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February 27, 2018 Practice Points

How the Judiciary Is Helping Younger Lawyers Close the Experience Gap

Litigators should be mindful of the trend to create courtroom opportunities for less experienced attorneys

by Paula M. Bagger

2015 ABA Report confirmed what many women litigators know experientially: Women are less likely to appear in civil trials than men and substantially less likely to handle first-chair responsibilities. The ABA House of Delegates recently passed Resolution #10A to redress unequal opportunities for women to gain trial and courtroom experience. Many reasons for the disparity have been advanced, ranging from unequal mentoring opportunities in male-dominated litigation departments to a perception that young women attorneys are hesitant to “lean in.”

There are other systemic contributors to the problem, including fewer civil trials in general, with the result that older (predominantly male) lawyers are available to handle significant motions and try those fewer cases. Suggestions to young litigators, and, particularly, young women litigators, appear frequently: Tthey include seeking out opportunities, no matter how small; accepting pro bono clients; developing one’s own client base, or taking a job (e.g., government or insurance defense) where trial opportunities are more plentiful.

Young litigators should also look for opportunities provided by the judiciary. Many trial judges have more often been offering, or proving themselves more receptive to, a variety of means to increase participation of newer lawyers in stand-up work and at trial. Motivated by a concern that young lawyers (of both sexes) in large law firms are not being allowed to develop their trial skills and, in many cases, the recognition that this bottleneck affects young women litigators disproportionately, these judges have officially expressed their concern and support and sometimes created policies designed to address the problem.  

For instance, seven of the federal judges sitting in the District of Massachusetts adopted a standing order regarding “Courtroom Opportunities for Relativity Inexperienced Attorneys.” The order “as a matter of policy, strongly encourages the participation of relativity inexperienced attorneys in all court proceedings including but not limited to initial scheduling conferences, status conferences, hearings on discovery motions and dispositive motions, and examination of witnesses at trial,” while cautioning that such attorneys “will be held to the highest professional standards,” “should have a degree of authority commensurate with the proceeding,” and, in complex matters, “should be accompanied and supervised by a more experienced attorney.”

Judges in other jurisdictions offer similar inducements for the participation of less experienced attorneys. For instance, a number of federal judges and magistrates have standing orders in which they offer oral argument on a disputed motion if a junior attorney will be making all or most of the presentation. Several others have standing orders allowing for additional time for an oral argument made by an inexperienced attorney. Magistrate Judge Christopher J. Burke in the District of Delaware issued a “Standing Order Regarding Courtroom Opportunities for Newer Attorneys,” offering parties the opportunity to provide notice that a less experienced attorney will argue a motion, in which case the court will offer oral argument if practicable, “[s]trongly consider allocating additional time for oral argument beyond what [it] may otherwise allocate,” and permit a mentoring counsel of record to provide some assistance during oral argument, if necessary. Similarly, Judge Moskowitz of the Central District of California will hold oral argument on civil motions:

(1) where the motion will be argued by attorneys with less than 5 years of admission to the bar for at least two opposing sides; or (2) where the motion will be argued by an attorney with less than 5 years of admission to the bar on one side and the opposing attorney, irrespective of his or her experience, also requests oral argument. While the decision as to who should argue is for the lead attorney to make, the Court encourages the lead attorney to allow the junior attorney writing the motion papers to argue the matter. In those circumstances, the Court will allow the lead attorney to also participate in the argument.

A growing list of standing orders by federal judges across the country can be found at the website Next Generation Lawyers.

Young lawyers, and their mentors, should also keep in mind that, even in the absence of formal standing orders, a growing number of state and federal judges will be sympathetic to requests to increase the participation of newer lawyers, such as allowing counsel to split the argument of a complex motion or to split the examination of witnesses in the interests of giving less experienced lawyers an opportunity to participate in arguments or trials. Judge Allison D. Burroughs of the District of Massachusetts, concerned about the paucity of younger and women attorneys speaking in court, will offer associates the opportunity to argue a motion even after the lead attorneys have finished their presentations. She is quoted as saying that the goal is for parties to “see it as an opportunity to make their points one more time, rather than as a potential pitfall for the young and unwary."

When staffed on a larger case, a less experienced litigator should keep herself apprised of any standing or procedural orders that may offer her the opportunity to participate more fully in the cases on which she works.

Paula M. Bagger is a principal in law Office of Paula M. Bagger LLC.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).