Perspective of a Junior Associate: How Pro Bono Work Enhances Practice

For two-and-a-half years, I had the unique opportunity to work with a team of junior associates and partners on a Section 1983 pro bono case in the Northern District of California. Our client alleged he was falsely arrested in 2016 on an accessory-to-murder charge and spent three-and-a-half months in jail for a crime he did not commit. The defendant, a seasoned Walnut Creek Police Department detective, represented to a judicial officer that he had GPS data showing our client and the murder suspect’s phone GPS locations mirroring each other. After reviewing the case file, it became obvious that he did not have GPS data, only cell site location data, a much-less-accurate form of location information.

As a junior associate with no expertise in cell site analysis, I was tasked to challenge a digital forensics expert with over 15 years of experience on his conclusions made during my client’s investigation. Unlike mock depositions, this was a real case, involving real people, with real potential consequences. I learned how to prepare for a deposition both substantively and logistically, use exhibits, think quickly on my feet, and actively listen to a deponent’s responses. But the most valuable lesson came from a mid-level associate who coached me to purposefully pause, think, and reframe in order to maintain my composure and confidence so I could craft better questions and elicit better responses from my deponent.

A year later, the defendant detective moved for summary judgment. With two weeks to prepare, the partners entrusted me and three other junior associates to write the opposition to the motion, a task we had little experience with. After several rounds of edits and guidance from the partners, we filed an opposition brief we were proud of. The partners then let us know that we would also be arguing this motion before Judge Gonzales Rogers. None of us had ever argued a motion in federal court before, or any court for that matter, but I realized how fortunate I was as a junior attorney to have the opportunity to argue a motion I drafted in federal court. Getting on my feet and arguing before a judge was an invaluable experience.

Finally, as third-year associates, our pro bono case was going to trial. Looking back, I learned more in the months preparing for trial and during the trial than I could have imagined. I directly examined and defended a key witness, our client’s fiancée, and gained understanding of our client’s experience and the impact the arrest and subsequent incarceration had on him and his family. The partners taught me and my teammates how to prepare for a trialsetting up a war room, immersing ourselves in filings, and learning all the case details no matter how small.

Overall, I feel lucky to have had substantive learning experiences at the beginning of my career. If you had told me, during my first year of law school, that I would be taking depositions and speaking before a court during my first three years of practice, I wouldn’t have believed you. My advice to the incoming classes of associates would be to get involved in a pro bono case where you can write motions, defend depositions, or argue in court, because there is no substitute for hands-on, practical experience.

Written by Janelle Li-A-Ping, Associate Winston & Strawn, LLP

Statement Regarding Courtroom Opportunities For Newer Lawyers

Courtroom opportunities for relatively new attorneys, particularly those who practice at larger firms or in more complex areas of the law, can be hard to come by.

I encourage the active participation of such attorneys in all court proceedings. Based on my experience, these newer lawyers are more than up to the task, and they can effectively handle not only relatively routine matters (such as discovery motions), but also more complex matters (such as motions for summary judgment, evidentiary hearings, or the examination of witnesses at trial).

In an effort to increase advocacy opportunities for newer lawyers, I will relax the usual requirement that only a single lawyer may present an argument, and will allow a more experienced lawyer to “back up” a newer lawyer in the examination of witnesses so long as doing so will not unduly prolong the proceeding, not prejudice the opposing party, and not result in undue “double dipping”. Newer lawyers who actively participate in evidentiary hearings, including examining a witness at trial, should be accompanied and supervised by a more experienced attorney. The Court will regulate the proceedings to make sure that in the end, all sides of an issue get a fair shake.

Of course, all lawyers are expected to meet _the high professional standards emblematic of our Court. Attorneys appearing in court are expected to be appropriately prepared, regardless of experience. For example, an attorney who is arguing a motion for summary judgment is expected to be thoroughly familiar with the factual record and the applicable law. In short, all lawyers should know and understand the “rules of the road”.

I would ask that all attorneys appearing in court have a degree of authority commensurate with the proceeding that they are assigned to handle. For example, an attorney appearing at a scheduling conference ordinarily must have the full authority to propose and agree to a discovery or trial schedule and any other matters reasonably likely to arise at the conference, to address and argue any then-pending motion, and to discuss the status of any settlement discussions.

I have implemented this approach for more than five years, and have been uniformly impressed with exceptional in-court presentations by newer lawyers. Our more experienced lawyers are encouraged to engage their newer colleagues in advocacy opportunities in our Court. I believe that they will be inspired and energized by doing so, as I have been seeing those efforts in action.

Counsel are encouraged and welcomed to seek additional guidance from the Court as appropriate particular c es concerning the scope or application of this statement.

Mark R. Hornak

Chief United States District Judge

Dated: July 2022

The 2022 ChIPs NextGen Summit Coming to San Francisco

Join the next generation of female leaders in tech, law, and policy for the 2022 ChIPs NextGen Summit on October 26, in San Francisco!

The NextGen Summit empowers women in the first 15 years of their legal career. Along with the opportunity to connect with current and future leaders, the Summit will include sessions, panels, and workshops that prepare future women leaders, support gender inclusion efforts, and facilitate best practices in IP law.

Among other topics, sessions will include:

  • Fireside Chat with the Honorable Kathleen O’Malley
  • Breaking Barriers: Advanced Advocates Who Shatter Glass Ceilings
  • Internal Politics: Behind the Scenes with Partners and In-house Counsel
  • How to Use Social Media to Advance Your Career
  • Fireside Chat with Wei Chen: Blazing a Trail and Maintaining Balance

For more information on the 2022 NextGen Summit or to register, click here

Perspective on Pitching From a Junior Associate

For junior associates like me, pitch development is an under-appreciated but critical part of legal work. Pitches require the entire team to be able to demonstrate a thorough understanding of the legal issues of a case and present that knowledge in a succinct form. Pitches also typically have a quick turnaround time from beginning the project to finalizing presentations, so pitch development is a great way to gain experience working under pressure in a form that might be less daunting than billable work.

For me, a pitch begins with legal research into the issues of a case. Clients typically look for the fastest way to resolve their cases, so research usually focuses on motions to dismiss and motions for summary judgment. This focus provides the means to expand proficiency with these types of motions, as sometimes juniors are not onboarded into cases until it is clear these motions will not succeed. Often these pitches present legal issues I am not familiar with, so I have to quickly gain a basic understanding of how cases work in a particular legal field. It is a very exciting and stimulating way of gaining an understanding of new types of work without having to get bogged down in too many procedural complications.

Aside from research, pitch work also presents the opportunity to put junior associates on the radar of other associates and partners we juniors may not typically work with. The fast-paced nature of pitch work presents an opportunity for us to show we are able to meet tight deadlines, complete thorough research in a short period of time, and turn in great work product while working under pressure. The more-senior lawyers are usually very appreciative of the effort that goes into pitches, so it is a great chance for junior associates like me to expand our network and make a good impression on people who can help us in the development of our careers.

Written by Dave Bujarski, Associate Winston & Strawn, LLP

BCLT Dramatically Discounts Registration Costs for Junior and Mid-level Attorneys for Upcoming APLI in a Move to Diversify Attendance

In a move to better support women, junior lawyers and diverse lawyers and increase their attendance in legal programming and conferences, the Berkeley Center Law and Technology (BCLT) has dramatically discounted its registration costs for junior and mid-level attorneys for this year’s 22nd Annual Berkeley-Stanford Advanced Patent Law Institute (APLI).  Specifically, junior and mid-level attorneys will receive a 75% discount from the “General Public” registration, which is $990, resulting in a registration fee of $250.

Previously, BCLT has co-sponsored complimentary webinars organized by NextGenLawyers.com aimed at encouraging opportunities for and participation by junior attorneys. Winston & Strawn is a proud sponsor of the BCLT, APLI, and the founder of NextGenLawyers.com.  

APLI will take place this year on December 9-10, 2021 at Stanford University. Winston Partner @Jeanifer Parsigian ([email protected]) will be moderating the panel “Interplay of District Courts and the PTAB: Navigating an uncertain path.” Learn more about the event and registration here.

Oral Advocacy Insights from Federal Circuit Judge Moore and WDTX Judge Albright

On April 5, 2021, the Berkeley Center for Law & Technology and the Federal Circuit Bar Association presented a panel discussion on oral advocacy in federal court for junior lawyers and associates.

Federal Circuit Judge Kimberly Moore and District Court Judge Alan Albright (WDTX) shared insights about the role of oral argument, the importance of answering challenging questions, and best practices for appearances in federal court (including when appearing telephonically or via Zoom).

Kathi Vidal, managing partner of Winston & Strawn’s Silicon Valley office and founder of ChIPs NextGen, moderated the panel.

The Role of Oral Argument Is First and Foremost to Allow Judges to Ask Questions.

Both judges emphasized that, at oral argument, it is crucial to listen to the judges’ questions and answer them directly.

Judge Moore explained that by the time cases reach the Federal Circuit, they have been narrowed down to key claim terms or issues, which allows the judges to become familiar with the issues before oral argument. She explained that lawyers do not need to spoon-feed information about the case or educate the judges on the matter. Rather, oral argument is for judges on the panel to ask questions that arose after reading the briefing.

Judge Albright agreed, and implored attorneys to research a judge before making an appearance. Some judges, for example, prefer to create a detailed record of the facts of the case. Others, like Judge Albright, prefer to ask questions and pose hypotheticals. He expects attorneys to come to discovery motion hearings prepared with specific requests. He makes it his practice to issue preliminary claim constructions before a Markman hearing to guide the arguments. Understanding the judge’s preferences in this way is critical for effective preparation.

One thing quickly became clear: an attorney faced with a challenging question at oral argument should never evade the question—whether because she does not know the answer or does not want to provide a damaging answer. Judge Moore cautioned that evading these questions reflects poorly on the attorney and her case.

She explained that her hypotheticals, to the extent she poses them, are intended to test the boundaries of the proposed rule of law. Judge Moore wants lawyers to answer directly, recognizing that the hypothetical may not present facts identical to the present case. They may qualify their answers with caveats about the present case but should not avoid answering entirely. Judge Albright echoed that adding context is appropriate, so long as his question is answered first.

Professionalism in the Courtroom (Even a Virtual One) Is Always Required.

Judge Moore and Judge Albright underscored the importance of civility and professionalism when appearing for oral argument. For one, Judge Moore warned against overly harsh or accusatory language against one’s opposing counsel or a lower court judge. She often finds that the party who makes such accusations is in fact the party more deserving of such criticism.

Similarly, Judge Moore expects attorneys to refer to others in the courtroom by name and with civility. And, having been referred to by the wrong name in the past, she advised attorneys to take care to know the judges’ names, and pronounce them correctly, or stick with “Your Honor.” For opposing counsel, shorthand such as “my brother,” “my friend,” or “the bad guy on the other side” is simply never appropriate. But, when mistakes happen, apologizing and correcting your choice of language can go a long way.

Judge Albright, who continues to conduct all hearings over Zoom, explained that it is easy to become too comfortable during video calls. To avoid this, he encourages a professional appearance and avoiding informal language. He noted that professionalism is particularly important when asking for an extreme remedy such as a preliminary injunction or sanctions. He recommends focusing on the critical reasons for such a request—if an injunction, explain why it is necessary to avoid irreparable harm; if asking for sanctions, understand that such a request may not be weaponized and must be justified.

The Judges Encourage Providing Junior and Inexperienced Attorneys with Oral Argument Opportunities.

The judges are enthusiastic about the prospect of junior or inexperienced lawyers arguing before them. While Judge Moore typically discourages parties from dividing arguments between attorneys (the Federal Circuit panel might only have questions on one issue, for example), she makes an exception when counsel carves out an issue for a junior lawyer to argue. She finds that junior lawyers are commonly either given slam-dunk arguments or those that are impossible to win—rarely the issues on which the case will be decided.

Judge Albright describes junior lawyers appearing in his court or over Zoom as being among the most prepared lawyers he sees. He acknowledges that the virtual format makes it harder for attorneys to jump in and interrupt—especially cautious lawyers arguing for the first time. To accommodate this, he has taken to pausing after a strong argument to invite the other side to respond.

Both judges were also understanding that junior lawyers, despite thorough preparation, may not argue as well as someone with significant oral advocacy experience. For that reason, neither penalizes a more-senior attorney for jumping in to address an issue if the need arises.

Ultimately, both judges agreed that they would support, rather than discredit, a party that offered a junior lawyer the opportunity to argue. Such an appearance, however, invites an educational opportunity, rather than a “free pass.” Both Judge Moore and Judge Albright urged young attorneys to come prepared for a lot of questions.

PowerPoints Are Not Always a Powerful Tool in the Courtroom.

While many attorneys may feel compelled to use visual aids to support their oral argument, the judges caution that they do not find them effective in every context. In his numerous patent hearings, Judge Albright often finds it helpful to read along when an attorney recites an excerpt from the patent or the intrinsic record, so he appreciates when succinct textual citations are highlighted on a slide. Short of that, he rarely finds PowerPoint presentations helpful.

Visual aids are even more scarce in the Federal Circuit, where Judge Moore prohibits PowerPoints, and finds physical demonstratives distracting. The sole exception, in her experience, is when it is necessary to show the physical accused product or invention to demonstrate how elements fit together, such as where 2D diagrams are insufficient.

The (Near) Future of Oral Advocacy Will Be in the Courtroom and Beyond.

Courts across the country are making important decisions about post-pandemic operations. The Federal Circuit, which has been holding telephonic conferences throughout the last several months, hopes to return to in-person arguments in the near future, pending vaccine distribution and case numbers, Judge Moore reported. She is particularly mindful of the fact that the court is situated in Washington, D.C., requiring parties to travel from across the country to appear. Yet she finds appearing in person generally commands greater professionalism and preparedness, and she looks forward to returning to the courtroom when it is safe to do so.

Meanwhile, Judge Albright has become a major proponent of maximizing technology in his cases. He has found that conducting hearings over Zoom enables clients and younger lawyers to attend without incurring additional travel expenses. In his Waco court, he plans to give parties the option to attend in person or virtually within the same hearing. He supports hybrid proceedings going forward, to empower lawyers to utilize whichever format will be most beneficial for their case and for their clients.

Fortunately, these insights provided at the panel—from maintaining professionalism to preparing thoughtful answers—will serve lawyers well in any oral argument format.

Written by: Nicole Malick, Winston & Strawn

Don’t Miss: Upcoming Junior Attorneys Oral Advocacy Judicial Panel — “Oral Advocacy at Its Finest: Circuit Judge Kimberly Moore and District Court Judge Alan Albright Discuss What Works (and Doesn’t)”

Next Generation Lawyers is excited to announce a fantastic opportunity for junior attorneys to hear sage advice from judges on how to advocate most effectively for clients in court.

On Monday, April 5, 2021 at 2:00 p.m. ET |1:00 p.m. CT |11:00 a.m. PT, the Berkeley Center for Law & Technology and the Federal Circuit Bar Association are hosting a panel discussion on oral advocacy with Judge Kimberly Moore of the U.S. Court of Appeals for the Federal Circuit and Judge Alan Albright of the Western District of Texas. Specifically, the judicial panelists will be sharing insights into what is most helpful to judges and tips on the best ways to advance your positions and win for your clients.

The discussion will be moderated by Kathi Vidal, Winston & Strawn’s Silicon Valley Managing Partner. Ms. Vidal has known Judges Moore and Albright for over two decades. She notes,

Before joining the bench, the Judges were two of the finest advocates I knew. When my partner Michael Tomasulo suggested this panel as a way of sharing what the Judges have learned through their collective experiences in private practice and academia and from the perspective of a Magistrate Judge, District Court Judge, and Appellate Court Judge, I was thrilled to participate.

This is a fantastic opportunity for guidance from prominent members of the legal field.

About the Panelists

Judge Moore and Judge Albright both have extensive litigation experience. Circuit Judge Kimberly Moore has presided on the U.S. Court of Appeals for the Federal Circuit since 2006, when she was appointed by President Bush. Prior to her appointment, she was a distinguished law professor and author, and former clerk for the Honorable Glenn L. Archer, Jr., Chief Judge of the United States Court of Appeals for the Federal Circuit. Judge Moore has written and presented extensively on patent litigation. She is the co-author of the textbook Patent Litigation and Strategy and was the editor of the Federal Circuit Bar Journal. Judge Moore will serve as chief judge of the Federal Court this spring.

Federal Judge Alan Albright was appointed to the bench by President Trump in 2018. Under his charge, the Western District of Texas has become a hotbed for patent litigation—seeing more new cases since Albright took office than in the previous four years combined. Judge Albright presides over more than 20% of the patent cases filed nationwide. Prior to his appointment, Judge Albright was a magistrate judge, law firm partner, adjunct professor of trial advocacy at the University of Texas Law School, and clerk for the Honorable James R. Nowlin, U.S. District Court Judge for the Western District of Texas.

About the Moderator

Kathi Vidal is the managing partner of Winston & Strawn’s Silicon Valley office. She is one of the most well-regarded technology trial lawyers in the country and an industry leader on diversity and women’s issues. Ms. Vidal founded the ChIPs Next Gen effort and advises tribunals on Next Gen issues to encourage and secure more advocacy opportunities for junior lawyers.

Ms. Vidal clerked with Judge Moore at the Federal Circuit, has served on the Board of the Federal Circuit Bar Association, and is presently a Fellow of the Association. She served in private practice and firm management with Judge Albright and has litigated cases with him. She has led patent cases for more than two decades, including in the Federal Circuit and Waco (where she has led numerous cases and has two upcoming trials).

You can register for the event using this link.

This event should not be missed!

Written by: Rachel McCauley, Winston & Strawn LLP, March 31, 2021

JC FORMATION ANNOUNCEMENT

Next Generation Lawyers is excited to announce the news of its newly formed Junior Committee created to enhance junior leadership and representation within the organization. The Winston-led Junior Committee is dedicated to creating and advancing content, events, and other action items to empower junior attorneys seeking to obtain more substantive experiences inside and outside of the courtroom. The Junior Committee is comprised of a diverse group of junior attorneys practicing in firms, in-house departments, and judicial clerkships across the country. The group includes attorneys from New York, California, Florida, Washington D.C, Texas and beyond. These young lawyers engage in practices of general litigation, international arbitration, intellectual property, private equity, mergers and acquisitions among others. The diversity of perspectives in the committee uniquely positions the Junior Committee to assist in furthering NextGen’s core mission – to empower the next generation of lawyers.

Please join us in welcoming:

  • Yarden Kakon, Winston & Strawn LLP, Co-Chair
  • DaWanna McCray, Winston & Strawn LLP, Co-Chair
  • Dillon Kellerman, Winston & Strawn LLP, Co-Chair
  • Beatriz Albornez, Sullivan & Cromwell LLP
  • Lindsey Ferguson, A24
  • Patty Linares-Garcia, White & Case LLP
  • Ceyda Maisami, Hewlett-Packard Inc.
  • Travis B. Mitchell, Davis Polk & Wardwell LLP
  • Hannah Santasawatkul, Western District of Texas Clerk
  • Rachael Shen, VMware
  • Veena Tripathi, Fish and Richardson P.C.