By Hon. Marie Weiner, San Mateo County Superior Court
There has been a successful push by the judiciary, especially the federal district court judges, to get law firms to assign junior attorneys – be it associates or junior partners – to take the lead on court appearances. This has been to the benefit of everyone. Whether it be due to earnest effort or gripping fear, I have found the junior attorneys appearing in my courtroom to be the best prepared on the law and the facts – and preparation is the key to being an effective trial attorney.
But something got lost along the way. Throwing junior attorneys into the courtroom pond to either sink or swim is not how it used to be. Although one can certainly learn through the school of hard-knocks, it is a far far better method to actually train and equip younger lawyers in preparation for courtroom appearance and for prosecuting/defending trials. I suggest that law firms and senior trial attorneys revisit the training method of individual mentoring, and take the time to do so.
I was very fortunate as an attorney to have bosses that firmly believed in one-on-one mentoring to train new litigators. For the first six months of my employment, my first boss read and gave feedback on everything I wrote. And I mean everything – every letter, every brief. Perhaps it was overkill, but he believed that the most important tool of advocacy was the written word. He did not want to see any typographical errors, so you learned not to do such. On the other hand, it was great to get paperwork back from him with a smiley face! Yes, a smiley face.
My first boss also took me with him to every hearing on every case to which I was assigned, including those out of town. Even though I was not the one speaking to the Court, it was important to watch and learn. Also important to the learning process, it gave me the opportunity to learn the players. Let’s face it: the law, like medicine, has become specialized by necessity. So it is important to learn the identities, the strengths, the weaknesses, and the personalities of the people on both sides of the aisle. These are the people that an attorney will be working with and against during his or her career, so introductions – whether active or passive – are part of the learning process.
My second boss was Joe Cotchett, so every day was a living advocacy program for 17 years.
Yet it is not about getting the junior attorneys to mimic their mentors, or becoming someone that they are not. Rather, it is about being given practical examples, experience, tools, training, guidance, etc. as a foundation to then incorporate into that junior trial attorney’s own style and/or decide whether to adopt as part of their own trial attorney personality and practice.
As a judge, I am seeing junior (less experienced) attorneys appearing for hearings and trials, and taking the lead on cases, but they are often lacking skills and polish that they should have been provided before they were sent to court in the first place. If you don’t take the time to mentor them, then they are left to “learn” on their own, and many “learn” bad habits that are not to the benefit of themselves or the clients that they represent as advocates. Time spent at the beginning of their litigation careers will reap numerous benefits in the long run.
So this series of articles identifies some of the mentoring that should be provided to junior trial attorneys, but seems to be overlooked. All of the examples are real, but of course no real names are used.
Be Helpful and Courteous to the Courtroom Staff
It is to the benefit of attorneys and their clients to have a good working relationship with the courtroom staff. When going to the courtroom to make an appearance at a hearing, or for the start of a trial, the trial attorney should “check-in” with the courtroom clerk. Be helpful by providing your business card reflecting your name and the name of your law firm, and pre-write on the business card the name/number of the case and the name of the party that you are representing. If you don’t have a business card, then it is appreciated if you write it on a piece of paper and hand it to the clerk, rather than orally dictating the information that the courtroom clerk must write down instead. Also give a business card with the same detailed information to the court reporter.
When you do speak to the courtroom clerk, it is a good idea to be friendly and courteous. But never flirtatious. Just saying something, “Hello. How are you today?”, can make a difference for the staff – and for you and your client.
If you are appearing remotely, rather than in person, an attorney should be sure that the “name” input into your Zoom video log-in sets forth your full name on the screen. The courtroom clerk needs your full name and correct spelling. If the “name” on Zoom only says your telephone number or has some other identification, e.g., “Conference Room B”, then that creates extra work for the staff in having to get the attorney to change it to the correct and full name. Learn how to change the name on the screen, if needed, using whichever remote platform you use.
Don’t show up late. Indeed, appear in the courtroom with sufficient time before the hearing is supposed to start. Courtroom clerks find it frustrating to have attorneys come rushing into the courtroom after the calendar has started, and then make an appearance on a matter without having checked-in first with the clerk, i.e., giving the clerk the information as to your name, who is your client, and on which case you are appearing. The courtroom clerk has to input all of that information into the Minutes for that hearing, and it is more difficult (and sometimes inaccurate) trying to do it on-the-fly.
If you are starting a trial, provide a copy of your list of witnesses to the court reporter. Otherwise, write up and provide a list of the names, with correct spelling, of all the attorneys and witnesses that expect to be part of the trial – so that they have a complete “cast of characters”. This avoids the need for the reporter to have to go back and correct/change transcripts where the spelling was solely phonetic because no actual spelling was provided at the time. Having a full list ahead of trial also avoids confusion in the record, especially where parties and/or witnesses have common last names, or similar sounding names.
Provide help and details if you are calling the courtroom clerk or emailing that department. Instead of contacting the department themselves, it is common for attorneys to tell their assistant or paralegal to do it. If delegating the task, the junior attorney needs to know that their own staff must first be sufficiently informed of what is being requested of the Court. Otherwise, it results in multiple phone calls or multiple emails, wasting the time of the courtroom staff — and leaving a negative impression. Here are examples of what unfortunately happens:
Phone Call #2 to the Judge’s Department:
Your Assistant: “Hello, this is Lee from Campbell & Gonzalez. I called yesterday and left a message asking for a hearing date on a motion, but you never returned my phone call.”
Clerk: “Yes. I listened to your voice mail message, but you forgot to leave us a phone number.”
Your Assistant: “Oh. Well, my attorney wants a hearing date for filing a motion in the judge’s department.
Clerk: “Which case?”
Your Assistant: “The case is Coyote v. Roadrunner.”
Clerk: “What is the case number?”
Your Assistant: “I don’t know.”
Clerk: “Okay, I will need to search our court system to find the case number first.”
[Two-minute delay.]
Clerk: “Which party does your law firm represent?”
Your Assistant: “I think Plaintiff.”
Clerk: “What type of motion are you filing?”
Your Assistant: “I don’t know. The attorney didn’t tell me. I was just told to get a hearing date. What dates do you have available?”
Clerk: “In order to calendar the hearing, we will need to know what type of motion. What date frame were you looking for, or when do you plan to file your motion papers?”
Your Assistant: “I don’t know; I will have to call you back.”
Phone Call #3:
Your Assistant: “Hi. I talked to the attorney. We are filing a motion to compel.”
Clerk: “A motion to compel discovery; or a motion to compel arbitration?”
Your Assistant: “I don’t know. Let me go ask.”
[Four-minute delay.]
Your Assistant: “It’s a motion to compel discovery. We want to set it for hearing on May 5th.”
Clerk: “Okay. It looks like May 5th is available at 2:00 p.m. Have you talked to opposing counsel as to whether they are available on that date?”
Your Assistant: “No, I don’t think so.”
Clerk: “The judge previously issued an order in this case that counsel are to meet and confer regarding hearing dates on motions. It avoids unnecessary ex parte applications to change hearing date.”
Your Assistant: “I will have to call you back.”
[Thereafter, the matter is not calendared until after Phone Call #4, when the full information is provided.]
As you can see, the extra time taken to mentor the junior trial attorneys, and teaching them to also take the time to instruct their support staff, is time well-spent.
[Next time: Putting Deposition Testimony into Evidence]
Hon. Marie S. Weiner has served on the San Mateo County Superior Court since 2002; is presently the Civil Supervising Judge; and was previously the designated Complex Civil Litigation Judge for 11 years. Judge Weiner is a member of the ABTL Northern California Chapter Board.