For Hands-On Experience in Federal Court, Young Lawyers Should Do Pro Bono Work
By , Litigation
For younger civil litigators (and, indeed, for just about any lawyer these days), the opportunities to appear in federal court are few and far between. More motions than ever are decided on the briefs, and the steep decline in civil jury trials has been well documented. So how can young lawyers get hands-on experience? They can do pro bono work.
The advantages of pro bono work for young lawyers are clear and extend well beyond the intrinsic benefits of helping a client in need of legal assistance. In other words, even though you should do pro bono work because it’s the right thing to do, you should also do it because it will make you a better lawyer. The advantages include at least the following:
- With a pro bono client, you’re typically first chair, which means you—not the senior partners, who handle the big money billable cases —present the arguments and appear in trial.
- The issues involved in pro bono cases are often novel and interesting.
- Because money (such as attorney’s fees) is not the principal issue, the cases are less likely to be settled, which means there is a greater likelihood of trial and appeal.
- Because the court may have appointed you to represent the client and the issues are usually more interesting, you are more likely to end up in court on a motion hearing, even though in another case the same kind of motion would have been decided based on the briefs and without a hearing.1
Some of my best experiences as a lawyer, including my first jury trial in federal court and my first oral argument before a (retired) justice of the Supreme Court, came about in pro bono cases. In fact, these two experiences illustrate exactly why I think pro bono work presents a valuable opportunity for young lawyers.
My first pro bono case began not long after I entered private practice, when a senior partner in my firm received a call from a local federal judge who was looking for someone to represent a pro se prisoner in a § 1983 case claiming constitutional violations. The defendants were prison guards and wardens who, on five different occasions over a 10-month period, had strapped the prisoner down on a metal bunk bed (without a mattress) in five-point restraints (one over each arm and leg, one over his chest) and kept him there for 48 hours at a time, purportedly to punish him for various misdeeds.
The senior partner asked me if I was interested in taking the case, and I said yes. The judge appointed me as counsel soon thereafter. I spoke with my new client by phone several times (by the time I was retained, he had been moved to a federal prison halfway across the country from my office), quickly filed an amended complaint, took the depositions of the defendants and other witnesses, filed a motion for habeas corpus ad testificandum (basically, a motion asking that the government be ordered to transport my client – at the government’s expense – from federal prison in Kansas to Norfolk, Virginia for trial), and ultimately filed a motion for partial summary judgment on liability.
After a hearing on the issues, the district court granted the motion to transport my client to trial and, much to the government’s surprise, granted the motion for partial summary judgment.2 I then tried my first federal court jury trial, which addressed the question of how much the jury should award my client in damages for the constitutional violations the district court concluded had been committed.3 After two days of testimony and a couple of hours of deliberation, the jury awarded my client $25,000 — $5,000 for each time he was strapped down.
The lessons learned were invaluable. I selected the jury, did the opening and closing argument, crafted and argued jury instructions, examined or cross-examined all the witnesses, dealt with a sometimes temperamental client, framed objections, argued motions to strike the evidence, and dealt with at least one evidentiary issue that momentarily threatened to lead to a mistrial when a government witness testified inconsistently with a pretrial stipulation. These hands-on experiences and the familiarity with the court’s procedures and preferences that I gained were incredibly helpful as I went on to try jury cases for paying clients.
A few years after that trial, I received a call from a nonprofit group looking for someone to represent a city council member in a dispute involving free speech issues. I agreed to take the case, gathered the facts and filed suit in federal district court seeking relief to protect my client’s First Amendment rights. The case never went to trial, because the district court granted summary judgment to the defendants (but only after a hearing before the then-chief judge of the U.S. District Court for the Eastern District of Virginia).
I appealed the decision to the U.S. Court of Appeals for the Fourth Circuit. In the Fourth Circuit, the names of the judges who will hear the appeal are not disclosed until the morning of oral argument. That morning, I arrived at the courthouse in Richmond, Virginia, checked in, and scanned the docket to see which three-judge panel would be hearing my argument. The first name on my case’s panel stood out – retired Associate Justice Sandra Day O’Connor, the first woman ever to sit on the U.S. Supreme Court. Even though Justice O’Connor ultimately wrote the Fourth Circuit’s opinion upholding the district court and ruling against my client,4 arguing the case in front of her (and also Judge Motz and Judge Shedd) was an unforgettable experience that I never would have had if I had not agreed to handle the case pro bono.
Other pro bono cases have offered similar opportunities for hands-on participation in all types of cases —from an injunction hearing to prevent a couple from being evicted from their home5 to a federal court bench trial over whether my prisoner client’s constitutional rights were violated by being stripped naked and placed in an isolation cell.
This is not to say that every pro bono case is all positive with no harsh realities. Certainly, there can be bumps along the road in these kinds of cases (after all, a pro bono client could sue for malpractice too), but those bumps are not materially different than those you find in any complex civil litigation. The value of the experience you can glean—particularly through firsthand contact with the court—far outweighs any negative aspects. And the judges in these cases are eternally grateful to you for stepping in and steering a case that otherwise could have been in the hands of a pro se plaintiff completely unfamiliar with the federal system.
The bottom line is that the opportunities are there for young lawyers to actually get into federal court in person and argue and try real cases. And while your fees may not be paid, the value of the experience makes it well worth your time.
Johan Conrod is a partner in the litigation section of Kaufman & Canoles P.C. based in Norfolk, Va. He tries cases in state and federal court and argues appeals in the U.S. Court of Appeals for the Fourth Circuit, among other courts. A 2001 graduate of the University of Virginia School of Law, Conrod clerked for Hon. B. Waugh Crigler of the U.S. District Court for the Western District of Virginia. He is the president-elect of the FBA Tidewater Chapter and can be reached at firstname.lastname@example.org. © 2012 Johan Conrod. All rights reserved.
1While the time constraints faced by federal courts and the need for efficient disposition of pretrial matters are serious issues, the trend in civil cases away from oral argument and in favor of deciding motions on the briefs is one that should be reversed.
2Card v. D.C. Dept. of Corrections, No. 2:00cv631, 2005 WL 2260167 (E.D. Va. Sept. 13, 2005) (granting motion for partial summary judgment and ordering government to absorb costs of transporting plaintiff to Virginia for trial).
3Notably, because my client prevailed in the case, the government was required to pay attorney’s fees, so in the end the case wasn’t pro bono after all.
4Turner v. City of Fredericksburg, 534 F.3d 352 (4th Cir. 2008).
5The injunction hearing occurred in a state court matter.
6The particulars of this latter case are reported at Hickman v. Jackson, CA No. 2:03cv363, 2005 U.S. Dist. LEXIS 44007 (E.D. Va. Aug. 3, 2005).
This article originally appeared in the March 2012 issue of The Federal Lawyer and is reprinted with permission.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2020.