Small Law Firm Open Thread: Appellate Law
Although 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]
(55) 
Comments
Pretzles
Zeroth
FIRSTON
First to say first!!!
4 - Your avatar is weak.
does coaching your client to allow the judge to spank and sodomize him count as appellate work?
#4 is offensive. Please moderate.
My it please the court. I have an itch down here between my legs. Before I get started, I was wondering if you would like to scratch it for me. Appellate judges are just as full of shit as trial judges, only they tend to be able to read and write, unless they're affirmative action hires.
The lawyers at Kellogg Huber are the ugliest, angriest group of overachievers I've ever seen. They need to hire a professional photographer BADLY.
For a second I thought this post might address CRIMINAL LAW, but once again you biglaw homos missed the boat.
Where's the CRIMINAL LAW open thread?
Everyone interviewed for this article is an arrogant snob who overvalues their self-worth. Shut up, Shut up, shut up!!!
Where is the open thread about opportunities for current law students who have decided that there is no way in hell they want to be lawyers? I refuse to take the bar. What shall I do with my life?
12 - This Bud's for you:
http://abovethelaw.com/career_alternatives/
really interesting post. Thanks!
so these jobs are even TOUGHER to get than a regular big firm job - nice.
12
That is disingenous. There has to be something better than nude modeling or pornography.
sure == here is how to break into this kind of law: graduate 10%, clerk in federal court, clerk in the circuit, work for the Fed gov or at large firm and apply. easy.
Appellate Law: Tricking Law Review members into litigation practice groups that do very little appellate law since 1875.
Too long, didn't read.
This falls in the "nice work if you can get it" catagory. It's also the closest you'll ever come to being back in law school. So bonus if you like that.
Unfortunately, if you didn't clerk coming out of school, this is borderline impossible. It's simply an expected credential (with pretty good reason, to be honest). The alternative is to be someone who actually has taken and won appellate cases as a general litigator. Again, not much help to people who want/need to break into the field.
I did appellate law, but it was government-side and criminal law for about a year. Feel free to ignore remainder of post if this is too far off topic...
I was almost never impressed with the briefs filed by opposing counsel. The court would bend over backwards for them because they felt sorry for their lack of understanding as to how the appellate process works compared to trial work.
I know this because I also clerked for an appellate court judge for a year.
Appellate work can be interesting when you are arguing a novel issue. I found oral argument before a panel of federal judges to be significantly more challenging than arguing at the trial level. Juries couldn't interrupt me and bombard me with questions.
Ironically, for all the stress of getting up in front of the judges to argue, your ability to really impact the court is in your brief-writing. I've rarely seen an oral argument effect the outcome of a case.
This was completely the opposite of my trial experiences where you would often be rushed for time and draft (and receive) skeletal motions which seemed worthless, only to expand on every line and every point when you argued the motion in court.
Having been in the room when judges deliberate, I can say that they do listen, but mostly they talk about what was written in the briefs.
Why can't we comment on the Hollywood break-in story?
Apparently smearing feces on your lawyer and throwing it at the jury does not get you off of home invasion charges in california... who knew?
22 - Comment at Fashionista or True/Slant.
Howard J. Bashman over at How Appealing is the best appellate law practitioner around.
Hello Mister David Lat. My name is Lo and Miss Lat says to meet you here. I want to seek friendships, affections, and well being.
My favorite colour is pink. I like to sing. I like to voyage long travels. Contact to me at asianladypersonals/LoMein
26 - I know this is an internet gossip site, but, assuming you are also behind "Mrs. Lat," you are taking this too far.
The picture used on this post looks like the opening of a poor quality porn.
This blog just sucks now.
I get it that Lat is just in it for the $ and has to drive pageviews, and Elie is basically an open joke of a "veteran big firm lawyer," but it doesn't make the contrast from how this site was 2-3 years ago any less stark and depressing.
Really, 27? I'm sure that Lat enjoys the creativity. He's got a good sense of humor.
- Not "Mrs. Lat"
"I've rarely seen an oral argument effect the outcome of a case. "
Awesome.
For those interested, and who don't have the credentials to break into the boutique appellate law firms mentioned above, there is another way.
I know a number of attorneys in various jurisdictions that have clerked for state COA judges and then went on to smaller or mid-law shops and focused on appellate work. The vast majority of the work they do is state appellate work, but most attorneys I know get a chance to argue federal appeals cases as well. In all, its not a bad alternative to big law, from what I can tell, so long as you can find the right firm.
And of course, that is a BIG "if."
Hey, 21 - juries interrupted you and bombarded you with questions? Where the hell did you practice?
#7 has been Douched.
A post about small or boutique appellate shops without even a mention of Howard Bashman (http://www.hjbashman.com/), Todd Smith (http://www.texasappellatelawblog.com/) or even Howe & Russell (http://www.howerussell.com/). Really?
The pictured female attorney looks like she's smelling a queef.
After a short stint at Jones Day, Tommy Goldstein had a fairly celebrated career at his own appellate boutique (Goldstein & Howe). He has since moved on to Akin Gump.
And it looks like the judge heard it.
I graduated from HLS, but I wasn't on Law Review. Although I'm doing Big Firm litigation now (i.e., NYC securities), I'm hoping to transition (or "break") into appellate litigation at some point.
Beyond securing a clerkship -- which I will apply for soon -- does anyone have actual advice about how to break into appellate lit? I'm worried that, despite coming from a decent law school, not being on Law Review will hurt my candidacy. After all, the appellate bar seems so credential-focused. Is there anything that I can do now (again, other than a landing a clerkship)? I'd be willing to leave Big Law and do public interest work or an academic fellowship relating to appellate lit, if that would be helpful.
I'd appreciate any constructive advice -- hopefully I'll be able to find it amid all the spam. Thanks a lot.
Obviously a number of commenters have addressed the picture to this post, but what gets me about it is that this is a thread for appellate law, yet appellate lawyers never approach an appellate bench. Great job picking a topic-appropriate picture there Lat.
40 - Appellate lawyers may not approach an appellate bench, but I've seen some 7th Circuit oral arguments where it looks like the bench wants to approach the poor fumbling SOB at the lecturn.
the photo for this post could double as the cover of a porno
PING! @ 10: Don't ask, don't tell.
PING! @ 39: Who puts the word "break" behind quotation marks?
PING! @ 39: Is it really important for us to know you handle NYC securities?
PING! @ 39: Credential-whoring is frowned upon.
PING! @ 39: HLS.
There are various good appellate gigs in government: various agencies have GCs that argue appeals (e.g., SEC), DOJ has a bunch (Crim Div, Civil Div, Tax Div, OIL). All are hard to get, some more than others, but certainly worth a shot if you're interested. Just do a clerkship first.
I once interviewed with Jones Day NY's appellate group. It's quite an impressive group of attorneys, all of whom clerked and many of whom clerked for SCOTUS justices. Needless to say, I didn't get the offer.
Made big law salary at SuckLaw for 1.5 years. Then went to work for government doing strictly appellate work. I'm paid in promissory notes redeemable for toilet paper, but I'm happy for the first time in 1.5 years.
33- work on your reading comprehension.
39 - As an appellate lawyer who was not on law review (and didn't clerk), I'll tell you that it's a tough move to make, but I'm an example of the fact that the rule has exceptions. I'd suggest going to a regional appellate practice after your clerkship (if they're hiring). Those places give you the opportunity to really hone your writing ... the most important part of appellate practice. After that, if you want to go back to BigLaw, you're much more prepared to compete because you've had greater responsibility at the smaller firm and (hopefully) developed the necessary skills. As someone else mentioned, there are a lot of bad appellate briefs out there. Appellate shops are always looking for good writers or smart associates who are willing to learn good writing.
Hmm, unsurprisingly most of the options seem to be in DC, with a bit of SoCal and NYC. What are the best appellate options, if any, for someone who wants to be in the Bay Area? (HYS, DCt and CTA 9 clerkships, non-L.Rev., a couple years of BigLaw trial lit.)
I was able to do appellate work by being an excellent writer in an underfunded municipality's law bureau and being begged to help relieve the burden of appeals. I'm one year out of law school and now have two appeals in the NY appellate division.
Also, if you practice in NY, the Departments have already decided the case on your briefs, so put your effort into that. Be prepared to answer questions, but if you have a cold bench, the best thing you can do is say "Unless the court has any questions for me, I rest on my submission." They appreciate being able to move along and not have you regurgitate your brief. If they have an issue with your brief, they will let you know.
It's unfortunate that the comments on this thread have mostly been snark rather than professionally oriented discussion of the topic. There are some small firms focusing on appellate practice whose capabilities and impact go well beyond their size. One example is the Washington, DC firm of Spiva & Hartnett. I have no personal connection with that firm, but it has a strong and growing reputation for effectiveness.
While many of those engaged in appellate practice do have backgrounds involving law review and clerkships, that is mostly because the personal qualities of intellectual curiosity, analytical ability and work ethic that make for a capable appellate lawyer also contribute to earlier success in law school. Attorneys whose backgrounds do not include such credentials can still practice appellate law, although they may find entering this field a bit more challenging.
Not all appellate practice is before the U.S. Supreme Court, or even before U.S. Circuit Courts of Appeals. All 50 states have appellate courts, and it would appear somewhat easier to enter this area of practice before such courts than to start at the top. The level of professional competence required to be a successful practitioner before top level state appellate courts such as the New York State Court of Appeals should not be underestimated, however.
I agree with 51. There has been far too much snarkiness in this thread. Another small appellate shop that has a reputation for professionalism and effectiveness is Cock & Balls, LLP. Several members of the Elect have joined the venerable firm in the last few years. The firm's signing bonuses are considerable and there have been no recent layoffs.
My experience probably won’t be instructive for too many others, but here goes. I started as a staff attorney for the appeals branch of a busy urban public defender office. During my 8-year tenure, I ended up arguing many, many scores of appeals, mostly at the intermediate state appellate level, but also fair number at the highest state court, and the local US Circuit, and even had one winner in SCOTUS. I went out on my own (this was more than 30 years ago), and have been doing only appeals ever since, mostly state intermediate appellate, mostly criminal, but a goodly number in state & federal courts elsewhere. I am also an adjunct at two local law schools, where I teach appellate advocacy & run a criminal appeals clinic. I love doing the appeals; I love the teaching equally.
The whole work package is a ball, though not the speediest way to a cushy and care-free retirement. Well-paying cases are few and far between, and inasmuch as I am temperamentally a lone wolf and don’t much care for the company of braying trial litigators, I don’t get too many referrals from them. Those come mostly from former clients, losers as well as winners. I do no advertising, no glad-handing, no websiting.
The real pay-off for me: almost total control of the rhythm of my work life. Appellate brief-filing deadlines are set well in advance, are generally “soft” adjournable deadlines, and no one cares whether the deadline is met by working 9 to 5, or midnight to 8; weekdays and weekends are essentially fungible. There’s no drop-in trade; I dress as I please except for the occasional client visit, and do 99% of my work out of a home office. I can pretty much choose when I want to take vacations, winter & summer, and for how long. I’m not answerable to any beeper or crackberry. If I’ve done alright between Labor Day and June, July & August is play-time.
Bottom line: For those who seek to fatten their portfolios, who yearn for yachts, limos, and velvet-rope events and similar perquisites, mine is not the path to follow. But if you value plenty of freedom and flexibility — ample high-energy time for non-pecuniary pursuits (reading non-legal stuff; hobbies; travel; cultivating lasting friendships) not to mention a healthy marriage— there is another way to professional satisfaction: solo appellate practice.
48 & 51,
Thanks for your sharing.
As a non-L.rev. 2L at an H/Y/S, I hoped to practice appellate in the future, but I was fearful that my failure to make law review might preclude me from following my ambition. This notion was disheartening. It also struck me as unfair and absurd: How could my performance on a one-week competition in my early 20's determine or significantly influence what I ended up doing with my life into my 40's/50's?
I found your observations reassuring; I'm less worried. Still, given that entering the field is "more challenging" without law review than with it, I'm wondering whether the risk is worth running, and whether I should focus my energy elsewhere.
To calculate the risk, I have an obnoxious question ... which will inspire some snark ... Will graduating from a top school and landing a clerkship soften the blow of not being on law review, enough so that entering the field won't be *that* challenging? If the only missing piece to the puzzle is law review, will it really be hard to enter the field?
Thanks for the shout-out, #35.
I posted on this topic more than two years ago ( http://tinyurl.com/ylqdpxu) and don't think much has changed since then. Basically, law review + clerkship + hard work and networking = appellate practice.
It doesn't have to be BigLaw, but that experience helps. Also, if your state offers certification in appellate practice, pursue it.
D. Todd Smith
http://texasappellatelaw.com