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October 17, 2022 Council of Appellate Lawyers

From Pocket Constitution to Influential Appellate Lawyer

“I was the nerd with the pocket Constitution in my backpack in elementary school. I always wanted to be a lawyer and a lawyer who engages in the law in a way that makes it fair for everyone.”

By Kelsey Brey, Bowie, MD

Tillman Breckenridge, currently a partner at Stris & Maher, LLP, is an experienced appellate attorney who has represented clients in every federal court of appeals and the United States Supreme Court. Breckenridge received his Juris Doctor from the University of Virginia (UVA) School of Law in 2001. During law school, he participated in UVA’s Appellate Advocacy Clinic, one of the first appellate clinics in the country, where he won his first appeal as a 3L. In that case, he appeared before the United States Court of Appeals for the Fourth Circuit in a case of first impression. Since then, he has advocated for clients across the country and accumulated multiple honors, including being named to Savoy Magazine’s Most Influential Black Lawyers in America, and honorary member of the Order of the Barristers, a Washington, D.C. SuperLawyer, and a member of Virginia’s Legal Elite. Additionally, he was the youngest Fellow ever-and first under 40-admitted to the American Academy of Appellate Lawyers.

In addition to his busy legal practice, Breckenridge has spoken on numerous appellate topics and in 2011, he founded the William and Mary Law School Appellate and Supreme Court Clinic where, for nine years, he guided and educated his students on the value of appellate work and the usefulness of amicus briefs to the courts.

I sat down with Breckenridge to discuss his appellate career and his experience with amicus brief writing.

Your breadth of experience in the appellate world is extremely impressive.  How did you get into this field?

“Well, thank you. I don’t know how far back into my life you want to go, but I was the nerd with the pocket Constitution in my backpack in elementary school. I always wanted to be a lawyer and a lawyer who engages in the law in a way that makes it fair for everyone. When I got to law school, it became clear to me that the number one way to do that was legislatively. Legislative work did not appeal to me, so appellate work was and is the next best way to serve the greater need. So, appellate work fit my personality better and was a win-win.”

You argued your first case before the United States Court of Appeals for the Fourth Circuit, in a case of first impression, as a 3L. What was that experience like?

“It was a valuable experience. I was with the Appellate Advocacy Clinic at UVA at a time where not every law school had such a clinic, so that clinic gave me a lot of experience I wouldn’t otherwise have had. Up until this case, a majority of the cases we received were prisoner rights cases. Then this case came in and it was an employment case on a sensitive topic. We represented the male employee who was being sexually harassed by his boss. The issue, one of first impression in the Circuit, was whether an equal opportunity harasser (one who assaulted both males and females) might be liable. The defendant argued that because he was also harassing female employees, he could not be liable. And the crazy thing is that that defense was successful in 2 to 3 circuits at that time. So, we took the case to the Fourth Circuit and argued that defendant did not harass equally, meaning the boss did not harass both male and female employees the same way. It was an extremely sensitive topic as we had to describe to the Court the different ways the defendant harassed his employees, but at the end of the day, the Court accepted our argument.”

From 2011 to 2020, you were the professor of the William and Mary Law School Appellate and Supreme Court Clinic at William and Mary. How was the experience going from student to teacher?

“I loved it. I loved teaching and I loved being involved in the clinic. We handled cases before the appellate courts and the Supreme Court. I would teach my students that when you write an amicus brief you want to add value because the definition of amicus curiae is ‘friend of the court.’  My students were able to work on several interesting cases, including a petition for certiorari to the Supreme Court on qualified immunity.  Following George Floyd’s murder, the Supreme Court denied our petition, presumably based on Congress’s apparent intent to address qualified immunity. Additionally, they were able to write an amicus brief for Riley v. California, which was cited by the Supreme Court [in its decision in that case].”

You gave your students such incredible experiences that I am sure they are thankful for. Switching to your appellate practice, what is your process in determining which cases to work on amicus briefs?

“Like I said, amicus curiae means ‘friend of the court.’ Clients will come to me and it is my job to determine what they want. Does the client want an amicus brief in general, or is there something particular they are looking to say? Is there a unique perspective that has not been considered before? Then, I review the opinion of the lower court and determine, based on what the client is look for, is there something useful that we can write for the court. We cannot bring up something completely novel, but maybe there are alternative approaches that have not been considered. I also consider my personal bandwidth and the types of cases I can take on at any given time.”

Recently, your amicus brief in NCAA v. Alston was cited by the Supreme Court in Justice Kavanaugh’s concurring opinion.  How did you get involved in this case?

“A partner I worked with at a former firm, Patrick Bradford, brought the case up to me initially. He told me there was an issue he had been working on – African American college students are free labor in a market that makes a ton of money- and thought it would be a good issue to write an amicus brief on antitrust matters for the Supreme Court. I reviewed the case and I agreed to assist because I thought we could make a valuable and important point that the Court could use.”

Clearly you did because Justice Kavanaugh cited your brief. I read your brief and it was extremely well written. You and your colleagues argued (1) the rule of reason properly guides the analysis here as the myth of amateurism yields to evidence that players are professionals; (2) applying the myth of amateurism results in significant harm to Black players; and (3) the inverse relationship between the NCAA’s mission and the procompetitive justification undermines lifting antitrust restrictions on a cartel manipulating the labor market. The term “myth of amateurism” is a term that sticks in both lawyers’ and non-lawyers’ minds. How did you come up with this term?

“I was also drawn to this phrase. When I was in college, I had friends who were on sports teams and I saw how hard they had to work to balance academics and athletics. I routinely saw the student part coming second to the athletic part. Being a college athlete was more than a full-time job and we needed to bring attention to that.”

Absolutely. I saw it first-hand at my college as well. As we finish, do you have any advice you would give to young lawyers starting out who want to do appellate work, or for seasoned lawyers who want to get into the appellate field and test their hands at amicus brief writing?

“I recommend signing up for pro bono work from either your local United States Circuit Court of Appeals or from a different Circuit. Many Circuits need attorneys who take pro bono cases to brief and argue before the Circuits. These are valuable opportunities to gain experience in appellate practice. When I was in my second year of legal practice, I took pro bono cases, and I was able to work on a case out of the Seventh Circuit. I also recommend forming a mentoring relationship with someone who either currently practices appellate work or has practiced appellate work. Practice makes permanent, not perfect. A lot of appellate practice is done by doing and if you work with someone who either practices appellate work, or has in the past, and has done it well, they can teach you the best ways to practice. There is no substitute for being taught how to do things right.”

That’s exactly right. Well, thank you, Tillman for sitting down with me and speaking with me about your experience. I greatly appreciate your time today and I know readers will appreciate it as well.

    Kelsey Brey

    Attorney Advisor, Federal Bureau of Prisons

    Kelsey Brey graduated from the Elon University School of Law in 2019. Following graduation, she became an Attorney Advisor at the Federal Bureau of Prisons where she currently works on litigation matters. Any opinions expressed in this article are her own and do not necessarily represent the opinions of the Federal Bureau of Prisons or the Department of Justice. 

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