Ninth Circuit Judicial Conference

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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

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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

Judge Barbara M. G. Lynn (N.D. Tex.) Standard Patent Scheduling Order

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Judge Lynn makes the following part of her standard patent scheduling order:

11. The Court is aware of a trend today in which fewer cases go to trial, and in which there are generally fewer speaking or “stand-up” opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the Court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing. The Court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate – such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a “bet-the-company” type case. Even so, the Court believes 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. Thus, the Court encourages all lawyers practicing before it to keep this goal in mind.

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

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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

Judge Paul Grewal’s Response in GSI when Parties Declined to Allow Junior Lawyers to Argue — March 11, 2016

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Last Wednesday, in the GSI Tech., Inc. v. Untied Memories, Inc. case, No. 5:13-cv-01081, Judge Paul Grewal of the Northern District of California noted to the parties before him that the need for trial counsel to provide opportunities for junior lawyers, stating “who will try the technology cases of the future, when so few opportunities to develop courtroom skills appear.”  In response to the Judge encouraging the parties to allow associates to present argument on at least two of the six post-trial motions, the parties decided instead to stipulate to take all motions off calendar and submit them without any hearing. On Friday, Judge Grewal responded by issuing the following order:

The day before last, I expressed my concerns about the lack of courtroom opportunities for law firm associates in intellectual property cases like this one.1 Recognizing the court’s own important role in encouraging clients and partners to give up the podium once in a while, I asked that each party give associates the chance to argue just two of six motions set for hearing on Monday.2

This morning, the parties and their counsel responded. But rather than confirm their commitment to this exercise, the parties jointly stipulated simply to take all motions off calendar and submit them without any hearing.3 No explanation was given; perhaps associate preparation and travel costs were the issue. In any event, once again, another big intellectual property case will come and go, and the associates who toil on it will largely do so without ever being heard.

I appreciate that my order acknowledged the possibility that the parties would decline this opportunity and simply submit their motions on the papers.4 But I would be remiss if I did not observe the irony of another missed opportunity to invest in our profession’s future when two of the motions originally noticed for hearing seek massive fees and costs.5 To be clear, GSI asks for $6,810,686.69 in attorney’s fees, $1,828,553.07 in non-taxable costs6 and $337,300.86 in taxable costs,7 while UMI asks for $6,694,562 in attorney’s fees, $648,166 in expenses8 and $302,579.70 in taxable costs.9 That a few more dollars could not be spent is disappointing to me. My disappointment, however, is unlikely to compare to the disappointment of the associates, who were deprived yet again of an opportunity to argue in court.

Both of Judge Grewal’s orders are posted under the Judicial Orders Promoting Next Gen portion of this website.

Written by: Kathi Vidal, March 11, 2016

“Judge Paul Grewal’s GSI Order Encouraging Junior Lawyers to Argue” – March 9, 2016

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Today, on March 9, Circuit Judge Jimmie Reyna joined the ChIPs Next Gen Committee and Judge Paul Grewal from the Northern District of California issued the following Order in the GSI Technology Inc. v. United Memories, Inc. case (Case No. 5:13-cv-01081-PSG). Read more