What is Appellate Law?
Plessy v. Ferguson. Roe v. Wade. Marbury v. Madison. Bush v. Gore. Miranda v. Arizona.
Almost every famous court case you ever heard of before you got interested in law school had one thing in common: it was won on appeal.
Appeals are part of what makes the American judicial process fair and impartial. An appeal is a formal request to the court system to change a court decision, usually on the basis of procedural errors or alternate interpretations of the statutes used to make the original decision. It’s a process that allows independent review of legal decisions, often by more than one judge and at multiple levels, which offers transparency and strength to the proceedings.
Appellate work is intricate in that success or failure often turns on tiny details; mistakes in filings or evidentiary decisions, a subtle hint of conflict of interest, any turn of procedure outside the norm. It’s an area of practice where attention to detail, a memory like a trap, and a love of reading and research make all the difference. And it’s a field where lawyers may make history, but always make a difference for clients who have been wrongly accused.
An appeal is not a re-trial. Appellate practice does not involve questioning witnesses, addressing juries, or introducing evidence. All the known facts of the case are in the record already. An appeal is a pure exercise in the conduct of legal reasoning.
That’s a big draw for lawyers who thrive on legal research and writing, crafting arguments that hinge on interpretations of statutes and procedures.
Even then, putting together the perfect appellate brief can be a challenge. Since judicial reviews of appeals are conducted by a panel of judges, and typically a large legal staff, and with less time pressure than during a trial, the level of scrutiny is intense. And arguments may need to appeal, as it were, to judges with a range of perspectives and judicial philosophies. It’s an intricate puzzle that the best appellate lawyers can solve through a brilliant bit of analysis or a neat turn of phrase… a tactic that can look effortless, but may only be the result of months of research and drafting.
It’s also necessary to have a strong mastery of oral arguments, since that is the venue in which the final persuasion must be made.
Appeals cases are much shorter in duration than trial cases, since discovery and deposition is not a part of the work. But they can be just as intense. Lawyers go through the trial records with a keen eye and fine-toothed comb, looking for gaps or flaws that can be attacked with precedent or legal arguments based on underlying statutes.
Of course, that means lawyers in appellate work have to be voracious researchers and have a strong memory for detail.
Like other types of legal practice, appeals work is not a solo effort. Successful appeals lawyers lead teams to help them craft their arguments, and know how to delegate research and drafting work, and how to use other lawyers and paralegals to debate and hone briefs for maximum effect.
Where Can You Find Appellate Work as an Attorney?
Most lawyers who work in appeals don’t specialize in the process, but simply follow their regular cases through from the initial trial. Appellate specialists can only thrive in markets where there is enough demand for their particular expertise; larger firms may have attorneys who they tend to bring into appellate work regularly due to a flair for it. And appellate practices thrive around large state and federal courts of appeal.
The most famous, final, and respected court of appeal, of course, is the Supreme Court of the United States. Not many lawyers will end up arguing cases in front of that august body, but those that do are among the most respected in the nation and land jobs at top firms that regularly practice appeals at the highest court in the land.
Both criminal and civil decisions can be appealed, but the process is lopsided in criminal matters: while the defense can always launch an appeal, prosecutors are prohibited by the Fifth Amendment from attempting to repeatedly try to convict a person for the same crime (with certain limited exceptions). It follows that prosecutorial work is not the field to get into if you plan to specialize in appellate law.
As with the general pattern in legal work, appeals lawyers will tend to fall into either civil or criminal work, rarely crossing over due to the differences in expertise required to mount successful challenges.
Prominent appeals lawyers are also frequently brought into major cases of both sorts long before they ever get to the appeals stage, during the trial itself, to consult on various aspects of trying the case that may later become important if it goes to appeal.
Building the kind of brain that will help you succeed in appellate work starts in and just after law school. Working on journals or law review as a student can begin your familiarity with case law as well as training you to absorb a lot of legal material quickly and coherently. Getting into a clerkship at an appellate court can build your direct experience with the processes of appeals and the kind of legal reasoning that appeals court judges lean on in their decisions.
Experience is a key factor in most successful appellate attorneys, so you probably won’t land a position specializing in this kind of work until you put in some time in trial practice. It only makes sense to focus on the same sort of trial law as the sort of appeals cases you will want to specialize in. There’s no better way to become familiar with ordinary procedure, rules of evidence, and the statutory and case law in a particular field than taking on trial work in that field. Trial work is also where you can hone your skills at oral argument.
That set of skills and experience also happen to be ones that are popularly believed to strengthen your chance of earning a judgeship at some point. Appellate law work is sometimes seen as a master class in the familiarity with the law, rules, and procedures that are expected of a competent judge.
Appeals work is something that most trial lawyers will practice at some point in their careers, but at the highest levels of practice it is extremely specialized. It makes sense to look for certifications in appellate practice where they are available if you intend to climb to those levels of expertise.
There is no national certification in this area just yet, but five different states offer appellate specializations through their respective bar associations:
Each has slightly different standards and specific details; for example, some have separate specializations for criminal versus civil appellate practice.
Although the exact requirements vary from state to state, specialization involves demonstrating a strong familiarity with the practice through accumulating a specific number of hours, both in appeals practice particularly and as a lawyer more generally. You’ll also have to take and pass a test in the area, as well as taking a set number of recognized continuing education hours on the topic.
Lawyer Career Specialties