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March 26, 2014 Articles

Building a Successful Solo Appellate Practice

By Julia Pendery

In the summer of 2005, after 25 years of downtown Dallas law firm experience, I formed my solo appellate practice. It was scary but exhilarating. I have learned a lot along the way, especially about marketing my practice. I share some tips here.

Setting Up Shop First, a few general observations. As any solo knows, it is important to control overhead. I started in an executive suite arrangement where I paid a monthly fee that provided offices, a receptionist, mail room, copy room, and conference rooms. While there were a few other lawyers in my executive suite, they did not do the type of work that I could help with.

Now, there are executive suites that cater to lawyers only. If I were starting over again, I would look for that or find a firm of about 10 lawyers who do general litigation and ask if they have an extra office to rent. Both a lawyer-intensive executive suite and a small firm, office-sharing arrangement will generate referrals, multiply your contacts, and cut your overhead. They can also provide one of the things you will miss most about your former firm—someone to bounce issues and ideas off of, not to mention reconnaissance on the local judges and other lawyers.

You may be worried that you cannot afford staff. I started with a full-time legal assistant, whom I took from the big firm. She helped pay for herself with billable time, although a legal assistant’s use on appellate work can be limited. She also learned to run the office, which took some of those irritating things about being a solo practitioner off my shoulders. She sent out bills, paid bills, ordered supplies, argued with the phone company, bought equipment, and made appointments. We had a common goal, and making her a vital part of reaching it worked out well. It was worth the expense.

Overhead tends to creep up. It is fine to add amenities if you can afford them and they help you build a successful practice. Be careful about what you spend money on, but do not be penny wise and pound foolish. Do not skimp on your access to research materials. Both Westlaw and Lexis have monthly flat-fee programs for solo practitioners and, if you play their sales representatives off against each other, you can get a very good rate. You can pass through most of that cost to clients and they will not protest.

Invest in a thorough, substantive website. Look at local law firm websites, pick a few you like, and call the individual or small firm creator of the site for a bid. On the website, make it clear you handle only certain types of work, mainly appellate. You may not get much business directly from it, but other lawyers will find it useful, especially lawyers from out of state, and they will call you when they need local help.

Do not skimp on CLE. It is a major marketing source for an appellate lawyer. Divide your time between appellate specialty programs and general litigation programs, with an emphasis on the types of substantive areas that other solos and small litigation firms are interested in. Go to local programs and statewide programs. When you meet a person who does litigation, ask her to tell you about an interesting case she is working on, offer some helpful suggestions, and give her your card. Even offer to do a research or writing project for free. As an appellate specialist, your best source of quality business will be other lawyers. Your goal with trial lawyers is to make them realize that you can lift the burden of the technical type of work they hate and free them up for the “real” litigation work they love. Emphasize that they can pass your fee through and you will not steal their client.

Whatever your reason for going solo, do not burn any bridges. Keep good relationships with your former colleagues. They may be the source of future business. In fact, I worked on a case for my old firm for three years after I left. Currently, I’m working on a matter with a firm I left 13 years ago, and they have been a steady source of referral business over the last eight years.

The Role of Bar Activities It’s a big help if you have been actively involved in your local appellate community, or if there isn’t one, in the litigation section of your local bar and, perhaps, your state bar. If possible, tell those local contacts in advance that you are going out on your own. Ask them to think of you if they conflict out of a case or if they have a promising client who is not able to pay the big firm rate but might be able to pay your rate (but don’t sell yourself too cheaply; it hurts your credibility). Focus on senior trial lawyers in small to medium-sized firms and appellate lawyers in big firms. When I first went into practice on my own, other appellate lawyers in bigger firms were a big source of business to me. Unfortunately, when the 2008 economic downturn hit, many of the large Dallas firms laid off appellate specialists because they generally are not good rainmakers. There are now about three times as many solo appellate lawyers in my area as there were when I went out on my own.

Choosing Cases as a Solo Appellate Practitioner Be realistic about what you can and cannot handle as a solo appellate lawyer. You are definitely going to miss those hot and cold running associates from the big firm. You cannot take on a huge case for a huge corporation unless you have one or two back-up lawyers willing to help you on an hourly basis. Even then, companies with those types of cases generally do not want to entrust them to someone who does not have some depth of personnel. You can help counter this attitude by finding a capable person who does contract research and writing work by the hour.

One of the reasons I went out on my own was to focus more on the type of work I like most, amicus briefs. These are a good fit for a solo. Make sure your contacts in the larger firms understand that you are always there to provide amicus support. You may have to do several freebies to develop the ability to charge for these briefs. When you are at a continuing education meeting, engage others in speaking about their current big appeal and its issues. If it is something you can provide help with in the form of an amicus brief (even a letter), offer your help.

Marketing For an appellate lawyer, it is important to stay on top of current issues that are percolating through the court system and becoming hot topics. Think of other lawyers who specialize in a particular industry group and watch for cases coming through the appellate system that will have a major impact on that industry. Call the lawyer who has restaurant clients when a restaurant liability matter is at stake. If a new statute creates an issue for an industry, ask a trial lawyer who has a concentration of clients in that industry to introduce you to someone with the industry’s trade group association. The trade group is more likely to pay for an amicus brief than an individual company. If you are in a state capital, there will be many such associations to approach, if you have a legal contact.

One tip I give young lawyers, as well as those going out on their own, is to develop a specialty niche. It can even out the ebb and flow of appeals and their feast or famine effect on monthly overhead. People must think to call you when the topic comes up in their practice. My niche practice happens to be getting people out of default judgments (the only topic no one else would “volunteer” for when a judge asked me to be on a seminar planning committee). The possibilities are endless. The most effective tool may be to take a new statute and get to know it intimately. Read the entire statute, its legislative history, and anything that has been written on it previously. You, however, should be one of the first people to write on it. Write enough to show people you know what you are talking about but not enough to give them everything they need to do it themselves. (I learned this from the plaintiffs’ bar.) When other practitioners come across the issue, they should associate your name with it and make you their go-to person on that issue. Work up a presentation and give it first to a small bar organization. Once you’ve tried it out on them, progress to the litigation and solo/small firm sections of the larger bar. They are always in need of new speakers, and their speaker chairs love volunteers. If your niche statute involves issues that concern businesses, develop a version of the presentation that you can give to the Chamber of Commerce, the Rotary, or any organization of business people.

It is important to keep your reputation impeccable with the judges, but also to interact with them at continuing education or local bar events. I was surprised to find, long after a major appeal was over, that the client had originally come to me because his trial lawyer asked a local appellate court judge to recommend a good appellate attorney and the judge recommended me. That first case for the client turned out to be the source of many years of continuing business, both from him and from the lawyer who had asked the judge for a recommendation.

Marketing does not come naturally to most appellate lawyers. It is a different skill set from the one that led them into appellate law. Each case is an individual marketing effort. There are few appellate clients with a constant stream of appellate needs. The downside of marketing for most of us is that it is an awkward, but relentlessly necessary, task. The upside is that as a solo, you don’t need to have 100 cases on your docket to make a good living. If you have 10 active appeals on your docket at any given time, along with a few of those specialty matters, you can do very well. You control your overhead, keep a much higher percentage of your revenues, devote more time to what you love doing, and enjoy being your own boss. That means keeping your own hours, making your own rules, representing people and entities in which you truly believe, and leaving behind those 7 a.m. partner meetings where they admonished you for not collecting all your accounts and bringing in business for other lawyers. Embrace that freedom and enjoy the ride, even if it turns out to be a roller coaster.

Keywords: woman advocate, litigation, solo practitioner, appeals, marketing, office sharing, executive suite, overhead, website, referrals, business development, amicus briefs, default judgments

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