Washington Lawyer - October 2019 - 29

TAKING THE STAND

Moreover, the Court shall grant a request for oral argument on a contested
substantive motion if the request states that a lawyer of less than seven
years out of law school will conduct the oral argument (or at least a large
majority), it being the Court's belief that new lawyers need more opportunities for Court appearances than they usually receive.8

* Granting additional time for argument if a junior attorney will argue.
* Requiring parties to be prepared to discuss at a pretrial conference the

involvement of junior attorneys at trial. Judge Lucy Koh of the Northern
District of California has written: "The Court strongly encourages parties to
permit less experienced lawyers to examine witnesses at trial and to have an
important role at trial. Counsel should be prepared to discuss such opportunities at the Pretrial Conference."9

Senior Judge Jack B. Weinstein of the Eastern District of New York has been
particularly vocal, advocating for more visible and substantive roles for junior
female lawyers and minorities on cases before him.10 Credit principally is owed
to former District Judge Shira Scheindlin for encouraging Judge Weinstein to
promote diversity among the trial bar. Also, Judge Marsha Pechman in the
Western District of Washington is encouraging not only more junior attorneys
to argue but also women and minority attorneys.11
Another example comes from Judge Robert Pittman of the Western District
of Texas. The defendants in a case before him opposed a motion for attorney's
fees, criticizing the amount of time a junior associate spent as excessive. Judge
Pittman responded as follows:
Second, Defendants are critical of the time Mr. Darby spent preparing
for the evidentiary hearing as excessive. However, Mr. Darby was the only
associate working on the matter and likely the most familiar with the facts
of the case and the evidence to be presented at the evidentiary hearing. In
addition, he prepared a twenty-page slide presentation for the hearing and
delivered an opening statement that was on par with some of the strongest
oral advocates that come before the Court. Thus, the Court concludes
that the time he expended - approximately forty-three hours - for
a hearing that Plaintiff likely understood could be dispositive of their
claims was reasonable.12
While Judge Pittman's comments are not unheard of, they probably are not
as prevalent as perhaps they should be. Judge Pittman's encouragement and
recognition here of a junior attorney is the kind of sentiment that fosters growth
in the junior ranks.
Although there are legitimate concerns with thrusting more junior lawyers onto
the stage, none really poses an insurmountable obstacle. Some concerns may
be substantive: a lack of experience with trial procedure and all the attendant
issue spotting that comes with it. Others may be more unstated: Junior attorneys may not "look the part." Less experienced attorneys cannot be expected
to be perfect. Frankly, that is true of any trial attorney, but the pressure is magnified when one is less experienced.
At times junior attorneys may be castigated or embarrassed.13 While such
instances are unfortunate, they may also be receiving undue attention simply
because it was a junior attorney arguing rather than someone more senior.
Loss, embarrassment, or even the occasional "benchslap" are all part and parcel
of trial work, regardless of age or seniority.
But there is a real, untapped upside here. Junior attorneys are usually the ones
steeped in the details of the case. With some additional preparation, with
mooting and otherwise pressure-testing arguments, junior attorneys can
become formidable experts.

Our bar presents a ripe opportunity for the development of a robust trial bar,
to make a conscious effort in promoting junior attorneys. Washington, D.C., has
a diversity of trial or quasi-trial forums, not just the Superior Court and the U.S.
District Court for the District of Columbia but also the various agencies and
other tribunals. While government and pro bono experience undoubtedly will
also remain avenues for honing trial skills, these opportunities need not be
exclusive in adopting policies to encourage higher rates of junior attorney
participation in the private sector.
The hallmark of a good trial attorney is judgment. Judgment is a mix of a lot of
things, but one critical ingredient is experience. It is experience that transforms
knowledge into wisdom. And with fewer opportunities to gain trial experience,
you might wonder: How many attorneys in firms are litigators who have never
stood up in a courtroom or have only done so in a few limited pro bono
appearances? Trial competence or excellence is not simply a matter of innate
talent. Much of it is a question of repetition.
Stein Mitchell's Murray describes being a trial lawyer as a "building block
process." He notes, "When you call yourself a trial lawyer, that's something that
you can't finish in a lifetime." And he's right. That's good reason to help trial
lawyers get started earlier.
Lloyd Liu is a partner at Coburn & Greenbaum PLLC where he focuses on white-collar
defense, government investigations, and complex civil litigation.
NOTES

1 "Jury Trial Decline Wreaks Havoc on Profession, Judges Say," Law360 (Apr. 15, 2019),
law360.com/articles/1150095/jury-trial-decline-wreaks-havoc-on-professionjudges-say.
2 2018 Annual Report Statistical Summary, District of Columbia Courts, dccourts.gov/
about/organizational-performance/annual-reports.
3 "Jury Trials, Though in Decline, Are Well Worth Preserving," Law360 (Apr. 23, 2019),
law360.com/articles/1152909/jury-trials-though-in-decline-are-well-worthpreserving.
4 "A Judge, on Judging," slate.com/news-and-politics/2019/05/behind-the-benchwith-judge-robert-lasnik-a-look-at-the-judiciary-from-the-inside.html.
5 Judges also have tried to reduce the cost and time of getting to trial in an effort to
increase the number of trials, albeit so far with mixed results, supra note 1.
6 nextgenlawyers.com.
7 Standing Order Regarding Courtroom Opportunities for Relatively Inexperienced
Attorneys (May 16, 2011), mad.uscourts.gov/boston/pdf/casper/Casper_
StandingOrderReCourtroomOpportunities.pdf.
8 Judge Leigh Martin May's Standing Order Regarding Civil Litigation, gand.uscourts.
gov/sites/default/files/CVStandingOrderLMM.pdf.
9 Apple Inc. v. Samsung Electronics Co. Ltd., Case No. 11-CV-01846-LHK (Feb. 25, 2016).
10 "A Judge Wants a Bigger Role for Female Lawyers. So He Made a Rule," The New York
Times (Aug. 23, 2017), nytimes.com/2017/08/23/nyregion/a-judge-wants-a-biggerrole-for-female-lawyers-so-he-made-a-rule.html.
11 Supra note 4.
12 Judicial Orders Providing/Encouraging Opportunities for Junior
Lawyers, nextgenlawyers.com/wp-content/uploads/2017/02/
JudicialOrdersRegardingNextGen.docx-2.pdf (emphasis added).
13 "Big Law Hits Training Snag With Kirkland Benchslap," Law360 (Sept. 27, 2016),
law360.com/articles/845067/biglaw-hits-training-snag-with-kirkland-benchslap.

OCTOBER 2019

WASHINGTON LAWYER 29

https://www.law360.com/articles/1150095/jury-trial-decline-wreaks-havoc-on-profession-judges-say https://www.law360.com/articles/1150095/jury-trial-decline-wreaks-havoc-on-profession-judges-say https://www.dccourts.gov/about/organizational-performance/annual-reports https://www.dccourts.gov/about/organizational-performance/annual-reports https://www.afternic.com/forsale/aw360.com?utm_source=TDFS_DASLNC&utm_medium=DASLNC&utm_campaign=TDFS_DASLNC&traffic_type=TDFS_DASLNC&traffic_id=daslnc& https://www.afternic.com/forsale/aw360.com?utm_source=TDFS_DASLNC&utm_medium=DASLNC&utm_campaign=TDFS_DASLNC&traffic_type=TDFS_DASLNC&traffic_id=daslnc& https://slate.com/news-and-politics/2019/05/behind-the-bench-with-judge-robert-lasnik-a-look-at-the-judiciary-from-the-inside.html https://slate.com/news-and-politics/2019/05/behind-the-bench-with-judge-robert-lasnik-a-look-at-the-judiciary-from-the-inside.html http://www.nextgenlawyers.com http://mad.uscourts.gov/boston/pdf/casper/Casper_StandingOrderReCourtroomOpportunities.pdf http://www.gand.uscourts.gov/sites/default/files/CVStandingOrderLMM.pdf http://www.gand.uscourts.gov/sites/default/files/CVStandingOrderLMM.pdf https://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html https://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html https://nextgenlawyers.com/wp-content/uploads/2017/02/JudicialOrdersRegardingNextGen.docx-2.pdf https://nextgenlawyers.com/wp-content/uploads/2017/02/JudicialOrdersRegardingNextGen.docx-2.pdf http://www.law360.com/articles/845067/biglaw-hits-training-snag-with-kirkland-benchslap

Washington Lawyer - October 2019

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