Next Generation, Zealousness or Happiness; Pick Your Poison

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.

24 thoughts on “Next Generation, Zealousness or Happiness; Pick Your Poison

  1. JD

    I remember fondly my first time before a judge. I had been admitted maybe three or four days. My boss prepped me, told me what to say, but I was nervous beyond belief. This was the real deal. I stood up, and trying not to shake, made my application. It was carefully laid out, my voice didn’t quiver too much.

    I waited for the judge to make his ruling.

    After pondering my request, the judge spoke. A wave of relief washed over me as I bagged my first success.

    “Adjournment granted on consent.”

    How times have changed.

  2. REvers

    Maybe he’s saying that he’s going to rule on the briefs in any case, but will let the baby lawyers come play if they want some experience.

    1. SHG Post author

      Maybe. Maybe not. What if the kid blows the oral arg and a winning argument on paper turns into a loser?

  3. JD

    That order almost begs the question as what the underlying case is about. Maybe the judge is a progressive enabler whose feels strongly about things. Or maybe the case is just a turd and is from the Pearson v. Chung universe, and the judge figured that at least something good could come out of it.

    I’ve seen people litigate over a toilet bowel. I don’t mean trial while barfing, I mean who gets the commode. Its was exactly like dog custody but totally different.

    But as to a one size fits all order like this? Even in a joke of a case, its a real bad idea for a judge to direct junior lawyers and barely lawyers to handle specific aspects. It all depends on the skill level of the baby lawyers. I know one attorney with less than five years of experience whom I’d trust to represent my own mother. I know many attorneys with twenty years or more experience whom I wouldn’t trust to defend my dog against the cat’s claim to ownership of the potty.

    PS. Your captcha sucks today. Since when did 3 x 8 not equal 24? I had to rely on in Re Fresh to post.

    1. SHG Post author

      One of the things that infuriates me is when someone conflates inexperience with incompetence. Please don’t do that.

  4. Erik H.

    This only happens because people don’t want to do the shit work first.

    Start doing some pro bono stuff in small claims: it may be small but it’s often interesting, and it isn’t small to the litigants.
    Go to district court. STATE district court.
    Take a family case or two–you want nasty trial experience, you’ll get it.
    Take a housing court case or two–if you don’t know the law you’ll get eaten alive and it’s surprisingly technical.

    And so on. (I don’t know much about criminal law. But in my jurisdiction it certainly seems as if you can get training if you’re willing to do some low-bono or pro-bono defense.)

    The idea that federal judges would extend motion practice just to help the law-babies of the world get experience is ridiculous. If you want experience there’s plenty out there. And why should they get treated any differently?

    Now if you’ll excuse me, I’m off to small claims to help a poor soul defend a frivolous lawsuit.

  5. wilbur

    Respectfully, the judge needs to mind his own business. How you litigate a case is your business. What could be more obvious?

    And what’s with the “five page plan”? Five? Why not seven? Or one?

    What consequences would there be for a response of “I am trying this case and litigating all motions and other business therein. No other firm members or associates will be doing so.”?

    1. SHG Post author

      Excellent questions. Does it really take five pages to respond to the judge, “not happening,” and would that have consequences?

      1. Scott Jacobs

        Probably best to take a few pages to say how awesome the judge’s idea is before you say “but there’s no way on God’s Green Creation we’re doing that, because we actually want to win.”

        1. SHG Post author

          As DRF wrote, telling a federal judge “there’s no way” you’re going to do what he wants is risk few want to take. Especially if they want to win.

  6. JD

    I know you hatez the linkz so I won’t post it, but a google fu on this case seems to support its one of those special ones.

    From another decision in the case by the same judge …

    In this antitrust action, a set of markets in Florida is suing all of the major credit card companies and major banks in America

    … Bugaboo …

    The motion seeks to enjoin — nationwide — implementation of the Liability Shift on a class basis. In reviewing the file, the Court is of the view that the pending motion is so deficient that it would be a monumental waste of resources to require the eighteen defendants to respond and oppose the motion.

    The motion is unsupported by any sworn record beyond two declarations, each one and a half pages long. One is by a cashier at Grove Liquors

    Where a motion is so plainly deficient, it is best to stop it in its tracks and avoid imposing wasteful expense on the other side. Plaintiffs’ complaint, motion, and record have been fully reviewed by the judge and the motion is indeed plainly deficient.

    Now, a word to all defendants: Please do not pursue any Rule 12 motion based upon documents for which you will seek judicial notice. Almost always, as the defense bar usually presents them, these are ill-advised, improper, and a waste of resources. These should be brought only on a Rule 56 summary judgment motion, perhaps an early one but nevertheless as a summary judgment motion.

    1. SHG Post author

      Not that I hate links, I don’t allow them. That said, this is one case amongst many others. Care to revisit all the cases from all the federal judges nationwide involved in this effort, rather than the one case from which one of many orders derives? (I’m nicely trying to tell you not to be a myopic idiot. Please don’t make me spell it out. Please don’t be like every other flaming fruitcake who is too fucking stupid to distinguish an example from the overarching issue [see, e.g., airline nutjob]. Please.)

  7. JD

    I missed the part of the order about it being part of a nationwide effort.

    It struck me as an outlier, and not a representative sample.

      1. JD

        You make it sound like missing an important part of your post is like missing an important part of your post.

        1. SHG Post author

          Funny thing is, it doesn’t surprise me at all that people skim over parts. I know I do. But then, if you’re going to comment, you need to make sure there’s nothing in there that answers the question. That’s the part I don’t get.

  8. DRF

    You’re right on all fronts. Young lawyers need chances to step up. Judge Alsup should write that in articles, preach it at bar association meetings and post it on his blog (which he should feel free to start). But a judicial order isn’t the place for him to force that agenda (pig in the parlor and all of that). I suspect the judge knows that, and that he knows that the nature of the process is such that the recipient of the order wouldn’t risk his ire by taking an appeal or ignoring the order.

  9. AE

    Is the part about advising if client representatives are required, some hedge against what might happen if the client says no?

    1. SHG Post author

      Probably. That or force any complaining client (whether about quality of representation or paying for some kids to learn to be a lawyer) before the court to acquiesce to the judge’s will.

  10. Tom H

    If I was weighing plea or trial in Judge Alsup’s court, would I be wrong to consider his order to use a new lawyer at some point in a trial? If I lost my case would I have a decent shot at appeal because of his order and could that tip my decision?

    1. SHG Post author

      “Nothing in this blog constitutes legal advice. This is free. Legal advice you have to pay for.”

Comments are closed.