For the last couple weeks, we’ve been doing a series on various areas of the law. So far, we’ve covered securities law and criminal law. This week we’re going to take up appellate litigation. While this is a relatively niche area, it is another one that a lot of people seem to talk about before and during law school.
Appellate litigation involves working on appeals. Once a trial court enters a judgment, the next option for litigants is to appeal the decision to the appellate court. In the federal system, appellate courts are referred to as circuit courts.
As a general rule, parties prepare briefs arguing their position and then, in some cases, the appellate court will bring the parties in for oral argument. Oral arguments are relatively short and provide an opportunity for judges to make specific inquiries regarding elements of the parties’ briefing that need clarification.
Because trial courts are responsible for finding the facts in cases, appellate litigation almost exclusively involves complicated questions of law. Thus, working as an appellate litigator is much more academic than working as a trial litigator. For some people, working out the intricacies of the law is the most interesting part of being a lawyer. For others who are more interested in the practical side of the law, this is their personal hell.
So, how does this work in practice? Some, but certainly not all, large firms have small appellate practice groups. These practice groups are usually staffed with a few partners and associates with impeccable credentials. Usually, appellate attorneys have at least one clerkship (generally at one of the circuit courts discussed above) on their resume, served as an editor on their school’s law review, and graduated in the upper echelons of their classes at the highest ranked law schools. Obviously these are not necessarily prerequisites for becoming an appellate attorney, but they are pretty close to the norm.
Despite the relative unattainability of these jobs, budding litigators often profess an interest in doing appellate work. Based on my experience, this is because a large percentage of opinions that students read in law school are up on appeal. There is a level of comfort with the work that is not present with, say, employment law, insurance law, or other forms of litigation. Additionally, a lot of law schools provide opportunities for students to engage in appellate work through clinics and externships. My brother, for example, argued a case before the Sixth Circuit Court of Appeals during his third year of law school (an accomplishment that I may never replicate over the course of my entire career).
The likelihood of devoting the bulk of your practice to appeals work is very small. It is much more likely that you’ll work in a specific practice group and, maybe, have the opportunity to work on the appeal of a specific case. Appellate work can be fascinating and rewarding, but it is not something you should expect to do early on — or ever — in your career unless you have the credentials to get your foot in the door.
For those of you wondering why I’ve been so litigation focused, I promise next time to try to get some information on the corporate side (as much as it goes against my personal commitment to never work on or become familiar with that side of the law).