Small Law Firms

Younger Lawyers Should Argue More Appeals And Motions

Judges are more likely to give younger lawyers the benefit of the doubt and flexibility than older attorneys who should know better about the practice of law.

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Adam Rothman (left), and Jordan Rothman.

Facebook from time to time reminds me how old I am by showing me pictures of myself at various times in the past. While recently perusing my news feed, I was reminded that six years ago this month, I argued my first appeal in front of New York’s Appellate Division, Second Department. The photo brought back some vivid memories of waiting anxiously in the attorneys’ room before my appeal was called, and my brother Adam showing up to witness me deliver my first appellate arguments. At the time, I was about two years into my legal career, so it was kind of a novelty that I was arguing an appeal. However, my experiences over the years have shown me that younger lawyers should argue more appeals and motions for a variety of reasons.

One reason why younger attorneys should be more involved in oral advocacy is because they often devote more effort and dedication into arguing appeals and motions than senior lawyers do. Partners at numerous firms often have many tasks other than practicing law. This includes originating business, reviewing bills, ensuring that bills are paid, and dealing with administrative functions at a law firm. Moreover, partners often have more cases to oversee than associates, since they usually have several associates under their supervision who each has their own portfolio of cases. This can limit the amount of time and attention partners can devote to arguing motions and appeals.

However, associates are more likely to take pride and ownership over the opportunity to argue a motion or appeal. For instance, when I was assigned to argue my first several appeals, I was honored to be given the opportunity to participate in the appeals. I spent a significant amount of time reviewing the appellate record, briefs, and cases cited by both sides. Even though I was given a set number of hours to bill for preparing oral arguments, I ended up spending far more hours during my free time preparing for the appeals. I remember taking the briefs and appellate records with me whenever I was on the subway so I could thumb through the documents constantly. The extra consideration associates may give to oral arguments can provide clients the best possibility at success on an appeal or motion.

Younger lawyers should also argue more appeals and motions because they are often more familiar with a case than a partner or other senior lawyer. Associates often need to do the research and draft the briefs necessary in the appellate or motion process. By completing this work, associates are often more familiar with the arguments that will be most successful in a matter and the particular facts associated with a case.

One time earlier in my career, I drafted papers for a high-stakes summary judgment motion. The motion was based on some complicated estoppel arguments that required a detailed understanding of the law and facts of the case. It was eventually decided that the partner would argue the motion, presumably because the partner had argued many more motions than me up to that point in my career.

However, the partner was extremely busy at the time, and had not been closely involved with that particular case for years. He asked me to summarize all of the arguments orally to him before the motion hearing, and I am not sure that the partner read all of the papers that were submitted for the motion. At oral argument, the partner seemed extremely flat-footed when pressed on some issues, and he was unable to answer a few basic questions posed by the court and the other side. Our adversary, however, was extremely well-prepared, and it showed. In the end, our client had an unusually bad outcome after the summary judgment arguments. If I as the younger attorney had argued the case, perhaps I would have presented the arguments more effectively, and we should have selected the advocate who was most knowledgeable about the case.

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Younger attorneys should also argue more appeals and motions since many jurists like seeing younger lawyers in their courtrooms. From my own personal experience, judges are more likely to give younger lawyers the benefit of the doubt and flexibility than older attorneys who should know better about the practice of law. One time, when I was waiting to argue an appeal, I saw an advocate (who was either a law student under supervision or a young attorney) absolutely crush oral argument on a criminal case. Not only were the judges impressed with this advocate’s arguments, but they also seemed wowed by how a young advocate could do so well on her first appeal. I have a feeling this perception helped that advocate’s client receive the best consideration possible. Some judges even actively try to incentivize lawyers to select junior attorneys as oral advocates. Many state and federal judges read this column and email me regularly, and I would love to hear the opinion of jurists about whether younger lawyers can make an impact on oral arguments, but from my own experience, it doesn’t hurt.

All told, senior attorneys like to argue appeals and motions themselves, since it is often seen as an honor to go to court on a case. Nevertheless, younger attorneys should argue more appeals and motions in many circumstances to best advance the interests of a client.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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