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.

How to Thrive as a Junior Attorney: Lessons Learned from a Conversation with Danielle Coleman, VMware; Kevin Hamel, SAP; and Mary Huser, Airbnb.

On October 22, 2020, ChIPs Next Generation Lawyers and the Berkeley Center for Law & Technology presented an in-house panel discussion on creating and encouraging client-facing opportunities for junior attorneys.

In-house counsels Danielle Coleman (Senior Litigation Counsel, VMware), Kevin Hamel (Head of Global Litigation, SAP), and Mary Huser (Deputy Counsel, Risk and Regulatory, Airbnb) offered insights on their career paths, their perspective on skills required to effectively serve a client or be an in-house counsel, and their initiatives to provide client-facing opportunities for junior attorneys.

The panel was moderated by two litigation associates at Winston & Strawn: Yarden Kakon, Co-Chair of the Next Gen Junior Committee, ChIPs member and co-founder and President of Women in Tech Law and Dillon Kellerman, Co-Chair of the Next Gen Junior Committee.

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 DaWanna McCray, Winston & Strawn litigation associate, Co-Chair of the Next Gen Junior Committee, and former clerk for Judge Tanya Walton Pratt (SDIND).

This post will review lessons learned from this engaged discussion. You can view the full discussion here.  

Topic 1: Path to In-House

Lesson #1: Be open to opportunities.

 No one’s path to in-house is perfect. Be open to ideas and suggestions and you can always go back if you do not like what you are doing” Mary Huser, Airbnb.

Indeed, all three panelists took different and distinct paths to in-house positions. What the panelists all had in common, however, was that they each worked in a law firm before transitioning into an in-house position. In fact, all three panelists agreed that, while it is not impossible for a junior attorney to go directly in-house and be successful, it is beneficial, if not recommended, for a junior attorney to acquire training and development at a law firm before transitioning in-house. As they explained, this is due to the fact that law firms have facilities and systems in place specifically to train and develop skills of junior attorneys that many in-house positions do not have.

Topic 2: Guidance to Junior Attorneys

The panelists then transitioned to advising junior attorneys on how to succeed and attain substantive opportunities.

Lesson #2: Be a service provider.

“Every Lawyer in every firm is an independent contractor and if you are not looking at it this way, then you are doing a disservice to your career. You are only as good as the latest work [you have done] for a partner. Treat finding work as a business opportunity.” Kevin Hamel, SAP.

Lesson #3: Develop yourself as someone people want to work with.

“It’s all about relationships.” Danielle Coleman, VMware.

All three panelists agreed that being able to effectively communicate is vital for a junior attorney, regardless of whether a colleague may have a difficult or easy personality. To the panelists, this also meant being a team player and demonstrating your ability to effectively work with others and also have fun.

Danielle Coleman expressed that learning how to work on and communicate with teams was one of the many important skills she learned working in a big law firm that helped her succeed in-house. On the same note, Danielle Coleman shared that learning to ask for help and “delegating joy” is another skill that junior attorneys should implement while working with others.

When asks to provide advise attorneys on how to continue their development during the COVID-19 pandemic, Danielle Coleman shared that success is contingent on PIE – Performance (10%), Image (30%), and Exposure (60%). Given the social impediments created by the COVID-19 pandemic, Danielle Coleman emphasized that “it is important to make an effort and get out there.” Indeed, Mary Huser encouraged junior attorneys to reach out and engage with colleagues in socially safe ways as a way to build connections and make yourself memorable. Lastly, Kevin Hamel emphasized the importance of staying engaged on videoconferences especially when speaking with a client.

Mary Huser explained that one of the benefits of providing junior attorneys with substantive opportunities on matters is that as junior attorneys become increasingly invested on a matter and the company, this allows for the development of long-lasting relationships between the company and the junior attorneys. 

Lesson #4: Be indispensable.

Kevin Hamel recommended developing a specialty as a way to guarantee your need, whether at a law firm, for a client, or within a company. He shared how as a junior attorney, he developed specialized knowledge on a collection of cases, making him a great resource for others at his firm to rely on. Mary Huser shared a slightly different angle stating that a junior attorney should focus on getting any expertise, even if it is not in just one area of the law.

Lesson #5: Ask.

“No one cares more about your career than you do.” Mary Huser, Airbnb.

Ask – a one-word piece of advice repeatedly recommended by all of the panelists. In fact, Mary Huser expressed that she and other counsels are open to allowing junior attorneys to attain substantive opportunities on matters. She expressed that she will specifically look at two things: (1) the attorney’s writing to know that they are prepared and know the facts of the case and (2) that a partner is willing to support the junior attorney at the hearing.

Indeed, Kathi Vidal, in her closing comments encouraged junior attorneys to ask, recognizing that partners want to be able to provide opportunities but may not always remember to do so.

All in all, we are grateful for our incredible panelists for sharing their perspectives and providing invaluable advice. For junior attorneys reading this, now the burden shifts to you – ask, develop your skills and expertise, and perhaps most importantly, do not forget to have fun.

Written by: Yarden Kakon, Winston & Strawn, November 3, 2020

Pro Bono Cases as an Effective Tool to Provide Junior Attorneys With More Substantive Opportunities

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

Judge Chen Promotes Opportunities for Next Gen Lawyers

Last week Judge Edward M. Chen of the Northern District of California made his commitment to providing professional development opportunities for young attorneys clear when he heard argument from Winston & Strawn associate Karalena Guerrieri on Polycom Inc.’s motion to dismiss infringement claims. In his Standing Order, Judge Chen strongly encourages parties to permit less experienced attorneys to take active roles in cases before him, including argument at motion hearings. Civil Standing Order (General) for U.S. District Judge Edward M. Chen, ¶7.

Polycom supported Ms. Guerrieri in her first oral argument on a motion to dismiss.  Ms. Guerrieri planned to split the argument with  Kathi Vidal, managing partner of Winston & Strawn’s Silicon Valley office, and Samantha Lerner, a partner in Winston & Strawn’s Chicago office. Initially, Judge Chen was interested in hearing from counsel only on the portion of the argument covered by Ms. Vidal, but as argument was wrapping up Ms. Vidal asked Judge Chen if he would hear argument from Ms. Guerrieri. In keeping with his commitment to promote young lawyers, Judge Chen agreed and gave Ms. Guerrieri the opportunity to present the best case for why the plaintiff failed to state a claim for infringement under 35 U.S.C. § 271(g).  Judge Chen engaged on the issues, asked questions, and graciously took the time to help a young attorney practice (virtual) courtroom advocacy.  The Winston & Strawn team hopes this experience encourages others to ask judges who have expressed a commitment to promoting young attorneys to hear argument from our Next Gen lawyers.

The Winston & Strawn team on behalf of Polycom, Inc.

Judges Albright, Lynn, and Tigar Encourage Argument by Junior Lawyers

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

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