In-House Counsel, Trials

Choosing Between Trial And Appellate Work

Should you pursue a trial or appellate career? Follow your heart.

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What would you rather do for a career — try cases or argue appeals?

Wait! Even my question might be a bit deceptive. Here’s the real question:  What would you rather do for a career — be a trial lawyer or be an appellate lawyer?

Years ago, one of my partners who had clerked on the Supreme Court (and was thus a natural candidate for my Biglaw firm’s appellate practice) told me that he preferred trial to appellate work:  “The fun part of the game is building the record.  That’s where the real creativity is.  If you’re an appellate lawyer, you’re forced to rely on the case that someone else assembled, and that’s not nearly as much fun.”

I’ll grant you that.  We’ll put “creating a record from scratch” as the first item on the “pro” list of being a trial lawyer.

But there’s a corollary to “creating a record.”  “Creating a record” is almost a euphemism for “doing discovery.”  And “doing discovery” is itself a euphemism for “suffering through months of mind-numbing tedium while lunatics on the other side try to make your life miserable.”

Building a record may get your creative juices flowing, but it’s hard to assemble a record without enduring the flipside — discovery — which can be quite a drawback.

Appellate work, in contrast, is mercifully discovery-free.  You’ll have to study a trial record to prepare an appeal, but you can do that alone in a room.  You won’t have to wade through millions of pages of documents, draft meaningless responses to endless document requests, or play all the other silly games that pretrial work requires.

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You also won’t have to endure assaults and insults from opposing counsel.  If you do trial work, you and opposing counsel may spend endless days locked together in small conference rooms taking and defending depositions. Depositions are not refereed, and the prospect of engaging daily in unrefereed hand-to-hand combat may not be too appealing.

Although you don’t create a record when handling an appeal, you do craft appellate arguments.  Crafting those arguments may involve sifting through a smaller sandbox than creating the entire trial court record, but it’s not necessarily a boring sandbox:  Thinking about standard of review; selecting arguments that are worth making; identifying obscure legal issues; and preparing and delivering a persuasive oral argument can all be interesting tasks.  Appellate work may offer plenty to fuel your creative desires.

What are the other advantages of doing trial work?

Trials are a hoot.

If you’re a performer at heart (but really can’t sing or dance), then trials are a way to get into the spotlight.  You’re center stage; you’re doing battle; and you’re winning or losing. Trials are great!

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But that’s just one side of the coin.  Another former colleague of mine, who had worked as a Department of Justice trial lawyer for years and tried a ton of cases, begged to differ: “Trials are over-rated.  They’re terribly stressful. They leave you sleep-deprived.  It’s okay to try cases every once in a while, but I really can’t bear a steady diet of trials any more.”

So trials are a hoot, but only if you have the necessary desire and dedication.

What else can be said about choosing a trial or appellate career?

At most law firms, trials don’t happen.

In a few environments — prosecutors’ offices; small litigation shops doing high-volume, low-exposure cases — trials happen.  But at most law firms, and virtually all big firms, trial are an extraordinarily rare commodity.  Signing up for a career as a trial lawyer may thus mean spending your life doing endless pretrial work in anticipation of main events that occur perhaps once a decade.  That’s not quite as appealing as the words “being a trial lawyer” sound.

Okay — trials don’t happen.  Do appellate arguments happen?

They do.  But you’d have to be an awfully special appellate lawyer to build a practice that consisted entirely of handling appeals.  Unlike much pretrial work, appellate work comes in small portions.  Handling an appeal typically requires only a very few lawyers, working a relatively small number of hours. It’s hard to fill an entire year (or an entire career) with those relatively bite-sized pieces of business.

That’s why most firms don’t actually have “appellate” practices.  Rather, they have “appellate and motions” practices, or some such thing, which reflects the truth that most “appellate” lawyers spend much of their time briefing major issues in trial courts and not actually handling appeals.  That work can be fun, too, of course, but don’t assume that your career as an appellate lawyer will have you arguing in appellate courts weekly.

The fact that appeals are small and thinly staffed implies another truth: Unless you’re a truly exceptional appellate lawyer, you won’t be an important rainmaker at your Biglaw firm if you follow your heart to an appellate career. A trial lawyer who lands one huge case (or a collection of related cases) may be credited with having brought millions (or tens of millions) of dollars worth of work into her firm.  And those cases are uniquely valuable to big firms, because the cases are highly leveraged.  A big case can be run by one (or a few) partners, supported by a cast of dozens of associates.  Profits per partner, here we come!

Appeals, not so much.  An appellate lawyer who lands a fairly large appeal has brought in only a tiny fraction of the revenue represented by a major new matter at the trial level. And, because appeals typically require only one partner and an associate or two to handle, appellate work is not highly leveraged and is thus generally less profitable for big firms.  

Should you pursue a trial or appellate career?

Follow your heart.

Work occupies a lot of your life, and it’s important that you look forward to going to work most days.  So pick between trial and appellate work based on which type of work you love.

But consider the things I’ve mentioned here, so you make your choice with your eyes wide open.

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.

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