Magistrate Judge K. Nicole Mitchell was an early adopter in the judicial effort to get junior advocates time at the podium. In early 2016, Judge Mitchell set out a procedure for Markman hearings where a party would receive additional time to argue any claim term that would otherwise be decided on the briefs, if the claim term dispute was argued by an attorney with seven or fewer years of experience.
In 2017, Judge Mitchell tweaked the standard language in the Order setting forth the protocol for Next Gen advocacy at Markman hearings, to clarify that the Court will allow multiple attorneys to speak on the issue, if necessary. The Order also encourages the speaking role of a junior advocate where that attorney has taken “an active role in preparing the brief.” The revised Order is now posted on NextGenLawyers.com here.
The language added to Judge Mitchell’s revised Next Gen Order is significant because it provides more senior attorneys with concrete assurances to a client as to why it makes perfect sense to give the junior advocate a chance at the podium in front of this Court. First, the Court is signaling (loud and clear) that it embraces and encourages the active participation of the attorney who prepared the briefing – regardless of that attorney’s level of experience arguing in Court. Second, the Court is giving the litigant an opportunity for additional time to present its position that it might not otherwise have. Third, the Court is implicitly assuring clients that should the junior advocate make a representation that is inconsistent with the overall strategy or be asked a question that they do not have an answer for – the more senior members of the team will have the opportunity to swoop in and answer the Court’s questions. Given these assurances, there are few downsides for a client in endorsing a junior advocate to argue their company’s position. This will necessarily lead to situations where the junior advocate will do an excellent job presenting the argument and thereafter the client will have no concerns letting that person argue at the next hearing or on the next case. The junior attorney will have advanced his or her client’s interests, deepened the personal relationship with that client and honed an important skillset. These types of growth opportunities can assist the Court, the client, and the up and coming advocate.
Judge Mitchell’s courtroom is a positive setting for attorneys at various levels (including senior associates and junior partners) to comfortably engage with the Court. I recently tried a case in Tyler where Judge Mitchell handled all three of our Pre-Trial Conferences. The issues of motions in limine, exhibit objections, and objections to deposition designations were almost exclusively argued by a cohort of attorneys who had been practicing for ten years or less. By the time of the third Pre-Trial Conference, the more senior partners on our team were sitting in the gallery – content that the younger team members sitting at counsel table had everything in hand. Judge Mitchell appeared to appreciate hearing from the team members who were most familiar with the documents and designated testimony. And the “Next Gen” cohort (myself included) appreciated the opportunity to showcase oral advocacy skills in front of the client representatives when the stakes were high.
Written by: Natalie A. Bennett, McDermott Will & Emery LLP
January 2, 2018