Where Are They Now? An Interview with Fred Smith (JD ’07)

For this installment of our “Where Are They Now?” alumni series, we caught up with SLS and Supreme Court Litigation Clinic alumni Fred Smith, Jr. (JD ’07). After graduating from Stanford Law School, Fred clerked for Judge Myron Thompson of the Middle District of Alabama, Judge Barrington D. Parker, Jr. of the U.S. Court of Appeals for the Second Circuit, and Justice Sonia Sotomayor of the United States Supreme Court. Fred also worked as a fellow for Bondurant, Mixson & Elmore LLP, a litigation boutique in Atlanta, Georgia. Fred is currently an assistant professor at Berkeley Law School, where he is scholar of the federal judiciary and constitutional law.

Fred Smith (JD '07)
Fred Smith (JD ’07) SLS and Supreme Court Litigation Clinic alum, Fred Smith (JD ’07). Photo credit UC Berkeley School of Law.

Q: What type of office experience did you have before taking the clinic?

A: Not a whole lot. I had summered at a couple of trial-oriented law firms, Keker & Van Nest LLP in San Francisco and a firm called Bondurant Mixson & Elmore LLP in Atlanta. I had also served as an intern/research assistant at the Civil Rights Project at Harvard Law School and as an intern for the public defender’s office in my hometown.

Q: What went into your decision to apply to the Supreme Court Litigation Clinic?

A: I wasn’t sure about appellate litigation because I had only been exposed to trial work so far. I was considering both the Supreme Court Litigation and Criminal Prosecution Clinics. When the opportunity to work in the Supreme Court Litigation Clinic came up, I thought about how exciting it would be to work on important cases before the highest court in the land. Also, I had taken two courses with Pam Karlan, and I was familiar with Jeff Fisher’s work and record at the Court. I was really excited about working with and learning from both of them.

Also, my previous internship at the public defender’s office informed my decision. That office was affiliated with the University of Georgia, so a lot of the people working there were law students. I got to see up close what it means for students to represent clients, write legal materials that are actually going to impact people’s lives, and learn from people who are helping them become better advocates. This experience, plus the opportunity to work closely with great teachers like Pam and Jeff, made the Supreme Court Litigation Clinic really attractive to me.

Q: What are some of the salient moments of your clinical experience?

A: One high point was working on a case called Burlington Northern & Santa Fe (BNSF) Railway Co. v. White. It presented a question about the proper standard for employment retaliation claims. The Clinic didn’t represent one of the parties in the case but wrote an amicus brief. We proposed a legal standard and gave examples from real-life cases about why our standard was the best. As I recall, Justice Breyer, in his majority opinion, cited to evidence that came from our amicus brief. And during oral argument, Justice Ginsburg asked questions that seemed to come directly from our amicus brief. That was extremely exciting. Obviously the Clinic represents a lot of petitioners and respondents as well, but it showed what a big difference an amicus brief can make.

Another case that I wasn’t personally involved in but that happened while I was there was the Lilly Ledbetter employment discrimination case, Ledbetter v. Goodyear Tire & Rubber Co. I got to meet Lilly Ledbetter, who is an extraordinary and very courageous woman. I remember thinking that she should run for Senate! Even though we lost the case, eventually a law passed, the Lilly Ledbetter Act, that reversed the Supreme Court’s decision, in part based on the force of her story and also in part based on Justice Ginsburg’s dissent. Even though I wasn’t on the team that worked on the case, to even be part of the Clinic, participating in discussions about it, was a great learning experience.

Q: How did your clinical experience help prepare you for your career?

A: That’s a good question. Most lawyers do not directly encounter Supreme Court litigation. They will often cite the cases but they won’t be practicing before the Court. So far, with the exception of my Supreme Court clerkship, that’s been my experience as well.

However, my Clinic experience gave me a unique perspective that others valued. For example, early in my career I was working on a case in Atlanta on attorney’s fees in the context of constitutional litigation, a case called Perdue v. Kenny A., which actually did end up going to the Supreme Court. The partners on the case often asked what I thought, in part because I had been involved in the Clinic. There were other moments, such as when we wrote either cert petitions or briefs of opposition, when people valued my opinion a lot more than they otherwise would have because of my experience in Clinic.

More broadly, my Clinic experience has helped with my writing. Whether it be a piece of advocacy or even a law review article (which is most of the writing that I do these days), I can sometimes almost hear Jeff’s voice in my head, talking about things like the structure of arguments, what makes certain points more compelling than others, the importance of topic sentences, and making sure to make clear in the beginning that something is a pressing issue in order to grab the reader’s attention. Those lessons still ring true. And I am really grateful for that experience. It was one of the most, if not the most, intensive writing experiences that I got in law school.

Q: What kind of work are you doing now?

A: I am an assistant professor of law at Berkeley Law School, where I teach Federal Courts. My Clinic work has come in handy in that class in particular. I also teach Constitutional Law and Constitutional Litigation. Also, I write about sovereign immunity, constitutional torts, and representative government.

Q: Do you believe taking the Supreme Court Litigation Clinic was an important part of your legal education?

A: It was huge. In some ways it was indispensable. There are some really good classroom teachers at Stanford, including some who run clinics. It’s almost unique to SLS that some of the podium professors are also clinical instructors. I don’t mean to discount the importance of podium education, because I think it’s also really key. That said, there is something unique about actually having a real client, being on a team that is making a real and direct difference in people’s lives. It’s not always a one-on-one experience, but it’s a lot closer than a classroom experience.

Also, the ratio of students to instructors in a clinic provides a hands-on learning experience that can’t be replicated in a 50- to 60-person class. It just can’t. And that’s coming from a current podium professor! We do our best but it’s just not the same. Part of why I took the Clinic twice was that I realized the first time how much I was learning and growing as a result. I think it is phenomenal that Stanford has since made clinic something students can do the whole quarter. I’m really thrilled that my alma mater is doing this.

Q: What advice would you give to law students considering a clinic?

A: First, do it. Second, take it seriously. If you’re in doubt and not sure about which clinic to take, I recommend trying to find a clinic that matches your interest in some way. The skills you’re going to learn – writing, convincing people, compromise, and team work – aren’t replicated in other law school settings. So I say absolutely do it. There’s no reason not to. Especially on the quarter system.