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Oral Argument Time, By Identity

To be fair, few motions are won at oral argument, though more are lost by a poor argument or an inadvertent admission. The serious argument is set forth in the motions themselves, the accompanying memorandum and affirmations. Face time before the court is fun, and may well turn out to be significant if the judge has a question in need of an answer, but it’s more show than substance.

So why, then, turn it into a battleground?

According to the complaint, the judges all entered orders in 2020, which give greater opportunities for career-advancing oral arguments in court to attorneys who are “newer, female and minority.”

Under the orders, the judges adopted procedures that if an attorney who meets their desired demographics is expected to argue a motion, the judges would grant the request for oral argument, if the judge believes it is “practicable” to do so; strongly consider allocating additional time for oral argument to those specific demographics of attorneys; and permit other, more experienced attorneys on the case to help the newer, female and minority attorneys during oral argument.

This is not the first time a federal judge has sought to use court time as an incentive to give  an incentive for firms or clients to put a certain lawyer demographic front and center. The thought is that lawyers who are often relegated to positions as back-benchers should get a chance to show their stuff, be given the opportunity to develop their skills and enjoy the limelight, to the extent there is either lime or light in a federal courtroom. The ABA unsurprisingly backs it, and it’s written into the New York 7th District rules.

The putative purpose is ameliorative, trying to provide incentives to firms and clients to give younger and “marginalized” lawyers opportunity that they might not otherwise get. Hey, baby lawyers need to cut their teeth at some point, or they will never grow up to be competent older lawyers. Of course, the decision of when a lawyer it ready to take the helm at oral argument has historically been left to their firm and client. Older lawyers today were younger lawyers before.

But these judges take the position that young, female and minority lawyers shouldn’t have to wait until their day comes, and it’s unclear whether the day for young lawyers applies to female and minority lawyers in any event, Instead, they will provide special opportunity for the demographics they deem worthy.

“A reasonable observer would lose faith in the judiciary upon discovering that a court considers a lawyer’s sex or minority status when making important decisions about how cases are adjudicated,” Hamilton wrote. “A reasonable observer would also lose faith in the judiciary on learning that a judge would even contemplate asking about a litigant’s attorney’s sex or race. That’s because the only reason a judge needs to know a lawyer’s race or sex in the first place is to discriminate based on it.”

Hamilton argued that the alleged discrimination “incentivizes” second- and third-order discrimination, because law firms may consider sex and race when staffing cases and clients may discriminate when hiring lawyers.

Much as we might not take serious issue with judges providing for different rules in order to facilitate opportunities for some lawyers who might not otherwise get the face time before the court, should courts make distinctions based on age, race and sex as a general proposition, particularly given that courts are going to be decision-makers as to discrimination in the litigation before them? How, one wonders, can a judge who discriminates on the basis of race be impartial in a racial discrimination case?

According to the order, the judges said they understood there would be instances in which more experienced white male attorneys may still need to argue a motion and would “draw no inference” about the case or the arguments based on the decision not to send a newer, female or minority attorney to present the case in court.

Well, that’s damn white of them, not drawing a negative inference against experience white male attorneys. But these judges have already done so by limiting their oral argument time based. The flip side to giving young, female and minority lawyers a benefit is that they are denying the same terms to older white male lawyers. If they are to be denied the same opportunity based on age, race and gender, does that not saddle them with a discriminatory detriment?

But the question remains whether litigation in general, and oral argument in particular, is about due process for the client or opportunity for the lawyer’s career. The only reason litigators exist is to serve their clients. We don’t go to court for kicks, but because there is a client’s cause in need of zealous pursuit. Do these rules forget that? Have these judges forgotten that litigation isn’t about giving lawyers a place to hone their skills and pad their resumes, but to serve their clients?

And despite the representations by the judges engaged in providing opportunities to young, female and minority lawyers, will clients believe that the judge will be equally fair to them if they choose a different demographic or that they will be somehow penalized, or at least not given whatever implicit kindness the judge may show to the “right” kind of lawyer, if their choice of counsel does not comport with the judges’ preferences?

No one is arguing that cases should be decided by sex or race, and it’s unlikely that any judge would disregard the facts and law and rule instead based on the age, race or sex of the lawyer. But much like pro se cases where judges will bend over backwards to help a litigant overcome his lack of knowledge of the law, there is always the possibility of that thing in the back of a judge’s head pushing to favor the judge’s preferred lawyer.

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