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Appellate Litigation

Overview

Appellate litigators work on appeals in both federal and state courts. It can be difficult to build a practice that is purely appellate work, especially outside of larger markets, but many general litigators also practice at the appellate level. Purely appellate litigators do not deal with developing a factual record through document discovery or depositions, so the work is focused on legal research and writing. Appellate litigation is the most direct application of what law students learn in their 1L core curriculum. Cases tend to be much shorter in duration than those handled by general litigators and can require practitioners to delve into arcane issues. Law students interested in practicing in this area should get law review or other journal experience in law school and try to get a federal clerkship, especially at an appellate level.

Featured Q&A's
Get an insider's view on working in Appellate Litigation from real lawyers in the practice area.
Tacy F. Flint, Partner
Sidley Austin LLP

Describe your practice area and what it entails.

The key role of an appellate litigator is applying judgment to answer hard legal questions. Most often this happens in the writing and editing of briefs. When you’re writing a brief for a client appealing an adverse judgment, your job is to crystallize the entire case into one document that persuades three judges that the trial court got it wrong. Your first task is to choose which issues you’re going to present. This takes judgment: Which issues will let you make the most compelling arguments for getting the relief that is most important to your client? Which issues build on each other thematically so that the complete picture paints your side in the best possible light? Too many issues and you won’t have enough space to develop any single argument, plus you’ll lose credibility by suggesting that the lower court judge (who is, after all, a colleague of the panel you’re in front of) couldn’t get anything right. But you also don’t want to leave strong points on the table.

Once you land on the right set of issues, your next job is to cull through the record to put together a factual narrative that is both scrupulously accurate and right in line with the case law you’ll be relying on. With the substance in place, your next job is to choose the language that best expresses it. You need a tone that matches your substantive position plus some snappiness to keep the reader’s attention—and you want to use as few words as possible without losing accuracy or key points. Every step of the process demands judgment.

And there’s a lot more to an appellate practice than appellate brief-writing. Most appeals also involve oral argument, which requires a whole different set of judgments. And appellate lawyers routinely write and edit briefs and argue motions in lower courts, which involve related but distinct strategic judgments. Beyond briefs and arguments, appellate lawyers frequently weigh in on other legal questions: Is this regulation valid? Should we file a lawsuit? What are the legal risks if our organization takes X, Y, or Z step? Really, anything that involves thinking through hard legal questions fits within the practice of an appellate litigator.

What types of clients do you represent?

Because my practice does not focus on a particular subject matter, my clients are quite varied. Most are large corporations—including technology companies, financial services firms, insurance companies, and life sciences companies. I also represent a number of nonprofit associations and foundations, as well as individuals facing high-stakes personal or professional disputes. In my pro bono practice, I have represented individuals seeking asylum in the United States, criminal defendants, students seeking equal educational opportunities, groups working to promote fairness in legislative redistricting, and nonprofit organizations challenging improper restrictions on immigration.

What types of cases/deals do you work on?

One of the best features of my practice is that I get to work on all kinds of cases. For example, I’ve worked on a number of cases raising fascinating regulatory and statutory interpretation questions. I’m currently representing a nonprofit organization that provides services to immigrants, which is challenging a new rule promulgated by the Department of Homeland Security. Our briefs in the district court and on appeal deal with statutory interpretation, administrative law, standing, and the proper scope of an injunction—some of the most pressing legal issues out there.

I also work on a wide variety of business-related cases, involving intellectual property, contracts, antitrust, ERISA, securities laws, and the myriad other legal issues that businesses face. Each case involves its own educational phase, where I learn the facts and the law. Being new to something is often an asset: When you’re starting fresh, you can see which points prove important to someone coming to the question for the first time, as the judge will be.

How did you choose this practice area?

From early in law school, I liked legal analysis and writing. Then clerking on the court of appeals and the Supreme Court clinched my interest in appellate litigation. For one thing, the exposure I got in those two years to appellate argument was a terrific education. While nearly all of the lawyers litigating in the Supreme Court are top notch, on the court of appeals, you see a wider spectrum of quality, candor, and persuasiveness in legal argument. You can learn a lot from both excellent and dubious briefs. Having seen all that from the perspective of a clerk positioned me well to join the fray.

And spending two years around appellate courts and appellate arguments showed me how much I liked it. In those jobs, I loved getting to think through hard questions and then talk about the answers with the brilliant people I worked with in chambers. Now, that’s what I do at Sidley.

What is a typical day like and/or what are some common tasks you perform?

My three main tasks in any given day are reading, meeting, and writing. If I’m reading, it’s usually a brief that has been submitted by the other side, cases, or transcripts or documents that make up the record in our case. If I’m in a meeting, it’s with other lawyers or our client as we decide how we’re going to proceed. We toss ideas back and forth about what arguments look good or bad, what we think our brief should say, or what points warrant more emphasis or explanation at oral argument. And then I’m writing. Usually, I’m writing with the benefit of a first draft prepared by one or more associates, which is a real pleasure. Inevitably, they come up with points or unearth facts or authorities that I didn’t hit upon, and the product of our joint efforts is all the stronger.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

The number-one experience is a clerkship. An appellate clerkship is ideal because it gives you exposure to a year’s worth of appellate briefs and oral arguments. You quickly see what you find persuasive, what questions you want appellate advocates to address, and what material is most useful to you as you’re working on the case. And you also see on a daily basis how your judge reacts to different arguments and styles.

What misconceptions exist about your practice area?

Many people think, not unreasonably, that appellate litigators do appellate litigation. That may be true for some appellate lawyers out there, but not me. At least half of my practice is in trial courts. I work with trial teams to write key trial briefs like preliminary injunction motions, dispositive motions, and Daubert motions; I work on jury instructions and post-trial motions; and I help with legal analyses and strategy questions that come up throughout the life of a case.

What are some typical tasks that a junior lawyer would perform in this practice area?

Junior lawyers working on appeals are usually writing the brief. Typically, the team will talk together about the general arguments we want the brief to make and the key points we want to emphasize. From that point forward, it’s the associate’s show. She handles the case law research, mines the record, ascertains the rules of the court we’re in, and writes it all up. My favorite is when, time permitting, one associate can handle the whole shebang, because that makes for the most cohesive overall document.

What kinds of experience can summer associates gain in this practice area at your firm?

I use summer associates on appeal teams as often as I can. In a few cases, when the timing and circumstances worked out well, I have asked a summer associate to write a complete brief. More commonly, I ask a summer associate to write a stand-alone section, which we insert into the larger brief. And because appellate briefs allow for in-depth treatment of key legal issues, an appeal team can really benefit from a summer associate’s deep dive into case law.

What is your routine for preparing for oral arguments?

I like to identify 10 or so questions that have been lingering in my mind about the case, and then I write out answers to those questions. Next, I read my written answers aloud. In case you haven’t read your own writing out loud recently, I can tell you that—like hearing your own voice—your own writing read aloud sounds clunky and awkward and never says quite what you want it to say. So it takes several tries and several rewrites before I get to a set of answers that I’m satisfied with. As you go through this process with all 10 questions, you’ll see yourself coming back to the crucial themes over and over, and now you will have written and spoken them aloud many times. These are the themes you want to hit when you answer the judges’ questions at argument. You make sure to answer the judge’s particular question, and use your thematic point—now firmly implanted in your mind—to demonstrate that that answer fits into and supports your view of the case.

Tacy F. Flint, Partner—Litigation

Tacy is an experienced appellate litigator. She authors briefs and critical motions in a variety of commercial and constitutional cases, and she has argued in state and federal courts across the country. She is skilled at pulling apart complex legal and factual topics so they can be woven together into the most compelling argument for her client. Tacy’s strong advocacy for her clients won her recognition in 2017 as one of 40 Attorneys Under Forty in Illinois by Chicago Daily Law Bulletin and as one of the 60 Most Influential Women Lawyers in Chicago by Crain’s Chicago Business. 

Tacy’s practice spans a wide range of legal issues, including antitrust law, ERISA, securities laws, intellectual property, federal jurisdiction, and the First Amendment. She maintains an active pro bono practice and has represented numerous clients in cases concerning immigration, education reform, and fair elections. She is also co-chair of recruiting for Sidley’s Chicago office and a member of the firm’s Committee on Retention and Promotion of Women. Prior to joining the firm, she served as a law clerk to Justice Stephen Breyer and Judge Richard Posner.

Daniel E. Jones, Partner • Daniel Queen, Partner
Mayer Brown

Describe your practice area and what it entails.

Dan J: My practice focuses on defending class actions at the appellate and trial levels and providing strategic counseling to clients. I am responsible for crafting persuasive appellate briefs, as well as district court briefs on dispositive motions, motions to compel arbitration, and oppositions to class certification.

Dan Q: I handle pre-trial, trial, and appellate work in state and federal courts. I work on a wide variety of commercial litigation disputes, though I have a heavy focus on financial disputes, technology-related issues, and consumer class action litigations.

What types of clients do you represent?

Dan J: I principally represent technology and telecommunications clients. I also frequently represent business associations. In my pro bono work, I principally represent individuals in civil rights litigation.

Dan Q: Many of my clients are financial institutions or technology companies, but I also have clients in various other fields—including real estate companies, insurers, and food manufacturers, just to name a few examples. On the pro bono side, I have worked with nonprofits and individual clients both in and out of the appellate context.

What types of cases/deals do you work on?

Dan J: Almost all of my paid cases involve defending corporate clients in class actions, but they cover a broad array of issues, including Article III standing, personal jurisdiction, arbitration and interpretation of the Federal Arbitration Act, and application of Federal Rule of Civil Procedure 23. The appeals I litigate frequently present cutting-edge issues and provide the opportunity to shape these important areas of the law.

Dan Q: I handle class action litigations arising from a variety of claims, such as false advertising, labor and employment issues, and violations of the Fair Credit Reporting Act. I also handle non-class cases, including commercial disputes, trade secrets and intellectual property litigation, and real estate matters.

How did you choose this practice area?

Dan J: Like many appellate litigators, I was attracted to the opportunity to shape precedent and tackle legal issues of broad significance to our clients. As a law student and law clerk to an appellate judge, I thoroughly enjoyed researching and writing analyses of thorny legal issues. I was fortunate enough to land a job in Mayer Brown’s Appellate practice, which allowed me to continue that type of work professionally.

Dan Q: I am not solely an appellate litigator, but I am drawn to the appellate side of our cases out of a love of writing and conceptual thinking. Appellate litigation provides a unique opportunity to influence the law while advocating for our clients. And the caliber of attorneys and judges at the appellate level is unparalleled.

What is a typical day like and/or what are some common tasks you perform?

Dan J: My practice principally involves developing and discussing legal strategies with clients and colleagues and drafting, reviewing, and editing appellate briefs and critical trial motions. I also spend time monitoring class action cases of interest to clients and reporting on significant legal developments.

Dan Q: One of the great benefits of my practice is that every day is different. I lead the briefing team on most of my cases, so I spend much of my time writing. I also spend a good chunk of the day discussing legal strategies with my colleagues and clients. But you also could find me handling discovery issues, negotiating with opposing parties, preparing agreements, or working on any number of other projects.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Dan J: Appellate litigation requires excellent research and writing skills, and the best way to acquire those is through practice, practice, and more practice. An appellate clerkship provides both the ideal opportunity to hone these skills and exposure to many examples of effective (and ineffective) advocacy. It is also enormously helpful to seek out feedback on your drafts from more senior associates and partners who are experienced brief writers and appellate advocates.

Dan Q: To be an effective appellate attorney, the single most important skill is writing. As a law student, you should take classes and participate in extracurricular activities that give you more opportunities to write and to hone your legal research skills. After law school, consider a clerkship, which will train you to write more effectively and better analyze competing legal positions. Once you join a firm, embrace every writing opportunity you can get—briefs, memos, articles, and anything else you can get your hands on.

What do you like best about your practice area?

Dan J: There is a unique and powerful satisfaction that comes from influencing the development of the law at the appellate level, yielding results that benefit not only our client in a particular case, but also other clients in future cases. It is also a privilege to get to work each day with incredibly smart and thoughtful colleagues to come up with convincing answers to difficult legal questions.

Dan Q: I enjoy the long-term strategic thinking required for cases involving appellate issues. Rather than focus just on the day to day, you need to lay the groundwork for the appellate record, focus on the issues that will draw an appellate court’s attention, and consider the broader impact of an appellate decision on your client.

What is unique about your practice area at your firm?

Dan J: Mayer Brown has a tremendously deep bench of appellate litigators, as opposed to a figurehead practice where the majority of the work flows through a single senior partner. This model results in a diverse array of appellate matters and, because the work is spread around, increased appellate opportunities for junior lawyers.

Dan Q: At many firms, appellate litigators would not necessarily touch a case before it is appealed. That’s not true here, where our appellate litigators are often intimately involved at the trial level, particularly in high-stakes cases. Likewise, many of our litigators who focus more on pre-trial and trial work are attuned to potential appellate issues from the outset of the case, and they are intimately involved in the appeal if there is one.

What are some typical tasks that a junior lawyer would perform in this practice area?

Dan J: Junior associates in Mayer Brown’s Appellate practice have opportunities to take very hands-on roles in our matters. They are tasked with drafting all, or sections of, appellate briefs and dispositive district court motions. Other common tasks include in-depth research support for briefs and drafting substantive memos for clients. Through our pro bono program, junior associates can brief and argue entire appeals as early as their first year or two at the firm.

Dan Q: As Dan said, junior associates will be responsible for drafting briefs, preparing memos, and developing strategies right out of the gate. We love junior lawyers who have a passion for the law and a willingness to learn, and we give them as many opportunities as we can.

What are some typical career paths for lawyers in this practice area?

Dan Q: Appellate lawyers tend to be passionate about briefs, oral arguments, and legal theory. Those skills lend themselves not only to private practice, but also litigation careers at the government and in the nonprofit sector. Some attorneys begin their practice at private firms and then transition into public interest fields, and we also have attorneys who joined the firm after working for the Department of Justice and other federal and state agencies. Other well-rounded litigators ultimately transition from private practice to in-house litigation positions.

Daniel E. Jones, Partner, and Daniel Queen, Partner — Litigation

Dan Jones is a partner in the Washington, DC, office and a member of the firm’s Consumer Litigation & Class Actions and Supreme Court & Appellate practices. Dan has authored numerous briefs in the U.S. Supreme Court, federal and state appellate courts, and trial courts around the country, with a focus on arbitration and class action issues. Prior to rejoining Mayer Brown, Dan clerked for the Honorable Stanley Marcus on the U.S. Court of Appeals for the Eleventh Circuit. Dan graduated with honors from the University of Chicago Law School, where he served as the executive topics and comments editor on the University of Chicago Law Review. Dan received his B.A. from Amherst College, where he majored in English and mathematics.

Daniel Queen is a partner in Mayer Brown’s Los Angeles office, where he focuses on litigation and dispute resolution. Dan has extensive experience litigating cases in federal and state courts at the trial and appellate levels, as well as conducting internal investigations and defending regulatory inquiries. Dan received his J.D. and LL.M., magna cum laude, Order of the Coif, from Duke University School of Law in 2010, and he received a B.A. in Government and International Relations, magna cum laude, from the College of William and Mary in 2005.

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