So You Want to Be an Appellate Lawyer?

Vol. 32 No. 5

By

Brad Pauley (bpauley@horvitzlevy.com) is a partner at Horvitz & Levy LLP, the oldest and largest law firm in the country devoted exclusively to civil appellate litigation.

For those who enjoy the intellectual aspects of the practice of law, there are many good reasons to become an appellate lawyer. Working with the law, applying it to the facts of your client’s case, and taking the time to craft arguments to persuade learned jurists to rule in your client’s favor are as satisfying pursuits as the legal profession affords. That the resulting decisions often become precedent that might one day be cited by our grandchildren means that appellate lawyers can rightly be said to practice law not only for the benefit of their clients but for the public good and for posterity. When one considers the other benefits of an appellate practice, such as longer, more flexible deadlines, no discovery, and few unpleasant interactions with opposing counsel, it is easy to understand why many attorneys and law students seek to develop an appellate practice. But it cannot be gainsaid that, for most, the skills of an appellate lawyer are hard-won. Nor can it be doubted that developing an appellate practice can be a daunting challenge.

I have practiced law for nearly 19 years. I have spent more than a dozen of those years as a full-time appellate lawyer in a 30-lawyer firm with an exclusively appellate practice. (Horvitz & Levy LLP is the oldest and largest firm in the country devoted exclusively to civil appellate litigation.) Aspiring appellate lawyers frequently ask me how to develop a full-time appellate practice. As a partner at Horvitz & Levy and chair of two major appellate bar organizations, I know a great many appellate lawyers with a broad variety of backgrounds and practices. As a result, I do have some thoughts to share, both about what makes a good appellate lawyer and about how to become one.

What Makes a Good Appellate Lawyer

Let me start by emphasizing what is not required to be an appellate lawyer. No particular outlook or social background is required. I have known equally skilled appellate lawyers who advocate the rights of Guantanamo detainees and those who advocate the rights of states to refuse to recognize same-sex marriages. I have known appellate lawyers who devote their time to advancing the causes of struggling pro se litigants and those who advocate economic freedom and deregulation as the highest good. I also have known appellate lawyers who have had every advantage in life and those who have always had to struggle. Needless to say, in some ways the gulf is vast between the stars of the U.S. Supreme Court bar in Washington, D.C., and the practitioner who debates whether to accept a mundane appeal to make ends meet.

And yet, all good appellate lawyers have certain characteristics in common. These include, first and foremost, a passion for the law and its development. Hopefully, all lawyers take the law and their professional responsibilities seriously. But one cannot be a good appellate lawyer unless one holds the law and professional ethics to be paramount. Any lawyer who makes winning more important might be tempted to cut corners, misstate the record, mischaracterize authority, or otherwise take shortcuts to win. It is the particular nature of appellate litigation that such lapses are usually uncovered by courts that have the time and the inclination to review the record, to read the cases, to scrutinize the statutes, and to prepare the hard questions for oral argument. And because the appellate world is small—even in Southern California—an appellate lawyer’s reputation, once impugned, is not easily repaired. All good appellate lawyers I know are not only scrupulously honest with the courts but are equally so with their colleagues and their clients.

Such honesty must be paired with, and indeed may be the essential element of, another quality all good appellate lawyers share: a capacity for critical reasoning and detached assessment. This trait is vital to the life of an appellate lawyer in at least two ways.

Detached, critical analysis. First, an appellate lawyer must be able to critically analyze his or her client’s case. Some lawyers approach their cases with bravado and promises of easy and complete victory. This mind set and its accompanying enthusiasm certainly have their place in the hurly-burly world of litigation and trial. But an appellate lawyer must think and act differently. He or she comes to the case after the damage has been done, after the verdict has been read and the judgment has been entered—in short, after a winner and a loser have been declared. At this point in the proceedings, it is knowledge of the substantive law and the applicable procedures, combined with a circumspect detachment and candor, that are called for.

This is because, while many attorneys might feel duty-bound to assert every conceivable claim or defense to determine what will gain traction, the craft of an appellate lawyer is precise. To prevail on appeal of an adverse judgment, an appellate lawyer cannot, indeed must not, simply identify every conceivable argument for reversal and then raise them all in the hope that at least one will be effective. A lawyer representing an appellant must survey the remains of the client’s case in the trial court, examine the entire record and all applicable law, and then, from those often-imperfect materials, fashion a spear and hurl it with conviction at the tiny bull’s-eye painted on the judgment. That spear is the appellant’s opening brief. Similar considerations apply for the lawyer representing a respondent or appellee on appeal, although the issues are then framed by the opponent’s brief and the goal is to defend the actions of the trial court and persuade the appellate court to affirm the judgment.

Because they frame the issues on appeal, the arguments raised in an appellate brief are, of course, critical to success. But so, too, is what a brief does not say. As I have heard countless appellate judges observe over the years, no case, no matter how complex, presents a dozen or more valid grounds for reversal of the judgment. The seasoned appellate lawyer knows that almost no case presents more than three or four compelling grounds for reversal, usually fewer. So rather than weighing down a brief—and boring or even annoying the appellate court—with contrived arguments with no real prospect of success, the experienced appellate practitioner carefully selects the few good arguments worthy of inclusion in the brief. To continue with the spear analogy, it is the expertly crafted but unadorned spear, and not the one weighed down with useless ornaments, that is most likely to reach its target.

Persuasive writing. Second, a capacity for critical reasoning and detached assessment is essential to the primary task of an appellate lawyer: persuasive writing. All appellate advocates will agree that oral argument matters only occasionally and at the margins; the vast majority of appeals are decided on the briefs. And when it comes to crafting a persuasive appellate brief, what matters are: (1) a short, punchy introduction that conveys your client’s position and the relief sought; (2) an accurate, informative, and crisply worded statement of facts that leaves the reader wanting to rule in your client’s favor even before reading the legal arguments; and (3) legal arguments for reversal or affirmance that are presented with clarity, brevity, and demonstrated support in both the applicable law and the record on appeal.

But it is not enough to draft a brief with these elements and then push back from the desk. A first draft is but the beginning. Once a brief’s author completes an initial draft, he or she must continue to employ that same critical eye and discerning intellect. A good author must self-edit at length, questioning the draft’s arguments and structure. He or she must also look to reduce the brief’s length and increase its persuasiveness by employing the active voice, shortening and tightening sentences, eliminating ambiguities, and omitting excessive string citations. So at this stage, too, what matters is not only what the brief does say, but what it does not. And no matter how beautifully written a passage, if it does not serve the brief’s larger purpose, it must be omitted. In making this analysis, the author’s self-interested regard for his or her creation can weigh nothing in the balance.

The author’s ego also should be set aside for the next stage of the writing process: editing. While the life of an appellate lawyer is often a solitary existence, it is essential to good writing to submit one’s written work to the scrutiny of other, often seasoned, appellate lawyers before it is ever filed with the courts. In that editing process and the associated dialogue about the arguments and structure of the brief, the good appellate lawyer must strike a balance. On the one hand, he or she must adhere to, and advocate for, strongly held views concerning arguments, structure, authority, and strategy. But the author also must be open-minded and willing to accept the proposed changes and constructive criticism of the editor. In this process, too, pride of authorship can only be an impediment. The quality of the final written product is the only relevant consideration.

Knowledge of the appellate process and standards. A capacity for critical reasoning and detached assessment is necessary but not sufficient to be an appellate lawyer. Another factor critical to success is thorough knowledge of applicable appellate procedure. Most appellate lawyers are generalists, so they must learn the substantive law applicable to each case, drawing on their experience, their research skills, and the shared wisdom of their colleagues. But a good appellate lawyer must be intimately familiar with all aspects of appellate procedure in his or her jurisdiction, from the time for filing the notice of appeal, to procedures and deadlines for designation of the record, brief formatting requirements, and oral argument procedures. This is simple to state, but the need for ready familiarity with such procedural rules is brought home to appellate lawyers every day in countless ways.

An appellate lawyer needs to know much more, however. Few factors are more critical to success as an appellate lawyer than a thorough understanding of all applicable standards of review. At this stage, many readers’ eyes may lose focus as they vaguely recall the portions of appellate opinions they typically skim over. But a deep understanding of how standards of review work and how they will apply in a particular case is what sets an appellate lawyer apart from most other lawyers, impacting the prospects for success at every stage of the proceedings. More than any other single factor, for example, the applicable standard of review dictates which issues and arguments are selected for inclusion in the opening brief. Why, for example, present an argument subject to a deferential “abuse of discretion” standard of review if you can present a pure issue of law that the appellate court will review “de novo,” without deference to the lower court? Likewise, many an advocate has sealed an opposing appellant’s fate by pointing out the opponent’s argument is subject to a “substantial evidence” standard of review, and that sufficient evidence was presented below to sustain the challenged finding.

How to Become an Appellate Lawyer

Having now surveyed some of the most important skills of an appellate lawyer, the question remains, how does one acquire and refine these skills? The answer, of course, is to build and maintain an appellate law practice because, in truth, these skills can only be acquired by doing. But while this is simple to state in the abstract, the reality of carving out a niche for oneself as an appellate lawyer is challenging for most. This is largely because many lawyers prefer to hold onto their appeals even when it would be advisable to involve an appellate specialist who could bring a fresh perspective and a different set of skills to the case.

The complex challenge of building an appellate practice varies greatly with a lawyer’s background and level of experience. But it boils down to two interrelated considerations: establishing one’s appellate bona fides and acquiring and handling appeals.

For a small but fortunate minority, their appellate reputations are conferred upon them, frequently at the outset of their careers. These are the typically talented lawyers who clerk for federal and state appellate courts, either as term law clerks or as career staff attorneys. Working closely with esteemed jurists to craft appellate opinions has long been viewed as the surest way to launch a career as an appellate lawyer in private practice. Such experience can be invaluable in helping a budding lawyer to know how justices think, and it provides a sound basis for later claiming appellate expertise in interactions with both trial lawyers and potential clients. To state the obvious, appellate law firms and practice groups seek out such former clerks and staff attorneys when looking to hire new associates, and these candidates often have a decisive edge over other applicants.

But let’s be frank. This narrow avenue of establishing one’s appellate bona fides is not open to most aspiring appellate lawyers. Law clerk and staff attorney positions are hard to come by. So how else can one build an appellate reputation?

Certification as an appellate specialist is the next best option, at least in states where certification is available (including California, Florida, and Texas). Typically, state bars require applicants for certification to establish their knowledge of appellate procedure by passing a written examination. Applicants also must demonstrate that they have prepared a designated number of appellate briefs and have presented oral argument a number of times. Such certification requirements seem reasonable on their face. But they do present aspiring appellate lawyers with a Catch-22: If you need certification as a specialist to obtain referred appeals, how do you acquire the appeals necessary to satisfy the certification requirements?

It is not easy, but here are some ideas. First, there are plenty of pro se litigants in need of representation on appeal. Taking on such people as pro bono clients not only provides a needed service to them and to the courts, it serves the aspiring appellate lawyer by helping him or her to become certified. This is a win-win-win situation. The Ninth Circuit, for example, has a pro bono program through which volunteer attorneys can sign up to receive e-mail notifications concerning pro se appeals in which the court has determined that briefing and argument by counsel would benefit the court’s review.

Second, a similar and often overlooked way to obtain appellate experience is to handle criminal appeals. Even if you want to handle civil or family law cases later on, keep in mind that the certification requirements typically do not discriminate. Appellate briefs and arguments in criminal cases will satisfy the requirements. So inquire whether your state has a centralized agency (such as the California Appellate Project) for assigning attorneys to criminal defendants and convicts in need of appellate representation. Who knows, you might even get paid for your work.

Third, a lawyer in private practice can simply start to develop expertise and then hold himself or herself out professionally as an appellate lawyer. For this purpose, online marketing can be useful, especially in a small legal market where the number of appellate experts may be few. The same basic approach can work for an attorney in a law firm. Inform your firm colleagues that you are developing your appellate expertise and that you want to handle their appeals or assist them with their appeals. In these ways, over time, clients and colleagues will refer more and more appeals to you, and eventually you will satisfy the certification requirements while continuing to gain experience.

Finally, regardless of how you first establish a reputation and practice as an appellate lawyer, constant effort is required to build and renew that reputation and practice. You must maintain and foster both your expertise and reputation as an appellate lawyer at every opportunity. So, once you have garnered sufficient knowledge, write articles about topics of interest to appellate lawyers, volunteer to speak on CLE programs, or establish an appellate-oriented blog and contribute to it regularly. Become active in local, state, and national appellate bar organizations, which will keep you connected to recent developments in appellate procedure and the concerns of the broader appellate bar. Never rest on your laurels thinking you’ve “made it” as an appellate lawyer. To paraphrase the humorist Art Buchwald, like the rest of the appellate bar, you’re only as good as your last brief.

Advertisement

Advertisement: LawPay: The Way ABA Attorneys Get Paid

 

 

MyCase. Start your free trial. More billable hours. Everything all in one place.
Thomson Reuters ad. Put accurate law into action. Practical Law helps you move forward with fearless confidence. Request a free trial. (right arrow). Thomson Reuters logo. Thomson Reuters. The answer company.


  • About GPSolo magazine

  • Subscriptions

  • More Information

  • Contact Us