When I first read the order, I couldn’t quite wrap my head around it. It was one of those WTF moments.
Counsel will please keep in mind the need to provide arguments and courtroom experience to the next generation of practitioners. 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. This order requests by NOON ON APRIL 14, 2016, that each law firm representing a party herein submit a five page plan explaining how it intends, in this case, to provide opportunities for junior attorneys (who have graduated from law school within the past six years) to argue motions, take depositions, and examine witnesses at trial. The five page plans should please name specific associates and name the specific opportunities the law firms have in mind for them.
No preface of an application by a party seeking relief. No explanation at all. There it was, a federal judge, in this case William Alsup from the Northern District of California, issuing a case management order in an actual case that had nothing to do with the case, but with the “courtroom experience of the next generation of practitioners.” WTF?
It’s no secret that trials are dying. If you’ve never tried a case, it’s where litigators become trial lawyers, where baby lawyers become real lawyers. Where great lawyers earn their wings. Not every lawyer is cut out for trying cases, but this is where the gladiator proves his worth. For me, it’s cross examination. I love cross. Other lawyers love other parts of trial most, voir dire, summation, whatever, but trials are where the blood rushes to your head and where cheap talk of lawyering gets real. Very real. Very quickly. With no time to rest.
If you’re a trial lawyer, you love trying cases.
And with trials dying, there is a very real question of whether there will be a next generation of trial lawyers. Without trials, they will never hone their skills, never test their mettle, never get the experience needed to keep the working memory of Clarence Darrow to Johnnie Cochran alive.
Judges like Alsup realize this, and so they push senior lawyers to let baby lawyers wet their whistle, get some in-court time, argue, examine, engage in the skills of trial lawyers. So there may still be trial lawyers some day. So there will still be trials in the future.
Some may wonder, “what’s the big deal? Trials are all adversarial.” Almost everyone under 40 was reared on the “C” words, collaboration and compromise, as irrefutable virtues. Indoctrinated to the belief that adversarial proceedings breed “jerks,” that cooperation is always better than battle as it makes everyone happy. This is a lie perpetrated by the Twinkies of Law, for whom getting along is inherently more important than getting it right.
Without trials, there is no right and wrong. Innocent people go to prison. People and businesses give up their assets to buy peace and certainty for people who don’t deserve them. The rights protected in the Constitution becomes suggestions if nobody ever draws a line in the sand that says, “no more.” This is the world of compromise, where nothing matters enough to be worthy of a fight.
And when a lawyer stand up to address a jury, or an appellate panel, he’s alone. He may have a firm of 10,000 behind him, but there is no committee to agree upon the words that emit from his mouth. It’s one person, and only one person, against the system. Whether he wins or loses, it’s all him.
Some years ago, Dan Hull and I wrote an article on mentorship for the ABA Journal. They killed the piece at the last minute, and so it was never published. It was about raising the next gen of lawyers, about the need for good mentors, and the need for good mentees. It didn’t involve any shiny iToys, and so it died. Judge Alsup and others have taken up the cause.
Judges across the country are adapting their standard orders to encourage parties and firms to give young lawyers speaking roles at trial and in hearings. Judge William Alsup of the Northern District of California has led the charge, writing that he “strongly encourage[s] lead counsel to permit young lawyers to examine witnesses at trial and to have an important role,” He has even gone so far as to state that he will grant hearings on motions “[i]f a written request for oral argument is filed … stating that a lawyer of four or fewer years out of law school will conduct the oral argument or at least the lion’s share.”
The death of trials (and by that, I include oral argument, evidentiary hearings, and the ancillary in-court stuff that makes lawyers lawyers) will spell the end of lawyers having the capacity to hone the skills needed to perform a critical facet of their representation. That some judges won’t let that happen without a fight is understandable and commendable.
But there is a countervailing consideration, and Judge Alsup’s order betrays that part of lawyering in the process. While we may have a duty to raise and teach the next generation of lawyers, we have a higher duty to zealously represent our clients. Given the option of having the better lawyer examine a witness, close, argue, we cannot let the kid do it in our stead if it means sacrificing our client’s best interest. We can’t sell out the client for the sake of the next generation of lawyers.
When a judge conditions a grant of a hearing on counsel putting a “lawyer of four or fewer years out of law school will conduct the oral argument,” that’s great for the baby lawyer, but wrong for the client and, sadly, the integrity of the court. A judge’s grant of a hearing (or any other grant, for that matter) should be based upon the law, not the age of the person in the lawyer suit. It’s the client who deserves the hearing, not the kid. It’s the client who deserves our zealous representation, and no matter how much we want to raise baby right, we can never forget that the client comes before junior.
It’s not that n00b lawyers should be neglected, as there are myriad opportunities to let them have court time, to argue, to examine and cross-examine witnesses, all without sacrificing the client’s interest in the slightest. Oh wait. That’s true only if there are still trials, still battles over right and wrong, rights and wrongs, still people who refuse to accept the notion that compromise and collaboration are always better because they make lawyers feel happier, less stressed over being expected to do the job for which they exist.