As many appellate practitioners know all too well, the experience of litigating against the government differs considerably from that of litigating against private parties. Although the government is held to a high standard by the courts, it is also afforded remarkable privileges not available to private litigants. Depending on the substance of the appeal, the government may have legal arguments at its disposal of which private litigants can only dream—as well as unique vulnerabilities. And as the ultimate repeat player, the government’s strategic and tactical choices will frequently differ from those of a party seeking only to prevail in a particular case.
Some appellate practitioners—especially those who face off against the government regularly or who are alumni of government offices themselves—will already be familiar with everything from the U.S. Department of Justice (DOJ) process for seeking approval to appeal adverse decisions to the finer points of the informational standing doctrine. But many others deal with the government only on rare occasions.
After leaving the DOJ, I was surprised to see how many capable advocates have only a passing familiarity with the challenges and opportunities presented when litigating appeals against the government. Below are a few pointers that may be helpful to such attorneys. (While these points are most applicable to the federal government, many will also apply to state and local governments.)