Appellate Lawyer: Telling a Court They Got It Wrong

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Kyle McEntee interviews an experienced appellate lawyer, who highlights the challenges of getting into this line of work.

Kyle McEntee:

We're joined today by Virginia Hoptman, a 1980 graduate of the University of Virginia School of Law. Virginia is an appellate attorney at Redmond Peyton Braswell, a boutique firm in northern Virginia. She clerked right out of law school, first for the third circuit, and then for the United States Supreme Court.

Subsequently, she worked for a medium-sized tax litigation firm, taught at a law school, worked for an educational publisher while raising three young children, and then joined a large firm where she was a partner for 10 years.

So you started at your current firm in 2014. It's very small by design. By my count, there are 13 attorneys. Four of council, and nine partners. And experience is certainly not an issue. Only three partners graduated law school after 1980. Tell us why the firm is designed this way.

Virginia Hoptman:

It is interesting for me to consider myself a youngster in that group, but I guess I kind of am. I think that the law firm originally grew out of a local Alexandria-slash-Northern Virginia practice. And it was people that enjoyed practicing, together and they engaged in what I would call sort of real people law. The kind of lawyers that you or I might hire.

They did trust and estates work, and real estate work, and some tax work. And over time they grew, but they didn't want to grow too rapidly. Pretty much everybody there has a lot of independence over their own practice. The way that sort of billings are set up and fees are shared, et cetera, and costs are shared is very simple, and it stays simple when you're smaller.

Kyle McEntee:

Is it an eat what you kill sort of arrangement?

Virginia Hoptman:

Primarily? Let's say, for example, if I brought in the new case and I'm the only one that works on it, then pretty much a hundred percent of the collections come to me. If I work on it and somebody else works on it, then they get essentially what is 75% of their billing rate.

Kyle McEntee:

And so this is structured a little bit differently than a large firm. At a large firm, the model is usually there's a host of associates that do sort of the grunt work. That doesn't seem to be the case here. Because I'm assuming you have counsel, are people that are not exactly low-level associates either. Because they're all highly experienced attorneys.

Virginia Hoptman:

I think that's fair. I think the people that are of counsel have varying degrees of activity and involvement.

Kyle McEntee:

So I want to talk a little bit about the choice that you made out of law school, or more specifically after you clerked. So as a Supreme Court clerk, you pretty much had your pick of jobs around the country, but you chose a medium-size firm for presumably less pay.

Virginia Hoptman:

I think even back then, when I was coming off of my clerkship, I think my experience on the Supreme Court was an experience that I would always want to do once, but never twice. You sort of gave yourself up to that job during that year, and there were periods of time during the year when I'd have to really think about what day of the week it was. That's how hard you are working.

So I really wanted to have a work-life balance. I mean, I wasn't married, I didn't have kids back then. But I knew enough about myself to know that I didn't want to try to sustain that kind of lifestyle. And so, I was looking for a place where there was more balance, and everybody knew each other better, and there was less of a ... I hate to use the word sweat shop, because that can be interpreted so many ways, none of which are very positive. But I didn't want to go to a place where it was so big that people sort of competed for attention based on how many hours they were working.

Kyle McEntee:

Let's turn to your practice now. As an appellate attorney you help on appeals. Can you explain, generally, what an appeal is?

Virginia Hoptman:

An appeal is what happens once you have a decision by the initial court of record. Whether you're in state court or federal court, you start essentially at the trial court level.

You'll get a decision from that court, whether it's from a jury after a jury trial, or at a different stage earlier in the proceeding. You get a final decision from that first court. An appeal is your opportunity to take it up to the next level and ask the combination of judges. The number varies depending on the court to review the decision below.

And if you're the person that is taking the appeal, you essentially are asking to overturn the decision made by the first court, and essentially tell that court that they did something wrong. Conversely, if you're the person who is not taking the appeal, but your case is going up by the other side, then you're essentially asking the reviewing court to affirm, or to tell the lower court that they made the right decision.

Kyle McEntee:

So what's the rough breakdown of your clients? Are they mostly those who lost or won at the lower level?

Virginia Hoptman:

That's an interesting question. I've never really thought of it that way. Right now, I would say I have more clients who lost at the initial level. I think if I look over sort of the history of my appeals, it probably breaks about even. It is generally an easier road if you won in the first court than it is if you're taking the appeal up. Often, those are not quite as memorable as the ones that you actually take up yourself.

Kyle McEntee:

So how easy is it to fill your plate up with appellate work?

Virginia Hoptman:

That's not easy. There are a variety of different models that you can use to fill your plate up with appellate work, but no matter which way you go, if you want to be a full-time appellate lawyer, it will take a while to do that, and you have to actually focus very much on that aspect of practice.

A lot of times, trial lawyers understandably don't want to turn their case over. Whether it is internally within the same big firm, or whether you're a smaller trial lawyer. You want to keep your case as it goes up on appeal.

So there is sort of a natural resistance to let go that appellate lawyers have to deal with in terms of getting business. And I think there is, perhaps, a bit of a lack of recognition that good appellate lawyers are really different animals than good trial lawyers.

Kyle McEntee:

So I want to talk a little bit about these differing skill sets. If appellate work is difficult to get, but it's really a different piece than trial work, how does one transition to doing all of that appellate work?

Virginia Hoptman:

I think a couple things help. I think it helps to really appreciate on a positive level, not a competitive level, some of the difficulties and nuances that legal questions can hold.

It's not as much about your putting on some kind of story. A lot of times if you're a trial lawyer, it's really important for you to build a storyline behind your case. And part of that has to do with the fact that you're dealing with gathering the facts, and trying to organize them in some ways that will make sense to a jury or to a trial judge.

And there is a certain amount of, I hate to use the word theatrics, I don't mean that in the sense of being false. But I mean that in the sense of understanding how you want the story to come about, and what it is that it's going to be easy for a group of people who have no idea what you're talking about to actually want to, and be able to follow what you're saying.

But if you're an appellate lawyer, you are basically removed from the first level emotions. Of the fact witnesses, and trying to marshal that into a case. However that resonated in a given courtroom is never going to translate as you go up on appeal.

And when you're up on appeal, what the appellate judges are interested in is maintaining the integrity of the trial process, and of the law. But they're not interested in redeciding whether the court below understood the factual story correctly. But it's an entirely different both audience and focus.

Kyle McEntee:

I want to talk specifically about your role in the appeals process. So someone calls you up and says, I've lost my patent infringement case at the trial level, and now my product is dead. What's your next move?

Virginia Hoptman:

If you haven't been involved in the case at all and it's coming in cold turkey to you, there are certain things that you have to ensure have happened, or do happen very quickly, procedurally, in order to preserve the right to appeal for the person who feels wronged by the decision.

In most cases, it's essentially a 30-day window to get certain notices filed in order to preserve the ability to take the case up. I think the best of all worlds is when you can have an appellate lawyer who is not part of the trial team, but is essentially somewhere in the mix virtually from the beginning. Because there are things that an appellate lawyer understands are important to preserve as your case goes through the process.

Kyle McEntee:

Can you give an example?

Virginia Hoptman:

Well, the best way I can give an example is, there's another lawyer that I like to work with a lot. And very early on in the time we started working cases together, the reason I like working with him is I realize that he's all about the facts, and I'm all about the law. And you need both when you're building your case, but it's just a different mindset.

And the way he starts viewing the case almost from the beginning, when it first walks in the door, is how's the jury going to hear this? And the way I always look at it, almost from the beginning is, how do we marshal the story that we have in order to best fit X, Y, or Z legal theory?

Kyle McEntee:

The goal of an appellate attorney and the trial attorney, it's going to be the same broader goal. It's going to be help this client to win. But it seems that because the objectives within the trial and the objectives within the appeal are different. That sometimes that could be a conflict when you're working with the trial attorneys.

Do those conflicts come up and then if they do, how do you resolve them with the trial attorneys?

Virginia Hoptman:

So sometimes there is that tension, but for the most part you work it out. You both are trying to do the best job you can for your client. I mean, I actually think it's a strength when you have both of those voices on a team. Your trial lawyer is correct in the sense that you don't want to clog up the microphone that goes to the jury with too much detail, because people will not be able to follow it. So you have to strike a balance.

But the appellate lawyer is also right, that you need to make sure that a critical points, you preserve the right to ask the judges on the higher court to review with what your trial judge decided you would not be able to raise back at, let's say, summary judgment phase.

Kyle McEntee:

So once you actually have the appeal, what is your day-to-day work like from the time that you appeal to the time when the appellate court makes its decision?

Virginia Hoptman:

Well, there's a combination of detailed procedural work, and more intellectual, scholarly work. And I'll start with the detailed procedural work first, because different appellate courts have different rules that you have to follow. In all cases, it's really important if you want to be an appellate lawyer, that you know the rules of the court you're appealing to and that you review them. Even if you think you know them.

If you don't get them right, can end up kicking the case out of court. Which means that your client is left holding the bag. Once you've complied with all of the procedural requirements, then the first thing that I do as an appellate lawyer is get a handle on the big picture this particular case.

The first thing virtually every appellate judge is going to do, they're not going to probably start with your briefs, they're probably going to read the opinion below. And after that, then they will come and look at what the briefs say.

One piece of advice that I got that has really stuck with me over the years from Chief Judge Seitz, who I clerked for on the third circuit, is he would always tell us when we were drafting opinions for his review, he would always tell us that he wanted the decision maker, or the person reading the opinion, to know what the answer should be by the time they finished reading the facts.

You don't change the facts, but the way you put together what the issues are, and the way you put together your statement of facts, I always strive for that. I always strive for, by the time the judge or the law clerk gets finished reading the statement of facts, they're going to know what the answer should be. And hopefully that answer is going to be the one that I'm arguing for.

Kyle McEntee:

Seems like similar theatrics the trial attorneys deal with. It's just their audience is the fact and your audience is the clerk and or appeals judges.

Virginia Hoptman:

I guess I wouldn't use the word theatrics, because it's usually written. It's in the way you put the statement of facts together in writing. Which to me is a very different kind of skillset than the way you try to present things orally.

But I suppose from the perspective of wanting to put your story in the best light, that's correct. Although there's certain emotional overtones that you want to make sure you get through at the trial level, that may or may not have big legal ramifications. And there's a lot less of that at the appellate level. It's more given what was presented, what should the legal result be in this case?

Kyle McEntee:

So once you have a statement of facts written, and I assume that's part of your brief.

Virginia Hoptman:

Yes.

Kyle McEntee:

What goes into the research that you do to then persuade the court that the lower level court either made a mistake of law, or that the law should be different?

Virginia Hoptman:

I think one of the most important things, and sometimes one of the most difficult things to do when you first get the case is to do the basic research that you need to do, and get an understanding of the decision, probably largely from the opinion below. And then work with your client and or trial counsel, if they're still involved, on the narrowing down of what you want to present to the appellate court.

And sometimes that means that there are going to be places where the trial lawyer and or the client have a lot of emotional investment that you're going to have to essentially tell them they need to let go of that, as they go up on appeal. That sometimes can be a tension between the trial lawyer and the appellate lawyer.

You're looking at it from the eyes of the appellate panel. And some of the things that were very important to you with the trial level, let's say, to prove the other side was not credible, or to establish that you were right on this argument and the other counsel was wrong. At the end of the day, a lot of those arguments are not going to matter.

Ultimately, the court of appeals is going to be looking at what law should have been applied to the given set of facts, not the rough and tumble about who was right, and who was wrong, and who was more credible about getting X, Y, or Z.

And one thing that people don't really realize is, one of the most time-consuming things when you're dealing with an appeal is, every sentence you write in your statement of facts, you have to cite to the record, and you have to compile that part of the record and put it together in something called an appendix that goes with the briefs. And I always underestimate when I'm thinking, when I'm trying to budget or thinking about how much time and appeal is going to take, I always underestimate how long it takes to put together the appendix.

But in most courts you have to agree with the other side ahead of time, what's going to go in there. And then the appellant has to pay to put it together. So there is a lot of give and take, especially if the lawyer on the other side ... If you're the appellant and the lawyer on the other side is not an experienced appellant lawyer, they're going to be scared to leave anything out. You're going to be dealing with trying to convince them to hone it down to a manageable level.

The appendix is kind of part and parcel of what goes into your statement of facts, because it has to be referenced literally at the end of every sentence. And then you put together your argument based on the facts that you have, and the research that you've done.

Kyle McEntee:

So this is clearly a lot of writing. Is there much oral argument that comes after this, or is the bulk of the work accomplished through written words?

Virginia Hoptman:

The bulk of your time, and the bulk of the importance of what you're doing is in the written. Because you don't ever go to an appellate argument without the court having had some organized mechanism and process so that they are prepared. They will often do research independent of what the parties present.

Your panel, or at least a designated portion of your panel depending on your court, is going to be very well-prepared. You're not just there rehashing or trying to put into words what you wrote on the paper. Almost like you assume that everybody understands that, and then you're moving from there.

Both the judges I clerk for both believed that about, I'm arbitrarily putting a number here, but about 90 to 95% of the decision-making process is based on the papers. And the argument is generally to clear up means sometimes it's for judges who disagree with each other to use the argument to sort of try to convince the rest of the panel to go their way by the kinds of questions or the type of questions they're asking.

Sometimes it's because there's something that they feel was missing, or that bothered them that they didn't find in the briefs and they want it explained a little bit better. But for the most part, I think the bulk of the importance is on the papers. But it often feels more important when you're making the argument, if that makes sense. Because you're there in person, and so that has a feeling of elevation that you don't necessarily feel when you're slaving away at your desk trying to write the argument.

Kyle McEntee:

Well, we talked earlier about how difficult it is to fill your plate up with all appellate work. So you're really quite fortunate that your practice is very heavily skewed towards actual appellate work. Are you trying to develop any other practice areas? That way if the appeals kind of dry up in some sense, that you're still able to bring money in?

Virginia Hoptman:

Yes. I mean ideally, I think, and I've never gotten to the place where I've been able to be a hundred percent appellate. I do know people who have. I don't mean to sound elitist here, you can come at it from two ends. You can come at it from what I would say is probably the more boutique, higher-end kind of appellate work. Where you'll have the really big, high-priced, let's say Washington firms that have former solicitor generals, and lots of former Supreme Court clerks or high appellate level clerks, who have an appellate reputation.

And someone who has a case going to the Supreme Court, for example, might go to them as opposed to ... There's that model. And then there's the smaller model where you really are offering to team with or service almost solo practitioners. Smaller cases, where you've got trial lawyers who don't have a lot of support, they don't do appeals and they don't particularly want to do appeals.

So there's essentially what I would call two ends of a spectrum, maybe, where you can try to get appellate work. And I've never chosen to be at either extreme. So I think for me, I'd like to specialize in appellate work. I like to team with people when I bring in ... I like to team with people. And if the case is big enough to justify it, I like to focus on the strategic legal arguments that are more like appellate work. The TROs, the summary judgment briefing, the hearings where you're arguing legal issues in front of the judge, for example.

And have someone else that I work with, who likes to focus on the more trial-oriented discovery-slash-in-front-of-the-jury kind of trial work. So I've always had kind of a combination. And what I've been trying to do, recently in addition to appellate work, is I'm also a mediator for the US Court of Appeals for the DC circuit.

And I love doing that. I really feel like I'm in my zone when I'm acting as a mediator, and trying to help parties come up with a resolution that works for them instead of going through the expensive, time-consuming, and risky process of leaving it up to a court to decide one way or the other.

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