United States: Appellate Lawyers Learn To Play Well With Others

The typical image of an appellate lawyer is someone who picks up a cold record once trial court proceedings have ended, analyzes it, researches the law, writes a brief, and delivers an oral argument – all as part of a relatively solitary enterprise. Indeed, when asked to think of one word that best describes an appellate lawyer, a second-year law student at Georgetown University Law Center answered, "monastic."

This notion that appeals are a wholly separate part of the litigation process begins early in law school, where first-year law students in legal research and writing classes are often handed a closed record from which they are required to draft an appellate brief and participate in a mock argument.1 The solitary nature of appellate practice was reinforced in recent decades by the increasing view of appellate lawyering as a specialized field.

The Trend Toward Specialized Appellate Practices

Historically, many lawyers, including litigators, were generalists – able to handle any matter that came their way. Over the past few decades, however, there has been a trend in the profession towards specialization. Now, when asked the question, "What do you do?" an attorney is just as likely, if not more likely, to say, "I'm a securities litigator" or "I'm an antitrust attorney" as to offer the simple answer, "I'm a lawyer."

Indeed, one law professor recently wrote that, "[s]ometime in the mid- 21st century, an event will pass almost unnoticed in the public eye, a short announcement in The Global Lawyer, successor to the present day publication The American Lawyer. It will read something like this[:] Last GP Closes Doors."2

Appellate lawyers have been part of this trend.3 Indeed, in 2005, the American Academy of Appellate Lawyers called on appellate courts and the appellate bar to "intentionally nurtur[e] the market trend toward appellate specialization" in order to "enhance the judicial tools for reaching good dispute resolutions and writing good precedent."4

Thus, the past several years have seen: the emergence of blogs devoted entirely to appellate practice;5 the formation of appellate practice boutiques, including small firms focused on Supreme Court litigation;6 the formation of appellate and Supreme Court litigation clinics at law schools;7 an increased focus on the role of appellate lawyers, particularly the office of the Solicitor General, in the federal government;8 and the formation of solicitor general offices at the state level based on the theory that "a unit within the [state] Attorney General's Office should be devoted solely to appellate work involving the state's interests."9

These developments recognize that appellate lawyers bring unique skills to the table. As two practitioners have observed, general market forces toward specialized practices alone would not have been enough to bring about these changes.10 Instead, this trend is the result of the conclusion by many that "the skills required to be a good appellate litigator differ significantly from those of a good trial lawyer."11

For example, "[i]n developing and presenting a case to the trial court, the advocate must be adept at creating the best possible factual record, a goal that requires skill and experience in effectively managing document discovery, issuing and responding to written interrogatories, conducting and defending against depositions, questioning and cross-examining witnesses, and formulating and presenting attractive factual themes that will persuade the finder of fact."12

For an appellate lawyer, by contrast, the most important skills "involve the exercises of legal judgment, research, analysis, and writing that go into crafting an effective appellate brief; the appellate lawyer takes the factual record as it was created in the trial court and must weed through it to glean the factual predicates most favorable to his or her legal arguments, subject to the constraints that may be imposed by the applicable standard of review."13

In the private sector, increasing client sophistication and the increasingly high stakes in civil cases have led to greater recognition of the value of an appellate lawyer's skills.14 In the public sector, the recognition that certain lawyers should focus on developing and maintaining coherent and cohesive litigation strategies has resulted in greater appreciation of appellate lawyering as a specialty field.

For example, the Florida Solicitor General's Office was created in 1999, and the position was "broadly envisioned as a supervising and coordinating role to ensure coherency and quality in the appellate efforts of the Attorney General's office around the state."15

Emerging Trends in Appellate Practice

Recently, however, there has been an increased recognition that, while appellate lawyers have unique skills, there is no reason to segregate those skills away from the trial process. For example, trial litigators and clients increasingly have recognized the value of adding appellate litigators to trial teams.16

Appellate lawyers can be valuable additions to litigation teams long before an appeal is on the horizon, particularly for preserving issues for appeal. One practitioner has observed that, "[o]ne of the most well-known benefits of adding an appellate lawyer to the trial team is preservation of error for appeal. In the heat of battle, trial lawyers sometimes forget to get a critical document admitted into evidence, fail to ask the court reporter to record a bench conference, or fail to get a ruling on an objection. The appellate lawyer – who is generally one step removed from the heat of the battle – can serve as 'insurance' for the trial lawyer, thereby cementing the trial record for the appeal."17

Putting appellate lawyers on a trial team has other benefits as well. If appellate lawyers are involved in litigation from the moment that a case is filed, they can help shape legal theories for a case from the outset and bring their brief writing and oral advocacy skills to bear on significant motions filed with the trial court.

This creates opportunities for early resolution of cases on dispositive motions and also allows trial lawyers to focus on other crucial aspects of the litigation, such as managing discovery and creating the factual record to support the legal theories developed by the team.18

Thus, many law firms have begun to tout the fact that their appellate lawyers are also comfortable litigating in trial courts, and many clients have begun to request that at least one appellate lawyer be staffed on all of their major litigation matters.19

While appellate litigators have started to assume a larger role in trial-level litigation, a parallel trend has emerged of appellate courts using mechanisms traditionally thought of as trial court tools to resolve appeals. For example, many federal courts of appeals have developed mediation programs, engaging appellate lawyers in settlement processes similar to those mandated by many trial courts.20

Additionally, substantive motion practice, once thought to be the sole province of trial lawyers, is becoming an increasingly important part of appellate court litigation. The Department of Justice has even advised that "government attorneys can and should use case-dispositive motions as an efficient way to dispose of those appeals that should not actually be before the courts of appeals."21

Thus, while appellate litigation is still viewed as a specialized practice area, the skill set required of appellate lawyers is becoming broader, both in terms of an increased role in all stages of litigation and with regard to the new mechanisms used to resolve cases in the courts of appeals.

Implications for Appellate Lawyers and Practice Groups

So, the question becomes, what do these trends mean for those in appellate practice or who would like to become appellate lawyers? There are no simple answers.

There certainly are pros and cons to the new, more integrated appellate practice model. Perhaps the most obvious con is that the appellate lawyer does not come into the case "fresh" to give trial lawyers and clients, who have been immersed in the case, an independent perspective on the litigation.22 However, the benefits of having an appellate lawyer on hand from the outset to shape big picture legal theories and ensure proper development of the record likely outweigh any drawbacks of this approach.

One thing is clear – appellate lawyers will need to be flexible in their practices. Although some cases will still come to appellate lawyers solely for briefing and argument based on a closed trial record, that model, once the norm, is becoming less common.

Rather than being handed a closed record, appellate lawyers must now be able to help shape that record. Appellate lawyers must also evolve to become proficient at mediation and motion practice at the appellate level, skills that were not traditionally part of an appellate lawyer's arsenal.

In this new world, appellate lawyers face a challenge of balancing their core expertise in brief writing and oral advocacy with a more flexible skill set.

This trend also has implications for private sector appellate practice groups, which must be able to successfully integrate themselves with law firm trial practices in order to be competitive.

It also has implications for the training of appellate lawyers. From the very beginning of law school, students should learn that brief writing and oral advocacy cannot be divorced from the rest of litigation practice.

And aspiring appellate lawyers should be exposed, through practice skills classes, clinics, and on-the-job training, to the competencies required by this new marketplace – in particular, being able to think on their feet as part of a trial team, develop a legal theory at the start of litigation, engage in effective mediation, and adapt appellate brief writing styles to trial court audiences.

In short, appellate lawyers can no longer expect to thrive by adhering to the cloistered model of appellate practice. They must adapt to a broader set of circumstances in which they are likely to find themselves and learn to "play well with others," including trial lawyers and trial court judges.

If they do so, they will better serve their clients and be more likely to find success for their appellate practice groups and themselves.

Originally published in the Fall 2013 edition of the Delaware Lawyer, Volume 31, Number 3.

Footnotes

1. See Amy E. Sloan, Appellate Fruit Salad and Other Concepts: A Short Course in Appellate Process, 35 U. Balt. L. Rev. 43, 43-44 & n.5 (2005) ("Usually, instruction on the appellate problem [in law school] emphasizes the substantive issues in the appeal and techniques for effective written and oral advocacy."); see also Michelle E. Robberson, The Secret Weapon: Using the Appellate Lawyer at Trial to Prime Your Case for Appeal, 2008 Appellate Seminar (Sept. 19, 2008, last visited Aug. 6, 2013) http://www.cooperscully.com/uploads/seminars/Robberson-UsingAppellateLawyer.pdf ("One reason appellate lawyers are not used as much as they should be during the pretrial and trial phases of litigation is the public perception that appeals and trials are separate.").

2. G. Munneke, Requiem for a GP: The End of An Era, 83-Feb. N.Y. St. B.J. 10, 11 (Feb. 2011).

3. See Thomas H. Hungar & Nikesh Jindal, Observations on the Rise of the Appellate Litigator, 29 Rev. Litig. 511, 511-12 (2010) ("Over the last few decades, there has been a noticeable increase in the visibility and prominence of appellate litigators in the private bar . . . . The practice of law as a whole is becoming increasingly specialized, and the trend in appellate litigation is no exception, although it appears to be a more recent occurrence than the growth of substantive specialization."); see also id. at 518 ("In truth, until about 1980, the only substantial concentration of appellate expertise was in the Solicitor General's office.").

4. Am. Academy of Appellate Lawyers, Statement of the Functions and Future of Appellate Lawyers, 8 J. App. Prac. & Proc. 1, 2 (2006); see also id. at 13 (calling on state bars to "develop a certified appellate specialty").

5. See generally ABA Journal, Blawg Directory, Appellate Practice, http://www.abajournal.com/blawgs/topic/appellate+practice (last visited Aug. 6, 2013); see also, e.g., SCOTUSblog: Supreme Court of the United States Blog, http://www.scotusblog.com/ (last visited Aug. 6, 2013) (established 2002).

6. "[A] number of major firms contemporaneously developed Supreme Court and appellate practices in the 1980s." Hungar & Jindal, supra, at 521. The creation of appellate and Supreme Court litigation boutiques is a more recent phenomenon. See, e.g., Otis Bilodeau, Mayer Brown's Loss is New Firm's Gain, Legal Times (Apr. 30, 2001) (discussing formation of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP by former members of Mayer Brown's appellate group), available at http://robbinsrussell.com/news/mayer-browns-loss-new-firms-gain (last visited Aug. 6, 2013); Goldstein & Russell, P.C.: Our Firm, http://ghrfirm.com/our-firm (last visited Aug. 6, 2013) (stating that Goldstein & Russell, P.C. is a descendant of Goldstein & Howe, P.C., which was founded in 1999, and that, "[a]lthough the firm principally practices in the Supreme Court, it also represents clients in a small number of important matters in the federal courts of appeals").

7. Georgetown University Law Center has had an appellate litigation clinic for more than 20 years. See Appellate Litigation Clinic, http://www.law.georgetown.edu/academics/academic-programs/clinical-programs/our-clinics/appellate-litigation/index.cfm (last visited Aug. 6, 2013). Such clinics at other law schools are of much more recent vintage, and this is particularly true of clinics focused on Supreme Court litigation. See, e.g., Goldstein & Russell, P.C.: Our Firm, supra ("In 2004, Tom [Goldstein] co-founded the Stanford Supreme Court Litigation Clinic with Stanford Professor Pam Karlan . . . . In 2005, the firm also began running a Supreme Court Litigation Clinic at Harvard during that school's January winter term."); Appellate Litigation Clinic, http://earlemacklaw.drexel.edu/academics/clinical/appellate_litigation_clinic/ (last visited Aug. 6, 2013) (discussing the Drexel Law School Appellate Litigation Clinic, founded in 2009 by Professor Richard H. Frankel).

8. See Kelly A. Zusman, "May it Please the Court,"—Appearing on Behalf of the United States in Federal Appellate Courts, U.S. Attorneys' Bulletin 1, 3 (Jan. 2013) (discussing the importance of appellate lawyers in the federal government and stating that "[o]ne of the most significant recent advances made by the Department to improve the quality of appellate work took place in 2010 with the amendments to the appellate section in the United States Attorneys' Manual. With these amendments, every USAO now must designate an appellate chief who supervises all criminal or civil appellate work."), http://www.justice.gov/usao/eousa/foia_reading_room/usab6101.pdf (last visited Aug. 6, 2013) (internal citation omitted); see generally Michael R. Dreeben, The Role of the Solicitor General in The Department of Justice's Appellate Process, U.S. Attorneys' Bulletin, supra, at 5.

9. Rachel E. Nordby, Florida's Office of the Solicitor General: The First Ten Years, 37 Fla. St. U. L. Rev. 219, 222 (2009); see generally Symposium, The Rise of Appellate Litigators and State Solicitors General, 29 Rev. Litig. 545, 604-727 (2009) (discussing the "explosion" of state solicitor general offices in the late 1990s and early 2000s and the effect of the creation of these offices on appellate litigation in state and federal courts).

10. See Hungar & Jindal, supra, at 529.

11. Id. at 530.

12. Id.

13. Id.

14. Id. at 524-27.

15. Nordby, supra, at 241; see also id. at 243 ("Since July 1999, the office has grown into what it was originally envisioned as-a high-powered, appellate-focused unit within the Attorney General's Office that supervises all civil appeals . . . . Although the office does not win every case, its presence as a party or amicus curiae ensures that the judicial body charged with resolving the case is exposed to the state's perspective on how the area of law at issue functions and what impact the court's decision might have, not only in the case at hand, but in subsequent cases.").

16. See, e.g., Robberson, supra, at 1.

17. Id. at 2.

18. See generally Deena Jo Schneider, Yours, Mine and Ours: The Evolving Relationship Between Appellate Counsel and Trial Counsel, App. Issues (Council of App. Lawyers, Winter 2012).

19. See, e.g., Issues & Appeals, http://www. jonesday.com/issues_appeals/ (last visited Aug. 6, 2013) (stating that lawyers in the Issues and Appeals group handle "difficult and novel legal problems" in courts at all levels); Appellate Practice, http://www.schnader.com/services/xprServiceDetailSchnader.aspx?xpST=ServiceDetail&service=28 (last visited Aug. 6, 2013) ("At the trial court level," lawyers in the Appellate Practice Group "regularly apply [their] analytical and advocacy skills on summary judgment and other significant motions, in post-trial proceedings, and in advising about how best to preserve issues for appeal and to position them for the most effective appellate review.").

20. See, e.g., Mediation, http://www.ca3.uscourts.gov/mediation (last visited Aug. 6, 2013) (stating that most civil appeals are eligible for mediation and that mediations are conducted in hundreds of cases each year); Mediation in the United States Court of Appeals for the Ninth Circuit, http://www.ca9.uscourts.gov/mediation/ (last visited Aug. 6, 2013) (stating that "[n]o case is too big or too small for mediation in the court's program").

21. Jean-Claude André & David Hollar, Appellate Motion Practice, U.S. Attorneys' Bulletin, supra, at 48.

22. See Hungar & Jindal, supra, at 531-32 ("One of the most important functions that a skilled appellate litigator serves is to provide an independent perspective on the relative merits of the case and the potential issues for appeal. By the time a case has reached the appellate level, the client and/or the trial counsel will often have developed strong views on the merits and justness of their cause and the validity or invalidity of the trial court's and/or the jury's decisions, and the 'heat of battle' at trial, combined with their intricate knowledge of the details of the case (which will not always be reflected in the record), may sometimes cause them to lose a measure of objectivity or develop blind spots with respect to flaws and weaknesses in particular arguments or positions.").

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