Appellate

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. “To be a good appellate lawyer is to have a set of skills that cross-cut substantive areas in the law,” according to Kathleen Sullivan of Quinn Emmanuel Urquhart & Sullivan.

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 adrenaline-fueled experience,” says Evan Tager of Mayer Brown. “It adds spice to your ordinary research and writing routine.” Practicing appellate lawyers often note this as one their favorite parts of the job, with Sullivan noting: “There can be nothing more thrilling than distilling an entire appeal down to oral argument an appellate lawyer will make.” 
• 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. As Sullivan notes, “it can take longer to write a shorter brief. It is a skill to argue in a more succinct and attention-grabbing way,” one which must be developed by aspiring appellate lawyers.
• Prior to an oral argument, appellate lawyers should go through one or more moot court sessions in preparation for the real thing – the extra preparation may go a long way with appellate judges.
• “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.” According to Kannon Shanmugam of Paul, Weiss, the role of an appellate lawyers is to “research legal questions, but also policy arguments. It is important to develop these skills early in your career.”
• 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. Shanmugam elaborates: “A clerkship is important. I don't think it's a requirement, but having done an appellate clerkship is useful to understand how appellate courts operate and their internal mechanisms and structures.”
• 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.

Current Issues

June 2023

•        In an economy bouncing from crisis to crisis, we have seen an uptick in all litigious activity. Appellate work is likely to see growth as bankruptcy litigation cases develop.
•        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. Specialized appellate lawyers have also become increasingly common in recent years.
•        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 March 2022, the USPTO launched the PTAB (Patent Trial and Appeal Board) Pro Bono Program, which sees volunteers offering their appeal experience to inventors that apply for assistance.
•        As of April 2023, President Biden has made 118 district and court of appeals appointments. Over 75% over Biden’s nominees are women, and over two-thirds are non-white. The confirmation of Judge Gina Méndez-Miró, who is also the first openly LGBTQ+ judge on the court, marked the shift to a Democratic majority of appointees.
•        In January 2022, a case from 2019 was revived in the US court of appeals between airplane company Boeing and Seafarers Pension Plan. The pension group alleges that Boeing published misleading information leading to several fatal crashes and the grounding of all 737 MAX airliners, causing $20 billion in losses to the company. Originally this case was dismissed by a US District Court judge in Chicago, citing that the case should be heard in Delaware. However, the Court of Appeals overturned this decision. In December 2022, the District Court for the Northern District of Illinois ordered a $6.25 million payment to Seafarers.
•        In February 2023, New York’s Supreme Court appellate division rejected Fox News’s request to dismiss their $2.7 billion defamation lawsuit. The network was accused of spreading false rumors that a voting technology company had stolen the 2020 election from former president Donald Trump. Smartmatic brought the case against Fox News and, as of the time of writing, will continue their lawsuit against multiple Fox News anchors and Trump attorney Rudy Giuliani.
•        Legislative and executive powers may continue to be at odds in the appellate courts, especially with regard to emergencies such as those brought about during the pandemic (e.g., mask mandates). The Justice Department in January 2023 asked the 11^th Circuit Court of Appeals to reverse the April 2021 decision that mask mandates on public transportation were unlawful. The initial ruling had found that the CDC (US Centers for Disease Control and Prevention) did not have the legal authority to issue a travel mask mandate, which can be legally enforced as opposed to a recommendation or guideline.
•        Arguably one of the most high-profile rulings by the US Court of Appeals this year was the reversal of a Florida federal judge’s decision to prohibit the FBI’s use of the majority of documents seized from former President Donald Trump’s Mar-a-Lago estate.
•        In April 2023, a federal appeals court panel upheld the obstruction charge used against the Jan 6 Capitol rioters who assaulted law enforcement officials. This comes after the charges was dismissed by US District Court Judge Carl Nichols – a Trump appointee. It’s likely this decision will give rise to further litigation as the matter is far from being settled, and may even reach the Supreme Court.
•        Further on the fallout of the Jan 6 riot, in April 2023, ex-president Trump lost an appeal to prevent Mike Pence, Trump’s vice president during his time in office, from testifying in relation to the Jan 6 investigation. The ex-vice president is considered to be a key witness in Trump’s unlawful attempts to reject electoral college votes during the 2020 presidential election.
•        As of April 2023, the US Department of Justice has lodged an appeal to the Supreme Court to overturn a decision made by a US District Judge Matthew Kacsmaryk (Texas) to put a stop to the approval of mifepristone, the most common abortion medication in the US since FDA approval in 2000.
•        In March 2023, Ghislaine Maxwell launched an appeal to the 2^nd Circuit of Appeals in Manhattan to overturn the sentencing for her involvement in Jeffrey Epstein’s sex trafficking case.

Advice from the appellate law gurus

Carter Phillips, partner and former 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.”

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.”