Stories abound of junior litigators being cemented to their chairs, reviewing documents for hours and not seeing the inside of a courtroom. But not all firms are created equal when it comes to offering stand-up experience. And sometimes gaining these opportunities requires the associates to be proactive. In this Q&A, MoloLamken Partner Gerald Meyer shares advice and insights on how associates can best prepare themselves for the courtroom and what they can do to increase their chances of gaining stand-up opportunities.
1. You’ve proven that working for the government is not the only way to get stand-up courtroom experience as a young lawyer. How did that happen?
When I was looking to join a firm coming from a federal clerkship, I was very intentional about joining one that made frequent court appearances and showed confidence in its associates by letting them attend and participate. MoloLamken is one of few firms that has a steady flow of high-profile work that actually encourages associates to take leadership roles in those cases, including in the courtroom. Once I joined the firm, I did everything I could to be an expert in my cases—to know all the facts cold and to understand all of the legal issues in the case. In my experience, doing your best to be the most knowledgeable person on your case team is also the optimal way to get stand-up courtroom experience. Once you prove yourself, those opportunities come naturally.
2. What type of advocacy training have you had?
At MoloLamken, associates take the NITA courses on depositions and trial skills within their first year. Those programs are great opportunities to get comfortable drafting an examination outline and questioning a witness, and you get plenty of feedback from the instructors, who are all local practitioners and judges. In the trial skills course, we conducted a full mock trial before a jury of local high school students, who gave feedback after the trial. Beyond that, I’ve observed other lawyers in court whenever possible, which has had a huge impact on my understanding of successful advocacy.
3. What were your big takeaways from the NITA experience?
First, preparation is key for all stand-up experience. There are tons of variables in court. You can cut down on the possibility of things going wrong if you stay on top of the things within your control. Because you never know for certain what answer a witness will give to a question, you also need to be prepared so you can adapt to things going differently than expected.
Second, the most effective advocates know their material well and deliver it in a clear and direct manner. While several different styles of advocacy can be effective, they all have that one thing in common: delivering on the substance.
4. What was the first time you spoke in a courtroom?
My first significant courtroom experience was arguing some of our motions in limine in a white-collar criminal matter that was about to go to trial when I had been at the firm for about three months.
5. What did you do to prepare for that?
In preparation for that argument, I carefully reviewed the motions, the facts at issue, and the relevant cases. Our team prepared a list of probable questions to be prepared for, and we mooted the argument.
6. How much of courtroom success is preparation, and how much is performance?
Performance and preparation are dependent upon each other. Being well prepared on the facts, issues, and law in your case will lead to a strong performance. Certainly there are some performance issues, like voice projection, that may need to be ironed out, but if you’re well prepared, those performance issues can be easily and quickly addressed.
For example, I know that I have a tendency to speak quickly when nervous. By focusing on preparation, I can minimize my nervousness. When I’m on my feet, I can then focus more of my attention on my delivery because I will be well prepared on the substance.
We have courtrooms in our offices and use them all the time to moot arguments and work with witnesses. Our general rule is that any argument of substance gets mooted at least twice. Those moots help you understand any areas that need to be addressed before standing up in court.
7. Should associates be looking to get staffed on certain types of cases to increase the chance of getting some air time in court?
Obviously, associates are constrained by what types of cases their firm handles. MoloLamken is involved in some of the most important criminal and civil cases in federal and state courts across the country but will sometimes take a smaller case if it’s of interest to the firm. Associates shouldn’t assume that just because it’s a big case, they will not get good experience. If you become indispensable to your case, no matter how big or small, you will end up with better opportunities.
For example, I was the associate on a six-week jury trial in federal court with more than fifty witnesses—a very large case. Even though it was a large case, I was still able to do short cross examinations on some of the smaller witnesses in the case.
8. Taking or defending a deposition is not the same as being in court, but can that experience be helpful?
Yes. Of course, many associates are focused on getting into court, but much of the action happens at the deposition table. You will learn a ton about your case through taking and defending depositions. It’s also a great way to demonstrate your value to the case team, to learn how to deal with witnesses, and to practice making objections.
Deposition skills also transfer to the courtroom. When taking a witness at trial, you will need to carefully frame questions, pay attention to the witness’ answer, and ask necessary follow-up questions to get to the answer you need, just like you would at a deposition. And depositions lay the base for trial testimony. If you’re asking good questions in your depositions, there should be no surprises at trial.
9. What about pro bono cases? Can you get meaningful experience that will accredit you with paying clients?
Absolutely. Many associates at MoloLamken have their first major stand-up experience doing pro bono work. Once you have had that experience, clients are much more comfortable with you handling those aspects of their cases. We’ve had associates argue a pro bono appeal before the Seventh Circuit and then use that experience to succeed when arguing cases for paying clients.
10. What was your most recent experience in court?
Most recently, I had a four-day bench trial in Illinois state court. It was a relatively small case for a major corporation, with six live witnesses. I cross-examined the other side’s main witness and did the direct examinations for three of our four witnesses. The associate on the case was also able to take two witnesses, one on direct and one on cross. There was also a lot of argument on motions and evidentiary issues during the case, which the associate and I split up, as well.
11. What are you working on now that’s likely to get you in a courtroom next?
Right now, we have several cases that will provide some courtroom experience. We are defending a major corporation in a taxpayer derivative suit involving claims of fraud and breach of fiduciary duty. We may have some argument over amended pleadings in that case. In addition, we represent a shareholder of a public corporation in a securities class action, where there will likely be some argument in the early stages of the case. And we have a case for a major corporation in a shareholder derivative suit, where we are in discovery and will be approaching summary judgment within the next few months.
12. What are your top tips for associates in private practice looking for courtroom experience?
The first advice I give any new associate is to become indispensable to your case. Immerse yourself in the facts, and become an expert in the law. Excel at those early assignments, and the opportunities will come, especially if your firm, like ours, is invested in the success of its associates.
Gerald Meyer’s practice focuses on white collar criminal matters and investigations, complex business litigation, and appellate litigation. He has tried cases in the U.S. District Court for the Northern District of Illinois, has briefed and argued appeals before the U.S. Courts of Appeals for the Seventh and Federal Circuits, and has appeared in other courts in Illinois and New York. Before joining MoloLamken, Mr. Meyer was an associate with Skadden, Arps, Slate, Meagher & Flom LLP in Chicago, where he represented companies and individuals in a wide range of tax planning matters, including mergers and acquisitions, restructurings, securities offerings, and issues involving tax-exempt organizations. Mr. Meyer also served as a law clerk to the Honorable Robert R. Beezer of the U.S. Court of Appeals for the Ninth Circuit and to the Honorable G. Steven Agee of the U.S. Court of Appeals for the Fourth Circuit. He is a summa cum laude graduate of the University of Illinois College of Law, where he served as Editor-in-Chief of the Law Review.