The Appellate Dream Team

Not everyone is good at everything. I’m not, anyway. So I’ve been thinking lately about the various skill sets that a good, full-service appellate group should have. And I think I’ve come up with the five key components of the appellate “Dream Team.” Keep reading, and let me know if I’ve forgotten something.

At the outset, let me say that these five skill sets don’t necessarily represent single individuals. In other words, the Dream Team doesn’t necessarily have to have five players. You could have a Dream Team with just two or three players, with each person being responsible for more than one skill set. Or your Dream Team might have a dozen players, or dozens of players, with overlapping skills or with finer distinctions drawn within a particular skill set. (See #2 below for examples of finer distinctions within a skill set.)

That being said, here are the five players (i.e., skill sets) that every appellate Dream Team should have:

1. The Architect

I’m guessing this is what many people think of first, when they think of appellate lawyers. This is the issue spotter. The critical and analytical thinker. The person who grasps the intricacies and nuances of the law, and can discern the salient issues for appeal. The Architect is the legal strategist: the one who knows which issues to focus on and which ones to discard; when to dig deeper on an issue and when to concede. And the Architect also understands rhetorical strategy—not just which issues to raise, but also which arguments to make and how to best make them. This entails having a deep familiarity with the appellate courts—the judges who form the audience for your brief—and an understanding of which arguments will work best in persuading that audience to go your way.

It should go without saying: every case needs an Architect.

2. The Engineer

I’m guessing this is the next thing people think of, when thinking of appellate lawyers. This is the rules guru. The process person. The Engineer is the one who knows all the rules inside and out—not just for the easy stuff, like perfecting the appeal and filing the briefs, but also for superseding the judgment, dismissing an appeal, obtaining an emergency stay, or petitioning for mandamus. The whole procedural playbook. And the court’s internal operating procedures, too. This is the person you go to when you want to know how the panel is selected or how the court’s conveyor belt works. The mechanics of everything. The Engineer knows all your procedural options, and how to pursue them.

And courts are different. So there can be Engineers for state-court appeals, for federal-court appeals, for agency appeals, etc. This might be the same person—particularly if, for example, the person only has to worry about Texas state courts and the Fifth Circuit. But if you handle appeals across numerous practice areas or in a variety of geographical regions, your Dream Team might have several Engineers: one for state court, another for federal court—maybe even one for each federal circuit, one for each state, each agency, etc.

There’s also an interesting overlap between the Engineer and the Architect, when it comes to having a deep familiarity with the court. The Architect will be focused more on personnel (the judges as audience), while the Engineer is focused more on procedures. But both of these angles will be important to appellate strategy and success—so if your Architect and your Engineer aren’t the same person, they’ll need to collaborate.

In other words, every case needs an Engineer—if not fulltime, then at least on speed-dial.

3. The Builder

This is a growing area of appellate practice. This is the preservationist. The watchdog. The appellate lawyer who sits on the back bench through trial, supervising everything. The Builder is part of the trial team—helping not only to preserve error, but also to shape issues and arguments in ways that will lay the groundwork for success on appeal. The Builder is a hybrid. Part appellate lawyer but also part trial lawyer—spending lots of time on pretrial, trial, and post-trial matters and trying to persuade trial court judges. The Builder also has to be part architect (seeing the big picture, the salient issues) and part engineer (understanding the rules and procedures in the trial court).

Theoretically, any appellate lawyer can play the role of the Builder. But in my experience not many are good at it and many are reluctant to do it. Most appellate lawyers want to be in the appellate court, not the trial court. (That’s why they became appellate lawyers.) Moreover, it’s really hard to play the role of the Builder. On the one hand, you need to be detached—to view the proceedings with a cold eye, maintaining the appellate perspective. But on the other hand, you’re part of the trial team and involved in the drama of the trial court—so it’s really hard to stay detached. One of the most valuable things the appellate team can bring to a case is a fresh pair of eyes—a new look at the case that hasn’t been colored by the trial team’s experiences (and grievances). Almost by definition, this fresh look can’t be provided by the Builder.

This creates something of a paradox. Every case needs a Builder—someone who is monitoring and shaping the case at the trial court, for the eventual appeal. But every case also needs a fresh pair of eyes on appeal—meaning someone other than the Builder must get involved. There are basically two possible solutions to this problem. The first is to have the trial lawyers filling the Builder role, before they involve the appellate team on appeal. Many trial lawyers are perfectly capable of playing this role.

But ideally an appellate Dream Team will have its own Builder to provide this coverage, because many trial teams may not have the capacity or capability to do it well. The caveat is that you must have someone else on the appellate team who can step in to provide that fresh pair of eyes for the actual appeal.

This means, in my opinion, that the appellate Dream Team—to provide the ideal appellate coverage—must have at least two players. No disrespect intended toward the solo practitioners out there. Many soloists are fantastic appellate lawyers. But the soloist must either rely on the trial lawyer to play Builder or give up on having fresh eyes for the appeal. Soloists can (and often do) navigate this dilemma with great success. But we’re talking idealistically about Dream Teams here, and having to navigate this dilemma isn’t ideal. So, like I said, I think a Dream Team has at least two players.

4. The Actuary

The last two components of the appellate Dream Team are not crucial to the case itself, or to the client, but they nevertheless are crucial to the team. The Actuary is the risk assessor. The price fixer. In some ways, the time and money manager. This is the person who figures out how much time an appeal will take, i.e., how much it will cost (in hours or fees), and thereby helps to assess whether the case is worth taking. This is less important where a client is hiring you to handle an appeal at a straight hourly rate, but it is invaluable when any kind of alternative billing is involved—such as a flat fee, a contingency fee, or any kind of mixed fee. The Actuary is the one who knows (or can figure out quickly) what price to ask for your team’s services. Can you handle this particular appeal for a flat fee of $100,000? $80,000? $30,000? What about a mixed fee of $25,000 plus 5% contingency? Can you reduce your hourly rate or should this matter be billed at a premium rate?

The Actuary has to understand the dollars, the hours, and the nature of the case itself—the possible paths it might take and the chances of success. And even when every matter is paid at a straight hourly rate, so that costs and pricing are less complicated, the Actuary can still help with managing your team’s caseload by knowing whether you have the bandwidth to take on another appeal.

Obviously, this is a more business-oriented role. And in my experience not many attorneys (appellate or otherwise) are very good at playing it. But a Dream Team will have someone who is.

5. The Rainmaker

Yes, every Dream Team should have at least one of these. For many—particularly the soloists and those who work at appellate boutiques—this goes without saying. You have to have at least one person bringing in appellate work. Duh.

At the bigger firms, however, a lot of people don’t think of the appellate lawyers as rainmakers. Instead, they see them primarily as “service” partners: lawyers who are there to provide specialized appellate services on cases that were already brought to the firm by other lawyers. There’s absolutely nothing wrong with this model—it’s a core part of appellate practice, to be brought in on other people’s cases. And many appellate groups do just fine operating as a service group within the firm’s larger litigation practice.

But, as long as we’re building an appellate Dream Team, it should have at least one Rainmaker of its own. This is the person who has a high profile as an appellate lawyer. The one who gets calls from outside the firm, who brings in substantial appellate work from outside the firm. Again, the soloists and the appellate boutiques, by definition, already have someone like this. But the appellate groups at larger firms should have a Rainmaker, too. If they want to have a Dream Team, that is.

Conclusion

As I said at the start, an appellate Dream Team could feasibly have as few as two players. For example, you could have an Architect who is also the Rainmaker, joined by an Engineer who can also play the roles of Builder and Actuary. Or your Dream Team might have 40 appellate lawyers, including several Architects, several Engineers (each focusing on a particular court or forum), etc. Notably, the big-firm appellate groups might also have a barrack of Foot Soldiers—young associates who do the grunt work but don’t yet occupy a principal role on the team. (Advice to you Foot Soldiers: figure out which role you want to play and start playing it. Look for an opening—a need—and fill it.)

The point is that an appellate Dream Team—regardless of its actual size—will have someone providing each of these five skill sets.

Last but not least, it’s worth noting that every player on your Dream Team should be an excellent writer. That’s a baseline skill that every appellate lawyer should be constantly cultivating.

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