Appellate Practices: Big, Small, And Dangerous
Good appellate practices are good, but bad appellate practices aren't just bad -- they're dangerous....
Appellate practices are great.
For lawyers who enjoy thinking and writing, but don’t have much taste for the hand-to-hand combat of discovery, appellate practices are pure joy. Appellate advocates bask in the intelligence and majesty of the law, without having to do daily battle with psychopaths.
For big firms, appellate practices are the crown jewels of the litigation side of the shop: “We’ve argued cases in the Supreme Court!” “We participated (either on the merits or as amici) in ten percent of the Supreme Court’s docket last year!” Shout it to the heavens! What’s the implicit message?
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“We’re doing these cases for free!”
Oh, Herrmann, you’re such a cynic. Surely the implicit message is: “We’re God’s gift to advocacy!”
It’s a marketer’s dream.
But one leading appellate lawyer recently told me that the Great Recession has hurt his practice in ways you wouldn’t expect. And I’m here to tell you that, although appellate practices done right can help a firm, appellate practices done wrong are dangerous things . . . .
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They don’t teach you in law school about the unseemly underbelly of the law — the endless quibbles, silly histrionics, and sheer tedium that fall under the rubric of “discovery.” Folks who love the law, but prefer not to spend their days meeting and conferring about the adequacy of document productions, may be drawn to appellate advocacy.
I speak from (limited) experience: I dabbled in this space. When I joined a Verybiglaw firm as a sixth-year associate in 1989, armed with the credential of having clerked in the Ninth Circuit, I looked for a chance to do some appeals. I sent an email to the guy who ran my firm’s appellate practice. Back then, however, “mere” appellate clerks didn’t make the grade. The newly-formed appellate practice consisted exclusively of Supreme Court clerks, and there was no way that gang would embrace the likes of me.
Over the course of the decades, I nonetheless handled my fair share of appeals. And the appellate group degraded over time to the point where it would accept any stray cretin — my chance, at last! In 2007, the (new) head of my firm’s appellate practice invited me to join the gang.
I accepted, but by then it was too late. I had already established a reputation in a substantive area of law, and the head of my firm’s product liability practice didn’t want me to stay in the appellate group. He needed a “stand-up trial lawyer who handles pharmaceutical and medical device product liability cases. I can’t market you as a trial lawyer if you’re in the appellate practice. Clients will think you’re a pointy-headed intellectual who can’t relate to juries. You have to leave the appellate practice so we can sell you as a pharmaceutical products trial lawyer.”
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He was probably right. Whether you intend to specialize or not, the years brand you with a reputation that you shouldn’t lightly abandon. My stint in an appellate practice lasted just over a year.
But I learned a lot from that year (and from observing many practices over the course of decades). High-end appellate practices at big firms serve an important purpose: They burnish the firm’s credentials as a litigation powerhouse. My sense, however, is that the Supreme Court aspect of those practices are largely loss leaders. Firms offer to represent parties in the Supreme Court for reduced fees or pro bono simply to pad the list of Supreme Court cases in which the firms have been involved. (Firms try to maintain their pricing more aggressively for amicus briefs in the Supreme Court, because amicus briefs don’t offer the glory of actually arguing before the Court. Even then, however, many firms will do amicus briefs for a relatively low fixed fee, so that the firms can boast at year-end that they “participated” in a high percentage of the Supreme Court’s docket.)
Even the best appellate practices in the country do not spend all their time working on Supreme Court advocacy. “Appellate Practice” is often shorthand for “a small group of lawyers within our firm who can actually think and write.” When trial lawyers need help on some tough legal issue or a complex motion, they may go to the appellate lawyers for help, and the appellate gang is likely to charge full freight for those assignments. Appellate lawyers can thus earn their keep — but when acting as trial, rather than appellate, counsel.
Okay: Good appellate practices are good. But bad appellate practices aren’t just bad; they’re dangerous. Why?
Because many clients expect appellate lawyers to be the cream of a firm’s crop. (As I just said, at many firms, the appellate lawyers are in fact the cream of the crop.) Thus, when Bigg & Mediocre chooses to hire retired state court appellate judge Bozo, who was never much good to begin with, and put him in charge of the newly-formed “appellate practice,” the firm is asking for trouble. Judge Bozo will happily share his mediocre insights and work product with clients, but clients will think: “That’s what this firm’s appellate practice produces? How bad must the run-of-the-mill litigators be?” That’s not a great marketing strategy.
What about small-firm appellate practices?
I recently had lunch with a guy who is a regionally prominent appellate lawyer. You’d go to him in a heartbeat to handle a case in his state supreme court or local federal circuit; I doubt he’s ever argued in the Supreme Court.
He shared with me this tidbit: “The Great Recession killed my appellate practice. Six years ago, lawyers at small firms would come to me for help. I handle appeals; they don’t; it was worth paying me to be sure the appeal was handled intelligently.
“The recession killed that. Now, no one has enough work, and everyone’s hanging on to every billable hour they can find. I’m being called by the same lawyers at other firms, but no longer to brief and argue their appeals. Now they’re telling me that they’re personally arguing appeals next month — and do I know anything about the panels they’ve drawn?
“My appellate practice was crippled by the Great Recession, and I’m not sure it’s ever coming back.”
Sucks for him.
It’s back to taking depositions — day after day of seven hours locked in a room with a sociopath.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
