Last week’s column discussed the underappreciated role that second chairs play in modern litigation practice. But how best to fill the role, once it is earned?
The easy answer is fanatical preparation. Meaning you will need to prepare for every hearing, no matter how minor, as if you were going to be handling the argument yourself. Or if you are at trial, and supporting another lawyer on the testimony (be it direct or cross) of a witness, preparing as if you were conducting the examination. Apply the “laryngitis test” if you need motivation, as in what would you do if the first chair woke up that morning without a voice? Knowing that you could be thrust into the spotlight on short notice should be motivation enough for thorough preparation.
But you also need to put that preparation to good use. Arguing in open court is difficult, for even the most seasoned advocates. If you are being asked to sit at counsel table, the idea is not for you to admire the wood paneling in the courtroom. The expectation is that you will put your knowledge of the case to work, by anticipating the flow of the argument, and making sure that whoever is arguing has any needed information readily available for immediate use. When your partner is speaking, that means keeping track of whether they will need to refer to a document along the way. Or whether they have forgotten to raise an important point. For that latter reason, working out a non-intrusive note passing system in advance can be worthwhile. The key is not to disturb the flow of the argument, but to enhance its effectiveness. If you have nothing to contribute, you should not be sitting there wasting the client’s money. The need to be “active” does not give license to hijack the hearing or cause distraction, of course. Engaged listening at all times and sparing active participation are the better approach in almost all cases.
You can be sitting quietly, but actually be very active as a second chair, whether it is by scanning the judge’s reactions to certain arguments, or observing opposing counsel’s courtroom style for use in trial preparation later on. The more active you are in the role of second chair, the more you will learn, and the more fun you will have while doing so.
You can also serve an important function as second chair just by encouraging and making sure that the first chair is keeping up with the necessary preparation. We do this quite naturally at our firm, because we are all of the same generation, and mutually invested in making sure our firm’s work product is of the highest possible caliber. It may be more difficult in Biglaw, where you may be twenty or thirty years younger than the first chair. It can be difficult to “nudge” a more senior lawyer to be better prepared. At the same time, it is important to remember that your reputation, within your firm and to the broader “market,” is on the line whenever there is an argument on a case you are working on. You may not have full control over the outcome, but a good second chair does whatever they can to make it a successful one. If that means nagging a senior partner to learn the case better, so be it. I was spared that unpleasantness during my Biglaw career, and am thankful for that.
There is another important role that second chairs occupy — an underappreciated one. Very often, it is the role of the second chair to “handle” the client representative at the hearing, mediation, or deposition. While there is definitely an expectation that the first chair will communicate with the client during a litigation “event,” there are often practical or logistical issues that force the first chair to have their primary focus on the task at hand. That means a lot of “empty time” for the second chair to fill with the client.
Take a deposition, for example. Let’s say the first chair is defending the main technical expert in a patent case — something that I have done myself many times, which I know firsthand requires complete concentration. The client may be there to see how “our expert” is handling themselves. The lawyer defending the witness will undoubtedly have all their attention on the expert and the questioner, and will be “handling the expert” — even on breaks. If the client is attending, then it will be the responsibility of the second chair to make sure the client is informed as to how the testimony is “really” going. Favorable remarks about how well the first chair is handling the situation don’t hurt client relations in that scenario either. A good second chair is mindful of the opportunity to “educate” the client representative on the issues in the case, while putting in a good word on how the case is being handled. A lousy second chair spends the breaks talking about their kid’s school play, and wastes the opportunity.
A final thought. One of the challenges of being a second chair is that you may get called on to get “experience on your feet,” which, while welcome, often involves arguing losing issues. Even for big-shot litigators, there is always a bigger shot that you need to take “one for the team” for. It is part of the learning process for a litigator, as much as it stinks to lose. Stick around, however, and you may get the opportunity to dump the losing arguments on a second chair of your own.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at email@example.com or follow him on Twitter: @gkroub.