From Clerkship to Private Practice: Research, Writing, and Challenging Assumptions

Kyle McEntee:

We're joined today by Alexis Taitel, an associate whose practice primarily focuses on commercial litigation. What type of issues does that mean that you're typically handling?

Alexis Taitel:

Mostly business disputes.

Kyle McEntee:

What kind of disputes are they having? Are they disagreeing over the lunch menu?

Alexis Taitel:

Not usually, although you never know what people can disagree on. But typically, the types of disputes that I deal with in my work are contractual. So something in a business relationship went wrong.

Kyle McEntee:

Defense side or plaintiff's side? Or does it just kind of depend?

Alexis Taitel:

As with everything in the law, it depends. But typically, I'm on the defense side.

Kyle McEntee:

So let's focus on a breach of contract, where your client's been sued. And again, a breach is when someone's made an agreement and someone's not following that agreement. At what point are you specifically brought into a matter?

Alexis Taitel:

I'll be brought in sometimes at the very beginning when a dispute has just sort of come to a head and the parties might be trying to negotiate something before a lawsuit is actually filed. And I actually find that part really interesting because our whole job is to defend our clients and to represent our clients. And at the beginning, when there's not a lawsuit yet, there is some really interesting opportunity to try to resolve the problem before it escalates.

And I really like living in that area and trying to work with the other side and see if we can come to a compromise so that we don't have to go down the road of litigation. Litigation takes a long time. So if there's a client who needs something resolved quickly, then some kind of pre-litigation dispute resolution can be very helpful.

So that's sometimes when I'm brought in is early on before there's a case, or it could be that I'm brought on once the case has already been initiated. And it might be years down the road. For example, last year I was brought into a case that was about two months out from trial. So there had been a lot of discovery and a lot of things that had already occurred. And then I got involved pretty late in the game. So it really varies.

Kyle McEntee:

Your client's gotten to the point where they can't go back. The suit's been filed. What are the sorts of things that your clients are doing and you're counseling your clients to do before that lawsuit is filed to make sure that you don't ever get there?

Alexis Taitel:

My focus is to make sure that I understand my client's perspective and story so that I can be a good advocate for them. Because if I don't know all the facts, if I don't understand what transpired to get us from point A to point B, then I can't be a strong advocate for them. So I really advocate for talking to your clients and also listening to your clients and asking questions and taking detailed notes.

I don't think you can ever have too many notes. And that can really set you up with a strong foundation to understand how you could possibly negotiate with the other side, how you can defend in the lawsuit if it ends up being brought. But really starting from what's the story and how did we get here, I think is a key.

Kyle McEntee:

So what's interesting is that, once the lawsuit is filed, especially if you're defense side, the complaint is a story itself. But before that story finds itself in a complaint, you have to find some way to understand the opponent's perspective. What are you doing to understand their point of view? Because without understanding that, the point of view of your client is incomplete.

Alexis Taitel:

So that's where some of the pre-litigation negotiations can be helpful. If you are sending letters or emails or having some phone calls with the other side, you can express what your client's position is and give them the opportunity to say what theirs is so you can learn a bit about where they're coming from. But honestly, I think a big part of learning about the other side's story really doesn't start until litigation because that's when you have discovery. That's when people will do their initial disclosures and you get to see some documents and things from their side. And so the kind of outline of the story gets filled in as you go through litigation and that includes what the other side's perspective is.

Kyle McEntee:

So you're a fourth-year associate. What's your role in this? Are you kind of just listening into these phone calls or are you actively getting to ask questions? What is that like for you?

Alexis Taitel:

So as a fourth year, I'm still in what I like to call apprenticeship phase of my career. So the legal field is very much a practice. That's why we call it that because you're constantly improving and working on your skills and getting better. And so that's the beauty of being at a big firm is that I can be an apprentice and shadow people who have been in this field and have a ton of experience so I can learn from the best. And so a lot of what I'm doing is behind the scenes right now, reading, researching, writing. I love to write. So that's a benefit for me. I make occasional court appearances and on smaller matters, I will have direct client contact and kind of take the lead on managing that relationship. And on the bigger matters, I'm more of a ghost writer kind of behind the scenes.

But as I progress in my career, my name is on pleadings more and more, and I will have the opportunity to appear in court more, which is exciting.

Kyle McEntee:

Yeah, definitely. I think there's varying levels of progression, right? You actually get to be the primary author and have your name on, say, a pleading. But there's also reaching that point, which I think is before that, where you feel empowered to say something to the senior associate or the partner who has their name on the matter. What was that transition like from maybe being like the quiet mouse to someone who says, oh, no, this is how we should approach this and you've got this wrong?

Alexis Taitel:

I don't know if I'm quite there yet. I'm more in the mousy category at the moment. Someone I know in the legal field told me before I started at my firm, they said, the best advice I can give you is to show up, keep up, and shut up. And I think for a more junior attorney in the beginning of their career, that is really sage advice, because you are a lawyer, yes, but you are the least experienced lawyer in the room. So you have a lot to learn from the other people around you, whether it's the folks that you're working with, or even opposing counsel, you can learn great things to do and not to do from the other side. So that advice has really served me well so far in my career, because I'm doing a lot of observing a lot of sort of mental note taking for later in my career when I can apply it. So I'm still in that kind of observational phase, and not quite in the, I feel confident to make my opinions known phase.

Kyle McEntee:

You seem like an avid note-taker. So do you like keep track of these observations somewhere? Or is it really truly just in your head, and you hope to be able to recall it when it's time?

Alexis Taitel:

I think it's a little of both. I do have a running list of kind of practice pointers. And definitely from last year, when I was in that lengthy trial, I have quite a few notes that I was kind of jotting down. But a lot of it is, I think, when I went to law school, I changed in a way that I don't necessarily need to take notes on tips or things to do or not to do. It's just sort of an ongoing process that's happening in my head. Just changing almost the chemistry of how you are as a person.

Kyle McEntee:

That makes a lot of sense. Do you have any examples?

Alexis Taitel:

Yeah, I would say even just the way that I talk to people now is so different. Like I kind of yearn for the days when I could just have a simple conversation with someone without thinking through every possible iteration of, I don't know, what would happen if this was a deposition? And how would I answer this question? I feel like I just don't know how to have a conversation anymore.

So I think it's important to spend time with people who aren't lawyers, and to kind of maintain your sense of connection to that other parallel universe. Because without that, yeah, you do just kind of become this impatient person who is in a rush all the time. And you edit other people when they're talking. And it's a result of our jobs. But you have to kind of actively push against that to make sure that you can stay a good person, somebody that people want to actually spend time with.

Kyle McEntee:

Yeah. And I think even beyond all of that, looking around at the lawyers around you and seeing there's not like one way to lawyer. You can be a quiet person who likes to write, who isn't combative, who just wants to get things done and be quite successful. It doesn't require you pounding your fist on the desk or yelling or doing all these things that maybe people see on TV.

Alexis Taitel:

Yeah, I think the piece that gets on TV is the exciting part, right? That's the part that makes for good TV. Nobody wants to watch someone sitting at their laptop hunched over doing research. That's not very exciting. But for a lot of lawyers, that is the reality. And I learned that particularly when I was clerking for, I clerked for two different federal judges. And that's mostly what you do is you hunker down and you read briefs and you research and find cases that are similar or dissimilar to the one that you're working on. And you just spend a lot of time with your computer. So it's funny when people have this idea in their mind of what a lawyer is, but there really are so many different flavors and varieties.

Kyle McEntee:

So I want to ask you some questions about legal research, because I think people have a general sense of what it means. Like you're looking up laws and you're figuring out what laws conflict with other laws and which ones apply and what are the relevant facts. But what does that actually mean in practice? When you are sitting down with an issue, what's the process you're going through?

Alexis Taitel:

So going all the way to the basics here, we have really powerful databases that we use that bring together statutes which have been passed by different states or by the federal government. And we have case law, which is actual cases that have happened between parties where a judge has decided based on those facts, this is how applied to this law or this type of law, like this is how this is going to turn out. And so all of that gets fed into this big database.

And we, when we're researching, we're trying to find situations that are as similar as possible to the situation that our client is in, so that we can see how another court decided that same issue. Because it can help us predict what our judge would do. And it can also help to just frame the strategy for the case. If we know that courts tend to view this issue a certain way, then we'll want to, you know, try to tell our story in that light. And so researching is really about comparing and contrasting. You're finding similar cases, or those that are dissimilar, so that you could point to that case and say, well, this case that my client is doing, this is totally different than this other case, because XYZ. And here's why you judge should decide this differently.

Kyle McEntee:

You like it?

Alexis Taitel:

I do like it. I think researching can be fun. It's like going on a scavenger hunt almost. And you have different pieces that you might be trying to pull from different cases. So it's rare that you'll find one case that has everything you need, because there are just so many iterations of ways that people and businesses interact. And so every case is different. But you might find one piece in a case from a different state that isn't binding in your jurisdiction, but can still be persuasive and indicate how a judge or a court might decide an issue. And so I enjoy stringing those different pieces together to tell whatever my story is for my client.

Kyle McEntee:

So you also said you love writing. So do you love all the kind of writing you're getting to do, or is there like some you like more than others?

Alexis Taitel:

There's definitely a spectrum. I like when I get the opportunity to tell a story. So, you know, earlier we were discussing how a complaint really is a story. And the times when I do get to represent a plaintiff and author the complaint, or if I'm on the defense and we're doing a counterclaim, I really welcome that opportunity, because the complaint is what you will always go back to. It's the origin story of the case. And even at trial, you'll go back to the complaint because it matters what you put in there.

And I also really like if I have the opportunity to research and sort of put that scavenger hunt result on display, show the process of how this point connects to this point connects to this point. I really like weaving that all together because it's just, it's fun.

Kyle McEntee:

Do you only get to do that through prose or is it sometimes done through like bullet points and diagrams and PowerPoint?

Alexis Taitel:

Usually prose. I think earlier in my career, I was doing more kind of bullet points and summarizing and things like that, memos. But now I do a lot of actual substantive writing.

Kyle McEntee:

So have you always loved writing?

Alexis Taitel:

I have. Yes. I can even remember back in fourth grade, for whatever reason, my teacher made a bet with me. And I think we were all discussing what we want to be when we grow up. And I said I wanted to be a lawyer. And my teacher said, no, I think you're going to be an author. And it turns out that those two professions are actually more interconnected than you think. I think that I could eventually write. I would love to. I read a lot and I absolutely love just turning ideas into something tangible and some way to connect with people. So yes, I have always known that I wanted to be a writer, whether it's as a lawyer or an author or perhaps both.

Kyle McEntee:

Do you think that there's a big difference between the type of writing that you first fell in love with versus what you're doing now?

Alexis Taitel:

Yes, there is. I think that the type of writing we're exposed to outside of the legal world is a lot more creative, a lot more focused on drawing you in and building, sort of world building. And that's not so much what's happening in legal writing.

Legal writing has to be punchy and to the point. And that takes a lot of self-editing because I think when you're doing creative writing, you're trying to kind of paint a picture and make things fluffy and accessible for the reader. But when you're legal writing or when you're doing legal writing, you have very limited time that the judge or whoever the reader is, is paying to your work.

They are very busy. They have a lot of things to read. And so the quicker you can get to your point and the more concise you can get your answer down to whatever the question is, the better.

The first judge that I clerked for is a wonderful writer. They both are. And the first one in particular, she advocates for the sort of Bryan Garner style writing, where you tell essentially your whole story, whatever that is in your motion in the first paragraph. So the reader should read the first paragraph of your motion for summary judgment or whatever it may be. And they should know the essence of your points, both on the factual and the legal side. And that's important because that's where you really grab the reader's attention. And you can boil your argument down to this one, maybe two paragraph section that really summarizes and hooks the reader so that they want to read more. But I think that's a more recent trend in the legal field. And I love to see that that's where it's going, because I think that it's important for legal writing to be accessible to everyone. I think that anyone should be able to open up a motion and read it and understand it and not have it be full of legalese and ancient phrases that no one even understands anymore.

Kyle McEntee:

There is this plain language movement, and it doesn't just apply to litigation, which is the context you're talking about. It also applies in transactional work where people who are giving advice to executives, they don't want paragraphs and paragraphs of legalese. They want to know what matters. What can I do? What are the risks involved? It's not just litigators who get the benefit of operating in plain language. I think it's all lawyers can and should do a better job of that for their clients.

Alexis Taitel:

Yeah, I completely agree. And I am a big advocate for that type of plain language movement. I think as younger attorneys start to rise in the field, I think that that will naturally start to be more prevalent.

Kyle McEntee:

So your path to working at your current firm, Dickinson Wright, was different, to say the least. You received an offer for your 2L summer after going through the on-campus interview process in fall of 2019, which means you were interviewing for a summer 2020 summer associate position. Well, as we all know, nobody's summer plans in 2020 went as expected, and you never actually got that summer experience at Dickinson Wright.

Instead, they told you, hey, we'll hire you after graduation, which actually may sound quite unbelievable to listeners. So take me back to your third year of law school. You have this offer, but you instead choose to do a clerkship after graduation. Were you nervous to say, hey, I appreciate the offer, but I'd like to wait another year?

Alexis Taitel:

Absolutely. Especially because I didn't have that summer to get to know folks at the firm, I felt especially nervous to ask them to wait for me. But I think it ended up working out really well because firms and everyone really benefit from you doing a clerkship.

I learned so much and grew so much as a litigator and just in terms of how I think about cases and what I was exposed to that it ends up benefiting the firm, perhaps more than if I had come right here. And it's interesting, you said you might think it's strange that I had a job lined up so far in advance. And that's just how it is in the legal field.

Even before I started my third year, my 3L year, I already had my clerkship lined up because that happens in the late spring, early summer. And so I found out that I was going to be clerking, which is a huge honor. And thankfully, the firm was very supportive.

And then they were supportive again the next year when I got a second federal judicial clerkship.

Kyle McEntee:

How did that come about?

Alexis Taitel:

I was clerking for my first judge and the District of Nevada, which is where I clerked, was having a rare moment where two district judge positions were being filled. So there were two new judges coming on the bench and I took a leap and applied to one of them. And when you clerk, as with most things in the law, you kind of don't feel like you know what you're doing for a while.

And then by the time I got to the end of my clerkship, I was like, oh, I'm starting to get this. I don't want to be done yet. And so I sort of pitched it to my second judge as I sort of know what I'm doing and I would love the opportunity to help you start your chambers off because she had never been a federal judge before. She was in state court before. And so it was a good opportunity for me personally to keep building on what I had learned in my first year and then to also take what I had learned and help set up her chambers for success along with my other co-clerk and other folks.

Kyle McEntee:

How did you figure out that you should approach this judge? Was it in the hallway? Was it someone you just randomly called or emailed? Was it through the law school?

Alexis Taitel:

I think that she was friendly with the first judge that I clerked for. And so I sort of launched the idea and said, what do you think about this to my first judge? And she said, I think it's a great idea. And so I ended up applying. And that's sort of how a lot of things seem to happen in Nevada specifically. We have a very small legal community.

And even though our city, Las Vegas, is constantly growing, all the lawyers seem to know each other. And so it's a really great place to grow your career. And one of the reasons I chose to practice here, because you really have the opportunity to connect with so many different people.

Kyle McEntee:

So every year, about 10% of graduates from law school actually go on to clerk, some in federal, some in state courts. And on this show, we've talked to a fair number of people who refer to their clerkship, but we don't really often get into what it actually means to clerk. So can you kind of walk us through what it is you're actually doing for the judge?

Alexis Taitel:

A lot of what you're doing as a law clerk in federal court is researching and writing. So at any given time, a judge has a certain number of motions that are pending with them. And for listeners who don't know, a motion is when a party in a case asks the court to do something.

It could be, I want you to dismiss this case. It could be I want you to keep this piece of evidence out. It could be any number of things. And so those motions are all pending with the judge. And federal district judges typically have a split docket where they're doing criminal and civil work. And so the criminal work because of the Constitution generally takes precedence over the civil stuff.

And so the law clerks are helpful in kind of winnowing down the motions that need to be decided on the civil side. So a typical day would be me going into the courthouse, which is always a really humbling and special feeling, and going back to chambers and kind of going down my list. What motions do we have that need to be decided?

And different chambers divvy it up differently. I had one judge who had the case numbers assigned evens to one clerk and odds to another. Another judge just sort of handpicked based on people's interests and strengths. And so what you're doing is helping to decide those motions. So you're talking to the judge, getting a sense of what they feel about the issue. And the judge is busy, they have their criminal docket, they have to be in the courtroom, present at hearings.

And so you have to really read a lot of information and regurgitate it in a way that's quick and easy to understand while still conveying the full nuance of the situation. So you talk to the judge, you kind of get a sense for how they want to go on a certain issue. Of course, you do research to back up what you're saying, because the judge wants to know how are other courts deciding this issue? And specifically, how are other courts in our jurisdiction deciding this issue? And then you decide with the judge how you want to proceed on the motion. And then you write. So you write a draft. And every judge is different. Some people have different procedures for how they do things.

But in my experience, I was writing orders. I was collaborating with the judge, making sure that we were all on the same page. But there are so many motions that need to be decided. And the wheels of justice do turn so slowly, that judges need help. So the clerk is just another person to help them get through that big pile of motions on their desk.

Kyle McEntee:

It's a lot of responsibility for someone who is a month out or even a year or two years out of law school.

Alexis Taitel:

You are correct. It's kind of unbelievable how so much of our world is like that. I mean, we have doctors who, you know, go through medical school, and they start doing things pretty early on, I guess you kind of have to start somewhere.

But I am grateful that I had such fantastic mentors. And the judges I worked for were patient. And you know, they've all been in our shoes before. That's what I try to tell myself, even now practicing is that whichever lawyer I'm working with, they were once a beginner too. So it's okay if you ask questions. In fact, I think it's better to ask questions than to operate in the dark. And so while there is a lot of pressure to being a law clerk, it is just the most rewarding thing. And probably my favorite thing that I've done was deciding to clerk.

Kyle McEntee:

You've talked a little bit about these motions, which are happening usually before trial, but sometimes during trial. Do you have a lot of trial exposure as well?

Alexis Taitel:

Yes. So trials, believe it or not, are actually pretty rare in our world, because they are very expensive. And so things tend to resolve earlier on before getting to that point. But one of the great things about clerking is that you do have exposure to trials, both in front of your judge and even just in the courthouse. You might hear from a fellow clerk that their judge has a trial going next week. And so you can take time and pop into the courtroom and watch opening statements or closing arguments. And that sort of exposure is really helpful too, just in terms of learning what to do and what not to do. And being in the courtroom, helping your judge with getting through jury instructions and maybe deciding certain motions that pop up during trial, that's all really developing your skill set even more beyond research and writing more into the realm of thinking on your feet.

Kyle McEntee:

So ultimately, your firm held your offer for two years. Did you get credit for that time clerking?

Alexis Taitel:

Yes, I did. So it means that in terms of being on the partnership track, I have credit for the years that I clerked. So it's as if I had been at the firm for that time.

It's just an incentive, I guess, for firms to offer that so that folks don't feel like they're going to be penalized if they go and clerk. So you'll still be considered, I graduated from law school four years ago, I'm a fourth year, even though I've only been at the firm for two years. And the firm was very understanding and supportive. And I'm very grateful for that.

Kyle McEntee:

And to your point, it is pretty much a standard practice across all large law firms. And also your compensation, I'm imagining you started at a third year's compensation instead of the first year compensation. What was it like coming in as a third year to a firm you hadn't worked at, and you never worked at a large firm at all?

Alexis Taitel:

It was intimidating. The COVID summer, I ended up working at a small firm that does civil rights work in Las Vegas. And it was a fantastic experience. I learned a lot, but it was very different from working at a big firm, just as clerking was very different from working at a big firm. So I didn't really know what to expect.

Coming in, I knew I was going to have to work very hard and that the hours might be tough and definitely different than a government job. But I think I wasn't expecting such a learning curve around the billable hour. I didn't understand really what that meant. And I had worked on motions for attorney's fees as a clerk and sort of generally understood that obviously people have to spend a certain amount of time on something and they have to account for that time and then the client has to pay for that time. But I didn't really think about what that means and what that feels like as a person day to day. And that was probably the transition for me was just figuring out how to accurately capture my time and really what billing is because billing is such an art that you have to practice.

Kyle McEntee:

Did you ever feel pressure because you took so long on something, especially as a relatively new lawyer and feel like I need to discount this?

Alexis Taitel:

I think that feeling is natural for people, but my firm in particular has always been very open about it takes the time it takes. And it's basically, I think this is pretty standard across the board that associates might take longer on a project and then later on when the billing attorney, the partner is finalizing a bill for a client, they might cut down the time to save the client money if they think that a certain task took too long. But you as the associate still get the credit for the work that you did because if it took you three hours to do a research project, you should get three hours of credit. And I appreciate being at a firm that looks at it that way because I think you're able to learn and grow more. So I never really felt the pressure to cut down my hours because I knew my firm would support me.

Kyle McEntee:

You don't really want to negotiate against yourself for the same reasons you might want a discount because you feel like you don't know enough and it's taking you too long. You actually don't know that it's taking you too long. It might have actually been the right amount of time. It's better for that to be up to the person who is responsible for the business, but also has that experience.

Alexis Taitel:

Absolutely. Yeah, it's not like there's some guide on the wall that says a motion for summary judgment should take you X number of hours. That's just not the case. Everything depends. Everything is different. And so yeah, you really don't have a sense as a brand new attorney how long things quote-unquote should take you. So you need an experienced person to help sort of determine that for you.

Kyle McEntee:

On the point of expectations, you mentioned earlier that you said in fourth grade, I'm going to be a lawyer. And yeah, the teacher pushed back and you pushed right back, which is great. Is it what you expected?

Alexis Taitel:

I think for the most part, no, because I think a part of the legal field and this profession that I didn't really anticipate was how you would interact with other people, particularly on the other side. So my eyes have been opened to just the different interactions and relations that lawyers have with each other from one side to the other, sometimes bickering over the smallest things, sometimes getting along and being cordial. And that side of things wasn't something I really thought about and can be both challenging and rewarding.