Archive for category: Updates

Growing up with a southern grandmother, I often heard the proverb “a closed mouth doesn’t get fed.” As I got older, that sentiment matured into the following advice from my mother, “never be afraid to ask for what you want because the worst they can do is tell you no.”  While I failed to truly appreciate it then, it was these gentle but constant reminders from the matriarchs of my family that ultimately characterized and shaped the roots of my budding legal career—hungry and fearless. Those characteristics then afforded me multiple opportunities to take depositions, argue at substantive hearings, and examine my first witness in federal court, all as a first- and second-year associate in big law.

What I have now learned is, as a junior associate, your journey towards professional success goes beyond simply mastering the intricacies of the law. Sure, that is important, but it is your brand and your ability to actively seek the opportunities you desire that can propel you lightyears ahead in your career. The success of the latter often hinges on the strength of the former. In other words, your internal brand is how your colleagues perceive you, and it plays a pivotal role in your progression within the firm. Once you have built a strong internal brand, your colleagues are eager to give you opportunities to grow—especially when you are bold enough to ask for them and, more importantly, are always prepared to handle them.

Put simply, building a strong internal brand is vital to your career development, and the task is far less daunting than it seems. The starting point is consistently delivering high-quality work. Be attentive to details and ensure your work is well-researched, polished, and aligned with the firm’s standards. Demonstrating your competence and commitment to excellence in every task you undertake will leave a lasting impression and establish you as a dependable person that people can count on. Moreover, not only should your work be pleasant, but so should your attitude. Never underestimate the power of a positive attitude. While your ability to effectively articulate your ideas and questions will showcase your legal acumen and demonstrate your eagerness to grow, it is your pleasant nature and positive attitude that will ensure you are someone who people want to grow alongside them.

Next, be proactive. Actively seek out opportunities to collaborate with senior associates and partners on projects, and never be afraid to express your interest in advanced responsibilities such as taking depositions or handling speaking roles in court or before the client. By proactively seeking out these opportunities and demonstrating your willingness to learn, you will show that you are more than just a passive observer in your legal journey. After my first argument in federal court, I made sure to thank the client before the day was over. I knew it was likely my supervising partners who advocated behind closed doors for me to have the opportunity; but it was the client who ultimately had to say yes to the idea. His response to my soliloquy of gratitude was simple, “you deserved it.”

Recently, I heard a panelist at the ChIPs NextGen Summit perfectly summarize how I arrived at that experience. She said, “as a junior associate, make it easy for other people to make it possible for you to take advantage of opportunities because half the battle is getting someone to say yes.” With that said, I wholeheartedly encourage you to speak up and relentlessly pursue your “yes.” Don’t be shy. Fearlessly ask for the opportunities you want. Then keep asking, even when it seems too far-fetched. Your ceiling only exists if you choose to acknowledge it. Remember, the worst they can say is no, but, on the other hand, there is no harm in asking when you have branded yourself as someone to whom they want to repeatedly say “yes!”

Written by Tracea Rice, Associate Winston & Strawn, LLP

Join ChIPs NextGen Speaker Jessica Aries on Thursday, October 20th from 11am to 12pm PDT for a webinar focusing on how professional women can strategically prepare for a conference. The one-hour seminar will discuss the importance of cleaning up your digital brand, preparing your self-story, and getting clear on your goals at the conference to successfully expand your network, grow your influence, and build lasting relationships.

While, ChIPs NextGen Summit attendees will hear Jessica present in-person, this webinar is open to all ChIPs members interested in becoming empowered in their digital presence.

To register for the webinar, click here.

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

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

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