Rising to the Challenge: Junior Attorneys Utilize Expert Witnesses in the Courtroom
Originally published in The New York Law Journal , an ALM Media publication, on March 31, 2017. By: Michael Rader Much ink has been spilled in recent years about the "vanishing jury trial" in America. With fewer jury trials and more at stake in many of the cases that are tried (for example, large patent infringement cases), opportunities for junior attorneys to participate meaningfully in trial advocacy have evaporated. Federal judges have increasingly expressed concern about who will be prepared to try the complex cases of the next generation. Creating opportunities for young lawyers to take an active role in today's trials is not, however, just a way of preparing the legal profession for the future. It is also an important strategy for serving clients in the present. Young lawyers often work more closely than senior lawyers with the witnesses who will testify at trial and are in a unique position to present those witnesses' direct testimony. Eager to gain trial experience, young lawyers invariably bring an outstanding level of preparation to the task. Finally, advocacy by young lawyers can be refreshing—and most importantly, persuasive—to judges and juries. Earlier this year, an organization called Chiefs in Intellectual Property (ChIPs) published a survey identifying 19 recent orders from federal judges across the country encouraging law firms to provide relatively inexperienced lawyers with opportunities for trial advocacy and oral argument. For example, Judge Indira Talwani of the District of Massachusetts issued a standing order in 2015 directed expressly to "Courtroom Opportunities for Relatively Inexperienced Attorneys." It provides: "Recognizing the importance of the development of future generations of practitioners through courtroom opportunities, the undersigned judge, as a matter of policy, strongly encourages the participation of relatively inexperienced attorneys in all court proceedings including but not limited to initial scheduling conferences, status conferences, hearings on discovery motions and dispositive motions, and examination of witnesses at trial."Similarly, a standing order concerning the conduct of jury trials, issued by Judge William Alsup in the Northern District of California in 2016, explains: "The Court strongly encourages lead counsel to permit young lawyers to examine witnesses at trial and to have an important role. It is the way one generation will teach the next to try cases and to maintain our district's reputation for excellence in trial practice." Many of the standing orders directed to participation by junior lawyers include provisions requiring adequate preparation and supervision by more senior lawyers (which would surely be implicit in any event). Others include a variety of other special provisions. For example, a standing order issued in early 2017 by Magistrate Judge Christopher Burke in the District of Delaware indicates that the court will make an extra effort to grant oral argument—and will strongly consider allotting additional time for oral argument—when young lawyers are slated to argue. A review of the standing orders compiled by ChIPs shows a strong trend of increasing judicial concern about this issue. While eight such orders were issued between 2005 and 2015, 10 were issued in 2016 alone. It is now a best practice, in addition to scrupulously following applicable local rules, for counsel to check whether a judge has a standing order concerning the participation of young attorneys. As always, it is important to know the judge, who may have strong feelings about this issue even if he or she has not issued a standing order. For example, Judge Allison Burroughs of the District of Massachusetts makes it a practice to offer law firm associates an opportunity to argue a motion even after the lead attorneys have finished their presentation on that same motion. In January 2016, she wrote in the Boston Bar Journal that she hopes "litigants will see it as an opportunity to make their points one more time, rather than as a potential pitfall for the young and unwary." Associates attending court hearings should make a special point of being well-prepared to take judges like Judge Burroughs up on such an offer. While many of the judges who have issued standing orders like those discussed above have done so out of concern for the future of the trial bar, law firms and clients should appreciate that involving junior team members in trial work and oral argument has a more immediate impact: It benefits a client's representation in multiple ways. When it comes to examining a witness at trial, junior lawyers frequently have a distinct advantage over their more senior colleagues. It is very often the junior lawyer who spent significant time with the witness during the discovery process and in the weeks and months leading up to the trial. In the case of an expert witness, the junior lawyer probably played a key role in drafting the expert report. In the case of a fact witness, the junior lawyer probably worked with the witness to prepare a detailed outline of the direct examination. Direct examination is challenging, and it is critical that the examining attorney and the witness know each other well. Knowing the witness is even more important for re-direct, which is impossible to script fully in advance. Successful re-direct requires knowing what the witness knows and what the witness will say when questioned on a topic. Cross-examination may cover unanticipated subjects, making it difficult to conduct re-direct without the rapport that comes from a lawyer and a witness having spent significant time together. With that in mind, clients should appreciate that the individual best positioned to present a witness's direct testimony at trial may be the junior attorney who worked with that witness over the course of the case. As numerous standing orders reinforce, it is crucial for senior counsel to ensure that junior attorneys are well-prepared for every task. The investment of time required to prepare a junior attorney to examine a witness or conduct an important argument can be substantial, but this type of hands-on mentoring is one of the most rewarding aspects of legal practice. With few if any exceptions, junior lawyers avail themselves of mentoring and prepare extremely well when given such opportunities. In 2011, Judge Denise Casper of the District of Massachusetts observed that earlier standing orders from judges in her district "had the desired effect of having more well-prepared junior attorneys attend status conferences, argue motions to the Court, and, under appropriate supervision, examine witnesses at trial." It is understandable that clients expect senior lawyers to argue important motions and present important witnesses, and senior lawyers certainly must earn their keep. However, clients should also keep an open mind and be prepared to discuss staffing decisions with senior lawyers, who may exercise their professional judgment to instead prepare a junior lawyer to undertake some of those same tasks. Involving diverse talent in trial work and oral argument also helps hold the interest of the audience (whether judge or jury). In patent litigation, for example, most cases involve a claim construction hearing (known as a Markman hearing) that can last several hours or sometimes even multiple days. A single advocate, no matter how talented, may begin to bore the judge after many hours at the podium. A change of pace is almost always welcomed by judges and juries alike.