I sometimes hear people ask: How can one break into appellate lawyering, which many people find especially satisfying? So I asked some friends and colleagues, and thought I'd pass along the answers I got.
From Evan Tager, co-chair of the appellate and Supreme Court practice group at Mayer, Brown, Rowe & Maw (the firm with which I'm a part-part-part-time academic affiliate):
Generally, firms like ours prefer candidates who were on law review and had a prestigious appellate clerkship. We will look at the writing sample to get a sense of the candidate's writing style.
There are probably about ten to fifteen firms that have legitimate appellate practices, by which I mean one or more attorneys who do more than simply write briefs for the litigation practice. I guess the two sets of rankings identify most of those practices.
Some firms do indeed engage in bait and switch. We try not to. We are very candid with our recruits that they would be part of a "pool" and would be expected to assist a wide range of litigation partners, not just appellate partners. That said, the reality is that, if they hit the first pitch they see out of the park, they are going to see a lot more pitches. (In this way, Mayer Brown is not like a baseball team.)
From Tom Watson, a UCLA Law School classmate of mine (class of 1992), who works at Horvitz & Levy, a leading L.A. appellate firm:
Since my route to an appellate practice was unusual, I asked for input from our associates. They uniformly recommend securing an appellate clerkship (or two)[:] ...
1. Joining a large law firm with an appellate group may be a good way for a new associate to get a taste of appellate work and to see whether he or she enjoys appellate work. Joining a large law firm with an appellate group is not a good way to do 100% (or even 75%) appellate work. Appellate groups in large law firms tend to be ancillary; the bulk of the work (and billable hours) are generated from the litigation group. If the appellate group happens to get a couple of big cases, the work will be performed by the lead appellate partners. So, even if an associate belongs to the appellate group, he or she will likely spend a lot of time working on non-appellate matters.
Spending a couple of years at a large firm for general litigation training (a good thing no matter what route one takes), and then finding a boutique law firm that specializes in appellate work is a much better route. Law firms that only do appeals (like Horvitz & Levy) will provide associates with the greatest and most fulfilling opportunities to do appellate work.
Scoring an appellate clerkship along the way is even better. No matter what speciality an associate eventually settles on, a clerkship is a wonderful experience.
2. ... First and foremost, a law student interested in appellate work should do everything possible to land an appellate clerkship. As you know, an appellate clerkship (particularly with a federal circuit judge) has essentially become a prerequisite to working here. And the bigger firms with appellate practices are even more interested in the clerkship credential.
Second, a law student should resign himself to the fact that he will not likely obtain appellate work right after law school. It's possible -- perhaps for SCOTUS clerks or assistant DAs -- but rare. Most of us have cut our teeth in big firms, learned the ropes in the trial courts, and bided our time for a few years until we accumulated enough general experience and credentials to lateral to an appellate position. The key factor in seeking post-law school employment should be landing a job where you can show your writing ability. Writing some appellate briefs would be ideal, but dispositive pretrial motions will do. Down the road, the student must show a prospective appellate employer strong writing ability. You can't do that if you've spent your days responding only to discovery demands.
3. Wherever they go, they should beg, borrow or steal as much appellate work as they can get, with an eye to ending up in an appellate group or an appellate boutique down the road. To increase the number of appeals they handle, they can seek out appellate pro bono opportunities (which, at a big firm, are also most likely to provide oral argument opportunities). They should also join appeals-oriented bar groups, like the ABA's Council of Appellate Lawyers or the LACBA's appellate rules committee, and stay active in those groups.
From an anonymous friend who's also an appellate lawyer, and whose judgment on this I very much trust:
Most of the firms that have structured appellate practices or groups, in my experience, also have established Supreme Court practices. So compiling the list of those firms is a good place to start. (Tom Goldstein had an insightful post on his blog last year that catalogs the various firms with established Supreme Court practices, the text of which I've appended at the end of this email.)
There are also, of course, boutique firms that handle almost exclusively appellate work, such as the Horvitz & Levy and Greines Martin firms here in the L.A. area. Obviously if you were to go to one of those firms you'd be pretty much guaranteed the opportunity to work on mostly appellate matters. But if you go to a full-service firm, even one with an established appellate department, there are usually only a handful of partners who are responsible for bringing in and managing a large majority of the appellate work, so the best way to secure a steady diet of appellate work is to establish a close working relationship with those folks.
Most of the established, big-firm appellate practices are based in DC (with Mayer Brown being a notable exception, since I think you guys have a base in both NY and DC [EV: The appellate practice group includes 22 appellate regulars in Chicago, 5 in Houston, 8 in New York, 1 in Palo Alto, and 36 in Washington] and in my experience it's very hard to break into that inner circle if you're not working in the same office where the appellate partners are located.
Related Posts (on one page):
- More on Breaking into Appellate Law, from a Sole Practitioner Appellate Lawyer Friend of Mine:
- Breaking into Appellate Law:
(Warning complete speculation ahead)
My guess is that the advice you got is true and correct if your purpose is to get into Federal appellate work. State however, I would hazard a guess would be a different thing and you would be better off at a small(er) firm where your responsbility might be for a particular case at all stages, trial and appellate.
Even if you were not blessed with a sterling clerkship or top 10% class standing (I had neither, though I was in the top 15% of my class), your state attorney general may want you--and the state has an interest in a lot of appellate areas.
Though I make far less than those in the private firms, I have argued 20-30 times before the Circuit Court of Appeals (twice this year so far and likely twice more before the end of the year), authored an amicus brief for the United States Supreme Court (with multiple state "joins"), and have argued a capital case before my state supreme court.
And while the tips Professor Volokh offers are clearly geared towards doing "high-end" appellate work, small-firm and solo practitioners can develop an appellate practice through networking. Lots of small-firm litigators don't like to do appeals....they think it takes too much time, and don't really like to write appellate briefs (I've found this to be particularly true of criminal practitioners); some just feel like a duck out of water in the appellate court. So let other lawyers know that you dig appellate work, and would be happy to take such referrals. Often the key to getting the phone to ring is just to let other lawyers know you're out there. If you're young and on your own, consider offering to write a brief or two for another (more established) attorney on contract (typically, you ghost-write the brief, the other attorney does the argument, and pays you half or more of his fee). If you do a good job, that lawyer will tell his or her buddies, and often will start referring cases to you outright rather than contracting with you.
Just my thoughts, for whatever they're worth.
While many people find appellate work especially satisfying, there are also many talented, bright law students and recent graduates who are more familiar with appellate practice than other practice areas because it closely resembles a traditional legal education and/or their experience in an appellate clerkship. Such people risk pursuing appellate work for the wrong reasons -- the comfort of doing something known, the prestige -- and finding out later that there are downsides.
If you're sharp and have the right background, it's not hard to contribute to an appellate practice right away. You're doing research, reading the record, and drafting memoranda and/or briefs. Bright lawyers can do these things when they arrive at a firm. But there's a problem as you become more senior, which is that your billing rate escalates, and you have to find a way to be more proportionately more productive, or it gets harder for the firm to justify keeping you around instead of giving the work to a sharp new hire coming off an appellate clerkship. Also, many clients hire an appellate advocate, not a firm, and they're going to tend to hire someone with a track record. So it can be much harder in appellate practice to make the transition from doing other people's work to bringing in your own clients.
These problems certainly are not insoluble, but often the people solve them by practicing somewhere other than large law firms.
My advice to anyone thinking about doing appellate work is to think hard about how to build a career, and not just how to get a job.
(1) Lose a winnable contingent fee case at the District Court level, preferrably on an issue where de novo review is appropriate.
(2) The client will want to appeal.
(3) Have a sufficiently light case load that you can convince your partners you have nothing better to do than appeal.
(4) Win on appeal.
(5) Become known at the firm as the guy who handled an appeal once. More will follow.
"(1) Lose a winnable contingent fee case at the District Court level, preferrably on an issue where de novo review is appropriate. "
This is exactly what i have done, and in the two yrs since I was licensed, have done 4 appeals, with two more in the wings. One went to the state sup ct, unfortunately, all without oral argument. No bother. For those of us who are stronger legal writers than speakers/trial attorneys, appellate practice can be very rewarding.
The only downside I can think of is the unpredictable nature of appellate decision making by judges. You may have made all the right arguments, cite all the correct law, spend a lot of time writing what you think is a stellar winning brief and still lose on appeal because the judges just dont get it, or for policy/precedent reasons, simply don't want your argument to prevail. It happens.
How important is experience with oral arguments? In my limited experience, oral argument generally happens after the court has more or less settled on the outcome. My sense is that appellate shops and practices would value experience shepherding a case through the appellate process and especially the writing experience much, much more than they'd value oral argument experience, no matter how good the latter looks on a c.v.
Winning at the trial level is useless for getting appellate experience (although quite useful for one's standard of living). In our world winning means "getting money for the client and the firm," which almost always happens through settlement. Even if winning means a trial victory, it's generally possible to obtain a favorable settlement before appellate work begins.
If you want a client to pay you to represent him/her/it in an appellate court, he/she/it is going to want to be able to picture you at the podium. OTOH, oral argument (in my experience) is rarely dispositive.
I began with a federal appellate clerkship. I agree an appellate clerkship is important in an appellate practice. But, it doesn't have to be federal. I know many fine appellate lawyers who clerked for state intermediate appellate courts. There are many more of those and it is possible to obtain one even if not at the very top of your class.
I discourage people from going exclusively into appellate from the beginning. My first few years in practice, I did almost all trial work. Over time I did a mix of trial and appellate, then just appellate.
I think it's hard to be a great appellate lawyer if you never tried a case. Likewise, I think it's hard to be a great trial lawyer if you never handled an appeal. You learn a lot from seeing how it's done at the other stage.
As an appellate lawyer, your clients are other lawyers. Either lawyers in your firm or lawyers at other firms. You have to convince them you can handle the appeal better than they (or someone else) can. Many trial lawyers like using an appellate lawyer who has tried cases. Trial lawyers hate appellate lawyer second guessing them and pointing out how they should have done this or that differently. If you try cases, you learn that it's hard to get everything right in the heat of battle and that strategic choices have to be made that help you at trial but may hurt you on appeal.
Finally, many trial lawyers look to appellate lawyers for strategic advice and to kick ideas around with. Appellate lawyers are good at seeing the big picture (or should be), so their advice early on can help. It's hard to give good strategic advice when you've never been involved in trial work.
Eugene, if you or Orin are looking for work, you could set a great example! There's lots of criminal defendants out there who could use a great attorney!
Are fellowships like Public Citizen's Supreme Court Assistance Project Fellowship or Georgetown's Appellate Litigation Fellowship considered as relevant and helpful as the other suggestions (small firm, pro bono appeals, etc.) before/after an appellate clerkship?
While it may be the case that the judges already have a handle on your argument and there decisional leaning when you appear for oral argument, at least then you can respond to their questions - as opposed to just responding to opposing counsel's arguments in the reply brief. Just my .02cents on it.
I've actually looked into doing this in the D.C. Circuit; however, the D.C. Circuit lacks an easy way to get cases (perhaps because all the criminal appeals are from the same district court). In my view, this is a natural area for law schools to get involved. Good to know the CA2 and CA9 have an easy process for it; I think all circuits should have this.
I wanted to echo Orin's comments. Thanks for the information. Do you know if there is a general link about the CJA?
Think separately about what it takes to get hired by a large law firm and to break into that law firm's appellate practice. Few -- if any -- large law firms require clerkships. But many firms have practice groups that can be difficult to break into even when you're inside the firm. A few years ago, white-collar defense work was hot, and at least at the firms I know best there were many more associates wanting to do it than assignments to be done. Appellate work often has a similar glut of supply over demand.
Per my comment above, I would suggest that a large law firm isn't the best place to try to do appellate work in the long run, because it's hard to get such clients if that's your career path. Many successful appellate advocates at large firms made names for themselves elsewhere, and brought their reputation with them. Even for those who rose through large firms, the legal world was different when they were younger.
Of course, your mileage may vary.
I don't know of any law schools invovled in the CJA program. I assume law schools don’t get involved because of the timing problems. It’s hard to know exactly when you’re going to get a case, harder to know how long court reporters are going to take to send you the transcripts, and (for purposes of drafting the reply) impossible to know how many extensions the Government will ask for in drafting their brief. In my criminal cases, the Government has taken anywhere from 45 days to six months (!) to file their opening brief.
John, here’s a link that contains a bunch of helpful links.
I know a law school that is starting a federal appellate defender clinic next year (or maybe the year after that -- I don't remember). I don't want to out my friend who will be running it in case it's not yet public, so I'll keep the school and circuit confidential for now, but it seems like it's just what is needed. When that clinic gets up and running, maybe I'll ask my friend to guest-post on it and the experience the law school is having with the program.
What worked for me is losing a great contingency case on a motion for summary judgment in the first three months on the job (and the first three months after my appellate clerkship). I've been put in charge of our appeal.
Our loss wasn't our fault, the damage had been done years before we took the case. However, the trial court judge relied on a number of cases that probably weren't applicable and missed the giant issue of fact.
However, I'd never advise going into it alone. In our case, we worked with the local Trial Lawyers Association and asked them to write an amicus brief. The amicus writer was more than happy to coordinate with me on how to present our arguments and on which arguments to present. He'll also be using 5 minutes of my 15 minute oral argument when the day comes.
--G
Sometime down the road I’d love to start a similar clinic at my alma mater.
I think such a clinic would be very helpful. I also appreciate your prior link, as it had some very interesting material.
On a completely different note, here is another tip for current law students who may not be clerking for federal judges but do want some appellate experience: see if there are any "clerking" positions with whoever handles criminal appeals in your jurisdiction.
I got a job as a clerk for the state attorney general (not my current state) and I was writing appellate briefs as a 2L. A great experience that has served me well.
While I'm here, I'll also echo UW2L's comments that this site can be very helpful for current law students like me. Thanks to all the contributors and commenters.
Doesn't the typical government office have the same problem that the firms have - that the trial lawyers keep their cases on appeal, so you end up their consultant at best? Or do public defendars or state prosecutors have specialized appeals departments?
As a bonus, it tends to be an 8-5 job with only occasional evening and weekend work necessary.
The movement among attorneys general (though this is not true in all states) is to consolidate the appellate function under the state solicitor general and the criminal appeals division.
While it depends on the office, with the public defender side is that the larger offices have specialized appellate attorneys who do the appellate work.
I hope this information helps.
Sorry, I should have clarified: I meant, do firms think differently about lateral hiring into their appellate practice groups? I would like to think the value of the clerkship credential would diminish over time (not that they aren't valuable), but perhaps hiring committees think otherwise.
Also, doing effective legal research is not something that everyone has a talent for, modern on-line resources notwithstanding. Lexis, Shmexis. They are wonderful when you really know what you are after and what you are doing. Otherwise, they help produce larger quantities of the wooden dross found in most briefs, in a more efficient manner.
So if you want to be a successful appellate lawyer learn how to write lucidly and persuasuasively. Writing for law journals helps, but not writing the verbal fogbanks that fill most law reviews these days. There are specialized journals that appreciate articles that are useful to the readers. Write stuff that is likely to be useful to lawyers and if you are lucky, to judges. It will be read. If you try hard but in spite of it really good briefs "won't write," go do something else.
Get started somehow -- by scrounging cases from busy trial lawyers or taking pro bono cases from the appellate courts. Stay away from the big firms. Take some appeals that have little chance of success but that have a large legal upside potential in your field of law. Those you have to do on a contingent fee basis -- treat your time expended on them as part of your overhead. Winning some of those, if only a few, goes a long way toward establishing your reputation. Once you start winning, things will take care of themselves. That's the hardest coin in that realm.
And don't forget, the appellate village is very small so make sure you acquire a reputation with judges (whom you will be seeing all the time) of being competenet, and forthright. Don't try to weaselword and make absurd or even overly ingenious arguments. Government lawyers can do it and get away with it, but not private practitioners.
Good luck.