In an effort to encourage more participation from less experienced attorneys, the District of Massachusetts has several judges adopting standing orders that strongly encourage the participation of relatively inexperienced attorneys. Judge Casper is the most recent judge in the District of Massachusetts to adopt such a standing order.
Judge Casper explained the reason for the standing order: “The decline in courtroom opportunities for newer lawyers is widely recognized and is one of concern to both the bench and bar. A Task Force of the Boston Bar Association acknowledged this much in its report, “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency Among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon, issued in 2006. As a result of its year-long work exploring the statistical and anecdotal evidence regarding the rate of jury trials over time, the Task Force concluded that ‘the vanishing jury trial is actually affecting the jury trial experience of current and future generations of practitioners and made recommendations to courts, lawyers and clients to remedy this issue. Among its recommendations to the judiciary, the Task Force called upon ‘judges presiding over pre-trial conferences and related matters to identify and encourage opportunities for a junior attorney to participate in the examination of witnesses and other significant trial work.’
As a result, Judge Casper issued a standing order encouraging the participation of relatively inexperienced attorneys in court proceedings: “Accordingly, the undersigned judge, as a matter of policy, strongly encourages the participation of relatively inexperienced attorneys in all court proceedings including but not limited to initial scheduling conferences, status conferences, hearing on discovery motions and dispositive motions, and examination of witnesses at trial.”
With that said, Judge Casper, set out some important caveats regarding professional standards, authority and supervision that apply to his standing order:
“1. First and foremost, all attorneys who appear in this session will be held to the highest professional standards. This includes relatively inexperienced attorneys with regard to knowledge of the case, overall preparedness, candor to the court and any other matter as to which experience is largely irrelevant. All attorneys who appear in court are expected to be thoroughly versed in the factual record of the case and the applicable law that governs.
“2. All attorneys appearing in court should have a degree of authority commensurate with the proceeding. For example, an attorney appearing at an initial scheduling conference or status conference should have the authority to commit his/her party to a discovery and motion schedule and address any other matters likely to arise including but not limited the client’s willingness to be referred to mediation.
“3. Relatively inexperienced attorneys who seek to participate in evidentiary hearings of substantial complexity (e.g., examining a witness at trial), should be accompanied and supervised by a more experienced attorney unless counsel seeks and receives leave of Court to do otherwise.”
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There is no doubt that the lack of jury trial experience and trial experience in general is on the decline and it is terrific to see additional courts emphasizing the importance of obtaining more courtroom and trial experience for attorneys. The difficult that likely will remain, however, is that clients have usually spent significant sums getting to trial and the outcome is very important to clients. As a result, clients are often reluctant to allow new or relatively inexperienced lawyers an opportunity when so much is at stake.
The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.