Archive for year: 2017

U.S. District Judge Barbara Lynn, the Chief Judge of the U.S. District Court for the Northern District of Texas, is a pioneer in incentivizing law firms to give oral advocacy opportunities to young lawyers. Around 10 years ago, Judge Lynn issued an order “strongly [encouraging] litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court.” Judge Lynn’s order noted that, in deciding whether to hold a hearing on a particular issue, “a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing.” Since then, 20 to 30 judges have followed Judge Lynn’s example and issued similar orders encouraging oral advocacy opportunities for young lawyers. Judge Lynn recently discussed her observations about the effects of her order in an interview with the Texas Lawyer.

Judge Lynn notes that she has observed a significant number of oral advocacy opportunities given to young lawyers, although the frequency of this is “slightly less than [she] would have thought.” She thinks her order provides an excuse to firms “to do what they think is the right thing” and a reason they can offer to clients to justify giving young lawyers oral advocacy opportunities. As Judge Lynn points out, “[a] lawyer can say to a client, ‘Judge Lynn really likes it when young lawyers show up. We are not going to win or lose because of that, but she is going to appreciate it and it’s a good frame of mind for her be in.’”

Even though the order emphasizes experience level of attorneys, Judge Lynn has observed that the order has also led to greater oral advocacy opportunities for women and minority attorneys. This is mainly due to the fact that women and minority attorneys are underrepresented among more experienced attorneys. As Judge Lynn points out, in the absence of the incentives provided by her order, “the default is to senior lawyers, and the more senior lawyers are more white and male.”

The story of a recent oral argument by Mini Kapoor, an associate at Haynes and Boone’s Huston office, shows the effectiveness of the type of “young lawyers” orders that Judge Lynn has pioneered. Kapoor argued at a motion hearing before U.S. District Judge Alfred H. Bennett of the Southern District of Texas on June 29, 2017. Haynes and Boone’s request for a hearing, authored by Huston office partner Michael Mazzone, noted that Kapoor will be arguing at the hearing, that she had “contributed significantly” to the motion being argued, and that she had “been practicing for less than seven years.” Judge Bennett, who had adopted a “young lawyers” order within six months after he went on the federal bench in April 2015, scheduled the hearing, as he says he “automatically” does in cases where he expects a young lawyer will be arguing. Judge Bennett’s order helped Mazzone obtain the client’s consent to the idea of having Kapoor argue in the hearing. As a result, Kapoor got the chance to argue before Judge Bennett and gain valuable experience from that opportunity.

How have young lawyers performed when given oral advocacy opportunities? Judge Lynn notes that young lawyers “work extremely hard because they appreciate these opportunities are precious and few and far between, so they are generally very well-prepared.” Judge Lynn has tried to incentivize young lawyers to perform better by making “it clear from the get-go: There is not any coddling. They are playing in the big leagues and they are expected to hit the ball.”

Over time, more and more judges are encouraging their colleagues to adopt “young lawyers” orders and help young lawyers gain more speaking opportunities. For example, Judge Bennett got the idea for his order from U.S. Circuit Court Judge Gregg Costa of the U.S. Court of Appeals for the Fifth Circuit who was formerly a colleague of Bennett at the U.S. District Court for the Southern District of Texas. Costa, in turn, got the idea for his order from Judge Lynn. At this point, at least four judges in the Southern District have adopted “young lawyers” orders.

Judge Lynn said she hopes that, as young lawyers get more oral advocacy opportunities, they will have an easier time advancing in law firms. “These speaking opportunities should be very important to law firms in making someone a partner in the trial section,” Judge Lynn points out. If Judge Lynn is right, her efforts and the efforts of other judges who have followed her example can have an important effect on fostering professional development among young lawyers as well as on increasing diversity in legal profession.

Written by: Pooya Shoghi and Noori Torabi, August 21, 2017

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

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