Adam Silver, Kimba Wood, and Delegation of Settlement Talks to Law Clerks

So, I was reading today’s Wall Street Journal when I came across an article on Adam Silver (University of Chicago Law School ’88), the heir apparent to Commissioner David Stern’s throne atop the NBA. It appears that after graduating from law school, Silver clerked for United States District Judge Kimba Wood. The WSJ article contains an interesting quote from Wood:

According to Wood, Silver showed early in his clerkship “that he was very much his father’s son.” She recalled that when parties would call her chambers with logistical questions, Silver would talk to them about their cases and urge them to settle. “It was a role typically reserved for judges, but I encouraged him to do it because he would get deals done,” she said.

Hmm. I am far from an expert on the subject, and I don’t fault Silver for seizing the opportunity, but from how Wood describes what happened, it seems very similar to the sort of delegation found to be inappropriate in Connelly v. National School Bus Service Inc., 177 F.3d 593, 598-99 (7th Cir. 1999):

We do not know how common it is for a district court to order parties to mediate before a law clerk, but believe the practice to be relatively rare. . . .  [R]egardless of the frequency with which law clerk mediation is undertaken, we believe the practice to be improper. . . .

. . .

. . . [W]e do not believe that Fed.R.Civ.P. 16(a), which gives district court judges the power to conduct pretrial settlement conferences, allows a district court judge to delegate this power to a law clerk. Law clerks serve as judicial adjuncts. Their duties and responsibilities are to assist the judge in his work, not to be the judge. A judge’s law clerk may therefore properly assist the judge in the judge’s settlement efforts, but to allow the clerk rather than the judge to conduct a settlement conference is to confuse the adjunct with the judge.

See generally Parker Potter’s Article Law Clerks Gone Wild, 34 Seattle University L.R. 173 (2010).

I don’t know if norms had changed by the time of my district-court clerkship, but I can tell you that my judge would have shot me out of a cannon before he’d allow me to mediate a settlement conference.

Leave a Reply