Unconventional wisdom from a practitioner
By Jeffrey Wald
You’re early in your legal career. Or maybe you’ve just started law school. And you get the brilliant idea: I want to be an appellate attorney. Good for you. If you can pull it off, you will have one of the most intellectually satisfying and rewarding careers law offers.
But then you think: how? What can I do now to further my prospects of becoming an accomplished appellate practitioner in the future? I’m going to eschew the obvious. Sure, you could clerk for a United States Supreme Court justice, or get a job at the Solicitor General’s Office, but follow me for a moment, if you will, and I’ll share with you three unconventional, but foolproof, tips on how to become a knockdown appellate advocate.
First, read. A lot. Read everything. Histories, plays, biographies, essay collections, the newspaper, magazines, read it all. But most importantly, read the best. Read Dostoevsky, Shakespeare, Tolstoy, Dickens, George Eliot, and company. Read and read and read. And if you don’t like it, stop, and choose another career path. Because if you don’t like to read, you won’t like being an appellate attorney. Being an appellate attorney is first and foremost about reading. Reading the order being appealed. Reading the transcript of the lower court proceedings. Reading poorly written and convoluted statutes and regulations. And reading case after case after case, looking for just the right one to convince that judge or justice that you know will be reflexively skeptical of your argument. I’m perhaps biased, because I have always been a lover of the novel, but I think you should prioritize reading a lot of novels, from many different genres, styles, periods, and places. The novel is narrative- and character-driven, just like your appellate briefs. Learn to appreciate the complexity of the human condition that a novel like Brothers Karamazov or War and Peace portrays, and you will be far better equipped to prepare a brief on a Fourth Amendment issue, or challenge damages in a wrongful-death case, or even interpret EPA regulations.
Second, write. A lot. Write and write and re-write. But don’t start with legal writing. Instead, write a creative piece. Challenge yourself to write a short story, with plot, characters, and some action. All appeals have these three basic components: who, what, and why? Characters, action, and plot. When you’ve finished your short story, write an advocacy piece. Perhaps an article on “why PB&J sandwiches are gross,” or “what makes Calvin and Hobbes the funniest comic”? Try to convince someone of something using reason, common sense, and perhaps even a little comedy. After that, keep writing, but again, don’t write legal prose. You’re not yet ready for that. Think of legal writing like blank verse poetry. It’s not that people should never write blank verse poetry, they just shouldn’t be allowed to write it until they’ve mastered formal verse, with strict adherence to meter and rhyme scheme. You shouldn’t be allowed to break the rules until you’ve mastered them. The same goes for legal writing. You shouldn’t be allowed to write legal prose, especially the apex of the form—appellate writing—until you’ve mastered the art of just plain good prose. If you jump into legal writing without knowing how to simply write—period—your briefs will come out looking like poorly executed blank verse poems. A heap of words on a page, with no beauty, no structure, and no power. And if you find that you don’t like writing? Then find another career path, because second to reading, appellate advocacy is about the written word.
Third, go to an art museum. Wait a minute, you’re thinking, this guy’s fallen off his horse and hit his head. An art museum? Hear me out. I’ve read hundreds of appellate briefs, and thousands of appellate opinions. Some of this writing is very good, and some is awful. What does the good writing have in common? For one, it is visually pleasing. Pick up a paper copy of a well-written appellate brief or opinion and leaf through it, and you’ll observe that it looks good. There’s proportion, balance, blank space. There’s no obvious typos or misaligned margins. Paragraphs aren’t as long as a Martin Scorsese movie. Bolded headings break up the text. And perhaps most importantly, you can tell—without even reading a word—that there is an actual argument being made, not simply endless string cites to cases that the judges will never read. And poor appellate writing? It bears the imprint of the mind of the maker: In other words, it is a mess.
But visiting an art museum will help develop another key skill that all appellate practitioners must develop: the art of slowing down. Appellate practice is not the same as trial practice. Trial lawyers must be quick on their feet, experts at improv, adept at juggling a hundred things at a time. If trial lawyers are sprinters, or perhaps even more apt, Olympic hurdlers, then appellate practitioners are marathon runners. Appellate writing takes time. You can’t be rushed. You can’t write an appellate brief in a day, and even if you could, you shouldn’t. Because before you write a single word of your appellate brief, you should have spent many hours and days thinking about the case. Reading everything. Mulling it over in the shower or during your commute. Seeing it from every angle. Treating the issues like cud in the mouth of bovine.
In other words, appellate practice is like going to an art museum. It defeats the purpose of visiting an art museum if you make it your goal to see every painting during one visit. Instead, pick one painting and abide. Sit or stand and look. If you’re there two hours, look at that one painting for two hours. Train yourself to observe not just the foreground, but the background. See every detail. In art, details matter. In appellate practice, details always matter. In fact, it is the minutiae, the granular details, those little facts hidden on page 889 of a transcript, that oftentimes make or break an appeal—proof that the plaintiff did not raise the issue at trial she now raises on appeal, or an admission from an expert that sinks the claim. Just like it is the details in a painting—the younger son’s worn footwear in Rembrandt’s The Return of the Prodigal Son, or the enormity of the woman’s hands in Van Gogh’s The Potato Eaters—that transforms good art into a masterpiece.
If you’re looking to guarantee a job as an appellate advocate, by all means, clerk for SCOTUS or get a job at the U.S. Solicitor’s General’s Office. If it’s not a job you’re after, but proficiency and excellence, then first learn to read, write, and see.
Jeffrey Wald is of counsel at Nelson Mullins Riley & Scarborough, where he focuses on criminal and civil appellate litigation in state and federal courts.