Archive for category: Updates

During a Next Generation Lawyers panel that took place earlier this year, federal District Court Judges Alan D Albright (W.D. Tex.) and Jon S. Tigar (N.D. Cal.) emphasized the important role of taking on pro bono matters to gain substantive opportunities as a junior attorney.  Judge Tigar discussed how he became chair of his firm’s pro bono committee when he practiced and how taking on such cases provide invaluable experience for arguing in court as well as client counseling and negotiating with opposing counsel.

Depositions are a critical fact-finding tool and taking depositions effectively is a critical skill for litigation attorneys.  While many firms provide junior attorneys with deposition training, the most effective way to learn how to take a deposition is actually to take one.  Pro bono matters present such an opportunity for qualified junior attorneys to take depositions.

As a first-year associate, I had the rare and rewarding opportunity of being part of a team that brought a pro bono matter to trial, which, adding an extra twist, took place during the COVID-19 pandemic.  The case involved a petition for the return of a child under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention.  For the child’s well-being, this type of matter requires expedited proceedings—preferably a decision on the merits within six weeks of the petition being filed.

While trying a case in the midst of the COVID-19 pandemic brought its challenges, it also led to opportunity.  Given the risks associated with in-person depositions, our team switched to remote depositions.  With the encouragement of the partner leading the case, a fellow first-year associate and I were given the opportunity to take remote depositions of witnesses that would be testifying at the scheduled three-day bench trial and were located in Texas while we were in California.

The most rewarding part of this experience was the high level of independence I was given from beginning to end.  This began with scheduling the remote deposition, included drafting the deposition subpoena, reaching out to the witness and counsel to facilitate scheduling, drafting the deposition outline, and then ended with taking the deposition remotely.  I not only had the rewarding experience of taking the deposition, but also learned how to prepare for it both logistically and substantively.  The feedback, guidance, and mentorship the partner and associates provided on the matter greatly supplemented my learning experience.  Lastly, I had the opportunity to read the deposition transcript, and could see where I was effective and where there was room to improve.

Overall, this opportunity showed me the importance of learning by doing and motivated me to seek out more opportunities in the future.  I encourage my fellow junior attorneys to use pro bono matters as an avenue to attain more substantive opportunities as I did through this case.  I also want to say thank you to the partners and senior associates who provide us with these critical learning opportunities that help us excel in our careers and become better advocates.

Written by: Yarden Kakon, Winston & Strawn, September 8, 2020

On June 12, 2020, the Federal Circuit Bar Association, Berkeley Center for Law & Technology, Berkeley Judicial Institute, ChIPs, and CLI presented a panel discussion on the evolving judicial landscape and the opportunities it presents for junior lawyers and associates. 

Federal District Court judges Alan D Albright (WDTX), Barbara Lynn (NDTX), and Jon S. Tigar (NDCA) proffered insights about their initiatives to provide speaking opportunities for young attorneys, their career paths and the evolution of their practices over time, and their points of view on some changes that have taken place over the last several months as a result of COVID-19.

The panel was moderated by three litigation associates at Winston & Strawn: Yarden Kakon, also a member of ChIPs and co-founder and President of Women in Tech Law; Kate Marcom, former clerk for Chief Judge Barbara Lynn and Judge Jimmie V. Reyna (CAFC); and DaWanna McCray, former clerk for Judge Tanya Walton Pratt (SDIND).

Prefatory and closing comments were provided by Kathi Vidal, managing partner of Winston & Strawn’s Silicon Valley office and founder of the ChIPs Next Gen effort, and Elena Dimuzio, Director of Litigation and Regulatory at Dropbox.

Motivating Litigants to Provide Junior Attorneys with Stand-Up Opportunities

During the panel, the judges noted their concerns regarding not only the vanishing jury trial but also vanishing opportunities for junior attorneys to gain stand-up court room experience. 

The judges all expressed how much they relish seeing junior lawyers argue in front of them and discussed the different ways in which they encourage litigants to provide substantive speaking opportunities to junior attorneys. 

For example, Judges Lynn and Tigar noted that they have orders encouraging litigants to be mindful of providing such opportunities.  These orders and other judicial orders promoting next generation opportunities for junior attorneys can be found on the Next Generation Lawyers website.

The judges also discussed other ways in which they promote such opportunities including: (1) speaking on this topic at panels such as this; (2) encouraging litigants during hearings to permit the junior attorneys to speak; and (3) providing hearing opportunities for litigants where they might otherwise decide motions on the papers, if the litigants send junior attorneys to argue the motions.  Judge Albright indicated that he would be considering whether he can provide more opportunities for argument based on this last category.

How Junior Attorneys Can Improve Their Odds of Obtaining Courtroom Experience

The judges discussed three important ways in which junior attorneys can create more opportunities to obtain stand-up experience.

First, Judges Albright and Tigar discussed the important role of taking on pro bono matters to gain such experience.  Judge Albright discussed how he recently had two 42 U.S. Code, Section 1983 cases tried by junior attorneys.  He noted that if he is aware that firms are willing to take on such cases, the Court would reach out to such firms when those cases come in.  Judge Lynn noted that the Northern District of Texas has a formal program for such pro bono cases and when she receives volunteers for such cases, she will go out of her way to debrief the litigants and provide them with feedback.

Judge Tigar discussed how he became chair of his firm’s pro bono committee when he used to practice and how taking on such cases provide invaluable experience for arguing in court as well as client counseling and negotiating with opposing counsel. 

Judge Lynn expressed the importance of a “put me in coach” attitude.  As she did when she was an associate, she advised that associates should seek every opportunity to obtain stand up experience in front of a judge or fact finder, irrespective of how large or “attractive” the case may be.  She noted that it is important for an associate seeking opportunities to make it known that they want to be part of a trial or hearing.

Second, the judges noted that it is important for associates to go out of their way to develop skills or competencies that render them invaluable to clients and other lawyers.  For example, Judge Tigar left private practice to become a public defender, where he gained substantial experience trying cases.  When he returned to private practice, members of his firm and clients gave him greater opportunities in recognition of his comfort and skill in arguing at hearings. 

Third, the judges discussed the importance of developing mentors. Those who have achieved success received meaningful assistance throughout the course of their careers, and more mentors translates into more opportunities for informal learning and building stronger ties with the institution of which the associate is a part. 

Hearings and Trials in a Post-COVID 19 Environment

As an initial matter, the judges noted that they have made the best of the present environment of hearings by telephone or video conference.  They then noted some of the disadvantages and advantages of the present form that hearings have taken. 

Judge Lynn noted that video hearings make it difficult to see everyone who is participating in the hearing.  She also pointed out that features such as gestures and body language are no longer communicated effectively in this medium.  Judge Tigar agreed, explaining that aspects such as body language, expressions, inflections in voices, and a real-time understanding of what is happening in the court room are notably missing in this format.  On the other hand, Judge Lynn noted that currently, in-person hearings would require everyone in the courtroom to wear masks, and video hearings obviate the need for this. 

Judge Albright echoed these sentiments and expressed his preference for in-person hearings.  He noted his concern that litigants in teleconference hearings seem to be reading their arguments, leading to longer monologue arguments and fewer opportunities for the judge to interject.  Judge Albright discussed the possibility of having more video hearings in the future to avoid this.  He added that limiting the need for travel through these remote hearings has been a positive thing. Judge Tigar explained that litigants should recognize that video hearings are a very different format, and that they should develop persuasion skills that are most effective in this format. 

Written by: Vivek Krishnan, Winston & Strawn LLP, June 15, 2020

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

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