Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 19

Judge Denise J. Casper: ORDER entered. Standing Order Re: Courtroom Opportunities for Relatively Inexperienced Attorneys(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

STANDING ORDER REGARDING COURTROOM OPPORTUNITIES FOR
RELATIVELY INEXPERIENCED ATTORNEYS
CASPER, J.

May 16, 2011

In May 2005, Judge F. Dennis Saylor (and then Magistrate Judge Charles B. Swartwood),
sitting in the Central Division (Worcester) of this Court, adopted a standing order “strongly
encourag[ing] the participation of relatively inexperienced attorneys in all court proceedings.” As
the Court explained at the time, the standing order was prompted by the recognition that the
“[c]ourtroom opportunities for relatively inexperienced attorneys, particularly those who practice
at larger firms, have declined precipitously across the nation in recent years.” This standing order
remains in place in the Central Division for appearances before Judge Saylor and Magistrate Judge
Timothy S. Hillman and anecdotal information indicates that the order has had the desired effect of
having more well prepared junior attorneys attend status conferences, argue motions to the Court,
and, under appropriate supervision, examine witnesses at trial.
The decline in courtroom opportunities for newer lawyers is widely recognized and is one
of concern to both the bench and bar. A Task Force of the Boston Bar Association acknowledged
as much in its report, “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial
Competency Among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon,”
issued in 2006. As a result of its year-long work exploring the statistical and anecdotal evidence
regarding the rate of jury trials over time, the Task Force concluded that “the ‘vanishing jury trial’
is actually affecting the jury trial experience of current and future generations of practitioners” and

1

made recommendations to courts, lawyers and clients to remedy this issue.

Among its

recommendations to the judiciary, the Task Force called upon “judges presiding over pre-trial
conferences and related matters to identify and encourage opportunities for a junior attorney to
participate in the examination of witnesses or other significant trial work.”
To take up this call and attempt, in some small measure, to remedy the dearth of courtroom
opportunities for newer attorneys, the undersigned judge issues this standing order, substantially
similar in purpose and intent to the order previously adopted by the Central Division. Accordingly,
the undersigned judge, as a matter of policy, strongly encourages the participation of relatively
inexperienced attorneys in all court proceedings including but not limited to initial scheduling
conferences, status conferences, hearings on discovery motions and dispositive motions, and
examination of witnesses at trial. That said, a number of important caveats regarding
professional standards, authority and supervision apply to this policy.
1.

First and foremost, all attorneys who appear in this session will be held to the highest

professional standards. This includes relatively inexperienced attorneys with regard to knowledge
of the case, overall preparedness, candor to the court and any other matter as to which experience
is largely irrelevant. All attorneys who appear in court are expected to be thoroughly versed in the
factual record of the case and the applicable law that governs.
2.

All attorneys appearing in court should have a degree of authority commensurate with

the proceeding. For example, an attorney appearing at an initial scheduling conference or status
conference should have the authority to commit his/her party to a discovery and motion schedule
and address any other matters likely to arise including but not limited the client’s willingness to be
referred to mediation.

2

3.

Relatively inexperienced attorneys who seek to participate in evidentiary hearings

of substantial complexity (e.g., examining a witness at trial), should be accompanied and supervised
by a more experienced attorney unless counsel seeks and receives leave of Court to do otherwise.
The undersigned judge understands and appreciates that this standing order is not selfexecuting. If it is to have the desired effect of countering the trend of declining courtroom
opportunities for relatively inexperienced attorneys, it is their more experienced, supervising
colleagues who must effectuate the policy articulated in this standing order. The Court hopes that,
for appropriate matters, they will do so and it encourages counsel to seek additional guidance from
the Court in particular cases concerning the scope and application of this policy.

So ordered.
/s/ Denise J. Casper
United States District Judge

3