The Volokh Conspiracy

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Judges Encouraging Oral Argument Opportunities for Junior Lawyers


Various district courts have put out such orders; here's the most recent I've seen, a Standing Order on Requests for Hearings and Oral Arguments from Magistrate Judge David Horan (N.D. Tex.):

With regard to possible oral argument or an evidentiary hearing, the Court notes a trend today in which fewer cases go to trial and in which there are fewer speaking or "stand-up" opportunities in court, particularly for junior lawyers (that is, lawyers practicing for less than seven years). The Court encourages litigants to be mindful of opportunities for junior lawyers to conduct hearings or oral argument before the Court, particularly hearings or oral arguments as to which the junior lawyer drafted or contributed to the underlying motion or response.

In those instances in which the Court is inclined to rule on the papers, a representation that the oral argument would be handled by a junior lawyer – or by a lawyer who has more than seven years in practice but who has had less than five speaking appearances in any federal court – will weigh in favor of holding oral argument. The Court understands that there may be circumstances in which having a junior lawyer handle a hearing or oral argument might not be appropriate – such as where no junior lawyers were involved in drafting the motion or response or where the motion might be dispositive in a "bet-the-company" type case.

Even so, the Court believes it is crucial to provide substantive speaking opportunities to junior or other less experienced lawyers and that the benefits of doing so will accrue to junior lawyers, to clients, and to the profession generally. The Court encourages all lawyers practicing before the Court to keep this goal in mind.

This relates to a potentially complicated matter in many professions, I think.

The clients may well consistently want the more experienced lawyer (even when they need to pay more), even for minor procedural motions; but there won't be experienced lawyers if inexperienced lawyers can't get experience. Is that reason for the system to give special opportunities to less experienced lawyers? Or is that unfair to the clients? Or, independent of fairness, is it an improper intrusion into the clients' ability to get the experienced lawyer that they prefer (even when the special opportunity for less experienced lawyers is a nudge, as with this order, rather than a command)?

My sense is that similar concerns arise in medicine, with teaching hospitals. Quite how judges / lawyers / doctors / etc. should deal with this is an open question, but I thought I'd pass along one answer.