The Patent Trial and Appeal Board LEAPs Into the Future

Next Generation Lawyers is thrilled to highlight an incredible new opportunity for young lawyers to gain valuable courtroom experience. On Tuesday, April 28, 2020, the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) launched the Legal Experience and Advancement Program (LEAP) to foster development and experiences for more junior attorneys. LEAP will be integral to developing the next generation of patent practitioners by giving newer attorneys the opportunities to gain oral advocacy and courtroom skills.

LEAP Practitioners are defined as someone who is new to the practice of law or new to practice before the PTAB. To qualify, a patent agent or attorney must have three (3) or fewer substantive oral arguments in any federal tribunal, including PTAB, and seven (7) or fewer years of experience as a licensed attorney or agent. 

PTAB has provided extra incentives for appellants and parties to support LEAP and offer legal experience to a broader group of practitioners. In exchange for giving LEAP practitioners the opportunity to present argument as part of the program, PTAB will grant the party additional argument time (typically up to 15 minutes depending on the proceeding and PTAB’s hearing schedule). PTAB also strongly encourages LEAP practitioners to be active in all aspects of PTAB proceedings, including conference calls, pre-hearing conferences, and depositions.

In addition, PTAB has taken extra steps to ensure that clients’ interests are well-served by LEAP. First, LEAP practitioners may share time during the oral argument with other counsel (provided that the LEAP practitioner get a meaningful and substantive opportunity to argue). This will enable a LEAP practitioner to take part in a more complex oral argument than they might otherwise be able to take on given their experience level. Second, more experienced counsel may assist a LEAP practitioner, if necessary, during oral argument and can clarify any statements on the record. Finally, and perhaps most importantly, the USPTO will provide free training to familiarize LEAP practitioners with oral argument procedures before PTAB. The training will cover oral advocacy tips, effective use of time in oral arguments, and how to best use demonstratives during a PTAB hearing, among other topics.

LEAP will become effective on May 15, 2020 and petitioners can file requests to participate in the LEAP beginning on that day. For an appeal, an appellant should send an email to [email protected] at least five (5) business days before the hearing. Similarly, for an AIA proceeding, a party should send an email to [email protected] at least five (5) business days before the hearing. 

Kathi Vidal, Managing Partner of Winston & Strawn’s Silicon Valley Office and founder of the ChIPs Next Gen Effort, had this to say about LEAP. “PTAB’s program strikes a great balance. It incentivizes and encourages parties to allow more junior or less experienced attorneys to argue, while ensuring that if other counsel have value to add or would like to supplement the record, they may do so.  There is little risk and much upside.  This program will go a long way toward moving the needle toward empowering and training our next generation of lawyers.  Any time we rise the tide for junior lawyers, we necessarily rise the tide for all and thus promote diversity.”

All in all, Next Generation Lawyers applauds PTAB for developing this innovative program and giving more junior attorneys valuable courtroom experience. The junior patent lawyers among us can’t wait to sign up for LEAP. We are confident that the program will be a huge success and hope that many junior attorneys are able to take advantage of this newly-created opportunity.

Below are links to additional information on LEAP by the USPTO and an excellent blog on the topic by Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, and Scott Boalick, Chief Judge of the Patent Trial and Appeal Board of the USPTO.

Written by: Rachel Busch, Winston & Strawn LLP, April 28, 2020

https://www.uspto.gov/blog/director/entry/ptab-launches-the-legal-experience

https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/leap?MURL=leap

Eastern District of Texas Judge Reissues Next Gen Order to Provide More Support for Junior Advocates

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

Rising to the Challenge: Junior Attorneys in the Courtroom (Michael Rader, New York Law Journal)

Michael Radler’s article in the New York Law Journal provides another interesting and insightful take on providing opportunities for junior attorneys to participate in meaningful trial advocacy. Mr. Radler expresses the view that allowing junior attorneys an opportunity to argue a motion in court or cross-examining a witness at trial not only ensures that there will be another generation of trial lawyers, but it serves clients well. Mr. Radler also expresses the view that junior attorneys likely were the attorneys who spent the most time with witnesses during the discovery process, including helping draft an expert’s report or preparing a fact witness for a deposition and trial examination. He also makes the subtle hint that not only are junior attorneys closer to the facts of a case, but likely are better prepared when given the opportunity to participate in meaningful trial advocacy, because they understand and cherish the value of the opportunity.

In my experience, Mr. Radler is correct. In many of my cases, I have, by virtue of seniority, been closer to the facts of the case. I was either the one reviewing the relevant documents for a particular witness, or had prepared the deposition and/or cross-examination materials for a witness. Additionally, for many motions, specifically concerning discovery issues, I knew the facts and substantive law governing the issue the best on many of my litigation teams. When given the opportunity to participate in trial advocacy, including arguing motions, I can’t say that I was 100% successful, but I can say—agreeing with Mr. Radler—that I was always prepared, and many times overly prepared. I knew the facts, but, more importantly, understood the honor of the opportunity, thus always having sought to do my best.

All of Mr. Radler’s points are spot-on, however, he may have missed another advantage of allowing junior attorneys to take a substantive role in trial advocacy. The advantage is creating loyalty—which includes a junior attorney’s loyalty to a client, firm, litigation team, and case. When given a greater role in the success of a case, my level of interest and loyalty to that client, case, and team only increased. By allowing junior attorneys to participate in meaningful trial advocacy creates a sense of ownership that will unquestionably produce successful results.

Written by: Ryan Dunigan, May 16, 2017

Pioneering Federal Judge Speaks About the Effects of Her Order on Speaking Roles for NextGen Lawyers

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

Fourth Year Associate Argues at Claim Construction Hearing in Minnesota District Court

On March 1, 2017, Mathias Samuel of Fish & Richardson filed a notice that a junior attorney would be arguing at an upcoming hearing—this time, before Judge Nelson in Minnesota District Court. The notice explained that Conrad Gosen, a fourth year associate, would be arguing the construction of several contested terms related to technology for electrical generators and motors in an upcoming Markman hearing. On March 10, 2017, the hearing took place and Mr. Gosen argued along two Fish & Richardson partners, Mathias Samuel and Rob Courtney.

Explaining his experience, Mr. Gosen said “I am very grateful for the opportunity to have argued several claim terms for our client during a recent claim construction hearing. Newer lawyers often struggle to get any ‘on your feet’ experience arguing in court, and so the opportunity to represent my client before the judge not just at a hearing, but at one of the most critical junctures of a patent case was a very rewarding experience.”

Similar notices have been filed by other Fish & Richardson principals creating opportunities for junior lawyers to argue in court, including in cases before Judge Koh and Judge Kronstadt in the Northern and Central Districts of California. The notice in this case was given in a letter, which is reproduced below and can be cribbed from and improved upon as a model.

Dear Judge Nelson:

On March 10, 2017 at 1:00 p.m., this court has scheduled argument on the parties’ claim
construction briefing in this case. As a number of courts have recognized “in today’s practice of
law, fewer cases go to trial and there are generally fewer speaking opportunities in court,
particularly for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Order, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016); http://chipsnetwork.org/wpcontent/
uploads/2016/02/Judicial-Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com
(judicial orders). As such, a number of courts “strongly encourage[] the parties to be mindful of
opportunities for young lawyers to argue in front of the Court, particularly for motions where the
young lawyer drafted or contributed significantly to the underlying motion or response.” See,
e.g., id.

Cutsforth believes the upcoming claim construction hearing affords such an opportunity and
respectfully notifies the Court that it intends to have fourth year associate Conrad A. Gosen
argue for certain contested terms at the upcoming claim construction hearing. Mr. Gosen has
been deeply involved in the case for several years. Other lawyers for Cutsforth will argue the
remaining terms. Cutsforth does not believe this division of the argument between Cutsforth’s
various counsel will unduly complicate the proceedings, and it will not require any additional
time beyond what the Court has already allotted for the hearing.

Written by: Dalia Kothari, April 5, 2017

Junior Attorneys Argue Post-Trial Briefing Before Judge Kronstadt

Junior Attorneys Argue Post-Trial Briefing Before Judge Kronstadt

On March 6, 2017, second year associate, Oliver Richards, and seventh year associate, Joanna Fuller, argued post-trial motions before Judge Kronstadt in the Central District of California. The case began in 2013 when CH2O, a water treatment company, sued competitor Meras Engineering for infringing ITS patent on environmentally-friendly technology to clean and re-use water. CH2O later added Houweling’s (a large hydroponic farming operation with facilities in the U.S. and Canada) as a defendant. Houweling’s had switched its water treatment supplier from CH2O to Meras, and the two defendants were infringing CH2O’s patent. The case was tried in two sessions over the summer of 2016 and resulted in a verdict in CH2O’s favor. The court scheduled a hearing on post-trial motions, including motions to set aside the jury’s verdict and for new trial, for March 6, 2017.

As a part of continuing efforts to provide junior attorneys with opportunities to gain experience in the courtroom, Fish & Richardson filed an advance “Notice of Argument by Junior Attorneys” informing the Court that it intended to have Ms. Fuller and Mr. Richards argue at the hearing.

Before oral argument began, Judge Kronstadt acknowledged the filing and told Fish Principals Chris Marchese and Andrew Kopsidas that he would permit them to sidebar with the junior attorneys during the hearing if necessary. Ms. Fuller and Mr. Richards addressed several post-trial motions, including motions for injunctive relief and for supplemental damages and prejudgment interest. Mr. Richards was primarily responsible for drafting the post-trial briefs, and Ms. Fuller had been a member of the trial team. Thus, both associates were deeply familiar with the issues and record.

Mr. Richards, who clerked for Judge Dyk in the Federal Circuit before joining Fish & Richardson, commented, “I have watched hundreds of oral arguments as a clerk and I never thought I would have an opportunity to do on-my-feet lawyering so early in my career.”  “It was an enormously positive experience, I look forward to future opportunities to do it again.”

CH2O, INC.’S NOTICE OF ARGUMENT BY JUNIOR ATTORNEYS
Case No. CV-13-8418 JAK (GJSx)

Counsel for Plaintiff CH2O writes to inform the Court that Plaintiff intends to
have two junior lawyers argue some of the post-trial motions to be argued at the March
6 hearing scheduled in this matter.

As a number of courts have recognized, “in today’s practice of law, fewer cases
go to trial and there are generally fewer speaking opportunities in court, particularly
for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016) (available at
http://nextgenlawyers.com/files/Judge-K-Nicole-Mitchel-EDTX-Order-
Jan2016.pdf); see also http://chipsnetwork.org/wp-content/uploads/2016/02/Judicial-
Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com (judicial orders). As
former Judge Grewal of the Northern District of California recognized, this trend
raises a serious question: “who will try the technology cases of the future, when so
few opportunities to develop courtroom skills appear? It is difficult to imagine
handing entire intellectual property trials to a generation that never had the chance to
develop those skills in more limited settings.” GSI Tech., Inc. v. United Memories,
Inc., Case No. 5:13-cv-01081-PSG, Order Re: Oral Argument (N.D. Cal. Mar. 9,
2016) (ECF No. 1112) (available at http://nextgenlawyers.com/files/GSI-V-United-
Memories.pdf).

Fish & Richardson is a proud leader of the Next Gen Committee, dedicated to
creating opportunities for junior lawyers to develop their “stand up” skills. A number
of courts now encourage parties to be mindful of opportunities for young lawyers to
argue in court. E.g., Scheduling Order Specifying Procedures (Guilford, J.) (“The
Court strongly encourages the parties to give young associate lawyers the chance to
examine witnesses and fully participate in trial (and throughout the litigation!).”);
Guidelines for Final Pretrial Conference in Bench Trials Before District Judge Lucy
H. Koh ¶ G (Jan. 3, 2011); Standing Order Regarding Courtroom Opportunities For Relatively Inexperienced Attorneys (Talwani, J.) (D. Mass. Oct. 9, 2015) (all available at http://nextgenlawyers.com/).

Plaintiffs respectfully notify the Court that they intend to have second year
associate Oliver Richards and seventh year associate Joanna Fuller argue certain
motions at the upcoming hearing for post-trial motions. Mr. Richards was the primary
drafter of the post-trial briefs and is intimately familiar with the issues and the record
in this case. Ms. Fuller was a member of CH2O’s trial team and has been involved in
all aspects of this case since nearly the beginning.

Given the importance of the issues to be argued, Plaintiffs respectfully request
that more experienced counsel be able to assist in the arguments should the need arise.

Written by: Dalia Kothari, April 6, 2017

Judge Burke issued the first Next Gen Order to come out of the court

Today, January 23, 2017, Judge Christopher J. Burke, United States Magistrate Judge for the United States District Court for the District of Delaware, issued the first Next Gen Order to come out of the court. The Order, repeated below, addresses concerns voiced by some in-house counsel and trial lawyers that negative inferences might be drawn from their choice of counsel to argue a motion. The order also notes that Judge Burke will permit more senior counsel to assist in the argument if appropriate.

Order:

The Court is cognizant of a growing trend in which fewer cases go to trial, and in which there are generally fewer opportunities in court for speaking or “stand-up” engagements. This is especially true for newer attorneys, that is, attorneys practicing for less than seven years (“newer attorney(s)”).
Recognizing the importance of the development of future generations of practitioners through courtroom opportunities, the undersigned Judge encourages the participation of newer attorneys in proceedings in my courtroom-particularly as to oral argument on motions where the newer attorney drafted or contributed significantly to the briefing for the motion.

To that end, the Court adopts the following procedures regarding oral argument as to pending motions:

After a motion is fully briefed, either as part of a Request for Oral Argument, or in a separate Notice filed thereafter, a party may alert the Court that, if argument is granted, it intends to have a newer attorney argue the motion (or a portion of the motion).
If such notice is provided, the Court will:

(A) Grant the request for oral argument on the motion, if is at all practicable to do so.

(B) Strongly consider allocating additional time for oral argument beyond what the Court may otherwise have allocated, were a newer attorney not arguing the motion.

(C) Permit other more experienced counsel of record the ability to provide some assistance to the newer attorney who is arguing the motion, where appropriate during oral argument.

All attorneys, including newer attorneys, will be held to the highest professional standards. Relatedly, all attorneys appearing in court are expected to be adequately prepared and thoroughly familiar with the factual record and the applicable law, and to have a degree of authority commensurate with the proceeding.

The Court also recognizes that there may be many different circumstances in which it is not appropriate for a newer attorney to argue a motion. Thus, the Court emphasizes that it draws no inference from a party’s decision not to have a newer attorney argue any particular motion before the Court.

Additionally, the Court will draw no inference about the importance of a particular motion, or the merits of a party’s argument regarding the motion, from the party’s decision to have (or not to have) a newer attorney argue the motion.

Fourth Year Associate Argues at Claim Construction Hearing in Minnesota District Court

On March 1, 2017, Mathias Samuel of Fish & Richardson filed a notice that a junior attorney would be arguing at an upcoming hearing—this time, before Judge Nelson in Minnesota District Court. The notice explained that Conrad Gosen, a fourth year associate, would be arguing the construction of several contested terms related to technology for electrical generators and motors in an upcoming Markman hearing. On March 10, 2017, the hearing took place and Mr. Gosen argued along two Fish & Richardson partners, Mathias Samuel and Rob Courtney.

Explaining his experience, Mr. Gosen said “I am very grateful for the opportunity to have argued several claim terms for our client during a recent claim construction hearing. Newer lawyers often struggle to get any ‘on your feet’ experience arguing in court, and so the opportunity to represent my client before the judge not just at a hearing, but at one of the most critical junctures of a patent case was a very rewarding experience.”

Similar notices have been filed by other Fish & Richardson principals creating opportunities for junior lawyers to argue in court, including in cases before Judge Koh and Judge Kronstadt in the Northern and Central Districts of California. The notice in this case was given in a letter, which is reproduced below and can be cribbed from and improved upon as a model.

Dear Judge Nelson:

On March 10, 2017 at 1:00 p.m., this court has scheduled argument on the parties’ claim
construction briefing in this case. As a number of courts have recognized “in today’s practice of
law, fewer cases go to trial and there are generally fewer speaking opportunities in court,
particularly for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Order, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016); http://chipsnetwork.org/wpcontent/
uploads/2016/02/Judicial-Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com
(judicial orders). As such, a number of courts “strongly encourage[] the parties to be mindful of
opportunities for young lawyers to argue in front of the Court, particularly for motions where the
young lawyer drafted or contributed significantly to the underlying motion or response.” See,
e.g., id.

Cutsforth believes the upcoming claim construction hearing affords such an opportunity and
respectfully notifies the Court that it intends to have fourth year associate Conrad A. Gosen
argue for certain contested terms at the upcoming claim construction hearing. Mr. Gosen has
been deeply involved in the case for several years. Other lawyers for Cutsforth will argue the
remaining terms. Cutsforth does not believe this division of the argument between Cutsforth’s
various counsel will unduly complicate the proceedings, and it will not require any additional
time beyond what the Court has already allotted for the hearing.

Written by: Dalia Kothari, April 5, 2017

Judge Alsup renewed his plea for parties to allow junior attorneys to participate in oral arguments

Friday August 12, Judge Alsup renewed his plea for parties to allow junior attorneys to participate in oral arguments and gain courtroom experience. His admonition came in the midst of a heated battle between Oracle and Google as counsel argued whether or not Oracle’s Java code can be copyrighted. A jury trial in May resulted in a verdict in Google’s favor and both parties filed post-trial motions.

With multiple post-trial hearings slated in the case – including a hearing on Oracle’s motions for judgment as a matter of law and Google’s motion for sanctions and civil contempt – come multiple opportunities for junior attorneys to take the floor. Judge Alsup targeted his invitation toward attorneys at the junior associate level, where representation of women and minorities is typically the strongest.[i] “The court will particularly welcome any lawyer with four or fewer years of experience to argue the upcoming motions,” wrote Judge Alsup.  The invitation was extended in harmony with Judge Alsup’s regular practice of sending such a notice to parties the week preceding every civil motion hearing before him.[ii]

[i] “Women and Minorities in Law Firms by Race and Ethnicities – an Update”; NALP Bulletin, February 2014.

[ii] http://nextgenlawyers.com/wp-content/uploads/2013/04/Judicial-Orders-re-Next-Gen-6-13-16.pdf

Written by: Emily Petersen Garff, August 16, 2016

Ninth Circuit Judicial Conference

Litigation is not what it used to be. The vast majority of lawsuits tend to settle rather than go to trial, due in part to high cost and the rise of alternative dispute resolution. This “vanishing trial” trend, first coined by Professor Marc Galanter in 2003,[1] means less than 1% of civil cases filed in the United States District Court system actually go to trial.[2]

Because trials are now relatively rare events, they are typically high stakes affairs reserved for the most experienced lawyers. This new practice is perpetuated by firms, and their clients, who are reticent to use a “bet-the-company” case as a teachable moment for junior lawyers. While practical, this approach stunts the growth of junior attorneys—often times delaying their exposure to courtroom oral advocacy by many years. Ultimately, this reduces the overall caliber of trial lawyers.

In response, at least 17 federal district court judges have made steps to remedy this problem.[3] Using the judicial version of a bully pulpit, they have issued standing orders that strongly encourage the active participation of junior lawyers in their courtrooms. For example, some suggest that litigants allow junior lawyers to argue motions and examine witnesses. Others offer incentives, such as the possibility of holding an oral argument on motions that would otherwise be decided on the papers if argued by a junior lawyer. All acknowledge the current dearth of junior lawyers appearing before them.

For the first time, an entire Circuit will be considering a resolution that promotes orders encouraging parties to allow argument by junior lawyers. Appellate lawyers representatives of the Ninth Circuit Judicial Conference plan to introduce a resolution next month that will “encourage judges and districts within the Ninth Circuit to adopt rules and orders which support the creation of opportunities for newer lawyers by rule and order.”[4]  The resolution can be found here.

This is an exciting time to be a junior lawyer. Hopefully other judges will soon join “the court[s] [that] believe[] it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally.”[5]

For detailed information about current judicial orders that promote the next generation of lawyers, stay tuned to this webpage, http://nextgenlawyers.com.

[1] Marc Galanter, The Vanishing Trial:  An Examination of Trials and Related Matters in Federal and State Courts, 1 J. of Empirical Legal Studies 459 (2004), http://marcgalanter.net/Documents/papers/thevanishingtrial.pdf.

[2] Marc Galanter and Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Institute 1,4 (2011),http://www.poundinstitute.org/sites/default/files/docs/2011%20judges%20forum/2011%20Forum%20Galanter-Frozena%20Paper.pdf (“Civil jury trial rates have now been below 1.0% since 2005, while bench trials dropped below 1.0% seven years earlier, in 1998.”).

[3] Next Generation Lawyers, http://nextgenlawyers.com (last visited June 27, 2016).

[4] 2016 Resolution, Encourage the Creation of Opportunities for Newer Lawyers by Rule and Order.

[5] Judge Gregg J. Costa, Court Practices and Procedures, United States District Court Southern District of Texas 1, 3 (2015), http://www.txs.uscourts.gov/sites/txs/files/costa_procedures.pdf; Judge Gray H. Miller, Court Procedures, United States District Court Southern District of Texas 1,7 (2015), http://www.txs.uscourts.gov/sites/txs/files/procedures%20with%20att%20forms.pdf.

Written by: Sara Townsend, June 30, 2016