It’s tough being a junior lawyer in 2018, so during the past year the FBA has increased efforts to make itself a professional home for them. In the fall of 2017, we kicked off our nationwide mentoring program that pairs law students with practicing lawyers. And in February, the FBA held its first Rising Professionals Symposium which brought lawyers from around the country together in Las Vegas for two days of networking and learning. In addition to these specific efforts, we have also kept our eyes open to trends affecting junior lawyers; we think we’ve found one that has some legs.
Several years ago, then-U.S. Magistrate Judge Paul Grewal issued an order in GSI Technology v. United Memories, observing:
[W]ith no fewer than six post-trial motions set for argument next week, surely an opportunity can be made to give those associates that contributed mightily to this difficult case a chance to step out of the shadows and into the light. To that end, the court expects that each party will allow associates to present its arguments on at least two of the six motions to be heard. If any party elects not to do this, the court will take its positions on all six motions on the papers and without oral argument.
Somewhat infamously, the parties declined the offer to involve their associates and the motions were not argued. There are many reasons why the parties may have decided not to allow the associate lawyers to argue the motions. For example, they may have been concerned that the motions deserved the attention of their most experienced counsel; or they may have simply wished to avoid the expense of preparing for and participating in a hearing. Whatever the reason, the associates did not stand up in court. But Judge Grewal’s approach seems to have taken on a life beyond that single case.
Other judges have taken up the call, issuing their own orders creating incentives for parties and law firms to give less-experienced lawyers “stand-up” opportunities in our courts. For example, Judge William Aslup of the Northern District of California has ordered:
If 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.
(Emphasis added.) Judge Aslup’s order is interesting in that it tailors itself to lawyers in their first few years of practice and also suggests that the oral argument might be split among the new lawyer and a more senior colleague.
Judge Analisa Torres of the Southern District of New York also allows for the sharing of arguments and even goes a step further. Her order provides:
Participation of Junior Attorneys. Given the decline in cases going to trial, opportunities for courtroom advocacy are increasingly rare. To assist in the training of the next generation of attorneys, the Court strongly encourages relatively inexperienced attorneys—in particular women and underrepresented minorities—to participate in all courtroom proceedings. Further, the Court is amenable to having multiple attorneys speak for one party if it creates an opportunity for a lawyer who is relatively inexperienced or from an underrepresented group.
Judge Torres is explicit that “all attorneys appearing should have the degree of authority consistent with the proceeding.”
U.S. Magistrate Judge Christopher Burke of the District of Delaware allows parties to “alert the Court that, if argument is granted, it intends to have a newer attorney argue the motion (or a portion of the motion).” If the parties provide such notice, the Court will:
A. Grant the request for oral argument on the motion, if it is at all practicable to do so.
B. Strongly consider allocating additional time for oral argument beyond what Court may otherwise have allocated, were a newer attorney not arguing the motion.
C. Permit other more experienced counsel of record the ability to provide some assistance to the newer attorney who is arguing the motion, where appropriate during oral argument.
Like Judge Torres, Judge Burke is explicit in his expectations: “All attorneys, including newer attorneys, will be held to the highest professional standards.” And he further says that the court “draws no inference from a party’s decision not to have a newer attorney argue any particular motion before the Court.”
The benefits of these orders are obvious, especially to junior lawyers who don’t normally receive an opportunity to stand up in in federal court. Part of what drew many of us to become litigators was the opportunity to try cases and argue motions. With the availability of trials and hearings dwindling, the orders mentioned provide much-desired—and some would say much-needed—experience for junior lawyers. The rules would also seem to lead to a greater opportunity for oral argument, generally, which most litigators and at least some clients would appreciate.
On the other hand, some judges have expressed concern that such orders would influence clients’ choice of counsel or that they actually could increase the cost of litigation if unnecessary hearings were scheduled or if inexperienced counsel required more preparation for the hearing. As Judge Burke’s order foreshadows, some fear that allowing or refusing to allow a junior lawyer to argue a motion could lead to inferences about the importance of motion to that party. All of these concerns seem to have been considered and, at least to some degree, mitigated by the judges’ orders, but all remain valid.
Recognizing this still-nascent trend, as well as the continuing dearth of opportunities for junior lawyers to get meaningful courtroom opportunities, the FBA has created a task force, led by Sixth Circuit Vice President Glen McMurry, to study the various incarnations of these standing orders and their effects—intended and unintended. At the same time the Task Force will explore other ideas designed to help our junior lawyers get courtroom experience. We expect that the Task Force ultimately will propose best practices and model standing orders for consideration and potential adoption by our federal judges.
It is our hope that, working together, the FBA and our federal judges will create opportunities for the next generation of lawyers to “stand up” in federal court.