Appellate Law

In a nutshell

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In its most basic sense, appellate law involves handling cases on appeal. The best appellate practices, however, think of it more broadly and consider sophisticated legal analysis, strategy and issue identification – even at the trial level – to be part of their core function.

Appellate lawyers, though all experts in appellate advocacy per se, often come to specialize in different areas, such as antitrust, trade regulation, state and federal taxation, corporate law, torts, punitive damages, telecommunications, labor and employment, compensation and pensions, constitutional law, civil rights, administrative law, environment, and intellectual property.

They will also often have a court-specific focus, developing expertise in state appellate courts, federal courts of appeal, state supreme courts, or the US Supreme Court.

What appellate lawyers do

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  • Evaluate the issues in the case.
  • Review motions filed by lawyers in trial court, because they tend to identify the important issues.
  • Read the trial transcript.
  • Work with trial lawyers to understand the facts of the case.
  • Conduct legal research to assess the strength of the issues raised at trial.
  • Write an 'issues memo' after the research and analysis, and consult with the client and trial lawyers to identify the most promising issues.
  • Write the brief. This process takes time.
  • Share the brief with the client and trial counsel; incorporate their comments and reactions.
  • Continue to refine the brief until it must be filed.
  • Present the oral argument.
  • Manage post-hearing steps.

Realities of the job

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  • If a firm is involved in a case from the trial level, the best appellate lawyers will pave the way in the trial courts for what they might need to do on appeal.
  • Oral argument is a relatively small part of the case. The strength of the appeal rests on the shoulders of the brief, though most clients still hire appellate lawyers based on their oral argument capabilities.
  • Producing the brief is an iterative, collaborative process between associates, who do the research and draft the brief, and partners, who help conceptualize the brief and then review, edit, and comment on it.
  • Associates must enjoy spending countless hours doing research and crafting written statements. This work decreases with seniority.
  • Unlike the more formulaic writing found in corporate documents, appellate law requires a love of language and creativity.
  • Appellate law is a highly intellectual area that involves cutting-edge legal issues. These are the cases that end up in textbooks.
  • Appellate lawyers are concerned with the law and writing briefs. Document review, document production and discovery are the domain of trial litigators.
  • Most associates will not specialize immediately in appellate work; rather they will start with general trial work and so won’t be entirely immune from document review.
  • Courts around the country are constantly issuing decisions that appellate lawyers need to keep up with, though practitioners can generally limit their focus to decisions made in the courts or areas of law that apply to their practice.
  • Judges are human. They have predispositions and find it difficult not to view a case through the lens of their biases, often frustrating even the best-laid plans.

Current issues

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  • Increasing numbers of groups, such as international trade groups and governmental organizations, participate as amici curiae in important cases pending in the Supreme Court. Amicus briefs from overseas organizations have been quoted in recent Supreme Court opinions.
  • More firms are recognizing the value of having dedicated appellate groups, as opposed to combining them with general litigation practices.
  • There is a growing preference among clients for alternative fee arrangements, putting the most efficient and fast-working associates in great demand.

What top appellate lawyers say

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Stephen Shapiro, partner and founder of appellate group, Mayer Brown

“The road to success in appellate law starts in law school, where interested students should work on a law review and take part in the moot court program. Clerking in an appellate court is important, too, as is working as a trial litigator before specializing in appellate litigation. Working in government in an appellate division is also good training. Most important, a neophyte appellate lawyer should read and listen to as many of the best briefs and oral arguments as possible.” *

“Young appellate lawyers learn a great deal from the edits of senior lawyers working on their draft briefs. They should keep those edited briefs in their files for future reference; I still have some edited drafts from my mentor, Judge Frank Easterbrook. Before every oral argument, the appellate lawyer, young or old, should go through one or more moot court sessions to get ready for the real event. Appellate judges appreciate the extra preparation.”

Evan Tager, partner and co-leader of the worldwide litigation practice, Mayer Brown

“If you like to play with language, prose and sentence structure, if you consider writing to be an art, then appellate law is a great opportunity to immerse yourself in that.”

“There is a growing preference among clients for alternative fee arrangements, which puts a premium on efficiency. This means that the best writers – those who don’t need heavy editing and instinctively know which research paths are likely to be fruitful – will be in increasing demand.”

“Oral argument is a very small part of the case, but it’s like the Super Bowl. You're wrestling back and forth with up to nine judges, getting questions from all sides. It's an incredibly adrenaline-fueled experience. It adds spice to your ordinary research and writing routine.”

*Editor’s note: sample briefs and arguments are available at www.appellate.net