Commercial Division Rules in Favor of … “The Junior Associate”

January 17, 2019

As a junior associate you do research and draft motion papers and yearn for the opportunity to argue your motion before the Court. But junior associates are usually not afforded such opportunities. Or are they? In recent years, New York judges have been making a real commitment to the development of junior associates by encouraging firms to permit junior associates to argue motions and question witnesses.

Commercial Division Justices, including Justice Saliann Scarpulla and recently appointed Justices Andrew Borrok and Joel M. Cohen have made the training of less-seasoned attorneys a priority by encouraging firms to permit junior attorneys to argue motions. For instance, Justice Scarpulla includes the following in her part rules:

To create opportunities for attorneys knowledgeable with the subject matter of the action, and who historically have been underrepresented in the Commercial Division, courtroom participation of such attorneys is strongly encouraged. This could be achieved, for example, by having a less senior attorney, who prepared the brief on the motion, argue the motion before Justice Scarpulla.

Justice Cohen not only supported this agenda but gave it some teeth by incentivizing firms to send junior associates to argue motions by including the following language in his part rules:

Requests for oral argument are more likely to be granted if counsel identifies a lawyer out of law school for five years or less who will argue the motion and references this rule in the request.

Justice Cohen’s Part Rules suggest that oral arguments on motions that would otherwise be decided on submission will be entertained if firms permit junior associates to argue the motions. And so, next time you have a motion pending before Justice Cohen and are seeking oral argument, send the junior associate.

New York Commercial Divisions are not the only courts encouraging the participation of junior associates. The Eastern District of New York Bankruptcy Court initiated a policy in May of 2018 that encourages junior lawyers familiar with the matter under consideration to argue before the Court. The EDNY Bankruptcy Court even went so far as to permit more than one lawyer to argue for a party in an effort to create an opportunity for a more junior lawyer while simultaneously ensuring that client interests are protected by the more senior attorney.

New York Federal Courts have similarly been encouraging firms to allow junior associates to argue motions they helped prepare and question witnesses with whom they met. For example, Judge Jack B. Weinstein’s Part Rules encourage junior attorneys with little to no experience arguing before a court to “speak by the presiding judge and the law firms involved in the case.” Recognizing that the ultimate decision as to who will speak in Court lies with the lawyer in charge of the case, Judge Weinstein’s rules nevertheless indicate that his Court is willing to permit a number of lawyers to argue for one party in order to create an opportunity for a less seasoned attorney’s participation.

Takeaway: Courts are increasingly sensitive to the issue and firms must become familiar with and aware of the individual practices (and even preferences) of the judges before whom they appear. In addition, this may also require some educating of clients to manage client expectations.