Second-chair attorney must have information, authority

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"If you are going to have someone pinch-hit for your firm, you had better make sure they can bind you to the court’s calendar." Hon. Moria G. Krueger (ret.), Dane County Circuit Court

In nearly 30 years on the bench, Judge Moria G. Krueger has dealt with all kinds of civil trial attorneys — the good, the bad and the ugly.

Krueger, who retired in February after a distinguished career as a Dane County Circuit Court Judge, discussed the evolution of attorney etiquette to an attentive audience at the Civil Trial Counsel of Wisconsin (CTCW) Spring Conference on March 30.

Changes in demeanor, procedure and presentation are aspects of civil trial cases which Krueger has seen significant shifts in during the last three decades.

In Need of Assistance

“The biggest change I’ve seen is a lot more second-chairing going on, especially in pre-trial conferences,” said Krueger.

The practice of assigning an associate to handle pre-trial duties such as summary judgments or handling witnesses has become more common, especially among larger law firms.

Krueger neither condemned nor condoned the trend, but warned attorneys of the dangers that come with sending an assistant, especially an uninformed one into a pre-trial conference.

“That’s an important point to me, because if you are going to delegate, then you have to be bound by the delegation,” said Krueger. “I’ve actually had lawyers have their paralegals appear for them at pre-trials, which isn’t necessarily a good thing, because a paralegal can’t answer the kind of legal questions a partner can.”

Assistants are also not always informed of a partner’s calendar, which can lead to scheduling conflicts.

Krueger explained an instance when after developing and writing pre-trial orders, the lead attorney called and claimed he could not make the assigned dates.

“That’s infuriating from a judge’s standpoint,” said Krueger. “If you are going to have someone pinch-hit for your firm, you had better make sure they can bind you to the court’s calendar.”

Krueger suggested obtaining pre-trial orders from the county, if not a specific branch, so that both the attorney and associate are on the same page, so to speak.

“At the very least, they will know what is going to be addressed and can prepare the associate and direct him or her how to answer to these questions if and when they are raised,” said Krueger.

Good Experience, Bad Timing

Despite some of the pitfalls associated with second-chairing aspects of a pre-trial conference, the willingness of firms to send assistants can have benefits.

“It’s not a bad thing to bring in someone who’s less experienced to second-chair, because that’s a good way for them to get experienced in the process,” said Krueger. “Just be sure that person is informed.”

Pre-trial delegation may also be a product of necessity for firm partners who find themselves buried by paperwork.

“Everyone is so busy today,” stated Krueger. “I would be able to offer a trial date in six months, but (attorneys’) calendars are booked up further than mine, so I think that’s one of the reasons you see more delegation nowadays.”

Krueger pointed to the increased filing standards for bankruptcy and discovery laws which have been revised in the last two years as reasons why time is now extremely precious for attorneys.

“E-discovery, especially, is just killing attorneys,” said Krueger. “I thought judges handled a lot, but lawyers get it on the other end as well. There are only so many hours in the day and 10-15 years ago, there wasn’t anything like there is today.”

Despite the increased burdens, Krueger believed attorneys are generally more informed than their predecessors and more courteous.

“I think the civility is getting better,” said Krueger. “Not necessarily in briefs and in motions, but in court. It was pretty bad 20 years ago. People were mean and rude to each other.”