Young Lawyers Corner: Getting Appellate Experience
By Seth T. Floyd – March 14, 2013
In many law schools, writing courses are geared toward teaching students how to write appellate briefs, usually to a federal circuit court of appeals or the U.S. Supreme Court. Students then apply the skills they learn in the classroom to regional and national competitions where they receive a record, draft a 30-page brief, and then present their oral arguments to a panel of attorney-judges. While invaluable, this experience does not represent the typical experience of legal practice, especially for new associates. In other words, a partner is unlikely to walk into the young associate’s office, set down a neat, bound record, and instruct the eager advocate to draft the winning brief to the Supreme Court on an issue of first impression.
On the contrary, for many new associates, getting appellate experience can be difficult. It is much easier for a partner to have a new associate draft a discovery motion, defend a deposition, take off down a research trail, or (gasp!) review boxes upon boxes of documents, than to draft an appeal. Sometimes, it is impractical to involve in an appeal a new associate who was not involved in the proceedings below and who is unfamiliar with the record. Additionally, the partner who litigated the case in the trial court may wish to personally draft the appellate brief. Unlike trial practice, appeals have fewer moving parts and, therefore, fewer opportunities for new associates to be a part of the process.
Despite these challenges, there are many ways that you can gain appellate experience right now.
Take a Pro Bono Appeal
While legal education provides a helpful foundation for practice, there is no substitute for hands-on experience. Therefore, one of the best ways to learn how to manage an appeal is to actually do one. Although a firm’s paying clients might be less than thrilled about a new associate taking over a complex appeal, there are many litigants without counsel who would be grateful for an attorney to take their case. Where an appeal would otherwise be advanced pro se, appellate courts are equally thankful to have a pro bono attorney articulate the issues on appeal and present cogent legal arguments.
Every federal circuit and many states have some form of pro bono appellate program. While some, such as the Second Circuit Court of Appeals, have minimum practice requirements, others do not. In jurisdictions without minimum requirements, new associates should review the court’s website or contact the clerk’s office to find out how to apply to take pro bono appeals. Once you apply and begin thinking of accepting an appeal, it is also important to confer with your firm’s appellate-practice group to make sure the issues presented do not conflict with the firm’s current work or clients.
New associates should be wary, however, because even simple appellate issues require significant time and effort to brief. Recognizing the commitment required for a pro bono appeal, many courts, such as the Ninth Circuit Court of Appeals, guarantee oral argument to all pro bono counsel. Although prepping for argument adds even more time to the process, there is no substitute for handling your own appeal and then having the opportunity to argue it before a panel of real judges. The time spent will pay off multifold when, in your third or fourth year, you already have an appeal or two under your belt. Other attorneys and paying clients may then seek you out to handle their next appellate issue because you have real appellate experience.
Offer to Edit Briefs
There are two important skills that new associates generally have and seasoned attorneys often lack: researching and cite checking. Even the best appellate attorneys can use a little help with their cite checking, and who better to assist than an eager young associate? Offering to take on the onerous task of reviewing citations is an excellent way to show that you are diligent and detail-oriented. Also, for those with recent clerkship experience, chances are you are familiar with the court’s preferred writing and style, and you can impress the partner by making sure the brief conforms to the court’s preferences. Mention this skill when asking the partner if you can edit and cite check a brief, and you are sure to get in on the job.
Because court rules on the style and content of appellate briefs are often lengthy and quite explicit, editing a brief is also a great way to get intimately familiar with the rules of appellate procedure in your jurisdiction. Perhaps more importantly, it also shows that you are a team player and are willing to get your hands dirty, and it may save the client money as well. If you do a good job, chances are you may be drafting the next brief.
Offer to Assist with Moot-Court Arguments
Put your moot-court experience to work by offering to assist the appellate attorneys in your office prepare upcoming oral arguments. New associates can be a cost-effective way to fill a moot panel, and the benefits are two-fold: First, the firm gets a mock judge who has recent experience with argument settings through, for example, a clerkship; second, the associate gets to see how a seasoned appellate attorney prepares a case for oral argument. You will also get familiar with the briefs and the legal issues.
Watch or Listen to Oral Arguments
While doing billable work is the primary concern for most new associates in law firms, there are some valuable learning opportunities you can avail yourself of during your non-billable time. One of these is watching or listening to oral arguments. Most federal and state courts either stream arguments live online or post prior arguments. Pick an argument by a well-respected advocate and spend 20 minutes getting a sense of how an appellate practitioner handles the process.
Similarly, the U.S. Supreme Court began posting audio of all oral arguments online during the 2011 term. All of the arguments (including the multi-day argument over the health-care law) from that term, the current term, and the 2010 term are available on the Supreme Court’s website.
Get Involved in the State Bar
Many state bars have sections or practice groups devoted to appeals. Join this group and attend a meeting. Not only will you learn about what is going on among the appellate bench and bar, but it is also a great way to cultivate relationships and network with other appellate practitioners. Down the road, your involvement in the section may lead to appellate referrals. In addition to attending meetings, local and state bar publications are constantly soliciting articles for their respective publications. Write a summary of recent opinions or find another topic of interest to the bar and then submit an article.
If you apply these practice tips, you will not only improve your appellate skill set, but also you will position yourself as your firm’s next appellate lawyer.
Keywords: litigation, appellate practice, pro bono, brief writing, moot court, oral argument
Seth T. Floyd is an associate with McDonald Carano Wilson, LLP in Las Vegas, Nevada.