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These Associates Are Leading Oral Arguments as Remote Proceedings Continue

Kirkland attorney Sara Shaw Tatum spoke with The National Law Journal regarding her experience handling oral arguments early in her career.

In early March, Kirkland & Ellis associate Sara Shaw Tatum received an email from a partner at the firm about the scheduled date of an oral argument in Connecticut’s federal district court. Jokingly, she volunteered to argue the case.

But her colleague took the offer seriously, as did the client—and it wasn’t long before Tatum was preparing to present her first argument remotely.

“It was a surprise to me because I had kind of been joking … And (the partner) was like, ‘You know this case as well as anybody and I really want you to get the opportunity,’” Tatum recalled.

In recent years, the legal community has called for more opportunities for lawyers with less experience to handle oral arguments. While fielding questions from judges is the best way for associates to develop their skills, it can sometimes be difficult to sell clients on the idea.

But the COVID-19 pandemic may have provided an extra nudge, with the associated travel costs eliminated, said Judge Barbara Lynn of the U.S. District Court for the District of Northern Texas. If a client is paying for an attorney to travel for a proceeding, they may want a partner to handle arguments. But with proceedings moved online, it could become easier to convince clients to allow associates to step in.

Lynn has a voluntary rule in her court that if firms send attorneys with less than seven years of experience to argue their own briefs and motions at hearings, she is more likely to grant an oral argument.

“It’s much easier to shift from one lawyer to another when you’re doing it remotely, and lawyers from different offices can appear without there being any additional expense to the client,” Lynn said. “The remote argument is not the same as live in court, but it’s a lot better than not having that opportunity at all.”

The pandemic gave firms a chance to open up more opportunities to associates outside of the courtroom as well, particularly in client pitches, said Kathi Vidal, a Winston & Strawn managing partner who founded Next Generation Lawyers in 2015 to encourage diversity and inclusion in the industry.

“By being able to present virtually, there is never a pitch where the associates cannot regularly join,” she said in an email.

Sara Shaw Tatum, an associate at Kirkland & Ellis, presented two oral arguments during the pandemic after joining the firm last year. Courtesy of Kirkland & Ellis.

For young lawyers, Tatum says, “being your own advocate” is one of the keys to getting such opportunities, though ultimately, support from the client and more senior colleagues is crucial.

The Harvard Law School graduate joined Kirkland & Ellis in March 2020, and a year later, was in front of the U.S. District Court for the District of Connecticut, representing Charter Communications Inc. in a dispute over rates charged by the company for Internet service. Over Zoom, Tatum fought for the complaint to be dismissed entirely, or at the very least for the judge to issue an order compelling arbitration.

A few months later, Tatum appeared in person before the U.S. Court of Appeals for the Fifth Circuit to represent Rosa Jimenez, a Texas babysitter who maintains she was wrongfully convicted in 2005 of killing a child. Lawyers with the Innocence Project and a Texas law firm, who were co-counsel, suggested Tatum present the argument on behalf of the entire team working the case.

In 2019, a U.S. district judge in Texas granted federal habeas relief to Jimenez, ordering the state to either release or retry her, and Texas appealed the decision to the Fifth Circuit. Tatum defended the district court’s decision and argued the Fifth Circuit should stay federal proceedings until Jimenez’s state-court habeas petition is resolved. The panel granted the stay.

From both experiences, Tatum said, she learned the importance of taking initiative.

“These experiences showed me the importance of raising your hand and going outside your comfort zone,” she said. “Everybody says that, but in the moment when it is actually time to ask for an opportunity, whether it is an argument or something else, it can be intimidating. This time around, I was fortunate to have a group of mentors who really encouraged me. Going forward, I am more comfortable asking for opportunities because people reacted positively to it. You have to try new things to grow as a lawyer, and that includes being your own advocate.”

Some associates are looking forward to their first in-person arguments, like Kyle Lyons-Burke, who argued two cases remotely during the pandemic, including one over the phone in the U.S. Court of Appeals for the D.C. Circuit in May.

The Arnold & Porter Kaye Scholer associate said the audio-only argument added extra challenges. To avoid interrupting the judges, he listened closely for any sound that could have been a member of the panel speaking. Still, he said, it was difficult to know when the judges were finished with a question without seeing them.

“Doing it virtual was not ideal,” he said. “On the Fourth Circuit, one of the partners told me that at the end of every argument, the judges come down and shake the lawyers’ hands. That to me seems like a really cool ritual, cool tradition … Despite the fact that I did have this incredible opportunity and it was wonderful, it kind of feels like it’s not quite what it’s supposed to be.”

Lyons-Burke said he had a few tricks to get into the right headspace prior to getting in front of a screen five months earlier for his first ever oral argument in the D.C. Circuit, where he argued against a lower court’s dismissal of a case for failure to properly serve the government.

To prepare, Lyons-Burke set up remote moots where colleagues ”peppered him with questions,” and said he even practiced the first 30 seconds of his argument during his morning routine daily. When the day came, he felt confident.

“We set up one of the conference rooms at Arnold & Porter and had a lectern set up, so we can kind of reenact what it’s like when you’re actually in a courtroom … I was wearing a whole suit (and) wearing a cologne that I like to make me feel confident and ready to go,” said the Vanderbilt Law School graduate.

Arnold & Porter has made a concerted effort to get associates courtroom experience. In a single week in December, Arnold & Porter had six associates argue eight appeals in four different circuits, including one en banc, according to the firm.

Sean Mirski, a Harvard Law School graduate, joined Arnold & Porter in November 2019 and went before the Fourth Circuit in December 2020 via Zoom.

He argued against a Maryland district court decision that held a detained non-citizen was not entitled to attorney’s fees after using a habeas petition to secure relief from immigration detention. In May, a divided three-judge panel also ruled against granting attorneys fees, creating a circuit split. Mirski says the firm is now seeking an en banc review.

Mirski says he tapped friends and family for help leading up to the hearing.

“I made my wife read the briefs and sort of made her ask me questions as we were driving in various places. I tried making my parents read the briefs and asking questions, but that did not go nearly as well,” he said.

He learned one lesson that he hopes won’t be needed for his next argument: Remember to unmute. Amid nerves, he found simple Zoom rules were easy to forget.

“I went in kind of writing to myself, a million times over, ‘Don’t forget to unmute, don’t forget to unmute, don’t forget to unmute.’ I nailed it on the opening part of the argument, but then when I was doing my rebuttal, I got on … [and] immediately launched into it, and the panel says ‘We can’t hear you.’”

 

 

This article originally appeared in the August 16, 2021 edition of The National Law Journal. Further duplication without permission is prohibited.