There are appellate firms (Horvitz & Levy and Greines Martin in LA — I don't know about elsewhere). I spent a few years at H&L and Dana [Bruce's wife] was at Greines for 8 years ....
But once you get out of the very top end of litigation, there are lots of trial lawyers who need appellate lawyers. That's where most of my appeals come from.
A lot of trial lawyers like doing litigation. They like the fight, taking depos, arguing to juries, sending nasty letters off to the other side, etc. They are often quite good trial lawyers. But they have minimal interest ... in legal research, analyzing complex legal issues, [effective appellate] writing, etc. The last thing they want to do is to sit down for weeks on end, pore over an appellate record, do lots of legal research, and write a 60-page brief. They are more than happy to pass the appeal along to competent appellate counsel.
These types of cases are typically not as huge as the cases that large firms handle. However, from my perspective, that's a plus.
The appellate record is managable, and that makes it a lot easier to handle.
Most importantly, interesting appellate issues are just as likely to come up in "average" cases as in the much larger cases that large firms handle. A few examples from my cases:
- The First Amendment / harassment issue in Krell v. Grey (the LAUSD case that tried to follow Avis [v. Aguilar], but that I successfully petitioned for rehearing on) is a good example.
- One of my first appeals at Horvitz & Levy involved an automobile accident. The facts were quite unpleasant, but the legal issue was a fascinating spoliation of evidence issue.
- I had a marital dissolution case where I had to analyze the legal and economic underpinnings of spousal fiduciary duties, and I had to differentiate them from other types of fiduciary duties. I got into a lot of legal theory as to what fiduciary duties where and why we have them. I obtained a reversal, and the legislature later amended the statute to limit the scope of the opinion in my case.
None of these were big-firm cases, but all of them raised legal issues that someone interested in legal theory would love. And that's what I love about appeals.
I sometimes say appellate law is about 25% of the way to academia. I get to research, think about, and write about legal issues. Many are easy, but — as noted above — some raise interesting and challenging issues. But at the same time, I am dealing with real clients with real legal problems.
The dollar amounts in my appeals typically range from about $50,000 at the low end to maybe $5 or $6 million at the high end. I just won an appeal (as the respondent — the state court term for appellee) in a $600 wage and hour case with a $35,000 attorney's fee award. It was quite easy — almost like an opposition to a motion. I think this is my smallest case (involving a money judgment). But at the same time, I am representing the respondent / plaintiff in a $4.6 million breach of fiduciary claim involving a complex transaction where a general partner ripped off a bunch of limited partners. This is one of my larger appeals.
I'm not sure of the best way to get into this type of appellate law.
It might be to go to the best litigation firm possible for a few years, do litigation, and try to do as many appeals as possible.
(That's what I did.)
Another option is to go to an appellate firm like Horvitz or Greines for a few years. (That's what I did after a big firm.)
A lot of appellate lawyers I know spent several years as a research attorney at the state Court of Appeal. These are permanent positions, and — like a one-year federal clerkship — they give great insights as to how appeals are actually decided.
A lot of appellate lawyers also spent time working for the state attorney general's office doing criminal (and sometimes civil) appeals.
Once you have a good grounding, start your own firm or join up with another appellate lawyer.
This sounds scary, but there is a safety net for appellate lawyers just starting out. Most jurisdictions appoint appellate lawyers for indigent criminal appeals. These appeals do not pay very well, but they will fill the down time and provide at least some income.
Fortunately, I only did four of these when I first started my practice, but I was happy to have them.
My experience was that as I did more and more appeals, I established relationships with more and more trial lawyers (including sometimes the trial lawyer on the other side of the case). I guess I did a good job because the trial lawyers often come back on other appeals.
And after a while, my practice grew and the appeals just kept coming in.
isn't that the real question everyone wants to know?
Most of my work is done for flat fees instead of billing hourly. I try to estimate what amount of time it will take &multiply that by my rate ($300/hr). Sometimes I will put the fee into stages. E.g., a certain amount for the briefing, a certain amount more if oral argument is granted, a certain amount more to petition the Supreme Court, etc. I'm usually good at fixing the fee, but you sometimes run into unanticipated problems &come out behind. I recently did an interlocutory appeal from an order dismissing a party on personal jurisdiction. My fee was $25K. We had oral argument, so the total time spent was around $32K. But, if oral argument had not been granted (it usually isn't), I'd have had $19K in time. So, I estimated pretty well.
I also do some contingency work on appeals, but you have to be very selective. The damages have to be quite large to justify the risk. I will also do a blended arrangement. E.g., a lower hourly or flat fee plus a lower contingency. Or a flat fee with a success bonus. I recently did an appeal for $35K plus a $100K bonus if I won. I put about $60K into the case in time. I lost, so it didn't pay off. But if I had won, I'd have done well. You just have to balance the work so you're not too far extended on speculative fees.
After accumulating a good deal of experience I applied for certification as an appellate specialist by the State Bar of California's Board of Legal Specialization (I'm technically required to give the board's entire name when I say that I'm certified, since there are other entities that issue such certifications.) Only about 225 attorneys in California are so certified, and I'm pretty sure that Eugene's friend (and mine, btw) Bruce is also in this group.
Attorneys and litigants who are looking for an appellate specialist can search the state bar's website, and I get quite a few calls from people who find me that way. I am among the relatively few specialists who handle both civil and criminal cases, so I often hear from someone who had called a few other specialists only to learn that they did not handle the type of case they needed help with.
I generally propose a flat fee, though I do sometimes work for hourly rates when I am comfortable with the client's ability to continue paying me in the future. I examine the case before I quote a fee, since some appeals involve much less work than others. Once I get a sense of what the case will require of me, I give my quote.
Like Bruce, I also get referrals from lawyers I know and have worked with in the past.