Do appellate lawyers make a difference?


At last, I can report on the very excellent AAAL conference I attended last week in Phoenix.  It had 4 basic modules, each of which was very good, and upon which I shall report.  The basic theme of the conference was the appellate lawyer's role – before the court, in the law firm & in life (yes, one module was "The Appellate Lawyer and a Meaningful Existence" – that's the last one I'll talk about so you will just have to wait to learn the meaning of life.)  The prompter for the conference's theme was the suicide of Mark Levy, an appellate lawyer in Washington with multiple Supreme Court arguments, who killed himself when he was laid off by his firm.  So this was a very holistic meeting; as always, it had some great speakers and lots of useful information.

Module #1 focused on the appellate lawyer and the court, and asked what difference the lawyer makes on the outcome of a decision.  Some judges tend to think that it is their case, and that they and their clerks are digging up the "right" answer, whoever may bring it before them.  Lawyers think that its their case and they are the singlehanded cause for victory.  Who is right? The session was  triggered by a colloquy between Chief Justice Roberts and Paul Clement in the oral argument in Perdue, discussing whether the lawyers should obtain enhanced fees, with the Chief suggesting, perhaps with some tongue in cheek (or he's forgotten his own days as a practitioner) that there should be no enhancement because the appellate lawyer makes no difference; the court does all the heavy lifting.  The speakers on this subject included Justice W. Scott Bales of the Arizone Supreme Court and Judge William C. Canby of the Ninth Circuit. 

The general gist was that a trial lawyer's impact on results is more obvious, but that the appellate lawyer's impact is there, too.  It's just that the better the lawyer is, the less the court tends to see that impact.  You want the judges to think they got to the result on their own because it's the right answer, not because of anything you did.

It's the choices made on appeal in what to raise, how to phrase the argument, etc. that matters.  The judges said that one particularly useful aspect of the lawyers' presentation is helping them see implications and patterns – how a particular law fits in the Medicare scheme for example, what the impact of a ruling will have in an area, or how this decision fits with precedent – the big picture.  Another useful role for the appellate lawyer is as repository of all the facts; one of the judges said if you listened to a set of oral arguments, you should count the fact questions, and you'd see that it's a very big chunk.  One judge noted that a good lawyer makes a difference not only in winning, but limiting the damage in losing – arguing in a way so as to minimize the damage should the decision be against their position.

One interesting factoid is that the development of appellate practice as a separate expertise in the U.S. began in California.  The state paid relatively well for government financed appeals, so a core of lawyers specializing in this work developed.  The judges were so pleased with this cadre of lawyers specializing in appellate law that recognition expanded and a speciality developed in the private sector as well. 

The judges were also rather candid about how when review is discretionary, the individual lawyers involved can make a difference.         

This is, of couse, an appellate conference, so no one is likely to opine that the lawyer makes no difference, or that an appellate specialist adds no value.  But one point expressed by multiple speakers was that appellate lawyers are increasingly being used at the trial level, too, helping to preserve and shape the case, by insurance companies and others.  

Stay tuned for module #2.