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Attorney Fee Awards in Mixed Result Cases Training the Next Generation

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Attorney Fee Awards in Mixed Result Cases Training the Next Generation VOL16 #2_-ABTL-No-VOL16 #2 12/10/15 1:56 PM Page 1 Volume 24 No. 2 Fall 2015 Training the Next Generation: Do it! Attorney Fee Awards In Get Out There – Be an Advocate Mixed Result Cases An Ever-Mounting Need Since the 1940s, opinion polls in By the time an action reaches judg- the United States have consistently shown that our federal ment after trial, the reality of fee-shifting can mightily affect courts rank very high on the public confidence scale, sec- the risk assessment for each side going forward. Each side ond only to the Supreme Court. This is because, I submit, has accrued substantial attorneys’ fees and hopes to recov- our cases are decided on the merits — without regard to er them from the other side and dreads being forced to whether someone is rich or poor. No lobbying. No bags pay its adversary’s fees. Looking forward to an appeal, par- of money. No politics. Both sides are ties often assess fee-shifting as an all-or- heard out, and the verdict is on the nothing proposition but the reality is not so simple. merits. The same is true for our state Many cases do not result in an unqual- court systems, especially here in ified victory for either side, either at trial California. or after appeal, leading to difficult deter- The success of our merits-based sys- minations of who, if anyone, should be tem depends critically on effective considered the prevailing party and advocacy. Advocates must excel in the what amount of fees should be awarded give and take of arguments and the in light of a mixed result. When we rough and tumble of witness examina- dealt with this recently in the post- tions. To maintain public confidence in appeal context, we found the treatises the nation’s court system, we must con- and case law to present an unhelpful Judge William Alsup tinue to produce superb oral advocates, tangle regarding how to assess mixed- Sean M. SeLegue not just “litigators.” result cases. In this article, we share But are we? Shouldn’t we be doing a better job in some lessons we learned after grappling with a complicat- training the next generation of courtroom advocates? ed body of fact-specific decisions. Continued on page 2 The Basics Also in This Issue California courts follow a three-step process to decide whether to award contractual attorneys’ fees and, if so, in Lois Heaney Jury Pools: The Obstacles to Diversity ..................................p. 3 what amount. The court first determines if there is a pre- Peggy Otum On ENVIRONMENTAL LAW................p. 7 vailing party on the contract. If so, the second step is determining the prevailing party’s “lodestar,’ i.e., the num- Joseph V. Mauch On TRADEMARKS ..............................p. 9 ber of hours reasonably expended multiplied by the rea- Wendy Walker Keep It Confidential: The sonable hourly rate.” PLCM Grp. v. Drexler, 22 Cal. 4th Importance of NDAs in Third-Party Litigation Funding ............................p. 11 1084, 1095 (2000). The third step is to “consider whether Frank Cialone Letter from the Editor ..................p. 12 Continued on page 6 VOL16 #2_-ABTL-No-VOL16 #2 12/10/15 1:56 PM Page 2 Continued from page 1 cally prepared the papers (and, if the truth be told, may Training the Next Generation know the record and the case law better than their seniors). At the center of this issue rest our preeminent law firms. Not only do they tend to have the largest number What Should Young Lawyers Do? of young lawyers, they also tend, regrettably, to provide Fight for opportunities. Young lawyers should go to the least advocacy experience to young lawyers. A main mentors and partners in charge of their caseload and insist reason is that they concentrate on “bet-the-company” on front-line opportunities. During their first year of prac- cases where clients seem reluctant to see young attorneys tice, I tell my departing clerks, young attorneys should handle anything. This reluctance stems from high billing carry out all assignments, not complain, and do them rates assigned to associates and the perceived need to cheerfully, including reading many thousands of pages of have a partner handle everything in a bet-the-company documents in a cold warehouse in Chicago. But, in their case. The problem rates less severe at smaller law firms second year of practice, young lawyers should explain to because their business model and their clients’ economics the partners that they also want front-line opportunities often encourage them to turn over more court appear- and that they want to develop as advocates. ances to young attorneys. Young lawyers should also form and be a part of associ- ate committees that set training and experience mile- What to Do? stones. For example, an associate committee might set a For many decades, we have had a shortage of trials. But milestone such as “Associates should have taken a mini- in the last twenty years, a new shortage has emerged — a mum of two depositions and argued at least two motions shortage of opportunities for young lawyers even to argue in court by the end of their second year of practice.” The motions in court and to take depositions. Again, this is milestones should be calibrated to what is required to due, in large part, to clients insisting on partners taking make partner so that associates can qualify on schedule. depositions and appearing in court. The committee should regularly remind management of In the 1970s and 1980s, our leading law firms remained the need to send associates forward. vigilant in giving opportunities to young lawyers and insisting to clients that young lawyers could handle impor- What Should Law Firms Do? tant responsibilities in court. They also took on smaller Taking pro bono cases from the Federal Pro Bono commercial matters as training opportunities for associ- Project or other sources of pro bono work can provide ates, even at the cost of write downs. This vigilance has much-needed experience for young lawyers (and earn the gone slack. Firms should reinvigorate this tradition, writ- gratitude of our judges for helping on a different problem ing down associate time to accommodate client reluc- — providing representation to the poor). To sign up as a tance to pay the high billing rates assigned to young asso- volunteer for the Federal Pro Bono Project in the San ciates. They should impress upon their clients the wis- Francisco and Oakland divisions please contact Manjari dom of providing these opportunities. Chawla, Supervising Attorney, at (415) 626-6917 or It helps when a judge affirmatively encourages lead [email protected]. For volunteer opportunities in the counsel to turn over court arguments, depositions, and San Jose division, contact Kevin Knestrick, Legal Help witnesses at trial to newer lawyers. When the judge affir- Center Attorney, at (408) 297-1480 or kevin.knestrick@ matively encourages the participation of young lawyers, lawfoundation.org. the responsible partner has a further argument to make to But associates also must excel in the “bread-and-butter” the client in support of sending young lawyers forward. It work of their firms, such as commercial cases, patent also removes the suggestion that the judge somehow cases, and class actions. Firms should assign young views it as a concession of weakness when a young lawyers to front-line opportunities within their core, pay- lawyer argues a motion. ing work and avoid reliance on pro bono work as the For the last sixteen years, my own stated practice has main training ground. This is important — very important been to guarantee oral argument on any matter (rather — to professional development. than submit it on the papers) when a lawyer within her Shouldn’t a young lawyer who works on a motion be first four years of practice will perform. At least one hun- permitted and encouraged to come to court to sit at coun- dred young lawyers have had an opportunity to argue in sel table, even if she only observes? This would give her court or try cases as a result of this encouragement. the opportunity to learn from partners’ performance. And Although I never insist that a young lawyer must perform, shouldn’t the young lawyer’s time be written off to train- I affirmatively encourage it. Without question, partners ing — not charged to the client? may need to handle key dispositive motions, but young By encouraging contact between clients and young attorneys can do some of them and can routinely handle lawyers, clients will be more receptive to letting young non-dispositive motions. In my experience, young lawyers lawyers carry their banner into court. have performed at least satisfactorily and, more common- ly, very well during oral argument because they have typi- Continued next page 2 VOL16 #2_-ABTL-No-VOL16 #2 12/10/15 1:56 PM Page 3 Continued from page 2 Training the Next Generation Jury Pools: The Obstacles To be sure, I recognize that young lawyers must work to Diversity on many cases in which they get no client contact, no courtroom experience, no deposition experience, and all will be limited to research and writing. But if young lawyers become tethered to laptops, as seems to be the Without a doubt cause and per - trend, they will never make partner, much less learn the emptory challenges impact the final composition of a trial skills public confidence requires. jury, but long before these challenges are exercised other factors shape the composition of the pool and determine What Should Our Media Do? who actually enters the jury box for voir dire.
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