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Tom Goldstein Publisher

Posted Mon, November 14th, 2011 10:41 am

Building an appellate practice

Today in the Community we take a step back from the Court’s decisions to invite comments on building an appellate practice, including a Supreme Court practice.  What are the challenges facing a lawyer or law student trying to break into the field?  What kind of experience is necessary or at least useful?  Where are the realistic opportunities?  Readers should submit not only their comments, but also their questions for members of the appellate bar to consider.

  • Tom Goldstein – 0 Promoted Comments

    This is a thread directed at appellate practitioners: please discuss a lesson you’ve learned that you wish you had known when you first got into practice.

    • David Oscar Markus – 1 Promoted Comment

      Building an appellate practice is in many ways more difficult than building other practice areas because it is so specialized. There are ways, however, to break into this niche. I’m not much of a business development person though. My feeling is that if you are a good lawyer, you will get business. I think, then, that the focus should be on practicing at a high level and the business will come. That said, here are a few
      comments: The first point is an obvious one — handle your own appeals.
      In criminal cases, there is almost always something to appeal, even on a plea and sentencing. The government is now trying to force defendants to waive their rights to appeal, so it is imperative to keep these waivers out of plea agreements. Second, offer local groups your services to write an amicus brief. NACDL and its state affiliates are always looking for authors with time to help out on briefs. This is a good way to meet people and to develop a reputation as a good writer.
      My third piece of advice is going to be different than what you hear from most appellate lawyers — don’t stick to trying to do just appeals.
      You are going to limit yourself way too much. By doing different things (trials, sentencing hearings, pretrial motions, etc), you will be developing your reputation and (importantly) setting the groundwork for your own appellate work. Young lawyers should also consider getting on the local CJA (criminal justice act) panel to do appeals (and trial
      work) for indigent defendants. This is an excellent way to gain experience (and again, develop your good reputation). You’d be really surprised to see how doing a good job for an incarcerated defendant will lead to lots of other work. I will say this though, appellate work eats up your time. To do a brief the right way and then to prepare for an oral argument is more time consuming than any other part of practice, except actually trying a case. So, many lawyers find it is impossible to do both. I don’t think so and I believe that splitting time between trial and appellate work makes you a better lawyer and also helps develop business.

    • Roy Englert – 1 Promoted Comment

      I have boiled down my formula for success in life, including success in law practice in general and appellate practice in particular, to three things: work hard, be lucky, and be yourself. The part about hard work is self-explanatory. Being lucky entails things outside of one’s control, but it also entails taking advantage of opportunities when they present themselves. Being oneself is by far the most complex part of the formula, even if it doesn’t seem like it.

      Building an appellate practice is hard work. One must work hard to do a good job for clients, work hard to compete for business, work hard to compete for talent, and so on. One must keep up with a lot of reading that isn’t billable. Building an appellate practice requires luck too. Work is not magically distributed in proportion to talent. My first big lucky moment came when I got a job in the Solicitor General’s Office — in part by happening to ride the right elevator with the right person on just the right day. There have been many lucky moments since. Finally, I use the approach to cases and the approach to business development that works FOR ME. My approach is not the same as that of Tom Goldstein, or Larry Robbins, or Steve Shapiro. If I tried to imitate the approaches of any of those three successful business developers, I would be less successful than I am.

    • Richard B. Bosenthal – 1 Promoted Comment

      Tom, thanks for your kind request that I share a few take-aways from my solo appellate practice, which is now about to begin its 8th year. My main bit of advice would be not to let business development drive your practice. Let your work itself — your legal advice, your briefs, your oral arguments — drive your business development. View every case and every representation as a new opportunity to demonstrate your advocacy skills and your sound judgment as legal counsel. It may sound old fashioned, but if you do top-notch work and treat everyone with respect — judges, clients, co-counsel, opposing counsel, the media, etc. — good word will spread and people will be happy to hire you for the next case down the road. Sometimes even today’s opposing counsel! My best wishes to any and all who are considering practicing in the field of appellate law.

    • Sam Heldman – 2 Promoted Comments

      I wish I could give this message to myself c. 1990: Develop a system, indexed in some way that works intuitively with my own brain, to keep track of aspects of reported cases that will be useful someday.

      If I had done that, and had kept it up while reading the advance sheets over the years, then I would have a list of things like “case saying that waiver arguments are among the things that can be waived” or “case holding that dictionary definitions of words aren’t the be-all and end-all of statutory interpretation” or “case holding that ‘any’ doesn’t really mean ‘any'” or that sort of thing. This would be extremely useful for an appellate or other brief-writing lawyer.

      And you could share it with other lawyers, and then they would think of you as the go-to person.

      Also, be nice.

    • Erik Jaffe – 1 Promoted Comment

      One bit of advice I would offer for building an appellate practice is to get some experience under the wing of experienced practitioners. This can be done at a firm, in government, or at non-profit groups. I practiced at a firm for several years and still benefit from the lessons learned under more experienced partners. Having somebody review and constructively criticize your writing is an important learning experience for a young lawyer. You also have time to learn the ropes, the procedures, and the informal practices in a supervised environment that will help minimize mistakes, or at least the impact of mistakes.

      While not everyone can work at the SG’s office or at a top appellate firm, there are many other opportunities — in state government, for example — to gain some appellate experience before striking out on your own. Also, the time spent learning is also time spent building a reputation and contacts, both among the lawyers you work with as well as those you work against. If you do your best and impress colleagues and opponents with your work, your civility, and your integrity, people will be far more likely to remember you favorably when they happen to have a matter to refer. Taking the time to invest in yourself and your development thus can pay tremendous dividends when you later seek to start an appellate practice.

      A final piece of advice I would offer is to have patience and be prepared — both mentally and financially — to allow a new practice the time it needs to develop. Past good work, contacts, and other business development hooks may take time to develop into paying business. You may have a good reputation among many lawyers who would be willing to send you business, but the right referral may not come to those lawyers right away. If you cannot afford waiting for opportunities to develop — all the time trying to do things to expand those opportunities through pro bono work or other activities to get your name out there — then you may be forced to abandon your practice before it ripens into a sustainable business. Developing your practice is a long-term investment, not a quick-return activity. I would think a couple of years is a good place to start in terms of expectations.
      You may e more or less fortunate, but if you can’t afford a couple of years of building a practice, your chances of success on your own are greatly diminished.

      In a similar vein, for a small practice, business may come and go in waves and you need to find ways to fill the down-time of a small practice.
      Hopefully those activities will help build your brand — whether by writing articles, speaking on panels, doing pro bono work, or the like — and will eventually pay off with a more steady stream of business. But if you are alone or starting a small practice, your business model needs to keep in mind the discrete nature of appellate work and the uncertain timing of new cases. Over time as more people become familiar with your work and thus become potential sources of referrals, work may become more steady, but starting out you need to anticipate and make the most of both the highs and the lows.

    • Beverly Pohl – 1 Promoted Comment

      I would advise young lawyers to read voraciously, both legal and non-legal things, to improve not only your substantive knowledge but also your writing skills. Really excellent writing is as important as legal analysis, and the best appellate lawyers edit over and over to make the writing crisp and interesting and persuasive. Simplify everything, and then simplify it even more. Find a mentor to read and edit your work. If you love this work, it will show and people will notice. Be curious, and always go the extra mile.

    • Lex Apostata – 1 Promoted Comment

      One observation I would make as someone who went from private practice into government practice, instead of the other way around — there are a lot of fantastic government appellate lawyers who are overlooked by law firms seeking to bolster an appellate practice. It seems that at present, lawyers joining an appellate practice must be either law review/top 1- law school grads, or former assistant USSGs. But in the various state attorneys general office and public defender agencies there are some great appellate advocates who have handled hundreds, even thousands of appeals. This is a huge body of talent and experience that is virtually untouched by legal recruiters.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the best opportunities to develop appellate experience.

    • Eric Schnapper – 1 Promoted Comment

      Having been engaged in a pro bono appellate practice for fifteen years, one of the most important factors that has emerged in getting new cases has been word of mouth referrals through people I have helped in the past. None of the clients I have representated are likely to again have another appellate case, but their lawyers (and their lawyers’ colleagues) will. Cases (and certiorari petitions) that were unsuccessful can be important in the long run if the lawyers with whom you worked were happy with the quality of the representation and relationship. At the early stage of building a practice, one probably needs to take on cases with a lower chance of success (or, if you are in private practice, cases where you may not get paid), to develop your expertise and reputation.

    • Kent Richland – 1 Promoted Comment

      As others have remarked, building an appellate practice is tough. It’s an unusual specialty because the appellate practitioner specializes in a process rather than a particular substantive area of the law. But here are a few thoughts.

      There are not a great number of opportunities for young lawyers to develop appellate experience, but obviously an appellate clerkship is a great place to start. They are few and far between, however, and there’s enormous competition for very few slots.

      A realistic alternative is government practice. I was fortunate that my first job out of law school was with the California Attorney General’s office, which represents the People in all the criminal appeals in the state. From there I went to the California State Public Defender’s office, which represented indigent criminal defendants on appeal. Between these two offices, I got a great grounding in the basics of appellate practice, and even though there was little exposure to civil law, the experience made me attractive to an appellate firm that was looking for lawyers who were not appellate neophytes.

      In terms of building the practice, my best advice is to take every opportunity available to speak publicly on appellate law topics.
      CLE classes and bar events on appellate matters are often attended by trial lawyers who do the occasional appeal, but they can be a great source of business when they are confronted by a particularly tough appeal or when a colleague is looking for appellate representation for a client.

      In addition, I’d suggest being generous with your time when another lawyer calls for information about the appellate process. Once you are satisfied there’s no conflict, share information freely; that goodwill–or maybe it’s just good karma–will almost certainly pay off in the future.

    • Orin Kerr – 4 Promoted Comments

      I think the best opportunities to develop appellate experience are in government. Get a job as an AUSA, and then transition into the appellate section of the U.S. Attorney’s Office: Relatively few AUSAs want to do appeals, and you’ll be able to do nothing but appeals all day. It’s by far the best way to get experience with appeals.

    • Paul Eaglin – 0 Promoted Comments

      Among other opportunities for appellate service, some Courts have relationships with bar associations or with bar members to serve pro bono. Specifically, in the Ninth Circuit there is a pro bono program whereby the private bar responds to Court requests for volunteer appellate service. There are regional coordinators within geographic areas of the Circuit. Similarly, at the Federal Circuit, there is a relationship with the Federal Circuit Bar Association for provision of pro bono appellate service in some appeals arising from Merit Systems Protection Board petitions for review, and from the “Veterans Court,” the U. S. Court of Appeals for Veterans Claims or USCAVC. In turn, at the USCAVC, there is a relationship with the Veterans Consortium Pro Bono Program which in turn offers appellate pro bono opportunities to its volunteer attorney participants.
      So, for those admitted to those Courts, consider those opportunities for appellate experience through pro bono service. Look for similar opportunities at other Courts to which you are admitted. These types of appeals can be interesting while also offering one the opportunity to be of service to the Court. Some of the programs such as the Ninth Circuit Pro Bono program also assure oral argument, which is an added attraction for some, especially for law firms that are seeking to give Associates the opportunity for principal appellate responsibility for a Circuit Court appeal.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss in particular the challenges facing an attorney trying to build up business in an appellate practice.

  • – 0 Promoted Comments

    Any advice for current law school students, especially 1Ls, would be greatly appreciated!

    • Orin Kerr – 4 Promoted Comments

      Troy, at this point the goal should be to get top grades. Appellate work is widely sought after by recent law grads, and it’s a relatively academic practice, so the few spots available to recent grads often go to those who did the best in law school. Then try to use those top grades to clerk for an appellate judge and go to a firm with a substantial appellate practice.

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