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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.
Allyson Ho, Partner and Co-Chair of the Appellate and Constitutional Law Practice Group • Lauren Blas, Partner
Gibson Dunn

Describe your practice area and what it entails.

We represent clients in high-stakes appeals involving complex or novel issues. Our practice is national in scope, and we brief and argue cases in state and federal appellate courts all over the country, including in the U.S. Supreme Court and state supreme courts. We handle traditional merits appeals and arguments, as well as interlocutory appeals, petitions for certiorari or review, and other appellate motions. Our appellate lawyers also regularly consult on trial teams and on critical or dispositive motions in the trial courts.

What types of clients do you represent?

We represent a wide range of clients, from Fortune 100 companies to individuals to state and local governments. Recent examples include Nissan, J.C. Penney, the State of New Jersey, Parsons, Yahoo, Deloitte, the University of Texas at Austin, Facebook, and Salesforce, among many others.

What types of cases/deals do you work on?

Allyson: I’m privileged to represent some of the world’s best companies in some of their most important, high-profile matters in courts across the country. I recently argued and won a complex case for the founder of one of the fastest-growing apps in the world. And I have the privilege of filing briefs in cases across the country on behalf of violent crime victims; the nonprofits who support them; and the legislators who’ve enacted laws, so their voices can be heard.  

Lauren: Many (though not all) of my appellate matters involve issues adjacent to my trial court practice, which focuses on class action and employment work. As just two examples, we recently persuaded the Ninth Circuit to decertify a class of thousands of California employees and helped to clarify the scope of a California statute governing conduct in business, service, or professional relationships in an appeal on behalf of Ashley Judd against Harvey Weinstein.

How did you choose this practice area?

Allyson: My path to appellate law cut through two appellate clerkships, where I had the privilege of observing the best appellate litigators in the country brief and argue cases.  Appellate law requires the ability to focus on complex, intellectually challenging issues while taking a practical perspective that is ultimately about solving clients’ most pressing problems. 

Lauren: Early in my career, I had the opportunity to work with several lawyers whom I admire who happened to do appellate litigation. I was hooked. As a curious person with a broad set of interests, I liked that appellate practice is more of a “procedural” specialty: You master a set of rules and an analytical approach, and then you apply those rules and that approach to a diverse set of circumstances.

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

Allyson: The great thing about being an appellate litigator is that there really is no typical day—some days I’m strategizing with clients at the outset of litigation about legal theories and communication strategies, while other days I’m preparing for oral argument by being peppered with tough questions at a mock argument. 

Lauren: My practice is a mix of trial and appellate work, but on a typical appellate day, I’ll spend time doing one of five things: reading the record; conducting legal research; drafting the brief, motion, or petition; preparing for an oral argument; or strategizing with the team or client. I find I need a large block of time to really get into a brief, which sometimes means that briefs are written at odd hours of the day or night.

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

Allyson: Clerkships offer an unparalleled opportunity to hone your writing and analytical skills; observe the good, bad, and ugly in brief writing and argument and learn from all three; and develop lifelong mentorships and relationships with judges and other clerks. 

Lauren: Write, write, and write some more, whether in a clerkship or another setting. Training in oral advocacy is helpful but not required; you’ll learn a lot from working with the senior lawyers on your team.

What do you like best about your practice area?

Allyson: I love having a practice that spans all different kinds of clients, industries, and legal issues—it fosters a creative approach to problem-solving where you can discover a principle in one area of the law that’s actually very helpful in another.

Lauren: I love that appeals provide space to do deep thinking about legal issues and what the law ought to be. And I appreciate that at the end of the process, you get a thoughtful, written opinion analyzing all of the issues. Of course, it’s nice to win, but even if you lose, you (hopefully) feel as though you’ve been heard.

What misconceptions exist about your practice area?

People often think you have to have an appellate clerkship and in some circles, a Supreme Court clerkship—to do appellate work. Clerkships are certainly common in our practice and are wonderful experiences to have, but Gibson is also a very meritocratic place. If you want to write appellate briefs and can prove that you can, sure enough, you will!

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

Junior lawyers have a very substantive role on our appellate teams, including helping to master the record, researching legal issues, outlining and drafting sections of a brief, and helping to prepare senior lawyers for oral argument.

What is your routine for preparing for oral arguments?

Allyson: It depends on whether I’ve done the briefing or am being brought in to handle the argument. If the latter, I always like to start by talking with the trial team and gleaning the benefit of their experience and insight. I also like to give the briefs to a non-lawyer and ask what stands out to them, what questions they have, and what appeals to them (no pun intended). Their perspective is often closer to that of busy, generalist judges and law clerks than subject-matter experts.

Lauren: I start by re-reading all of the briefs and drafting a skeletal argument outline. I then re-read all the cases, build out my outline further, and identify any areas where I’d like to dig deeper. I work with my teammates to come up with a list of hard questions and then draft the answers. I then distill my long outline into something pithier and refine it further after a moot. It’s fun to come up with fresh openings or angles that will draw the court into the argument.

Allyson Ho, Partner and Co-Chair of the Appellate and Constitutional Law Practice Group; Lauren Blas, Partner—Litigation

Allyson Ho co-chairs Gibson Dunn’s Appellate and Constitutional Law practice group.  She has argued multiple times before the U.S. Supreme Court and presented over 65 oral arguments in federal and state courts nationwide. She has a distinguished record of service at the highest levels of government, serving as Special Assistant to President George W. Bush, counselor to Attorney General John Ashcroft, and law clerk to Justice Sandra Day O’Connor and Judge Jacques Wiener of the Fifth Circuit. Allyson serves as a public member of the Administrative Conference of the United States, a trustee of the Supreme Court Historical Society, and a member of the Washington Legal Foundation’s Legal Policy Advisory Board and the New Civil Liberties Alliance’s Board of Advisors. 

Lauren Blas is a partner in Gibson Dunn’s Los Angeles office.  She has briefed over a dozen appeals and has argued before the U.S. Court of Appeals for the Seventh Circuit, the California Court of Appeal, and the Wisconsin Supreme Court. She was also a core member of the appellate team in New Jersey’s successful challenge to the Professional and Amateur Sports Protection Act (PASPA) before the U.S. Supreme Court. She clerked for Judge Sandra Ikuta on the Ninth Circuit.

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

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

Daniel (“Dan”) E. 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 (“Dan”) 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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