Today, January 23, 2017, Judge Christopher J. Burke, United States Magistrate Judge for the United States District Court for the District of Delaware, issued the first Next Gen Order to come out of the court. The Order, repeated below, addresses concerns voiced by some in-house counsel and trial lawyers that negative inferences might be drawn from their choice of counsel to argue a motion. The order also notes that Judge Burke will permit more senior counsel to assist in the argument if appropriate.
The Court is cognizant of a growing trend in which fewer cases go to trial, and in which there are generally fewer opportunities in court for speaking or “stand-up” engagements. This is especially true for newer attorneys, that is, attorneys practicing for less than seven years (“newer attorney(s)”).
Recognizing the importance of the development of future generations of practitioners through courtroom opportunities, the undersigned Judge encourages the participation of newer attorneys in proceedings in my courtroom-particularly as to oral argument on motions where the newer attorney drafted or contributed significantly to the briefing for the motion.
To that end, the Court adopts the following procedures regarding oral argument as to pending motions:
After a motion is fully briefed, either as part of a Request for Oral Argument, or in a separate Notice filed thereafter, a party may alert the Court that, if argument is granted, it intends to have a newer attorney argue the motion (or a portion of the motion).
If such notice is provided, the Court will:
(A) Grant the request for oral argument on the motion, if is at all practicable to do so.
(B) Strongly consider allocating additional time for oral argument beyond what the Court may otherwise have allocated, were a newer attorney not arguing the motion.
(C) Permit other more experienced counsel of record the ability to provide some assistance to the newer attorney who is arguing the motion, where appropriate during oral argument.
All attorneys, including newer attorneys, will be held to the highest professional standards. Relatedly, all attorneys appearing in court are expected to be adequately prepared and thoroughly familiar with the factual record and the applicable law, and to have a degree of authority commensurate with the proceeding.
The Court also recognizes that there may be many different circumstances in which it is not appropriate for a newer attorney to argue a motion. Thus, the Court emphasizes that it draws no inference from a party’s decision not to have a newer attorney argue any particular motion before the Court.
Additionally, the Court will draw no inference about the importance of a particular motion, or the merits of a party’s argument regarding the motion, from the party’s decision to have (or not to have) a newer attorney argue the motion.