Every first-year attorney enters their respective practice area with a fine balance of fear and confidence. Ideally, we have spent at least some time clerking for the same firm or in the same field. However, if you are like me, you may have spent your entire law school career clerking for civil trial firms only to unexpectedly land in a different practice area. The purpose of this article is to articulate my experience practicing appellate litigation thus far and a few valuable skills I have picked up along the way.
Moot Court Is Called “Moot” for a Reason, and Less Is More
On my first day at a boutique law firm, I was immediately given an appellant brief assignment. While I was fully aware of my lack of real-world appellate experience, I naively thought my several years of moot court experience through the law center would give me a leg to stand on. This delusion was quickly put to rest by a colleague when she said, “Yeah, you can pretty much throw all of that out the window . . .” or something along those lines. And she was right. The truth of the matter is moot court fact patterns are artfully designed to give both parties equal statutory and caselaw support. Unfortunately, the legal cookie rarely crumbles so neatly. In fact, and especially as the appellant (or applicant in a writ of habeas corpus), both the law and the facts are often heavily against our client’s position. The law tends to view judgments in the trial court as final and only reversible in rare cases.
Simply put, approaching a real-world legal issue with mock-world solutions does not cut it. Additionally, the traditional moot court repetitive, formulaic, and often lengthy writing style will likely merit a quick skim by an appellate panel, with important issues potentially overlooked. Thus, entering this practice with the mindset of, “I probably don’t know what I’m talking about,” will save valuable hours of corrections from your boss. Sure, you will need those research and writing skills you learned in law school, but for the finished product, expect lots of feedback and learn from it. More importantly, try not to be married to your writing.
Take Notes . . . Lots and Lots of Notes!
One of the greatest benefits (in my opinion) of working for a boutique firm is the amount of exposure new attorneys receive to legal practice. In short, you can probably expect to begin drafting your first brief within days (or even hours) of your arrival. The downside to this model, however, is instead of the traditional 6-to-10 levels of accountability found at larger firms, there may only be one or two experienced attorneys who review and edit your work before filing.
If you find yourself in this situation, take a deep breath and start using those note-taking skills you learned in law school. As most of us have probably heard at this point, it is OK to make mistakes, especially as a new attorney, but try to avoid making the same mistake twice. My advice? Start writing the important stuff down, make a checklist for different filings, and always work off a good template.
Balance Self-Sufficiency With Reasonable Questions
In the world of boutique firms, fewer resources mean less time. As a new attorney at such a firm, I do not have a paralegal or secretary that works strictly for me, and the ones we do have are just as busy (if not more so) than the attorneys. Most importantly, my boss’s time is extremely valuable. Because of this, it’s important to find a balance between self-sufficiency, time efficiency, quality work, and of course, learning the trade.
Fortunately, this is a skill that can be learned, and one I find I am still learning. However, for any given project, my goal is always to submit quality work as efficiently as possible. When I find myself facing an unfamiliar project, it’s important to determine (1) whether the issue is one I can likely find the answer to on my own; (2) if so, how long will it probably take; (3) how much time should I spend trying to figure this out myself; and (4) if I cannot find the answer myself, who is the best person to ask? More times than not, I can find these issues on my own. However, the other three are skills you should learn as quickly as possible. As an appellate attorney, you earn your worth by becoming more self-sufficient and efficient every day, but in this line of work, you should never sacrifice quality for efficiency. Learn what to ask and when to ask it, and most importantly, when you receive an answer, learn from it.
Austen Smith is an associate of Clouthier Law, an appellate litigation firm in The Woodlands.