Per Diem Attorneys May Not Be Best For Oral Arguments
In some jurisdictions, lawyers commonly send per diem lawyers to attend certain court functions. Such lawyers are usually paid a flat fee to make court appearances and are used in high-volume practices or when the primary attorney on a case has a conflict that might prevent the lawyer from appearing in court. While per diem lawyers may be qualified for simple discovery conferences and the like, many per diem lawyers may not be suited for oral arguments in a variety of circumstances.
Earlier in my career, I was involved in a complicated matter and had to do a lot of research about the situation to properly handle the task at hand. The matter involved a section of the procedural rules I had not thought about since the bar exam, and the issues were very nuanced. I ended up drafting highly technical papers that discussed the procedural reasons why the court should side with my client, and my adversary also drafted extremely detailed papers.
After the relevant motions were fully submitted the case sat for months until the matter was scheduled for oral arguments. When I appeared in court for those oral arguments, I expected that the drafting lawyer (or at least someone else from that lawyer’s firm who was involved in the case) would present oral arguments to advance the client’s interests. Instead, a per diem lawyer appeared.
I am not sure why my adversary decided to send a per diem lawyer rather than assign the handling attorney to the oral arguments. Perhaps the lawyer with the most experience on the file had a conflict that day, but oral arguments can usually be adjourned to accommodate the schedules of everyone involved. While I waited in the courtroom for over an hour for our case to be called, I saw this per diem lawyer going over all of the briefs and related documents. I wondered to myself if this was the first time that the per diem lawyer was even seeing these materials!
Finally, our case was called for oral arguments, and this per diem lawyer and I presented our arguments. The per diem lawyer was extremely hesitant, and it was clear that this lawyer was not familiar with the facts or law of the case. The per diem attorney mostly stared down when he made points, and his body language broadcasted that he was not confident in those points. On the other hand, I was confident with my arguments, and I cited to specific cases and rules to buttress my client’s position in the matter.
The judge asked a few questions of the per diem lawyer, and this attorney either did not know the answers to the questions or cited the wrong procedural provisions. At one point, the judge opened up the procedural provision cited by the per diem lawyer, and it was clearly unrelated to the case at bar. On the other hand, I was ready with answers for the judge since I had drafted my own papers and was intimately involved in this case.
The court granted my motion and denied my adversary’s motion the same day at oral argument. As we left the courtroom, the per diem lawyer tried to explain that he did not have much familiarity with the legal issues involved in this case and was brought up to speed on this matter late. Had my adversary tasked a more knowledgeable lawyer with attending oral arguments, I am sure that my adversary would have obtained a more favorable result for his client.
All told, there is definitely a place in the legal profession for per diem lawyers who appear in court on a temporary basis for a flat fee, and it is generally fine for such lawyers to attend discovery conferences. However, attorneys should think twice about sending per diem lawyers to oral arguments since such attorneys might be less knowledgeable about a case than attorneys who regularly work on a matter.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
