By: Newton Anderson
It was a pleasant spring day in 1982. I had received my law license a little over 6 months prior and, following the end of a judicial clerkship, had begun to work for a private law firm with downtown offices on one of the upper floors of the tallest building in Memphis. My office was small, but I had a view of the Mississippi River. Life was good. I had arrived a little before 8:30 a.m. and had begun working through the ever-growing stack of files on my desk when one of the senior partners came into my office and said “We have a trial set this morning at 10:00 a.m. I would like for you to try it. Here is the file. Your client and his witness are waiting for you in the lobby. Good luck.” Holy cow!
I learned that on the night in question, my client and his passenger had pulled away from a stop sign to cross a major road in a rural, unlit area. They were “T-boned” by the Plaintiff. They both said they could not see him approaching because his headlights were not on. The Plaintiff, and his wife who watched him leave their house earlier that evening said the headlights were on.
The advantage of this example of “sink or swim” approach was that I was not up all the previous night worrying about the case. On the other hand, taking into consideration what was only a short walk to the courthouse, I had less than 90 minutes to prepare.
It was a relatively minor case with no significant issues of law or fact. I won, not because of any inherent skills as a trial lawyer, but because the judge simply did not believe the plaintiff and his witness.
I was reminded of the manner in which I was “thrown” into court that day when I read about the recommendation of U.S. District Court Judge Elizabeth Wolford (sitting in the Western District of New York) just before hearing oral arguments in a pending breach of contract matter. According to a January, 2018 article in the ABA Journal, Judge Wolford had just that day received a copy of a July, 2017 New York State Bar Association report that revealed that female attorney participation in court was at a lower rate than male participation. In front of her, each side was represented by a male partner who had planned to argue the case and each male partner was accompanied by a female associate who, Judge Wolford deduced, had done the relevant research. Having just been reminded by the New York State Bar Association report of something I suspect she was already fully aware of, Judge Wolford recommended that the female associates argue the case, which they did.
According to the website of her college alma mater, Colgate University, Judge Wolford had been a political science major and “had worked [and become a partner] at The Wolford Law Firm, founded by her father, since graduating from the Notre Dame Law School in 1992.” In addition to handling numerous time consuming, complex commercial litigation matters, she found time to mentor young attorneys and to do community pro bono work. She obviously knows the mutual benefit of helping others.
As with so many matters that become public in our online society, Judge Wolford has been both praised and excoriated for her recommendation. But, who could argue against law firms wanting to help their associates gain experience by putting into practice what they have read about, been lectured about and observed the more senior attorneys (mostly white males) doing in court? In fact, most attorneys would agree that it is our duty to the profession to train our younger lawyers and that includes giving them the experience in court that confers abilities that cannot be achieved in any other way.
On the other hand, did Judge Wolford’s recommendation assume facts not in evidence? The first assumption might be that the young associates were prepared to argue the case. Simply having done the research does not necessarily prepare one for oral argument, especially if the case is complex. The ABA Journal article mentioned nothing about the complexity, or lack thereof, of the case being argued. Another assumption may be that the young associates were interested in developing skills of oral advocacy. I have certainly known several lawyers over the years (male and female) that had excellent research and writing skills and never had the slightest interest in going to court for anything other than watching another attorney argue a matter that they had worked on or perhaps making a consent announcement. Another presumption might be that the client would approve of their case being argued by a junior associate rather than a more senior partner. Although we clearly have, in my opinion, a duty to educate young attorneys, that duty certainly is subordinate to our duty to zealously represent our clients. Some have said that while recognizing the duty to train young associates as well as the benefits to the law firm of doing so, the lead attorney on the case is probably in the best position to make the determination of what is best for the client at any particular point in the litigation, rather than by the judge.
These are all valid arguments both pro and con. However, I keep going back to what must have gone through each of the young associate’s minds as soon as the baton was unexpectedly passed to them. Instead of spending the morning with the relative ease of watching and learning from the more senior attorneys on each side of the case, they had to stand up with no prior notice or preparation and do it themselves. A good friend and study partner in law school had his very first court appearance before the Sixth Circuit Court of Appeals in Cincinnati. Although he had time to prepare, he told me that his “knees were knocking” because of his nervousness. Although the ABA Journal article does not tell us whether the associate attorneys had any prior courtroom experience, I nonetheless suspect that there may have been some knees knocking in Judge Wolford’s courtroom that day. But there was irreplaceable learning by experience going on as well.
Judge Wolford is quoted as saying “It was one of the best arguments I have had the privilege of presiding over.” I also suspect (and very much hope) that the rest of the day for those young associates was filled with a tremendous sense of accomplishment and pride. I know that after the conclusion of my little trial in 1982 I felt that I had “arrived” and that I was now able to consider myself a “real lawyer.” So, to those young New York associates, I say “Welcome, congratulations and the best of luck for a promising and successful career!”
Newton Anderson is the Managing Member in the Memphis office and focuses on Litigation (Business and Commercial, Employment Practices, Insurance Coverage, Insurance Defense, and Real Estate), Liability (Automobile, Premises, and Products), Alternative Dispute Resolution, Corporate and Business, Insurance Subrogation and Workers’ Compensation law.
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