Junior Attorneys Argue Post-Trial Briefing Before Judge Kronstadt

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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

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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.

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

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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