Old Lady Lawyer: We Learn By Doing, Not Just By Watching
A shout out to judicial officers who understand the importance of training the next generation of lawyers.
It’s nice to know that I am not the only one nudging, cajoling, yakking, and jumping up and down, at least metaphorically speaking, about the need for succession planning. Two happenings recently confirm that I’m not alone in my concern and desire for newbie lawyers to learn how to do things by doing them, not by merely watching, carrying briefcases (or the partner’s laptop, whatever) and researching. Nope, I’m talking about being in the courtroom and actually getting to say something. What a concept.
First, Joe Patrice’s post about Northern California United States Magistrate Judge Paul Grewal’s lament on the lack of courtroom opportunities for young associates, and the judge didn’t mean just sitting there, taking notes, handling exhibits, but actually getting to address the court.
Similarly, Northern California United States District Judge William Alsup issued an order entitled “Case Management Order re Law Firm Plan for In Court Opportunities for Young Lawyers” in the B&R Supermarket, Inc., et. al. v. Visa, Inc., et. al. (Case No. 16-01150 WHA).
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A shout out to these two judicial officers and undoubtedly others who understand the importance of training the next generation of lawyers not just in document production and writing motions, but actually getting the chance to argue them in court.
In the matter before Magistrate Judge Grewal, the defense law firms involved were so reluctant to have associates argue post-trial motions that they agreed to submit on the motions, rather than have associates argue them. What does that decision say? It says a lot, and nothing good.
Let me count just a couple of the ways:
1. For whatever reasons, those law firms do not trust associates to argue the motions. Given that in many cases, oral argument doesn’t sway the court, what would have been the harm in permitting the associates to argue?
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2. Alternatively, it could have been the clients who said to the firms, “We don’t want any associate arguing these motions; we only want you to do so.” Could that have been because the client was concerned about double-billing for the time? Could the partner have decided that either the partner’s time or the associate’s time would be written off in order to give associates some experience? Hmm… what if the defense lawyers had keeled over in court while arguing the motions? Would the associates have been able to step over the bodies and take over? Would they have been permitted to do so by the firms? Doubtful.
3. If a law firm doesn’t trust an associate at some point to make appearances, argue motions, and (gasp) even try a case, then why have an associate track at all? In a sense, it’s like a union shop. In order to get a union card, you have to have experience, but you can’t get experience unless you have a union card, and so on in circles. Analogous perhaps?
Judge Grewal called the firms’ decision “a missed opportunity to invest in our profession’s future.”
Similarly, Judge Alsup’s order admonished counsel to “…please keep in mind the need to provide arguments and courtroom experience to the next generation of practitioners. It is the way one generation will teach the next to try cases.”
Judge Alsup’s case management order directs counsel to submit a “…five page plan explaining how it intends… to provide opportunities for junior attorneys (who had graduated from law school within the past six years) to argue motions, take depositions, and examine witnesses at trial.” The Order wants specificity: “…the names of specific associates and the specific opportunities the law firms have in mind for them.” Yay!
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In dinosaur times when there were opportunities for newbie lawyers to try cases, especially in criminal law, we learned by doing and that included making mistakes, lots of them. In the county district attorney’s office where I started, we newbies started out trying traffic tickets, then misdemeanors, preliminary hearings, and then felonies. We handled motion calendars, sentencing hearings, the entire gamut of criminal cases. We were first-chair immediately.
During my very first misdemeanor trial, the two defense counsel asked for a mistrial on the basis that they didn’t receive a page of discovery. What’s a mistrial, I wondered? I asked for a brief recess, ran out into the hall, and flagged down the first senior deputy district attorney I could find to ask what a mistrial was.
We learned by doing. We learned to think on our feet. We learned strategy, and how to make and meet objections. We figured out what we thought defense counsel would do so that we could be prepared. Sometimes, if our calendars were done or cases pled out, and then and only then could we spend time just sitting in trial courtrooms watching and learning.
I’ll stipulate that very few cases ever actually go to trial in civil. In addition to arguing motions in court, there are depositions, arbitrations, and mediations, to name a few ways that young lawyers can learn. There’s nothing quite like appearing in front of a judge, learning which side of the counsel table to stand at, learning how to disagree politely with the court’s tentative ruling without saying “Your honor, with all due respect,” learning how to interact politely with opposing counsel without turning into squabbling children in need of a time out from the bench, learning how to work with courtroom staff, especially the court clerk, who knows all, sees all, and can be most helpful.
Succession planning is not just a chimera, but an idea whose time has long since come, and you need to look no further than at these two examples for proof. Judge Alsup’s idea of a written plan to provide opportunities for junior attorneys is spot on. Start writing.
Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at [email protected].
