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

[Anonymous User]

So it seems like the most selective firms place a heavy emphasis on trial experience for young attorneys (taking depos early and the like). I’m talking Susman / Kellogg / Keker / WW / Munger / even W&C. Which is a little weird to me because the biggest brainiacs I know in law school are very appellate-minded and never want to encounter establishing a fact in their lives, from their clerkships to their actual practices, and don’t really want to be Perry Mason. So what gives for the top firms (absent the conservative shops and Gupta) being so proud to boast that they’re *trial* focused?

[Anonymous User]

So it seems like the most selective firms place a heavy emphasis on trial experience for young attorneys (taking depos early and the like). I’m talking Susman / Kellogg / Keker / WW / Munger / even W&C. Which is a little weird to me because the biggest brainiacs I know in law school are very appellate-minded and never want to encounter establishing a fact in their lives, from their clerkships to their actual practices, and don’t really want to be Perry Mason. So what gives for the top firms (absent the conservative shops and Gupta) being so proud to boast that they’re *trial* focused?

A few miscellaneous thoughts, without fighting your premise (which is a bit of an exaggeration IMHO):

• Appellate work is basically the same everywhere (ignore big name partners and higher profile cases - the day to day isn't that different). But that's not true for lit: whether or not you're likely to see a courtroom can really vary from firm to firm. So firms make a lot more noise about the likelihood that you'll do real trial stuff. What are the appellate firms going to boast about, that you'll what, write a cool brief or something? That's true everywhere.

• Pure appellate lawyers are few and far between. If you're going to have to touch a fact, you might as well do it with cool litigation matters that go to trial and feed your appellate practice, right? And if a firm isn't going to staff you on pure appellate, they want to give you a flavor for what you're going to do.

• A lot of this is probably client-side marketing spilling over into recruiting. It's hard to keep the lights on with only appellate work (matters are not highly leveraged, case teams are small, lots of places do huge pro bono volume for prestige, you have to pay huge clerkship bonuses for people who tend to leave quickly, etc.). It's also hard to maintain a good appellate practice without high profile lit to support it (some appellate partners do pick up cases after another firm tries them, but that's less common). So these firms bill themselves to clients as litigation forward firms with top notch appellate practices to boot, and that spills over. They also can't afford to hire an entire class of appellateers, so they have to be honest about what they are looking for.

Regarding your premise, sure lots of the wicked smarties only want appellate, but that offers even fewer exit options than lit. I think a lot of appellate-minded law students/clerks think twice when they see what the real world looks like. If you don't want to be a partner or a professor, you're going to have to prove a fact at some point.

[Anonymous User]

While appellate practice is "prestigious", it isn't profitable. Once law students graduate, finish their clerkships, and enter the real world, this truth finally dawns on the vast majority of them.

[Anonymous User]

Lack of $$$. Many of the top appellate practices are subsidized in some way (dedicated groups in biglaw, specialized government bodies like OLC, US/State SG offices, etc.).

[Anonymous User]

So it seems like the most selective firms place a heavy emphasis on trial experience for young attorneys (taking depos early and the like). I’m talking Susman / Kellogg / Keker / WW / Munger / even W&C. Which is a little weird to me because the biggest brainiacs I know in law school are very appellate-minded and never want to encounter establishing a fact in their lives, from their clerkships to their actual practices, and don’t really want to be Perry Mason. So what gives for the top firms (absent the conservative shops and Gupta) being so proud to boast that they’re *trial* focused?

(1) Most of the firms you listed aren't really "trial" boutiques. Susman is, but Kellogg and Williams & Connolly have significant (and selective) appellate practices, and the most selective Munger office, DC, does predominantly appellate work.

(2) None of the firms you listed are more selective than the top appellate boutiques - Gupta Wessler, Goldstein & Russell, Cooper & Kirk, Consovoy McCarthy, maybe now Clement & Murphy.

(3) Appeals isn't a high margin practice. Most appellate practitioners hang out in big firms. The appeals groups in those firms can be as or more selective than any of the trial firms you mentioned.

(4) Boutiques advertise as "trial focused" not to distance themselves from appeals-focused firms, but rather to distance themselves from generic commercial litigation practices where associates spend their junior years doing doc review. Promotional materials for the firms you list emphasize juniors giving oral arguments in addition to doing trial work.

[Anonymous User]

prior poster is correct that Willliams has historically been a trial firm.

Kannon sort of built up this appellate + SCOTUS thing because he's a generational talent, and the firm replaced him with Lisa Blatt when he departed because it had become a thing.

but if you asked a bunch of longtime Williams partners what Williams is all about, they would not say appellate. they'd say trial + investigations work

[Anonymous User]

I don't quite get your premise. Just because the biggest brainiacs you know are appellate-minded and don't want to have to establish a fact doesn't meant that all top students feel this way. For one thing, you may be making assumptions about who counts as a brainiac. There are plenty of very smart people who want the more collective, arguably aggressive and adversarial work of trial over the very individual, isolated work of appeals.

Anyway, there's a lot more trial work than appellate work, so makes sense to try appeal to people who want to do that work.

[Anonymous User]

This can really be summed up by saying law school isn't real life.

[Prudent_Jurist]

Maybe not as pointed an answer, but appellate practice and trial practice go hand in hand. Good trial attorneys are diligent and thoughtful about the record they’re building below because otherwise the smartest appellate practitioner isn’t able to do shit on appeal. Didn’t object below? Can’t raise that objection on appeal. Didn’t raise an argument in that MSJ? Can’t raise that argument on appeal.

Smart firms also have an appellate practitioner advising the trial team, making sure that the record is pristine in case of an appeal. But an appellate practitioner doing that needs to know how to take depositions, the nuts and bolts of discovery, trial, etc. That’s because, again, even on de novo review, if the trial attorney fucked things up, good luck fixing it on appeal. So, appellate practitioners need to know trial practice; trial lawyers need to know appellate practice.

[Anonymous User]

Lack of $$$. Many of the top appellate practices are subsidized in some way (dedicated groups in biglaw, specialized government bodies like OLC, US/State SG offices, etc.).

This is probably the biggest driver. The economics of pure appellate work are generally just awful if you’re not one of the big names like Kannon Shanmugam, Jeff Wall, or Lisa Blatt, since there’s only so much work to go around—think of how many civil matters handled by big firms actually go to trial, much less go up on appeal. That’s compounded by the significantly lower total billable time it takes to work on an appeal versus taking a case to trial, meaning that you can really only staff one or two associates on the matter. The price pressure is made worse by the number of firms who are willing to do appeals work for low or no cost, particularly for SCOTUS cases. And so many other appeals are handled by nonprofits or by law school clinics, particularly on the plaintiff’s side.

I think many larger firms see their appellate practice as sort of a loss leader to help with marketing to clients and, secondarily, as recruiting tool for talent. I think very few firms can support juniors working on appeals full-time, and there’s a reason why the few boutiques that specialize in it are small with very low leverage ratios.

[Anonymous User]

Well the fact Kirkland dumped the best appellate lawyer of all time and his actually profitable practice because a few corporate clients got upset ought to tell you a lot about the worth of appellate practices overall.

[Anonymous User]

Well the fact Kirkland dumped the best appellate lawyer of all time and his actually profitable practice because a few corporate clients got upset ought to tell you a lot about the worth of appellate practices overall.

Can we please not rehash this here?

Also, OP, are you asking about recruiting by these firms or how the firms actually run/market themselves to clients?

Anyway, if you want a single example to break your premise, the most prestigious/selective is not always the most lucrative. Compare Prof Brain E. Academic at YLS with Joe Schmoozer corporate partner at a random V50 pulling multiple seven figures. Public office doesn't pay great, either.

[Anonymous User]

So it seems like the most selective firms place a heavy emphasis on trial experience for young attorneys (taking depos early and the like). I’m talking Susman / Kellogg / Keker / WW / Munger / even W&C. Which is a little weird to me because the biggest brainiacs I know in law school are very appellate-minded and never want to encounter establishing a fact in their lives, from their clerkships to their actual practices, and don’t really want to be Perry Mason. So what gives for the top firms (absent the conservative shops and Gupta) being so proud to boast that they’re *trial* focused?

(1) Most of the firms you listed aren't really "trial" boutiques. Susman is, but Kellogg and Williams & Connolly have significant (and selective) appellate practices, and the most selective Munger office, DC, does predominantly appellate work.

(2) None of the firms you listed are more selective than the top appellate boutiques - Gupta Wessler, Goldstein & Russell, Cooper & Kirk, Consovoy McCarthy, maybe now Clement & Murphy.

(3) Appeals isn't a high margin practice. Most appellate practitioners hang out in big firms. The appeals groups in those firms can be as or more selective than any of the trial firms you mentioned.

(4) Boutiques advertise as "trial focused" not to distance themselves from appeals-focused firms, but rather to distance themselves from generic commercial litigation practices where associates spend their junior years doing doc review. Promotional materials for the firms you list emphasize juniors giving oral arguments in addition to doing trial work.

I think it's mostly the bolded above. In my experience, trial focused for the boutiques really means you won't be doing endless grunt work on giant civil lit matters that need massive numbers of warm bodies. Of course trial itself is rare even at the "trial focused" boutiques, but the work still differs meaningfully from big law lit even if you never cross-examine a witness in your time at the boutique. Also appellate is much more limiting in terms of legal creativity because the universe of arguments is pretty tightly circumscribed by the time it gets to appeal. The brainiacs I know prefer trial to appeal because you have a lot more freedom to craft interesting arguments at the trial level.

[Anonymous User]

Appellate work is a niche field and is not nearly as profitable as trial work The few firms that maintain top appellate practices aren't recruiting at OCI; they're contacting SCOTUS clerks directly.

[jotarokujo]

So it seems like the most selective firms place a heavy emphasis on trial experience for young attorneys (taking depos early and the like). I’m talking Susman / Kellogg / Keker / WW / Munger / even W&C. Which is a little weird to me because the biggest brainiacs I know in law school are very appellate-minded and never want to encounter establishing a fact in their lives, from their clerkships to their actual practices, and don’t really want to be Perry Mason. So what gives for the top firms (absent the conservative shops and Gupta) being so proud to boast that they’re *trial* focused?

(1) Most of the firms you listed aren't really "trial" boutiques. Susman is, but Kellogg and Williams & Connolly have significant (and selective) appellate practices, and the most selective Munger office, DC, does predominantly appellate work.

(2) None of the firms you listed are more selective than the top appellate boutiques - Gupta Wessler, Goldstein & Russell, Cooper & Kirk, Consovoy McCarthy, maybe now Clement & Murphy.

(3) Appeals isn't a high margin practice. Most appellate practitioners hang out in big firms. The appeals groups in those firms can be as or more selective than any of the trial firms you mentioned.

(4) Boutiques advertise as "trial focused" not to distance themselves from appeals-focused firms, but rather to distance themselves from generic commercial litigation practices where associates spend their junior years doing doc review. Promotional materials for the firms you list emphasize juniors giving oral arguments in addition to doing trial work.

I think it's mostly the bolded above. In my experience, trial focused for the boutiques really means you won't be doing endless grunt work on giant civil lit matters that need massive numbers of warm bodies. Of course trial itself is rare even at the "trial focused" boutiques, but the work still differs meaningfully from big law lit even if you never cross-examine a witness in your time at the boutique. Also appellate is much more limiting in terms of legal creativity because the universe of arguments is pretty tightly circumscribed by the time it gets to appeal. The brainiacs I know prefer trial to appeal because you have a lot more freedom to craft interesting arguments at the trial level.

i agree the most with this. the idea that the brainiest want to do appeals is interesting. not the case at ys imo

[Anonymous User]

i agree the most with this. the idea that the brainiest want to do appeals is interesting. not the case at ys imo

Agreed. Anecdotally, at my YSHC, the people who want to do appeals (or at least talk about wanting to do appeals) are just prestige-motivated gunners. The ones who are actually the smartest have a range of interests that have nothing to do with showing others how smart they are.

[Lacepiece23]

Is this a serious question? There are thousands of lawyers that can write a good brief. Much much less who can stand up in a courtroom and convince a jury of ordinary people.

That’s why trial work is always more valuable.

[Joachim2017]

i agree the most with this. the idea that the brainiest want to do appeals is interesting. not the case at ys imo

Agreed. Anecdotally, at my YSHC, the people who want to do appeals (or at least talk about wanting to do appeals) are just prestige-motivated gunners. The ones who are actually the smartest have a range of interests that have nothing to do with showing others how smart they are.

LOL.

[Anonymous User]

Yeah, maybe I'm just too unsophisticated to understand why appellate work is better/more prestigious than trial work, but in terms of client value, it's better to win at the trial level in a way that is hard to appeal in the first place. And I feel like trial work uses more skills--examining witnesses, synthesizing facts from depositions and document discovery, oral argument, etc. But any good experienced trial attorney can write a brief. Writing an appeal brief is basically the same as writing any other merits brief, except you've got the record all nice and tidy in one appendix with stamped pages for citing. (FWIW I'm a 6th year lit associate who is 2/3 on appeal briefs where I was the primary drafter, and am not in any special appellate practice, the partners I work for just like appealing things I guess).

[Anonymous User]

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.

But there are relatively few cases where it makes sense to hire specialized appellate counsel, and in those cases, clients tend to go for Paul Clement or whoever. It’s a very hard practice to make a living at in private practice long-term, except maybe in TX, which has a tradition of divided trial and appellate bars, so many trial lawyers associate with appellate lawyers to work on their dispositive motions and appeals.

Law students like it *because* it’s so selective/small, because it’s so unprofitable, and because it’s relatively close to academia and lots of top students have heavy academic tilts.

[Anonymous User]

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.

[Anonymous User]

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.

- Expertise in issues that don’t regularly arise in day-to-day motions practice, e.g. specific idiosyncrasies of appellate judges on particular issues, academic scholarship and law of other jurisdictions, uniformity of law concerns and trends in doctrine, appellate procedure, error preservation (can be complicated and always extremely important to likelihood of success on appeal—no-expense-spared trials often have appellate specialists embedded to handle it)

- Especially before courts of last resort (I think it’s less valuable for federal COAs) they are often repeat players who bring credibility

- Random comm lit partners, even very good ones, are just not as good at writing or oral argument as Paul Clement

[nixy]

Yeah, agreed with the above - there is a reason why people specialize in appellate; it does have the distinct skills/knowledge from trial that the above post lists. 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. I think I’d say the biggest difference is what I’d call technical ability - a lot of appellate only stuff is mired in all these little technicalities that just aren’t quite the same at trial.

In fact, being a good appellate lawyer can make you a better trial lawyer, because you know better how to avoid the minefields for the later appeal.

(This is leaving aside whether you have to be as good as Paul Clement as any of this because that’s a dumb standard.)

[Anonymous User]

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.

- Expertise in issues that don’t regularly arise in day-to-day motions practice, e.g. specific idiosyncrasies of appellate judges on particular issues, academic scholarship and law of other jurisdictions, uniformity of law concerns and trends in doctrine, appellate procedure, error preservation (can be complicated and always extremely important to likelihood of success on appeal—no-expense-spared trials often have appellate specialists embedded to handle it)

- Especially before courts of last resort (I think it’s less valuable for federal COAs) they are often repeat players who bring credibility

- Random comm lit partners, even very good ones, are just not as good at writing or oral argument as Paul Clement

"Expertise in issues that don’t regularly arise in day-to-day motions practice, e.g. specific idiosyncrasies of appellate judges on particular issues"
So this is maybe relevant if you're always before the same appeals court, but in my experience, I tend to. have more experience with the particular appeals courts in my jurisdiction since I always practice there. The appeals specialist folks don't and so I have to clue them in when I am in-state counsel for them. In any event, it's not a special skill that only the most pedigreed lawyer can master

"Expertise in issues that don’t regularly arise in day-to-day motions practice, e.g. specific idiosyncrasies of appellate judges on particular issues"
this seems like it's case-specific anyways. Again, a "good" trial midlevel associate should be able to do similar research on motions to dismiss, summary judgment, pre and post trial briefs. I just finished post-trial briefing on a novel area of law and outlined what the law was in other jurisdictions and how it had changed over time to show what law we think should be adopted here

"appellate procedure"
Again, seems court specific, and not part of some appellate skill set. I know what I am doing in my usual jurisdiction more than people from outside it who specialize in appeals generally. I've done two appeals outside that, and just had to read the rules very carefully and then conferred with someone more familiar to make sure I wasn't missing anything

"error preservation (can be complicated and always extremely important to likelihood of success on appeal—no-expense-spared trials often have appellate specialists embedded to handle it)"
huh, well I guess I am just not fancy enough to have seen embedded appellate specialists at trial, so IDK what to say to this. I've never run into the issue of not preserving a grounds for appeal when I was involved at trial (I have when taking over an appeal from pro se litigants who represented themselves at the lower court,which is frustrating in its own way, for sure)

"Especially before courts of last resort (I think it’s less valuable for federal COAs) they are often repeat players who bring credibility"
Yeah, again, I'm the repeat player in appeals usually, in my practice at least, not the appellate folks, so this doesn't apply, but I agree it could be useful if someone is familiar with an appeals court, but that's not a special appellate skill set, that's just being a repeat player

At any given time, I'd say 10% of my active cases are appeals, and they don't feel much different from cases in a merits briefing stage. I suspect that appellate specialists are perceived as brainy because a lot of very smart lawyers want to just focus on the writing and arguments and don't enjoy the other parts of litigation, ilke discovery. And so it's more competitive, which ends up meaning only the smartest lawyers get those positions. Because don't get me wrong, all the appellate specialists I have worked with as co-counsel or as opponents are all very smart. I'm just not sure what it is specifically that makes them an expert on appeals.

[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.