Cicoski and Noa Author Article on Push for Trial Experience for New Attorneys

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In “Recent Order Highlights Push for Trial Experience for New Attorneys,” an article published in Delaware Business Court Insider, associates Ryan Cicoski and Jesse Noa highlight a 2017 standing order in the context of an uptick in federal judges encouraging the participation of newer attorneys at trial.

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Recent Order Highlights Push for Trial Experience for New Attorneys

A 2017 standing order from U.S. Magistrate Judge Christopher Burke of the District of Delaware is part of an uptick in federal judges encouraging the participation of newer attorneys at trial.

"Who will try the technology cases of the future, when so few opportunities to develop courtroom skills appear? It is difficult to imagine handing entire intellectual property trials to a generation that never had the chance to develop those skills in more limited settings," U.S. Magistrate Judge Paul S. Grewal wrote in GSI Technologies v. United Memories.

Although civil trials of all kinds are by no means extinct, they are becoming increasingly difficult to find. In fiscal year 2016, Delaware's Superior Court disposed of 4,057 civil complaints. However, the number of complaints resolved by trial was merely 43, or about 1 percent of all complaints filed. In the U.S. District Court for the District of Delaware, the numbers are similarly small: from March 2015 to March 2016 only 47 out of 1,465 civil cases were resolved by trial.

As a result, many newer attorneys now spend their formative years filing motions, writing briefs, and, in some cases, deposing witnesses without ever arguing at a hearing or seeing any of their cases reach trial. Even in the rare instance where a case actually does go to trial, newer attorneys are not always afforded the opportunity to participate or even attend it.

This has the unintended consequence of diminishing the courtroom experience of senior associates and even some partners. Many organizations and initiatives have moved to fill that knowledge gap. The American Inns of Court, for example, is dedicated to helping newer attorneys learn from senior members of the bar. There are also numerous CLE offerings, state and federal litigation sections of the bar, and, in Delaware, the Superior Court's Vincent A. Bifferato Trial Practice Forum and the District Court's Federal Civil Panel and Federal Trial Practice Seminar.

All of these opportunities, however beneficial, are no substitute for the crucible of oral argument. And that is where the federal judiciary has stepped in.

Compelling and Encouraging Newer Attorney Participation

Federal district court judges across the country have entered a variety of orders designed to encourage—and in some instances, compel—the participation of newer attorneys at trial.

U.S. District Judge Lucy H. Koh of the Northern District of California entered an order in one case mandating that attorneys with fewer than five, seven and nine years' experience out of law school argue each of three outstanding motions in limine at a pretrial conference. In another, Grewal entered an order expressing his expectation "that each party will allow associates to present its arguments" on at least two of six scheduled post-trial motions. In a response illustrating the difficulties associated with that approach, the litigants in Grewal's case jointly stipulated to submit all of their post-trial motions on the papers and without oral argument.

Other federal judges have adopted more aspirational policies and standing orders to bolster the participation of relatively inexperienced attorneys. For instance, U.S. District Judge Denise Casper of District of Massachusetts' standing order "strongly encourages the participation of relatively inexperienced attorneys in all court proceedings." More expressive are U.S. District Judge William Alsup of the Northern District of California's Trial and Final Pretrial Conference Guidelines, which "encourage lead counsel to permit young lawyers to examine witnesses at trial and to have an important role. 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."

Magistrate Judge Burke's Jan. 23 Standing Order

Burke has championed newer attorney participation in the federal courts for years, so it comes as no surprise that he would be the first judge to issue a standing order regarding courtroom opportunities for newer attorneys in Delaware. The standing order adopts a hybrid approach that incentivizes newer attorney participation without compelling it. It does so through a creative approach that turns the court's increasingly heavy docket—see "And Then There Were Three: Del.'s Judge Robinson Set to Retire" by Alan R. Silverstein and Stephanie E. O'Byrne, published March 22 in Delaware Business Court Insider—into a source of strength.

As Delaware federal practitioners know well, oral argument on any motion is not granted as a matter of course in Delaware's District Court (D. Del. LR 7.1.4). The standing order takes advantage of that circumstance. It provides that if one party alerts the Court that an attorney practicing for less than seven years will argue the motion (or a portion thereof), the court will:

• Grant the request for oral argument if it is at all practicable to do so.
• Strongly consider allocating additional time for oral argument beyond what the court may otherwise have allocated.
• Permit other more experienced counsel of record the ability to provide some assistance to the newer attorney arguing the motion where appropriate.

The standing order also addresses some of the concerns associated with court orders mandating the participation of newer attorneys in arguing motions or at trial. It recognizes that there are "many different circumstances" in which it may not be appropriate for a newer attorney to argue a motion, and emphasizes that Burke will draw no inference from a party's decision to have—or not have—a newer attorney argue a given motion.

Takeaways and Strategic Considerations

The standing order is only issued where Burke has jurisdiction over a case for all purposes or through the consent of the parties, including matters now assigned to Burke through the vacant judgeship docket. Because the standing order was only issued on Jan. 23, 2017, there is no data yet available to gauge its impact on pending litigation. With that said, here are a few preliminary considerations to keep in mind in cases where the standing order has been entered.

First, consider applying under the standing order as a method of securing oral argument on routine motions that infrequently receive it. This opportunity may convince a hesitant client to allow a talented but newer attorney to argue a motion that otherwise would have been decided on the papers.

Second, if opposing counsel's request for oral argument is granted under the standing order, that circumstance does not compel you to send a newer attorney to argue as well: it remains perfectly acceptable and appropriate for a senior practitioner to argue the opposite position.

While that disparity may generate client concerns about one side receiving an unfair advantage at argument, the Standing Order levels the playing field by affording counsel extra time and permitting more experienced counsel to provide assistance to the newer attorney where appropriate.

Finally, no standing order is required to offer a junior colleague the benefit of arguing a motion or examining a witness at trial. Burke notes that in interviewing candidates for the Delaware district court's federal trial practice seminar, he has learned that several attorneys with up to eight years' experience in law firm litigation departments have never argued a single motion, of any kind, in any court. Consider whether you might be in a position to change that.

This article first appeared in the Delaware Business Court Insider.

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