Breaking into Appellate Law:

I sometimes hear people ask: How can one break into appellate lawyering, which many people find especially satisfying? So I asked some friends and colleagues, and thought I'd pass along the answers I got.

From Evan Tager, co-chair of the appellate and Supreme Court practice group at Mayer, Brown, Rowe & Maw (the firm with which I'm a part-part-part-time academic affiliate):

Generally, firms like ours prefer candidates who were on law review and had a prestigious appellate clerkship. We will look at the writing sample to get a sense of the candidate's writing style.

There are probably about ten to fifteen firms that have legitimate appellate practices, by which I mean one or more attorneys who do more than simply write briefs for the litigation practice. I guess the two sets of rankings identify most of those practices.

Some firms do indeed engage in bait and switch. We try not to. We are very candid with our recruits that they would be part of a "pool" and would be expected to assist a wide range of litigation partners, not just appellate partners. That said, the reality is that, if they hit the first pitch they see out of the park, they are going to see a lot more pitches. (In this way, Mayer Brown is not like a baseball team.)

From Tom Watson, a UCLA Law School classmate of mine (class of 1992), who works at Horvitz & Levy, a leading L.A. appellate firm:

Since my route to an appellate practice was unusual, I asked for input from our associates. They uniformly recommend securing an appellate clerkship (or two)[:] ...

1. Joining a large law firm with an appellate group may be a good way for a new associate to get a taste of appellate work and to see whether he or she enjoys appellate work. Joining a large law firm with an appellate group is not a good way to do 100% (or even 75%) appellate work. Appellate groups in large law firms tend to be ancillary; the bulk of the work (and billable hours) are generated from the litigation group. If the appellate group happens to get a couple of big cases, the work will be performed by the lead appellate partners. So, even if an associate belongs to the appellate group, he or she will likely spend a lot of time working on non-appellate matters.

Spending a couple of years at a large firm for general litigation training (a good thing no matter what route one takes), and then finding a boutique law firm that specializes in appellate work is a much better route. Law firms that only do appeals (like Horvitz & Levy) will provide associates with the greatest and most fulfilling opportunities to do appellate work.

Scoring an appellate clerkship along the way is even better. No matter what speciality an associate eventually settles on, a clerkship is a wonderful experience.

2. ... First and foremost, a law student interested in appellate work should do everything possible to land an appellate clerkship. As you know, an appellate clerkship (particularly with a federal circuit judge) has essentially become a prerequisite to working here. And the bigger firms with appellate practices are even more interested in the clerkship credential.

Second, a law student should resign himself to the fact that he will not likely obtain appellate work right after law school. It's possible -- perhaps for SCOTUS clerks or assistant DAs -- but rare. Most of us have cut our teeth in big firms, learned the ropes in the trial courts, and bided our time for a few years until we accumulated enough general experience and credentials to lateral to an appellate position. The key factor in seeking post-law school employment should be landing a job where you can show your writing ability. Writing some appellate briefs would be ideal, but dispositive pretrial motions will do. Down the road, the student must show a prospective appellate employer strong writing ability. You can't do that if you've spent your days responding only to discovery demands.

3. Wherever they go, they should beg, borrow or steal as much appellate work as they can get, with an eye to ending up in an appellate group or an appellate boutique down the road. To increase the number of appeals they handle, they can seek out appellate pro bono opportunities (which, at a big firm, are also most likely to provide oral argument opportunities). They should also join appeals-oriented bar groups, like the ABA's Council of Appellate Lawyers or the LACBA's appellate rules committee, and stay active in those groups.

From an anonymous friend who's also an appellate lawyer, and whose judgment on this I very much trust:

Most of the firms that have structured appellate practices or groups, in my experience, also have established Supreme Court practices. So compiling the list of those firms is a good place to start. (Tom Goldstein had an insightful post on his blog last year that catalogs the various firms with established Supreme Court practices, the text of which I've appended at the end of this email.)

There are also, of course, boutique firms that handle almost exclusively appellate work, such as the Horvitz & Levy and Greines Martin firms here in the L.A. area. Obviously if you were to go to one of those firms you'd be pretty much guaranteed the opportunity to work on mostly appellate matters. But if you go to a full-service firm, even one with an established appellate department, there are usually only a handful of partners who are responsible for bringing in and managing a large majority of the appellate work, so the best way to secure a steady diet of appellate work is to establish a close working relationship with those folks.

Most of the established, big-firm appellate practices are based in DC (with Mayer Brown being a notable exception, since I think you guys have a base in both NY and DC [EV: The appellate practice group includes 22 appellate regulars in Chicago, 5 in Houston, 8 in New York, 1 in Palo Alto, and 36 in Washington] and in my experience it's very hard to break into that inner circle if you're not working in the same office where the appellate partners are located.