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I cannot emphasize enough the importance of thinking outside the box in finding opportunities for stand-up experience in court. My court, the Northern District of Texas, has formalized a process for appointing lawyers where the case of an unrepresented party has withstood initial screening. Most of these cases are actions brought by detained persons, but they could involve legal representations of criminal defendants and of civil plaintiffs. Given that the lawyers are accepting the appointment as a service to the court, after the case is over, some of our judges are willing to provide appointed counsel with a feedback session, in which they will make suggestions for improvements in trial preparation.
I have published a standing order expressing my preference that lawyers with seven years or less experience will handle oral arguments. I purloined this idea from my friend Judge Bill Alsup of San Francisco, and I am delighted that many other judges have done the same with my idea. I believe judges have a unique opportunity to strongly encourage firms and clients to give the next generation the privilege to practice their craft in a real setting. For a sample of such orders, see www.NextGenLawyers.com. Many of the judges who have adopted orders similar to Judge Alsup’s state that they will hear oral argument, including in Markman hearings construing patent terms, when they might not otherwise hear oral argument, if a junior lawyer (generally of two to seven years’ experience) will make the argument. Most of us have no difficulty with more senior counsel being available during such hearings to assist and mentor junior lawyers or even to step in if that is necessary, but I make it crystal clear that I will not pull my punches or walk softly merely because a less experienced lawyer is the advocate. This is the genuine experience, warts and all.
I have a conviction that our profession will remain a critical servant to our democracy. Jury trials are a key part of our justice system. They embody our Seventh Amendment right, so the bar and the bench need to do everything we can, consistent with providing great client service, to give young lawyers real experiences that will allow them to shed the title of litigator and wear the garb of trial lawyer.