Earlier this month, I wrote about an innovative program in Pennsylvania. The program is designed to get younger lawyers more trial and courtroom experience. As part of that program, called Project Litigate, a related Judicial Task Force also is looking at ways to do the same thing. These recommendations include such things as making room for younger lawyers to argue motions in court. Pennsylvania judges have committed to have oral hearings on motions that might otherwise be decided on briefs–if a younger lawyer is involved is one way to do this.
It looks like Judges in other jurisdictions are coming to the conclusion that younger lawyers need more courtroom experience to ensure that our jury trial system continues in a robust way. For example, I came across a standard Pretrial Order recently entered by Federal Magistrate Judge Gabriel Fuentes. Judge Fuentes serves in the federal district court in Chicago. In the Order, which also dealt with generative AI (see my recent post), Judge Fuenters echoed the Pennsylvania judges.
As a matter of policy, Magistrate Judge Fuentes strongly encourages in the Order the participation of junior and diverse attorneys in all court proceedings, with appropriate supervision. His Order includes information about his Court’s practices in this regard. The Order recognizes the need to promote attorney professional development through practical experience. He understands the need for younger and diverse lawyers to have the opportunity to “stand up” and speak for a client in court.
Judge Fuentes did not leave it with that statement, though. He also provided a section entitled A Word About Inclusion of Junior and Diverse Attorneys. Here, he specifically encourages counsel and parties to staff their matters with junior and diverse attorneys. He further suggests these lawyers be provided the chance to have meaningful courtroom participation. This includes all important direct involvement in aspects of the litigation and even the settlement of cases.
Judge Fuentes recognizes that “Lawyers, parties, and the courts benefit from the professional development of experienced and effective counsel. Parties, in particular, benefit from having a broader base of skilled counsel available to handle their most important matters… Passing on knowledge and skill to younger or less- experienced lawyers is one of the most important additions senior lawyers can make to the development of our profession.”
Judge Fuentes defines “Participation” as a significant speaking role – not just carrying a briefcase. He also defines “Junior attorneys” as associates with less than five years of experience after law school. A “diverse” attorney is one who belongs to any historically underrepresented or diverse group, and who also has less than five years of experience.
In specific, Judge Fuentes’ Order provides:
• He will enter orders notifying parties that it is prepared to decide a pending motion on the papers. He will then schedule an oral argument if all parties agree to allow a junior or diverse attorney to argue the motion.
• Upon request and with a certification that a junior or diverse attorney will argue a motion, Judge Fuentes will schedule an oral argument on the motion if practicable.
• When a junior or diverse lawyer handles a motion, a senior, supervising attorney will be permitted to add to the record or conduct additional witness examination as necessary after a junior or diverse lawyer has argued or examined. During the hearing, senior attorneys will also be allowed to confer with the arguing attorney to make suggestions.
• Judge Fuentes observes that settlement conferences allow multiple opportunities for junior or diverse attorneys to speak on behalf of a client. Or to lead negotiations under the supervision of a senior attorney.
While I took issue previously with other parts of Judge Fuentes’ Order dealing with AI, I applaud him for recognizing, as did the Pennsylvania groups, the urgent need for junior lawyers to get in the courtroom. And providing practical ways to try to alleviate that need.
I did wonder at first about the Judge specific inclusion of diverse attorneys. He limited the Order’s opportunities to diverse attorneys with less than five years of experience. But this limit makes including them a little redundant since the Order applies on its face to all attorneys with less than five years of experience–diverse or not. But diverse attorneys have not had the same courtroom experience as nondiverse lawyers for many reasons. He’s right to call attention to this fact and make sure they, too, get the chance to litigate and learn.
There is no doubt the profession has a stake in getting our younger and more diverse lawyers courtroom experience. If the profession doesn’t do it, we will someday get to the point of few lawyers having the know-how to try cases and argue in court. And that’s not good for us. Or society.
Thanks, Judge Fuentes, for recognizing this and noting our collective obligation in this regard. And for doing something about it.