When I was a baby lawyer – a long time ago in a galaxy far, far away – older lawyers spoke to me almost wistfully about appeals, but they always added a grim word of caution; something like, “Appeals are great, but you can’t do just that; you’d starve.” As the years unfolded, and I grew curious about a career devoted to the appellate arena, those warnings came back to me: “You’d starve. You’d starve.” So I trudged on with a practice that was mostly the gruel of trial work plus the occasional butterscotch sundae of an appeal.
I didn't realize it then, but those elder statesmen – that’s what they seemed like to me back then – were lying to me. Okay, maybe not lying; they probably believed it because they had never seen it done here before. But they were wrong, and by thus warning me, they deterred me from doing the one thing that might make me – that eventually would make me – happy in the practice of law.
You hired me out of City Hall to be the firm’s new primary trial lawyer, but after about four years of that, I was miserable. What finally prompted me to plunge into the appellate field was, accordingly, desperation.
I then finally – finally! – started to explore how to attempt what I had been assured was impossible. After a year of planning, I came up with an optimistic route. You’ll recall when I approached you back then, a bit tentative because of the express purpose of your hiring me, and laid out what I wanted to do. I feared that you’d rebuke me. Instead, you calmly asked only, “Can you make it work financially?”
I have no idea, I thought. “Yes,” I said.
With your blessing, I took the plunge into appeals and saw my efforts succeed far beyond the reach of my dreams. I had help, of course; getting a capable media consultant from the outset proved vital. The ensuing experience led me to recognize several things about the business side of appellate practice. Here’s what the firm can convey to the future generations of appellate lawyers here:
- Resist the urge to work only on in-house appeals, those that come from lawyers within the firm. You need to develop the ability to generate appellate raindrops. As the saying goes, when times get tough and law firms have to downsize, the last person they’ll ever lay off is the rainmaker.
- You’ll accordingly need to market your practice; but forget about pitching it to clients. They’ve already got lawyers. You need to target lawyers – more specifically, to trial lawyers; and more specifically than that, to nervous trial lawyers. These are the folks who perceive that the appellate system is a labyrinth with landmines. And you know the map.
- Decide if you want to work only on specific types of appeals – criminal, admin law, torts, eminent domain, whatever. You may have to be a Jane of All Trades at first, but I suggest that you work eventually toward a more focused specialty or two.
- Once you’ve identified your target audience, you need to figure out how to reach that crowd with your message. Don’t make the mistake of thinking that you can do that with a single-avenue approach, such as placing an ad in a spot where your audience will see it. If that's all you do, your phone won’t ring. You need multiple lines of attack:
- Find a trial lawyers’ bar association in your preferred field and join it. Now join a committee or two, call the committee chair, and volunteer to help. That gets you actual face time with your prospective customers.
- Write articles for law journals in your target field. Not law reviews, because trial lawyers don’t read law reviews. They want to read short, pithy articles with several quick, useful takeaways.
- Get behind a lectern for CLE programs. Everyone in the audience will presume that you’re an expert in the field you’re discussing.
- Join association listserv groups and participate in the discussion, especially when someone asks an appellate question. Your target audience will soon start to trust you, and eventually will associate your name with appeals. Then you’ve won.
Now, Boss, I don't want this to come across as too mercenary, so let me turn to a few things I’ve learned about the actual practice. It’s common knowledge in the appellate field that while oral arguments can be fun, they rarely affect the outcome of an appeal. The real work of persuasion is in the briefs, so I’ll start there.
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The first rule of successful briefing is that brevity is king. I’ve spoken with plenty of appellate jurists over the years, usually at bar-association functions but sometimes in committee work. They uniformly complain that appellate briefs are too long. In fact, exactly zero such jurists have expressed to me a wish that we lawyers would file longer briefs.
This is my key advice to our firm’s future appellate lawyers: Despite our state’s current merits-brief limit of 50 pages (or the word-count equivalent), you must bring your brief in at or under 15 pages. If they howl in protest that that’s far too short, tell them that Steve Emmert says they’re just being lazy. It takes work, but you can file absolutely compelling 15-page briefs, and the readers – the consumers of our appellate work product – will love you for it.
Next, I recommend that they resist the common appellate advice to put their strongest issue first in multi-issue appeals. Especially as a petitioner, the best practice is to put the most interesting argument first in a brief. That grabs the consumer’s attention and prompts her to keep reading with interest instead of out of a sense of duty.
Also as a petitioner – and especially with the rare petition for rehearing – please, please convince our future lawyers to put something truly compelling on page 1. You don't save your killer point for page 12, or even for page 2. Ideally, you want the consumer to think, Hey, wait a minute … before turning the page. This means that you must eliminate the throat-clearing introductory paragraphs (“NOW COMES your petitioner, Acme Products, Inc., being aggrieved by the ruling of the honorable court below …) and jump right into what happened and why it was wrong or right.
Reply briefs are a discrete subspecies. You don't use them as point-by-point refutations of your adversary’s primary brief. As the saying goes, you should resist the urge to throw a rock at every barking dog.
I see two uses for reply briefs. First, they should give the reader – your consumer – a favorable view of your side of the issues. You want the reader leaning at least a little toward you. Second, they set up your opening oral argument. As the appellant, you get the last briefing word and the first oral argument. If the briefs do a good job of crystallizing the issues and the consumer is leaning toward you, you can give a very short opening argument. And that’s a good thing.
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As for oral arguments, I again won’t recite the well-worn advice; these are some of the obscure tidbits.
For oral-argument prep, I learned early to spend far less time writing a speech than I spent anticipating the toughest questions I might get, and mapping out the best answers to those questions. You won’t anticipate them all, of course – as Mark Twain observed in another context, “It’s impossible to make anything foolproof, because fools are so damned ingenious.” Your panel will eventually throw you an appellate curveball, and you’ll have to adapt. But be sure that you’re ready for the predictable fastballs.
I got a little-known but brilliant recommendation from a gifted appellate advocate named David Frederick: Do whatever you can to get a good night’s sleep two nights before your argument date. Thus, if your argument is on a Thursday morning docket, make sure you can sleep well on Tuesday evening. Frederick reasoned that if you’re too nervous or excited to slumber Wednesday night, you can usually get through the next morning on adrenalin; but if you’ve slept poorly for two straight nights, your thinking process will be in trouble.
Our young lawyers here at the firm must learn how to respond to a jurist’s question where they don’t know the answer. Bluffing is obviously out. The consumer will regard “I don't know” as unhelpful. I recommend something like this, at least for information that you can access once you’re back at your desk: “Standing here today, I don’t know. But if you wish, I can submit to the Clerk a written answer within the next 24 hours.” If the judicial response is, “No; that’s not necessary,” you’re off the hook. If it’s “Yes, please,” you can ensure that the answer you’ll give in writing is correct.
Tough hypothetical questions are trickier, of course. I’ve seen multiple approaches to them, but the best I know is one that I purloined from an elite appellate advocate named Toby Heytens, now a judge on the Fourth Circuit: “In that case, I think the answer would be yes. But I’d really need to evaluate the components of that question fully before giving your Honor a definitive response.”
One of the underappreciated skills of an appellate advocate is knowing when and how to leave the lectern. Especially as an appellant, where I have the right of rebuttal, I want to leave as much time as possible for my rebuttal argument. If oral-argument time is sterling silver, rebuttal time is solid platinum, so I need to figure out how to give a short opening argument. One component of that strategy is not summing up before I sit down; I don’t want a jurist to pin me to the lectern with “just one more question,” and I don't want to give my adversary any advance notice when it’s her turn.
Doing it this way can be a powerful tool when I have a killer issue, especially one that my adversary has been dodging. In this environment, I find it best to sit down immediately after saying, “We’ll have one final opportunity to learn the appellee’s position on this issue when Mr. Johnson addresses the Court right now.” At this point Mr. Johnson, with no warning, has to walk up to the lectern knowing that I just left a live cobra up there. If he tries to start on a different issue, one of the justices will inevitably grab him by the lapels and wring an answer out of him. And I get to sit and watch her do it.
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Since you’re recording this for the firm’s future lawyers, I want to mention one last point that’s especially important to me. I’ve helped a fair number of lawyers over the years, because a lot of other lawyers helped me when I was young. (I’ll even acknowledge the ones who tried to warn me away from appellate practice, because they thought they were doing the right thing.) Leaving these ideas with you is part of my process of repaying that debt, albeit not to my original creditors.
Stephen Covey became famous with his seminal book, The Seven Habits of Highly Effective People. It was a huge bestseller, a sort of owner’s manual for an effective life. Years later, he published book called The 8th Habit, where he encouraged readers to “find your voice and inspire others to find theirs.” In this vein, I encourage the firm’s future appellate lawyers to reach out someday to the ensuing generation of lawyers, those who find appellate practice interesting but don’t know how to get started. Help them to become active and effective members of the appellate guild, the way I’m doing right now. The benefits of mentoring run in two directions.
Back when you asked me if I could make an appellate practice financially successful, I really didn't know; I had only hope. Thank you for helping me to turn that hope into reality.