PBCBA BAR BULLETINS pbcba_bulletin_november 2018 | Page 16

PROFESSIONALISM C o r n e r
Orders Providing Opportunities For
Junior Attorneys In The Courtroom
David P. Ackerman and Christine B. Gardner
One of the ongoing challenges that junior
attorneys face is obtaining sufficient “stand
up” courtroom opportunities. It is a reality
of today’s legal practice that many fewer
cases proceed to trial than in previous
decades. While there are myriad reasons
for this decline, one of consequences has
been a corresponding decline in courtroom
opportunities
for
junior
attorneys.
Additionally, some judges have noticed a
compounding trend—senior trial attorneys
frequently appear for much more than the
trial itself. See, e.g., GSI Technology, Inc. v.
United Memories, Inc., No. 5:13-cv-01081-
PSG (N.D. Cal. Mar. 9, 2016). Hearings that
might once have been covered by a less
experienced associate are being covered by
senior counsel as well.
This has raised concerns, both from the
bench and the legal community, about the
career development and advancement of
the next generation of lawyers. But judges
are doing something about it and we can
do the same here in Palm Beach County.
For example, Judge William Alsup, of the
Northern District of California, has sought to
draw awareness to this issue for many years.
Other judges and lawyers have taken up the
cause, and organizations have developed
resources such as www.NextGenLawyers.
com, which provides the latest standing
orders, news, and developments on this
issue.
Judge Leigh Martin May, Judge Richard
W. Story, Judge Mark H. Cohen, and Judge
Timothy Batten, all of the Northern District
of Georgia, also include similar provisions
in their standing orders for civil litigation
or instructions to counsel. Additionally,
some judges, such as U.S. Magistrate
Judge Christopher Burke of the District
of Delaware, state that they will consider
allocating additional time for argument
where a junior attorney is arguing the
motion.
There are, of course, potential concerns
associated with these policies. Having
a junior attorney prepare for and argue
a hearing may increase the costs to the
client. Good mentors will take that factor
into account in fairly billing the client.
Additionally, the choice of whether or not to
have a junior attorney argue a motion may
convey a party’s views on the importance of
a motion to opposing parties. These kinds of
orders allay that concern because the court
is encouraging this practice and the order
Certain adjustments to proceedings may can say there will be no adverse inference.
also be made to make the experience a And there might not otherwise be the same
positive one for all involved. Many judges opportunity for oral argument because the
allow for argument to be split between the court would otherwise allow less time or
junior attorney and more senior counsel. rule on the papers.
Judge Burke also allows senior counsel to
provide some assistance to junior counsel In light of this growing, nation-wide trend,
during argument, where appropriate. Judge we respectfully encourage our judges to
Alsup, in his trial guidelines, extends this consider standing orders or divisional
further, encouraging lead counsel to permit instructions encouraging junior attorneys
junior attorneys to examine witnesses at to appear in their courtrooms. One way of
trial, while at the same time relaxing the doing so would be to include provisions
“one-lawyer-per-witness” rule so as to allow encouraging such appearances, such as
them to perform.
those discussed above, in each judge’s
standing order or orders specially setting
The definition of who qualifies as a “newer” a hearing. This would not only increase
or “junior” attorney varies somewhat from awareness of this issue in our local legal
judge to judge. According to most judges, community, it would make it easier for
this includes attorneys who are between senior counsel to explain to clients why
four to seven years out of law school. they should agree to use junior attorneys at
Judge Alsup, for example, defines a “newer hearings and why their interests would be
attorney” as having less than four years of served by doing so. And we believe, given
experience. Judge Barbara M.G. Lynn of this chance, these lawyers will rise to the
the Northern District of Texas, on the other challenge of good advocacy.
hand, sets the bar at seven years, seemingly
recognizing that for many, even seven years All of the orders referenced in this article
of experience often does not equate to many are available on www.NextGenLaywers.
opportunities to stand up in court.
com.
When it comes to how best to support junior
attorney opportunities in the courtroom,
different courts have approached this
goal differently. Many judges have issued
standing orders guiding counsel, or included
provisions in orders setting hearings. Judge
Alsup, for example, in a supplemental order
accompanying orders setting initial case This is not to suggest all hearings or other
management conferences, actually seeks to speaking opportunities in court should be
create opportunities for junior attorneys:
handled by junior attorneys. Many such
opportunities may be more appropriately * The authors practice business litigation with Akerman LLP
If a written request for oral argument is handled by a more experienced attorney. and are members of the firm’s Professional Liability team.
filed before a ruling, stating that a lawyer Thus, it is important that no party be
of four or fewer years out of law school will disadvantaged by choosing to use an
conduct the oral argument or at least the attorney for a hearing.
Judge Burke
lion’s share, then the Court will hear oral recognizes this in his standing order: “[T]he
argument, believing that young lawyers Court emphasizes that it draws no inference
need more opportunities for appearances from a party’s decision not to have a newer
than they usually receive.
attorney argue any particular motion before
the Court.”
PBCBA BAR BULLETIN 16