Clerkship : Federal Court vs Federal Court of Appeal

[huh]

Hello, I'm looking into applying for a clerkship in either the FC or FCA but I can't seem to figure out which one would be a better match for me. To give some context: I have an LL.B. and J.D. and will article in 2022 after which I should be able to be a member of both the Quebec and Ontario bar. I have an interest in admin law in general as well as a working experience in big law and a clerking experience in a Quebec Court (Trial level). My goal by applying to those courts is to get a more thorough experience working with a judge as well as a broader transnational legal experience.

For anyone who clerked in either the FC or the FCA, how was your experience? How would you distinguish the work in each court? 

Thank you!

[TheCryptozoologist]

Can't help you with this question since I don't know a thing about the process except alot of people did it at my school.

But anyways I'll just say that the FCA is alot harder while a few of my friends did the FC with average or even below average grades since they had an immigration and refugee law background.

[BlockedQuebecois]

You're pretty unlikely to find someone who clerked at both, so instead I am going to offer you my expert opinion as someone who clerked at neither. 

For your stated goal of getting more experience working with a judge and getting national experience, both courts will do just fine. Unlike the trial level courts in most provinces, which either pool you or assign you to a pool of judges, both the Federal Court and Federal Court of Appeal have you clerk with a single judge (although you may help supernumerary judges or prothonotaries from time-to-time). Both also obviously have national jurisdictions. 

As to distinguishing features, here are my broad-stroked observations of trial vs appellate clerkships: 

In general, trial level clerkships are high-paced and involve a lot of factual inquiries. As a clerk at the trial level, you will be spending a lot of your time helping your judge examine the evidence and find facts. The law portion of most trials is not overly complex, so what matters is what facts you find and how you apply the law to those facts. If you're lucky, you might work on a case that involves truly novel application and development of the law, but those cases are the exception, not the rule. To be clear, that's not to denigrate clerking at the trial level. Trial judges have a very difficult job, and a lot of their tasks are passed on to their clerks. 

In contrast, appellate clerkships tend to be more academic. Trial judges are owed significant deference on findings of fact, so while you will often be examining the evidence, you usually won't be overturning findings of fact and will have to work with your judge within the constraints of the factual findings of the trial court. For that reason, the more difficult cases tend to focus on abstract principles of law. Most appeals are relatively straightforward, but most appellate clerks will help out on at least a couple challenging cases that move the law forward in some way. 

Which you will enjoy more really comes down to your personality type. In general, I think those who enjoyed mooting in law school and who enjoy thinking deeply about topics will prefer appellate clerkships more, while those who enjoyed clinics and are drawn to thinking about the application of legal principles to specific fact patterns will prefer trial level clerkships. There isn't a wrong answer, and you'll likely have a good time regardless. 

The only other thing I would consider is the prestige of the clerkship. If you are interested in academia at all, an appellate clerkship would be strongly preferable. If not, the only real difference is that it tends to be a bit easier to snag a job post-clerkship out of an appellate court than a trial one, although every trial court clerk I know has managed just fine. Depending on your grades, I would also suggest applying to the SCC. If you have high end grades, your profile would likely be very attractive to them. 

Best of luck!

Edited September 28, 2021 by BlockedQuebecois

[Darth Vader]

What do you want to do after the clerkship? My friends that did the federal court trial clerkships are largely working in corporate/intellectual property, tax, and immigration law now. FCA clerkships are more prestigious and difficult to obtain. If you can land the FCA then you should do that, but the FC may also be worth it depending on the area of law you want to go into. You can see the statistics by area of law here - https://www.fct-cf.gc.ca/en/pages//about-the-court/reports-and-statistics/statistics-june-30-2021#cont. It would seem they mostly deal with immigration cases, so if you don't have a strong interest in this area then you may be better off just doing the FCA or another appellate clerkship.

[huh]

On 9/28/2021 at 6:09 PM, BlockedQuebecois said:

You're pretty unlikely to find someone who clerked at both, so instead I am going to offer you my expert opinion as someone who clerked at neither. 

For your stated goal of getting more experience working with a judge and getting national experience, both courts will do just fine. Unlike the trial level courts in most provinces, which either pool you or assign you to a pool of judges, both the Federal Court and Federal Court of Appeal have you clerk with a single judge (although you may help supernumerary judges or prothonotaries from time-to-time). Both also obviously have national jurisdictions. 

As to distinguishing features, here are my broad-stroked observations of trial vs appellate clerkships: 

In general, trial level clerkships are high-paced and involve a lot of factual inquiries. As a clerk at the trial level, you will be spending a lot of your time helping your judge examine the evidence and find facts. The law portion of most trials is not overly complex, so what matters is what facts you find and how you apply the law to those facts. If you're lucky, you might work on a case that involves truly novel application and development of the law, but those cases are the exception, not the rule. To be clear, that's not to denigrate clerking at the trial level. Trial judges have a very difficult job, and a lot of their tasks are passed on to their clerks. 

In contrast, appellate clerkships tend to be more academic. Trial judges are owed significant deference on findings of fact, so while you will often be examining the evidence, you usually won't be overturning findings of fact and will have to work with your judge within the constraints of the factual findings of the trial court. For that reason, the more difficult cases tend to focus on abstract principles of law. Most appeals are relatively straightforward, but most appellate clerks will help out on at least a couple challenging cases that move the law forward in some way. 

Which you will enjoy more really comes down to your personality type. In general, I think those who enjoyed mooting in law school and who enjoy thinking deeply about topics will prefer appellate clerkships more, while those who enjoyed clinics and are drawn to thinking about the application of legal principles to specific fact patterns will prefer trial level clerkships. There isn't a wrong answer, and you'll likely have a good time regardless. 

The only other thing I would consider is the prestige of the clerkship. If you are interested in academia at all, an appellate clerkship would be strongly preferable. If not, the only real difference is that it tends to be a bit easier to snag a job post-clerkship out of an appellate court than a trial one, although every trial court clerk I know has managed just fine. Depending on your grades, I would also suggest applying to the SCC. If you have high end grades, your profile would likely be very attractive to them. 

Best of luck!

Thank you so much for this answer, as someone who didn't clerk at either you sure gave me an effective overview for my situation! 

Having already done a clerkship in a trial level court, I have to say that I absolutely loved my experience. I'm not against the appellate's more academic approach and I thought that it could be a good way to distinguish this experience with my previous clerkship one but it's true that I might thrive a bit more in a trial level court and so the FC might be a better "fit" for me. I might still apply to both to have more chances to get an offer from one or the other, but at the same time I know that the FCA judges make their offers before, so I'm worried that if I do end up getting an offer from the FCA I would accept it out of fear of not receiving one from the FC. I don't know if I might be shooting myself in the foot applying to both courts?

As for the prestige of the clerkship and finding a job after clerking, I'm pretty lucky to not have to worry about this as the firm where I'm articling is 100% encouraging me to pursue this opportunity and have already confirmed that taking a year to go clerk would not affect my opportunities in getting hired back after my articling. For the SCC, I don't think that I would make the cut, but in all honesty I doubt that it would be a good fit for me (maybe another clue that trial level courts might be a better match for me...)

Thanks again for your help! 🙂

[huh]

On 9/28/2021 at 6:18 PM, Darth Vader said:

What do you want to do after the clerkship? My friends that did the federal court trial clerkships are largely working in corporate/intellectual property, tax, and immigration law now. FCA clerkships are more prestigious and difficult to obtain. If you can land the FCA then you should do that, but the FC may also be worth it depending on the area of law you want to go into. You can see the statistics by area of law here - https://www.fct-cf.gc.ca/en/pages//about-the-court/reports-and-statistics/statistics-june-30-2021#cont. It would seem they mostly deal with immigration cases, so if you don't have a strong interest in this area then you may be better off just doing the FCA or another appellate clerkship.

In all honesty I haven't chosen a specific field in which I would like to practice yet. The only thing that I'm certain of is that I would like to do Admin Law, but my interest is very broad in that field as I enjoy immigration, IP, Labour Law, Environmental, Aboriginal, etc. So I guess that this is what's tempting me about the Federal Courts as a whole. Obviously, I would love if I could get to touch to as many fields as possible as doing exclusively one type of law during my clerkship would not help me find a specific interest, but I've heard that unless you show that you're interested by a specific field, you should be put with judges that do a bit of everything. 

But thank you for the stats, didn't see those before! 🙂

Edited October 4, 2021 by huh

[atg95]

Given that you already have experience at a trial level, clerking at an appellant lever might be a nice second experience.

But apply for both and see if you get into FCA or not - you may only get FC which will make the decision for you and will provide plenty of admin related experience. 

[atg95]

On 9/28/2021 at 3:18 PM, Darth Vader said:

 It would seem they mostly deal with immigration cases, so if you don't have a strong interest in this area then you may be better off just doing the FCA or another appellate clerkship.

Thanks for the stats link, I didn't see that before. Not surprised to see the huge amount of immigration at FC. In fact, that is a big difference between the two courts - because of the certified question requirement, very few immigration cases make it to the FCA.

[BlushAndTheBar]

Following

[Fiona Apple]

On 10/3/2021 at 8:01 PM, huh said:

Having already done a clerkship in a trial level court, I have to say that I absolutely loved my experience. I'm not against the appellate's more academic approach and I thought that it could be a good way to distinguish this experience with my previous clerkship one but it's true that I might thrive a bit more in a trial level court and so the FC might be a better "fit" for me. I might still apply to both to have more chances to get an offer from one or the other, but at the same time I know that the FCA judges make their offers before, so I'm worried that if I do end up getting an offer from the FCA I would accept it out of fear of not receiving one from the FC. I don't know if I might be shooting myself in the foot applying to both courts?

It's unfortunate that the hiring timelines of the two courts put you in a tough spot, but if you're worried that applying to the FCA and getting an offer would be "shooting yourself in the foot", then it's probably a sign that you want the FC. If that's the case, why bother applying to the FCA at all? If, in your heart of hearts, you know you would rather roll the dice on an FC offer and you would only say yes to the FCA out of fear of not getting one, I feel like the better option is to only apply to the FC and avoid putting yourself in a position where you'd make what you know is the wrong decision for yourself.

[SeniorLopez]

I've clerked at both the FC and the FCA, so I can add to what Blocked has said. The experiences at both Courts are very similar in some respects, and very different in others. In both, you will be dealing with largely the same subject matters (with the exception of Tax and specific statutory appeals/judicial reviews that go straight to the FCA). At both Courts, you're assigned to one judge (usually) and work mainly with them. The experience will vary greatly depending on the particular judge's work style and the way they use their clerks.

In terms of substantive work, I wouldn't go so far as to say that the FCA is more academic, but it is certainly more often than not focused on the law - its role is not to weigh evidence or assess credibility. So the FCA will most often defer to these types of findings from the FC, and in judicial review, will defer to tribunal findings. I'd say the FCA is a bit trickier at first because you have to come to grips with the various standards applicable to cases; sometimes the court will defer to the lower court, sometimes it will not. So I think there is a little more nuance there. At the FC, most of the work will be judicial review, which usually calls for deference to the underlying decision anyway. When trials happen, though, then you get very into the evidence, witnesses and experts. Bear in mind that trials aren't super common, though. However, both Courts will require you to get familiar with files, do research, (most likely) draft memos, discuss cases and edit reasons. So the tasks are very similar.

As for overall workload, I think both courts are very busy. FCA will likely hear fewer cases every month, but the cases can often be trickier than some of the cases you get at the FC. However, I think the FC is slightly more busy in terms of numbers, so there is a real push for all the clerks to pitch in for the collective good. Less of a need to do that at the FCA. 

The clerk cohorts at both Courts are always great. FC has nearly 40 clerks, and the FCA about 16. Naturally, it will be easier to get to know all of your colleagues at the FCA than the FC, but both courts tend to have plenty of after-hours events for socializing. I've heard that some years have a good mingling of FC and FCA clerks, which only expands your networking opportunities!

One big difference between the two is that at the FCA, cases are heard in panels of 3 judges. That means that you would always have at least two other clerks working on the same files as you with whom you can discuss cases. Also means that there are 3 judges deciding the case, which makes coming to a final set of reasons a bit more complex. At the FC, you will most times work on files alone. While you can always reach out to clerks for help, it feels a little more isolated at times. Also, for what it's worth, I've heard that the FC requires its clerks to keep track of time worked, but the FCA doesn't. Don't know if that changes anything.

If I were you, and had a trial clerkship already in hand, I would aim for the appellate experience this time around. I think understanding how an appellate court interacts with a lower court will only enhance your understanding of what the lower court must do and how it can avoid getting overturned. Worst case scenario, you end up preferring trial advocacy and you have a better understanding of it. Best case scenario, you discover that you love appellate advocacy, and you pursue that. Keep in mind that judges almost invariably want their clerks to succeed, and they are great mentors. Either option is a great one!

Lastly, I'm not sure if this applies between the FC and the FCA, but I'm fairly certain that if you decline an offer from a particular judge, you will not be considered for any other positions at that Court. It's a take-it-or-leave-it kind thing. I don't know if you can refuse an FCA offer and still get an FC offer, but I wouldn't risk it. Take what you can get!

 

Feel free to DM if you want more info.