The Appeal of Appellate Law: Oral Advocacy, Puzzles, and Knowing When to Quit

Katya Valasek:

We're joined today by Raffi Melkonian, an appellate lawyer and partner at Wright Close and Burger, a complex litigation firm with about 40 attorneys.

During law school, you wanted to be a corporate lawyer and went deep down that path, including your first two jobs out of law school. Tell us about your thinking.

Raffi Melkonian:

Yeah, so when I was in law school, I had a mentor who was a corporate law professor. I really enjoyed his classes, and so I started reading a lot of fiction and nonfiction about corporate law, including Barbarians at the Gate, which is a book and movie about the takeover of RJR Nabisco in the 80s. And I thought it was really exciting, which sounds bizarre now 20 years out that I would have thought that kind of thing was an exciting career path, but it sounded super exciting to me as a law student. And so I thought, how can I do this at the high level? And so I decided to clerk for the Delaware Court of Chancery, which is the corporate law court for most of the United States, and then go into a corporate law practice in my first job out of law school.

Katya Valasek:

When you were in practice, how did your experience differ from what you imagined when you were reading those books or talking to your mentor?

Raffi Melkonian:

Yeah, it's a lot different. I think that if I had persevered in corporate law all the way up to the high levels of the practice, so as a partner or some kind of business-side executive, it would have looked a lot more like those books even though they're sensationalized. But you know that's kind of negotiating, being in boardrooms, making decisions, that sort of thing. You do eventually get there.

But at the low end of the profession, in other words, as an associate or a mid-level lawyer, what you're doing in corporate M&A work, mergers and acquisitions work, in particular, is making sure these huge projects get executed. So for example, making sure that 1000 leases are transferred from one company to another. And that's just like really meticulous and detail-oriented and persnickety work that I'm not very good at. And so it took me a while to realize that I couldn't do it or I couldn't do it at the level that I expected to be able to do it. But once I realized that, I knew that I needed to make a change out of that kind of work.

Katya Valasek:

So you were doing that low-level work at Cravath after your clerkship and you decided to do this 180. And you got the opportunity to move departments within that firm. What did that conversation look like with the partners at the firm?

Raffi Melkonian:

I went to the partners at Cravath that I worked for on the corporate side of the firm a couple years into my practice and I told them, “look, I'm really not very good at this. I'm not enjoying it. One alternative is for me to leave and try to find something else. And another alternative I've thought of is maybe I can come over to the litigation side and do some work there for a couple years.” And the nice thing about that kind of firm, a firm that expects associates to leave and has a lot of associates, is that didn't bother them at all. Their reaction to that was, “Okay, that's great. Why don't you go do litigation for a bit? You can continue to be profitable for us. And in the meantime, you can learn this new thing you want to do.”

So they didn't have any problem with it, which I think some law students and younger lawyers may be surprised to hear – that those kind of large law firms really want you to find whatever you want to be doing. And as long as you're not, costing the money to be really blunt about it, they don't mind if you experiment. So they were perfectly fine with it. They assigned me to a litigation team right away. And it happened to be a team that was going to trial in the Southern District of New York on a really big securities fraud litigation. It was one of the only trials in Cravath that was actually going to go at the time. So I had a great experience working on it. It was still, of course, demanding. It's not that that kind of work is easier than the corporate work, but I could immediately tell that it was more suited to my skills, so it was a good move for me.

Katya Valasek:

And what were those skills that were a good fit for the litigation work?

Raffi Melkonian:

So I'm really good at figuring out answers to difficult legal questions. If you tell me like, “Here the other side makes these arguments, what's the problem with them?” I'll figure that out pretty well. What I'm not good at, as I said, is like super detail-oriented, meticulous projects. So like the part of litigation that is managing discovery or producing millions of documents. That I can't do. That's kind of like my same problem with the corporate work, but I quickly realized I was really good and enjoyed the legal figuring out difficult questions part of it. And so I immediately started thinking, well, how can I do more and more of this? Because this actually makes me happy to be a lawyer.

Katya Valasek:

And that is what led you to appellate work?

Raffi Melkonian:

Absolutely. Yeah, I was having that realization kind of like, okay, this is good. What job is it that does this? And I happened upon a blog post from a former professor of mine, which, I mean, it looked as if almost it had been written for me. He had written, “If you're kind of frustrated with big firm life, you should consider appellate practice because it sits in a certain way in between academia and legal practice in the sense that it's cerebral, it's kind of slightly less high-paced, but it's still legal practice. It still has immediate results. You're not just sending articles out into the world that may or may not be read. You're getting a decision from a court that tells you whether you were right or wrong.” And that sounded really good to me. So I kind of like immediately tried to figure out how to get into that.

Katya Valasek:

So I wanna cover a basic question here. What is an appeal? What does it mean to do appellate work?

Raffi Melkonian:

So in any kind of case, there's what we refer to as the trial court or the district court. That's the first court you go to. That's where you would have a jury trial or some other kind of trial. That's the court where you bring your case when it's first filed. But if you don't like what that judge did or if your opponent doesn't like what that judge did, you can ask for a higher court to look at it. And that higher court is called the Court of Appeals in most states and in the federal system. Sometimes it's called something else. So for example, in New York, it's called the Appellate Division.

You go there and you make arguments that are usually based on legal points rather than on the facts. So you can't usually go to the court of appeals and say, “Oh man, the jury really messed up and they misunderstood the facts.” What you would go and say is that the instructions that the jury were given to make their decision were wrong or the judge made a mistake by letting the case get to a trial in the first place. So you're making broader, bigger arguments than you would be in the first court.

Katya Valasek:

I want to dig more into what it is you do in a second, but I want to ask a question before I do that. You did a clerkship before you explored what it is to be a corporate lawyer. And when you made the decision to move to appellate work, you did another clerkship before diving into practice. What do you feel is so important or beneficial from that clerkship experience?

Raffi Melkonian:

I mean, there's two answers to that question. One is the very practical answer, which is because appellate practice is thought to be really fun and prestigious, you often need, not always, but often need a clerkship to get into it. There are a lot of exceptions to that. There are lots of really famous and good appellate lawyers who did not clerk for a federal judge or a federal court of appeals or even a state supreme court or any other kind of court. But generally speaking, if you want to maximize your chances, you need a clerkship. And so that's my initial reason why I went and got the clerkship with the Fifth Circuit, which is where I clerked.

In terms of like, how does it actually help you? There's nothing better than sitting with a judge for a year and learning how they decide cases and how they think about cases so that when you're out in practice, whether it's in private practice or for the government or for a nonprofit or whatever it is, you can think about how to write a brief that will be persuasive to them. And I think about my year with my judge every day when I'm writing. And I think, “Oh, she would not have liked this.” And then I change what I wrote down. So it's really important to me in my practice. And I think most people who have had clerkships who had a good experience would say the same.

Katya Valasek:

So let's fast forward now to your current appellate practice. In general, how is your practice set up?

Raffi Melkonian:

I'm a Texas appellate lawyer. I work a lot in the U.S. Court of Appeals for the Fifth Circuit, which is the federal court of appeals that covers Texas, Mississippi, and Louisiana. But I also do a lot of cases in the Texas Supreme Court and the Texas Courts of Appeals. So half of my practice is what I think everyone who is in law school now or is a young lawyer would think of as appellate practice. So I write briefs, and then I go to court and argue in Courts of Appeals on appeals. So that's maybe 50 to 60% of what I do. The other part of what I do is I go to trial court, and I help the trial lawyers prepare the case for appeal while it's going on.

So, one thing I think most lawyers have not thought a lot about, or certainly law students, is that if you don't present the right arguments to the trial judge, when you go to the Court of Appeals, the Court of Appeals will say that those arguments are what we call forfeited. In other words, you're not allowed to make them, you lose. And so a lot of my job is going to trial court and making sure that if we need to appeal, no one will say that the argument I'm raising is forfeited. So I go to the judge, I make sure they understand what we're arguing, make sure they rule against me on the record, and then I won't have a problem with forfeiture in the Court of Appeals.

Katya Valasek:

I would imagine that is a great support to the trial attorneys.

Raffi Melkonian:

You know, the trial lawyers who are used to us really are happy about it when we show up. The trial lawyers who may not know that role exists, I think, are a little suspicious at the first glance. And then they realize pretty soon after that, that what we're there to do is to take all the work that's really boring away from them. And to let them get ready to cross examine that witness and find that piece of evidence that is going to blow the case open. They don't have to worry about all this kind of like legal mumbo jumbo. I'll take care of that. They can really think about the trial. And I think most of them end up really happy with that division of labor.

Katya Valasek:

When you're brought in, is it the attorneys that bring you in, are clients ever asking to have you with them at trial?

Raffi Melkonian:

It depends. So we have clients that always hire us and insert us into their biggest cases. And then we have trial lawyers who tell their clients who might not be repeat players in appeals, “hey, we really need the appellate people on this one. Let's go get them.”

Katya Valasek:

In Texas, using appellate counsel is more common than elsewhere. Why does Texas do things differently?

Raffi Melkonian:

Yeah, so that's a really interesting puzzle for us that we all think about and try to come up with good ideas. You know, I practiced in New York for some time and this concept of a separate appellate lawyer is not really a New York thing. I think New York lawyers are trying to make it a thing because it could be useful there too, but it's not.

Here in Texas, I think the biggest thing is that we get very large civil verdicts in cases all over the state. So it's very common in Texas for there to be a $50 million car crash verdict. And I think the conception is that, although the verdict might be very large, there's a good chance on appeal, whether in the Courts of Appeals, we have 14 Courts of Appeals all over Texas, or in the Texas Supreme Court, which is elected at the state level.

And there's sort of a political aspect to that. Those Courts of Appeals and the Supreme Court tend to be more right-leaning than the trial courts. And so there's this idea that maybe those courts would be more favorable to businesses and other kinds of defendants. But also it's just a different group of people who might not view the trial in the same way. And so you get another chance to make your legal arguments to the higher courts. And so I think the fact that the verdicts are so big make it economically sensible, you know, to have a separate appellate lawyer.

The other thing is our predecessors in the Texas Appellate Bar started thinking about this 30 years ago or 40 years ago. And they set up organizations like the State Bar of Texas Appellate Section, and also the fact that we have a specialization you can pass to become an appellate specialist in Texas. They made things that could create an appellate bar. And so I think we're benefiting from the foresight of those people back in the 80s and 90s.

Katya Valasek:

So what does your traditional appellate practice involve at a high level?

Raffi Melkonian:

At the highest level, it involves writing briefs. So those are the documents that we send to court with our legal arguments. And then making what we call oral arguments. In other words, going to court and making arguments before the judges. And after that, waiting for the judges to issue an opinion, resolving the case one way or another.

Katya Valasek:

And when you're briefing, what are you briefing from?

Raffi Melkonian:

Sometimes we'll meet with the clients just to get the full story. But, usually what we're briefing from is the record. So in other words, the transcript of the trial, for example, you know there's someone who sits in the court and writes down every word (the court reporter). We have all the exhibits that were produced in trial. So all the pieces of evidence. We have all the rulings the judge made in written opinions, if there are some. We have all those pieces, all those tools, and then we're trying to distill them, summarize them into a brief to present to the Court of Appeals.

Katya Valasek:

So let's walk through this role in an appeal using an example. Let's say there's a trucking accident where two people die and the plaintiffs are asking for $30 million. So they're seeking one of those Texas-sized awards for their verdict. The case goes to trial. Judgment is for the plaintiffs. They get their $30 million. Assuming you were not appellate counsel at trial, when are you getting called in?

Raffi Melkonian:

So in that scenario, I'll probably be called in the day that jury verdict is issued and the client realizes they need appellate counsel. And that's when we'll show up and start trying to learn the case.

Katya Valasek:

So what's the first thing you do?

Raffi Melkonian:

The first thing we do is listen to the trial counsel. I usually let the trial counsel tell me what happened at trial and all the things they think went wrong in trial. And that often is what lawyers would call over-inclusive. So, in other words, they may be aggrieved, they may feel bad about a lot of things that happened and not all of those things are going to be a useful appeal. But I want to hear about them so that I can make a decision. Which of these are serious? Which of these would a court of appeals have any interest in?

Katya Valasek:

So after you interview trial counsel, do you go through everything with a fine-tooth comb?

Raffi Melkonian:

When a judgment is entered against your client. So let's say in that example you gave, the judge says, “You must pay 30 million dollars.” After a certain amount of time, the plaintiff is allowed to go start collecting that money. And they can show up and take your client's stuff. So if your client happens to be a big box store, for example, the plaintiff's lawyers can show up with the sheriff and start taking stuff off the shelves if you haven't paid them. So one thing you're doing while you're doing other things is putting in place what appellate lawyers call a bond to make sure that nothing like that can happen while you're doing an appeal.

So I'm often doing that. I'm negotiating with financial institutions or the client to try to figure out how we can bond the judgment to make sure that we get a fair chance to appeal. While all of that is going on, my team and I are trying to figure out what the case is about. So that may involve me or a junior lawyer who works with me reading the entire trial record. Sometimes that can be a month of testimony. It's not a short trial. And looking at the evidence and trying to figure out which things we need to appeal, and also which things we need to file in what people call post-judgment briefings. So in other words, after a judgment is entered against your client, you need to complain to the trial judge before you take an appeal about all the things that went wrong. And so we have to write that really quickly as well.

So I'm doing this bond stuff, I'm doing the post-judgment briefing, and also I'm trying to figure out how we're gonna tackle this case on appeal or if we can tackle this case on appeal. Sometimes, the answer is to tell the client, we need to cut your losses and you need to pay.

Katya Valasek:

I'm just struck by the fact that you said one of the things that you struggled with the corporate work that you tried doing was those meticulous steps that had to happen. But this all seems very meticulous. There's so many different steps along the way that you need to do in the right order. What is different about this work than that meticulous oversight that had to happen with the corporate work?

Raffi Melkonian:

I think the only way I can answer that is by giving you an example of what the meticulous stuff in the corporate law world that I couldn't do was. So I did a transaction early on in my career where we helped a restaurant chain sell its entire company to another restaurant chain. And so part of that was that we had to transfer something like 3,200 restaurant leases, like the actual lease for the physical building, from one company to the other. And what that meant is I had to find 3,200 real estate lawyers around the country and call them up and tell them to prepare documents. And then I had to enter their names on a giant chart and then keep track of whether they had done it or not and call them and yell at them that they hadn't done it. And I had two months to do all of that. That is a different level of complexity and detail oriented than getting a bond together and writing a brief.

Obviously you can't be like, careless when you're doing the appellate work, but, you know, if a comma is out of place, you aren't gonna lose. Whereas in that real estate stuff, if a comma was out of place on that real estate document, the new company wasn't gonna have that restaurant. And that's a real big problem. So that level of detail caused me a lot of stress, whereas the appellate stuff doesn't cause me stress, even though it's still hard and we still need to get it done fast.

Katya Valasek:

And this is why not everybody practices in the same area of law. I'm sure there's someone out there who feels the exact opposite of what you do in terms of what causes stress and what causes excitement.

Raffi Melkonian:

Absolutely. I think everyone has their own things that make them excited about law. And that's why it's so great that law is a huge profession and you can find what makes sense for you in it. It might take a while.

Katya Valasek:

Okay, so let's say that after you've gone through the record with a fine-tooth comb, you realize the best opportunity to get the judgment vacated and sent back to the trial courts is a problem with the jury instructions. What does that dispute look like?

Raffi Melkonian:

Yeah, so first of all, we need to be sure that that problem was told to the trial judge at the right time. So that's that preservation stuff I was talking about in another part of this discussion. It's really great if you have an appellate lawyer in the room during trial to tell the judge that they're making a mistake about the jury charge.

So assuming that's true, that we've preserved that error, the next thing is to put that into your appeal brief. So remember, we're writing a brief that we're gonna send up to the Court of Appeals. And that brief is gonna have a number of what are called “issues presented” in it. So those are the issues that you're raising to the Court of Appeals for their decision. Now, normally that's two, three, or four. There is a saying in appellate lawyers, among appellate lawyers that someone who has six appellate points has no appellate points because it means nothing really bad happened, you're just complaining.

So you try to winnow it down to as few points as you can without losing important points. And so your complaint about the jury instructions would be one of those. And you would say that the jury was given the wrong instruction, and because they were given the wrong instruction, they reached the wrong result in the case. They would have decided something else if they had been instructed properly. And that causes a lot of reversals, especially in Texas state trial court, where the instructions are thought to be extremely important. So we use that kind of argument in almost every case that we get in Texas courts.

Katya Valasek:

So after you submit your brief you end up with oral arguments in front of a judge, you and the opposing party's attorney. How do you prepare for these oral arguments?

Raffi Melkonian:

I think that's a really important part of being an appellate lawyer, even though it doesn't always change the result of the case. Appellate judges often say that appellate argument only changes the result in 10% of cases, but it shapes the result in a lot of cases. It shapes what they're going to say in their opinion. So how do you prepare for that? I have a very specific way of doing it. I stole it from Chief Justice Roberts, who's written about this.

So this is not my idea at all. This is literally what the Chief Justice did when he was a lawyer. But I read every brief and I read the record very carefully and I write down questions on index cards for myself. And that can be as few as 50 questions. It could be as many as three or four hundred questions. Then I shuffle those questions and I start talking about the case to myself. And I'll ask myself a question from one of the cards every three or four seconds. And through that process, I'll refine really good answers to each of those questions. And that takes me a couple of weeks.

And then we'll have what are called moots. So I will do a practice argument in front of my colleagues or retired judges. We might've hired for that purpose. So I'll argue for an hour or two, even if the arguments really only for 20 minutes. And they'll ask me even more questions. And I'll get to try out different kinds of arguments. So I'll say, well, why don't I try this kind of theme and maybe they hate it and I won't do that, or maybe they'll love it and I'll put that into my final preparation. So I'll do two of those moots.

And then the very last thing I do before argument, I only take up one sheet of paper. That's not a rule. You can take up whatever you want. But I take up one sheet of paper and what's written on that paper are three to five things that I will say no matter what. Even if the judges drag me off into some other topic and there's no time, I will say those three or five things. I'll stick them in no matter what they say because I think they're the things that decide the case.

Katya Valasek:

How long did it take you to get confident in this being the best method for preparation?

Raffi Melkonian:

Yeah, so I'm on argument 30, I think. And I would say it took at least 10 to get to where I was very comfortable. And I don't feel nervous anymore when I go up to argue in a Court of Appeals. The first five or so, I'm not sure I remember what I said or how I performed. It's a nerve-wracking experience. I sometimes say this to people. When you have an oral argument, what's happening is that the decision maker, you know, given by the constitution, given by our laws, is coming in person to listen to you. That is really an astonishing thing. It's as if you as a citizen got to go and call up three senators and be like, you got to listen to me for 20 minutes as I try to convince you. And so like, you should be a little nervous when you're doing that for the first few times because these important people with really big responsibilities are showing up to listen to you. But I think as you do more and more of it, you get very comfortable and realize that it should be a conversation. You're trying to persuade them. You're not giving a speech, you're trying to make sure that they can do their job in the easiest way possible. Though I will say you should always try to find your own style. You can't be someone else, but you just have to try out different things and see what works for you.

Katya Valasek:

So given that you practice in the Fifth Circuit Federal Court of Appeals, I have to ask you about how changes to the Court’s make up since 2016 affect how you do your job.

Raffi Melkonian:

The Fifth Circuit is the court that covers Texas, Mississippi, and Louisiana. It hears appeals in federal cases from those states. So each of those states has their own state system, right? And they have their own Supreme Court. The Fifth Circuit handles appeals from the federal courts. And it is a court of 17 judges who are appointed for life. So what happened during the Trump presidency from 2016 to 2020 is that President Trump had the opportunity to appoint six new judges on the Fifth Circuit. So those judges, especially given that he tended to choose judges that had a particular judicial philosophy that, people might call originalism or textualism or whatever you want to call it. Those six appointments made a huge difference to how the Fifth Circuit decides cases. It made it, in a very political sense, much more conservative, even though I don't know that they would view themselves that way if you asked them. But it's just a very conservative court that handles a lot of the most important cases around the country.

And what that has meant is that people, when they have lawsuits against President Biden, for example, or against initiatives that President Biden has, they tend to sue in Texas or Louisiana or Mississippi so that the appeal gets to the Fifth Circuit. And so we've just had a tremendous number of really, really important cases that end up in the U.S. Supreme Court being litigated down here since 2016. It's a huge change in how that court has worked.

Katya Valasek:

These appointees’ point of view matters in how you approach your case. Can you talk about how you have shifted your approach after these appointments?

Raffi Melkonian:

Yeah, absolutely. So I often get calls from lawyers in other parts of the country who have a Fifth Circuit appeal for the first time. And they're calling me for advice and guidance on exactly that question, on how the Fifth Circuit's views have changed and how best to advocate for their clients in front of that court. I kind of joke that I'm kind of a guide on an exploration into a cave or something, and I'm taking them into the realm of the Fifth Circuit and showing them the path that I think gives the best chance of success. But I think a lot about how the Fifth Circuit views legal questions and how I would advocate to them specifically rather than judges in general. Because they definitely have a different view of how certain things work. Like, for example, how you would read a contract or how you would read a statute. They have specific views about those things that are not as commonly shared outside the Fifth Circuit.

Katya Valasek:

Do you have an example?

Raffi Melkonian:

Whenever you have a statute, one thing you're trying to figure out is what the words mean in that statute. You might have a word that is specific to the oil industry or some other kind of industry. In other courts, I think it's fair to say judges might start with like the context of that word as it's used in the law. So they'll look to the other sections of the law. They'll look to other places that word is used in federal law and see what it means there.

In the Fifth Circuit, I would say that it's more common for the judge to start with a dictionary and literally pull out Merriam-Webster's dictionary or some other dictionary and analyze the definition in detail first. That doesn't mean that's where they'll stop. They'll get to that context and that contextual explanation eventually, but they're going to start at a different place. They want to understand what the word means in like super granular detail. And that's different than any other court, or at least most other courts. And so that's a really good example. I'm often changing briefs that colleagues in other states have written to add that kind of analysis because they just didn't think of it.

Katya Valasek:

When you were starting your career in law, you wanted the excitement that you thought you would find in corporate law. Did you find that thrill in the appellate work you're doing now?

Raffi Melkonian:

Yeah, but in a different way. So when I was in corporate law, my idea was my stuff, my cases, were going to be on the front page of the Financial Times and the Wall Street Journal and the New York Times. That's what I thought was exciting. These days, none of my cases are on... in those newspapers or, you know, very rarely will I get a case that has that kind of national attention. But what I found is that I don't really care whether the case I'm litigating is some famous case. What I care about is, are the issues that the case is creating interesting to me as puzzles? And every case in my view, or nearly every case, creates interesting puzzles that I can use to make an interesting brief out of it. And it doesn't matter whether it's a car accident here in Texas where there's 50 million bucks at risk, or even two million bucks. Or whether it's a fight between two big companies. They all cause unbelievably interesting issues that I can take up to the higher courts and to the Texas Supreme Court, and even sometimes to the U.S. Supreme Court. So, I do get that thrill, but it's not from, “oh my gosh, my case is worth a billion dollars and it's in the newspaper.” It’s my case caused me to have three days where I couldn't figure out the answer. And that's the kind of thrill that excites me these days.