March 26, 2014 Articles

Ten Tips to Building an Appellate Practice

By Laurie Webb Daniel

What follows are some reflections on what has helped me build my appellate practice. Although my thoughts are presented in a “Ten Tips” format, there is no magic in the sequence of these suggestions. I am sure there are other equally helpful points that can be made, but this approach has worked for me.

1. Construct a formal business plan. I remember someone asking me in the 1990s where (or what) I wanted to be in 10 years. My response was immediate. I wanted to be known as a top appellate lawyer. I had not really focused on how I would get there, though. It later occurred to me that a road map would be a good idea. So I developed a formal business plan that included a number of action items, some of which are described below. I then made a point of revisiting my written business plan periodically. These self-imposed report cards helped me move toward my goal.

2. Hone your skill set. Good writing is a talent, but it also is a discipline. As a young lawyer, I sought out legal writing seminars—and I still do. I find that it helps to be reminded of bad habits to avoid. And effective legal writing is changing. For example, because many appellate judges now read briefs in electronic format, I am now studying how to best write for the screen. Oral advocacy also benefits from practice and CLE. And if you are looking for oral argument experience, pro bono appeals can provide that opportunity. Moot courts also are important for honing your argument skills—and just listening to other appellate lawyers talk about their routines for preparing for oral argument can be fun as well as helpful. So keep training, no matter how long you have been at it!

3. Do good work. Obviously, winning appeals is one of the best ways to enhance your reputation. But the wins usually do not happen without a tremendous amount of hard work. I think the most important lesson I have learned on this topic is to draft briefs early and to solicit input from others on how to make my drafts better. I pride myself on my writing skills, but my briefs always improve when vetted by other lawyers. In other words, don’t save your moot court for the oral argument preparation. Moot your briefs too. This, of course, takes time, which is why your drafting schedule must leave enough time for reflection, revisions, cite checking, and final proofing. You must avoid sloppy briefing, which can ruin your reputation where it counts the most—with the judges.

4. Become a “go-to” person at your firm. You can develop your reputation in stages, and it usually is easier to start with lawyers who already know you. If you are in a firm, let the trial lawyers know of your focus on appellate practice. Learn the appellate rules inside out, and then make sure the other lawyers in your firm know that you have the answers to quirky procedural questions that can arise in the appellate arena. And let them know that you are a resource for written advocacy as well. Also, there is a role for the appellate lawyer in the trial court, particularly in motions practice. Often trial lawyers will welcome the strengths of an appellate lawyer at those phases. Then, after establishing relationships and trust with some of these lawyers, you may find them asking you to handle their appeals.

5. Present programs. If your state bar does not already have an appellate practice section, start one and set up appellate programs! I did that with the State Bar of Georgia about 15 years ago. This initiative was well received by our appellate courts and our bar. If your state bar already has an appellate section, volunteer to present programs. You can develop your expertise and reputation by picking a topic to present on, then thoroughly researching it and sharing your findings with an audience. I remember finally getting a grasp on interlocutory appeals when I volunteered to make a presentation on that subject a number of years ago. You might also consider presenting an appellate program for in-house lawyers, which would raise your profile with particular clients. The more you speak in public on appellate practice, the more people outside your firm will identify you as someone who is an expert in this field.

6. Publish. Publishing articles on appellate advocacy is similar to the CLE initiative, but different in that it often will reach a broader audience. Also, there are many outlets for distributing writings. You can, for example, write pieces on appellate issues for publication in bar association newsletters or books, magazines (including corporate counsel publications), and the internet. Again, the goal is to firmly establish your identity as an appellate lawyer.

7. Network. Don’t be an egghead. Make the effort to have face time with other lawyers and with judges outside the courtroom. If you practice in federal court, find out if there is a way to attend your circuit’s judicial conference. Many are by invitation only, but sometimes there are ways to position yourself for an invitation. For example, the Eleventh Circuit Historical Society always has a presence at the Eleventh Circuit Judicial Conference, and the court typically opens its conferences to the members of the Society. The ABA also provides many excellent networking opportunities that can lead to referrals or simply raising your reputation as an appellate lawyer. Some organizations specialize in appellate advocacy, such as the Council of Appellate Lawyers that operates under the auspices of the ABA’s Judicial Division. Also, you can network by communicating with clients or potential clients on important appellate issues. For example, if you win an important appeal, let other clients know about it and discuss how the ruling might affect their business or law department too. And don’t forget about social media, which are wonderful networking tools.

8. Get in the news. There is nothing wrong with sharing your briefs with a reporter who is writing on the subject. And if you have just won a big appeal, an appropriate comment is just fine. Getting your name and picture in the local legal paper is great PR for any lawyer. There are national legal publications too and, of course, internet publications. This is one of the best ways to develop name recognition. Sometimes an amicus curiae brief will create an opportunity to comment on an important legal issue. You might also want to let reporters know that you are available to comment on issues of appellate practice or procedure in cases handled by others. I remember getting a call from a CNN producer just before Bush v. Gore was argued in the Supreme Court. He was looking for someone who had SCOTUS experience to talk about what it was like to argue in our high court. Next thing I knew, I was on TV, and after that I was getting calls from ABA contacts around the country!

9. Work on your website. A good bio on your webpage is essential. Make sure that you update your bio regularly to include all your honors, memberships, and activities. Highlight your experience with as much specificity as is permitted by your bar rules. Your webpage should have a strong focus on appellate advocacy so that anyone who is doing an internet search for appellate lawyers in your area will pull you up. You also should include links to your writings on appellate issues. And, with client consent, you may also want to include briefs you have written in important cases. The content on your website should be as descriptive as possible, with appellate practice as an overriding theme.

10. Consider alternative pricing. I tried my first alternative fee arrangement for appellate work more than 20 years ago. It was a hybrid, a combination of a flat fee with a contingency enhancement. That worked out well, as we did indeed win. Clients are now even more cost-conscious than they were then, and many are quite receptive to new pricing approaches. I believe that appellate work is better suited than most litigation for alternative fee arrangements because we are dealing with a cold record, not open-ended discovery or trials. A new pricing model could give you a competitive advantage when seeking new work.


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