Amid concerns that women and minority attorneys are underrepresented as lead counsel in the courtroom, Eastern District Judge Jack Weinstein announced Wednesday an update to his courtroom rules to encourage more argument opportunities for junior lawyers.
Meanwhile, Eastern District Chief Judge Dora Irizarry said she is in the process of amending her rules and is considering adding amendments similar to Weinstein’s to encourage more opportunities for junior litigators.
“It’s a great idea,” she said. “Judges have an obligation to help train the next generation of lawyers and to enhance the profession and really the best training ground is experience. The only way an attorney gets over the initial nervousness and possible trepidation from speaking in open court and getting the skill set to present arguments is really by doing it.”
Under Weinstein’s new rules, junior members of legal teams are invited to argue motions they have helped prepare and to question witnesses, while the “court is amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer to participate.”
“Opportunities to train young attorneys in oral advocacy are rare because of the decline of trials. Where junior lawyers are familiar with the matter under consideration, but have little experience arguing before a court, they should be encouraged to speak by the presiding judge and the law firms involved in the case,” Weinstein’s rules say.
The ultimate decision of who speaks on behalf of the client “is for the lawyer in charge of the case, not for the court,” the rules add.
In an interview, Weinstein said that while he occasionally previously allowed more than one attorney representing a party to argue, the amended rules “are a much more systematic approach” and he believes it will increase opportunities.
“I think it will have a substantial effect and it will help equalize opportunities in the bar,” he said. “We have so few trials now. We’re not really training litigators the way we use to.”
Weinstein’s amended rules cited reports and studies of underrepresentation of female attorneys and minorities in oral arguments. In particular, a recent report by the commercial and federal litigation section of the New York State Bar Association found women were only in a quarter of lead counsel roles in New York courtrooms, while that number declined as cases became more complex.
The report gave suggestions for judges, such as appointing more women as lead counsel in class actions and as special masters and referees, and cited other judges, outside New York, who encourage courtroom involvement of junior attorneys.
A survey published by Chiefs in Intellectual Property identified 19 recent orders from federal judges across the country encouraging law firms to provide relatively inexperienced lawyers with opportunities. While Weinstein is a prominent example of a New York federal judge encouraging the practice, other judges in the state have also adopted similar rules.
Justice Henry Nowak in Erie County Supreme Court implemented this year some changes in his courtroom rules, including permitting multiple attorneys to argue different points for each party.
Eastern District Judge Ann Donnelly’s courtroom rules already encourage “the participation of relatively inexperienced attorneys in all court proceedings.” Those rules state that the attorney should have the authority consistent with the proceeding, such as an attorney attending a premotion conference having the authority to commit his or her party to a motion schedule.
Irizarry said judges can’t dictate how parties present their cases but they can help insert a seed that young associates “who may have stayed up four nights in a row” to work on a case should have argument opportunities.
Irizarry said she would be supportive of any other Eastern District judge who makes similar rule amendments.
“I imagine they’re going to give some thought to this or perhaps other ways we can provide opportunities for young lawyers to get experience,” she said.