January 19, 2017

How Do We Get the War Stories if We’re Never Allowed to Go to Battle?

Tamara J. Lindsay and Brianna E. Kostecka

General George S. Patton once said, “Battle is the most magnificent competition in which a human being can indulge.  It brings out all that is best; it removes all that is base.”  While General Patton was glorifying physical combat in this remark, its essence rings true for litigators as well.  The shores of Normandy are not our battlefield, but we become better, more skilled, more polished, more confident, and more respected through our courtroom sagas.  The problem is, the practice of law has changed so dramatically that few young attorneys ever go to battle.

Seasoned attorneys have a treasure trove of war stories.  From the time they were asked to argue a motion on a few hours’ notice, to watching their expert witness crumble during an arbitration, to that one time they made the opposing party hang their head in shame at a mediation.  Veteran attorneys are not defined by their stories, but the stories become a part of their practice.  Their reputation, their swagger.

Young attorneys, on the other hand, typically go from classrooms and textbooks (with relatively little practical experience before the day they are sworn in) to the shadow of computer screens.  It is increasingly common for young attorneys to spend virtually no billable time in court, at a deposition, or on a site visit.  Instead, young attorneys begin their career scouring through thousands of pages of document review and researching discreet issues of law hoping to earn the right to argue before a court or conduct witness examinations.  Unfortunately, given the legal climate in which attorneys are currently practicing, the timeframe for that hope becoming a reality appears to be taking longer and longer.  And the consequence is that young attorneys are given fewer and fewer opportunities to earn their stripes.

After practicing for four to six years, a young attorney is often expected to have the experience and skills necessary to take and defend depositions or argue a motion in court and to do both well.  In reality, however, many attorneys at that point in their career will only have had the opportunity to observe rather than participate.  It’s a catch 22 – the only way to perform expertly in the legal battlefield is to have experience, but young attorneys are finding it difficult to obtain that experience because they are … inexperienced.  One commentator has noted that this dilemma is similar to a union shop where “in order to get a union card, you have to have experience, but you can’t get experience unless you have a union card[.]”  See http://abovethelaw.com/2016/03/old-lady-lawyer-we-learn-by-doing-not-just-by-watching/?rf=1 (last visited July 29, 2016).

In recent years, some law firms have made efforts to fill in the experience gap for young attorneys with training programs and pro bono opportunities.  While these efforts provide a partial solution, the experience gap continues to widen.  Training programs, for all their worth, are no substitute for running to the court house to argue for an injunction.  Moreover, junior to mid-level associates are typically so overwhelmed with billable work and billable hours requirements that the thought of devoting what little time remains in their day to a pro bono case is a tough sell.  But young attorneys are eager for experience. 

Judges Take Steps to Increase Young Attorney’s Courtroom Experience  

Recognizing that young attorneys not only represent the future of the legal industry but also that this demographic is primed for battle, a few noteworthy judges have taken steps to address the decline in tangible courtroom experience for young attorneys. 

Judge William Alsup – United States District Court Judge for the Northern District of California – issued a “Case Management Order re Law Firm Plan for In Court Opportunities for Young Lawyers” in B&R Supermarket, Inc., et al. v. Visa, Inc., et al., No. 16-01150 (Rec. Doc. 37).  Therein, Judge Alsup acknowledged the “need to provide arguments and courtroom experience to the next generation of practitioners” as it “is the way one generation will teach the next to try cases and to maintain our district’s reputation for excellence in trial practice.”  The order required each law firm to submit a plan for how it will provide opportunities for young lawyers to “argue motions, take depositions, and examine witnesses at trial[,]” including the names of the specific associates who would be assigned to specific tasks. 

To their credit, Robbins, Geller, Rudman & Dowd, LLP was the first to file a response to Judge Alsup’s order and noted that it had designated at least two young attorneys to assist in the B&R matter, and that the firm intended those attorneys to argue discovery motions and also take depositions (after having sat second-chair at least once with a senior attorney).  Dorsey & Whitney, LLP similarly responded, noting that it, too, would designate young attorneys to argue discovery or non-dispositive motions as well as have at least one young attorney attend trial and be given the opportunity to examine witnesses.  Indeed, each of the firms involved in the B&R matter submitted a response to Judge Alsup’s order and outlined in detail the opportunities that would be provided to young attorneys in that matter. 

Judge Paul Grewal, also a United States District Court Judge for the Northern District of California, recognized in the complex intellectual property matter GSI Technology v. United Memories, No. 13-01081, that “[i]n a technology community like ours that prizes youth – at times unfairly – there is one place where youth and inexperience seemingly comes with a cost: the courtroom.”  See Rec. Doc. 1112.  So, in March of this year, Judge Grewal ordered as follows: 

[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 being 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. 

Sadly, the firms involved in the GSI matter, elected to have their motions decided on the papers rather than permitting young attorneys to argue two of the six post-trial motions.  A variety of factors and considerations no doubt played into the firms’ decision, but Judge Grewal still felt compelled to deliver a “stinging rebuke” nonetheless. 

I would be remiss if I did not observe the irony of another missed opportunity to invest in our profession’s future when two of the motions originally noticed for hearing seek massive fees and costs.  To be clear, GSI asks for $6,810,686.69 in attorney’s fees, $1,828,553.07 in non-taxable costs and $337,300.86 in taxable costs, while UMI asks for $6,694,562 in attorney’s fees, $648,166 in expenses and $302,579.70 in taxable costs.  That a few more dollars could not be spent is disappointing to me.  My disappointment, however, is unlikely to compare to the disappointment of the associates, who were deprived yet again of an opportunity to argue in court.

See http://abovethelaw.com/2016/03/judge-delivers-stinging-rebuke-to-partners-for-freezing-out-associates/ (last visited July 29, 2016).

Send Your Young Attorneys to Battle; It Just Might Bring Out the Best in Them!

Law firms today are under increased pressure from clients and other external factors that sometimes make it unrealistic for associates to appear in bet-the-company cases or to argue dispositive motions right out of the gate.  But, the practice of law is just that – a practice!  Without the opportunity to practice, to make mistakes, to observe veteran attorneys in action, and to interact with judges, young attorneys’ abilities will stagnate.  There are likely many other judges adopting positions similar to Judge Alsup and Judge Grewal.  While this practice may be far from the norm, the fact that the judiciary is recognizing the need for young attorneys to become more active participants in all aspects of litigation signals that the experience gap is not only very real but also not being adequately addressed by the private sector.

So, the question becomes, are you the type of attorney that has this article surreptitiously laid on your chair by an associate leaving work long after you have called it quits?  Or, is your mentee going to burst into your office waiving this article and exclaiming about how fortunate they are to work for such a progressive firm?  The authors of this article are fortunate to fall into the latter category, but our peers are thirsty for “war.”  So, send your young attorneys to battle.  It just might bring out the best in them!

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Tamara J. Lindsay

Holland & Hart, LLP, Denver, CO, Liaison to Diversity, SPEC, Young Lawyer Division and Division 13 (Government Construction)

Brianna E. Kostecka

King & Spalding, New York, NY, Young Lawyers Division, Division 12 (Owners & Project Finance), and Division 1 (Litigation & Dispute Resolution)