In a nutshell
In simple terms, appellate law is a stage of dispute resolution. More specifically, it involves handling cases on appeal, but the best appellate practices 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. This includes the likes of antitrust, state and federal taxation, corporate law, punitive damages, telecommunications, labor and employment, 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 lawyers do
- 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
- Oral argument “is an incredibly adrenalin-fueled experience,” says Evan Tager of Mayer Brown. “It adds spice to your ordinary research and writing routine.”
- It is, however, 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.
- Prior to an oral argument, appellate lawyers should go through one or more moot court sessions in preparation for the real thing. “Appellate judges appreciate the extra preparation,” explains Stephen Shapiro of Mayer Brown.
- “The reality is that appellate work is far more people-centric than most assume,” Carter Phillips of Sidley Austin says. “You're going in as part of a much broader team, and if you're successful it's because you have the right skills to work effectively with others.”
- Appellate law is a highly intellectual area that involves cutting-edge legal issues. Phillips adds: “Those who practice appellate law tend to have remarkably strong credentials coming out of law school.”
- Associates must enjoy spending countless hours doing research and crafting written statements. This work decreases with seniority.
- “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,” says Tager.
- There is no law stating that you have to do a clerkship in order to become an appellate lawyer, but “it's much easier and a natural progression for those who have,” Phillips tells us. Working in government in an appellate division can also be beneficial.
- 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.
- “It's useful to develop a wider array of litigation skills in the first year or two,” according to Phillips. Seth Waxman of WilmerHale confirms: “I could never have been the kind of appellate lawyer that I am without putting together cases from scratch, learning how to establish facts in a trial record and developing a facility for never doing the same kind of substantive case twice.”
- Another key difference between appellate law and litigation is the considerable shift toward answering questions as opposed to asking them. This is done by “meeting the obvious questions head on in a brief, or being prepared to quickly and thoughtfully provide answers to questions that judges ask during oral advocacy,” says Waxman.
- 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 – although this is less of an issue in the Supreme Court compared to the lower court levels.
- Appellate lawyers are being brought onto cases at increasingly earlier stages such as immediately after jury verdicts or even when winning a case starts to look unlikely. Some clients are even requesting that an appellate lawyer be staffed from the get-go, with the purpose of keeping an eye on potential appeal strategies. Specialised appellate lawyers have also become increasingly common in recent years.
- The death of Justice Antonin Scalia has weakened its far right, conservative strength among Supreme Court Justices. The appointment of a new justice will shift the balance among the Justices so the nomination process was always going to be hotly contested; at time of going to press, Merrick Garland is the nominee Republicans and Democrats are preparing to do battle over. Areas most likely to be affected by the changing makeup of the Supreme Court Judges are class actions and arbitrations, which have previously seen decisions revolve toward a pro-business.
- Numerous new 'pro se' or 'pro bono' appellate programs have been developed throughout the country over recent years, to tackle the influx of self-represented civil litigants in appellate courts and to improve efficiency in this regard. Public Counsel operates two clinics to assist pro se litigants: the Appellate Self-Help Clinic and the Federal Pro Se Clinic.
- In Texas, a trend has been observed: the state's leaders are increasingly turning to appellate litigators to fill top government legal positions. Former Texas Assistant Solicitor General Jimmy Blacklock was appointed general counsel to the incoming governor, while another alum of the Texas Solicitor General's office, Brantley Starr, was appointed the new Deputy Attorney General for Legal Counsel. These big-shot appellate litigators were appointed because of their ability to handle the thorniest of legal issues: an ability which had been honed thanks to the complex issues generated within the Appellate Bar. Whether this trend will surface in other states remains to be seen, but it indicates something about the potential career progression of a successful appellate lawyer, and the value of handling intricate appellate cases.
*Editor’s note: sample briefs and arguments are available at www.appellate.net
Advice from the appellate law gurus
Carter Phillips, partner and chair of the firm's executive committee, Sidley Austin:
“If you're coming out of law school, get a clerkship with an appellate judge because there's no better way to understand the process than to spend a year on that side of the ledger. After that, the critical mass of the practice is in Washington DC, so you should start out there if you really want to be an appellate lawyer.”
“It's also good to spend time in government, as it's a great proving ground for developing appellate skills. And if you can land a spot in the Solicitor General's office, you will have the opportunity to argue before the US Supreme Court – and that's pretty heady stuff.”
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. 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.”
Seth Waxman, chair of the appellate and Supreme Court litigation practice group, WilmerHale:
“You certainly need to have a real affinity for quiet solitary work. It's not the life of the academic, but some aspects are much more solitary than many other types of law practice. I always have my door open and I spend a lot of my day wandering in and out of colleagues' offices, as I tend to work better in a collegial setting. But at the end of the day, when you're talking about writing or preparing a brief, or preparing to argue a case, there is no substitute for spending a long time on your own with the door closed and focusing your mind in a concentrated way. To be fulfilled and successful as an appellate lawyer you have to have an appreciation for quite a different way of working.”