Stand-Up Appellate Work

Assume that my company won a trial.

(You can stop cheering now. Or looking surprised. I’m just stating the hypothetical.)

The lead trial lawyer was a fairly senior person who had, years ago, worked as a federal appellate clerk. In the time since, the person had served as both trial and appellate counsel in many cases.

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When the time came to brief the appeal in my case, the lawyer asked if someone from the firm’s appellate practice could help with the appeal.

I was a little surprised. I understand the wisdom of adding a former appellate clerk (or judge) to an appellate team when people on the trial team have no appellate experience. Appellate clerks might understand, deep in their souls, the meaning of “standard of review” in a way that others do not. Appellate clerks can be helpful framing subtle jurisdictional or waiver issues. And a recent, local appellate clerk — someone who clerked in the Seventh Circuit last year, and your case is headed for the Seventh Circuit — might know things about the judges that are uniquely helpful.

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But, where none of those circumstances apply, why would someone who had real appellate experience need help from someone in the firm’s appellate practice?

I posed this question by email. The answer was multipronged: The appellate person was smart, the appellate person had added value in other cases, and so on.  But the last prong struck me as bent: The appellate person has had more “stand-up appellate experience than I have.”

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“Stand-up appellate experience” was a new one on me.

I’ve heard of “stand-up trial experience.” I know what that means. And it counts.

Trials can be long. They often last for several days (or more).

During a trial, unexpected things happen. A witness says something unexpected; it helps if you’ve seen, and reacted, to similar unexpected things in the past. The other side objects in a way that you didn’t anticipate. At that point, you can’t be gasping for air; your instincts must be good. The judge decides that a document might be admissible; “counsel should lay a little more foundation.” I don’t want trial counsel who has only book-learning about the meaning of the word “foundation.” I want someone who knows in his or her heart what a judge who asks for more foundation is looking for and can provide that foundation in the next four, unscripted, questions. Experience counts.

But “stand-up appellate experience”?

Let me rule out practice in the U.S. Supreme Court, which may be unique. In the Supreme Court, you’re always arguing to the same nine justices, and those justices have set out their views repeatedly over time. A person who argued a couple of times in the First Circuit, and then once in appellate court in Kansas, may not be the right person to argue in the Supreme Court. (Then again, maybe that’s just a fiction perpetuated by the Supreme Court bar. First-time advocates frequently do a very nice job before the Supreme Court.)

But think about other appellate courts. In the typical federal appellate court, you have a randomly selected panel of three judges. You may or may not have advance knowledge of who those judges will be. Given time, anyone can do the research to see if a judge on your panel has written an opinion in the relevant area of law (and that you didn’t cite in the briefs). Nothing specialized helps here.

Moreover, in a sense, appellate arguments are easy.  They are short. They might run for fifteen minutes per side. They can very largely be scripted.

The record is established. The relevant authorities have been cited, and the advocates have read them. With decent preparation, an advocate will anticipate the questions the panel might ask. (I was in private practice for 25 years. During that time, I was asked only one question by an appellate judge that I hadn’t anticipated in advance.) The advocate could, and should, have rehearsed both the uninterrupted argument and the responses to likely questions. Not much happens in appellate arguments that come from out of left field.

So “stand-up appellate experience” as a reason to add an appellate lawyer to an otherwise capable trial team?

It sounds like a silly phrase to me.

But we’ll see what reaction I get to this column.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

Topics

Biglaw, Courts, In-House Counsel, Mark Herrmann, Outside Counsel