Why are the top firms trial-focused instead of appellate? Forum

[Joachim2017]

Ehh it’s just not true that any competent trial lawyer can be as good as an appellate specialist, there’s a reason big companies hire appellate specialists for their big appeals.

What's the reason then? If you can write good summary judgment and motion to dismiss briefs, you can write good appeal briefs, no? I mean, in my mind a good trial lawyer is a good writer in addition to the other stuff. And most cases don't get to actual trial, but almost all involve some merits briefing.

No (you can be a good trial lawyer and not be a good writer, so the claim's clearly wrong). More generally, merits briefing at the trial stage is different enough than at the appellate stage that you can be good at one but not the other. Identifying what's wrong with the reasoning of the court below, for example, is different than distinguishing your opponent's cases or marshalling evidence in a persuasive way when the record is less "cold" in trial court briefing. (And the market recognizes all this, i.e., that the skillsets part ways widely enough to separate the two).

[Prudent_Jurist]

Ehh it’s just not true that any competent trial lawyer can be as good as an appellate specialist, there’s a reason big companies hire appellate specialists for their big appeals.

What's the reason then? If you can write good summary judgment and motion to dismiss briefs, you can write good appeal briefs, no? I mean, in my mind a good trial lawyer is a good writer in addition to the other stuff. And most cases don't get to actual trial, but almost all involve some merits briefing.

No (you can be a good trial lawyer and not be a good writer, so the claim's clearly wrong). More generally, merits briefing at the trial stage is different enough than at the appellate stage that you can be good at one but not the other. Identifying what's wrong with the reasoning of the court below, for example, is different than distinguishing your opponent's cases or marshalling evidence in a persuasive way when the record is less "cold" in trial court briefing. (And the market recognizes all this, i.e., that the skillsets part ways widely enough to separate the two).

I’m not going to die on this hill, and it’s not exactly pertinent to OP’s post. I agree that the skill sets differ, but not for the reasons you list.

If we’re defining “trial lawyer” narrowly as only a lawyer who practices from voir dire to closing arguments, sure, they don’t have to write well, but that’s not a realistic definition. Trial always involves substantive motion practice (i.e., motions in liking, briefing legal issues for the court as they arise, motions for directed verdict or nonsuit, etc.) So, you have to be at least a decent writer to be a good trial lawyer.

To your other points, identifying what’s wrong with the trial court’s reasoning is an active part of trial practice; it’s just happening in real time. Trial lawyers need to be able to identify errors in the trial court’s reasoning in order to raise objections and arguments to preserve the issues for appeal. Sometimes trial courts request briefing on a legal issue they have to rule on, which requires a quasi-appellate brief explaining to the trial court why a particular ruling is or is not correct.

Appellate writing requires distinguishing your opponent’s cases, too. It also requires marshaling the evidence in a persuasive way when the court is reviewing under a substantial evidence or abuse of discretion standard. Sure, the record is “cold,” but even on a MSJ, you’re still working with a closed universe of facts: declarations, affidavits, depo transcripts, etc.

[RedNewJersey]

I'm a bit surprised at people saying there's little difference between trial-level briefing and appellate briefing. There are a bunch of differences, including:

- Way more time on appeal. You can think carefully about the issues and carefully research it.
- Way fewer issues on appeal. Again, the briefing focuses on the key points, and truly analyzes each of them.
- Accuracy matters more. Appellate judges have far more time and there are three of them--they are just way more likely to get complex issues right than a single busy trial judge. At the trial level, you get a sense for the judge's approach from prior orders, and calibrate accordingly. On appeal, it's blue-sky thinking based on getting the issues *right*.

I heard a court of appeals judge say--tongue-in-cheek--that the difference between a trial judge (which he was before) and a court of appeals judge is trial judges need to get things done, appellate judges need to get things right. That roughly matches the trial v. appellate difference for attorneys too.

[Anonymous User]

You often have to be a good writer to be a good trial lawyer, but you’re writing different kinds of stuff. And it’s not that a good trial writer can’t learn to be a good appellate writer, but it is different and you do have to learn in a way that you don’t by just doing more trial level work.

But how is the writing different? I mean, obviously you have to address threshold things like was the appeal timely filed, what's the standard of review, and where was it preserved below, but that should be obvious by browsing through a few example briefs.

Having done a lot of brief writing below and in appeals, I honestly find writing an appeal brief to go more smoothly because at least you have the record all there compiled in an appendix. Summary judgment and pre-trial briefs are more of a slog because you have to hunt down your cites, and hope that you can find what you remember hearing or seeing. So I can definitely see how smart people end up appellate lawyers, because I could see how it would be a less hectic job than dealing with discovery shitshows and trial, but it seems like it just boils down to being entirely writing focused. Which is fair, but there are people I know who are both primarily trial lawyers but also seen as particularly good at writing and are used that way in a trial team.

You omitted my comment about appellate work focusing more on technicalities. Some people are good at working all those technicalities, some aren't.

And I think that writing about trying to establish certain facts (which is a lot of trial writing - getting evidence in, keeping evidence out, that kind of thing) is just different from writing about how the appeal court should deal with the fact that the trial court did/didn't let in certain evidence. The literal mechanics of good writing are the same (generally - I do think there are different emphases in how you write a trial brief compared to an appellate brief), but the thought processes behind the writing are different. It's just different to argue about what you think should happen compared to what actually did happen.

I already said you can be good at both. They're just not the same kind of legal issues.

In my own practice, there are a lot of legal issues that only arise at the appellate level, as well.

(sorry, this is nixy)

[Anonymous User]

Trying to be a bit reconciliatory here and take this back to the OP's question. There are definitely differences in tone/framing/issues for appellate vs. (pre-)trial briefs. But it doesn't necessarily follow that people can't do both well or that law review types are more suited for one or the other. It comes down to this: like anything in life, if you spend most of your time doing one thing you're going to develop a skillset geared toward that thing. So on average, an appellate lawyer will be better at writing an appellate brief because they have more practice. But I know trial attorneys who write even better appellate briefs than pure appeals attorneys. There's no absolute statements to be made here, but we also can't deny that there's something to specializing. If the distinction was meaningless why would it exist?

I also think we need to separate the skills associated with appellate/trial lawyering from the different perspectives each will bring. At my firm, we often bring an appellate lawyer to trial because we want someone focused only on preserving appeal issues. It doesn't mean the trial lawyers can't do that - but it works out better for us when the trial lawyers focus only on winning the trial, and the appellate lawyers act as a backstop to make sure we're preserving things for appeal. Sometimes those two goals are in conflict with one another, so it's sometimes easier to balance those when you have separate teams advocating for each perspective. Could we assign a trial attorney to do that? Sure. But why not pick someone who spends most of their time working on appeals?

[Anonymous User]

I'm a bit surprised at people saying there's little difference between trial-level briefing and appellate briefing. There are a bunch of differences, including:

- Way more time on appeal. You can think carefully about the issues and carefully research it.
- Way fewer issues on appeal. Again, the briefing focuses on the key points, and truly analyzes each of them.
- Accuracy matters more. Appellate judges have far more time and there are three of them--they are just way more likely to get complex issues right than a single busy trial judge. At the trial level, you get a sense for the judge's approach from prior orders, and calibrate accordingly. On appeal, it's blue-sky thinking based on getting the issues *right*.

I heard a court of appeals judge say--tongue-in-cheek--that the difference between a trial judge (which he was before) and a court of appeals judge is trial judges need to get things done, appellate judges need to get things right. That roughly matches the trial v. appellate difference for attorneys too.

This has not been my experience at all. The timeline for briefing appeals where I practice is generally faster than merits briefing schedule below. The research involved is generally done already for the lower level merits briefing. Maybe you go even deeper for the appeal, but usually the same exact cases are cited for each issue. And in my practice area the trial judges know the law and will catch lawyers whose briefs are inaccurate or fudge the facts or law. I've never experienced a judge who seems like he just wants to "get things done" to the extent he's going to overlook something. Maybe I'm just fortunate to practice in front of some good benches IDK.

Having done a lot of both, I just don't see a huge difference in the writing skillset. Sure, writing is just a piece of the larger pie in trial level work, but it's super important to client value. If you get a favorable decision on a motion to dismiss or summary judgment, and you gave the trial court multiple reasons to find in your favor, the client can avoid the cost of trial and an appeal in the first place.

[Anonymous User]

I'm a bit surprised at people saying there's little difference between trial-level briefing and appellate briefing. There are a bunch of differences, including:

- Way more time on appeal. You can think carefully about the issues and carefully research it.
- Way fewer issues on appeal. Again, the briefing focuses on the key points, and truly analyzes each of them.
- Accuracy matters more. Appellate judges have far more time and there are three of them--they are just way more likely to get complex issues right than a single busy trial judge. At the trial level, you get a sense for the judge's approach from prior orders, and calibrate accordingly. On appeal, it's blue-sky thinking based on getting the issues *right*.

I heard a court of appeals judge say--tongue-in-cheek--that the difference between a trial judge (which he was before) and a court of appeals judge is trial judges need to get things done, appellate judges need to get things right. That roughly matches the trial v. appellate difference for attorneys too.

This has not been my experience at all. The timeline for briefing appeals where I practice is generally faster than merits briefing schedule below. The research involved is generally done already for the lower level merits briefing. Maybe you go even deeper for the appeal, but usually the same exact cases are cited for each issue. And in my practice area the trial judges know the law and will catch lawyers whose briefs are inaccurate or fudge the facts or law. I've never experienced a judge who seems like he just wants to "get things done" to the extent he's going to overlook something. Maybe I'm just fortunate to practice in front of some good benches IDK.

Having done a lot of both, I just don't see a huge difference in the writing skillset. Sure, writing is just a piece of the larger pie in trial level work, but it's super important to client value. If you get a favorable decision on a motion to dismiss or summary judgment, and you gave the trial court multiple reasons to find in your favor, the client can avoid the cost of trial and an appeal in the first place.

Sorry but anyone who's clerked on both a federal district court and COA knows the speed and depth of research are nothing alike. I think in part this convo is just people talking past each other though--you seem to be mostly thinking of run-of-the-mill practice, which is not all that comparable to the sorts of appellate lit biglaw/"elite boutique" appellate specialists of the type OP asked about do, or even the more garden-variety SSC specialists you find in places like Texas. There are relatively few cases where it really makes sense to hire specialized appellate counsel, which is why it's so niche. But there are also undoubtedly cases where it's appropriate, which is why the market supports them. E.g. if this happened to your company, you would hire Neal Katyal, not whoever your (surely also very good and expensive) usual trial firm is: https://www.courthousenews.com/wp-conte ... -brief.pdf

[Anonymous User]

The label "appellate" is something of a misnomer. Appellate groups handle appeals, yes, but they also handle the significant trial-level briefing (motions to dismiss, motions to strike, motions for summary judgment, ...). The distinction is between associates who mainly handle discovery/experts/depositions/trials, and the associates who mainly handle legal research/writing. Many top graduates prefer the latter option because it's closer to law school, more scholastic, and a more predictable lifestyle. Some prefer the former because trial lawyers usually command more money and because it doesn't require a COA/SCOTUS clerkship. "Trial" boutiques like Susman Godfrey give associates all of the above: they do all the work of a "trial" lawyer, but they also take the lead on authoring major briefs and motions. The tradeoff is they bill 3000 hours a year.

[Anonymous User]

I'm a bit surprised at people saying there's little difference between trial-level briefing and appellate briefing. There are a bunch of differences, including:

- Way more time on appeal. You can think carefully about the issues and carefully research it.
- Way fewer issues on appeal. Again, the briefing focuses on the key points, and truly analyzes each of them.
- Accuracy matters more. Appellate judges have far more time and there are three of them--they are just way more likely to get complex issues right than a single busy trial judge. At the trial level, you get a sense for the judge's approach from prior orders, and calibrate accordingly. On appeal, it's blue-sky thinking based on getting the issues *right*.

I heard a court of appeals judge say--tongue-in-cheek--that the difference between a trial judge (which he was before) and a court of appeals judge is trial judges need to get things done, appellate judges need to get things right. That roughly matches the trial v. appellate difference for attorneys too.

This has not been my experience at all. The timeline for briefing appeals where I practice is generally faster than merits briefing schedule below. The research involved is generally done already for the lower level merits briefing. Maybe you go even deeper for the appeal, but usually the same exact cases are cited for each issue. And in my practice area the trial judges know the law and will catch lawyers whose briefs are inaccurate or fudge the facts or law. I've never experienced a judge who seems like he just wants to "get things done" to the extent he's going to overlook something. Maybe I'm just fortunate to practice in front of some good benches IDK.

Having done a lot of both, I just don't see a huge difference in the writing skillset. Sure, writing is just a piece of the larger pie in trial level work, but it's super important to client value. If you get a favorable decision on a motion to dismiss or summary judgment, and you gave the trial court multiple reasons to find in your favor, the client can avoid the cost of trial and an appeal in the first place.

Sorry but anyone who's clerked on both a federal district court and COA knows the speed and depth of research are nothing alike. I think in part this convo is just people talking past each other though--you seem to be mostly thinking of run-of-the-mill practice, which is not all that comparable to the sorts of appellate lit biglaw/"elite boutique" appellate specialists of the type OP asked about do, or even the more garden-variety SSC specialists you find in places like Texas. There are relatively few cases where it really makes sense to hire specialized appellate counsel, which is why it's so niche. But there are also undoubtedly cases where it's appropriate, which is why the market supports them. E.g. if this happened to your company, you would hire Neal Katyal, not whoever your (surely also very good and expensive) usual trial firm is: https://www.courthousenews.com/wp-conte ... -brief.pdf

There's also the topical difference--appellate work is more likely to deal with more nuanced distinguishing from precedent or matters of first impression. Trial work requires research, sure, but a lot of it will be to prove that the outcome is basically controlled by settled law already. It's not like the latter involves no Westlaw or whatever or requires "worse" researching but I think appellate specialists are probably doing a slightly different kind of thinking (or at least flexing slightly different brain muscles more of the time). Also, true appellate specialists, especially at the top, are more likely to be topical generalists--antitrust lawyers are antitrust lawyers, and energy lawyers are energy lawyers, but appellate folks tend to be able to (and required to) get up to speed on both rather quickly from matter to matter.

[Anonymous User]

The label "appellate" is something of a misnomer. Appellate groups handle appeals, yes, but they also handle the significant trial-level briefing (motions to dismiss, motions to strike, motions for summary judgment, ...). The distinction is between associates who mainly handle discovery/experts/depositions/trials, and the associates who mainly handle legal research/writing. Many top graduates prefer the latter option because it's closer to law school, more scholastic, and a more predictable lifestyle. Some prefer the former because trial lawyers usually command more money and because it doesn't require a COA/SCOTUS clerkship. "Trial" boutiques like Susman Godfrey give associates all of the above: they do all the work of a "trial" lawyer, but they also take the lead on authoring major briefs and motions. The tradeoff is they bill 3000 hours a year.

First part of this is correct in my experience at a V10. The "appellate" group is often roped in to draft MTDs and other significant briefing. Rarely smaller discovery motions, though. The inverse is also true at some firms, including mine. Some run-of-the-mill "litigation" teams who handled the trial will also handle the appeal without bringing in "appellate" lawyers. It varies by firm I'm sure.

The bolded is only half true though. A good number of people in "appellate" are there because it is more prestigious and their entire adult life, since picking a college, has involved chasing the most prestigious options available to them. These are the people who try to avoid drafting MTDs, even in the really interesting cases, because they feel they should be working on SCOTUS (or, if they must, federal COA) briefing. My firm has enough of these folks to make the "appellate" group pretty unpleasant to work with overall.

[Anonymous User]

There's also the topical difference--appellate work is more likely to deal with more nuanced distinguishing from precedent or matters of first impression. Trial work requires research, sure, but a lot of it will be to prove that the outcome is basically controlled by settled law already. It's not like the latter involves no Westlaw or whatever or requires "worse" researching but I think appellate specialists are probably doing a slightly different kind of thinking (or at least flexing slightly different brain muscles more of the time). Also, true appellate specialists, especially at the top, are more likely to be topical generalists--antitrust lawyers are antitrust lawyers, and energy lawyers are energy lawyers, but appellate folks tend to be able to (and required to) get up to speed on both rather quickly from matter to matter.

feel like this is written by a uninformed student or clerk, not a practitioner.

the bolded is (sometimes) true of district vs appellate clerkship experience -- lot of garbage never makes it to appellate court but district sees it all.

it's not at all true of BigLaw -- that only the 'really tough' cases make it to an appeal, and there are all these super-easy tedious cases that the peon non-appellate litigate candispense with in a 7 page MTD or something.

also have no idea what poster is talking about re 'flexing different muscles' in a COA brief vs MSJ, as though there's some sort of secret sauce that goes into the former vs latter. there's good writing + legal argumentation, and bad writing and legal argumentation -- regardless of whether you're at district, COA, SCOTUS, administrative agency, w/e

[nixy]

There's also the topical difference--appellate work is more likely to deal with more nuanced distinguishing from precedent or matters of first impression. Trial work requires research, sure, but a lot of it will be to prove that the outcome is basically controlled by settled law already. It's not like the latter involves no Westlaw or whatever or requires "worse" researching but I think appellate specialists are probably doing a slightly different kind of thinking (or at least flexing slightly different brain muscles more of the time). Also, true appellate specialists, especially at the top, are more likely to be topical generalists--antitrust lawyers are antitrust lawyers, and energy lawyers are energy lawyers, but appellate folks tend to be able to (and required to) get up to speed on both rather quickly from matter to matter.

feel like this is written by a uninformed student or clerk, not a practitioner.

the bolded is (sometimes) true of district vs appellate clerkship experience -- lot of garbage never makes it to appellate court but district sees it all.

it's not at all true of BigLaw -- that only the 'really tough' cases make it to an appeal, and there are all these super-easy tedious cases that the peon non-appellate litigate candispense with in a 7 page MTD or something.

also have no idea what poster is talking about re 'flexing different muscles' in a COA brief vs MSJ, as though there's some sort of secret sauce that goes into the former vs latter. there's good writing + legal argumentation, and bad writing and legal argumentation -- regardless of whether you're at district, COA, SCOTUS, administrative agency, w/e

I didn’t read the anon you’re responding to as saying this at all. I don’t think there was any implication that only the tough cases make it to appeal. I understood them just to be talking about the difference between writing for the trial court (prospectively trying to get the trial court to do something or prevent the other side from doing something) and writing for the appeals court (justifying or attacking something after the fact). I agree that good writing and argument are good writing and argument, but I do think arguing prospectively and after the fact are different and do require slightly different thinking. (And I’ve already said, I think people can be good at both, though I do think that in practice, most people spend more time on one than the other.)

[tlsguy2020]

To speak to what I think OP is observing as a law student: general litigation and appellate work tend to attract different personalities.

General litigators spend a lot of time interacting with a wide range of people: abusive opposing counsel, witnesses, client reps, magistrate judges and discovery masters, third-parties, etc. Litigators research and write, and the processes for 12(b)(6) and MSJs are pretty close to the processes for appeals. But a good chunk of research and writing is to support mini-fights in discovery and other pre-trial motions. There often isn't time to boil the ocean on research . As a result, good litigators tend to be effective game-time decision-makers. They also tend to present as extroverted.

Appellate lawyers spend most of their time researching and writing appeals with the caveat that, in most cases, they also often help with regular motion practice. Appellate lawyers tend not to deal with outside parties and are removed from day-to-day shit-slinging M&Cs with opposing counsel. As a result, there's more leeway to boil the ocean and also more emphasis on perfect writing. Appellate lawyers are often introverted and have an academic interest in the law.

I don't think either necessarily attracts smarter or dumber law students. Great appellate lawyers can be great trial litigators and vice versa. But both tend to attract and support different personality types. To some extent, might be a finer-grained version of the classic JD vs MBA personality comparison.

[Anonymous User]

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[Anonymous User]

The label "appellate" is something of a misnomer. Appellate groups handle appeals, yes, but they also handle the significant trial-level briefing (motions to dismiss, motions to strike, motions for summary judgment, ...). The distinction is between associates who mainly handle discovery/experts/depositions/trials, and the associates who mainly handle legal research/writing. Many top graduates prefer the latter option because it's closer to law school, more scholastic, and a more predictable lifestyle. Some prefer the former because trial lawyers usually command more money and because it doesn't require a COA/SCOTUS clerkship. "Trial" boutiques like Susman Godfrey give associates all of the above: they do all the work of a "trial" lawyer, but they also take the lead on authoring major briefs and motions. The tradeoff is they bill 3000 hours a year.

First part of this is correct in my experience at a V10. The "appellate" group is often roped in to draft MTDs and other significant briefing. Rarely smaller discovery motions, though. The inverse is also true at some firms, including mine. Some run-of-the-mill "litigation" teams who handled the trial will also handle the appeal without bringing in "appellate" lawyers. It varies by firm I'm sure.

The bolded is only half true though. A good number of people in "appellate" are there because it is more prestigious and their entire adult life, since picking a college, has involved chasing the most prestigious options available to them. These are the people who try to avoid drafting MTDs, even in the really interesting cases, because they feel they should be working on SCOTUS (or, if they must, federal COA) briefing. My firm has enough of these folks to make the "appellate" group pretty unpleasant to work with overall.

As someone looking into appellate groups post-clerkships, could you name the firm?