Lead Counsel Experience
Perhaps the most evident benefit that pro bono work offers to young litigators is the opportunity to take the lead in actual trials or appeals. Indeed, then-attorney Louis Brandeis made a name for himself in Muller v. Oregon, 208 U.S. 412 (1908), a case he argued before the Supreme Court for a non-paying client, the state of Oregon. See Urofsky, supra, at 34. Brandeis’s approach in this case was novel for his time. He focused almost exclusively on the facts surrounding the challenged law rather than on the legal theories underlying the action. See id. at 36.
In fact, his brief set forth only three pages of legal argument as compared to over 100 pages of fact-based analysis. This approach to briefing cases, now known as the Brandeis Brief, has made an undeniable impact on the American legal system as a whole. See id. (noting the use of Brandeis’s facts-based approach by anti-segregationists in Brown v. Board of Education, 347 U.S. 483 (1954) and by the University of Michigan in defense of its affirmative action policies in Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306 (2003)). But the unqualified success of Brandeis’s argument and supporting brief in Muller—a unanimous decision by the Supreme Court in favor of the state of Oregon—translated into future successes for Brandeis as well. Brandeis himself successfully employed the same facts-based approach in later cases and causes. See id. (citing Ex parte Anna Hawley, 85 Ohio 495 (1914); Hawley v. Walker, 232 U.S. 718 (1914)).
Although most young associates will not have such a prestigious opportunity as arguing before the Supreme Court, many will get the chance to run a trial or argue an appeal for a pro bono client long before they would for a paying client. See Reni Gertner, “Pro bono work helps young lawyers to gain valuable experience,” Minn. Law., Nov. 6, 2006; see also Lardent, supra, at 7–8. Indeed, law firms have seen opportunities for civil trial work decrease in recent years, reducing the in-court experiences available to many associates. See id. (noting the increasing instances of settlements and corresponding decrease in trials). The real-life experience offered in pro bono cases fill that void, which in turn can help catapult an associate to greater responsibilities and roles in the representation of the firm’s paying clients. See Cummings, supra, at 111–13 (quoting a partner at Jenner & Block who noted the value of a young lawyer with hands-on experience gained through pro bono work to the firm’s main practice areas).
My own experience here is illustrative. Thinking back to my first Ninth Circuit appeal, I took on the matter at the time because I wanted to do some good for the world. I was not really focused on the good it could do for me. But perhaps I should have been. The second federal appeal I argued came before the same court, the Ninth Circuit, in a matter my firm had handled at the trial level. See Motorola, Inc. v. J.B. Rogers Mech. Contractors, Inc., 177 F. App’x 754 (9th Cir. Apr. 27, 2006). After the jury rendered its verdict (in our client’s favor) and judgment was entered, an appeal was clearly in the offing. I knew the lead partner on the trial team and had spoken with her several times about my earlier pro bono appeal. Although I had not worked on the trial, to my surprise, when the notice of appeal was filed, the lead partner on the case asked me to take the lead in drafting the brief for the appellee.
After the case was fully briefed and argument was finally set, the partner went out of her way to approach the client to get approval for me to argue it. As one might guess, the client, a multimillion dollar company that had won over two million dollars at trial, was rightly a bit reluctant. But I had unwittingly armed the lead partner with the unanswerable argument: I had argued before that court before, and she had not. The client was persuaded and agreed to let me handle the argument.
Of course, not every firm has such generous partners, who are not only willing to give up arguments for themselves, but also stick their necks out for junior associates. And arguing and winning one appeal in front of a court may not be enough to convince a client that a young litigator should be entrusted with arguing a second appeal. But the point is that, as with most things in the practice of law, experience breeds opportunities. In the last five years alone, I have argued seven federal appeals, as well as a few in various state appellate courts—all as an associate. Several of the initial arguments were pro bono, while the more recent arguments have been for paying clients. Suffice it to say that, even though I am still fairly young in terms of seniority, clients generally do not question my appellate oral argument experience level anymore. And I owe that in large part to my pro bono work.
Broader Substantive Experience
Pro bono work often provides opportunities to gain experience in parts of the law that are outside the normal scope of what a commercial litigator might encounter. See Lardent, supra, at 8; see also Gertner, supra (recounting the experience of an associate who represented a pro bono client in an appeal of a removal order before the Eleventh Circuit). Justice Brandeis himself put it well: “[N]o hermit can be a great lawyer, least of all a commercial lawyer. When from a knowledge of the law, you pass to its application, the needs of a full knowledge of men and their affairs becomes even more apparent.” Donald W. Hoagland, “Community Service Makes Better Lawyers,” The Law Firm and the Public Good 104, 109 (Robert A. Katzman ed., 1995) (citing Keynote Address, Judge Frank M. Coffin, Program on Professional Ethics and Responsibility, Boston University School of Law, Jan. 8, 1990). A fierce believer in the importance of immersing himself in the facts and circumstances of—as well as the law applicable to—each of his cases, Brandeis used his mastery of cases to persuade judges and justices before whom he appeared of the rightness of his clients’ positions. Urofsky, supra, at 36 (noting the effectiveness of the original “Brandeis Brief,” a 100+ page treatise on the facts of the Muller v. Oregon case, which drew note in Justice David Brewer’s opinion, unanimously holding in favor of Brandeis’s client, the state of Oregon). Justice Brandeis once wrote, in a memo to himself, “Know not only whole cases, but whole subjects . . . . Know not only those facts which bear on direct controversy, but know all the facts and law that surround.” Urofsky, supra, at 33 (citing undated memorandum, “What the Practice of Law Includes,” Louis D. Brandeis Papers, University of Louisville Law Library, Louisville, Kentucky). Later, Justice Brandeis used this same technique to educate other justices, and consequently shape their opinions, on fundamental jurisprudential issues. Urofsky, supra, at 38–40 (discussing the evolution of Brandeis’s First Amendment jurisprudence and noting that Brandeis used long dissents to educate the Court and illustrate the factual basis for his opinions).
Perhaps even more so today than when Justice Brandeis practiced, law—especially big-firm law—has become a highly specialized affair. Firms have myriad practice groups, dividing and subdividing specialties until young litigators find themselves experienced only in pharmaceutical products liability cases, Title VII retaliation cases, or some other narrow swath of expertise (or at the very least, limited to general products cases or general labor and employment cases). See Hoagland, supra, at 115 (noting attorneys’ increased attention to more specialized areas of expertise).
Pro bono provides a readily available way to supplement this experience, oftentimes granting access to areas of the law one would never encounter in law firm practice. This broader understanding of the law and society can help strengthen an attorney’s ability to effectively counsel and be a better advocate for his or her paying clients. See id. at 114. For example, a trial lawyer might want to take on a pro bono appeal from a federal appellate court. A patent lawyer might want to take on a habeas corpus or section 1983 conditions of confinement case, whether at the trial level or the appellate level, for a client in need of representation. The possibilities are endless.
In my own practice, I have focused in recent years on immigration cases, especially matters involving political asylum, in cooperation with a local organization called the National Immigrant Justice Center (NIJC). I handled one such case in which we won a reversal of the denial of asylum for a Cameroonian woman. Tchemkou v. Gonzales, 495 F.3d 785 (7th Cir. 2007). The client had become active in Cameroon’s student movement in 1993 when she was a senior in high school and participated in a march to support striking teachers. The Cameroonian police arrested, beat, and detained her for three days without food or water. After she was released, she was hospitalized for two weeks to treat dehydration and other injuries she sustained in the extraordinarily inhumane conditions of the jail. In 1996, she resumed her political activities and was arrested and severely beaten on two separate occasions. In 2001, she obtained a visa, escaped her persecutors, came to the United States, and applied for asylum.
An immigration judge denied her asylum request, and the Board of Immigration Appeals (BIA) affirmed. After meeting with the client, listening to her story to fully understand the facts, and, of course, doing my best to manage expectations, we crafted an appeal brief that we thought was persuasive. A few months later, I delivered the oral argument to the U.S. Court of Appeals for the Seventh Circuit.
When the court handed down its opinion reversing the BIA, it was a moment of pure elation for everyone involved. When I called my client to tell her the news, she literally had to sit down because she was so emotional. She was in tears and was so grateful for the legal help that she received. Without this pro bono experience, I surely never would have been able to grapple with the legal complexities of the Immigration Code. I wouldn’t have learned about Cameroon, about the political difficulties the country faces, or in particular, about my client and the obstacles she overcame to be here. And without getting involved through NIJC, I never would have had the chance to contribute to changing the course of my client’s life—quite literally from a path certain to lead to injury or death at the hands of her persecutors to a path that ends here in America. Not that my large commercial cases are not every bit as important as this one, because they are. But this one just felt especially good to win.
For all of these reasons, then, I encourage young litigators to get involved in pro bono work, and the sooner the better. Pro bono work can help a young associate’s career in very tangible ways. Specifically, by taking on pro bono projects, a young associate also takes on the responsibilities of the case that are, in the realm of paying clients, usually reserved for more senior members of a team. With these responsibilities come great learning and training experiences for the young associate and also the chance to work in areas of the law typically not encountered in law firm commercial litigation practice.
There is, of course, no guarantee that taking on pro bono cases will mean that a young litigator will eventually sit on—or even argue before—the Supreme Court as in the case of Justice Brandeis. But there can be little dispute, as I can personally attest, that pro bono work will provide an excellent means to develop one’s craft, not to mention that the right cases can go a long way in nourishing the lawyer’s soul, even in these challenging times. As Louis Brandeis put it himself: “The great opportunity of the American Bar is and will be to stand again as it did in the past, ready to protect also the interests of the people.”. Luban, supra, at 721 (quoting Louis Brandeis, “The Opportunity in the Law,” Business—A Profession 315, 321 (1914)).