An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
So You'd Like To Be An Appellate Lawyer?
By Howard J. Bashman
Monday, February 9, 2004
Recently I have received many requests for advice from individuals at or near the start of their legal careers who believe that being an appellate lawyer would be much more enjoyable and rewarding than what they are currently doing, which usually involves the practice of general commercial litigation.
I can certainly sympathize with these advice-seekers, because reviewing box after box of a document production, preparing mind-numbing answers and objections to written discovery, or rushing off to court, after staying up working through the preceding night, to seek or defend against an emergency injunction does not tend to be a recipe for job satisfaction for newly-minted lawyers.
Individuals who have achieved some modicum of success as appellate lawyers undoubtedly have widely varied accounts of how they achieved that status. Because there is not simply one single path to success as an appellate lawyer, the best I can do is to describe the path that I took and the recommendations I have to offer based on my experiences.
First and foremost, someone interested in being an appellate lawyer should seek out and accept an appellate judicial clerkship. As an appellate law clerk, you will not only greatly improve your writing and reasoning skills, but you will also observe first-hand what types of arguments tend to persuade a neutral decision-maker. Undoubtedly you will also realize that your own work will surpass in quality the vast majority of the briefs that are filed with the court on which you are clerking. Most important, though, is to learn from the best of the appellate briefs and oral arguments in order to better your own skills as a lawyer.
After my judicial clerkship concluded in 1991, I went to work for a law firm in Philadelphia that had a burgeoning commercial litigation practice but no established appellate litigation specialty. As it turned out, I was the only new associate who had clerked on the U.S. Court of Appeals for the Third Circuit to have joined the firm in recent years.
Fortunately for me, after I had been at the firm for a year, briefing began on a Third Circuit appeal in which one of the firm's clients had won a $54 million verdict in a business tort case. The partner who tried the case had assembled a very small team of lawyers consisting of himself and two experienced litigation associates who were quite talented at trial work. The case was of great interest to the entire law firm, however, because the firm had a partial contingent fee interest in the case that, if recovered on, would double each partner's annual compensation.
Although the two associates on the case were both talented trial lawyers, they were not experienced appellate litigators. The first draft of the Brief for Appellee, which one of those two associates put together, consisted largely of merging various trial court briefs. Because that first draft was twenty-five pages over the then-applicable page limit, it was clear to all that much hard work remained to be done.
I seriously doubted that any amount of tinkering with the draft would cause me to be entirely happy with it, and therefore I asked the partner in charge of the case whether he would authorize me to begin drafting an entirely separate version of the brief from scratch. I explained that if my brief turned out worse than the existing draft, at least the existing version would remain available. That partner agreed with my suggested approach.
When my version of the brief was completed, the partner in charge of the case found it to be superb. Even the associate who had tried to merge the various trial court briefs into an appellate brief admitted that the brief that I wrote was the one that should be filed. Thereafter, my brief was filed, and later the Third Circuit unanimously affirmed by a judgment order, without opinion, the $54 million judgment in our client's favor. And the partners at my law firm received quite a large payday sometime soon thereafter.
Due to that result and the publicity my involvement received within the law firm, all of that law firm's partners began to realize that it might be a good idea to get me involved in handling appeals for their clients. That realization translated into plenty of appellate brief-writing and the occasional appellate oral argument. Also around that time, I accepted a request from the Third Circuit judge for whom I had clerked to volunteer to accept pro bono appointments from the Third Circuit. Those pro bono appointments, which I continue to accept to this day, provided many more appellate brief-writing and oral argument opportunities.
In 1994, one of the law firm's major clients, a company facing staggering asbestos-related liability that had placed it into bankruptcy, learned that the U.S. Supreme Court had granted certiorari to determine whether the bankruptcy court had authority to prohibit personal injury plaintiffs from executing on supersedeas bonds worth approximately $70 million that had been posted in various federal courts across the nation. Although a Tampa, Florida-based law firm had written the cert. petition, I was asked to be the principal author of the U.S. Supreme Court merits briefs.
After spending what seemed like a lifetime in Tampa, Florida during the summer months, the brief-writing was complete. The case was argued in Washington, DC in December of 1994, and in April 1995 the Supreme Court ruled 7-2 in favor of my client. The majority opinion drew heavily from the briefs I had written.
Thereafter, I remained actively involved in that bankruptcy case, as other related issues continued to arise on appeal to the U.S. Court of Appeals for the Eleventh Circuit. And thanks to a pro bono bankruptcy case, I have since 1995 sat at counsel table in the U.S. Supreme Court one more time.
Meanwhile, back at the law firm, appeals continued to be routed to me internally, and externally my increasing visibility began to attract some appellate work from outside. I began to become more involved in the Appellate Courts Committee of the Philadelphia Bar Association, and before long I was named one of its two co-chairs. Also, in December 2000, I was fortunate to become the author of this monthly column concerning appellate litigation published here in The Legal Intelligencer
. As a result of that increased visibility among other lawyers in town, additional appellate work from outside of the firm continued to come my way.
What are clients and lawyers in search of appellate assistance from elsewhere looking for? First, they are looking for appellate advocates who are experienced, respected, and known to the court in which the appeal is pending. Second, I always give potential new appellate clients examples of my recently-filed appellate briefs, so that they can judge for themselves whether I am capable of producing a high quality product. And third, these clients and referring lawyers are looking for an attorney who will be easy to work with. Litigators can, as a group, be difficult to love, but to succeed as an appellate lawyer you must be a team player.
More recently, I spent the past three years heading the appellate section of a much larger law firm based in Pittsburgh. And for much of that time, I was operating my very popular appellate Web log, "How Appealing," which has brought me to the attention of many potential referral sources of appellate work from across the nation. Finally, this month I left big firm life and opened my own Pennsylvania-based appellate boutique, where I am already on pace to be happier than ever, and make more money than ever, while working fewer hours than at a mega-sized law firm conglomerate. Shhh, don't tell anyone that's possible!
In many ways, my career as an appellate lawyer traces directly back to a $13 million fee that the first law firm I worked at recovered thanks, in part, to the appellate briefs that I wrote. Many years later, I have the satisfaction of knowing that I have written scores of appellate briefs that have impressed many of the most difficult judges of appellate work: appellate courts, co–counsel, and clients.
The trouble with appellate litigation is that there are many more people who would like to be focusing their practice in this area than there are lawyers who are truly talented at performing the work. But if you are especially good at it, you can succeed, even at a large law firm that has never considered allowing its lawyers to focus their practice on handling appeals.
Each day, more and more lawyers and clients are recognizing the many advantages of having an experienced and capable appellate lawyer involved when a case is heading to or has arrived at the appellate level. And the price of hiring an appellate attorney is not prohibitive and tends to be quite cost-effective. Of course, nothing is more expensive than failing to preserve on appeal an excellent result or failing to overturn on appeal an especially harmful decision simply to save the cost of hiring a talented and experienced appellate lawyer.
So, young lawyers, if you are a top-notch writer and a clear thinker, you too could with the proper combination of good luck and hard work become a successful appellate litigator. But if you fail, rest assured that there will be plenty of boxes of documents to review and objectionable written discovery requests awaiting responses.
This article is reprinted with permission from the February 8, 2004, issue of The Legal Intelligencer © 2004 NLP IP Company.
Law Offices of Howard J. Bashman
1250 Virginia Drive
Fort Washington, PA 19034
Phone: (267) 419-1230
Telecopy: (267) 419-1231
BASHMAN LEAVING BUCHANAN INGERSOLL TO OPEN
PENNSYLVANIA–BASED APPELLATE BOUTIQUE
PHILADELPHIA (February 2, 2004)--Attorney Howard J. Bashman announces that he has departed Buchanan Ingersoll to open his own law firm, which will be Pennsylvania’s first self-proclaimed appellate boutique.
Bashman, age 39, is a nationally-known appellate lawyer who appears regularly before the U.S. Court of Appeals for the Third Circuit and Pennsylvania’s state appellate courts. In 2003, The Legal Intelligencer and Pennsylvania Law Weekly named Bashman one of Pennsylvania’s top 40 lawyers under age 40 on the strength of his appellate litigation practice.
Bashman serves as Chair of the Philadelphia Bar Association’s Appellate Courts Committee and writes a monthly column on appellate developments for The Legal Intelligencer, Philadelphia’s daily newspaper for lawyers. His “How Appealing” Internet Web log, a daily collection of links to legal news and interesting new appellate rulings, is read by thousands of lawyers and judges each day.
“I made the difficult decision to leave Buchanan Ingersoll for two main reasons,” said Bashman, who for the past three years has chaired that law firm’s Appellate Group.
“First, being at such a large law firm regularly required me to turn down work from potential new appellate clients due to perceived positional conflicts and the like.”
“Second, on my own, I can represent clients seeking top-notch appellate services for less than they would pay at big Philadelphia and Pittsburgh law firms because I won’t have the very expensive overhead of a large law firm.”
Cases in which Bashman’s appellate clients have prevailed in the Third Circuit have repeatedly made The Legal Intelligencer’s year–end recaps of significant rulings. In addition, the Third Circuit has appointed Bashman to handle on appeal many important and complex pro bono matters.
In the Pennsylvania state appellate courts, Bashman is currently representing (among other clients) both a parent who is mounting a constitutional challenge to Pennsylvania’s grandparent visitation statute, and Guy Sileo, Jr. on appeal from his murder conviction in a case that received extensive media coverage in the Philadelphia region.
Within the past few years, Bashman has been profiled by The Associated Press, The ABA Journal, Legal Times of Washington D.C., and The Daily Journal, a California–based legal newspaper. As an appellate commentator, he has been quoted or favorably mentioned by The New York Times, The Boston Globe, The Detroit News, The Seattle Times, Wired News, Salon, and Reuters. And he has recently published essays concerning appellate issues in The Los Angeles Times and online at Slate.
“I’m flattered that all of my appellate clients are staying with me, together with several new clients that would not have been able to retain me at Buchanan Ingersoll,” Bashman said. “Before too long, I hope to be able to bring into the practice additional lawyers who excel at and enjoy appellate brief-writing and oral argument.”
“Clients of all sizes are recognizing that to achieve the best results on appeal, you need a lawyer who knows how the mind of an appellate judge works, how to write a persuasive and easy-to-understand appellate brief, and how to deliver a convincing appellate oral argument. Over the past five years, many clients have hired me after interviewing various lawyers and comparing my appellate work with the work of other highly regarded lawyers who practice in the Third Circuit and the state appellate courts of Pennsylvania. Now, on my own, I will be able to compete even more effectively for such clients and also market myself to trial lawyers looking to work with an experienced and well known appellate litigator to preserve a big victory or overturn an adverse result.”
In 2003, Senior Third Circuit Judge Ruggero J. Aldisert published a newly-revised edition of his highly acclaimed book “Winning on Appeal.” Bashman is one of just a few nationally-recognized appellate lawyers who, along with many federal and state court appellate judges, provide advice in the book on how to achieve excellence in appellate brief-writing and oral argument.