Judges Wary Of Remote Hearings' Impact On Legal Industry

By Dorothy Atkins
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Law360 (June 12, 2020, 10:42 PM EDT) -- Federal judges speaking at a Berkeley Center for Law & Technology event on Friday expressed concerns about the impact remote judicial proceedings has had on the legal profession during the pandemic, saying opportunities for young attorneys to gain courtroom experience have diminished and more attorneys appear to be reading their arguments.

Northern Texas Chief District Judge Barbara M. G. Lynn noted that the chances for attorneys to argue before the court have been dropping annually as the number of jury trials and hearings have gone down. But she said there are likely now even fewer opportunities, because usually only a single attorney argues a motion during a video or conference call.

Judge Lynn noted that during proceedings in her courtroom, she would typically ask partners to let young associates who are sitting at the counsel table argue a motion, if she could see that they are prepared. But she said she can't make the same observations during virtual proceedings.

Texas Western District Judge Alan D. Albright said he also gets the sense that attorneys are now reading their arguments during telephonic hearings, as opposed to speaking them, adding that "they read for a really long time."

"If you think reading to me even by phone is a good idea, it's not," he said.

Northern California District Judge Jon S. Tigar agreed that many things, like body language, people reading and the inflection of people's voices, can be lost during virtual proceedings. However, the judge urged young practitioners to get the best webcams they can and to practice before remote hearings.

"This kind of is what it is, and we just have to deal with it," Judge Tigar said. "This is another persuasion forum and you have to bring the skills appropriate to that forum."

The three judges' comments came during a virtual panel discussion titled "The Changing Landscape and the Opportunities It Presents" jointly hosted by University of California, Berkeley School of Law's BCLT, the Berkeley Judicial Institute, the nonprofit ChIPs and the Federal Circuit Bar Association.

The event drew more than 200 participants, and more than half in attendance work at a law firm, while more than a third said they've never argued before a judge, according to a survey conducted by the hosts.

Although conducting remote proceedings has its downfalls, Judge Albright said he was surprised that sentencing defendants remotely turned out to be better than he expected, because some defendants appeared to be less nervous.

The judge explained that some defendants making statements to the court alone in front of a camera appear more comfortable, compared to when they are standing in front of the judge in the courtroom, which he acknowledged can be intimidating.

During the hour-long event, the judges also offered young attorneys advice on how to get ahead in the legal industry, saying they should prioritize gaining experience arguing before a judge — even if that means taking pro bono work or a losing case.

Judge Lynn said when she began her career, she had a "put me in coach" mantra, and would take on any case, even if they were "real barking dog cases."

"There's a lot of competition for experience, particularly in private law firms," the judge said. "You need to let people know you're ready, willing and able to do anything big or small."

Judge Tigar also emphasized the importance of gaining experience and noted that the fact a case might be a loser, "does not make it a lesser opportunity."

Judge Tigar recalled early in his career, he took on a criminal case that was heading to a jury trial that he knew he was going to lose.

"I was definitely going to trial and I was definitely going to lose and I couldn't have been happier, because I knew I was going to get to trial," he said. "Don't be afraid of the loser."

At the end of the panel, an attendee asked the judges if they think courts should restrict the number of attorneys who are allowed to make appearances on behalf of a party during proceedings.

Judge Tigar and Judge Lynn said they might comment on the number of counsel who appear if they are deciding fees in class action litigation, but they generally wouldn't raise a concern about the number of attorneys representing a party.

Judge Albright, who primarily presides over patent litigation, said over the past few months he's had no fewer than 16 lawyers on the phone during each individual case management conference.

"So the horse is out of the barn for me," he said.

--Editing by Emily Kokoll.

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

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