Category Archives: Korein Tillery

Millennials in the Court Room: Judges Ready to Hear from Younger Attorneys

Law firms are no longer the bastions of old, white men that they used to be, but most courtrooms don’t reflect the updated statistics. Some judges are ready to address that by explicitly encouraging participation from some of those least likely to appear before them: young attorneys.

In 2015 Judge Edward Davila of the Northern District of California issued a standing order “strongly encouraging parties to permit less experience[d] lawyers to actively participate in the proceedings.”[1] Judge William Alsup of the Northern District of California similarly issued a standing order in 2016 permitting lawyers with less than five years of experience to argue motions that the judge might otherwise decide on the papers.[2]

Judges have even begun weighing the presence of younger attorneys in lead counsel appointment decisions in Multidistrict Litigation cases. Examples of this trend include In Re: Ethicon, Inc., Power Morcellator Products Liability Litigation, where Judge Kathryn Vratil listed the following as criteria for lead counsel appointment: “achieving a leadership team that … achieves diversity with respect to gender, race, national origin, geography, years of practice, age and other relevant factors.”[3] Additionally, Judge Cynthia Rufe of the Eastern District of Pennsylvania highlighted in In re: Generic Digoxin and Doxycycline Antitrust Litigation that “the Court expects that the leadership will provide opportunities for attorneys not named to the PSC, particularly less-senior attorneys, to participa[te] meaningfully and efficiently in the MDL, including through participation in any committees within the PSC and in determining which counsel will argue any motions before the Court.”[4]

Judge Jack Weinsten of the Eastern District of New York adopted similar practices in his individual courtroom rules. In setting out rules discussing the makeup of lawyers appearing before the bench, he wrote that “junior members of legal teams representing clients are invited to argue motions they have helped prepare and to question witnesses with whom they have worked .… Where junior lawyers are familiar with the matter under consideration, but have little experience arguing before a court, they should be encouraged to speak by the presiding judge and the law firms involved in the case. This court is amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer to participate.”[5]

According to Judge Weinstein, this order was inspired by a conversation with former Judge Shira A. Scheindlin (former District Judge for the Southern District of New York) about a 2015 report from the New York City Bar Association.[6] The 2015 NYCBA study found that female law students make up roughly 50% of graduating law school classes and have done so for the past two decades.[7] And yet, as of 2015, only 35% of lawyers at surveyed firms were women and women held an 18.4% attrition rate from those firms.[8] That same year, women held only 18% of all equity partner positions. Of the 558 civil cases surveyed by the NYCBA, 32% of all lawyers and 24% of lead counsel were women. In class action cases, 13% of lead class counsel were women and in the 50 criminal cases studied, only 33% were women.[9]

Arguably, junior status is a useful proxy for considerations like gender. Younger attorneys are more likely to be part of traditionally underrepresented groups, which include women, people of color and/or those who are LGBTQ-identifying. The National Association for Law Placement’s 2017 Report on Diversity found that Asian associates make up 11.4% of all associates, Hispanic associates made up 4.57%, and Black/African-American associates make up 4.28%. However, minorities in total made up only 8.42% of partners in major firms and women made up only 22.7% of partners. Finally, 2.64% of lawyers overall reported as openly LGBT, compared with 3.45% of associates identifying as LGBT.[10]

Critics of Weinstein and others might argue that focusing on experience level allows judges to skirt the controversy associated with diversity initiatives. Diversity is often contentious, as evidenced by controversy over the Trump administration’s recent decision to rescind the Obama-era guidelines that encouraged school administrators to consider race as they compose a student body.[11] Even well-meaning progressives might object to these judicial initiatives for improving diversity, fearing that they will lead to firms putting minority lawyers in front of a judge for brownie points while doing little to remedy the structural deficiencies that result in high levels of attrition for attorneys from underrepresented groups.

Even aside from such arguments, valid critiques remain over judges pushing for younger attorneys to take on more meaningful roles in high stakes litigation. Law firms may rightfully point out that experienced attorneys take the lead because they are, in fact, experienced. Putting a multi-million dollar (or larger) case and hours of witness preparation time in the hands of someone learning how to prepare, defend, and/or examine a witness mere months or years after passing the bar exam may be ill-advised. However, to assuage fears of unprepared attorneys taking the lead, many of the judicial standing orders stress that lawyers conducting hearings should demonstrate a level of professionalism and case knowledge befitting someone appearing before the bench, and/or make accommodations that allow senior attorneys to play an active role in supervising a junior attorney thrust into an oral argument or witness examination.[12] Additionally, these judicial rules are not mandates. For instance, Weinstein’s updated rule noted that the lawyers in charge of the case, not judges, have the final say on their representation.[13]

The benefit to junior attorneys, however, is undeniable. Encouraging junior attorneys to take the lead while senior counsel act as a supervising second chair is exactly the type of training that law firms should be providing their associates. That kind of mentorship is frequently lacking. In a bit of a chicken-and-the-egg problem, junior attorneys are now much less loyal to their firms while the increasing importance of the lateral market seems to encourage senior attorneys to view associates as easily replaceable. A system that encourages younger attorneys to speak in court could facilitate associate buy-in, boost retention rates within law firms, and encourage more senior attorneys to actually invest in the growth and development of their more junior colleagues.

Overall, this growing trend of judicial encouragement for younger attorneys seems to be a net positive. It facilitates attorney diversity, pushes firms to recognize and train young attorneys, and ultimately creates a more healthy and sustainable profession.

[1]https://nextgenlawyers.com/wp-content/uploads/2017/02/JudicialOrdersRegardingNextGen.docx-2.pdf

[2] https://nextgenlawyers.com/wp-content/uploads/2017/02/JudicialOrdersRegardingNextGen.docx-2.pdf

[3] In re: Ethicon, Inc., Power Morcellator Products Liability Litigation, MDL # 2652, (D. Kan.).

[4] In re: Generic Digoxin and Doxycycline Antitrust Litigation, MDL # 2724, (E.D. Pa.).

[5] https://abovethelaw.com/2017/08/hero-federal-judge-takes-steps-to-increase-meaningful-experience-for-diverse-lawyers/?rf=1

[6] https://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html/

[7] Liane Jackson, How can barriers to advancement be removed for women at large law firms?, ABA Journal (Jan. 1, 2017), http://www.abajournal.com/magazine/article/visible_difference_women_law

[8] Liane Jackson, How can barriers to advancement be removed for women at large law firms?, ABA Journal (Jan. 1, 2017), http://www.abajournal.com/magazine/article/visible_difference_women_law

[9] http://www.nysba.org/WomensTaskForceReport/

[10]https://www.nalp.org/uploads/2017NALPReportonDiversityinUSLawFirms.pdf

[11] https://www.nytimes.com/2018/07/03/us/politics/trump-affirmative-action-race-schools.html?smid=tw-nytimes&smtyp=cur

[12] https://nextgenlawyers.com/wp-content/uploads/2017/02/JudicialOrdersRegardingNextGen.docx-2.pdf

[13] https://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html/