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.

Comments

[Rev. Arthur L. Kirkland]

” 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. ”

I believe training of younger lawyers is a big issue and problem, and that too many newer lawyers exhibit signs of having been raised by wolves, but . . . a judge unnecessarily requiring litigants to incur the cost and delay of oral argument in this manner is nearly inexplicable. Putting a thumb on the scales to persuade a litigant to rely on a less experienced lawyer?

This guy should know better. But, apparently, does not.

[CJColucci]

The default in many, if not most, courts, is that motions are decided on the papers without oral argument unless the client asks for it and the judge agrees. If clients don’t want to incur the cost and delay of oral argument, they can decline to ask for it and the motions will be decided on the papers. If they want to insist on experienced counsel for oral arguments, they can apply and take their chances.

[David Nieporent]

If clients don’t want to incur the cost and delay of oral argument, they can decline to ask for it and the motions will be decided on the papers.

Well, yes and no. There are two parties to a motion (at least!), and if there’s oral argument both of them have to appear, and argue. If one party wants it just to give experience to a junior lawyer, that imposes costs on all the other parties.

[theobromophile]

If having an oral argument is a nice bonus, it seems like that would be a win-win: the client gets an oral argument and the young lawyer gets experience.

Is there anything from preventing a more experienced lawyer from being there as well, to provide guidance and clarification to the younger attorney?

Unrelated to the legal profession, this is something I have thought about a lot recently. Back in the autumn, I suffered a devastating injury shortly before a rather important athletic event. The DPT who diagnosed and treated me was fresh out of school, the ink of her diploma still wet. What made that okay, aside from her drive and talent, is that a more experienced DPT was present at the first few sessions, providing confirmation to me of her assessment and treatment plan. As far as I’m concerned, she basically pulled off a miracle (I made it to the event and competed; treatment is ongoing but injuries were horrible). I wrote a glowing review for her precisely because a lot of athletes are hesitant to put their health in the hands of someone new and, well, you can’t get experience without experience. Again, the presence of the more experienced DPT was very reassuring.

[Skye]

This runs into some conceptual difficulties from both a business and professional standpoint.

If oral argument isn’t really necessary, then having one just to give the junior litigant experience requires you to either (unfairly) bill the client for it or just eat the cost. If it is necessary, then, well, oral advocacy matters and junior lawyers are worse at it; how am I supposed to explain to the client that I’m reducing the chance they’ll win because a fourth year associate needs practice? And that’s before getting into the reality that people job hop these days no matter what you do; somebody else will be harvesting the experience you put into the junior lawyer.

The way I usually see this handled is for a firm to pick up a smaller case than they would usually bother with so the juniors can get some practice, but honestly there’s even only so many of those to go around.

[Rev. Arthur L. Kirkland]

Pro bono cases also can provide first-rate opportunities for oral argument (and other upwardly mobile experiences) for newer lawyers. I benefited greatly from those opportunities and encouraged younger lawyers to pursue them (for several reasons).

[Skye]

I encourage young lawyers to NOT pursue pro bono opportunities. Pro bono clients are incredibly abusive, just like anybody else using a free service, and dropping them looks bad (and sometimes the court won’t let you). It’s much better to solve this problem by not getting into it in the first place. These need to be handled, if at all, by extremely experienced/specialized lawyers with extreme care.

[Sarcastr0]

Maybe pursue them, but not without some senior support who can coach them through the nonsense.

[Rev. Arthur L. Kirkland]

.

Pro bono clients are incredibly abusive

My experience differed.

An early example: I volunteered to handle cases in which Children and Youth Services experienced a conflict (CYS had represented the childrens’ — my clients’ — mother when the mother was a minor.) Because I had the resources of a large law firm, I agreed to take “the worst” cases rather than a bunch of the smaller cases. I handled one case for more than 15 years (youngest client was a few months old when I arrived; the mother had been convicted of attempting to murder one child, had thrown another down a flight of stairs, and was generally unfit), keeping it long after I became a partner. It was a rewarding case in several respects. I never found the children to be abusive.

I also represented my college newspaper; my fraternity; and a number of charitable or community operations. I sometimes include political and election work in discussion of pro bono work. Over time, I began to charge most pro bono clients (other than children and in the context of election work) a small fee (five to ten percent of my customary hourly rate, applied gently) to avoid circumstances in which they insisted on suing someone each time they sat or stepped on a piece of gum. That solved the “abusive client” issue in my circumstance.

Pro bono work gave me important, early courtroom experience; broadened my legal experiences and accelerated my development as a lawyer; and in my judgment constituted an important element of being a professional.

I strongly encourage newer lawyers to pursue appropriate pro bono opportunities (with support from experienced lawyers).

[MN2828]

I’ll have to agree with the Rev here. My experience with pro bono clients has been uniformly positive. I too have strongly encouraged the newer lawyers at my firm to take pro bono cases. I or another experienced lawyer is on hand to assist. It is great training.

[CJColucci]

If oral argument isn’t really necessary, then having one just to give the junior litigant experience requires you to either (unfairly) bill the client for it or just eat the cost. If it is necessary, then, well, oral advocacy matters and junior lawyers are worse at it; how am I supposed to explain to the client that I’m reducing the chance they’ll win because a fourth year associate needs practice?

You act as if your client is a grown-up. Explain the rule and its purpose, discuss whether the client pays or the firm eats the cost, estimate the likelihood that you will get oral argument at all if the client wants the silver-haired partner to argue, and let the client make an informed decision.

[Rev. Arthur L. Kirkland]

It is generally difficult to gauge whether oral argument would constitute a “nice bonus.” Participation in oral argument is expensive and sometimes risky.

A lawyer presenting a case at oral argument is, figuratively, during the presentation, alone on a remote island. No opportunity for guidance or clarification from anyone else, at least not in my experience, after the argument begins. (Maybe someone could hand a copy of a reported decision to you if a judge mentioned it, or point toward the location of an exhibit in a binder, or provide a glass of water, but no substantive consultations.)

[Noscitur a sociis]

At least at the trial court level, my experience is that this is highly variable. I’ve seen everything from what you describe to judges having no problem with two different lawyers popping up and down to answer different questions (or even the same question!).

[Rev. Arthur L. Kirkland]

I have never seen the second circumstance and probably would be reluctant to try it, but perhaps my experience has been parochial.

[TwelveInchPianist]

“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)?”

It’s this one.

“My sense is that similar concerns arise in medicine, with teaching hospitals.”

Except that in court you’re supposed to have an impartial judge deciding case, not one who puts his thumb on the scale based on external factors. I have no idea if a similar rule exists in medicine.

“

[KenveeB]

In my state, one requirement to get board certified in different appellate areas is to have a certain number of oral arguments. Many justices are pretty open in saying they’ll grant oral argument if the motion indicates the attorney needs additional arguments to qualify for board certification. I don’t see a problem with this. Most cases where arguments would otherwise be denied are denied because the justices don’t believe that oral argument will make a difference. Letting someone get some experience on something that won’t make a difference isn’t hurting either side.

[Rev. Arthur L. Kirkland]

Says a guy who apparently never had to pay for an oral argument.

It is increasingly difficult to believe this is a “legal” blog and more than it is a “libertarian” blog.