By Jordan Rothman
It is very difficult to gain courtroom experience as a junior litigation associate. As this website has previously discussed, partners are typically unwilling to give associates the chance to argue motions and gain hands-on litigation skills. Partners usually believe that they have more litigation experience, and as a result, clients would be best served if the partner and not the associate argue motions or conduct other courtroom tasks. Of course, there are certain situations in which partners with more experience are better able to serve a client’s interests by conducting various litigation tasks themselves.
However, many times, partners actually do their clients a disservice by arguing motions or conducting other litigation tasks on their own rather than have an associate do this work. Of course, associates usually have a lower billable-hour rate than partners, and it is typically more expensive for a partner to go to court than an associate. Moreover, associates also usually have more detailed knowledge of a particular matter than a partner, and might be better suited to argue a motion or conduct other litigation tasks themselves.
While I was working in Biglaw and at smaller shops, I saw partners frequently handle litigation tasks themselves rather than give this work to associates. In many instances, this was to the detriment of clients. While working at a large, international law firm, almost every court appearance was handled by partners. Usually, it was even the top partner in my office who would argue motions and head to court, since it was seen as a power symbol or some kind of honor to be the one who appeared in court. On some level, it made sense that only the top brass at my Biglaw firm would head to court. I worked on extremely large matters, and corporate clients likely wanted a trusted practitioner before the court instead of someone who was more junior.
However, the top brass at my Biglaw shop did not understand the intricacies of certain legal matters as well as more junior partners and associates. The most senior partners who argued the vast majority of the motions held administrative functions within the firm, spent a large portion of their time schmoozing with clients, and oversaw numerous cases. Since their time was so precious, top partners had very little involvement in researching most motions, and I don’t think that some of the most senior partners even knew how to use online legal research platforms!
This was an issue, since partners couldn’t rely on their own research when making court appearances, but had to use memos prepared by associates. It is definitely dangerous to heavily rely on research summaries prepared by others, since the research could be flawed, and memos present information through the lens of the author. In any case, the lack of time and attention top brass spent on certain matters, and the fact that partners did not do their own research, definitely affected the performance of these partners at an oral argument. I definitely believe that in many instances, a junior attorney who had been more involved in the case would have done a better job handling many of our court appearances.
Even partners at smaller firms sometimes make court appearances themselves rather than delegate this work to associates. When I left Biglaw and started working at a smaller firm, I almost always argued each of the motions and appeals that I drafted. Unlike in Biglaw, appearing in court was not seen as some kind of honor to be cherished by the top brass, and the person who drafted papers (usually associates) typically argued the motion. This was because the person who drafted the papers was usually the most knowledgeable about a matter and would presumably do the best job at oral argument.
However, there was one occasion in which I drafted summary judgment papers for a client from out-of-state, and the client’s outside counsel flew to New York for oral argument. Because the client traveled thousands of miles to hear arguments on the motion, the partner decided to argue the motion himself. Of course, I understand putting your best face forward by having a partner handle an appearance when the client is looking. But the partner who argued the motion had hundreds of cases to supervise, and was involved in a number of other non-legal activities. This partner was not too familiar with the complicated procedural history of the case or the nuanced arguments presented in our motion papers.
The other side presented a solid case at oral argument, and used the partner’s inability to answer the judge’s questions against us. In the end, we lost the motion, and this was still the only time in my career that a plaintiff won summary judgment against a defendant in a commercial matter. If I had argued the motion, I don’t think I would have been able to win summary judgment against the plaintiff, but I think my deeper understanding of the case would have convinced the court that a material issue of fact existed warranting the denial of plaintiff’s summary judgment motion.
All told, when partners usually think about letting associates argue motions, they typically feel that they are doing associates a favor by allowing them to sharpen their skills. In reality, partners are often doing their clients a favor by letting more junior attorneys make court appearances. Indeed, associates are usually more involved with cases and have sufficient time to ensure that motions are argued as persuasively as possible.
Source: Above the Law, September 11, 2018 (https://abovethelaw.com/small-firm-center/2018/09/partners-could-hurt-clients-if-they-dont-let-associates-argue-motions/)