New York Lawyer
September 24, 2002

Q:
How do I become an appellate lawyer?

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A:

This depends a lot on where you are in your career path and a lot on your natural aptitudes and temperamental disposition. I think good appellate lawyers are usually a combination of nature and nurture. The essential aptitudes for appellate practice are those that may have emerged in law school: a natural facility for conceptualizing, demon research skills, fluent dispositive and didactive writing ... coupled with a lively intellectual curiosity and cognitive style that recognizes patterns and abstracts comfortably. Remember, appellate law makes policy (all the word "policy" really means is, "we should ... "). It sets norms, articulates broad standards and brims with weighty implications. It provides a broader perspective for people who are intrigued by the Big Picture.

Although the movies make much of impassioned oral argument before the Supreme Court, appellate practice places a higher premium on analytical ability, persuasive thinking and clear, concise writing than it does on having a silver tongue. Oral argument may seem sexy, but most appeals are decided on the quality of the briefs. If you are the quiet, reflective type, this may be your best arena.

Once you're out of law school, a crucial career first step is to get the best clerkship you can. You might think it would be grand to clerk for a state or federal appellate court (and such clerkships do carry considerable prestige value in the job market), but a more useful clerkship for future appellate lawyers may well be at the trial court level. Here is where you'll see the broadest variety of cases, topics, arguments and mistakes. You'll see where the appealable issues arise and learn what makes them appealable. You may learn less about jurisdictional issues than you would in an appellate clerkship, but you'll get a better empirical grounding in the real dynamics of what gets appealed and why -- the stakes and mistakes, the arguments that fly with the judge and those that crater. You'll see judges doing wise things, and judges doing dumb things. You'll gain perspective ... from ground level.

Following a trial court clerkship, some successful appellate lawyers have gone on to appellate clerkships, but that's probably the exception more than the rule. Such clerkships may suggest a career path where one is happier evaluating others' arguments more than making them personally. At some point, advocates have to start advocating. Another credible career path is through government legal positions in settings where appeals are customary -- such as a local, state or federal criminal justice system. I cut my teeth with the Appeals Division of the Philadelphia District Attorney's Office, and later, as a federal prosecutor, I often was responsible for handling appeals of cases I'd tried. I hated it ... but it sure was good schooling.

Once you've cut your teeth and know your way around the topography of the law (appellate lawyers usually are generalists), I believe the best next step is to join a large law firm. While you may have an opportunity to get appellate experience in a smaller firm, that experience probably will be mixed in with other responsibilities. Such firms simply are not rich enough or specialized enough to subsidize appellate experts. It is in large firms where the traffic is heavy enough and the issues weighty enough to warrant the firm taking its appellate practice seriously and grooming appellate specialists.

And even in large firms, it is unlikely that you can get hired as an appellate jockey from the git go. It is more likely that you will be asked to gain experience in various forms of litigation than immediately made a brief-writing guru. You will find, however, that if your research and briefing skills are exemplary, the word will get out. Distinguish yourself early by your exhaustive research, keen analysis and pithy writing (even if you only are assigned the initial draft of a small portion of a megabrief), and, yes, the word will get out.

Once it does ... reinforce the word. Let your department head or mentor know that you really like that kind of work. Volunteer to help harried partners or senior associates frame and chug through briefs. Read the advance sheets as if they were your holy books, and get recognized as the "go-to" person on esoteric or newly-emerging trends in the law.

What I have found, for reasons I can't quite fathom, is that few appellate-work-only boutiques thrive. Many lawyers regard appellate practice as a real drag, and you'd think they'd be only too happy to farm it out to gifted scriveners -- reserving the right to sign the final version, of course. I dunno, maybe introverted, conceptual advocates aren't the most effective marketers of specialized legal services. Maybe highly possessive litigators aren't comfortable letting their cases get away from their immediate control. In any event, hanging out your shingle in the local legal directory as an appellate expert, and only that, is not a surefire way to go.

Start early -- in law school -- to develop a stunning set of writing samples that display different dimensions of your gifts: Innovative thought and analytical accuity. Concise and convincing verbal persuasion. Irrefutable logic. An absolute grasp of the conventions of the game: form, citations, etc. And, finally, comfort with exhaustive writing and exhaustingly long briefs. Use different exemplars to demonstrate different strengths, and label them accordingly in your handsomely-bound portfolio. Win some legal writing and advocacy awards. Assist the professor in the legal writing courses. Write. Write. Then write some more. Keep all of it. Look back on it six months later and critique your own work brutally. Get outside feedback.

Get a sense of your strengths and your style ... and then go sell it. Appellate practice is an essential element of litigation, so there always will be a niche market for it. Will it lead to partnership as surely as rain-making skills? Perhaps not. But successful appellate lawyers report a different, and often wonderful, set of satisfactions.

Sincerely,
Douglas B. Richardson
President, The Richardson Group