Explaining an Appellate Practice

I am occasionally asked by other lawyers, generally new acquaintances, about my practice. I tell them I particularly enjoy, and would like to handle more, appellate cases. The reaction is predictable; my new acquaintance’s nose wrinkles, as though he has just smelled something bad; or he rolls his eyes and says, “Oh, I can’t stand going to appellate courts. I don’t know how you could want more of those cases.” My protests that appeals are tremendous fun generally get me nowhere; now my acquaintance is persuaded that I am either a fool or a masochist.

In the past, I have explained the difference between trial work and appellate work by comparison with other professions. Trying a case is like being the ringmaster in a circus. There are 387 things that have to happen, all in a particular order, at a particular time, and in a particular manner. If any one of those things goes wrong, the entire show grinds to a halt. And everyone in the audience is looking at you, because you’re the one standing in the middle of the ring.

In contrast, handling an appeal is like performing an autopsy. You can’t kill the patient; he’s already dead. Your task is to determine the cause of death, and then persuade the court of the correctness of this diagnosis. It can all be done in an unhurried, relaxed environment, and is a much more analytical process.

So why do I prefer being a coroner to being a ringmaster? For one thing, it’s far simpler and more predictable. In an appellate court, there is no pressure to assemble a complicated and fragile series of in-court events, and no witness ever failed to appear or suddenly changed his testimony. I also have a much better feel for how my audience will react to my argument than will the average trial lawyer, who will know next to nothing about her jurors’ inner thoughts. (The average appellate jurist will have given me dozens of clues as to her thinking, in the form of a series of written opinions.)

Still, I get expressions of disbelief when I explain this preference. Some trial lawyers say they prefer the challenge, the rough-and-tumble experience, they can only find in a trial court; it makes them feel more like the gladiators they conceive themselves as being – though always in furtherance of a noble purpose, of course. I cannot, and would not attempt to, dissuade such a person from his preference. I recognize that an appellate practice, like a divorce practice or transactional work, isn’t for everyone. But there are some advantages. One of those is the opportunity to influence social policy on a wider scale than is possible in a trial court.

Yes, I know of the preference many people have for confining what they view as political issues to the political process, and keeping the courts out of what they view as activist roles. I don’t propose to debate the wisdom of defining social policy in a courtroom; I only recognize that it inevitably happens. The fact remains that the courts are often called upon to decide cases that have wide-ranging effects on more than just the individual litigants. Appellate lawyers have a better opportunity to shape those changes than do trial lawyers, who generally only affect two parties at a time. (There are, of course, exceptions, notably class action suits. But this is the general rule in trial litigation.)

In the 1990’s, I spent nine very rewarding years in the public sector, working in the Virginia Beach City Attorney’s Office. In the nearly six years since I left that office, many people have asked me if I miss working there. My usual response is that there are two things I miss. One is the daily interaction with the wonderful group of people who worked there. The other is the sense that, when I went to argue an appeal in the Supreme Court of Virginia, what I said and did mattered to seven million people. Arguing a public sector appeal almost always involves important public policy considerations, and many of my cases had consequences for every Virginian.

Now that I’m in the private sector, what I say in an appellate court often matters to exactly two people – though it will indirectly influence a good many others, depending on the precedent set by the court’s decision. But we must recognize that each appeal has at least the seed of a wide-ranging decision that can dramatically affect the scope of the law and the lives of a great many people.

We as appellate lawyers thus have an opportunity not shared by many trial lawyers, to affect more than one injustice at a time. The difficulty is in figuring out how to make a case “matter” to more than just the individual litigants. (This is also a vital technique for getting a writ in the first place.) This opportunity, paired with an inseparable obligation, is (in the words of Boston College Philosophy professor Peter Kreeft) to do good instead of just doing well.

Excellent trial lawyers have honed the skill of inciting juries to righteous indignation against accused criminals, or to empathy for seriously injured clients. How does an appellate lawyer do this? After all, the first thing you need in order to engage in some rabble-rousing is a rabble, and one does not generally find the ingredients for a rabble on an appellate bench.

One method may be for us to be more zealous in our pursuit of that sense of righteous indignation, even from a writ panel. There may be limits to the effectiveness of the calm, dispassionate approach favored by many appellate lawyers, this writer included. Alan Dershowitz, in his Letters to a Young Lawyer (Basic Books 2001), advocates having what he calls a good enemies’ list. He reasons that the lawyer who has no enemies, who remains on good terms with all of his adversaries at the conclusion of the case, is not taking enough chances — is not being sufficiently zealous in the protection of his clients’ rights. I am not sure I agree with a statement so bold, although it has certainly served Dershowitz well in his pursuit of justice for his clients.

But that should not dissuade the appellate advocate from taking chances, from singing at least a few phrases of the song of the spirit to a bench accustomed to hearing cold, dispassionate reason. The attorney for the appellant in Lawrence v. Texas, 539 U.S. 558 (2003) was faced with the task of persuading the Supreme Court that a case just seventeen years old was wrongly decided. This was not the environment of Brown v. Board of Education, in which the Court overturned a 56-year-old doctrine (“separate but equal,” enunciated in Plessy v. Ferguson in 1898) in the context of a changed society. Support for the sexual freedom of homosexuals had expanded between 1986, when the Court decided Bowers v. Hardwick, 478 U.S. 186 (1986), and 2003, but not by the order of magnitude by which the times had changed between Plessy and Brown.

Effecting sea changes like this requires courage on the part of the lawyer. A courageous appellate lawyer has an opportunity not realistically shared by the trial lawyer; one can hardly imagine a ruling from the Texas state judge, who originally tried Lawrence, holding the U.S. Supreme Court’s relatively recent decision to have been wrongly decided. It took an appellate court, the highest in the land, to do that. And it took a courageous lawyer, one not afraid of being rebuked as unrealistic, to make the argument in the first place.

Having written this, it still is my preference to be a coroner instead of a ringmaster. But it is worthwhile to remember that sometimes even a coroner needs to have the guts to take a risky stand. Whether you agree with the Lawrence majority or not, recognize that every appellate lawyer has the opportunity to shape social policy in this fashion, and that such an opportunity that is wasted may not present itself again.