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April 14, 2014 Articles

Boutique Appellate Practice

By Cindy Tobisman

I’m a partner at an appellate specialty firm. For me, practicing at such a firm is the best way to do what I do. The 22 attorneys with whom I work are all ivory-tower law nerds like me who love researching legal issues and writing briefs, motions, jury instructions, and any other kind of legal document that regular (saner) lawyers find tediously time-consuming. This means that I have ready access to a deep bench of talented attorneys—brainstorming a complex issue is as easy as walking down the hall and knocking on a door. I often run my arguments by my colleagues, and the finished products invariably benefit from those conversations.

Another benefit of working at an appellate boutique is the varied diet of cases. My practice touches on every aspect of civil law—from contract disputes to intellectual property to family law. In addition to arguing appeals, I work with trial counsel to formulate strategy in probate court and superior court—indeed, some trial attorneys bring us in early to help figure out the best way to approach their cases. Practicing at an appellate boutique means a broad platform for handing all kinds of matters.

So how did I end up at an appellate boutique? The answer begins with the day I figured out that appellate practice was the only place in the legal world where I could be truly happy. I’ve always gravitated to research and writing. During law school, I was a member of the Boalt Hall (Berkeley) Moot Court Board. I worked as a research attorney for professors writing amicus briefs. When I graduated, I went to work in the litigation department of a large firm. I quickly realized that as I advanced, I would get to do less and less research and writing. It was the Peter Principle at work: If I succeeded, I’d be promoted beyond my true area of competence.

Once I knew I wanted to stick with what I loved, the rest was easy. The goal became to find the best place to specialize in appeals. I considered working as an appellate specialist in one of the large firms that have litigation practices and appellate sub-practice groups. But I concluded that this direction likely would require splitting my time between handling appeals and handling trial court litigation. I worried that dividing my time would mean always putting my appeals on the back burner (because trial court deadlines tend to be much shorter). Writing an appeal is a labor-intensive process and one to which I could not devote the necessary attention in a mixed practice. The benefit of a pure appellate practice is that without the day-to-day fire drills of litigation practice, the attorneys can spend their time and energy on writing the best possible briefs.

In leaving big-firm practice, I never considered striking out on my own. Appellate practice is highly specialized and I knew that I needed to learn the ropes. So I sought out a job at an appellate boutique, where I could be mentored by experienced specialists. Most of our cases are staffed with one partner and one associate, so I “grew up” working very closely with veteran appellate attorneys. The experience made me a better writer and a stronger lawyer. In recent years, I’ve also had the gratifying experience of mentoring younger lawyers.

Some of the necessary attributes for being happy at an appellate boutique are the same attributes for being happy at any small firm: You must play well with others and you must like your colleagues. A boutique firm is essentially a small business. This means that, in addition to liking the people you work with and respecting them as attorneys, you also need to have people with whom you can work out any business issues that arise. In addition, everyone has to do his or her part. A boutique firm does not have the name recognition of a 1,000-person firm. This means that everyone must work to develop business and to get the firm’s name out in the community.

The economics at an appellate boutique are different from at a large firm. We are often brought into the case either by trial counsel or by sophisticated clients who understand that writing an appeal is a very different exercise from trying a case. But our presence in the case means the client is paying for yet another attorney. We need to add immediate value and we need to do it at a sensible rate.

In addition, an appellate attorney’s work is fairly partner-heavy out of necessity. It is not the sort of work that can be leveraged. The result is that you do not make as much money at a boutique as you would make at a large firm. This tradeoff is something that every solo appellate practitioner and every attorney at an appellate boutique accepts. For an attorney suited to appellate practice, the tradeoff makes sense. I have never regretted it. I have a gratifying and interesting professional life. That’s worth quite a bit.

Keywords: woman advocate, litigation, boutique, appellate practice, small firm, professional development

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