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Small Law Firm Open Thread: Appellate Law

Tuesday, October 27, 2009 3:37 PM - By David Lat

appellate argument appeals court may it please the court.jpgAlthough we focus on Biglaw in these pages, our recent open threads on small (or at least smaller) law firms, centered around different areas of practice, have been very well-received. So we’ll continue the series. To look at the past threads, click here and scroll down; to suggest a topic to us, please email us (subject line: “Small Law suggestion”).

Today we turn our attention to APPELLATE LAW. This field is near and dear to our heart, since we clerked for a federal appellate judge and focused on appeals during our time in the U.S. Attorney’s Office. If you enjoy research, writing and arguing more than document review and discovery hell, and if you are as lazy as we are more of a “law” person than a “facts” person, then appellate work may be for you.

Unfortunately, there aren’t that many appellate boutiques out there. It’s not easy to build a practice around 100 percent appeals work. Many top appellate practitioners can be found in the Washington offices of large firms, where they can be roped into law-heavy work in the trial courts (e.g., summary judgment motions). Biglaw shops with leading appellate and Supreme Court practices include Gibson Dunn, Mayer Brown, Jones Day, Sidley Austin, and WilmerHale. Check out the Chambers and Partners list of top appellate shops for additional examples.

UPDATE: One appellate practitioner pointed out to us that you can do appellate work for a large firm outside D.C. as well (especially in this age of telecommuting). For example, Jones Day and Mayer Brown have sizable presences in New York (and other cities).

There are opportunities to do appellate work outside the big firm environment too. Read more, after the jump.

In Washington, there are a number of small firms that are known for their appellate practices. They include Robbins Russell, formed by a group of appellate litigators who broke off from Mayer Brown, and Kellogg Huber (although good luck getting a job there without a Supreme Court clerkship).

Appellate firms exist beyond the Beltway too. We checked in with Jeremy Rosen, a partner at Horvitz & Levy, a boutique appellate firm in California. He offered this description of his firm’s practice:

We have roughly 30 lawyers, most of whom are former federal appellate law clerks who started their law firm careers at elite large law firms. Since 1990, we have litigated more than 1000 appeals, mostly in the California appellate courts and Ninth Circuit, but also in other federal circuits and other state supreme courts. Chambers and Partners, for example, has ranked us the top appellate firm in California, ahead of national firms like Gibson Dunn and Akin Gump. Nationwide, Chambers has also ranked our firm in Band 4, putting us in the top 20 appellate firms in the nation.

You can check out some of their representative matters here.

The advantages of this type of practice are many, according to Rosen:

The best part of working in an appellate boutique is that we have the luxury to be able to specialize in what I think is the most interesting legal practice. We spend our days thinking about and researching complicated and interesting legal issues. We also have the time to carefully fine tune our appellate briefs and present oral argument in front of engaged panels of appellate judges. And, we never have to do discovery!

That counts for a lot. Back when we practiced in the field, we loved the whole “preserved in amber” aspect of the record on appeal. (“Gosh, I’d really love to dig up and review those documents / track down those witnesses and depose them. But that evidence wasn’t before the trial court — too bad, so sad!”)

Just like any other practice area, appeals work does have its downside. From Jeremy Rosen:

The only real downside is that an appellate practice is not as lucrative as a trial practice in that there is simply more money billed on litigation in the years of having big teams of associates and paralegals do document review and pushing a case to summary judgment or trial than in preparing the appellate briefs and doing the oral argument even in large record cases. However, I am not asking for any sympathy as by any objective standard an appellate lawyer can earn a good income. Plus, I get to have fun almost every day.

The pay is still quite healthy. For associates at Horvitz & Levy, salaries are a little bit below market (perhaps 15 to 30 percent less). But it’s not all about the Benjamins:

All of our lawyers, partners and associates, could make more money elsewhere. But we all left places like Munger, Latham, Gibson, Skadden, Irell and others because we enjoy the intellectual challenge of appellate work, working with a small number of like minded colleagues in a very collegial (yet frankly nerdy) environment, working with very sophisticated clients on significant issues, and having some control over our lives outside of work.

Control over your lives outside of work? What a novel concept! What are the hours like at the firm?

For associates we have an 1800 minimum for billable hours although most are in the 1850 to 1900 range. Appellate work is generally more predictable than trial work so it is easier to have a consistent family life out of the office.

We do someimes have to file emergency writs in the appellate courts which can lead to a period of crazed activity. We also are often asked to consult during trials where there is an expectation of a future appeal. We also sometimes take the lead on critical motions on trial courts. In those situations our schedules can look more like big firm lawyers.

And here’s another nice aspect of Horvitz & Levy (and many other small firms): a realistic shot at making partner.

Another plus to our firm is we regularly make people partner. In the past 5 years we have made 6 partners. One reason it is easier to make people partner is that our revenue model is not based on associate leverage. Partners do the same work as associates (i.e. write appellate briefs) but we bill at higher rates. That is why we can profitably have more partners than associates.

We’ve focused on Horvitz & Levy in this post, but it’s just one example of an appeals-focused firm. We also know a number of solo practitioners who do a fair amount of appellate work (although not many who do it exclusively).

Please discuss appellate work in the comments to this post — the upsides, the downsides, how to break into it, etc. Thanks!

Appellate Law: Nationwide [Chambers and Partners]
Horvitz & Levy [official website]

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Posted in: Gibson Dunn, Jones Day, Kellogg Huber, Mayer Brown, Sidley Austin, Small Law Firm Open Threads, Supreme Court, WilmerHale

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