CHAPTER 18 Building an Appellate Practice

• Jurisdiction: United States

CHAPTER 18

Building an Appellate Practice

18-1 Introduction: A Mindset for Business

Appellate lawyers tend to be an intellectual, introverted, self-selected group. Most of us would rather research the law or work on a brief than attend a client-development function. But the truth for most of us is that work will not come in the door simply because we write good—even great—briefs.

Building a self-sufficient appellate practice requires a marketing mindset. To develop that mindset, appellate lawyers should focus on ways to gain experience, build personal contacts, grow a reputation, and then find ways to connect with potential clients and appellate work. This chapter outlines some approaches to that process.

18-2 Gaining Experience

The first step in building an appellate practice is to gain appellate experience. Without experience, it is hard for attorneys to build a reputation or market their skills as an appellate lawyer.

The following are some ways in which successful Texas appellate lawyers have gained experience:

18-2:1 Working for a Court or Solicitor General's Office

One way to gain appellate experience early in a legal practice is to work for an appellate court. Most law clerks and briefing attorneys gain intensive practice with the primary tools of an appellate lawyer—reading, researching, and writing. They are exposed to good and bad appellate briefs and oral arguments by a range of advocates. So they see which approaches and types of arguments work and which do not.

More importantly, clerks and briefing attorneys learn how judicial decisions are made. They gain the experience of viewing a case from the audience's perspective. They read briefs and listen to arguments as someone involved in the decision between two positions, rather than as an advocate pursuing only one position. And they learn about court procedures and the decision-making process.

A clerkship is not necessary for an appellate practice. Many of Texas's most successful appellate attorneys never check for a court. But it does give a starting attorney valuable experience and a head start.

Working in the office of the Texas Solicitor General is another avenue for rapid experience of a different type. That position provides rapid experience as an advocate. Compared to most positions in private-sector firms, working for the solicitor general can give attorneys the opportunity to handle more appeals, and give more oral arguments. Historically, this has been one of the best positions for quickly meeting the experience requirements for Board Certification in Civil Appellate Law.

18-2:2 Expressing Interest and Asking for Appeals

For lawyers who seek to transition from a litigation practice to an appellate practice, a useful way to start is by expressing an interest in appellate work. Within a firm it often helps spread the word that you would like to work on appeals. In larger firms, the best way to get appellate work usually is to speak with an appellate or litigation partner about your interest in working on appeals. In midsized firms, or litigation boutiques, it often helps inform other litigators of your interest in handling appeals. Many litigators do not like the research or writing required to handle an appeal and will gladly seek your help when they have an appeal.

Even for small-firm or solo lawyers seeking to build an appellate practice, it helps talk with other lawyers about your interest. Discuss your interest in appellate work at local bar or other networking events. Express your interest on social-media sites. Or send a letter or email directly to small-firm litigators who may want to bring in help on an appeal.

18-2:3 Pro-Bono and "Almost" Pro-Bono Appeals

Pro-bono appeals are a great way to get experience as a lead appellate attorney for lawyers who have little prior experience. Paying clients are often reluctant to have their appeal handled by a lawyer who has never handled one. But indigent clients are often happy to have any lawyer take their case.

The State Bar of Texas Appellate Section and many local bar groups offer active pro-bono programs, often in conjunction with the court of appeals. Appeals typically are made available to volunteering attorneys through a listserv process. When bar organizations announce potential appeals by emails, usually with some information about the type of case, volunteering attorneys respond with their interest in handling it. Many of these pro-bono bar programs also offer the chance to work with an experienced appellate mentor while handling the appeal.

One body of underrepresented clients consists of small businesses or individuals who are not impoverished but cannot afford a high-priced appellate specialist. Less-experienced appellate lawyers often can gain work by offering discounted or low flat-fee rates to handle appeals. This approach is a useful way to get a broader range of substantive experience than is provided by most pro-bono appeals.

One way to find these types of potential clients is to express your interest to more...