Analysis

Is Pandemic Stunting The Next Generation Of Lawyers?

By Cara Bayles
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Law360 (May 28, 2020, 7:58 PM EDT) -- When lawyers introduce themselves in federal court, they typically follow a ceremonious formula: full name, firm and client.

So U.S. District Judge William Alsup fought a smile when, during a 2016 hearing, he asked a young attorney, "What's your name again?" and she responded, "Michelle."

"Your full name," the judge said.

It was Michelle O'Meara's first time arguing a motion. Her client, Oracle, had alleged Google stole its intellectual property, but lost at trial. At the hearing, O'Meara was opposing Google's bid for $2 million in attorney fees. She still cringes remembering her gaffe.

"I'm pretty sure I turned bright red," she told Law360. "I'd introduced myself in court before, so I knew how to do it properly. I just was a bit nervous and responded automatically."

But O'Meara was ready for more difficult questions. When the judge asked for an example of Google's "greedy" line items, she noted the tech giant charged for 1.1 million pages of documents it sifted through, though it only gave Oracle about half as many. That flouted Ninth Circuit precedent dictating costs be tied to production, she argued.

The hearing was a game-changer for O'Meara. Not only has she argued in court several times since, but she showed the partners at her firm, Orrick Herrington & Sutcliffe LLP, that she could think on her feet. They soon encouraged her to manage cases and handle litigation strategy.

"Every moment you're up there, you could get a question that impacts other parts of the case," she said. "It's really important that junior attorneys are able to do that. The more you do it, the better you get at it."

Such opportunities evaporated in recent months as the novel coronavirus shuttered law offices and courtrooms around the country. And with some firms canceling their summer associate programs and others going virtual, seasoned professionals are scrambling to find new ways to mentor and train the next generation of attorneys — from home.

"The people right now who are going to be dealing with the worst of this are the youngest associates, starting with those who are trying to enter the profession," said Greenberg Traurig LLP's co-president and professional development chair, Bradford Kaufman. "It's not simply about substantive development right now. We're looking for ways to connect."

Technology has been key to those connections, aiding in things like virtual firm happy hours, video hearings where associates can try out arguing, and finding young attorneys for understaffed projects through an app.

Fewer Chances To Stand Up

The pandemic changed opportunities for less-experienced lawyers, especially litigators. Court closures have meant trial delays, and while some judges still hold virtual hearings, many are inclined to decide motions based on briefings.

That's exacerbated what many consider an existing crisis in the industry: Young lawyers aren't getting many opportunities to speak in court.

For years, judges, attorneys and students have worried about how an increase in settlements, coupled with clients' reluctance to be represented by less-experienced lawyers, has meant the next generation won't learn how to litigate.

Less than 1% of civil cases go to trial every year, a figure that represents a sharp decline. In 1962, the average federal judge tried 10 civil jury trials and 11 bench trials. By 2017, those numbers had dropped to below four jury trials and one bench trial per year, according to the New York University School of Law's Civil Jury Project.

That's a concern for U.S. District Judge James Donato, who, like his Northern District of California colleague Judge Alsup, has written standing orders encouraging arguments from inexperienced attorneys.

"The profession depends on it," he said. "The jury trial is becoming an endangered species. It's on the ultra-critical and soon-to-be-extinct list. One of the best ways to put a final nail in that coffin is to make sure nobody has any experience trying a case."

Judge Donato has turned to Zoom to conduct hearings when he can, but he's not hearing oral arguments as frequently as he did before the pandemic.

"I and every other judge in the country are doing more and more on the papers. I do not like that," he said. "I like having hearings. I like having lawyers come in. I enjoy their arguments, and I want to hear what they have to say. I miss that interaction."

The dearth of hearings could mean fewer opportunities for young attorneys to argue in court, but firms are offering online training in the meantime.

At BakerHostetler, associates will get a trial workshop that teaches them about technique — opening statements, closing arguments and voir dire strategy, according to Laurin Quiat, a partner at the firm. It's also developed a negotiation and mediation training that includes online lectures and one-on-one practice sessions.

Greenberg Traurig usually holds its trial training program in law school courtrooms, but it has decided to offer an online option since that's the reality of litigation right now.

"Many courts and administrative agencies are conducting virtual hearings, trials and depositions," Kaufman said.

Smaller firms often bill themselves as offering more hands-on experience than their BigLaw rivals. Hueston Hennigan LLP, for example, has touted its young attorneys' trial time and its above-average bonuses for associates.

Its newer lawyers continue to argue in video court hearings, to take witnesses in virtual arbitrations and to handle discovery conferences by phone, according to Moez Kaba, a founding partner at the boutique firm.

"The best way to learn how to be a great trial lawyer is to go to trial," Kaba said. "We like to take the most challenging, complex cases and bring our own unique, disruptive approach to them. What that requires for a firm of our size is to make sure basically every lawyer here is either comfortable doing all aspects of trial law or is on their way to [becoming] comfortable."

A Foot in the Door

The future is even more uncertain for law students who'd planned to enter BigLaw. Soon after the virus began spreading in the U.S., firms started announcing changes to their summer associate programs.

Some, like Nixon Peabody LLP, Dechert LLP and Squire Patton Boggs LLP, canceled their summer programs outright. But other firms, like Fenwick & West LLP, Latham & Watkins LLP and Jones Day, have taken their summer offerings online.

Greenberg Traurig said in April that it would not host its formal program, but Kaufman told Law360 each office will seek in-person alternatives for would-be summer associates, like hosting them during the academic year or over winter break, rather than moving the program online.

"Virtual is fantastic, but it's not really what you're looking for with a summer program," he said. "What you're really trying to create is an opportunity to spend time with each other, so they can understand the culture of the organization, what will be expected of them if they receive an offer and accept an offer.

"And by the same token, [we're asking ourselves] do we like working with these people? Are they a good cultural fit for us? You can't create those intangibles in a virtual environment."

The firms that have gone virtual say they're showcasing their commitment to mentoring the next generation of lawyers, even under imperfect conditions.

"We worked so hard to find the best and brightest law students to join us this summer. We wanted to bring them aboard," said Sharyl Reisman, Jones Day's firmwide hiring partner.

That required overhauling the program in a matter of weeks. It's difficult to experience a law firm's culture without in-person networking events and mentor lunches, Reisman said, but the firm has found online substitutes — virtual happy hours, trivia games and museum tours.

"One of our goals is to get to know the summer associates and for them to get to know us and each other. We want them to see the community we are at Jones Day, we want them to see how we interact with one another as colleagues. How do you show that virtually?" she said. "Assigning work is probably the easiest of the tasks."

The virtual office has raised questions about online etiquette, too. Jones Day always distributes practice tips to associates, but now there's a tips sheet to help them navigate the new world of video chat, from how to dress — "smart casual" — to when to place a video call — always email to set up a time first, Reisman advises.

"It sounds silly, but these are things that are fairly stressful for a summer associate," she said. "This is new to everybody."

Silver Lining

The pandemic has also created some opportunities for young attorneys.

Their mentors are reaching out more, both to ensure associates are doing OK and because partners have more time to do so, Quiat said.

"I'm usually on the road 100-plus nights a year for depositions, trials and meetings. Now, I haven't been on a plane since early March," he said. "We have all this additional time to do this training and mentoring. Pre-COVID, I might walk into an associate's office once a month to see what's going on. I now have daily reach-outs."

Quiat also encourages young attorneys to participate in client video chats for face-to-face interactions that weren't possible when he used to meet far-flung clients in person. And associates can learn from watching hearings and mediations remotely now, whereas attending court hearings in person may have meant a long commute.

Ryan Wooten, a senior associate at Orrick, has found judges who aren't able to conduct hearings have been ushering along discovery. Especially in mass tort or class action cases, that can offer younger attorneys a chance to take Zoom depositions.

"The wood that can be chopped is the deposition wood. You have to be able to find folks to cover that," Wooten said. "That always works out well for junior associates, when there's a volume of opportunities that cannot get snatched up by the more senior folks."

Wooten said he's watched along on Zoom as junior associates have taken depositions, without billing his clients. He can jump in if need be, and if he wants to communicate with the associate, he can just send an instant message rather than passing a note or whispering.

Technology has benefited young attorneys in other ways. Greenberg Traurig has developed a work matchmaking app for young associates. It allows them to express interest in practice areas outside their specialties, then connects them with partners in need of extra help.

The project was already in development before the pandemic, but Kaufman called the timing "a fantastic coincidence."

"In the old days, in February, people would walk by your office and say, 'How are you doing, I've got this new project, can you help me out on it?' Those opportunities are gone," he said. "If you're a young associate, you're not creating your own opportunities for work. You need people to need you."

--Editing by Aaron Pelc and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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