by Hon. Janet L. Sanders
Voice of the Judiciary
When I began sitting in the Business Litigation Session of the Superior Court in 2011, I was struck by two things. First, as many as three or four lawyers appeared in court on behalf of a single party. Second, the “speaking” part for that appearance invariably went to the oldest member of the legal team – and that person was usually a white male.
That person was often not the lawyer who wrote the brief on the legal issue before the court. That would become apparent when, in the course of the oral argument, the older partner would have to confer with the young (usually female) associate beside him in order to respond to a question from the court.
I was not alone in my observations. Federal district court judges across the country were noticing the same thing, and taking action. Many issued standing orders strongly suggesting – and sometimes requiring– that attorneys newer to the bar be given a chance to question a trial witness or argue a motion. In Massachusetts for example, six district court judges have such standing orders.
Unlike the federal judiciary, Superior Court judges (like most Massachusetts trial court judges) do not operate on individual calendars, rotating as we do from session to session. A standing order by an individual judge would promote inconsistency among sessions and even lead to different practices within the same session. Still, there was a sense among many of us that we should do something to encourage the courtroom participation of less experienced lawyers, particularly on the civil side where the problem is more acute.
In December 2017, the Superior Court adopted a Policy Statement that gave voice to our concerns. That policy strongly encourages lawyers in civil litigation to take “affirmative steps” to extend courtroom opportunities to less senior lawyers in their law firms. As the policy states, those affirmative steps “could include, but are not limited to, encouraging participation of relatively inexperienced attorneys in initial scheduling conferences, status conferences, hearings on discovery motions and dispositive motions, and examination of witnesses at trial.”
Because BLS cases are heavily staffed, opportunities to share the wealth abound. For dispositive motions, BLS judges are open to having lawyers for one side divide the argument among themselves. Discovery disputes and less substantive matters can be quite capably handled by a less seasoned lawyer.
Judges in regular civil sessions are also looking for ways to include more junior lawyers. Although litigation has become more complex, there are still plenty of cases which are relatively straightforward both legally and factually and which can be handed over to the more junior associate with confidence that the client will be well represented.
At trial, having an associate take responsibility for some witnesses is welcomed not only by us judges but by juries as well. Where an associate sits silently at counsel table, juries may wonder why – and perhaps not in a way that is helpful to your side where that associate is a woman or a person of color. Hearing from different examiners can enhance jurors’ attention spans. And because they are less experienced and consequently less polished, younger lawyers may come across as more genuine and more credible. Juries want them to succeed.
There are several good reasons for a policy that promotes courtroom participation by those newer to the bar. First, less experienced lawyers are able to hone their skills while they are still under the supervision of more seasoned litigators. Many of us cut our teeth in the civil motions sessions which predated the advent of Rule 9A. There were good reasons to eliminate those sessions. But it also means we have to find other ways for junior lawyers to get courtroom experience so that they can develop good habits early.
Second, the policy benefits clients. If a junior lawyer has researched the matter and written the brief, he or she is well positioned to argue that matter effectively before a judge or jury. Associates “hungry” for courtroom experience are often better prepared than their seniors. And their billing rates are lower than that of more senior lawyers.
Third, because senior lawyers tend to be a more homogeneous group, a policy that creates opportunities for younger lawyers will promote diversity in the profession.
That lack of diversity has been well documented. Although half of the law school graduates today are female, studies show that less than a quarter of equity partners in large firms are women. Among lawyers appearing as lead counsel in civil cases, only 24 percent in 2013 were women.
The gap between white partners and partners of color is even starker. According to one 2017 survey, more than 90 percent of equity partners in firms participating in the survey were white even though one in four law firm associates was a person of color. Attrition rates among minority lawyers have actually risen since 2008, with black lawyers leaving their firms at a higher rate than members of other minorities.
There may be many reasons for these disparities. Part of it could be unconscious bias on the part of those who make decisions critical to advancement, a subject beyond the purview of this article. But there is another possible explanation: the young lawyer who is given little responsibility and independence is usually not a happy lawyer. That attorney will look elsewhere, particularly in the public sector where opportunities for advancement are often better.
Regardless of why gaps persist among different groups of lawyers, however, diversity in the higher echelons of the legal profession should be a goal of both the bench and the bar. A policy that encourages greater courtroom participation by those still climbing the law firm ladder may help further that goal. And that is a good thing, not just for the young lawyer but for the legal profession generally.
Hon. Janet L. Sanders was appointed to the Massachusetts Superior Court in 2001, and currently serves in one of the two Business Litigation Sessions in Boston.