Welcome to the NFL, now get up and play: DOJ's move to drop experience requirements for federal prosecutors

That's what a battle-hardened litigator told me when, as new associate, I lamented how difficult big law was. The litigator also happened to be my dad. What did he mean? The quip is what veteran NFL players say to rookies when they take their first big-league hit. In both the NFL and litigation, you need to learn to take hits--especially big, breathtaking ones--then get back up to play. It was good advice.

After a year in big law, I followed a gracious partner to his reappointment on the California Court of Appeal where I clerked for him.  

It was only after working in big law and clerking that I dared to apply to be an assistant United States attorney for the Central District of California. The general wisdom was that I was still too junior. But "the Office" was hiring, so I applied and was accepted. I was one of the youngest AUSAs in the Office.

When I started, the hiring process was highly competitive. The resumes of the group of "new" AUSAs hired along with me were tippy top: fancy law schools, white-shoe law firms, federal clerkships. We were new to the Office, but we had already experienced some of the higher echelons of legal practice and, more often than not, we were quite comfortable with litigation. We had already been welcomed to the legal equivalent of the NFL with some hard experiential hits.

Now, as has been widely reported, the Department of Justice (DOJ) is hemorrhaging federal prosecutors across the nation. That is especially true of AUSAs here in the Central District, where at least 100 of 280 attorneys have resigned in recent months, according to Justice Connection--a network of DOJ alumni formed in January of last year. I, too, resigned after nine years in December.

In response to this staffing crisis, the DOJ recently announced it would suspend a policy requiring recruits to have at least one year of experience.

I don't think it's a good idea.

Law firms have the luxury of onboarding new attorneys. The DOJ does not.

In Bloomberg Law's reporting, a source "familiar with the administration's thinking" offered that newer lawyers will work more hours because they are less likely to have families and, in any event, can cut their teeth on drug and gun cases. Both sentiments are wrong.

Rookies already cut their teeth on simple gun and drug cases. But the simplicity of the subject matter does nothing to alleviate the need to understand the basic contours of litigation. And only experience can give a litigator that know-how. The DOJ drops you into cases with the understanding you basically know what you're doing, even if you haven't done it in the federal criminal context. The DOJ (reasonably) expects that you don't need to be taught the basics: At the beginning of a case, you need to file a notice of appearance; check the local rules and then the local, local rules; calendar motions deadlines; and never, under any circumstances, get on the bad side of the courtroom deputy.

Could the DOJ try to teach newly graduated law students all of this? Of course. Is there any substitute for actual experience, however? No.

As for hoping younger attorneys will work more hours because they don't have families, this is offensive and misguided. As an AUSA, you take an oath. Every AUSA I worked with took that oath seriously, parent or not. (Indulge my gratuitous soapbox moment: People without children living in their homes also have family and other responsibilities outside work.)

I get it: the DOJ does essential work, and right now, it doesn't have enough people to do that work. The DOJ's temporary rescission of the one-year requirement is an attempt to broaden the applicant pool to replenish the depleted workforce. But allowing new graduates to apply doesn't address the core of the staffing issue. All that will do is temporarily, and only slightly, expand the pool to include people who do not yet have enough experience to be effective.

For years, the trend in the federal government has been shifting toward hiring more experienced attorneys. For example, senior lawyers will remember when federal law clerks were hired right out of law school. Now, most federal judges want their clerks to have at least some real-world experience before joining their chambers. The paradigm has shifted such that, a few decades ago, almost no clerks had prior fulltime work experience, and now many--maybe even most--do.   

There is certainly a balance, however. The longer these high performers are out of school and making big law salaries, the harder it is to lure them to government work with its comparatively paltry salaries. The sweet spot seems to be more than one but fewer than five years of experience.

I want the DOJ to continue its critical mission of protecting the community. I think hiring inexperienced attorneys and throwing them into the jaws of federal criminal practice--where the high stakes are someone else's liberty--is not going to solve the DOJ's staffing crisis, and worse, could jeopardize the integrity of the administration of justice. The answer to the decimated workforce and unprecedented recruiting crisis is a much harder one to face, and one that current leaders seem unwilling or unable to face. It requires looking at how the work of the DOJ has changed and why high-quality applicants are no longer interested in that work.