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

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 trial—setting 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

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. 

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