affairs consultant and in public policy in the Texas Legislature.

Now in private practice, Marshall applies his acute understanding of appellate and legislative procedure to assist clients with complex problems before and during all stages of litigation.

 

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