Tuesday, February 12, 2013

Specializing in Appellate Practice

Next month I will be attending a round-table discussion at my local bar association where the topic will be the pros and cons of specializing in appellate practice.  I am very much looking forward to the discussion since the issue is one that has not garnered much attention among legal professionals.  Below are my general thoughts on the issue.  

I can easily rattle off the psychic benefits of appellate practice, namely the intellectual challenge, longer deadlines, and greater predictability in the day to day schedule.  We don't have to do discovery, or haggle over pennies on the dollar with opposing counsel.  And, occasionally, we get a case with a novel issue that presents us with the rare opportunity to shape the law.  In other words, the benefits are exactly what we signed up for when we decided to attend law school.

For the sole practitioner, the barriers to entry are very low.  Unless you are dealing with a sophisticated corporate clientele, you can work from home with the support of a virtual office, which, taken together with your research subscription and malpractice insurance, is your only source of overhead.  This, in turn, gives you greater flexibility in setting your fee.  Moreover, since a fixed fee is the predominant fee structure, you can free yourself from the drudgery of tracking your time in six minute increments.     

So, what are the drawbacks?  First, most clients already have an attorney at the trial level.  That attorney, if he/she does not agree to handle the appeal, may refer the matter to a specialist.  Given this reality, the appellate practitioner must spend more time than the average attorney developing relationships with trial counsel.  This is good news for those who enjoy networking, and even better news for the cost-conscious  who don't want to undertake an expensive marketing campaign.  The bad news is this: building a viable network takes time and patience, and is not a strategy that results in an immediate return on investment.

Another obvious drawback: cost.  Though appeals are not merely a second trial, they very much are in the sense that they can cost the client thousands - sometimes tens of thousands - of dollars in fees.  The problem is one of sunk costs.  The client - or the attorney working on contingency - has already expended thousands of dollars in a losing effort, and is acutely aware that the money may not be recovered.  Clients are understandably wary of shelling out even more money, just so they can lose all over again.   

There are ways to mitigate the minimize the "cons" of appellate work.  With appeals being so expensive, dispositive motion practice at the trial level becomes all the more important.  Appellate specialists can bring value by handling the motion work of busy trial attorneys.  There is also the opportunity for receiving assigned counsel work.  Though the rates are half of what would be considered the standard market rate, the work (depending on the panel) is steady, and can give you a modest source of income while you hit the pavement developing a more lucrative referral base.   

These are just my two cents, and I'm curious to hear what others have to say on the issue.     

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