November 2016: Trial Practice Update

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More Judges Are Encouraging the Next Generation of Lawyers to “Stand Up.” Former Magistrate Judge Grewal of the Northern District of California recently posed the question: “[W]ho will try the technology cases of the future, when so few opportunities to develop courtroom skills appear?” GSI Tech., Inc. v. United Memories, Inc., Case No. 5:13-cv-01081- PSG, Order Re: Oral Argument, Dkt. No. 1112 (March 9, 2016). Judge Grewal’s comments on that question reflect what a growing contingent of judges and practitioners across the country have come to perceive as a systemic problem in the legal profession: a lack of “stand-up” experience for junior lawyers. He elaborated: “[A] curious trend has emerged: the seasoned trial hand appears for far more than trial itself. What once might have been left to a less experienced associate is now also claimed by senior counsel. Motion to compel discovery? Can’t risk losing that. Motion to exclude expert testimony? Can’t risk losing that, either.” Id.

There are various explanations for the current state of affairs: a decrease in litigation, more judges deciding motions on the papers, requirements that “lead” counsel attend hearings, and so on. Judge Alsup, also in the Northern District of California, places the blame squarely on Big Law: “At the center of this issue rest our preeminent law firms. Not only do they tend to have the largest number of young lawyers, they also tend, regrettably, to provide the least advocacy experience to young lawyers.” Alsup, William J., “Training the Next Generation: Do It! Get Out There – Be an Advocate,” ABTL Report, Northern California, Vol. 24, Nos. Fall 2015 (http://www.abtl.org/report/nc/abtlnorcalvol24no2.pdf) (“ABTL Report”). Increasingly, however, judges are taking a more active role in attempt to address this situation head-on.

For the last 17 years, Judge Alsup has guaranteed oral argument on any matter when a lawyer plans to argue. ABTL Report at 2. Judge Alsup’s Standing Order in civil cases states that “[i]f a written request for oral argument is filed before a ruling, stating that a lawyer of four or fewer years out of law school will conduct the oral argument or at least the lion’s share, then the Court will hear oral argument, believing that young lawyers need more opportunities for appearances than they usually receive.” (http://www.cand.uscourts.gov/whaorders). According to Judge Alsup, at least 100 young lawyers have had an opportunity to argue in court or try cases as a result of his encouragement. ABTL Report at 2.

Following Judge Alsup’s lead, judges in the Northern District of California have adopted similar policies aimed at giving junior attorneys more “stand- up” opportunities—Judges Donato, Tigar, and Koh, to name a few. But word is spreading. Several judges in other districts have also incorporated these ideals into their standing orders. For example, Judge Guilford (C.D. Cal.) “strongly encourages the parties to give young associate lawyers the chance to examine witnesses and fully participate in trial (and throughout the litigation!).” Scheduling Order Specifying Procedures (https://www.cacd.uscourts.gov/sites/default/files/documents/AG/AD/ Scheduling%20Order%20Specifying%20Procedures.pdf). According to one report, at least 17 federal district court judges have issued orders encouraging young attorneys to argue motions in court. “Ninth Circuit Judicial Conference,” nextgenlawyers.com (August 16, 2016)(http://nextgenlawyers.com/2016/08/16/ninth-circuit-judicial-conference/).

Nonetheless, these orders do raise concerns. There is a fear—among clients and law firms—that a young attorney may not be prepared to argue against a more experienced litigator; or that the stakes in the case may be too high to risk sending in an associate. Even Judge Alsup acknowledges that, “[w]ithout question, partners may need to handle key dispositive motions.” ABTL Report at 2. One way to militate such concerns is to permit more seasoned attorneys to assist their associates during the argument. For example, Judge Saylor (D. Mass.) advises parties that “relatively inexperienced attorneys who seek to participate in evidentiary hearings of substantial complexity, such as examining a witness at trial, should be accompanied and supervised by a more experienced attorney, unless leave of Court is granted otherwise.” Standing Order re: Courtroom Opportunities for Relatively Inexperienced Attorneys (http://www.mad.uscourts.gov/boston/pdf/saylor/StandingOrderReCourtroomOppor_Bostonupdate.pdf ). Another option is to have the parties pre- negotiate who will argue a given motion so that no junior advocate will be opposing a much more experienced lawyer. See, e.g.McLellan v. Fitbit, Inc., Case No. 3:16-cv-00036, Order, Dkt. No. 65 (N.D. Cal. September 9, 2016) (Donato, J.) (“The Court will hold oral argument on the Brennan v. Opus Bank issue if the parties agree that the argument will be handled by lawyers in their first six years of practice.”).

For litigators, one particularly worrisome (and common) concern is that permitting a junior attorney to argue is a sign of weakness in the merits of their case. Judge Alsup disagrees with this proposition: “In my experience, young lawyers have performed at least satisfactorily and, more commonly, very well during oral argument because they have typically prepared the papers (and, if the truth be told, may know the record and the case law better than their seniors).” Id. at 2. By issuing orders that condition oral augment on junior attorneys’ participation, the courts take some of the pressure off litigators to always send in the “top guns.” For example, Judge Miller (S.D. Tex.) notes in his standard Court Procedures that “[i]n those instances where the court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing” (http://www.txs.uscourts.gov/page/judge-millers-procedures). Similarly, some judges will give the parties additional time for oral argument if junior attorneys participate. Judge Donato incorporates this policy into his Standing Order for Civil Cases: “The Court encourages parties and senior attorneys to allow younger practitioners the opportunity to argue in court. The Court will extend motion argument time for those lawyers.” (http://www.cand.uscourts. gov/jdorders).

Of course, as with anything in the legal profession, preparation is key. If a judge is not expecting a junior attorney to argue, he or she may be caught off guard. Such was the case recently in Cohen v. Facebook in the Eastern District of New York. Judge Garaufis took exception to the appearance of a junior associate— sans supervising partner—at a status conference. He told the 2013 graduate that “I don’t much like the idea that [your law firm] think[s] so little of this court that they didn’t send a partner here.” Rachel Cohen v. Facebook, Inc., Case No. 16-cv-4453, transcript of proceedings held Sept. 22, 2016. Judge Garaufis continued, “I think it is outrageous and irresponsible and insulting and you’re not the person doing the insulting. It’s whoever sent you here.” Id. At a subsequent conference—this time with partners present—Judge Garaufis clarified: “Any inference that might have been achieved through the media that I was ever upset at [the associate] is totally unfounded and for that, I apologize if that is the impression that was given. I was much more concerned about the fact that the firm, your firm, would take this matter seriously on behalf of [your client].” Transcript of proceedings held Sept. 27, 2016.

Judges and practitioners alike are taking notice of all these developments. For instance, the Chiefs in Intellectual Property (“ChIPs”) Next Gen Committee (nextgenlawyers.com) was established in late 2015 to promote and encourage opportunities for junior lawyers. They have drafted a set of best practices for judges and outside counsel to consider in offering junior attorneys oral advocacy opportunities. See “Best Practices and Considerations,”http://nextgenlawyers.com/best-practices-and-considerations/. Similarly, the Federal Circuit Bar Association recently held a seminar “Transitions: The Profession and the Next Generation,” in which Judge Reyna of the Federal Circuit participated, to raise the awareness of the need to provide young and diverse lawyers with courtroom opportunities.

As this trend continues to grow, judges, parties, and practitioners should be mindful of the long-term benefits of affording young attorneys opportunities to “stand up” in court, even with some attendant short- term risk.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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