Appellate Practice Value Prop Forum

[Anonymous User]

I am a mid-level generalist litigator about to move from a mid-sized firm to a true Big Law firm. I've had talks with partners who are encouraging me to start specializing if I want to make run for partner. One thing I've heard and seen here is that appellate practice is not especially lucrative in Big Law. I've also heard that the only truly profitable units within litigation in Big Law are complex commercial lit and related scalable functions (what with long discovery periods and the ability to staff a bunch of juniors billing a lot).

I understand that things like scale and volume matter. My question is: why don't litigation units staff more appellate specialists on their cases from the jump, in order to maximize their chances of prevailing on appeals down the road?

I experienced firsthand last week how a wealthy investment firm got screwed in its federal appellate appeal of a district court dismissal because the firm made a mistake/oversight in its lower-court briefing. The judges pounced on that. The mistake was easily avoidable (it was a matter of asking for a form of relief). I firmly believe if they had staffed someone who knows stuff about appeals when they were doing their lower court briefing, they could have avoided this mistake. Why don't more firms invest in appellate specialists in order to create or preserve value down the road, rather than only bring them in once an appeal has actually been filed?

[Anonymous User]

good firms often staff appeals people on trial court litigation

to the extent you’re wondering if you have some novel idea for adding value as an appellate person and therefore positioning yourself better for partner, no. Appellate is generally unprofitable and that’s not gonna change bc you spend .5 on a call and suggest that someone raise issue X in the district court

[Anonymous User]

Embedded appellate counsel on trial teams are pretty common. Texas even has de facto bifurcated trial and appellate (or “law lawyer”) bars that collaborate on cases.

[Anonymous User]

good firms often staff appeals people on trial court litigation

Even mediocre firms do that. I think it's fairly standard. Plus it gives the resident SCOTUS clerk who doesn't have any of his own clients something to do. But appellate specialists can't bill 10+ per day on discovery tasks and that's where the money is.

[Anonymous User]

I am a mid-level generalist litigator about to move from a mid-sized firm to a true Big Law firm. I've had talks with partners who are encouraging me to start specializing if I want to make run for partner. One thing I've heard and seen here is that appellate practice is not especially lucrative in Big Law. I've also heard that the only truly profitable units within litigation in Big Law are complex commercial lit and related scalable functions (what with long discovery periods and the ability to staff a bunch of juniors billing a lot).

I understand that things like scale and volume matter. My question is: why don't litigation units staff more appellate specialists on their cases from the jump, in order to maximize their chances of prevailing on appeals down the road?

I experienced firsthand last week how a wealthy investment firm got screwed in its federal appellate appeal of a district court dismissal because the firm made a mistake/oversight in its lower-court briefing. The judges pounced on that. The mistake was easily avoidable (it was a matter of asking for a form of relief). I firmly believe if they had staffed someone who knows stuff about appeals when they were doing their lower court briefing, they could have avoided this mistake. Why don't more firms invest in appellate specialists in order to create or preserve value down the road, rather than only bring them in once an appeal has actually been filed?

For context, I'm a mid-level litigator in a specialty practice. I was also a federal appellate clerk on one of 2/9/DC circuits and I've worked on a few appellate matters for clients. I don't think the below will fully answer your question, but it might partially.

Appellate law is all about hindsight. You look over a closed record in light of the law and argue why the lower court did, or did not, make a reversible mistake. You don't always know "the law" better than a district court litigator per se, you just have the benefit of a closed record in which to work and more time to research the issue without dozens of other deadlines distracting you from your written work product.

District court practice, on the other hand, is all about having strategic foresight and creating a favorable record in the first place. You need varied skills that go far beyond writing. You need to make in-the-moment decisions (and a lot of them under time pressure). To speak to your example, an overworked associate might also be operating off a precedent that asks for certain relief but not the relief you need in the moment. An overworked partner might not always catch that mistake because it requires a 10,000 foot vantage. Experience in district court litigation teaches you how to get it right the first time around and avoid mistakes like that.

If you just took an appellate specialist without district court experience and removed the constraints of a closed record and imposed district-court deadlines, the appellate specialist would no longer have any relative advantage. They'd just be a district court litigator, just with way less experience making strategic litigation choices. (On the other hand, I think many district court litigators could probably be good, even if not Clement-level, appellate litigators because district court litigators are great at marshaling facts to make legal arguments.) Therefore, I don't think having an appellate specialist on your team would help you avoid making mistakes in in the first instance.

Additionally, how would you justify having an appellate specialist with little district court experience just kind of sit around and bill some hours looking over everyone's work, but not helping actually produce work product? It seems clients and colleagues would get fed up with that pretty quickly.

[ExpOriental]

Because the vast majority of biglaw lit matters don't get anywhere near an appeal, and clients are often bad at appraising long-run value on legal matters, especially when it comes to lit.

Some firms already do this, as you're probably aware. Jones Day does it routinely, and I believe GDC and Wilmer are also known for doing it (this is probably true of all the firms with big appellate groups in DC).

There isn't really a one size fits all approach to this. Far too many factors on any given matter to be able to math out whether it's ultimately worth the extra expense.