New Attorneys in Trial - Bar Association of San...

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New Attorneys in Trial Learn how newer attorneys can get to trial in their first years of practice and why it’s important Speakers Honorable Angela M. Bradstreet Superior Court of San Francisco Doris Cheng Partner, Walkup, Melodia, Kelly & Schoenberger Moderator Audrey Siegel The Cartwright Law Firm Tuesday, June 25, 2019 Location: BASF Conference Center •301 Battery Street • San Francisco, CA Event Code: B191443

Transcript of New Attorneys in Trial - Bar Association of San...

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New Attorneys in Trial Learn how newer attorneys can get to trial in

their first years of practice and why it’s important

Speakers

Honorable Angela M. Bradstreet Superior Court of San Francisco

Doris Cheng

Partner, Walkup, Melodia, Kelly & Schoenberger

Moderator

Audrey Siegel The Cartwright Law Firm

Tuesday, June 25, 2019

Location: BASF Conference Center •301 Battery Street • San Francisco, CA

Event Code: B191443

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New Attorneys in Trial

Speakers and Moderator Bios

Honorable Angela M. Bradstreet

ANGELA M. BRADSTREET is a judge in the Superior Court for the City and County of San Francisco. Before her appointment to the Court in September 2010 she served as the State Labor Commissioner. With 25 years experience in commercial and employment litigation at a major local law firm, Judge Bradstreet was selected as one of the top 75 female litigators in California in 2005. Ms. Bradstreet is a former President of the Bar Association of San Francisco, California Women Lawyers and the Queen’s Bench Bar Association and is the creator of the No Glass Ceiling Initiative that has been endorsed by over 90 law firms and corporate legal departments. She is a recipient of the California State Bar’s Diversity Award, the Minority Bar Coalition’s

Unity Award and the Anti Defamation League’s Jurisprudence Award. She is also the recipient of the Margaret Brent Award, the highest award given by the American Bar Association in recognition of accomplishments of women lawyers who have excelled in their field and been leaders in advancing women in the legal profession. Judge Bradstreet also received the Barristers Club 2016 Judges Award. In 2017, San Francisco Trial Lawyers honored Judge Bradstreet as Judge of the Year.

Doris Cheng

Doris Cheng is ranked as one of the top 50 women lawyers in Northern California. She is listed among the Best Lawyers of America®, SuperLawyers® and San Francisco Best Lawyers. Specializing in complex injuries caused by third party fault, Ms. Cheng has obtained multi-million dollar settlements and verdicts on behalf of disabled citizens throughout California. Ms. Cheng is the current President of the San Francisco Bar Association and a Past President of the San Francisco Trial Lawyer Association. She is a member of the American Board of Trial Advo- cates and the American College of Trial Lawyers. She is a co-author of The Rutter Group’s California Practice Guide on Personal Injury.

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Audrey Siegel

Audrey Siegel is a personal injury trial attorney at The Cartwright Law Firm specializing in complex motor vehicle accidents, product liability, and premises liability claims. She was awarded Outstanding Barristers Award from the San Francisco Bar Association in 2017, was a Finalist for San Francisco Trial Lawyers Association (“SFTLA”) Trial Attorney of the Year in 2016 (as a member of a team), and a Finalist for the SFTLA New Lawyers Division Outstanding New Lawyer Award in 2017 and 2018. In addition. She was also selected to the Northern California Super Lawyers “Rising Stars” List in 2018.

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Outline /Questions for New Trial CLE Moderator: Audrey Siegel, The Cartwright Law Firm Panelists: Honorable Angela Bradstreet, San Francisco Superior Court Doris Cheng, Walkup Melodia Kelly & Schoenberger Brittany Rogers, Law Offices of Scott Righthand

I. Introduction: A. New trial dilemma/intro B. Need for more minority and women as trial attorneys Materials:

- Doris Cheng, San Francisco Trial Lawyer, President’s Report: Advancing Women in the Law (Fall 2018)

- Stephanie A. Scharf & Roberta D. Liebenberg, ABA Commission on Women in the Profession, First Chairs at Trial: More Women Need Seats at the Table – A Research Report on the Participation of Women Lawyers as Lead Counsel and Trial Counsel in Litigation (2015).

II. Why it’s important that newer lawyers try cases

A. Understanding the process B. Gaining credibility/confidence C. Gaining experience D. Future of profession

Materials:

- Erin Coe, Law360, An Endangered Art, Can The Legal Industry Keep Trial Advocacy Alive? (March 13, 2017)

III. How newer lawyers can get trial experience A. Pro bono opportunities

1. Advantages a. Give a voice to the unrepresented b. Training, experience, and opportunity c. Business development d. Highly regarded by judges e. Meet new and interesting people

2. Opportunities a. JDC Opportunities b. Public Advocates

B. Faster trial options

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1. CCP § 630.1Expedited jury trial is consensual, binding jury trial before a reduced panel and a judicial officer (CCP § 630.1 et. seq.)

a. By agreement/proposed order b. Binding unless all parties stipulate or court finds good cause

following noticed motion c. Case must be filed d. Requires approval for self-represented litigant, minor, or where

conservator has been appointed e. Must agree to the following:

i. Waive any motions for directed verdict, motions to set aside verdict or any judgment,

ii. Waive right to any post trial motions other than motions for costs and attorney’s fees, motions to correct a judgment for clerical error, and motions to enforce a new judgment

iii. Waive right to move for new trial other than for judicial misconduct, misconduct of jury, or corruption or fraud)

iv. Up to five hours to complete voir dire and present case v. Eight or fewer jurors with no alternates

vi. Each side limited to three peremptory challenges. Court may permit additional juror per side where more than two sides under CCP 231(c) court determines to allow additional jurors where more two or more sides

vii. May stipulate to relaxed rules of evidence viii. Right to issue subpoenas and notices to appear may be

limited ix. Verdict binding subject to high/low agreements x. Vote by six of eight jurors (or as stipulated)

2. High/low agreement - a written agreement entered into by the parties that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury.

a. Neither the existence of, nor the amounts contained in, any high/low agreements may be disclosed to the jury.

3. Damages only C. Gaining Support

1. From your firm/sponsors a) Talk to mentors (in and outside of firm) about priority for trial

experience b) Effective ways to discuss with supervisors

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2. Role of client relationships 3. Judicial Orders Encouraging Opportunities for Junior Lawyers

a) The San Francisco Superior Court Presiding Judge/Master Calendar Page (Hon. Judge Garrett L. Wong presiding) includes the following Notice to Attorneys Regarding Newer Practitioners, “The Court believes in supporting the development of our next generation of trial attorneys. To that end, the Court encourages parties and senior attorneys to allow newer practitioners in Civil actions the opportunity to participate in court, either by arguing motions or examining witnesses at trial.”

b) Next Generation Lawyers

Materials: - California Rules of Civil Procedure, Chapter 4.5 Voluntary Expedited Jury Trials

[630.01 - 630.11] - Judicial Orders Providing/Encouraging Opportunities for Junior

Lawyers, www.NextGenLawyers.com (2/10/17) Opportunities:

- BASF Justice & Diversity Center Pro Bono Opportunities - Most projects provide training, supervision, and on-going case support from JDC supervising attorney and/or mentors

- Full scope Eviction Defense Project: JDC's full scope Eviction Defense Project provides representation to clients during their eviction proceedings. These cases provide excellent litigation experience as the procedures are the same as those involved in business litigation-discovery, motions, settlement, and trial-on a more manageable level.

- Housing Negotiation Project (HNP): JDC’s Housing Negotiation Project is a limited-scope project providing representation to individuals and families facing eviction. Representation is limited to settlement conferences only. HNP is the first pro bono project of its kind, and is a project in which every single person in need of representation has a pro bono attorney.

- Tort Defense Project: JDC's Tort Defense Project provides full-scope representation to clients defending themselves against a tort claim. JDC does not offer training and relies solely on the expertise of the attorney. If you have five or more years of experience in this area, JDC will simply add you to their Tort Defense panel, and you will be notified whenever we receive available cases. The JDC typically place 1-2 cases a month.

- The Consumer Project: The Consumer Project advises low-income clients at JDC’s Consumer Debt Defense and Education Clinic (CDDEC). Through JDC’s CLE training, volunteer attorneys will be trained on the hot topic of collection defense law in order to assist clients who have been sued by creditors. At the Clinic, volunteers have the opportunity to individually counsel clients and

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possibly draft in pro per litigation documents. Other opportunities may include negotiating on behalf of clients and representing them at hearings or even trial.

- https://www.sfbar.org/forms/barristers/pro-bono-resource-guide.pdf - www.probono.net/sf/volunteer/

IV. Performing effectively in the courtroom/tips

1. Decorum 2. Telling trial judge/opposing counsel

- Possible help/in chambers - Downside with opposing counsel

Materials:

- Elizabeth K. Baron Ancel, Illinois Association of Defense Trial CounselTo the Young Lawyer: Tips for Court Appearances IDC Quarterly Vol. 24 No. 2

Upcoming/Recommended Programs:

- Bar Association of San Francisco - Justice and Diversity Committee:

- Introduction to Landlord-Tenant Law (July 9, 2019) - Housing Negotiation Project Training (July 9, 2019) - Consumer Debt Defense and Ed. Clinic (Wed 6-9 pm) - Women In Trial Two-Day Training (July 19 - 20)

- ABA/ABOTA National Trial Academy (2019 TBD) - AAJ Trial College: Essentials of Civil Litigation (2020 TBD)

V. Questions/Comments

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2.0ADVANCING WOMEN IN THE LAW

PRESIDENT’S REPORT

Doris Cheng

The following are excerpts from

Doris Cheng’s remarks at her

December 18, 2018 installation

as the 2019 president of the Bar

Association of San Francisco.

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PRESIDENT’S REPORT

Spanish philosopher George Santayana said, “Those who cannot remember the past are condemned to repeat it.” Santayana was talking about the importance of our conscious retention of history. Change is not progress unless we can retain it. If we cannot remember where we have been or how we arrived here, we

have no direction for possible improvement. The drive for progress begins by understanding the past.

It bears remembering the roots of progress within the Bar Association of San Francisco (BASF)—over a hundred years of pro bono service to our community, and in the last sixteen years, a focus on advancing women in the law:

• BASF was founded in 1872.• In 1916, BASF created the San Francisco Legal

Aid Society. More than a hundred years later, the organization now known as Legal Aid at Work continues to serve thousands of low-income families, enforcing and strengthening their workplace rights.

• In 1977, BASF, with Jim Brosnahan as president, started the Volunteer Legal Services Program, responding to the growing unmet need to provide legal services for those who could not afford legal representation. Four decades later, the program, which has grown into the Justice & Diversity Center (JDC), continues to deliver pro bono legal representation in family law, domestic violence cases, landlord-tenant, consumer, and collection defense, to name just a few of its focus areas.

• In 1988, the creation of the Homeless Advocacy Program was a direct response to San Francisco’s homelessness population.

• In 1997, then-BASF President Jeffrey S. Ross collaborated with the San Francisco Unified School District to start the Law Academy, which brought paid internships and mentoring to underprivileged and ethnically diverse youth in public high schools.

• In 2002, Angela Bradstreet launched the No Glass Ceiling Initiative during her tenure as BASF president, promoting the advancement of women and minorities in private law firms. The No Glass Ceiling Initiative garnered wide support from major law firms across the country.

• The No Glass Ceiling Initiative resurged with new goals in 2010, asking law firms and corporate legal departments to strive for 30 percent women in management positions by 2015.

• Last year, 2018 BASF President Malcolm A. Heinicke reinvigorated the Women’s Committee in support of No Glass Ceiling 2.0.

These milestones are among the many reasons we are all proud to be members and volunteers of BASF and JDC.

Doris Cheng, addressing members and guests at the annual membership luncheon in December. Photo by Jim Block.

CHANGE IS NOT PROGRESS UNLESS WE CAN RETAIN IT.

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This rich history resonates with my personal development and my own hopes for progress.

I am a first-generation native San Franciscan, a graduate of the public school system, having attended Argonne Elementary School, Herbert Hoover Middle School, and Lowell High School.

As children of Chinese immigrants who fled the Japanese occupation and then Communism, my parents strived to give us better opportunities in the land of plenty. We lived right below Laurel Village in an ethnically diverse neighborhood with Caucasian, African, Chinese, and Vietnamese Americans. We learned how to integrate exactly as is naturally occurring in a melting pot. We learned that kindness begets kindness, and if you helped one of your neighbors, they helped you back. We understood the importance of having a community.

Because the women’s movement was a steady presence during my childhood—I saw posters for equal rights and the National Organization of Women throughout my neighborhood as a child—I benefited from the progress. It

was imprinted in my subconscious that I could do as much or more than any boy. I had certainly seen my mother do it, and so I don’t think I gave much thought to a girl’s place, and certainly not a woman’s place, until a certain track meet in middle school.

In sixth grade, I competed in the boys’ division for the 100-yard dash and the 4 x 1 relay. No one seemed to have a problem with that until we had a track meet against James Denman Middle School. As I dug my cleats into the starting blocks and set my fingers into the dirt, a boy from Denman looked over at me, jumped out of his blocks as if electrocuted, and accusingly exclaimed, “She’s a girl! She’s a girl! If I get beat by a girl, I’m quitting!” I was a little startled. And for an anxious moment, I felt as if I didn’t belong there. At the end of that race, however, I did wonder if I was ever going to see that boy again.

Sometime during that spring season, I recognized a valuable truth. The field was level, so long as no one held me back, and the field was accessible, so long as my coaches and my teammates supported my presence there. It is a timeless truth.

In my career as a plaintiff’s lawyer, representing individuals who have suffered physical and emotional loss, it has been my blessed fortune to have partners and peers who always supported me on the litigation battlefield. The invisible bands of support that connected me to a long tradition of trial warriors empowered me.

Those bands of support held me up when my male opposing counsel refused to address me by name and called me “Miss” as if to reduce me to a cyborg. “Miss here is making an objection.” And better yet, “I’m not talking to Miss.” As Santayana observed, change is not progress if there is no retention; if our current experience feels like 1973 when “Notorious RBG” argued before the Supreme Court, “I ask no favor for my sex. All I ask of my brethren is that they take their feet off our necks.”

I was in Arkansas a couple of years ago, prosecuting a civil rights case against two Little Rock police officers who shot and killed a sixty-seven-year-old black man in

Our blueprint for 2019 will

focus on our courts, advocacy

skills to protect people’s rights,

and, at the helm of this—

women trial lawyers.

PRESIDENT’S REPORT

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8 SPRING 2019 THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 9

his own home. I walked through the doors of the federal courthouse and was immediately interrogated by the court security officer, who asked why I was there. “Who are you here to see?” “Do you have an appointment?” “Is the judge is expecting you?” “Are you a lawyer?” And finally, after I passed through the metal detector, “You’re not from around here, are you?” I could not tell whether I was singled out because I was Californian, Asian, female, a combination of all of the above, or what. But no member of the public citizenry should feel intimidated in a public courthouse. We must have the courage and wisdom to challenge such attitudes of exclusion when confronted by them.

I have been fortunate to have mentors, partners, and peers who have not held me back in my arena and who have supported me being there. In our trial lawyer firm,

we encourage each other at every righteous opportunity to stand up and say, “Good morning, members of the jury” and “May it please the court.” That’s because, as Thomas Jefferson said, the trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” The jury trial is a vital part of the system of checks and balances and prevents tyranny. The greatest danger to our democracy is the absence of participation in the jury system, whether by voluntary withdrawal or exclusion. And so let me again say thanks to my family at home and my family at work for these blessings. We believe in the right of every competent lawyer, whether man or woman, whether black, white, Asian, or Muslim, to fight for our clients in the courtroom.

PRESIDENT’S REPORT

From left, Michael Kelly, Conor Kelly, Doris Cheng, Richard Schoenberger, and Sara Peters, all of Walkup, Melodia, Kelly & Schoenberger. Photo by Jim Block.

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10 SPRING 2019 THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11

We know that my good fortune is not commonplace because when I attend trial lawyer conferences, I am frequently asked, “Where are the women trial lawyers?” After having been asked that same question so many times, it seems obvious that our profession needs to grow them. The need for diverse legal representation is even more important in a climate where diversity, race, religion, gender, and sexual orientation are at the heart of controversies. We need greater diversity in the courtroom where women and people of color will not be held back, and we need partners and peers to promote their presence in that arena. Otherwise, we will never learn from history, and the answer to the often repeated question, “Where are the women trial lawyers” will remain, “Not here.” The sustained under-utilization of powerful voices is not progress.

In 1967, Martin Luther King Jr. challenged the students at Barratt Junior High School in Philadelphia to think about what is in their life’s blueprint. He cautioned that in this crucial moment, what they decide may well determine which way their life will go. Here at BASF, what we decide will determine this great organization’s path. Our success starts with, as Martin Luther King describes it, “a proper, solid and sound blueprint.”

Our blueprint for 2019 will focus on our courts, advocacy skills to protect people’s rights, and, at the helm of this—women trial lawyers.

In our 2019 blueprint, BASF and JDC will launch the Woman In Trial Initiative. The program is not strictly limited to women. I know that you will all want to participate. We will build upon the public service programs begun over a hundred years ago and the women’s initiatives that are the pioneering hallmark of this organization. We already have partnerships with the United States District Court as well as the Superior Court for pro bono representation. Our pro bono programs need smart, energetic, and skilled advocates to assist with cases related to family law, child custody, spousal support, eviction defense, debt collection, prisoner rights, and other matters.

In 2019, we will institute two two-day trial skills training courses with the calling primarily for women and minority attorneys. The training will follow the National Institute of Trial Advocacy (NITA) learning-by-doing model. The attorneys will receive lectures on the topics of opening statements, closing arguments, as well as direct- and cross-examination. Performance workshops with video review will give them instant feedback tailored to their respective performances. Experiential learning develops muscle memory to handle issues under pressure because the workshops simulate a real courtroom experience.

The teaching faculty will include judges and experienced trial lawyers. Some of you may already be familiar with NITA. Jim Brosnahan is one of its founders. I have been running these training programs nationally and internationally—in Eastern Europe, Asia, the U.K., and most recently in the Caribbean—with the National Center for State Courts over the past four years. These programs work. The best part is that the feedback is based on the performance and so it teaches to the level of the attorney. This is effective whether you are a new lawyer or an experienced one.

PRESIDENT’S REPORT

From left, Past Presidents Judge Angela Bradstreet and Nanci Clarence

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10 SPRING 2019 THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11

Turn the page for more photos from the Annual Membership Luncheon and Installation of Officers on December 18, 2018.

Visit our page on Facebook at www.facebook.com/sfbar to see these and other photos. All photos by Jim Block.

[Editor’s note: The first training program was held in February 2019.] The second training program will be held July 19-20. (See ad on page 15.)

We only ask that the attorneys who take the training course commit to taking on one pro bono case this year. We ask that the law firms commit to supporting and promoting their female attorneys in trial. We already have support from numerous law firms and judges. Let us make a change, surge our Women in Trial, and continue our progress. As Martin Luther King, Jr. said, “Keep it moving.”

Also in our blueprint is the charge to promote judicial independence. Our judicial branch has been marginalized with severe budget cuts and attacks by the executive branch. In December, Chief Justice Tani Cantil-Sakauye sounded the alarm, stating that “the people uttering the attacks on the judiciary are doing damage, short-term and long-term, to courts, to the rule of law.” She called for our resolve, stating “We as a branch (of government) need to defend our own. The best way to do that is to promote civics education and invite the public into our courtrooms.”

BASF and JDC will answer the call through civics education programs, including our existing School-to-College, Law Academy, Mock Trial, Lawyers in Schools, Day in Court, and Destination Law School programs. We will redouble our efforts to support the chief justice and our sitting judges by reinforcing the rule of law and the importance of an independent judiciary in all of our messaging. Keep it moving.

I’ll close with some thoughts from great scientists about progress. Stephen Hawking said, “Our understanding doesn’t advance just by slow and steady building on previous work. Sometimes as with Copernicus and Einstein, we have to make the intellectual leap to a new world picture.” Where Sir Isaac Newton said, “If I have seen farther, it is by standing on the shoulders of giants,” Hawking suggested that we use the shoulders of giants as a springboard.

As your 106th president, I stand on the shoulders of giants—on the shoulders of our past presidents, as well as our executive directors, current Executive Director Yolanda Jackson and former Executive Director Drucilla Ramey.

I ask our existing, new, and yet-to-be members of the Bar Association of San Francisco and volunteers with the Justice & Diversity Center: Stand with me and let us leap off their shoulders to a new picture in 2019.

Doris Cheng is a partner with the law firm of Walkup, Melodia, Kelly & Schoenberger. She specializes in catastrophic injury cases arising out of product liability, premises liability, vehicular negligence, medical negligence, governmental liability, and civil rights violations. She is a member of the American Board of Trial Advocates, American College of Trial Lawyers, and International Academy of Trial Lawyers.

We need greater diversity in

the courtroom where women

and people of color will not

be held back, and we need

partners and peers to promote

their presence in that arena.

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More WoMeN Need SeATS AT The TAble 7

This report and the research underlying it were inspired by our everyday experiences as trial lawyers. We have represented clients in lead

roles in many different matters and in many federal and state court jurisdictions. Yet, far too often, when we enter a courtroom filled with lawyers on a range of cases, each of us is either the only woman lead counsel or, at best, one of only a few women taking the lead in court or in major parts of litigation.

Women have been attending law school and enter-ing the legal profession in substantial numbers for the past 30 years.2 When we began practicing law, we assumed, along with many others, that as the number of women lawyers increased, so too would the number of women in leadership roles. But women have not advanced into the highest levels of private practice or of corporate law departments at anywhere near the same rate as men. Today, for example, only 17% of equity partners in big firms and 22% of general coun-sel in the Fortune 500 are women.3

Beyond some basic data about job categories at senior levels, the legal profession has almost no sys-tematic data about men and women in their everyday practice, including whether and how they obtain the necessary skills and experience to advance into lead roles. The NAWL Annual Surveys have filled some

data gaps by providing a longitudinal view of the retention and advancement of women lawyers in big firm practice.4 But we are not aware of any study that has systematically examined, based on representative data, the specific roles that women and men play on client matters, such as whether women are equally likely as men to be lead trial lawyer or lead deal lawyer.

This study is the first of its kind to provide an empirical snapshot of the participation of women and men as lead counsel and trial attorneys in civil and criminal litigation. In addition, the study examines various objective factors that may help explain why women occupy leadership positions in certain types of cases for certain types of clients. It is our hope that this study will lead to the development and imple-mentation of specific policies and best practices to enhance the opportunities for women to take the lead

FirsT ChAirs AT TriAlMore Women Need seats at the TableA Research Report on the Participation of Women Lawyers

as Lead Counsel and Trial Counsel in Litigation

Stephanie a. Scharf and roberta d. Liebenberg1

22%: General Counsel of fortune

500 Companies

17%: equity partners in BiG firms

17+83A 22+78+AWomen in the Profession

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8 firST ChAirS AT TriAl

in the courtroom and be involved in the critical phases of cases.

Bearing those goals in mind, and with a focus on using readily available empirical data with the expec-tation that the research can be replicated in various jurisdictions and over time, we aimed to:

a. obtain benchmark statistics about the role of women in litigation;

b. identify characteristics of cases, law firms, and clients that may affect the roles played by women and men in litigation;

c. provide insights into what firms, law schools, clients, judges, and individual lawyers can do to enhance the prospects for women to serve as lead counsel; and

d. provide a research template for use in multiple jurisdictions in order to understand on a more comprehensive basis the factors for advancing women into lead counsel roles.

Several organizations and individuals were semi-nal to the research. The American Bar Association’s Commission on Women in the Profession and the American Bar Foundation provided financial support and a welcome intellectual context for conducting the research. The Honorable Ruben Castillo, chief judge of the United States District Court for the Northern Dis-trict of Illinois, encouraged the research and provided thoughtful views about addressing the results. Robert Nelson, director of the American Bar Foundation and professor of sociology, Northwestern University, was an early advocate for the research and provided thor-ough and valuable comments about the results. Jen-nifer Woodward conducted the random sample and much of the data coding. Jill May conducted additional data coding and patiently completed the many detailed data analyses. Jill was generous with her time and with her intellectual enthusiasm. Michele Coleman Mayes, current chair of the Commission on Women, has championed the study with gusto. Barbara Leff, com-munications and publications manager of the Com-mission on Women, reviewed multiple drafts without complaint and with a thoroughly professional eye to editing. Melissa Wood, director of the Commission on

Women, provided just the right administrative advice. We are grateful for all of their support.

study design and methodologyFederal courts require a relatively detailed intake form for all filed cases as well as individual attorney appearance forms. All of that information is available through Public Access to Court Electronic Records (PACER), the public access service that allows users to obtain case and docket information online from fed-eral courts. The required information provides the basis here for analyzing the level of participation of women as lead counsel and as trial attorney.

To perform the research, we took a random sample of all of the cases filed in 2013 in the United States District Court for the Northern District of Illinois. We chose the Northern District of Illinois for four principal reasons:

1. The Northern District of Illinois is a large and diverse locale. No single type of case dominates the docket.

2. As a group, the firms located in the geographic locale of the Northern District of Illinois are diverse with respect to size, employment of men and women, and types of cases and clients.

3. As with other federal courts, there is robust infor-mation about each filed case as reflected in the required Civil Cover Sheet for each newly filed lawsuit.

4. There is information in the lawyer appearance form showing by self-designation whether a lawyer is “lead counsel” and/or “trial attorney” or not. The Northern District classifies lawyers as members of its Trial Bar based on certain experi-ence in the courtroom.5 Only members of the Trial Bar can appear as trial attorney in a given case.

Using the PACER system, we randomly selected 558 civil cases filed in 2013.6 There were 2,076 lawyers appearing in those 558 cases. In addition, we sampled 50 criminal cases, in which 135 lawyers appeared.7 We then created a database that coded characteristics

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More WoMeN Need SeATS AT The TAble 9

The types of questions we sought to answer included these:

1. Do women and men occupy lead roles in litiga-tion matters in equal numbers, as shown by their self-designated individual appearance as “lead counsel” or “trial attorney”?

2. Are there certain types of cases more likely to have men or women appear as lead counsel?

3. Are there certain types of clients (individu-als, corporations, government entities, client opposing pro se parties) or sides (plaintiff versus defendant) that are more likely to retain men or women as lead counsel?

4. Are there certain types of practice settings in which men or women lead counsel are more likely to practice?

By answering such questions, we expect to have a better understanding of the roles played by men and women in the courtroom, whether there is a gender gap, and areas of focus for change.

I. In CIvIl Cases, Women appear less often than men and are far less lIkely to desIgnate theIr role as lead Counsel or trIal attorney

Roughly two-thirds of all attorneys appearing in civil cases—whether as lead counsel or trial attorney—are men. Thus, 68% of all lawyers who appeared in civil cases were men and 32% were women.11 Of those attorneys appearing, a little more than half (54%) appeared as “lead counsel.” 12

However, just as women and men did not appear generally at the same rate, men and women do not appear in lead roles in civil cases at the same rate

of cases as well as characteristics of lawyers in those cases. The coded case characteristics were:

a. Whether the case is civil or criminal.b. The subject matter of the suit (for civil suits).

The categories listed on the Civil Cover Sheet include contract, real property, torts, civil rights, prisoner rights, forfeiture/penalty, labor, immi-gration, bankruptcy, intellectual property, Social Security, federal tax suits, and other statutes.8

c. Whether the suit is a class action.

The coded characteristics of lawyers appearing in those cases were:

a. The nature of the party the lawyer represents: individual, business, United States, state or local government, or nonprofit.

b. The side for which the attorney appeared, plain-tiff or defendant.

c. The attorney’s practice setting: solo practice, small private firm, AmLaw 200 firm, AmLaw 100 firm, government (United States, Illinois, municipal), and some other categories.9

d. Whether the lawyer appeared as “lead counsel” and/or as “trial attorney.”

e. Gender of the lawyer. If there was any confu-sion from the attorney’s name as to gender, the attorney’s name and photo were checked on his/her firm’s public website.

f. Whether the lawyer was retained by his/her client or appointed by the court.10

We would also have liked to study minority status and minority status interacting with gender. However, neither the Civil Cover Sheet nor the appearance form contains information that allowed us to determine the minority status of lawyers, and, therefore, we could not perform those analyses.

In conducting our data analyses, we sometimes used the lawyer as the unit of analysis and some-times used the case as the unit of analysis, depend-ing on the perspective and nature of the research question at hand. We analyzed criminal and civil cases separately.

68% men32% Women

all laWyers aPPearing in Civil Cases

68+32+A

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10 firST ChAirS AT TriAl

either. Among lawyers appearing as lead counsel, only 24% were women and 76% were men. In essence, a man is three times more likely to play the role of lead counsel on a civil case than a woman.

A similar pattern exists for men and women who entered their appearances as “trial attorney,” with 63% of all lawyers identifying themselves as a trial attorney on the case. The percentage of women serv-ing as trial attorneys in civil cases was slightly higher than the percentage of women serving as lead coun-sel. But of those lawyers identifying themselves as trial attorneys, nearly three-quarters are men (73%) and slightly more than a quarter are women (27%).

What these numbers show is that the steps to the role of lead counsel and trial attorney are much steeper for women than men. Women are significantly less likely to appear in courtrooms—although it could be argued that the gender difference roughly mirrors the difference between the proportion of men and women generally in the legal profession. On top of that gap, however, and more troubling, is the fact that when women do appear, they are significantly less likely than men to occupy the lead roles.

We also observed a marked gender gap when the unit of analysis is cases. Some 59% of civil cases had only men appearing as lead counsel; similarly, 58% of civil cases had only men appearing as trial attorney. In contrast, just 13% of civil cases had only women

appearing as lead counsel, and 21% had only women appearing in the role of trial attorney.13

II. does the type of Case, type of praCtICe settIng, and type of ClIent affeCt the partICIpatIon of Women In lead Counsel or trIal attorney roles?

We performed a number of analyses looking at factors that could affect whether a man or woman appears as lead counsel or as trial attorney in civil cases.

First, type of case shows a gender effect. For certain types of civil cases, lead counsel are pre-dominantly male, including in “other statutory” cases (88% of lead counsel are male), contract cases (85% of lead counsel are male), torts (79% of lead counsel are male), labor (78% of lead counsel are male), and intellectual property rights (77% of lead counsel are male). On the other hand, there is no type of case in which women are more likely than men to be lead counsel—i.e., where the majority of persons who appeared as lead counsel were women. A similar pat-tern exists in the data for trial attorney.

76% men24% Women

laWyers aPPearing as lead Counsel

76+24+A

73% men27% Women

laWyers entering aPPearanCe as trial attorney

73+27+A PerCentage of Women aPPearing as lead Counsel

real property

prisoner riGhts

soCial seCurity

Civil riGhts

intelleCtual property riGhts

laBor

torts

ContraCt

other statutes

41+38+34+32+23+22+21+15+1241%

38%

34%

32%

23%

22%

21%

15%

12%

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More WoMeN Need SeATS AT The TAble 11

In the same vein, certain types of civil cases exhib-ited a greater gender gap than others, as shown by whether there were any women appearing at all as lead counsel. The following shows the results when we measured cases as a whole:

With respect to practice setting, gender differ-ences among lead counsel from private firms follow a 1 to 3 female/male gender ratio—or worse. In terms of the size of firms from which lawyers appear (AmLaw 100 firms, AmLaw 200 firms, small private firms, and solo practice), the percentage of women appearing as lead counsel is 25%, 16%, 20%, and 25%, respectively. 14

It is noteworthy that there is a greater likelihood of women being lead counsel in civil cases involv-ing the U.S. government, the state of Illinois, and

municipalities. Lead lawyers for the U.S. government, state of Illinois, and municipalities are, respectively, 31%, 32%, and 40% female.

By contrast, individual litigants and businesses are overwhelmingly represented by male lead counsel. Close to 80% of all lead counsel who represent busi-nesses are male (79% male vs. 21% female), and the same percentage breakdown is found with respect to lead counsel who represent individuals.

Whether a party is plaintiff or defendant also affects whether their lead counsel is male or female. Among all women who are lead counsel in civil cases, 40% rep-resent plaintiffs and 60% represent defendants. A more equal distribution between representation of plaintiffs and defendants is found for men appearing as lead counsel. Among all men appearing as lead counsel, 45% represent plaintiffs and 55% represent defendants.

PerCentage of Cases With no Women aPPearing as lead Counsel

other statutes

ContraCt

intelleCtual property riGhts

torts

laBor

prisoner riGhts

Civil riGhts

soCial seCurity

real property

amlaW 100 firms

amlaW 200 firms

small private firms

solo praCtiCe

25+16+20+25 25%

16%

20%

25%

PerCentage of Women as lead Counsel by size of firm

u.s. Government

state of illinois

muniCipalities

31+32+40 31%

32%

40%

PerCentage of Women as lead Counsel in Civil Cases involving the government

lead Counsel rePresenting businesses and individuals

79+21+A79% men

21% Women77+70+67+67+55+54+47+47+40

77%

70%

67%

67%

55%

54%

47%

47%

40%

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12 firST ChAirS AT TriAl

That said, and consistent with the data in Sec-tion I, the majority of all attorneys appearing as lead counsel for plaintiffs or defendants are men (for plaintiffs, 78% of lead counsel are men; for defendants, 74% of lead counsel are men). For those appearing as trial attorneys, among plaintiffs’ counsel 75% are men and among defense counsel 70% are men.

We also examined the subset of cases that were filed as putative class actions. There were 48 such cases in our sample, and 246 attorneys appeared in them. Looking at all attorneys who appeared in class actions, 68% are male and 32% are female—a 2/3 versus 1/3 ratio, which is not unlike the data for women appear-ing in civil cases. However, there is a marked gen-der gap when it comes to appearing as lead counsel. Among men appearing in class actions, 55% appeared as lead counsel. In contrast, only 18% of women who appeared in class actions filed their appearances as lead counsel.15 Looking at these data another way, of all of the lawyers who designated themselves as lead counsel in class actions, 87% were male.

Looking at all cases filed as class actions, we observed a similar gender gap in lead counsel roles. Of the 48 class action cases, 71% (34 cases) had only men appearing as lead counsel. Just one case (2.1% of cases) had only women appearing as lead counsel. In other words, 98% of class actions had at least one man as lead counsel but only 29% of class actions had any women as lead counsel.

We also reviewed data concerning civil cases in which the plaintiffs appeared pro se. We note that cases with pro se plaintiffs are often viewed as less complex, unlikely to go to trial, or have less at stake than cases where the plaintiff is represented by counsel. In this sample, there were 81 cases with pro se plaintiffs, in which 111 lawyers appeared for defendants. Of those 111 lawyers, 64% were men and 36% were women. The gender breakdown of lead counsel opposing a pro se plaintiff was similar: 65% men and 35% women. Thus, women appeared as lead counsel at the same rate they appeared generally in cases against pro se plaintiffs, a noticeable difference compared to other civil cases (except civil cases in which the client is a governmental party). Even so, in cases with pro se plaintiffs, women did not approach the number of men who appeared and were designated as lead counsel.

III. CrImInal Cases shoW a mIxed pattern for Women

We looked separately at the sample of 50 criminal cases under the theory that criminal cases and clients could well show a different gender dynamic. Among men and women attorneys who appeared in crimi-nal cases, the vast majority filed their appearances as lead counsel (88% of all men appearing and 89% of all women appearing).16 The result is not surprising, as criminal cases tend not to be layered with differ-ent levels of associates and partners. However, there

laWyers aPPearing as lead Counsel by Party 2226repreSenting pLaintiffS

repreSenting defendantS

22%

26%

68% men32% Women

laWyers aPPearing in Class aCtions

68+32+A

87% men13% Women

laWyers aPPearing as lead Counsel in Class aCtions

87+13+A

65% men35% Women

defense laWyers aPPearing as lead Counsel in Pro se Cases

65+35+A

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More WoMeN Need SeATS AT The TAble 13

is a gender gap when it comes to appearances gener-ally in criminal cases and therefore in the percentage of women versus men who play lead roles. Among all attorneys appearing in criminal cases, 67% are men. Among attorneys appearing as lead counsel, 67% are men (33% are women), and among attorneys appear-ing as trial attorney, 79% are men (21% are women).

For criminal cases, there is also a gender impact by type of client. Of men appearing as lead counsel in criminal cases, 34% appear for the government and 66% appear for defendants. Of women appearing as lead counsel in criminal cases, the ratio is reversed: 69% appear for the government and 31% appear for defendants. In other words, women who are govern-ment prosecutors—compared to women in all other practice settings and client representations—have the greatest chance of appearing in a case as lead counsel.

Federal criminal prosecutions are important and powerful roles for any trial lawyer. The lower percent-age of women lead counsel representing parties in civil litigation or representing criminal defendants suggests

to us that a number of social factors are impeding the retention of women as lead counsel, as explained below.

Iv. summary of the fIndIngs

It is evident that women are consistently underrep-resented in lead counsel roles in all but a few settings and for all but a few types of cases. In civil cases, men are three times more likely to appear in lead roles than women, which is a marked departure from what we expected based on the distribution of men and women appearing generally in federal litigation (a roughly 2 to 1 ratio) and the distribution of men and women in the legal profession (again, a roughly 2 to 1 ratio). In private practice settings, the gender gap is greatest in AmLaw 200 firms, compared to AmLaw 100 firms and other smaller firms not on the AmLaw lists. In addition, women are more likely to be lead counsel representing civil defendants rather than civil plain-tiffs. On the other hand, men appearing as lead counsel in civil cases are somewhat more evenly distributed between representing plaintiffs and defendants.

Moreover, in the majority of civil cases (59%), lead counsel are all men, even though it is typical for more than one lawyer to enter an appearance in a civil case. A much smaller proportion of civil cases (13%) have all women as lead counsel. The findings show more gen-der segregation in civil cases than we would have pre-dicted. In essence, more than 70% of cases are defined by lead counsel of one gender or the other, not a mix of male and female lead counsel.

If we were to extrapolate these statistics to the almost 11,000 civil cases filed in the Northern District in 2013,17 we would see that approximately 6,490 cases had no women appearing as lead counsel, and about 1,400 cases had no men appearing as lead counsel.

Women representing the government had better odds of appearing as lead counsel, at roughly the same rate as women generally appeared (a 2 to 1 male-to-female ratio) and at roughly the same rate as their distribution in the legal profession. Without putting too fine a point on the results, we certainly observed a private vs. public sector gender gap for women in lead roles.

The results in criminal cases—where one side is the government and the other a private party, albeit a

67% men33% Women

laWyers aPPearing as lead Counsel

in Criminal Cases

67+33+A79% men

21% Women

laWyers aPPearing as

trial attorney in Criminal

Cases

79+21+A

31A

Men34% represent Government66% represent DefenDants

WoMen69% represent Government31% represent DefenDants

laWyers aPPearing as lead Counsel in Criminal Cases by Party

69+31+A34+66A

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14 firST ChAirS AT TriAl

criminal defendant—show a pattern consistent with the private vs. public sector gender gap we observed in civil cases. Women lead counsel in criminal cases represent the government more than twice as often as they represent criminal defendants. For men, the ratio is reversed: men appear as lead counsel for pri-vate defendants twice as often as they appear for the government.

Even so, only a minority of attorneys appearing in criminal cases are women. Those women who appear, however, almost always file their appearances as lead counsel and in about the same ratio as men. Overall, and looking across all practice settings, women in the public sector and women in criminal matters have a substantially greater chance of playing lead counsel roles than those in the private sector work-ing on civil cases.

We also note that class actions—considered by many to be both high-stakes and complex litiga-tion—are dominated by male lead counsel. Indeed, the grouping of lead counsel in class actions is about as close to gender segregation as we can imagine. Although we did not look at the role of men versus women as lead counsel in multidistrict litigation—another type of litigation considered complex and high-stakes—our personal experience has been that it is rare for women to be appointed by judges as lead or liaison counsel.18 On the opposite side of the spec-trum are cases with pro se plaintiffs, which are more likely to have women as lead counsel than the typical civil case (except for cases where counsel represent government entities).

v. Best praCtICes for laW sChools, laW fIrms, ClIents, Judges, and Women laWyers

Men and women have been graduating from law school and entering private firms at about the same rate for many years,19 and on a clean slate we would expect men and women to progress at about the same rate into lead counsel roles. But as our research shows, the trial bar continues to have a substantial gender gap.

The gender disparity we observed may reflect the overall career arc for women in private practice. As shown by the NAWL Surveys, men are less likely than

women to leave private practice, men are more likely than women to advance beyond the associate ranks and become partners, and men earn more than women. Such disparities in advancement and compensation can stem from factors outside the control of women (such as implicit bias), affecting the types of assign-ments women receive, performance evaluations, and even an ability to meet billable-hour requirements.20 The result will be a cumulative negative impact on the ability of women litigators to receive increasingly bet-ter assignments and greater opportunities to serve in lead roles in the courtroom.

Other social factors may impinge, as well, on opportunities for women lawyers. As one example, lawyers who have taken time out of the labor force to attend to family responsibilities are less likely to become partners and earn less if they do become part-ners, and that phenomenon disproportionately affects women.21 Additional reasons are more closely linked to the dynamics of becoming lead counsel. There may be bias (sometimes implicit, sometimes not) by senior partners or clients who choose their first-chair law-yers; the impact from judges or opposing counsel who make inappropriate or stereotypical comments and act accordingly; and the increased scrutiny and double standards that women experience in the courtroom.

Research by the ABA Commission on Women in the Profession and other organizations has shown that implicit bias hinders the progress of women law-yers, and this also can also apply to women litiga-tors.22 Senior lawyers who choose their co-counsel in courtrooms are overwhelmingly male, and they may automatically choose someone like themselves—i.e., another male. Certainly, implicit biases play a role, such as the belief that a woman lawyer will express too much emotion. Ironically, male litigators who display the same level of emotion are considered “deeply pas-sionate” about the case. When a woman litigator raises her voice to make a point or argues forcefully, she may be viewed as being overly aggressive. A male litigator acting in the same way is typically viewed favorably for zealously representing his client. Thus, women lawyers often have to demonstrate greater levels of competence and proficiency and are held to higher standards than their male colleagues.

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More WoMeN Need SeATS AT The TAble 15

Women trial lawyers must also occasionally deal with opposing counsel and judges who make inappro-priate or stereotypical comments. Many women have reported being patronized and called “honey” or “dear” or referred to by their first name in the courtroom. Indeed, a Defense Research Institute survey found that 70% of women attorneys experienced gender bias in the courtroom.23

The underrepresentation of women among lead lawyers may also stem from certain client preferences, as some clients prefer a male lawyer to represent them in court.24 In addition, women may too often be rele-gated by their law firms to second-chair positions, even though they have the talent and experience to serve as first chairs. The denial of these significant opportuni-ties adversely affects the ability of women to advance in their firms.25

All of these issues apply with even greater force to women trial attorneys of color, who face the double bind of gender and race. We have no doubt that had we been able to measure the impact of gender and minor-ity status, the results would show an even more difficult road for women lawyers of color—as has been shown repeatedly in other studies on gender and race.26

The lack of women as lead counsel is not explained by a disparity in talent or ability between male and female trial lawyers. To the contrary, women can be highly effective courtroom advocates.27 Jurors are receptive to women attorneys,28 and many commen-tators have observed the potential benefits of represen-tation by women lawyers in litigation and at trial.29

The overwhelming view today is that being an effective trial lawyer is not a matter of gender. As well-known litigator Elizabeth Cabraser put it, “There are as many ways to be a good, effective lawyer as there are people who want to be a good, effective lawyer.”30 And while not giving wholesale credit to gender ste-reotypes, Cabraser also recognized that gender stereo-types have play in courtroom effectiveness: “If you go by stereotyping, women have a great advantage because women have had to learn to listen—listening to judges is more important than talking to judges; listening to what the witnesses are saying is more important than saying what you’ve already decided you want to say. . . . Women have had to learn to do that.”

We believe it is imperative that actions be taken to address and remedy the continuing gender imbalance in the courtroom. The result will be a much deeper pool of skilled attorneys available to represent clients in the courtroom and a cadre of trial lawyers who more closely reflect the diversity of our society, litigants, judges, and jurors.

The ABA Commission on Women in the Profes-sion is planning to work with law schools, law firms, corporations, judges, and individual women lawyers around the country to identify the steps that can be taken so that women receive the training and court-room experience needed to become skilled trial law-yers. We hope that state and local bar associations, trial lawyer groups, and women’s bar organizations will shine a spotlight on the need to increase the number of women serving in lead counsel positions and hold programs focusing on best practices, such as those sug-gested here, to accomplish that goal.

A. LAw SchooLS

Law schools can play a major role in training women to serve as effective trial lawyers. Women law students should be encouraged to become trial lawyers and receive training and mentoring by trial attorneys to perfect their skills in moot court, legal aid clinics, and trial competitions. Teaching tools should be specifi-cally designed to help women law students navigate the implicit biases they may face in the courtroom. Also, in light of the results of our study, law schools should advise women law students who want to become trial lawyers that, at the current time, government litigation positions will enhance their opportunity to play a lead role and gain first-chair experience.

B. LAw FirmS

Law firms should focus on specific training for women litigators, recognizing that traditional means of obtaining trial experience may no longer suffice. Since certain large law firms or clients prefer that important depositions be taken only by partners or senior associates, and first-chair trial lawyers are over-whelmingly men, firms must be even more resourceful to ensure that all of their litigators, and particularly

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16 firST ChAirS AT TriAl

their women litigators, are getting the experience that will allow them to be successful and confident in the courtroom.

Law firms should also encourage women lawyers to take pro bono cases or secundments in district attor-ney or public defender offices so that they will have the opportunity to get into court and hone their trial skills. Depositions of less important witnesses and cus-todians of records can also provide needed experience. Similarly, oral argument experience can be obtained in discovery disputes and less central motions in state and federal matters.

In addition, women lawyers should be strongly encouraged to participate in trial training and advo-cacy programs, those conducted both in-house or by outside organizations, such as the National Institute of Trial Advocacy (NITA) and bar association groups.

It is also important that law firms use metrics to track the professional development of their associates, so they receive the appropriate amount and level of trial experience, and take action to remedy any deficiencies.

Finally, we recommend that law firms avail them-selves of the ABA Commission on Women’s Grit Proj-ect Toolkit,31 which provides training concerning “grit” and “growth mindset.” These important traits, which can be learned, entail perseverance and resiliency and can be enhanced through deliberate practice. As one experienced trial judge has sagely observed, these traits are essential to becoming a great trial lawyer and enable litigators to learn and develop even from setbacks and defeats that they experience in the courtroom.32

c. cLientS

Clients can also play an important role in increasing the gender diversity of the trial bar. First, clients can be proactive in retaining women litigators to be their lead trial lawyer in their cases. In addition, clients can use their considerable economic clout with their law firms to insist that women be given prominent positions and significant responsibility in trial teams assembled by the firm for the client’s matters. 33

Clients can also keep track of the names of women attorneys in trial court opinions issued in the subject areas of importance to the client. This data can then

serve as the basis for compiling names of experienced, successful women litigators, thus expanding the pool of “go-to” lawyers used by the company. Likewise, general counsel or senior in-house counsel can rec-ommend women litigators they have retained to other in-house colleagues. In addition, companies can pro-vide women litigators with specific training concern-ing the particular subject areas in which the company has most of its litigation.

Finally, clients can require firms to maintain met-rics on how their company’s cases are being staffed and the roles women lawyers are playing in their cases, with an eye toward ensuring an increase in the ranks of women trial lawyers.34

D. JuDgeS

Judges are also integral to the efforts to increase the number of female first-chair trial lawyers. Judges can be mindful of appointing experienced, qualified women lawyers as lead counsel, liaison counsel, or members of the steering committee in MDL class action cases.35 Judicial appointments of women litigators as special discovery or bankruptcy masters, trustees, or guardians ad litem can help increase the visibility and credibility of women lawyers, which will help them advance to equity partnership and develop as rainmakers.36

In addition, a number of judges have sought to incentivize law firms to provide greater opportunities for courtroom experience to their women and minor-ity associates. For example, certain judges around the country have made it a practice of allowing argument on motions that would otherwise not be heard, as long as the advocate will be the associate working on the case, rather than the partner.

e. inDiviDuAL women LAwyerS

Individual women lawyers need to take the initiative to develop the skills, tools, and expertise necessary to be an effective trial lawyer. Women lawyers can and should affirmatively reach out to seek assignment to cases where they will get to play an active role in the litigation and obtain trial experience. It is a given, of course, to learn the substantive law involved in the case

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More WoMeN Need SeATS AT The TAble 17

and master the rules of evidence and the rules of civil procedure. But there is more.

It is also important to be aware of gender dynam-ics in the courtroom and take steps to deal with or overcome them. Body language is critical, including maintaining an outward appearance of calm, even in moments of stress and pressure. Women need to “own” the courtroom with their presence and also with their voices. Soft voices of either gender can be distract-ing or ineffective at trial, but some women naturally have softer voices. Thus, they will need to adjust their volume so as to take full command of the courtroom. Moreover, women trial lawyers need to be mindful that their appearance is often carefully scrutinized by others in the courtroom. Like it or not, one’s hairdo, shoes, and even the decision to wear slacks instead of a skirt can often engender comments.37

Women should seek opportunities to be courtroom-ready by taking trial advocacy classes and taking on pro bono matters where they are in the lead. Small cases are good for learning all of the key aspects of litigation and can give women the courtroom confidence that is so much a part of being an effective advocate. And we advise women never to turn down the opportunity to be part of a trial team. There are so many upsides to saying “yes” and enough downsides to saying “no” that, to our minds, the only right answer is “yes.”

As discussed above, women lawyers have many advantages in the courtroom—they connect well with

jurors, particularly with women jurors, who often com-prise half or more of the jury pool; are viewed as more credible and trustworthy; and are in many instances overprepared rather than underprepared. Women litigators have ample reason to be confident in their effectiveness as trial counsel.

ConClusionFostering the success of women litigators redounds to the benefit of clients, who obtain top-notch represen-tation in their cases; to law firms, which have made a substantial investment in hiring and training their women litigators; and to women lawyers themselves, who are able to realize their full potential and advance in their careers. We believe it is imperative for all con-cerned that women are encouraged and supported in their pursuit of a career in the courtroom and the role of lead counsel at trial.

We hope that this study will heighten awareness about the existence of significant gender disparities in the ranks of lead trial lawyers. We want to spur a dia-logue that will result in concrete and effective actions to increase the numbers of women lead trial counsel. These recommended best practices will help women litigators develop their skills and obtain the same opportunities for leadership roles and success in the courtroom as their male colleagues.

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eNdNoTeS 19

1. Stephanie Scharf heads the Litigation Practice at Scharf Banks Marmor LLC, a nationally prominent women-owned law firm. She represents corporations in business litigation, class actions, product liability, and complex tort defense. Cur-rently a commissioner of the ABA Commission on Women in the Profession, she is a former president of the National Association of Women Lawyers. Stephanie founded, designed, and directed from 2006 through 2013 the NAWL Annual Survey of Retention and Promotion of Women in Law Firms. She also designed and conducted the only national survey of women’s initiatives in law firms, under the auspices of the NAWL Foundation. Stephanie received a JD and PhD in Behavioral Sciences from the University of Chicago and was Senior Study Director, NORC, before practicing law. Her email contact is [email protected].

Roberta (“Bobbi”) Liebenberg is a senior partner at Fine, Kaplan and Black in Philadelphia, where she focuses her practice on class actions, antitrust, and complex commercial litigation. She served as past chair of the American Bar Association Commission on Women in the Profession from 2008 to 2011 and 2013 to 2014. She also served as chair of the ABA Task Force on Gender Equity. She is a founder and now chair of DirectWomen, the only organization whose mission is to increase the representation of women attorneys on corporate boards. She has been named by the National Law Journal as one of its “50 Most Influential Women Lawyers in America” (2007) and as one of the country’s 75 most “Outstanding Women Lawyers” (2015). Her email is rliebenberg@ finekaplan.com.

2. See American Bar Association statistics, showing that in 1985 women accounted for about 40% of first-year law students and that percentage increased in subsequent years, http://www.americanbar.org/content/dam/aba/administra-tive/legal_education_and_admissions_to_the_bar/statistics/enrollment_degrees_awarded.authcheckdam.pdf.

3. See data from Minority Corporate Counsel Association about the percentage of women general counsel in the For-tune 500 and data reported by the NAWL Foundation and the National Association of Women Lawyers about the per-centage of women equity partners, http://www.diversityan-dthebardigital.com/datb/november december 2014#pg20; NAWL Annual Surveys from 2006 to 2013, posted at

Endnoteswww.nawl.org (http://www.nawl.org/p/cm/ld/fid=82). In contrast, women have fared substantially better in the judiciary than in private settings. For example, women comprise 35% of federal appellate judges and 32% of federal district court judges, as well as 34% of state appeals judges and 29% of all state judges, http://www.nawj.org/us_state_court_statistics_2014.asp; http://www.nwlc.org/resource/women-federal-judiciary-still-long-way-go-1.

4. The first eight NAWL surveys were designed, imple-mented, and largely reported by Stephanie A. Scharf. The eighth survey report was largely co-authored by Ms. Scharf and Ms. Liebenberg.

5. See criteria for Trial Bar Membership at https://www.ilnd.uscourts.gov/home/_assets/_documents/Trial%20Bar%20Instructions.pdf.

6. Before finalizing the sample, we eliminated (1) any case that was filed but then transferred out of the Northern District; (2) cases that were part of the 17 MDL cases filed in the Northern District in 2013; (3) cases where attorney appearance forms were not filed for both sides or were missing a Civil Cover Sheet, unless that information was available from other documents filed with the court; (4) cases that were pro se on both sides; (5) cases where all attorneys on one side withdrew; (6) cases involving foreign nations; and (7) any attorney who withdrew from the case.

7. Before finalizing the sample of criminal cases, we elimi-nated cases without attorneys appearing on both sides, prisoner transfers, and “suppressed” cases.

8. “Other statutes” are a wide-ranging collection of 17 types of actions not covered by other substantive legal categories on the federal Cover Sheet. The “other statutes” category includes such areas as false claims, antitrust, banks and banking, deportation, racketeer influenced and corrupt organizations (RICO), consumer credit, agriculture, and freedom of information, among others.

9. For other categories, such as nonprofit and corporate in-house attorney, the number of lawyers appearing was too small to analyze.

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20 firST ChAirS AT TriAl

10. While we coded this variable, there were too few cases for a reliable analysis.

11. At first blush, this male/female ratio appears to be roughly consistent with the distribution of men and women in the legal profession; the American Bar Association reports that 36% of the legal profession are women. See American Bar Association Market Research Department, February, 2015. In the same vein, as of October, 2014, it is reported that 38% of Illinois attorneys were women. See http://www.iardc.org/2014_Annual Report_Highlights.pdf. However, it is unclear how much weight to give these estimates because of several unknown factors. First, the ABA had data on lawyers in 43 states, representing only 59% of the lawyer population. We do not know how the unreported population differs—with more or less women—than the reported population. Second, we suspect that the statistics about total lawyers include those who have been practicing for more than 40 years, which could lead to two countervailing trends: on the one hand, the older segment of the bar is overwhelmingly male (because of the demographics of law school graduates 40-plus years ago), while on the other hand, the older segment may be less actively engaged in litigation because they are either working part-time or are fully retired. See, e.g., “Lawyer Retirement Policy and Opinion Explored in New Survey,” http://www.altmanweil.com/index.cfm/fa/r.resource_detail/oid/51df5c74-cd4f-404a-b24e-5729df0c7092/resource/Lawyer_Retirement_Policy_and_Opinion_Explored_in_New_Survey.cfm. Third, current surveys show that women lawyers leave the private practice of law in greater numbers than men. See note 3, above. As a result of these and other factors, we do not believe there are fully reliable data about how many men and women nationally or in Illinois are active in a litigation practice. Short of better data, however, for purposes of this report we extrapolate from the reported data and assume that a little more than one-third of practicing litigation lawyers are women.

12. This analysis includes all cases where there were lawyers appearing on both sides and excludes the relatively few cases where one side appeared pro se. We note that in any given case, more than one attorney can designate himself or herself as lead counsel for the same client on the mat-ter. Also, more than one attorney can designate himself or herself as trial attorney for the same client.

13. By inference, 28% of civil cases had both men and women appearing as lead counsel, and 21% of civil cases had both men and women appearing as trial attorneys.

14. We note that the majority of lawyers appearing as lead counsel come from small private firms (60%)—those not in the AmLaw 200 and also not solo practitioners. AmLaw 100 and 200 firms—the nation’s top 200 firms by gross revenue—account for 15% of lawyers appearing as lead counsel; solo practitioners account for 9% of lead counsel; government lawyers account for 14% of lead counsel; and there is a sprinkling of lead lawyers from other settings.

15. The trial attorney designation shows a similar pattern for class actions.

16. Of the 135 lawyers who entered appearances in criminal cases, 119 appeared as lead counsel.

17. See Federal Judicial Caseload Statistics 2014 at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/Federal JudicialCaseloadStatistics/2014/tables/C00Mar14.pdf.

18. Elizabeth Chamblee Burch, Judging Multidistrict Litiga-tion, 90 N.Y.U.L. Rev 71, 93 n. 102, 120 n. 251, Table 1 at 139-40 (April 2015) (presenting empirical study of repeat players in MDLs and noting gender gap within repeat players); Jaime Dodge, Facilitative Judging: Organizational Design in Mass Tort Multidistrict Litigation, 64 Emory L.J. 329, 363–67 (2014) (presenting empirical data on the significant gender gap in plaintiffs’ executive and steering committee and defense side appointments).

19. EEOC, Diversity in Law Firms, http://www.eeoc.gov/eeoc/statistics/reports/diversitylaw/lawfirms.pdf. More recently, in 2009 through 2014, for example, approximately 45% of associates in law firms were women. See NALP publication, “Diversity Numbers at Law Firms Eke Out Small Gains: Numbers for Women Associates Edge Up After Four Years of Decline” at Table 1, http://www.nalp.org/lawfirmdiversity_feb2015#table1.

20. See, e.g., Roberta Liebenberg, “Plugging the ‘Leaky Pipeline’ of Women Attorney Attrition,” ABA The Young Lawyer Vol. 15 No. 9 ( July/Aug. 2011); Roberta Lieben-berg, “Has Women Lawyers Progress Stalled?”, Legal Intelligencer, May 28, 2013.

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eNdNoTeS 21

21. See, e.g., M. C. Noonan and M. E. Corcoran, “The Mommy Track and Partnership: Temporary Delay or Dead End?” Annals of the American Academy of Political and Social Sci-ence, Nov. 2004, vol. 596, no. 1, 130–150.

22. Implicit biases are unconscious biases that everyone has, both men and women, and that affect what we notice about people, what we remember about them, how we interpret their behavior, and the actions we take in relation to them.

23. “A Career in the Courtroom: A Different Model for the Success of Women Who Try Cases,” DRI—The Voice of the Defense Bar, 2004, at pp. 11, 58.

24. Id. at p.11;“Women in the Courtroom: Best Practices Guide,” DRI, 2007, at p.6, http://www.google.com/url?sa= t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCAQFjAA&url=http%3A%2F%2Fwww.dri.org%2Fdri%2Fwebdocs%2Fwomen_in_the_courtroom_best_practices_guide.pdf&ei=i2tqVMrHAtCkyASv0ILYBA&usg=AFQjCNGKG2u8yW5-cU0IRf5d_63bXlKUkQ&sig2=rPrkNLznu_-qyj-Edj2JUQ&bvm=bv.79908130,d.aWw.

25. Id.

26. See, e.g., National Association of Women Lawyers Annual Survey of Retention and Promotion of Women Lawyers, for the years 2008 and 2013, http://www.nawl.org/p/cm/ld/fid=82#surveys; “Visible Invisibility: Women of Color in Fortune 500 Legal Departments,” American Bar Asso-ciation Commission on Women in the Profession, 2012; “Visible Invisibility: Women of Color in Law Firms,” American Bar Association Commission on Women, 2006.

27. Lynne Bratcher, “Women Trial Lawyers—As Good or Better Than Men,” Nov. 2009, http://uncommoncourage.blogspot.com/2009/11/women-trial-lawyers-as-good-or-better.html.

28. See, e.g., Victoria Pynchon, “Juror Attitudes to Women in the Courtroom,” Feb. 2012, http://www.forbes. c o m / s i t e s / s h e n e g o t i a t e s / 2 0 1 2 / 0 2 / 1 5 / j u r o r - attitudes-to-women-in-the-courtroom; Bratcher, “Women Trial Lawyers—As Good or Better Than Men,” id. at note 27; Jan Nielsen Little, “Ten Reasons Why Women Make Great Trial Lawyers,” June 2006, http://www.kvn.com/templates/media/files/pdfs/Jan_Column_June2006.pdf.

29. Id. at notes 27 and 28; see also L. Spano and J. L. Meihls, “You Go Girl! How Women Can Gain an Advantage in the Courtroom,” Trial Partners, Inc., http://www.trial-partners.com/images/yougogirl.pdf.

30. Founder of Lieff, Cabraser, Heimann & Bernstein LLP, quoted in H. Hayes, “Women Winners of the Plaintiffs’ Bar,” http://www.americanbar.org/content/dam/aba/publishing/perspectives_magazine/women_perspectives_ womenwinners.authcheckdam.pdf.

31. See ABA Commission on Women, www.ambar.org/grit.

32. See Judge Mark Bennett, “Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker, ‘I Am a Litigator,’” The Review of Litigation, Winter 2013, Vol. 33, No. 1; “Grit, Growth Mindset, and Being a Great Trial Lawyer,” Woman Advocate, Section of Litigation, March 9, 2015; http://apps.americanbar.org/litigation/committees/womanadvocate/articles/winter2015-0315-grit-growth-mindset.html.

33. See “Power of the Purse: How General Counsel Can Impact Pay Equity for Women Lawyers,” ABA Task Force on Gender Equity, www.americanbar.org/GenderEquity.

34. Id.

35. See “Standards and Best Practices for Large and Mass-Tort MDLs,” at Best Practice 4E, pp. 58–60 (“The transferee judge should take into account whether the leadership team adequately reflects the diversity of legal talent available and the requirements for the case.”), Dec. 2014, http://law.duke.edu/judicialstudies/research.

36. See Roberta Liebenberg, “The Importance of Diversity in a Court’s Exercise of Its Appointment Powers,” Coun-terbalance, Fall 2011, at 36, http://www.nawj.org/files/counterbaIance/cb31 2.pdf.

37. Karen L. Hirschman and Dr. Ann T. Greeley, “Trial Teams and the Power of Diversity,” DecisionQuest (“Jurors more often make comments about the dress and physical appearance of women lawyers.”) See http://www.decisionquest.com/utility/showArticle/?objectID=1678.

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MAR13,2017

CanTheLegalIndustryKeepTrialAdvocacyAlive?

CanTheLegalIndustryKeepTrialAdvocacyAlive?–Law360 

PaulMourawasputtingthefinaltouchesontheopeningstatementforhisfirst-everjurytrialwhenthecasemetanoh-so-familiarfate.

Itsettled.

TheHunton&WilliamsLLPlitigationassociatehadspentmorethanayearfightingonbehalfof18tenantsofaHollywoodapartmentcomplexinastatesuitagainsttheirlandlord,takingdepositions,conductingexpertdiscoveryandarguingmotionsonaprobonobasis.

Hesecuredafavorabledealforhisclients,andthat’swhatmattersmost,hetoldhimself.ButonthatdayinAugust2015,hewassoclosetobringingthecasehehadbeenlivingandbreathing.Hecouldn’thelpbutwonder:Whatif?

“Itwasbittersweet,”saidMoura,athird-yearatHuntonwhosplitshistimebetweenitsNewYorkandLosAngelesoffices.“Trialopportunitiesarefewandfarbetweenforassociates,andIwouldhavelovedtohaveathree-weekjurytrialwhereIplayedaleadingrole.”

Withaspirationstobecomeanationaltriallawyer,Mourahasclockedmorethan2,500billablehoursayearoverthelastseveralyears.He’sworkednightsandweekends,andhe’sevenstartedwritinginsurance-relatedarticlestocatchtheattentionofthefirm’sinsuranceteam,whichfrequentlygoestotrialandarbitration.

BACKTOBLOG

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Earlierthisyear,Mourawasonceagainonthevergeoftryingacase—thistimeamultimillion-dollarinsurancecoveragedisputeinfederalcourt—butonJan.4,theeveofthetrial,thejudgereversedcourseandissuedsummaryjudgmentinfavorofMoura’sclient.Itwasawin,butitwasalsoanotherlostopportunity.

Hunton&WilliamsLLPthird-yearassociatePaul

Mouraisstillwaitingtotryhisfirstcasebeforeajury.(CaraSalvatore|Law360)“Whenyoupouryourheartandsoulintoacase…andyoufeellikeyouhaveskininthegame,youwanttotakethatcasetotrial,andyouwanttowinthatcase,”Mourasaid.

Moura’sstruggleisafamiliaroneforyoungattorneysinBigLaw,whofacemassivechallengesiftheyhopetogetthechancetotryacaseinfrontofajury.Civiljurytrialsarebecomingincreasinglyrareasaresultoftortreformefforts,expensiveelectronicdiscoveryandotherfactors,shrinkingthetraininggroundforyounglitigators.Atthesametime,cost-consciousclientsareincreasinglywaryoffinancingtheeducationofyoungattorneys,andtriallawyerswhoenjoythethrillofarguingbeforeajurysometimeshoardopportunitiesthatdocometheirway.

Worriedthatcourtroomadvocacycouldbecomealostart,federaljudgesaroundthecountryareurgingpartiesincasesbeforethemtoletyounglawyersargueincourt.Legalindustrygroupsarelookingatwaystoraisethenextgenerationoftrialadvocates,andafamedplaintiffsattorneyhasstartedaninitiativetosavetheciviljurytrialitself.

Despitetheseefforts,though,juniorattorneyshungryforthecourtroomspotlightfaceadifficultjourneytocenterstage.

“Thereisadearthofjurytrialsingeneral,”saidRichardRivera,afourth-yearassociateatSmithGambrell&RussellLLPinJacksonville,Florida,“andthatwasnotsomethingIexpectedcomingoutoflawschool.”

ABoostFromtheBench

WhenjuniorlawyerstellU.S.DistrictJudgeRebeccaPallmeyerthattheywillneedtocheckwithaseniorlawyerbeforesettingatrialdateatastatusconference,shelikestoremindthemoftheircredentials.

JudgeRebeccaPallmeyer

“Iwanttheyoungerattorneystoknowthattheyhavealawlicenseforareasonandthattheycandothis,”shesaid.

Whilethetacticdoesn’tnecessarilyleadtojuniorattorneystryingthecase,it’satleastawaytogetthenotion in their head. When handling jury instruction conferences in her Chicago courtroom, Judge Pallmeyer

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notionintheirhead.WhenhandlingjuryinstructionconferencesinherChicagocourtroom,JudgePallmeyermakesitapointtoaddressjuniorlawyersdirectly,becauseoftentimestheyaretheoneswhohavedonetheresearchbackingtheargumentstheirseniorcolleaguesaremaking.

“There’sageneralfeelingonthebenchthatgettingyounglawyerscomfortableandactiveincourtispartofourresponsibility,”JudgePallmeyersaid.“Ourfirstgoalalwaysistodojustice,andwhetherthatmeansgrantingasummaryjudgmentmotionorsettlement,sobeit.Butwedorecognizetheneedanddesirabilityofhavinganexperiencedtrialbar,andthatincludesyoungerlawyerstobebarleadersofthefuture.”

Whiletheyarewaryofgettingbetweenanattorneyandaclientinchoosingcounsel,judgesacrossthecountryaredoingwhattheycantogetyounglawyersinthecourtroom.U.S.DistrictJudgeWilliamAlsup,forexample,issuedanoticeonMarch1inapatentfightbetweenComcastCorp.andOpenTVInc.intheNorthernDistrictofCaliforniaadvisingthepartiesthatthecourtwill“particularlywelcome”argumentsfromattorneyswithuptofouryears’experience.

InFebruary,JudgeAlsup’scolleagueinCalifornia’sNorthernDistrict,JudgeLucyKoh,tookaschedulingissueinapatentcasebetweenUberTechnologiesandXOneInc.asanopportunitytogetyoungerlawyersatasteoftrialwork.AfterXOne’sleadlawyeragreedtoletayoungerlawyerargueamotion,JudgeKohaskedifUberwouldconsiderdoingthesametoevenouttheplayingfield.

Thesesuggestionsfromthebenchhavesometimestakenaharshertone.InSeptember,U.S.DistrictJudgeJamesDonatocalledoutMorrison&FoersterLLPforofferingonlyeighth-yearassociatestoargueanissueinaproposedclassactionoverFitbitInc.heartratemonitorsafterhe’dinvitedthepartiestohavecounselintheirfirstsixyearsofpracticearguethematter.LieffCabraserHeimann&BernsteinLLPhadofferedupafourth-yearassociatetorepresenttheconsumersinthecase.

JudgeJamesDonato

“Plaintiffsrosetotheoccasionbynamingafourth-yearassociatetohandletheirpresentation,”JudgeDonato,alsooftheNorthernDistrictofCalifornia,wroteinatext-onlyorder.“Counselfordefendant,Morrison&Foerster,couldnotproposealawyerwithlessthaneightyearsofpractice.”

JudgeDonatoaddedintheorderthathemightadjustthetimeallocatedtoeachsideduringoralargumenttoaccountfor“anydisparitycausedbydefendant’sselectionofattorneysoutsidethecourt’sspecifications.”

MoFotoldLaw360thatitschoiceofcounselwasmeanttogiveayoungattorneywhohadlongworkedonthecasesometimetoshine.

“WesupportJudgeDonato’spositioningivingyoungattorneystheopportunityforprofessionaldevelopment,”saidRadleyMoss,aspokesmanforthefirm.“Consistentwiththatphilosophy,wewantedtoprovideoureighth-yearassociate—whohasworkedonthismatterfromthebeginninganddraftedthemotion—theopportunitytoarguethiscase.”

Frictionwithlawyersandtheirclientsoverthisissueisn’tuncommonforJudgeDonato,whotoldLaw360thatconvincingpartiestoallowjuniorattorneystoplayabiggerroleinthecourtroomremainsaconstanttugofwar.

“I’dreallypreferifitjustweren’tastruggle,”JudgeDonatosaid.“DoIreallyhavetokeeptalking,cajoling,pleadingandcuttingdeals?It’seasieriffirmsjuststartsayingtheyaregoingtodothissothatI’mnothavingtoaskinfivedifferentways.”

One tool available to the bench is the standing order, which Judge Donato and a number of his colleagues

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Onetoolavailabletothebenchisthestandingorder,whichJudgeDonatoandanumberofhiscolleaguesareusingtohelpcoaxlawfirmsintotrainingthenextgeneration.TheseordersaretrackedbyNextGenerationLawyers,acommitteeofthenonprofitChIPs,whichworkstoadvancewomeninthelawandotherfields.

Thereweremorethan15standingordersasofJune,thegroupnoted.Whiletheorderscanbefoundaroundthecountry,manyareintheNorthernDistrictofCalifornia.JudgeKoh,forexample,hasastandingorderthatpermitsyoungerattorneystoexaminewitnessesattrialandadvisesmoreseniorcounseltobepreparedtodiscusssuchopportunitiesatpretrialconferences.JudgeAlsup’sstandingorderstatesthathewelcomesturningamatterthatwouldnormallybedecidedonthebriefsintoahearingaslongasanattorneywithuptofouryearsofexperienceconductsthe“lion’sshare”oforalarguments.

InJudgeDonato’scourtroom,astandingorderencouragespartiesandseniorattorneystoallowlawyerswithuptofiveyearsofexperiencetheopportunitytoargueincourt,andhewillextendmotionargumenttimeforthoselawyers.

Otherstandingorders,likethoseofMassachusettsfederalJudgesDennisSaylorandIndiraTalwani,generallyencouragetheparticipationofyoungerattorneysinschedulingconferencesanddiscoverymotions,withthecaveatsthattheybeproperlysupervisedandhavecertainpowers.

StephenSusman

Oneadditionalstepajudgecouldtakewouldbeagreeingtoprioritizeatrialifalawyerunder40isgoingtoserveasleadcounsel,accordingtoplaintiffsattorneyStephenSusmanofSusmanGodfreyLLP.

“Lawyerscangototheirclientandsay,‘Listen,youcanwaittwoyearstogototrialonthiscase,oryoucangetatrialinsixmonthsifyouwillletmyfourth-orfifth-yearassociatewhoisveryaccomplishedmakeanopeningstatementandclosingargument,’”hesaid.“It’sacarrotofferedtolitigantstoassignresponsibilitytoyounglawyers.”

Atthesametime,judgesareawarethattheireffortstoencouragejuniorpractitionerstoparticipateinthecourtroomaresomewhatlimited.

“Thisisanareawherejudgescan’tforcesomethingdownsomeone’sthroat,”JudgeDonatosaid.“Icanasklawyerstodoitandlooksadiftheydon’t,butIcan’tgetbetweenthelawyerandtheclient.It’swrong,inmyview,tostepintoomuchandorderaspecificlawyertodosomething.”

StavingOffExtinction

Aboutthreeyearsago,SusmanwasreadingthroughcommentsonanannualquestionnaireputoutbySusmanGodfrey,thelitigationboutiquehefounded,whenhecameacrossabluntresponsethatchangedhisprofessionalplans.

Anassociatewrote:“Whenareyougoingtostoplyingtotheattorneysyouhireaboutgivingthemtrialexperience?”

ThesurveyanswerstartledtheHouston-basedplaintiffsattorneyandveteranofmorethan100trials,whobelievedthathisfirmhadinfactbeenproactivewithavarietyofprogramsaimedathelpingassociatesgetinthetrialgame.

Forexample,thefirmhasarulethatifalawyerwritesanargument,directexaminationorcross-examination,theattorneygetstoargueitincourt.Thefirmalsoencouragesjuniorlawyerstogettrial

ti d f db k f i l th h id t d k t i l d d iti

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practiceandfeedbackfromseniorlawyersthroughvideotapedmocktrialsanddepositions.

“IthoughtIwasgoingtospendthesenioryearsofmylifeatlawschoolteachingtrialadvocacy,”Susmansaid.“ButwhenIgotthatcomment,Ithoughttomyself:Teachingtrialadvocacyisliketeachingdinosaurhunting.I’dbebetteroffspendingmyenergyonhowtosavetrialsfrombecomingextinct.”

Susmanputup$2millionofhisownmoneytofoundtheCivilJuryProjectattheNewYorkUniversitySchoolofLawinJuly2015,withtheaimofkeepingtheinstitutionoftheciviljurytrialfromwitheringaway.Theprojectinvolvesresearchonjurytrialtrends,anditsponsorsforumstohelpkickstartdialogueonhowtoimprovethesystem.

“Thebiggestproblemforyoungattorneysisthevanishingtrial,”Susmansaid.“Lessthan1percentofcasesthatarefiledinthiscountryaredisposedofbytrials.Andifwedon’thavetrials,it’shardtogetpeopleexperience.”

ThestatisticSusmancites—theportionofcivilcasesthatareresolvedbyajury—hasbeeninsteadydeclineovertheyears.Forfederalcivilcases,itwas1.8percentinthe12-monthperiodendinginlateSeptember1997,1percentinthesameperiodfor2006,and0.7percentforthe12monthsendinginSeptember2016,accordingtotheAdministrativeOfficeoftheU.S.Courts.Inthattimeframe,thetotalnumberofcasesresolvedbyajurytrialfellfrom4,557forthe12-monthperiodendinginSeptember1997to1,965forthesameperiodfor2016,a57percentdrop.

Datafor22statescollectedbytheNationalCenterforStateCourtsshowssimilartrends.

Whiletotalcivildispositionsdoubledfromnearly1.5millionin1976toslightlymorethan3millionin2002,thenumberofjurytrialsdroppedby32percent,from26,018to17,617.Recentdatafromthecentershowsthattheciviljurytrialratehasdippedfrom0.3percentin2012,withnearly12,000jurytrialsoutofabout4.8milliondispositions,to0.2percentin2015,withabout8,300jurytrialsoutofnearly4.1milliondispositions.Incontrast,theciviljurytrialratein1976was1.8percent.

Thisdeclineinjurytrialsisdrivenbyanetworkoffactors.Thetortreformmovementhasbroughtaboutcappeddamagesandlimitedcausesofaction,makingcaseslikeinsurancedefensedisputesmuchlessprofitableandincreasinglycommoditized.Judgesalsoaremorewillingtonarrowanddisposeofacasebeforeitreachestrial,withjudgmentsonthepleadings,summaryjudgmentsandDaubertrulingsthatexcludetestimonyofaparty’sexpert.

P ti l i li d t ttl i th h t f liti ti Th t d ti t

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Partiesarealsomoreinclinedtosettlegiventhesheercostoflitigation.Thecostandtimespentondiscoveryinparticularhasbeengrowingdramatically,inlargepartbecauseofthevasttrovesofelectronicdatathatcompaniesmustnowwadethroughandcatalogue.

“Therisingcostsassociatedwithelectronicdiscoverythreatentodriveallbutthelargestcasesoutofthesystem,”saidJohnH.Beisner,aSkaddenArpsSlateMeagher&FlomLLPpartnerwhowrotea2010studyondecliningciviltrialsfortheU.S.ChamberInstituteforLegalReform.

Discoveryissues,aswellasshrinkingjudicialresources,havealsosignificantlylengthenedthetimeittakestogotocourt.Andalargenumberofdisputesarebeingsteeredawayfromcourtroomsasmorebusinessesencourageconsumersandemployeestosignagreementsthatcallforanydisputestobehandledinarbitration.

“Ingeneral,foranyoneyounger,therealityistherearefewertrialstodaythaninthepast,”saidSamuelHoustonIII,anappellatelawyeratHoustonDunnPLLCwhoassistslawyersinpreparingfortrial.“That’sprobablynotgoingtochange.”

Nevertheless,thespecterofthetriallitigator’sextinctionhasspurredsomelawyergroupstolaunchinitiativestokeepthatfromhappening.NextGenerationLawyerspushesformorecourtroomexperienceforyoungattorneys,afactorthatitsayshelpspromotegenderdiversityintheprofession.

TheAmericanBarAssociation’ssectionoflitigationhasataskforcethatislookingatpotentialbestpracticesforcourtsandclientstogiveyoungerattorneystrialexperience,accordingtothesection’schair,LaurencePulgram,wholeadsFenwick&WestLLP’scommerciallitigationpractice.

AndtheNationalInstituteforTrialAdvocacyalsotrainslawyersinadvocacyskillsina“learningbydoing”format.In2015,thegrouptaughtadvocacyskillstomorethan4,800lawyersin213trialanddepositionprograms.

“Wehaveadisappearingskillset,”Houstonsaid.“Ifattorneysaren’tdevelopingtheirtrialskills,frompresentingopeningstatementstoeffectiveexaminationstoclosingarguments,theconsequencesarethatourprofessionsuffersandultimatelyourclientssuffer.”

Clicktoviewinteractiveversion

TheCustomerIsAlwaysRight?

Despiteayoungattorney’strainingandexperienceincourt,clientscanstillstandbetweenassociatesand

Thenumberoffederalciviltrialsdroppedmorethan60%fromthe12-monthperiodendinginSeptember1997tothesameperiodendingin2016,whilethemediantimefromfilingtocompletedtrialincreased.

█ y█ NonjuryTrials   Source:AdministrativeOfficeoftheU.S.Courts

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juries.

LauraMonaco,aneighth-yearassociateatEpsteinBeckerGreen,sayssomeofherbestexperiencepreparingfortrialscamefromherfiveyearsasaclerkforfederaljudgesintheEasternDistrictofNewYork.Monaco,whofocusesonemploymentlaw,hasalsoassistedongrievancearbitrationsbetweenaunionandemployer,whicharerunlikemini-trials,completewithopeningstatementsandtheexaminationandcross-examinationofwitnesses.

Forfull-fledgedtrials,though,clientshaveturnedtomoreseniorattorneystoleadthecase,shesays.

“I’vebeeninsituationswheretheclientwantsthepartnertobetheface[ofthecase],”Monacosaid.“Sometimespartnerswillsayno[toassociatesbeingpartofatrial]notbecausetheydon’twantthemtogetexperience,butbecausetheyaremanagingclientexpectations.”

Shesaysshe’stalkedtoassociatesatotherfirmswhohavecomplainedaboutbeingstuckondocumentreviewworkandnotachievingthecareermilestonestheyhadhopedfor.

“Associatemoraleisdefinitelyaconcern,”shesaid.“MostofthepeoplewhoIhaveknownovermycareerwhohavefeltthattheywerenotgettingthecareerdevelopmenttheythoughttheywouldtendtoendupleavingprivatepractice.”

RichardRivera,afourth-yearassociateatSmith

Gambrell&RussellLLP,co-chairstheABAYoungLawyersDivision’slitigationcommittee.(MorganLee|ForLaw360)SmithGambrell’sRivera,acommercialandintellectualpropertylawyerwhoco-chairstheABAYoungLawyersDivision’slitigationcommittee,hasalsonoticedthatclientstendtobalkatpayingtosendajuniorattorneyforacourthearing—apracticeheviewsasshortsighted.

“Iftheinvestmentisnotmadeinattorneys’future,clientswilltakeadoublehit,”Riverasaid.“Notonlywilltheybepayinghigherbillingratesthroughoutforseniorattorneystohandlematters,butonceseniorattorneysretire,clientswillbeleftwithanewergenerationoflawyerswhoarenotaswellequippedtoprovidethebestrepresentation.”

Whilejuniorlawyersfaceobstaclestogettrialworkacrossalltypesoffirms,clientobstaclesmaybemorepronouncedatbigfirmswithbusinessmodelsthatrelyonhighbillingandhighstakes.Clientsinabet-the-companycase,forexample,arelesslikelythanclientsinlower-stakesmatterstobeopentorelativenewbiesontheirtrialteam,attorneyssay.

Highbillingratesforassociatescanalsoplayarole.Ifathird-orfourth-yearassociatebillsat$400perhourandapartnerbillsat$600perhour,someclientsareinclinedtopaythatdifferencefor10moreyearsofexperience,saidMichaelPappas,aprincipalatLesnickPrincePappasLLP.Hesaidhisfirm,aSouthernCalifornia-basedbankruptcyandcommerciallitigationboutique,hasafifth-yearassociatebillingat$250

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perhour,whichrepresentsenoughofadifferencefrompartners’pricingthatclientsconsideritworthwhiletohireherforcertainsmaller-stakesmatters.

“Alotofthebigfirms,theypricetheyoungerpeopleoutofthemarket,”Pappassaid.“Thenyoucoupleitwithfewercases.…Itmakesitdifficulttogetyoungattorneysexperience.”

Eventhegrowthareaofalternativedisputeresolutionhasatendencytoleaveyounglawyersonthesidelines,hesays.

“Whenyouhaveacaseinarbitration,asopposedtothecourtsystem,therulesofdiscoveryaren’talwaysfullyappliedandthere’snolawandmotion,soalotoftheroutineworkmorejuniorpeopleusuallydogetscut,”Pappassaid.

MakingtheBestofBigLaw

AnthonyMillerhashadsomeluckgettingtrialexperienceinBigLaw.WhentheformerVinson&ElkinsLLPlawyerstartedoutasanassociate13yearsago,hetookhisfirstdepositionwithinfourmonthsandarguedatmanycourthearings.Hecreditshismentor,trialveteranWilliamSimmsJr.,fortheopportunities.

AlthoughMillertooktheinitiativebyworkingondietdruglitigationthatledtohearings,depositionsandtrials,italsohelpedthatthefirmofferedseveralprograms,includingonewhereattorneyscouldpickupmunicipalcourtcasesthathadagreaterchanceofgoingtotrial.

MillerhassincemovedonfromVinsonandisworkingasatrialattorneyataboutiqueheco-founded,MillerPatti&PershernPLLCinDallas.WhileheisgratefulforhistimeatVinson&Elkins—wherehewasabletoavoidtheusualassociatetrapof“doingdocumentreviewandresearchandrarelymakingitoutofaconferenceroomoroffice”—hesometimeswisheshehadgoneadifferentroute.

EscapetheSidelines

Haveyourheartsetongettingtrialexperience?Herearesometipsexpertssaycanmakeadifferenceforayoungattorney:

◊Developnicheexpertiseinasought-afterpracticelikewhitecollarorintellectualproperty.

◊Acethegruntworkofresearch.Comingupwithnewargumentsbasedoncaselawisaprizedskillfortrialattorneys.

◊Considertakingabillablehourpaycutandgoingintotheboutiqueorgovernmentspace,whereopportunitiesfortrialworkaremorenumerous.

◊Looktomakeconnectionswithpartnerswhohaveasteadystreamoftrialwork.

◊Lobbyfordedicatedtrialexperienceprogramsatyourfirm,andlookintoitsprobonoprograms.“IfIhadtodoitoveragain,Imighttrytoseekoutaplaintiffsfirmorasmallershop,”hesaid.“Iftherearesmallercaseswithsmallerstakes,younglawyersaremorelikelytohandlethem.”

Withlimitedopportunitiesatbigfirms,somesayaspiringtrialattorneyswouldbebetterservedworkingasfederalandstateprosecutorsorinothergovernmentroles.ThosestuckasacoginthewheelsofBigLawlitigationworkmayalsoconsiderturningtolitigationboutiquesthatcanoffermoreopportunities.

ButothersnotethatBigLawprovidessolidtrainingintaskslikeresearchandbriefwriting,whichareessentialskillsfortrialattorneys.

“Somegovernmentrolesmakeiteasierforattorneystogettrialopportunities,butIprefergettingasolidfoundationatalawfirmbeforebeingthrownintothepositionofgoingtotrialeveryday,”saidMoura,theHuntonassociate.

Andwhilebigfirmsmaynotalwaysbetheeasiestvenueforyoungattorneystogetbeforeajury,that

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doesn’tmeanthemodelcan’tprovideopportunities.

ElizabethDalmut,afourth-yearassociateatKirkland&EllisLLPinWashington,D.C.,joinedthefirmtobecomeacourtroomadvocate,andwithinninemonths,shewasassistingonherfirsttrial.Itwasaproductliabilitycasethatsettledduringtrial,butshewasabletocreateaslidepresentationforopeningstatementsandwatchhowanattorneyquestionedawitnessbasedonacross-examinationshehelpeddraft.Shealsohasbeeninthecourtroomonseveralcasesthathaveinvolvedmini-trials,whereshehaspreparedwitnesses,putonarebuttalcaseandofferedanaffirmingcase.

ShesaysKirklandprovidestrialexperienceinpartthroughitsprobonoprogram,whichputsnocaponhoursforattorneystoworkonthesecases,andthroughitsdepositionandtrialtrainingprogram,whichpreparesassociatesfordifferentcomponentsoflitigation.

“Trialexperiencegivesyoucontextandperspectivetohelpdriveyourday-to-daywork,”shesaid.“Beingabletobeinthecourtroomsooftenimprovesthequalityoflifeasanattorney.”

Inadditiontoprovidingthesemoralebenefits,rawtrialexperiencesimplymakesjuniorattorneysbetter,expertssay.Theprocessteachesthemtoovercomeadversityandtoharnessthekindofconfidenceandpoisethatcan’tbefaked.

“Whenjuniorattorneysdothesetrials,theyaregoingtogetslammed,butthat’showtheylearn,”JudgeDonatosaid.“Thereisnosubstituteforthinkingonyourfeetbeforealivejudge,alivejuryandliveopposingcounsel.”

ErinCoeisafeaturereporteratLaw360.ShepreviouslywroteaboutattorneysleavingBigLawforsecondcareers. FeaturereporterNatalieRodriguezcontributedtothisarticle.

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6/25/2019 Codes Display Text

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=8.&part=2.&chapter=4.5.&article= 1/3

Code: SelectCode Section: Search

630.01.

630.02.

630.03.

Up^ AddToMyFavoritesCODEOFCIVILPROCEDURE-CCP

PART2.OFCIVILACTIONS[307-1062.20](Part2enacted1872.)TITLE8.OFTHETRIALANDJUDGMENTINCIVILACTIONS[577-674](Title8enacted1872.)

CHAPTER4.5.VoluntaryExpeditedJuryTrials[630.01-630.11](HeadingofChapter4.5amendedbyStats.2015,Ch.330,Sec.1.)

Forpurposesofthischapter:

(a)“Expeditedjurytrial”meansaconsensual,bindingjurytrialbeforeareducedjurypanelandajudicialofficer.

(b)“High/lowagreement”meansawrittenagreemententeredintobythepartiesthatspecifiesaminimumamountofdamagesthataplaintiffisguaranteedtoreceivefromthedefendant,andamaximumamountofdamagesthatthedefendantwillbeliablefor,regardlessoftheultimateverdictreturnedbythejury.Neithertheexistenceof,northeamountscontainedin,anyhigh/lowagreementsmaybedisclosedtothejury.

(c)“Post-trialmotions”doesnotincludemotionsrelatingtocostsandattorney’sfees,motionstocorrectajudgmentforaclericalerror,andmotionstoenforceajudgment.

(AmendedbyStats.2011,Ch.296,Sec.37.(AB1023)EffectiveJanuary1,2012.)

Therulesandproceduresapplicabletoexpeditedjurytrialsareasfollows:

(a)Theproceduresinthischapterandintheimplementingrulesofcourtshallapplytoexpeditedjurytrials,unlessthepartiesagreeotherwise,aspermittedundersubparagraph(E)ofparagraph(1)ofsubdivision(e)ofSection630.03,andthecourtsoorders.

(b)Anymattersnotexpresslyaddressedinthischapter,intheimplementingrulesofcourt,orinaconsentorderauthorizedbythischapterandtheimplementingrules,aregovernedbyapplicablestatutesandrulesgoverningcivilactions.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

(a)Allpartiesagreeingtoparticipateinanexpeditedjurytrialand,ifrepresented,theircounsel,shallsignaproposedconsentordergrantinganexpeditedjurytrial.

(b)Exceptasprovidedinsubdivision(d),theagreementtoparticipateintheexpeditedjurytrialprocessisbindingupontheparties,unlesseitherofthefollowingoccurs:

(1)Allpartiesstipulatetoendtheagreementtoparticipate.

(2)Thecourt,onitsownmotionorattherequestofapartybynoticedmotion,findsthatgoodcauseexistsfortheactionnottoproceedundertherulesofthischapter.

(c)Anyagreementtoparticipateinanexpeditedjurytrialunderthischaptermaybeenteredintoonlyafteradisputehasarisenandanactionhasbeenfiled.

(d)Thecourtshallapprovetheuseofanexpeditedjurytrialandanyhigh/lowagreementsorotherstipulationsforanexpeditedjurytrialinvolvingeitherofthefollowing:

(1)Aself-representedlitigant.

(2)Aminor,anincompetentperson,orapersonforwhomaconservatorhasbeenappointed.

(e)Theproposedconsentordersubmittedtothecourtshallincludeallofthefollowing:

(1)Apreliminarystatementthateachnamedpartyandanyinsurancecarrierresponsibleforprovidingcoverageordefenseonbehalfofthatparty,individuallyidentifiedintheproposedconsentorder,havebeeninformedofthe

Home BillInformation CaliforniaLaw Publications OtherResources MySubscriptions MyFavorites

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6/25/2019 Codes Display Text

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=8.&part=2.&chapter=4.5.&article= 2/3

630.04.

630.05.

630.06.

630.07.

630.08.

630.09.

rulesandproceduresforanexpeditedjurytrialandprovidedwithaJudicialCouncilinformationsheetregardingexpeditedjurytrials,haveagreedtotakepartinor,inthecaseofaresponsibleinsurancecarrier,notobjectto,theexpeditedjurytrialprocess,andhaveagreedtoallthespecificprovisionssetforthintheconsentorder.

(2)Theparties’agreementtoallofthefollowing:

(A)Thatallpartieswaiveallrightstoappealandtomovefordirectedverdictormakeanypost-trialmotions,exceptasprovidedinSections630.08and630.09.

(B)Thateachsideshallhaveuptofivehoursinwhichtocompletevoirdireandtopresentitscase.

(C)Thatthejuryshallbecomposedofeightorfewerjurorswithnoalternates.

(D)Thateachsideshallbelimitedtothreeperemptorychallenges,unlessthecourtpermitsanadditionalchallengeincaseswithmorethantwosidesasprovidedinSection630.04.

(E)Thatthetrialandpretrialmatterswillproceedundersubparagraphs(A)to(D),inclusive,and,unlessthepartiesexpresslyagreeotherwiseintheproposedconsentorder,underallotherprovisionsinthischapterandintheimplementingrulesofcourt.

(f)Thecourtshallissuetheconsentorderasproposedbytheparties,unlessthecourtfindsgoodcausewhytheactionshouldnotproceedthroughtheexpeditedjurytrialprocess,inwhichcasethecourtshalldenytheproposedconsentorderinitsentirety.

(AmendedbyStats.2015,Ch.330,Sec.2.(AB555)EffectiveJanuary1,2016.)

(a)Juriesinexpeditedjurytrialcasesshallbecomposedofeightjurors,unlessthepartieshaveagreedtofewer.Noalternatesshallbeselected.

(b)Thecourtshallalloweachsidethreeperemptorychallenges.Iftherearemorethantwopartiesinacaseandmorethantwosides,asdeterminedbythecourtundersubdivision(c)ofSection231,thepartiesmayrequestoneadditionalperemptorychallengeeach,whichistobegrantedbythecourtastheinterestsofjusticemayrequire.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

Nothinginthischapterisintendedtoprecludeajuryfromdeliberatingaslongasneeded.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

(a)Therulesofevidenceapplyinexpeditedjurytrials,unlessthepartiesstipulateotherwise.

(b)Anystipulationbythepartiestouserelaxedrulesofevidencemaynotbeconstruedtoeliminate,orinanywayaffect,therightofawitnessorpartytoinvokeanyapplicableprivilegeorotherlawprotectingconfidentiality.

(c)Therighttoissuesubpoenasandnoticestoappeartosecuretheattendanceofwitnessesortheproductionofdocumentsattrialshallbeinaccordancewiththiscode.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

(a)Theverdictinanexpeditedjurytrialcaseisbinding,subjecttoanywrittenhigh/lowagreementorotherstipulationsconcerningtheamountoftheawardagreeduponbytheparties.

(b)Avoteofsixoftheeightjurorsisrequiredforaverdict,unlessthepartiesstipulateotherwise.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

(a)Byagreeingtoparticipateintheexpeditedjurytrialprocess,thepartiesagreetowaiveanymotionsfordirectedverdict,motionstosetasidetheverdictoranyjudgmentrenderedbythejury,ormotionsforanewtrialonthebasisofinadequateorexcessivedamages.

(b)Thecourtshallnotsetasideanyverdictoranyjudgment,shallnotdirectthatjudgmentbeenteredinfavorofapartyentitledtojudgmentasamatteroflaw,andshallnotorderanewtrial,exceptonthegroundsstatedinSection630.09.

(AmendedbyStats.2011,Ch.296,Sec.38.(AB1023)EffectiveJanuary1,2012.)

(a)Byagreeingtoparticipateintheexpeditedjurytrialprocess,thepartiesagreetowaivetherighttobringpost-trialmotionsortoappealfromthedeterminationofthematter,exceptasprovidedinthissection.Theonlygroundsonwhichapartymaymoveforanewtrialorappealareanyofthefollowing:

(1)Judicialmisconductthatmateriallyaffectedthesubstantialrightsofaparty.

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6/25/2019 Codes Display Text

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=8.&part=2.&chapter=4.5.&article= 3/3

630.10.

630.11.

(2)Misconductofthejury.

(3)Corruption,fraud,orotherunduemeansemployedintheproceedingsofthecourt,jury,oradversepartythatpreventedapartyfromhavingafairtrial.

(b)Within10courtdaysoftheentryofajuryverdict,apartymayfilewiththeclerkandserveoneachadversepartyanoticeoftheintentiontomoveforanewtrialonanyofthegroundsspecifiedinsubdivision(a).Thenoticeshallbedeemedtobeamotionforanewtrial.

(c)Exceptasprovidedinsubdivision(b),partiestoanexpeditedjurytrialshallnotmakeanypost-trialmotionsexceptformotionsrelatingtocostsandattorney’sfees,motionstocorrectajudgmentforclericalerror,andmotionstoenforceajudgment.

(d)Beforefilinganappeal,apartyshallmakeamotionforanewtrialundersubdivision(b).Ifthemotionforanewtrialisdenied,thepartymayappealthejudgmenttotheappropriatecourtwithappellatejurisdictionandseekanewtrialonanyofthegroundsspecifiedinsubdivision(a).Partiestoanexpeditedjurytrialmaynotappealonanyotherground.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

Allstatutesandrulesgoverningcostsandattorney’sfeesshallapplyinexpeditedjurytrials,unlessthepartiesagreeotherwiseintheconsentorder.

(AddedbyStats.2010,Ch.674,Sec.2.(AB2284)EffectiveJanuary1,2011.)

TheJudicialCouncilshall,onorbeforeJuly1,2016,updaterulesandformstoestablishuniformproceduresimplementingtheprovisionsofthischapter,including,butnotlimitedto,rulesforallofthefollowing:

(a)Additionalcontentofproposedconsentorders.

(b)Pretrialexchangesandsubmissions.

(c)Pretrialconferences.

(d)Presentationofevidenceandtestimony.

(e)Anyotherproceduresnecessarytoimplementtheprovisionsofthischapter.

(AmendedbyStats.2015,Ch.330,Sec.3.(AB555)EffectiveJanuary1,2016.)

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Judicial Orders

Providing/Encouraging Opportunities for Junior Lawyers

02.10.17

Compiled by the ChIP’s Next Gen Committee:

Kathi Vidal (Lutton), Fish & Richardson (Lead) Judge William Alsup, Northern District of California

Natalie A. Bennett, McDermott Will & Emery Judge Christopher J. Burke, District of Delaware

Isabella Fu, Microsoft Judge Paul Grewal, Northern District of California

Jessica Hannah, Apple Karen Keller, Shaw Keller

Noreen Krall, Apple Rachel Krevans, Morrison Foerster

Judge Barbara M. G. Lynn, Northern District of Texas Julie Mar-Spinola, Finjan Holdings, Inc.

Sonal Mehta, Durie Tangri Judge K. Nicole Mitchell, Eastern District of Texas

Judge Jimmy Reyna, Court of Appeals for the Federal Circuit Gabby Ziccarelli, Blank Rome LLP

If you are aware of additional orders or initiatives, please email

[email protected].

All orders posted at: www.NextGenLawyers.com Judge William Alsup, Northern District of California SUPPLEMENTAL ORDER TOORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE IN CIVIL CASES BEFORE JUDGE WILLIAM ALSUP (January 11, 2016)

http://www.cand.uscourts.gov/whaorders

SETTING MOTIONS FOR HEARING

6. Counsel need not request a motion hearing date and may notice non-discovery motions for any Thursday (excepting holidays) at 8:00 a.m. The Court sometimes rules on the papers, issuing a written order and vacating the hearing. If a written request for oral argument is filed before a

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ruling, stating that a lawyer of four or fewer years out of law school will conduct the oral argument or at least the lion’s share, then the Court will hear oral argument, believing that young lawyers need more opportunities for appearances than they usually receive.

GUIDELINES FOR TRIAL AND FINAL PRETRIAL CONFERENCE IN CIVIL JURY CASES BEFORE THE HONORABLE WILLIAM ALSUP (January 11, 2016)

www.cand.uscourts.gov/filelibrary/192/JuryTrials1.pdf

29. Counsel shall stand when making objections and shall not make speaking objections. The one-lawyer-per-witness rule is usually followed but will be relaxed to allow young lawyers a chance to perform. Side bar conferences are discouraged.

39. 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.

JUDGE WILLIAM ALSUP’S NOTICE RE OPPORTUNITIES FOR YOUNG ATTORNEYS (sent out to parties one week prior to every civil motion hearing)

Counsel will please keep in mind the need to provide arguments and courtroom experience to the next generation of practitioners. The Court will particularly welcome any lawyer with four or fewer years of experience to argue the upcoming motion.

Judge Christopher Burke, District of Delaware STANDING ORDER REGARDING COURTROOM OPPORTUNITIES FOR NEWER ATTORNEYS (January 23, 2016) http://www.ded.uscourts.gov/sites/default/files/forms/StandingOrder2017.pdf

The Court is cognizant of a growing trend in which fewer cases to trial, an 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 Court adopts the following procedures regarding oral argument as to pending motions:

(1) After a motion is fully briefed, either as a part of a Request for Oral

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Arguments, 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).

(2) If such notice is provided, the Court will:

A. Grant the request for oral argument on the motion, if it 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.

Judge Denise Casper, District of Massachusetts STANDING ORDER REGARDING COURTROOM OPPORTUNITIES FOR RELATIVELY INEXPERIENCED ATTORNEYS (May 16, 2011) http://www.mad.uscourts.gov/boston/pdf/casper/Casper_StandingOrderReCourtroomOpportunities.pdf

In May 2005, Judge F. Dennis Saylor (and then Magistrate Judge Charles B. Swartwood), sitting in the Central Division (Worcester) of this Court, adopted a standing order “strongly encourag[ing] the participation of

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relatively inexperienced attorneys in all court proceedings.” As the Court explained at the time, the standing order was prompted by the recognition that the “[c]ourtroom opportunities for relatively inexperienced attorneys, particularly those who practice at larger firms, have declined precipitously across the nation in recent years.” This standing order remains in place in the Central Division for appearances before Judge Saylor and Magistrate Judge Timothy S. Hillman and anecdotal information indicates that the order has 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. The decline in courtroom opportunities for newer lawyers is widely recognized and is one of concern to both the bench and bar. A Task Force of the Boston Bar Association acknowledged as much in its report, “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency Among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon,” issued in 2006. As a result of its year-long work exploring the statistical and anecdotal evidence regarding the rate of jury trials over time, the Task Force concluded that “the ‘vanishing jury trial’ is actually affecting the jury trial experience of current and future generations of practitioners” and 2 made recommendations to courts, lawyers and clients to remedy this issue. Among its recommendations to the judiciary, the Task Force called upon “judges presiding over pre-trial conferences and related matters to identify and encourage opportunities for a junior attorney to participate in the examination of witnesses or other significant trial work.” To take up this call and attempt, in some small measure, to remedy the dearth of courtroom opportunities for newer attorneys, the undersigned judge issues this standing order, substantially similar in purpose and intent to the order previously adopted by the Central Division. Accordingly, 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. That said, a number of important caveats regarding professional standards, authority and supervision apply to this policy.

1. First and foremost, all attorneys who appear in this session will

be held to the highest professional standards. This includes relatively inexperienced attorneys with regard to knowledge of the case, overall preparedness, candor to the court and any other matter as to which experience is largely irrelevant. All attorneys who appear in court are expected to be thoroughly versed in the factual record of the case and the

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applicable law that governs. 2. All attorneys appearing in court should have a degree of

authority commensurate with the proceeding. For example, an attorney appearing at an initial scheduling conference or status conference should have the authority to commit his/her party to a discovery and motion schedule and address any other matters likely to arise including but not limited the client’s willingness to be referred to mediation.

3. Relatively inexperienced attorneys who seek to participate in

evidentiary hearings of substantial complexity (e.g., examining a witness at trial), should be accompanied and supervised by a more experienced attorney unless counsel seeks and receives leave of Court to do otherwise.

Judge Gregg J. Costa, Southern District of Texas COURT PRACTICES AND PROCEDURES (updated January, 2017) http://www.txs.uscourts.gov/sites/txs/files/costa_procedures.pdf

4. Young Lawyers. The Court is aware of a trend today in which fewer cases go to trial, and in which there are generally fewer speaking or “stand-up” opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the Court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing. The Court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate—such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a “bet-the-company” type case. Even so, the Court believes 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. Thus, the Court encourages all lawyers practicing before it to keep this goal in mind.

Judge Edward J. Davila, Northern District of California

STANDING ORDER FOR CIVIL CASES (February 12, 2015)

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http://www.cand.uscourts.gov/ejdorders

III(H). Opportunities for Junior Lawyers

The Court strongly encourages parties to permit less experienced lawyers to actively participate in the proceedings by presenting argument at motion hearings or examining witnesses at trial

Judge James Donato, Northern District of California

STANDING ORDER FOR CIVIL CASES BEFORE JUDGE JAMES DONATO (January 05, 2017)

http://www.cand.uscourts.gov/jdorders

13. The Court has a strong commitment to supporting the development of our next generation of trial lawyers. The Court encourages parties and senior attorneys to allow younger practitioners the opportunity to argue in court. The Court will extend motion argument time for those lawyers. The parties should advise the Court prior to the hearing if a lawyer of 5 or fewer years of experience will be arguing the cause.

Judge Yvonne Gonzales Rogers, Northern District of California

STANDING ORDER IN CIVIL CASES (Updated October 26, 2016)

http://www.cand.uscourts.gov/filelibrary/867/ygrStanding%20Order%20In%20Civil%20Cases%20updated%20August%2019%202013.pdf

2d. Before appearing for a matter before this Court, all parties shall check the Court’s calendar at www.cand.uscourts.gov or the posting in the Clerk’s Office to confirm that their matter is still on calendar. Frequently, the Court will issue a written order and vacate the hearing unless oral argument appears to be necessary. Where argument is allowed, the Court will attempt to advise counsel in advance of the issues to be addressed. In addition, if a written request for oral argument is filed, before issuance of a ruling, stating that a lawyer four or fewer years out of law school will conduct all or most of the oral argument, the Court will entertain oral argument on the principle that young lawyers need more opportunities for appearances than they typically receive.

Judge Paul S. Grewal, Northern District of California Case Specific Order, GSI Technology Inc. v. United Memories, Inc., Case No. 5:13-cv-01081-PSG, ORDER RE: ORAL ARGUMENT (March 9, 2016)

In a technology community like ours that prizes youth—at times

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unfairly—there is one place where youth and inexperience seemingly comes with a cost: the courtroom. In intellectual property case after intellectual property case in this courthouse, legions of senior lawyers with decades of trial experience regularly appear. Nothing surprises about this. When trade secret or patent claims call for millions in damages and substantial injunctive relief, who else should a company call but a seasoned trial hand? But in even the brief tenure of the undersigned, a curious trend has emerged: the seasoned trial hand appears for far more than trial itself. What once might have been left to a less experienced associate is now also claimed by senior counsel. Motion to compel discovery? Can’t risk losing that. Motion to exclude expert testimony? Can’t risk losing that, either. Motion to exclude Exhibit 20356 as prejudicial under Fed. R. Evid. 403? Same thing. All of this raises a 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. Senior lawyer and their clients may shoulder some of the blame, but surely courts and judges like this one must accept a large part of the responsibility. Perhaps this explains the growing and commendable effort by leaders on the bench to promote courtroom opportunities for less experienced lawyers, especially in intellectual property disputes.1 This case offers this member of the bench a chance to start doing his small part. In a jury trial lasting several weeks, the court was privileged to witness some of the finest senior trial counsel anywhere present each opening statement, each direct and cross-examination and each closing argument. The court intends no criticism of any party’s staffing decisions. But with no fewer than six post-trial motions set for argument next week, surely an opportunity can be made to give those associates that contributed mightily to this difficult case a chance to step out of the shadows and into the light. To that end, the court expects that each party will allow associates to present its arguments on at least two of the six motions to be heard. If any party elects not to do this, the court will take its positions on all six motions on the papers and without oral argument. 1 See, e.g. , ChIP’s Next Gen Committee, Judicial Orders Providing/Encouraging Opportunities for Junior Lawyers , available at http://chipsnetwork.org/wp-content/uploads/2016/02/Judicial-Orders-re-Next-Gen-2.4.16.pdf.

Case Specific Order, GSI Technology Inc. v. United Memories, Inc., Case No. 5:13-cv-01081-PSG, ORDER RE: PARTIES’ STIPULATION TO VACATE HEARING (March 11, 2016)

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The day before last, I expressed my concerns about the lack of courtroom opportunities for law firm associates in intellectual property cases like this one. Recognizing the court’s own important role in encouraging clients and partners to give up the podium once in a while, I asked that each party give associates the chance to argue just two of six motions set for hearing on Monday. This morning, the parties and their counsel responded. But rather than confirm their commitment to this exercise, the parties jointly stipulated simply to take all motions off calendar and submit them without any hearing. No explanation was given; perhaps associate preparation and travel costs were the issue. In any event, once again, another big intellectual property case will come and go, and the associates who toil on it will largely do so without ever being heard. I appreciate that my order acknowledged the possibility that the parties would decline this opportunity and simply submit their motions on the papers. But I would be remiss if I did not observe the irony of another missed opportunity to invest in our profession’s future when two of the motions originally noticed for hearing seek massive fees and costs. To be clear, GSI asks for $6,810,686.69 in attorney’s fees, $1,828,553.07 in non-taxable costs and $337,300.86 in taxable costs, while UMI asks for $6,694,562 in attorney’s fees, $648,166 in expenses and $302,579.70 in taxable costs. That a few more dollars could not be spent is disappointing to me. My disappointment, however, is unlikely to compare to the disappointment of the associates, who were deprived yet again of an opportunity to argue in court.

Judge Andrew J. Guilford, Central District of California Scheduling Order Specifying Procedures http://www.cacd.uscourts.gov/sites/default/files/documents/AG/AD/Scheduling%20Order%20Specifying%20Procedures.pdf

6.12 Other Possible Trial Procedures. The Court is open to creative trial procedures, such as imposing time limits, allowing short statements introducing each witness’s testimony before examination, allowing questions from the jury, and giving the jury a full set of instructions before the presentation of evidence. The Court reminds parties that trial estimates affect juries. 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!).

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Judge Timothy Hillman, District of Massachusetts STANDING ORDER RE: COURTROOM OPPORTUNITIES FOR RELATIVELY INEXPERIENCED ATTORNEYS (November 2, 2006)

http://www.mad.uscourts.gov/worcester/pdf/StandOrd_CrtrmOpps.pdf

Courtroom opportunities for relatively inexperienced attorneys, particularly those who practice at larger firms, have declined precipitously across the nation in recent years. That decline is due to a variety of factors, but has been exacerbated by the proliferation of rules and orders requiring the appearance of “lead” counsel in many court proceedings. In an effort to counter that trend, the undersigned District Judge and Magistrate Judge, as a matter of policy, strongly encourage the participation of relatively inexperienced attorneys in all court proceedings. Such attorneys may handle not only relatively routine matters (such as scheduling conferences or discovery motions), but may also handle, where appropriate, more complex matters (such as motions for summary judgment or the examination of witnesses at trial). The following cautions, however, shall apply.

First, even relatively inexperienced attorneys will be held to the highest professional standards with regard to any matter as to which experience is largely irrelevant. In particular, all attorneys appearing in court are expected to be appropriately prepared, regardless of experience. For example, any attorney who is arguing a motion for summary judgment is expected to be thoroughly familiar with the factual record and the applicable law.

Second, all attorneys appearing in court should have a degree of authority commensurate with the proceeding that they are assigned to handle. For example, an attorney appearing at a scheduling conference ordinarily should have the authority to propose and agree to a discovery schedule and any other matters reasonably likely to arise at the conference.

Third, relatively inexperienced attorneys who seek to participate in evidentiary hearings of substantial complexity, such as examining a witness at trial, should be accompanied and supervised by a more experienced attorney, unless leave of Court is granted otherwise.

Judge Lucy H. Koh, Northern District of California

ORDER RE: ASSOCIATES ARGUING DISPOSITIVE MOTIONS (Feb. 10, 2017)

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http://nextgenlawyers.com/wp-content/uploads/2017/02/X-One-Inc.-v.-Uber-Technologies-Inc.-Order-Re-Associates-Arguing-Disposi....pdf

At the January 18, 2017 initial case management conference, the Court and parties had difficulty setting a date for the hearing on dispositive motions because of the schedules of the Court and lead Plaintiff’s counsel. The Court thus asked whether lead Plaintiff’s counsel’s colleague who was also present at the case management conference could argue at the hearing instead. Lead Plaintiff’s counsel agreed. Her colleague is an associate who graduated from law school in 2009.

he Court thus encourages Defendant to also allow an associate who graduated from law school in 2009 or later to argue at the dispositive motions hearing in this case. Pursuant to Civil Local Rule 7-1(b), the Court often finds matters appropriate for resolution without oral argument. However, to encourage the parties to give associates opportunities to argue substantive motions, the Court will guarantee a hearing on the dispositive motions if both parties allow associates who graduated from law school in 2009 or later to argue such motions. Defendant shall inform the Court of its position in the next Joint Case Management Statement.

Judge Lucy H. Koh, Northern District of California

GUIDELINES FOR FINAL PRETRIAL CONFERENCE IN JURY TRIALS BEFORE DISTRICT JUDGE LUCY H. KOH (January 04, 2011)

http://www.cand.uscourts.gov/lhkorders

G. Opportunities for Junior Lawyers

The Court strongly encourages parties to permit less experienced lawyers to examine witnesses at trial and to have an important role at trial. Counsel should be prepared to discuss such opportunities at the Pretrial Conference.

GUIDELINES FOR FINAL PRETRIAL CONFERENCE IN BENCH TRIALS BEFORE DISTRICT JUDGE LUCY H. KOH (January 04, 2011)

http://www.cand.uscourts.gov/lhkorders

G. Opportunities for Junior Lawyers

The Court strongly encourages parties to permit less experienced lawyers

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to examine witnesses at trial and to have an important role at trial. Counsel should be prepared to discuss such opportunities at the Pretrial Conference.

Case Specific Order: Apple Inc. v. Samsung Electronics Co. Ltd., Case No. 11-CV-01846-LHK, ORDER RE: ORAL ARGUMENT AT PRETRIAL CONFERENCE (February 25, 2016)

At the Pretrial Conference on March 3, 2016, the Court will hear oral argument on the following issues:

Samsung’s Motion In Limine #1 to Exclude Evidence Or Argument Regarding Samsung’s Revenue Or Profit From All Infringing Sales. This issue shall be argued by an attorney 9 or fewer years out of law school.

Samsung’s Motion In Limine #2 to Exclude Evidence Of Market Share Based On Products Not At Issue In This Trial. This issue shall be argued by an attorney 5 or fewer years out of law school.

Samsung’s Motion In Limine #3 to Exclude Testimony Of Julie Davis As To A Purely Legal Issue. This issue shall be argued by an attorney 7 or fewer years out of law school.

Case Specific Order: Huynh v. Karasz , Case No. 14-CV-02367-LHK, ORDER REGARDING QUESTIONS FOR SUMMARY JUDGMENT HEARING (May 10, 2016)

Plaintiffs’ counsel has stated that two junior attorneys a first year and second year associate will argue at the May 12, 2016 motions hearing. In the interest of providing junior attorneys from both sides an opportunity for argument, the Court encourages Defendants to identify junior attorneys to argue at the motions hearing. However, after reviewing Defendants’ counsel website, the Court acknowledges that finding a first or second year associate to argue may not be feasible and that it may be necessary for Defendants’ counsel to be represented by a more experienced associate. Issued in response to: Huynh v. Karasz , Case No. 14-CV-02367-LHK, PLAINTIFFS’ NOTICE OF ARGUMENT BY JUNIOR ATTORNEYS (April 13, 2016)

On May 12, 2016 at 1:30 p.m., this court has scheduled argument on the parties’ cross motions for summary judgment. 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

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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/wp-content/uploads/2016/02/Judicial- Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com (judicial orders).

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.

This Court has likewise encouraged parties to “permit less experienced lawyers” to have stand-up opportunities. See, e.g., Guidelines for Final Pretrial Conference in Bench Trials Before District Judge Lucy H. Koh ¶ G (Jan. 3, 2011); Guidelines for Final Pretrial Conference in Jury Trials Before District Judge Lucy H. Koh ¶ G (Jan. 3, 2011).

Plaintiffs respectfully notify the Court that they intend to have first year associate Holly K. Victorson and second year associate Emily Petersen Garff argue the upcoming summary judgment motions. Ms. Victorson and Ms. Garff were the primary drafters of Plaintiffs’ briefing, and were involved in taking much of the discovery Plaintiffs relied upon in their motion. Given the gravity of the issue before this Court, Plaintiffs respectfully request that more experienced counsel be able to assist in the argument should the need arise.

Judge Barbara M. G. Lynn, Northern District of Texas Judge Lynn makes the following part of her standard patent scheduling order:

11. The Court is aware of a trend today in which fewer cases go to trial, and in which there are generally fewer speaking or “stand-up” opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the Court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing. The Court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate – such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a “bet-the-company” type case. Even so, the Court believes it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young

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lawyers, to clients, and to the profession generally. Thus, the Court encourages all lawyers practicing before it to keep this goal in mind.

Judge Leigh Martin May, Northern District of Georgia http://www.gand.uscourts.gov/sites/default/files/CVStandingOrderLMM.pdf

STANDING ORDER REGARDING CIVIL LITIGATION

III(m). Requests for Oral Argument on Motions

In accordance with Local Rule 7.1(E), motions are usually decided without oral argument, but the Court will consider any request for hearing. If oral argument is requested, the party or parties should specify the particular reasons argument may be helpful to the Court and what issues will be the focus of the proposed argument. Moreover, the Court shall grant a request for oral argument on a contested substantive motion if the request states that a lawyer of less than five years out of law school will conduct the oral argument (or at least a large majority), it being the Court’s belief that new lawyers need more opportunities for Court appearances than they usually receive.

Judge Gary H. Miller, Southern District of Texas COURT PROCEDURES (Updated September 16, 2015)

http://www.txs.uscourts.gov/page/judge-millers-procedures

4. Young Lawyers: The court is aware of a trend today in which fewer

cases go to trial, and in which there are generally fewer speaking or "stand-up" opportunities in court, particularly for young lawyers (i.e. lawyers practicing for less than seven years). The court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing. The court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate-such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a "bet-the-company" type case. Even so, the court believes 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. Thus, the court encourages all lawyers practicing

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before it to keep this goal in mind.

Judge K. Nicole Mitchell, Eastern District of Texas (Recent Order – January 12, 2016)

The Court is aware that 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). The Court strongly encourages 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. With that in mind, the Court has currently set the Markman hearing in this case for the morning of January 12, 2016. To the extent that any party planned to submit any of the disputed terms on the papers alone, the Court will grant additional time to argue those terms, if they are argued by an attorney with seven or fewer years of experience.

Judge Kimberly J. Mueller, Eastern District of California STANDING ORDERS http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5020/standing-orders/ CIVIL LAW AND MOTION

Young Attorneys: The court values the importance of training young attorneys. If a written request for oral argument is filed before a hearing, stating an attorney of four or fewer years out of law school will argue the oral argument, then the court will hold the hearing. Otherwise, the court may find it appropriate in some actions to submit a motion without oral argument.

TRIALS

Given the value the court places on training young attorneys, the court encourages lead counsel to permit a young attorney to examine witnesses at trial and to have a role in the trial.

Judge Robert Pitman, Western District of Texas

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STANDING ORDER (January 30, 2017)

http://www.fr.com/wp-content/uploads/2017/01/2017-01-30-D73-Order-Granting-Pltf-Mot-for-Attys-Fees.pdf

Second, Defendants are critical of the time Mr. Darby spent preparing for the evidentiary hearing as excessive. However, Mr. Darby was the only associate working on the matter and likely the most familiar with the facts of the case and the evidence to be presented at the evidentiary hearing. In addition, he prepared a twenty-page slide presentation for the hearing and delivered an opening statement that was on par with some of the strongest oral advocates that come before the Court. Thus, the Court concludes that the time he expended—approximately forty-three hours—for a hearing that Plaintiff likely understood could be dispositive of their claims was reasonable.

Judge Dennis F. Saylor, District of Massachusetts

STANDING ORDER RE: COURTROOM OPPORTUNITIES FOR RELATIVELY INEXPERIENCED ATTORNEYS (November 2, 2006)

http://www.mad.uscourts.gov/boston/pdf/saylor/StandingOrderReCourtroomOppor_Bostonupdate.pdf

Courtroom opportunities for relatively inexperienced attorneys, particularly those who practice at larger firms, have declined precipitously across the nation in recent years. That decline is due to a variety of factors, but has been exacerbated by the proliferation of rules and orders requiring the appearance of “lead” counsel in many court proceedings. In an effort to counter that trend, the undersigned District Judge and Magistrate Judge, as a matter of policy, strongly encourage the participation of relatively inexperienced attorneys in all court proceedings. Such attorneys may handle not only relatively routine matters (such as scheduling conferences or discovery motions), but may also handle, where appropriate, more complex matters (such as motions for summary judgment or the examination of witnesses at trial). The following cautions, however, shall apply. First, even relatively inexperienced attorneys will be held to the highest professional standards with regard to any matter as to which experience is largely irrelevant. In particular, all attorneys appearing in court are expected to be appropriately prepared, regardless of experience. For example, any attorney who is arguing a motion for summary judgment is expected to be thoroughly familiar with the factual record and the

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applicable law.

Second, all attorneys appearing in court should have a degree of authority commensurate with the proceeding that they are assigned to handle. For example, an attorney appearing at a scheduling conference ordinarily should have the authority to propose and agree to a discovery schedule and any other matters reasonably likely to arise at the conference.

Third, relatively inexperienced attorneys who seek to participate in evidentiary hearings of substantial complexity, such as examining a witness at trial, should be accompanied and supervised by a more experienced attorney, unless leave of Court is granted otherwise.

Judge Indira Talwani, District of Massachusetts

STANDING ORDER REGARDING COURTROOM OPPPORTUNITIES FOR RELATIVELY INEXPERIENCED ATTORNEYS (October 9, 2005) http://www.mad.uscourts.gov/boston/pdf/talwani/Standing%20Order%20Young%20Attorneys.pdf

Judges F. Dennis Saylor, Denise Casper, and Timothy Hillman

have adopted standing orders strongly encouraging the participation of relatively inexperienced and young attorneys in all court proceedings. Judge Casper noted that the “decline in courtroom opportunities for newer lawyers is widely recognized and is one of concern to both the bench and bar.”

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.

The following admonitions regarding professionalism, authority, and supervision apply:

First, all attorneys appearing in this court, including those who are relatively experienced, will be held to the highest professional standards. These attorneys must be prepared and knowledgeable about the case and applicable law.

Second, all attorneys appearing in court should have a degree of authority commensurate with the proceeding. For example, an attorney

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appearing at a scheduling conference ordinarily should have the authority to propose and agree to a discovery schedule and any other matters reasonably likely to arise at the conference.

Third, relatively inexperienced attorneys who seek to participate in

evidentiary hearings of substantial complexity, such as examining a witness at trial, should be accompanied and supervised by a more experienced attorney unless the court gives leave to do otherwise.

The undersigned judge hopes that counsel join the court in

effectuating this important policy. Counsel may seek additional guidance from the court in particular cases concerning the scope and application of this policy.

Judge Jon S. Tigar, Northern District of California STANDING ORDER FOR CIVIL JURY TRIALS BEFORE DISTRICT JUDGE JON S. TIGAR (November 11, 2016)

http://www.cand.uscourts.gov/jstorders

12. Opportunities for Junior Lawyers The Court strongly encourages the parties to permit junior lawyers to examine witnesses at trial and to have an important role at trial.

STANDING ORDER FOR CIVIL BENCH TRIALS BEFORE DISTRICT JUDGE JON S. TIGAR (November 21, 2016)

13. Opportunities for Junior Lawyers The Court strongly encourages the parties to permit junior lawyers to examine witnesses at trial and to have an important role at trial.

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Page 1 of 7  

Illinois Association of Defense Trial Counsel Springfield, Illinois | www.iadtc.org | 800-232-0169

IDC Quarterly | Volume 24, Number 2 (24.2.23)

Feature Article Elizabeth K. Barton

Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago

To the Young Lawyer: Tips for Court Appearances

It is natural for young lawyers to be intimidated by court appearances. The first time I appeared in court as

a new lawyer, I remember thinking to myself, “They sure don’t teach you this in law school.” Sure, I went through a course in trial advocacy, was on moot court competitive teams, and even participated in an international arbitration competition. I was given tips about what to say, what to wear, and how to behave generally in a courtroom. Yet, nothing would prepare me for the realization that I, a recent graduate surrounded by much more experienced attorneys (some of whom were admitted to the bar the year I was born), was responsible for representing my client on my own. That realization was empowering and thrilling, but, if I am being completely honest, mostly it was terrifying.

I recently attended a seminar for young lawyers where several panelists were members of the judiciary. Their wisdom and insight struck a chord with me that no matter how comfortable lawyers become in all different courtroom settings, we could always be reminded of a few “golden rules.” I have gathered up the best advice I have received from a variety of sources throughout my comparatively brief legal career. These might be helpful for new lawyers as they embark on their careers, and even for more seasoned lawyers who could use a reminder as they mentor younger attorneys.

Your Reputation Is Everything

The most obvious rule, but one that needs constant reaffirmation, is that your reputation is vital to your

career. Consequently, you have to be vigilant about what you say and how you behave. This principle is true whether you are making representations to the court, interacting with court personnel, working with opposing counsel, managing your client, or in any other situation in which a lawyer might find herself. Your words and behavior affect your reputation, your client’s reputation, and the reputation of your employer.

The Honorable Paul Biebel, Jr. is the Presiding Judge of the Criminal Division for the Circuit Court of Cook County. He says, “Assume everything is transparent and you cannot hide anything. Front your troubles because if you don’t, you can bet the other side will.” Telephone Interview with Paul Biebel, Jr., Presiding Judge, Circuit Court of Cook County, Criminal Division (Feb. 24, 2014) [hereinafter Telephone Interview with Judge Biebel]. He warns, “Judges have long memories.” Id.

Cook County Associate Judge Neera Walsh adds that, if you lie, the judge might forgive you, but she will never forget. “The judge needs to trust you, and if you violate that trust even once, your reputation is

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tarnished.” Telephone Interview with Neera Walsh, Associate Judge, Circuit Court of Cook County, Criminal Division (Feb. 21, 2014) [hereinafter Telephone Interview with Judge Walsh].

It comes down to always telling the judge the truth. Be precisely correct in what you say, whether it is discussing a case or relating the facts of your own case. Do not broaden the holding of a case, embellish it, or conceal distinguishing factors. Tell the bad along with the good. Do not fall into the trap of telling the court what you wish the case said, or give the judge the facts you would rather have instead of the ones you really do have. You owe the court candid and full disclosure. We all have difficult clients sometimes and we did not create the facts of the cases we are presenting, so all we can do is present them in the best possible light.

As I heard in a seminar, “Your reputation is your most valuable asset both before the court and in your career.” James F. Holderman, Judge, United States District Court for the Northern District of Illinois, ISBA Presentation: Tips for Young Lawyers for In Court and Out of Court (Nov. 13, 2013). The bottom line: make an impression, but make it a good one.

Be on Time: Always.

Always be on time is a cardinal rule, and a violation can cost you and your client. Tardiness is rude and

disrespectful to the court and to all of the others who are waiting. You are not the only lawyer with deadlines, demanding clients, emails and phone calls to return, and (not to mention) billable hours.

A simple and effective tip from one of my current mentors, Ellen K. Emery, is that when you arrive, look at the call sheet before you sit down and write down the names of the three cases before yours. That way, by the time the clerk is calling your case, you should already be approaching the podium. You should never be one of those people climbing over others when the clerk calls your case, yelling, “Defendant!” She assured me that the court will appreciate your readiness.

Be mindful of the myriad of potential delays, including weather, traffic, security checkpoints, and the elevator, and factor them into your schedule. Anyone who has ever been to the Daley Center in Chicago at 8:50 a.m. on any given weekday can attest to the snail’s pace of the elevator banks. Do not risk it. But, if you are late despite your best efforts, simply call the judge’s chambers or opposing counsel and let them know. Just do not make it a habit.

By way of example, I had an initial status hearing in the Western Division of the Northern District of Illinois in Rockford at 9:30 a.m. The plaintiff’s counsel had called me the night before to ask whether I would be willing to conduct the hearing telephonically, and I had no objection. I never heard back from him that night, so I left Chicago at 6:30 a.m. the next morning, drove 100-plus miles in the rain, construction, and traffic, and made it to court with minutes to spare.

Once I was sitting in the courtroom, I overheard the judge’s clerk on the phone and it was obvious to me she was talking to opposing counsel regarding his alleged inability to make it on time due to the weather. I then listened as the clerk told the judge she was skeptical of the story and did not believe the attorney had even left Chicago.

Eventually, the case was called and opposing counsel appeared telephonically. The first question the judge asked was, “Mr. X, are you by a window? Please tell me what you see.” The attorney fumbled through an awkward explanation about being at a gas station, so he could not describe where he was. One thing was clear: the judge did not believe his story and scolded him for wasting the court’s time. After all, as the court pointed out, I had traveled from Chicago and made it on time, so what exactly was his excuse? Of course, the judge was fair throughout the remainder of the hearing, but I would not want that to be the judge’s first impression of me. Would you?

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Be Civil, Ethical, and Professional We all have our good days and bad days at work. The bad days can feel like they will never be

outnumbered: you lose a motion, a deponent testifies against your client’s position, you have a contentious relationship with opposing counsel who lacks civility and continues to unnecessarily badger you and your client, you have to work all weekend, and the list goes on and on. But through it all, the key is to remain civil, ethical and professional, especially when you appear in court.

Play Fair

Litigation is filled with conflict, emotion, and stress, so it is inevitable that someone will say something to

you that is offensive. Ignore it and do not lose sight of your goal of effective representation. Responding in kind only results in collateral damage to your client. Act right when you win, and act right when you lose. Do not use facial objections, like eye rolling or smirking, because the judge certainly will hold it against you. The judge knows you are disappointed when you lose, but expects you to respect her decision and the system. Whichever outcome you experience, be mature and show class.

If you practice in civil litigation, Judge Biebel reminds us that 95% of civil cases settle before trial. So, it can only benefit you to be civil with opposing counsel from the get-go because it is likely you will have to work together to come to an agreement at the end anyway.

Do not seek to embarrass opposing counsel or “go in for the kill.” When you are on the receiving end of that behavior, the best way to disarm your opponent is to take the high road because it absolutely drives them crazy. Often, it will throw them into such confusion that their tactics will backfire, and they come out looking unreasonable to the court.

My mentor warns young lawyers, particularly female ones, of the oldest trick in the book: don’t let older lawyers interrupt you. Stand up for yourself, but remember, always direct your comments to the court and let the judge referee. It is important to resist the urge to answer your opponent’s comments because to the court, it only sounds like bickering. Since the court is the ultimate decision-maker, address the court directly. This way, you will appear to be taking the high road.

Part of playing fair is showing everyone a little grace. Attorneys are bound to make mistakes, including you. When opposing counsel makes and untoward remark, an error in procedure, a misstatement of the law, consider first whether he or she made an honest mistake. To do so requires a level head. Think of how you can address the mistake in a gracious way, while correcting any misimpression that might have resulted. Inevitably, the time will come when you may need a little grace yourself.

You can never go wrong with the old adage “treat others how you want to be treated,” because in spite of everything, the legal community is small and what goes around, comes around.

Look the Part

This comment might seem obvious, but dress like a professional. Personally, I never want someone

thinking about my clothes instead of listening to what I have to say. My law school companion and current Cook County Assistant State’s Attorney, Nancee Hofheimer, thinks it is important to consider your role. Are you a prosecutor? Do you represent a bank? If so, you will want to err on the side of formality. But, even if you are a criminal defense attorney showing up to a bond hearing on Saturday morning, Nancee reminds us that “jeans are never a good idea.” Telephone Interview with Nancee A. Hofheimer, Assistant State’s Attorney, Cook County State’s Attorney’s Office (Feb. 10, 2014) [hereinafter Telephone Interview with ASA Hofheimer].

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My mentor has advised that if you want to be taken seriously, dress like the “heavy-hitters.” She thinks it is just as unprofessional to show up in a red mini-skirt and stiletto heels, as it is to show up in flip-flops and jeans. For men, your “uniform” should be a suit and tie. For women, the choices vary so much that it can be easy to make the wrong judgment call. But it is always best to err on the side of being conservatively dressed.

Last summer, Tennessee Circuit Judge Royce Taylor of Rutherford County issued a memo about female lawyers adhering to the dress code after one female attorney appeared before him in a sleeveless blouse. Judge Taylor wrote, “The unanimous opinion was that the women attorneys were not being held to the same standard as the men. I have advised some women attorneys that a jacket with sleeve below the elbow is appropriate or a professional dress equivalent . . . . Your personal appearance in court is a reflection upon the entire legal profession.” Jacob Gershman, Tennessee Female Attorneys Urged to Wear Less Revealing Outfits, Wall Street Journal Law Blog (Jun. 13, 2013, 12:19 PM), http://blogs.wsj.com/law/2013/06/13/tennessee-female-attorneys-urged-to-wear-less-revealing-outfits/.

Be Respectful to Courtroom Staff

Courtroom staff is a wealth of information. Approach the court and chambers staff with respect and a

healthy dose of humility because chances are, if you are a new lawyer, the staff knows more than you do. They are experienced, knowledgeable, and have the judge’s respect and trust. Show courtroom staff, including bailiffs, judicial assistants, and clerks, the same respect that you show the judge.

Know Your Case

According to Judge Biebel, preparation is key. He says, “You could be the best lawyer in the world, but if

you’re not prepared that day, well, then you’re not a good lawyer that day.” Telephone Interview with Judge Biebel, supra.

It is our job to be prepared. An early lesson I learned from one of my first mentors, Beth Ekl of The Sotos Law Firm, was that I did not have to be the smartest person there, I just had to be the most prepared. In my few years of practice, I have already learned that I will never be the smartest, the most experienced, or the most eloquent person in the room. But, I believe that knowing your case better than your adversary is the first step to being a successful advocate.

As young lawyers, we are asked to cover “simple” hearings all the time. You might hear from a partner, “It’s easy. Just get a briefing schedule.” Trust me, no matter how simple the partner tells you it will be, make sure you know the basics and know why you are appearing. You should know these basics about the case: What is the case about? When does discovery close? How much discovery is left? Are there pending motions? What is the legal standard for the motion being presented? And never, ever say, “I don’t know. This isn’t my case.” Judge Biebel agrees, “That’s just embarrassing.”

Put yourself in the judge’s position and consider the number of cases a judge has on her docket. It would be unfair to expect the judge (even with the help of clerks) to research every legal issue or master the facts of every case before her. Therefore, judges depend on lawyers to provide accurate information on the facts and the law, and to be honest and straightforward in their presentations. A good approach is to think, “If I were the judge, what would I want to know?”

Most days, you have less than 30 seconds to get your point across, so really think it through before you step up in front of the court. But, as Ms. Ekl points out, if you take notes to the podium, you must still listen to the court and answer the question the judge is asking you; do not just read off your script. This recommendation goes along with Ms. Emery’s advice to “talk it through with the judge.” When you are

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arguing a motion, do not just reargue everything you wrote in your brief. You have to trust the court has read your motion and make sure to know your argument well enough so you can ad lib when necessary.”

If you are not prepared, however, just let everyone know. Judge Walsh assured me that judges realize things come up, but her advice is to be upfront about it so that something can be worked out. “It’s just a matter of valuing and respecting everyone’s time,” she says. Telephone Interview with Judge Walsh, supra.

Never try to fool the judge by answering questions you really do not know the answer to. As I have heard Ms. Ekl say, “No lie is too small. Judges are smart; they will figure it out.” Telephone Interview with Elizabeth A. Ekl, Partner, The Sotos Law Firm, P.C. (Feb. 11, 2014). Judges respect when lawyers admit that they do not know the answer, but offer to supplement or research and come back with an answer. In the end, they will appreciate the honesty.

Know Your Judge

Every judge has her own idiosyncrasies that must be accommodated. A young lawyer’s ability to be

flexible and adapt to judges will go a long way toward improving that lawyer’s reputation in the legal community. If possible, ask other lawyers about a judge’s pet peeves and unique practices. Taking this step will mean fewer surprises and less anxiety. This step is particularly important for attorneys who practice in front of the same judge every day, like ASA Hofheimer. She focuses on appealing to a certain audience. “When I am assigned to a courtroom, I want to know what makes the judge tick. How do they like things run? What is the level of formality in their courtroom? What arguments are they responsive to?” Telephone Interview with ASA Hofheimer, supra.

Even after over a decade of practicing in federal court, Ms. Ekl admits that she still looks up a judge’s website before appearing in court to remind her if the judge has any applicable standing orders or unique rules. She advises that it is important to research the judge’s prior rulings on a particular issue. If the judge’s rulings are favorable to your case, make sure you emphasize why your case is similar. If the rulings are not in your favor, think about how you can convince the judge to distinguish your case or to think about the issue in a different way.

Know the Rules and Follow Them

In most courts, state and federal judges have individual practices and rules of which you must be fully

aware. All lawyers should know a jurisdiction’s rules of evidence, procedure, and local practice. Consider carrying hard copies of the rulebooks for frequent and easy reference. Better yet, if electronic copies are available and can be placed on your mobile electronic device, use it for easy reference and reassurance. If you cannot find them yourself, call and ask the clerk if there are applicable rules and where they can be found. Check with veteran attorneys about protocols.

Think of it as a pyramid of rules, with the base being the state or federal rules of evidence and procedure, and then narrow your focus. Learn the local rules for the specific district or county. Find out if there are rules for the type of case you have (for example, commercial, mechanics liens, family law, etc.). Finally, does your judge have any standing orders? Find them all, read them, and know them, because the judge will certainly expect you to.

Choose Your Battles

Illinois’s revered lawyer, and personal favorite of mine, Abraham Lincoln told young lawyers,

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the

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nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln, Untitled Law Lecture circa 1850, in Abraham Lincoln Association, Collected Works of Abraham Lincoln (Roy P. Basler et al. eds. 1953), available at http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm.

Do not fight over trivial issues or technicalities. You want to fight the battles that matter for your client and that actually mean something to the overall success of the case. Do not just file a motion because a partner tells you to. If your name is on the document and you are the one standing in front of the judge, be sure it is an argument you want to make and that you have a chance of winning.

Judge Biebel warns, “Don’t end up in the middle of the lake (or the ocean) in the fog; come back to shore.” Telephone Interview with Judge Biebel, supra. He advised me that it is always important to go back to square one and to focus on what really matters to the case, such as the cause of action, elements of the crime, or your defense. In fact, Judge Biebel thinks that sometimes young lawyers can be too combative by filing motions for sanctions, to compel, and for rule to show cause. But, he says this just gets in the way because judges really just want to hear the case. “Judges don’t like contentious lawyers,” he says. Id.

Judges do not want you to waste their time by filing frivolous motions just to prove a point or to demonstrate how smart you think you are. Judges especially want you at least to attempt to work it out before seeking court intervention. Therefore, it is important to show that you have done your part by documenting all of the discussions (or attempts) you had with opposing counsel before seeking judicial intervention. A fast way to lose credibility with the court is when you appear to be engaging in gamesmanship because flooding your opponent with motions means that you are also adding to the court’s burden. Lawyers who constantly file motions can seem unreasonable, and after awhile, they become the proverbial boy-who-cried-wolf.

Be True to Yourself

You will hear a number of people, including me, try to give you advice. While it is good to listen to that

advice, do not try to become someone whom you are not. You should take that advice and mold it to fit your personality. Build your skills around who you are.

Discover your “lawyering personality” by observing how well-respected attorneys and judges act and speak. Ask them questions and seek their advice. We have a great tradition in the legal profession of sharing ideas, best practices, and (my favorite) war stories. In fact, some of the most valuable feedback ASA Hofheimer has received is just by asking a judge for comments after trial. She says it will make you a better attorney and judges are receptive to this idea. After all, as she reminded me: “Judges were lawyers once too.” Telephone Interview with ASA Hofheimer, supra.

Ms. Emery agrees that it is important to observe good lawyers in their element. She encourages young lawyers to watch high profile cases when they are happening locally. She remembers as a young lawyer watching trial greats like Gerry Spence and Richard “Racehorse” Haynes. “You’ll have to eat the billable time, but it is absolutely invaluable to watch good lawyers try a case.” But, she warns never to mimic someone else’s style because “you could end up looking pretty stupid.” Interview with Ellen K. Emery, Partner, Ancel, Glink, Diamond, Bush, DiCianni and Krafthefer, P.C. (Feb. 15, 2014).

Be Confident

Transitioning from learning the law to eventually imparting legal advice can seem daunting. Even now, I

struggle with convincing myself that I can properly advise my clients, especially because I am often half their age (and look even younger). You might be inexperienced, but you do not have to act that way. I find that it is possible to appear confident, even when you are not.

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Find ways to build confidence in your own way. For me, I am most confident when I am thoroughly prepared. I make outlines and notes that will help guide me through an argument or presentation before the court. I practice even the simplest of arguments by talking it through to myself, to my colleagues, and sometimes to non-lawyers, which ensures that I really have a handle on the issues. Even the best lawyers perform this exercise in preparation for oral arguments before the U.S. Supreme Court.

“As a lawyer, you need courage to make decisions and have confidence that you can do a good job,” Judge Biebel says. Telephone Interview with Judge Biebel, supra.

While some of our skills will not be finely tuned until later in our careers, reminding ourselves as young attorneys what we are expected to do can only make us better lawyers in the end. The ancient Greek philosopher, Anaxagoras, said, “Appearances are a glimpse of the unseen.” Peter Carravetta, Preface to the Diaphora: Rhetoric, Allegory, and the Interpretation of Postmodernity 191 (Purdue Research Found. 1991) (quoting Anaxagoras). The court might only have a brief period to judge you, your appearance, or your argument. So, when you are appearing in court, consider these tips and make sure the glimpse you present is your absolute best.

About the Author

Elizabeth K. Barton is an associate with the Chicago office of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., where she is a member of the firm’s litigation group. Her practice is focused on defending government entities in civil litigation, with a primary emphasis in the defense of Section 1983 allegations of police misconduct. Ms. Barton received her J.D. from The John Marshall Law School and her undergraduate degree from the University of Iowa, with honors. Ms. Barton is a member of the IDC Young Lawyers Division.

About the IDC

The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org.

Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 24, Number 2. © 2014. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited.

Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, [email protected]

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WOMENI N T R I A L

Shatter the Glass Ceiling in the Courtroom.Two-Day Intensive Trial Advocacy Training for Women

TRAINING DATESJuly 19 – 20, 2019 TIMEMCLE Registration: 8:00 – 9:00 a.m.Program: 9 a.m. – 5:00 p.m. Friday Reception: Immediately follows.Lunch will be provided.

EVENT CODEG191611 - July Training

MCLE15 Hours of which 1 is in Legal EthicsTo receive MCLE credit, you must sign in during the desig-nated MCLE registration period. This activity is approved for Minimum Continuing Legal Education credit by the State Bar of California. BASF is a certified provider. Provider #103

LOCATION:Bar Association of San Francisco301 Battery Street, 3rd FloorSan Francisco, CA 94111

COST$750 per Individual$5,000 per Firm (up to 8 individuals)Space is limited. Register now!

If you don’t think there is enough diverse representation in our courtrooms, or if you believe there is a shortage of women trial lawyers, change it by being there. If you don’t think you have the skills to try a case, take this program. This training will be available twice this year in February and July. You can take either one. Learn the skills and get into court through our BASF and JDC pro bono programs.

TOPICS

• Develop trial skills in an experiential learning environment

• Learn from trial masters and judges about effective presentation skills

• Practice opening statements, closing arguments, direct and cross examinations

• Receive coaching and critiques to enhance your performance

• Experience immediate improvement in two days

MODERATORDoris ChengWalkup Melodia Kelly & Schoenberger TEACHING FACULTY will include Master Trial Lawyers and active Judges

JDC’s pro bono programs need energetic and skilled advocates to assist with cases related to family law, child custody, spousal support, eviction defense, debt collection, prisoner rights, and other matters. You will be eligible for assignment for a pro bono case through the 2019 Women in Trial initiative. More information on pro bono opportunities will be provided at the training.

For more information and registration, please email [email protected].

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WOMEN I N T R I A L

For more information and registration, please email [email protected].

Friday8:00 – 9:00 a.m. MCLE Registration and Breakfast

9:00 – 9:30 a.m. Opening Remarks and IntroductionsLocation: Main Lecture Room

9:30 – 10:15 a.m.Lecture/Demonstration: Opening StatementLocation: Main Lecture RoomThis lecture will provide instruction about the purpose and utility of opening statements. It will also demonstrate how to develop and deliver an effective opening statement to jurors and judges.

10:15 – 10:30 a.m. Break

10:30 – 11:00 a.m.Lecture/Demonstration: Verbal and Non-Verbal Communication SkillsLocation: Main Lecture RoomPublic speaking is one of the most anxiety-producing activities for most people. This lecture will address how to control your body and voice while speaking in court.

11:00 a.m. – 12:00 p.m.Workshop #1: Brainstorming – Setting up the Case for Success.Location: Break out into prosecution and defense roomsIt is important to commit to a strategy, theme and theory before the start of trial. If you don’t have your destination in mind, you will never get there. During this workshop, we will work through legal theories, arguments, rhetoric, and themes that will be presented throughout the trial.

12:00 – 1:30 p.m. Working LunchLecture/Demonstration: Direct & Cross ExaminationsLocation: Main Lecture RoomThis portion will address the most effective methods for establishing the elements of the charge, setting the scene, building or diminishing the credibility of witnesses, and controlling the witnesses during direct and cross examination. The lecture will also cover permissible forms of questions.

1:30 – 2:45 p.m. Workshop #2: Opening Statement - Video ReviewLocation: Breakout RoomBe prepared to deliver an opening statement. You will be given five to seven minutes to complete the opening statement. Keep the statement factual, but use the order of the facts to create the point of view that is most favorable to your client.

2:45 – 3:00 p.m. Break3:00 – 4:30 p.m. Workshop #3: Direct Examination - Video ReviewLocation: Breakout RoomProsecutors direct examine Investigator Bier and defense attorneys direct examine Dan Jones.

4:30 – 5:15 p.m. Lecture/Demonstration: Closing ArgumentLocation: Main Lecture RoomThis lecture will provide instruction on how to structure and craft a winning closing argument.

5:15 – 5:30 p.m. Wrap up and Reflections

Saturday8:00 – 8:45 a.m. Breakfast8:45 – 9:00 a.m. Meet together for a huddleLocation: Main Lecture RoomBrief discussion about the goals for the day.

9:00 – 10:30 a.m.Workshop #4: Cross Examination - Video ReviewLocation: Breakout RoomProsecutors cross examine Dan Jones and defense attorneys cross examine Investigator Bier.

10:30 – 10:45 a.m. Break

10:45 a.m. – 12:00 p.m.Workshop #5: Moving in Exhibits into Evidence on Direct & Cross ExaminationsLocation: Main Lecture RoomThis interactive drills exercise will teach you how to move in exhibits into evidence.

12:00 – 1:30 p.m. Working Lunch - Discussion about jury selectionLocation: Main Lecture Room Civility matters: Tips from judges and trial lawyers about conduct in the courtroom (1 hour Ethics Credit).

1:30 – 3:00 p.m. Workshop #6: Using Exhibits on Direct & Cross Examinations - Video ReviewLocation: Breakout RoomProsecutors direct examine Investigator Bier using the diagram.Defense attorneys cross examine investigator using the diagram.

3:15 – 3:30 p.m. Break3:30 – 5:00 p.m. Workshop #7: Closing Arguments - Video ReviewLocation: Breakout RoomDeliver a closing argument. 5:00 – 5:30 p.m. Wrap Up, Reflections, Closing Remarks.