I remember vividly my first trip to a courtroom as a lawyer. I had been admitted to the bar 30 days earlier and had worked at my firm for 90. I helped prepare a set of motion papers, which needed to be “submitted” in the Motion Part of the trial court. I reported to a particular cavernous courtroom and was among the first to arrive, a half hour before the time the motion had been noticed to be heard. I sat down and then observed what went on—lawyers trickled in; clerks started to come into the courtroom from a back room, one at a time, some with stacks of off-white cardboard envelopes containing papers, some of which were quite thick. About a half hour after the time the motion was scheduled to be heard, a judge entered, and a clerk began to call out the names of cases from a pre-printed calendar. I watched as the other lawyers conducted their business—some with the clerks, some with the judge, some just by shouting things out from the back of the courtroom.
Those observations taught me how to proceed that day. When it got to the motion I was appearing on, I stood up and shouted out, “Submit for,” and walked to the well of the courtroom and handed up an original set of reply papers. I am sure my face was beet red. As I was doing that, another lawyer called out, “Submit in Opposition,” and walked up and handed up a set of his own papers. We walked out of the courtroom and introduced ourselves to each other. He left. I left, with a big sigh of relief and pride that I had accomplished the goal of my first court appearance. It had taken an hour and a half, and I only had to say two words.
That experience was my first look at how a small part of the litigation business at that courthouse was actually done. Because it was a courthouse in which I knew a lot of the firm’s cases were pending and would be pending, I set out to learn, thereafter, as much as I could about how business—in the full sense—was actually conducted there. This is not knowing cold the procedural code (whether statutory or by rule) that governed lawyers in that courthouse. It was about how to actually get something done in that vast building.
Nothing was done electronically in those days, and most everything required in-person appearances before either a judge or a clerk. Whenever I had to go to that courthouse for any reason, I let others in the firm know that I was going and that I was happy to take papers down to file, or make inquiries, or check on something in a file in the expansive record room in the basement. I met the clerks in all of the various clerical departments; I met and got to know the judges’ courtroom clerks and law clerks. I extended these practices to other courthouses around the state that I appeared in, and to federal courts. The result was a fairly thorough knowledge of the people and the unwritten rules, how to get a clerk’s or judge’s attention, with untold benefits for the firm’s clients. Over time, I helped the lawyers who came after me at our firm absorb what I had learned through the decades of my education about how the courts really function.
There was a lot of sitting around and waiting in those days, whether it was for the submission of a motion, the argument of a motion, or a conference. I used that time to get to know a lot of other lawyers, some of whom were regulars in a particular courthouse. They provided me with even more intelligence about what was going on there. That knowledge propelled me into bar association activities, where I was able to help effectuate change in the courts and how we practice law. When I was given the honor of chairing a committee at the New York City Bar Association, the mission of which was to suggest innovations to state court practice, I found lawyers and judges I knew from courthouses all around the city who were eager to join me, and local bar associations willing to collaborate with the city bar’s efforts.
The same has been true for me at the ABA, and specifically this Section. As members of the Litigation Section, we have a unique opportunity to have a say in the evolving rules and how we practice as litigators. Through our Federal Practice Task Force and Rules Roadshows, we already have helped to develop initiatives and educate about important changes in the Federal Rules of Civil Procedure. We will continue to do so. We are working to expand our involvement, so that we can have some effect on the Rules of Appellate Procedure and the Rules of Evidence, as well. Through our Task Force on Efficient Justice, we presented a series of virtual programs at the start of the pandemic that helped educate thousands of lawyers on how to be effective advocates when litigating over videoconference platforms. Through our new Task Force on the Changing Legal Profession, we have the opportunity to help to initiate and educate on how litigators can be most effective under the shifting rules and practice settings that we all face.
Today, of course, most everything is done electronically, and many of those opportunities to interact with knowledgeable local lawyers, with clerks, and, in some places, even with judges, had mostly disappeared even before the pandemic hit us. With the pandemic, whatever remained of in-person interactions in many state and federal courts ceased. Court appearances in some of the hardest-hit states were all virtual for well over a year. As of today, some judges have kept them that way and may do so well into the future.
How we will practice in our courts (physically or virtually) remains a work in progress, but it is clear that personal interaction with judges and court staff is something we are going to have to work hard to obtain. Those are interactions that are important for experienced litigators and even more so for the professional development of the next generation of litigators.
Through the Section, we have the ability to examine all of these issues and work on them together, and not only with other lawyers. Through the ABA’s Judicial Division, we hope to establish areas in which we can have true collaboration with judges—both state and federal, trial and appellate—throughout the country. I hope those collaborations will be beneficial to our members, just as my everyday interaction with clerks, lawyers, and judges has been throughout my career.
All of us are at various stages of rediscovering the benefits of personal interactions with colleagues in our practice settings. At the Litigation Section, we are holding in-person meetings for the first time in nearly 18 months. At those, I hope, we will begin to again appreciate the benefits of working alongside colleagues committed to improving both our profession and our justice system. Through those efforts, we will help our next generation of accomplished litigators and leaders acquire the knowledge and establish the professional collaborations so important to their and our profession’s success.
We look forward to working with you in this effort and together making a lasting impact on our profession and system of justice. Feel free to email me at any time at [email protected] to see how you can help make a difference.
