The rise of the appellate specialist

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By Correy E. Stephenson and Steve Lash
Dolan Media Newswires

Over the last few decades, the use of specialized appellate lawyers has grown dramatically.

The trend is particularly apparent at the nation’s highest court.

“There certainly has been a dramatic increase in the number of Supreme Court cases handled by specialized counsel,” said Tom Goldstein, the publisher of SCOTUS blog and an appellate lawyer at Goldstein Russell in Washington who has argued before the court 28 times.

The specialized bar has gotten a lot of attention and been aggressive about seeking out cases, he said. “And once one side has gotten a specialist, the other side tends to do the same.”

Matthew Lembke, immediate past chair of the American Bar Association’s Council of Appellate Lawyers, believes the specialized bar at the U.S. Supreme Court has had a “trickle-down effect” for federal and state appellate courts.

Lembke, a partner at Bradley Arant Boult Cummings in Birmingham, Ala., has noticed a change since he clerked for Justice Anthony M. Kennedy 20 years ago.

With the justices hearing oral arguments from a very select group of lawyers dedicated to practicing before the court, “it is now unusual for major law firms not to have an appellate group,” he said. Smaller firms have followed suit.

The increased specialization can also be attributed to client demand.

Patients with heart problems “don’t go to a general practitioner – they want a board certified cardiologist,” said Shannon McLin Carlyle, one of five attorneys at The Carlyle Appellate Law Firm in The Villages, Fla. “Just as medical fields have specialized, so too are legal specialties growing.”

An increasingly sophisticated client base has realized the benefits of having a specialist for a lawyer, Carlyle added. “It’s a win-win situation. The consumer gets a better, more experienced professional and [the specialized appellate lawyer] has greater knowledge and expertise for the case.”

Sitting second chair

The work that trial lawyers and appellate lawyers do demands that they have different skill sets.

Litigators “rely upon oral advocacy and being able to persuade a jury,” explained Carlyle, while appellate lawyers have a greater need for persuasive writing and strong research abilities.

“Appellate practice is really for lawyers who love writing about purely legal questions, rather than developing and proving facts and appearing in court more often,” Goldstein said.

Or, as Kent Richland said, “we’re geekier than trial lawyers.”

Richland, a partner at Greines, Martin, Stein & Richland in Los Angeles, has been an appellate lawyer for his entire career, arguing cases before state and federal appeals courts as well as the Supreme Court in Stern v. Marshall, also known as the Anna Nicole Smith case.

“When I first started practicing, the appellate practice was considered a second-class position and considered a back-room operation, away from the clients,” Richland said. But “over the years, people have realized that you can mess up on appeal just as you can in trial court,” and recognized the need for expertise.

Because of the difference in skills, appellate lawyers bring a fresh set of eyes and a different perspective to a case.

An appellate lawyer “can see the forest through the trees,” Carlyle said, and determine “what is the best legal argument to the appellate court to either reverse or defend this verdict.”

That perspective can prove invaluable even in the early stages of litigation, said Lembke.

“It is a mistake to try a major case these days without an appellate lawyer listening in the courtroom to preserve issues on appeal,” he said.

Appellate lawyers will pay particular attention to motions for judgment as a matter of law, jury instructions and objections to jury instructions, he said.

Members of Carlyle’s firm have been called to participate in cases from the very beginning, she said, and will often sit second chair during trial.

“We troubleshoot and make sure that arguments for potential appellate issues actually get on the record,” she said.

But involvement in a case that early on is not appropriate for every lawsuit.

Cases with significant damages – where the cost of an additional attorney can be covered with a victory – are likely candidates.

Carlyle’s firm, for example, is involved in the Engle cigarette litigation in Florida, helping plaintiffs facing inevitable appeals from the tobacco defendants.

Lembke said some insurance carriers will insist upon having an appellate lawyer involved throughout the case if the company faces major exposure.

And Richland said he is often brought into class action litigation during the certification stage, which is an appealable issue prior to trial.

But cases involving significant legal questions may also require early appellate involvement.

Carlyle is currently working on a family law dispute involving a former same-sex couple in which one woman’s egg, fertilized by an anonymous sperm donor, was carried to term by the other. The case, which began as a custody dispute, involves novel constitutional issues about the definitions of “birth mother” and “biological mother.”

“There is not a lot of money at stake,” said Carlyle, who is working pro bono on the suit. “But [there are] very important legal issues.”

The irony of an appellate specialist is that he or she is actually a generalist in terms of substantive law, Richland noted.

“I handle everything from family law to entertainment to constitutional issues,” he said.

Specialization recognized by bars

In addition to benefiting clients, specialization also keeps the court system running smoothly. Richland said that “appellate judges appreciate working with lawyers who talk the talk,” because it makes the process more efficient and effective.

For example, one of the weakest arguments you can make on appeal is that the evidence at trial didn’t support the determination of the finder of fact, Richland said. But trial lawyers, who are accustomed to focusing on facts, will typically lead with that argument on appeal.

Appellate attorneys will instead focus on errors during trial and whether appropriate standards for evidence were met, he said.

In recognition of the rise of appellate lawyers, an increasing number of states – including California, Florida and Texas – have established an appellate specialty, with various qualifications.

For example, to be a board certified appellate specialist in Florida, attorneys must have been in practice for more than five years, have been solely or primarily responsible for 25 appellate actions and five oral arguments over the previous three years and be able to document that a significant percentage of their practice is devoted specifically to appeals.

“Generally speaking, lawyers aren’t going to have the opportunity to handle that many appeals in such a short amount of time,” Carlyle said, which means that most specialists will have upwards of 10-15 years of experience.