February 18, 2020 Appellate Issues | Winter 2020

The Complete Appellate Advocate: Beyond Brief Writing

By Leah Spero

We all know that appellate attorneys write briefs and represent clients at oral argument.  But there are many other litigation, policy, and business roles for which appellate attorneys are particularly well suited.  Four panelists explored these opportunities during “The Complete Appellate Advocate: Beyond Brief Writing” at the 2019 AJEI Summit.  Those panelists included the Honorable Robert Edmunds, Partner at Fox Rothschild and retired Justice of the Supreme Court of North Carolina; Deepak Gupta, founding Principal at Gupta Wessler; Heather New, Assistant Vice President and Senior Legal Counsel, Appellate Litigation, at AT&T; and Deena Schneider, Partner at Schnader Harrison Segal & Lewis.

Panelist Deepak Gupta shared his wide-ranging experiences as the founder of a boutique appellate law firm, Gupta Wessler, that focuses on public interest and plaintiff-side cases.  He noted that the rise in appellate specialization at top law firms has had an enormous impact on practice before the U.S. Supreme Court, especially in corporate cases.  But the plaintiff-side bar has not benefitted from the same level of specialization.  Gupta started his firm in part as a response to this trend. 

The work of Gupta’s firm has branched out from handling high-stakes appeals and now includes shaping lawsuits, advising organizations on policy changes, and weighing in on legislation.  For example, the firm helps plaintiffs’ attorneys formulate their claims before the complaint is even filed and occasionally helps identify plaintiffs for pre-conceived legal challenges.  The firm also advises organizations on how to make policy changes and anticipate potential legal challenges to the changes.  Further, Gupta has given congressional testimony on policy issues, which he compares to oral argument: you have a short amount of time to speak, you have moots beforehand, and you research the panel members.

Getting involved in an interesting case at the trial level can help an appellate specialist get retained when it comes time for the appeal.  But Gupta warned against becoming too involved in the trial team, which can distract appellate specialists from pointing out problems and weaknesses with the arguments as they unfold.  Also, while working with a trial team, it can be hard to know when to simply advise on strategy and when to help write the briefs.  Gupta pointed out that a fact-bound summary judgment motion is less appropriate for appellate involvement than a brief with pure legal issues.

Panelist Deena Schneider shared similar experiences from her work as a lead partner in the appellate group at Schnader Harrison Segal & Lewis.  Aside from her group’s traditional practice of handling appeals for clients, they work extensively with trial teams throughout litigation to frame and preserve issues.  Schneider discussed the importance of laying the groundwork for an appeal at all stages of litigation, including the post-trial stage.  On occasion, Schneider’s group helps other appellate attorneys by putting together a moot for oral argument. 

Like Gupta’s group, Schneider’s group also helps clients navigate policy changes.  They lay out the policy options, anticipate problems and legal challenges, and build the justification for the chosen policy path.  This sort of work grew naturally out of the traditional appellate work Schneider’s group handles for clients.

Heather New spoke about her transition from handling appeals at a big law firm to working in house at AT&T managing litigation teams.  There has been a trend over the past 10 years of appellate specialists getting more involved in trial work, and New was brought in to AT&T particularly because of her appellate perspective.  When New puts together trial teams, she often picks trial, subject matter, and appellate specialists from different firms to work together, and she expects them to get along and not try to edge each other out for more business. 

New advised appellate specialists to collaborate with the trial team and help guide the legal architecture for the case.  But the appellate team should stay far enough removed to maintain objectivity on the strength of the arguments—a point made by Gupta, as well.  Appellate specialists can also be useful in mooting the trial attorneys before hearings on dispositive motions.  Some clients may not realize the utility of appellate specialists at all stages, so New recommended that specialists give clients a clear idea of how it helps strengthen the case below and prepare the case for an eventual appeal.  

The Honorable Bob Edmunds, retired Justice of the North Carolina Supreme Court, cautioned appellate specialists on where they can fall short:  not being able to explain on appeal what happened—and why—in the trial court.  Many appellate attorneys inherit the case only after judgment or an adverse ruling.  But appellate attorneys must understand the play-by-play of what happened below.  Unexplained quirks or holes in the record can frustrate the appellate court, and attorneys should not come to court without answers.  Mastering the record is key.

To illustrate the point, Justice Edmunds shared a personal anecdote from his early years of practice, when a criminal appeal involved a suspicious plea agreement.  The copy of the agreement in the record had an inexplicable, large white splotch in the middle of the page.  Having served as the prosecutor in the case, Justice Edmunds was able to explain to the court that the white splotch resulted from the use of a template plea agreement that the parties modified on the fly.  The template contained inapplicable provisions in the middle of the page, and the attorneys decided to white out the text rather than retype the entire agreement while the trial judge waited.  This explanation helped assure the appellate court that nothing nefarious occurred.  While Justice Edmunds had the benefit of serving as trial counsel, an appellate attorney who joins the case after judgment must devote time to figuring out any oddities in the record.   

As all of the presenters demonstrated, being an appellate attorney is not just about what happens on appeal.  For further reading: Schneider wrote a comprehensive article on the varying roles of appellate counsel, which appeared in the Summer 2019 edition of Appellate Issues and is available here.

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Leah Spero

Leah Spero is a solo appellate practitioner in San Francisco who handles criminal and civil appeals in federal and state courts.  She also serves as Supervising Attorney for third-year law students in the U.C. Hastings Appellate Project, which offers pro bono representation of clients in immigration and civil rights cases before the Ninth Circuit Court of Appeals.