Appellate Law

Insight for an Aspiring Appellate Lawyer

By D. Todd Smith

Over at his Legal-Writing Blog, Prof. Wayne Schiess offered up what one of his students wrote after expressing the desire to become an appellate lawyer and after working in the appellate-practice group at a law firm:

I learned some valuable lessons about appellate practice, and the difference between enjoying something in school and enjoying it in a law-firm setting.  The appellate group at the firm was very busy.  The partner I worked under was churning out two to three briefs a week. In my final few weeks at that firm, he gave me an opportunity to write a brief completely by myself.  It was an eight-page reply brief regarding a mandamus request to stop the discovery of certain documents.

Over the course of the next two weeks, I pored over the trial record, the appellee's brief, and the privileged documents.  I enjoyed it just as much as I had enjoyed brief writing in school.  But the time pressure was much greater, and the ability to fine tune and perfect my work was much less.  In the end, the experience made me realize something critical: Legal writing, on a high level, can be rewarding and interesting, but it can also be utterly draining.  I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm.  The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me.

Prof. Schiess wrapped up the post by saying, "Hats off to all you appellate lawyers, then."

I commented and added the following two cents:

That is indeed valuable insight.  Too often, law students have a pie-in-the-sky view of what appellate practice is really like.  Yes, you're more in control over your daily schedule than trial lawyers usually are.  But the average billable hour as an appellate lawyer is far more challenging mentally.  (And I should know, having done both for most of my career, though I'm heavily tilted toward appellate work now.)  Week after week of brief after brief can wear on you, but we press on because we enjoy the work and the challenge of changing (or holding onto) the result.

Thanks to Prof. Schiess for starting this discussion and to Elana Einhorn for bringing his post to my attention.

Full post as published by Texas Appellate Law Blog on September 16, 2008 (boomark / email).