Building an appellate practice poses an unusual set of challenges. Until you have an established appellate practice, you are unlikely to receive a call directly from a potential client. You need to convince other attorneys, whether inside or outside your firm, to bring you aboard. That’s a tall order, because lawyers’ typical instinct is to keep as much work to themselves as possible. And you’re in competition with the top lawyers at national firms.
Lawyers can and do succeed in building appellate practices, even if they didn’t clerk for a federal appellate judge and don’t work for an AmLaw 100 firm. Obviously, you need to be a top-notch writer, constantly striving to improve. But great writing isn’t enough.
This article, which I first presented at the DRI Appellate event in February 2016, proposes three main steps. The first step is to approach the process with the right frame of mind. Second, you need to craft your pitch to other lawyers for referrals. Finally, looking to the long term, you should work to build the appellate community and to establish your place in that community.
Step 1: The Right Frame of Mind
A. Set Attainable Goals
At the outset, you should identify your bailiwick. Federal appeals carry more prestige than state appeals, but your competition is formidable. None of the federal circuits requires a lawyer to be admitted in any state within the circuit, or to maintain an office in the circuit. That means you’re competing with national firms with appellate practice groups staffed by former U.S. Court of Appeals and Supreme Court clerks. They don’t need local counsel. As a practical matter, you’re more likely to distinguish yourself through practice in your home state’s appellate courts.
That means you should learn everything you can about your state appellate courts. Clients and referral sources are going to want to know the general tenor of the state’s decisions, not just what the law says. Read as many of the state’s published decisions as you can, as they come down. Know the state appellate rules, backward and forward. Follow proposed changes to the rules.
Write about your state’s appellate courts, whether on blogs, in law reviews (especially online companions), in state bar publications, or local legal papers. There probably is far too little coverage of your state supreme court, and almost certainly of your state’s intermediate appellate courts. By writing about your state’s appellate courts in a thoughtful, respectful way, you can quickly draw attention from the bench and bar. If you’re worrying about where to publish, the DRI Appellate Community accepts guest blog posts.
You shouldn’t abandon dreams of federal appeals. But, given the competition for paying work, building a federal appellate practice is likely to involve a significant amount of unpaid or low-paying work, such as criminal or immigration appeals. State appeals present the more likely path to a sustainable appellate practice.
B. Be Adventurous
If you want opportunities to argue appeals, you can’t worry too much about subject matter. Many attorneys are terrified of taking criminal appointments or civil cases touching on specialized subject areas like ERISA. To satisfy your duty of competence, you can consult with subject-matter experts (especially trial counsel) and take (likely non-billable) time to review the literature.
You cannot be concerned with your win-loss record. If an attorney is bragging about his or her undefeated record, he or she probably doesn’t represent criminal defendants, habeas petitioners, or (depending on the circuit) federal appellants on a regular basis.
If you’re intent on getting before the Supreme Court early in your career, there is one way to compete with the big firms. When a case comes along with a clear shot of certiorari, or when the Court grants certiorari in a case where a solo practitioner or small firm represents one side, large firms will swoop in and offer to represent one side, often pro bono. But there will be a hitch – they take control of the briefing and oral argument. You don’t need to impose that condition. You can offer to be “on brief,” and to let existing counsel argue. Through that path, I once joined a solo practitioner on brief in a case that he argued. I don’t know if I’ll ever get a chance to argue in the Supreme Court, but if I do I’ll be very happy that it won’t be my first time at counsel table.
C. Check Your Ego
Though appellate courts sit above trial courts, appellate lawyers aren’t above trial lawyers. Rather, appellate lawyers bring a more narrowly focused skill set to bear. Trial lawyers remain the subject matter experts, and you should try to get as much wisdom from them as you can.
In general, appellate counsel’s job is to take the same points trial counsel made and restate them in a way that makes trial counsel’s strategy look as good as possible. Unless you’re in a state court with forgiving preservation rules, don’t spend too much time fretting over trial counsel’s failure to preserve an argument or trying to shoehorn new arguments into the case. It’s obnoxious and unproductive, and it does not make you, trial counsel, or the client look good. That’s especially true in an appeal following a trial. A trial is hard work, and trial counsel’s goal is to win in front of the fact-finder without needing to rely on the long odds of winning on appeal. (With that said, top-notch teamwork may help to get you some “embedded” trial work down the road.)
D. Embrace the Fixed Fee
The chief obstacle you’re likely to face is client concern regarding the cost of bringing appellate counsel aboard. It takes time and money to orient a new attorney to the case. Appellate attorneys are typically generalists, who may need to learn the subject matter. An easy way to deal with these concerns is to negotiate fixed fees for each appellate representation.
Corporate clients, by and large, love fixed fees. Such fees make budgeting markedly easier. Trial court litigation is less amenable to fixed fees, given the many different points in the process where the case could end or take wild turns. Appellate work involves a small number of discrete events, making it well-suited for fixed fees. Once you make a proposal for a fixed fee, the client can make a decision free from fear of the economic unknown.
Step 2: Referrals
A. Referrals from Colleagues
Speaking with prominent appellate advocates, I’m surprised at how hard they often find it to convince their own partners to refer cases to them. Below I provide some advice, based on my pitch to my own partners.
First, stress that your colleague can still argue the case even if you write the brief. If you insist on arguing every case where you write the briefs, you’ll shut yourself out of a great deal of work and experience. Yes, you’ll lose out on the reputational value of an oral argument. But there remains great value in “on brief” experience.
Second, you can take on as large or as limited a role as your colleague thinks appropriate. As Texas Supreme Court Justice Don Willett likes to say, lawyers should worry more about mooting their briefs than mooting their oral arguments. If your colleague gives you a copy of a draft brief a week before the deadline, you can read it cold to gauge how a judge or clerk would react. Depending on how much value you add, you may wind up being listed on the brief, giving you another line on your appellate résumé.
Third, you’re not looking to take appellate experience from others in your firm. Associates and partners need experience briefing and arguing appeals. You can help outline the issues for an appeal or review drafts.
Fourth, you can work around client concerns regarding overstaffing. You won’t want to put more than a few hours into a case if your time is going to be written off. But a client may be willing to pre-authorize a few hours for limited purposes. And, even if your colleague writes off an hour you spend consulting on an appeal, there is future value when a potential client asks what experience you have with appeals in a certain court or involving a certain subject matter.
Finally, it helps the firm as a whole if your colleagues refer their appeals to you. A vote of confidence from your own colleagues has the most value in building your reputation. An appeal may provide an opportunity to place the firm’s product before a company’s general counsel, thereby getting a foot in the door for trial work or transactional work that you will gladly refer to your colleagues.
B. Referrals from Attorneys Outside Your Firm
The pitch to outside attorneys is similar to the pitch to in-firm colleagues, but it requires much more networking. Meeting other appellate attorneys is important, but it should not be your exclusive focus. There are only so many cases that your friends at the appellate bar can or will refer to you, particularly if your friends have in-firm referral sources. You’re more likely to get referrals from trial lawyers, particularly solo and small-firm practitioners.
Within trial attorney circles, you’ll find more attorneys who approach appeals with a sense of fear, loathing, or boredom, or who cannot find the time to write a brief amidst their trial and deposition schedule. You’re probably more likely to get a referral from an attorney you meet at a specialty bar function for employment law trial lawyers than from a lawyer you meet at an appellate event.
If you practice in a state that certifies appellate practice as a specialty, such certification can be a good way to draw in outside referrals.
C. Direct Engagements from Clients
As you build an appellate practice, you’re more likely to get calls directly from clients. Savvy clients may, for instance, reach out to numerous potential appellate counsel and request proposals for the work. Your best move in that situation is to seek wisdom from trial and corporate attorneys who are more accustomed to competing in such “beauty contests.” They’ll tell you, for instance, to learn as much as you can about the potential client, its business sector, and its culture – not just to learn about the particular case. Getting that particular case isn’t your only goal. You want to make a good impression, so that if another firm gets the case you’ll still be invited back the next time.
In meetings with potential clients, it is all the more important to keep your ego in check. If a client contact (particularly in-house counsel) is hands-on enough to conduct a search for appellate counsel, he or she is likely to have been involved in tactical decisions at trial. Overemphasis on unpreserved issues can needlessly embarrass the client, not just trial counsel.
D. Non-Traditional Engagements
It is important to keep an eye out for ways in which the role of appellate counsel is evolving. Non-traditional engagements – i.e., work other than briefing and arguing pending appeals – can create more work today and a pipeline for future work.
I’ve previously alluded to “embedded” work, assisting trial counsel with matters like evidentiary objections, proffers, jury instructions, and motions for judgment. But appellate counsel are becoming involved earlier and earlier in the process. Where a case seems a likely candidate for appeal, appellate counsel can assist before a complaint or answer is even filed. You can help formulate strategy at the outset and draft dispositive motions. For example, in federal litigation, certification of questions to a state supreme court may be in your client’s interest – and, if the state supreme court permits certification by a federal trial court, you may need to request certification at the trial level instead of waiting until the appeal. Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C. Cir. 1988). For an excellent overview of how appellate counsel can assist trial counsel at all stages of litigation, I recommend reading Traci L. Lovitt & Emily E. Gianetta, Issue Preservation: Protecting the Record on Appeal, Practical Law: The Journal 33–42 (Dec. 2015 / Jan. 2016).
“Issues” work is another growth area for appellate attorneys. Many national firms’ websites refer to their appellate practices as “Issues and Appeals.” For example, if a legal issue is of great institutional importance to a client, the client may want to consult with appellate counsel for how best to approach the issue, whether through strategic litigation (including amicus briefs) or lobbying. A risk-averse client may want clarity on unsettled state law, regardless of the outcome. You can advise such a client not to settle or remove state court cases, enabling a case to go up through the state appellate courts.
Step 3: The Long Game
A. Build a Name Through Twitter
If you’re an appellate lawyer, you should be on Twitter. It’s where appellate lawyers, influential commentators, and even some appellate judges mingle in real time. If you’re not familiar with Twitter, it is a platform for micro-blogging. Posts are no more than 140 characters. The ideal post includes a link to an item of interest, along with a brief comment. You can “retweet” another’s post, which all of your followers will then see. For some useful basics, see Jeff Bennion, A Lawyer’s Guide To Social Media (Part 1): Twitter, Above the Law, Nov. 10, 2015, http://goo.gl/so4SC9. The general goal is to follow influential people and convince them to follow you back. I have a few pointers specific to appellate lawyers.
First, pick a Twitter handle consistent with the practice you’re building, so people know whether you’re covering a subject matter that interests them. My handle is “@MDAppeal.” Using your name as your handle is redundant, since your name will still appear alongside your handle with each Tweet. People will still learn your name.
Second, keep snarky comments to a minimum. Yes, comments at others’ expense stand the greatest chance of multiple retweets. But avoiding making enemies is just as important as making friends in building a practice. If you want to correct someone, you can send them a private message. If you want to embarrass someone, don’t.
Third, make sure to follow individuals along the whole range of the political spectrum – but avoid getting drawn into heated partisan debates. You’ll likely need to represent Democrats and Republicans alike if you’re building a private practice. Your Tweets will be available for everyone to see, and partisan statements may color potential clients’ views of your intelligence and judgment.
Finally, and most importantly, there is no better way to build goodwill for yourself than to work for others’ success. When you think of something nice to say about someone, say it publicly. Cheer for them, and they’ll cheer for you.
To give you a head start, you can subscribe to the #AppellateTwitter list or follow the members appearing on the list. You should also follow @DRIAppellate, which Retweets designated DRI members' links to federal appellate cases.
B. The Amicus Brief Is Your Friend
If you are in a federal circuit (such as the Third, Fourth, and Eleventh) that decides more than 90% of its cases without argument, it can be hard to add federal appellate arguments to your résumé. And, to be a leader of the appellate bar, you ultimately will need opportunities to argue before your state’s highest court. A great way to draw attention to your federal brief or your certiorari petition is for an interest group to file an amicus curiae brief.
For most cases, it is not hard to find a group that would be happy to join an amicus brief. The hard part is finding counsel willing to author the brief for little to no money. If you are counsel for a federal litigant, FRAP 29 prevents you from authoring an amicus brief, in whole or in part (although state rules may differ). It is perfectly ethical, however, to build good karma by offering to author a pro bono amicus brief for a another attorney – in the hopes that the attorney will then author one for you down the road.
C. Building an Appellate Community
Building an appellate practice is not a zero-sum game. You might survey the landscape, see few instances where clients are looking to bring appellate counsel aboard, and decide that your success can only come at the expense of the other attorneys competing for those few opportunities. In the long term, however, helping to build a robust appellate bar is good for your own practice.
To take an easy example, imagine two cases where a trial court enters summary judgment against a plaintiff on a million-dollar claim. In one case, the plaintiff pursues an appeal, represented by the same trial counsel. In the second, the plaintiff hires a prominent appellate practitioner. In which situation do you think the defendant is more likely to hire appellate counsel?
A thriving appellate bar is good for clients, not just for you. The better the quality of appellate advocacy, the less likely courts are to take unexpected sua sponte paths to rescue the other side’s client from poor advocacy.
This is just one lawyer’s view, so please take everything I’ve written with a grain of salt. There is no one way to build a practice. But with the right frame of mind, a well-planned approach to referrals, and an eye to the long game, you’ll increase your chances of building a strong appellate practice.