Fourth Year Associate Argues at Claim Construction Hearing in Minnesota District Court

On March 1, 2017, Mathias Samuel of Fish & Richardson filed a notice that a junior attorney would be arguing at an upcoming hearing—this time, before Judge Nelson in Minnesota District Court. The notice explained that Conrad Gosen, a fourth year associate, would be arguing the construction of several contested terms related to technology for electrical generators and motors in an upcoming Markman hearing. On March 10, 2017, the hearing took place and Mr. Gosen argued along two Fish & Richardson partners, Mathias Samuel and Rob Courtney.

Explaining his experience, Mr. Gosen said “I am very grateful for the opportunity to have argued several claim terms for our client during a recent claim construction hearing. Newer lawyers often struggle to get any ‘on your feet’ experience arguing in court, and so the opportunity to represent my client before the judge not just at a hearing, but at one of the most critical junctures of a patent case was a very rewarding experience.”

Similar notices have been filed by other Fish & Richardson principals creating opportunities for junior lawyers to argue in court, including in cases before Judge Koh and Judge Kronstadt in the Northern and Central Districts of California. The notice in this case was given in a letter, which is reproduced below and can be cribbed from and improved upon as a model.

Dear Judge Nelson:

On March 10, 2017 at 1:00 p.m., this court has scheduled argument on the parties’ claim
construction briefing in this case. As a number of courts have recognized “in today’s practice of
law, fewer cases go to trial and there are generally fewer speaking opportunities in court,
particularly for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Order, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016); http://chipsnetwork.org/wpcontent/
uploads/2016/02/Judicial-Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com
(judicial orders). As such, a number of courts “strongly encourage[] the parties to be mindful of
opportunities for young lawyers to argue in front of the Court, particularly for motions where the
young lawyer drafted or contributed significantly to the underlying motion or response.” See,
e.g., id.

Cutsforth believes the upcoming claim construction hearing affords such an opportunity and
respectfully notifies the Court that it intends to have fourth year associate Conrad A. Gosen
argue for certain contested terms at the upcoming claim construction hearing. Mr. Gosen has
been deeply involved in the case for several years. Other lawyers for Cutsforth will argue the
remaining terms. Cutsforth does not believe this division of the argument between Cutsforth’s
various counsel will unduly complicate the proceedings, and it will not require any additional
time beyond what the Court has already allotted for the hearing.

Written by: Dalia Kothari, April 5, 2017

Junior Attorneys Argue Post-Trial Briefing Before Judge Kronstadt

Junior Attorneys Argue Post-Trial Briefing Before Judge Kronstadt

On March 6, 2017, second year associate, Oliver Richards, and seventh year associate, Joanna Fuller, argued post-trial motions before Judge Kronstadt in the Central District of California. The case began in 2013 when CH2O, a water treatment company, sued competitor Meras Engineering for infringing ITS patent on environmentally-friendly technology to clean and re-use water. CH2O later added Houweling’s (a large hydroponic farming operation with facilities in the U.S. and Canada) as a defendant. Houweling’s had switched its water treatment supplier from CH2O to Meras, and the two defendants were infringing CH2O’s patent. The case was tried in two sessions over the summer of 2016 and resulted in a verdict in CH2O’s favor. The court scheduled a hearing on post-trial motions, including motions to set aside the jury’s verdict and for new trial, for March 6, 2017.

As a part of continuing efforts to provide junior attorneys with opportunities to gain experience in the courtroom, Fish & Richardson filed an advance “Notice of Argument by Junior Attorneys” informing the Court that it intended to have Ms. Fuller and Mr. Richards argue at the hearing.

Before oral argument began, Judge Kronstadt acknowledged the filing and told Fish Principals Chris Marchese and Andrew Kopsidas that he would permit them to sidebar with the junior attorneys during the hearing if necessary. Ms. Fuller and Mr. Richards addressed several post-trial motions, including motions for injunctive relief and for supplemental damages and prejudgment interest. Mr. Richards was primarily responsible for drafting the post-trial briefs, and Ms. Fuller had been a member of the trial team. Thus, both associates were deeply familiar with the issues and record.

Mr. Richards, who clerked for Judge Dyk in the Federal Circuit before joining Fish & Richardson, commented, “I have watched hundreds of oral arguments as a clerk and I never thought I would have an opportunity to do on-my-feet lawyering so early in my career.”  “It was an enormously positive experience, I look forward to future opportunities to do it again.”

CH2O, INC.’S NOTICE OF ARGUMENT BY JUNIOR ATTORNEYS
Case No. CV-13-8418 JAK (GJSx)

Counsel for Plaintiff CH2O writes to inform the Court that Plaintiff intends to
have two junior lawyers argue some of the post-trial motions to be argued at the March
6 hearing scheduled in this matter.

As a number of courts have recognized, “in today’s practice of law, fewer cases
go to trial and there are generally fewer speaking opportunities in court, particularly
for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016) (available at
http://nextgenlawyers.com/files/Judge-K-Nicole-Mitchel-EDTX-Order-
Jan2016.pdf); see also http://chipsnetwork.org/wp-content/uploads/2016/02/Judicial-
Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com (judicial orders). As
former Judge Grewal of the Northern District of California recognized, this trend
raises a serious question: “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.” GSI Tech., Inc. v. United Memories,
Inc., Case No. 5:13-cv-01081-PSG, Order Re: Oral Argument (N.D. Cal. Mar. 9,
2016) (ECF No. 1112) (available at http://nextgenlawyers.com/files/GSI-V-United-
Memories.pdf).

Fish & Richardson is a proud leader of the Next Gen Committee, dedicated to
creating opportunities for junior lawyers to develop their “stand up” skills. A number
of courts now encourage parties to be mindful of opportunities for young lawyers to
argue in court. E.g., Scheduling Order Specifying Procedures (Guilford, J.) (“The
Court strongly encourages the parties to give young associate lawyers the chance to
examine witnesses and fully participate in trial (and throughout the litigation!).”);
Guidelines for Final Pretrial Conference in Bench Trials Before District Judge Lucy
H. Koh ¶ G (Jan. 3, 2011); Standing Order Regarding Courtroom Opportunities For Relatively Inexperienced Attorneys (Talwani, J.) (D. Mass. Oct. 9, 2015) (all available at http://nextgenlawyers.com/).

Plaintiffs respectfully notify the Court that they intend to have second year
associate Oliver Richards and seventh year associate Joanna Fuller argue certain
motions at the upcoming hearing for post-trial motions. Mr. Richards was the primary
drafter of the post-trial briefs and is intimately familiar with the issues and the record
in this case. Ms. Fuller was a member of CH2O’s trial team and has been involved in
all aspects of this case since nearly the beginning.

Given the importance of the issues to be argued, Plaintiffs respectfully request
that more experienced counsel be able to assist in the arguments should the need arise.

Written by: Dalia Kothari, April 6, 2017

Judge Burke issued the first Next Gen Order to come out of the court

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.

Order:

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.

Judge Alsup renewed his plea for parties to allow junior attorneys to participate in oral arguments

Friday August 12, Judge Alsup renewed his plea for parties to allow junior attorneys to participate in oral arguments and gain courtroom experience. His admonition came in the midst of a heated battle between Oracle and Google as counsel argued whether or not Oracle’s Java code can be copyrighted. A jury trial in May resulted in a verdict in Google’s favor and both parties filed post-trial motions.

With multiple post-trial hearings slated in the case – including a hearing on Oracle’s motions for judgment as a matter of law and Google’s motion for sanctions and civil contempt – come multiple opportunities for junior attorneys to take the floor. Judge Alsup targeted his invitation toward attorneys at the junior associate level, where representation of women and minorities is typically the strongest.[i] “The court will particularly welcome any lawyer with four or fewer years of experience to argue the upcoming motions,” wrote Judge Alsup.  The invitation was extended in harmony with Judge Alsup’s regular practice of sending such a notice to parties the week preceding every civil motion hearing before him.[ii]

[i] “Women and Minorities in Law Firms by Race and Ethnicities – an Update”; NALP Bulletin, February 2014.

[ii] http://nextgenlawyers.com/wp-content/uploads/2013/04/Judicial-Orders-re-Next-Gen-6-13-16.pdf

Written by: Emily Petersen Garff, August 16, 2016

Ninth Circuit Judicial Conference

Litigation is not what it used to be. The vast majority of lawsuits tend to settle rather than go to trial, due in part to high cost and the rise of alternative dispute resolution. This “vanishing trial” trend, first coined by Professor Marc Galanter in 2003,[1] means less than 1% of civil cases filed in the United States District Court system actually go to trial.[2]

Because trials are now relatively rare events, they are typically high stakes affairs reserved for the most experienced lawyers. This new practice is perpetuated by firms, and their clients, who are reticent to use a “bet-the-company” case as a teachable moment for junior lawyers. While practical, this approach stunts the growth of junior attorneys—often times delaying their exposure to courtroom oral advocacy by many years. Ultimately, this reduces the overall caliber of trial lawyers.

In response, at least 17 federal district court judges have made steps to remedy this problem.[3] Using the judicial version of a bully pulpit, they have issued standing orders that strongly encourage the active participation of junior lawyers in their courtrooms. For example, some suggest that litigants allow junior lawyers to argue motions and examine witnesses. Others offer incentives, such as the possibility of holding an oral argument on motions that would otherwise be decided on the papers if argued by a junior lawyer. All acknowledge the current dearth of junior lawyers appearing before them.

For the first time, an entire Circuit will be considering a resolution that promotes orders encouraging parties to allow argument by junior lawyers. Appellate lawyers representatives of the Ninth Circuit Judicial Conference plan to introduce a resolution next month that will “encourage judges and districts within the Ninth Circuit to adopt rules and orders which support the creation of opportunities for newer lawyers by rule and order.”[4]  The resolution can be found here.

This is an exciting time to be a junior lawyer. Hopefully other judges will soon join “the court[s] [that] believe[] it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally.”[5]

For detailed information about current judicial orders that promote the next generation of lawyers, stay tuned to this webpage, http://nextgenlawyers.com.

[1] Marc Galanter, The Vanishing Trial:  An Examination of Trials and Related Matters in Federal and State Courts, 1 J. of Empirical Legal Studies 459 (2004), http://marcgalanter.net/Documents/papers/thevanishingtrial.pdf.

[2] Marc Galanter and Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Institute 1,4 (2011),http://www.poundinstitute.org/sites/default/files/docs/2011%20judges%20forum/2011%20Forum%20Galanter-Frozena%20Paper.pdf (“Civil jury trial rates have now been below 1.0% since 2005, while bench trials dropped below 1.0% seven years earlier, in 1998.”).

[3] Next Generation Lawyers, http://nextgenlawyers.com (last visited June 27, 2016).

[4] 2016 Resolution, Encourage the Creation of Opportunities for Newer Lawyers by Rule and Order.

[5] Judge Gregg J. Costa, Court Practices and Procedures, United States District Court Southern District of Texas 1, 3 (2015), http://www.txs.uscourts.gov/sites/txs/files/costa_procedures.pdf; Judge Gray H. Miller, Court Procedures, United States District Court Southern District of Texas 1,7 (2015), http://www.txs.uscourts.gov/sites/txs/files/procedures%20with%20att%20forms.pdf.

Written by: Sara Townsend, June 30, 2016

Notices of Argument by Junior Lawyers

Though Judicial Orders play a key role in creating opportunities for junior lawyers, trial lawyers can also initiate the discussion with the court. We have advocated for lawyers to raise the topic in case management conferences, pre-trial conferences and other conferences focused on how the case or trial will be managed. Even without a conference pending, notice can be given to the court via a “Notice of Argument by Junior Layers.” One such notice (which can be cribbed from and improved upon as a model) was filed recently by Fish & Richardson and the Law Foundation of Silicon Valley in a case before Judge Koh in the Northern District of California. The notice read:

On May 12, 2016 at 1:30 p.m., this court has scheduled argument on the parties’ cross motions for summary judgment. As a number of courts have recognized “in today’s practice of law, fewer cases go to trial and there are generally fewer speaking opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g., Secured Structures, LLC v. Alarm Security Group, LLC, Order, Civ. Act. No. 6:14-CV-930 (E.D. Tex., Mitchell, J., Jan. 22, 2016); http://chipsnetwork.org/wp-content/uploads/2016/02/Judicial-Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com (judicial orders).

A number of courts “strongly encourage[] the parties to be mindful of opportunities for young lawyers to argue in front of the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response.” See, e.g., id.

This Court has likewise encouraged parties to “permit less experienced lawyers” to have stand-up opportunities. See, e.g., Guidelines for Final Pretrial Conference in Bench Trials Before District Judge Lucy H. Koh  G (Jan. 3, 2011); Guidelines for Final Pretrial Conference in Jury Trials Before District Judge Lucy H. Koh G (Jan. 3, 2011).

Plaintiffs respectfully notify the Court that they intend to have first year associate Holly K. Victorson and second year associate Emily Petersen Garff argue the upcoming summary judgment motions. Ms. Victorson and Ms. Garff were the primary drafters of Plaintiffs’ briefing, and were involved in taking much of the discovery Plaintiffs relied upon in their motion. Given the gravity of the issue before this Court, Plaintiffs respectfully request that more experienced counsel be able to assist in the argument should the need arises.

Judge Koh responded in an Order, providing the questions she wanted addressed at the hearing and and encouraging Defendants to send a junior lawyer to argue their side of the motion:

Plaintiffs’ counsel has stated that two junior attorneys—a first year and second year associate—will argue at the May 12, 2016 motions hearing. In the interest of providing junior attorneys from both sides an opportunity for argument, the Court encourages Defendants to identify junior attorneys to argue at the motions hearing. However, after reviewing Defendants’ counsel website, the Court acknowledges that finding a first or second year associate to argue may not be feasible and that it may be necessary for Defendants’ counsel to be represented by a more experienced associate.

Defendants responded to Judge Koh’s order arguing their case through associate Helene Simvoulakis-Panos.

For a full article by Scott Graham at the Recorder, see here.

Many thanks to Fortune for reposting:

  • It pleases the court. Fish & Richardson partner Katherine Vidal has partnered with women’s networking organization ChIPs and the Federal Circuit Bar Association to launch Next Generation Lawyers, a website that compiles opportunities for young lawyers to get in-courtroom experience. The Recorder

and to the Federal Circuit Bar Association for reposting:

Join the leading edge. Good spirited and collaborative transition in the legal profession’s leadership is key to its continued health and service. Fashioning those approaches engages the bench, the bar, and the clients. Successful transition benefits the justice system through shared experience, opportunity, and growth. In this high-interest series, judges, litigators, and corporate counsel drill deeply into how all sectors of the justice delivery system are addressing this core need. Judicial roles and techniques, client interests (with respect both to the courtroom and to the board room), litigation skills and economics are among the contributing considerations. The Association is pleased to work with other organizations and firms in this outreach, including the key collaboration with ChiPs.

The accompanying May 24, 2016 article from “The Recorder” (distributed with permission) provides key insight into the professional significance of bridging this transition as well as one practical example from Fish & Richardson of how to construct courtroom opportunities. So far in 2016, Next Generation Series sessions have occurred in Plano, Texas; Santa Clara, California; and Chicago, Illinois. Related discussion occurred in a jointly sponsored FCBA/FBA session in Wilmington, Delaware. For district court orders encouraging Next Generation advocacy opportunities (generously compiled by CHiPs) see here.

Written by: Kathi Vidal, May 27, 2016

ABA REPORT “FIRST CHAIRS AT TRIAL: MORE WOMEN NEED SEATS AT THE TABLE” – MAY 3, 2016

In 2015, the ABA issued a report entitled First Chairs at Trial: More Women Need Seats at the Table.  The report used data from cases filed in the Northern District of Illinois in 2013, concluding that only 24% of the lead counsel across both civil and criminal cases were women (23% in intellectual property cases and 15% in contract cases).  The study also found that most litigation teams are all male:  67% of intellectual property cases and 70% percent of contract cases.   As relevant to the Next Gen initiate, the report concluded with Best Practices for Law Schools, Law Firms, Clients, Judges and Women Lawyers, noting:

Judges are also integral to the efforts to increase the number of female first-chair trial lawyers. Judges can be mindful of appointing experienced, qualified women lawyers as lead counsel, liaison counsel, or members of the steering committee in MDL class action cases.  Judicial appointments of women litigators as special  discovery or bankruptcy masters, trustees, or guardians ad litem can help increase the visibility and credibility of women lawyers, which will help them advance to equity partnership and develop as rainmakers.

In addition, a number of judges have sought to incentivize law firms to provide greater opportunities for courtroom experience to their women and minority associates. For example, certain judges around the country have made it a practice of allowing argument on motions that would otherwise not be heard, as long as the advocate will be the associate working on the case, rather than the partner.  (Page 16)

Written by: Kathi Vidal, May 3, 2016