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March 26, 2014 Articles

Relationships and Resources Building an Appellate Practice in a Large-Firm Setting

By Linda Coberly

If I had to choose one quality that is most important to success as an appellate lawyer, it would be “good business sense.” It may surprise you to hear me say that. The classic stereotype of an appellate lawyer is someone walking around with his head in a book, or speculating about the long-term impact of the latest blistering dissent in the Supreme Court, or debating burning issues like footnotes and font choice in appellate briefs. Of course, there’s some truth in that picture. I take as much pleasure as anyone in handicapping cases in the Supreme Court (and I have a strong preference for 14-point Book Antiqua and no footnotes). But none of that leads to success without good business sense. Clients are looking for advocates and advisors who will understand their business goals, not just the intricacies of their legal arguments. And, of course, good business judgment is essential to building a successful law practice, whether in appellate litigation or any other specialty.

The large-firm setting comes with its own set of challenges and opportunities. Building any new practice takes time and investment, which may require seeking buy-in from the firm’s leadership. This may not be easy, given the pressures large law firms face in today’s market. In addition, an appellate practice may fit differently within a large firm’s economic model than a substantive or industry-focused practice would. But at the same time, large firm practice offers many advantages—in terms of relationships, resources, and profile. With that in mind, I’m happy to share some of the strategies that I use in my own practice and that animate the appellate practice group we have developed at Winston & Strawn.

Build Relationships

In a large law firm, your greatest allies in building your practice are your own partners. It is particularly important to build strong, collegial relationships with trial lawyers. My relationships with my trial lawyer partners are among my most valuable assets. These partners affirmatively seek out ways to introduce me to their clients and to integrate me and other appellate lawyers into their teams, beginning before the matter is even through the door. Through our work together, they have come to understand that including appellate expertise in a proposal to handle new litigation demonstrates long-sightedness and good business sense and may well help to distinguish our proposal from the competition’s.

At the foundation of these relationships is deep mutual respect. I am fortunate to practice with some of the best trial lawyers in the business. I admire the skills, experience, and perspective they bring to every case they litigate, and I appreciate the trust they place in me. We regard one another as part of a team, each contributing a different perspective and then working together to advance the interests of our clients and the firm.

Offer to Help

The concept of an appellate practice may be new to your firm or your partners, so you may find that you need to help them understand what it is. Some trial lawyers are accustomed to handling their own appeals and do not immediately see the value an appellate specialist can add. Some particularly love to handle appellate arguments and may assume (incorrectly) that your practice depends on taking their appeals away. Job one is to diffuse that misunderstanding. The truth is that while I certainly do have partners and clients who are looking to hand off the case entirely once it reaches appeal, there are plenty of other ways I can help, depending on what’s best for the particular client and matter.

So, what’s the best way to educate your partners and client contacts about appellate practice? One obvious way is to talk about it, both one-on-one and in presentations at department meetings or conferences. I’ve certainly done that over the years. But I also think there’s a more important and better way: offering to pitch in. Good integration may be as simple as hearing about a bad trial result and saying, “How can I help?”

For cases at the appeals stage, there are many different ways for an appellate lawyer to help. If I hear that one of my partners has an oral argument coming up, I offer to help him or her set up a mock argument. I can also help to advise the team and the client about the particular court, work through issues of appellate procedure or strategy, or review and comment on drafts of briefs.

After the appeal is decided, I can consult with the team or the client about whether to petition for certiorari or other discretionary review, how to solicit amici to support the petition, and how best to frame the case to make it most attractive to the reviewing court. I have heard many clients say how much they have appreciated having their trial lawyer bring in an appellate specialist to consult in this fashion, even when the trial lawyer is continuing to first-chair the case on appeal.

I also offer to help while the case is still at the trial level. Post-trial motion practice is an obvious time to involve or consult with an appellate lawyer, as that is often when the issues are framed for appeal. Moreover, many of my trial lawyer partners find it valuable to have an appellate lawyer “on the ground” during the trial itself—to look at jury instructions, attend to questions of issue presentation, and make sure key legal issues are presented with an eye toward success on appeal. In large or complex litigation, I frequently offer to help before trial as well, in motion practice at the pleading stage, at class certification, or on summary judgment. At my firm, we call this kind of work “critical motions practice,” and it is frequently my first introduction to a particular client or matter.

This strategy of offering to help is important for developing external clients as well as internal ones. In many of my matters, I am retained to supplement an existing team. Either I come in as motions counsel in a matter where another firm has already been retained, or I am brought in as appellate counsel to work with the firm that handled the trial. In each instance, collegiality is everything. Both my client and my new colleagues in the case need to understand that I am there to help—not to step on toes or elbow anyone else out of the way.

Collaborate with the Marketing Department

One great advantage of practice in a large law firm is the availability and expertise of professional marketing staff. These professionals can be a tremendous resource.

Again, the first step is education and building relationships. It’s critical to make sure the marketing staff understands what appellate practice is, how it works, and the most valuable kinds of profile-building activities. In addition to the obvious—like preparing responses to RFPs and publishing high-quality promotional materials—our marketing staff helps us to identify opportunities with key clients, to monitor the cases within the firm that are heading to trial, to encourage our partners to include appellate expertise in client proposals, and to help us to spread the word (both inside and outside the firm) when we handle high-profile appeals and amicus briefs.

We are also able to work together on publications, including periodic updates on important business cases in the U.S. Supreme Court. With our professionals’ excellent management of the publications process, I and my colleagues can focus on the substance of these pieces, bringing what we hope is valuable information to our business clients.

Develop and Market Substantive Expertise Too

In our firm, each appellate lawyer focuses not only on appellate practice in general but also on one or more substantive areas of law. We call this “Appellate AND.” In my case, the “AND” is securities fraud defense, professional liability litigation (particularly for auditors), bankruptcy and insolvency-related litigation, and copyright law. One of my appellate partners tends to focus on class action defense, punitive damages, preemption, and patent law, while another tends to focus on cases involving banking and financial institutions. We are all appellate lawyers, but this substantive focus allows us to distinguish ourselves and gives us the opportunity to bring additional value to our clients.

This substantive focus also helps each of us to target our marketing efforts, both inside and outside the firm. I love going to conferences of appellate lawyers, but I meet more potential clients and have more speaking opportunities at conferences involving bankruptcy, professional liability, or class actions—fields in which I have handled high-profile appellate matters and can share my substantive expertise.

Understand Your Firm’s Economic Metrics

It’s no secret that the economics of an appellate practice may look a little bit different from the average partner’s practice in a large law firm. For one thing, an appeal can be relatively cheap. After a five-year-long trial litigation with three years of discovery and millions of documents, the appeal itself will generate comparatively little revenue. But whereas a single litigator may only be able to be involved in two or three large matters at a time, an appellate lawyer may have a dozen or more open files in various stages of the appellate process.

Moreover, having a successful appellate practice can be very valuable to the firm in terms of helping other partners to grow the firm’s business with their own clients. I am frequently involved in the firm’s proposals for new litigation at the trial level—with an eye toward critical motions practice or an eventual appeal—but naturally, the call soliciting the trial-level proposal generally comes to the lead trial lawyer, rather than to me. For that reason, it’s critical to understand how your firm measures and values different kinds of contributions to revenue growth.

A firm with a compensation system that is 100 percent origination-based may be a difficult environment for an appellate lawyer, as the metric may not adequately capture that lawyer’s value. In such a firm, for example, the compensation system may not reflect the revenue impact of an appellate lawyer who works to keep an existing litigation matter within the firm, even after a bad trial result. A system that values both origination and revenue retention—and that measures both new clients and expanded relationships with existing ones—will likely be a better fit. At a minimum, an appellate lawyer needs to understand his or her own firm’s system and to be prepared to explain how that system can and should recognize the unique economic value of this particular kind of practice.

In sum, while a small firm may offer a different kind of freedom and flexibility, the resources of a large firm—in terms of relationships, access to clients, marketing and support staff, and the potential for broad collaboration—can be a huge advantage to an appellate lawyer.

Keywords: woman advocate, litigation, appellate practice, large firm, building a practice, collaboration, marketing, client proposals, origination, revenue retention, compensation

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