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SCOTUSblog Founder on How to Start Your Own Appellate Practice

By Stephanie Francis Ward

October 3, 2011, 9:01 pm CDT

Podcast Transcript:

This podcast is produced by the ABA Journal. We bring you the latest legal news every day from around the Web. Visit us online at ABAJournal.com.

Stephanie Francis Ward: Are you interested in having an appellate practice and maybe starting your own firm? I’m Stephanie Francis Ward, and today at the ABA Journal Podcast we’re talking with two lawyers who have done just that. Joining me are Tom Goldstein, a partner of Washington D.C.’s Goldstein & Russell and founder and publisher of the SCOTUSblog, and Erik Jaffe, a former U.S. Supreme Court clerk who has had a solo appellate practice since 1997. Gentlemen, my first question is for both of you. If you had it to do over in terms of starting your own firm, what would you have done differently that first year? Erik, do you want to go first?

Erik Jaffe: Well, I think the big thing I would have done differently is had a more developed business plan on how I was going to get clients. As it turns out, I just sort of went and did it, and things fell into my lap; but in retrospect, I think probably a little more conscious thought and determination in that direction would have helped.

Stephanie Francis Ward: How did you get clients initially?

Erik Jaffe: Well, initially, it was referrals from people I knew, either through the various clerkships or people who had seen my work, things like that. A little bit from my old law firm, but not so much there. Really mostly through the clerkships; and then once I started doing things, writing amicus briefs, for example, my work sort of came to the attention of other folks who read those briefs and business came in that way.

Stephanie Francis Ward: How did you notify your contacts that you were going out on your own? Did you send letters? Did you make phone calls? Did you do both?

Erik Jaffe: I printed up a big old announcement that said “I’m starting my own firm and this is what I do,” and I sent it to everyone on my mailing list that I could think of.

Stephanie Francis Ward: And Tom, how about you? What would you do differently that first year in practice?

Tom Goldstein: I suppose two things. The first is I would have focused on the way of generating business that Erik did – and we can talk about it more later, but it’s by far the most important one – and that is contacts and referrals rather than what I did, which was to try and hunt down cases. I would’ve focused more on the economics. Things tend to work out, but I would’ve paid more attention to “hey, what work am I going to do here that’s going to pay the bills” rather than “what work is it that I’m going to do that’s going to give me a chance to do what I was focusing on, which is getting in the Supreme Court.” And I would’ve paid more attention to the balance of the volume of work.

What ended up happening in the first year is that there was a whole lot to do, and then there came one day where all the cases were done at the end of the Supreme Court term. And there was literally nothing to do, and as someone who’s in a solo practice or a small firm, that’s always a challenge.

Stephanie Francis Ward: It sounds like perhaps you didn’t have the bread and butter set up for when the term ended?

Tom Goldstein: It’s not that I didn’t have the bread and the butter. It’s that I didn’t have the bread or the butter. The one thing I suppose I did right is that I was focused like a laser beam on tracking down cases that could go to the Supreme Court. But when you focus like a laser beam on one thing, then everything else falls by the wayside. And I didn’t show a lot of balance in what I was trying to do in develop work.

Erik Jaffe: It’s so funny to hear Tom say that, because I’m thinking almost 180 degrees that in many ways I sort of think I should’ve done more of what he did, which is go out there, build a reputation even it it’s not necessarily remunerative in the early years. And from that comes more referrals and more interesting cases and things like that. Tom and I worked together a little bit in those early years, but he was definitely more focused on that than I was. So in some ways I wish I had done more what he had done.

Stephanie Francis Ward: Tom, I’m curious, you know, you started your blog when you started out, which was one way that you got some attention for your work. What advice do you have for young lawyers who want to do something similar, in terms of the Internet? What will get them noticed in a positive way?

Tom Goldstein: Right. That’s the thing. There are two parts to the question: What’s going to get you noticed, and what’s going to get you noticed in a positive way? This is not a situation where all press is good press, although, I think in my early years I kind of acted like it was. I think that there are so many different parts to the law that it’s possible for essentially everybody to develop a niche and get known for it. You can pick out a tiny piece of patent law, immigration law, or whatever, and become the world’s greatest expert on that.

So that while we do a lot of diverse things related to the Supreme Court now, early on, what I was most focused on–and maybe best known for–was cert practice, finding that needle in the haystack that was going to go to the court, or on the statistics that I published about the court. And out of that grew kind of a broader platform, and so I think that someone who’s thinking about developing any kind of practice shouldn’t decide to do kind of what I did: succeeded in some ways, failed in others, had many stumbles, and then to say, “Okay, I’m going to be an X, I’m going to be a Supreme Court litigator.” Instead, I think that if you kind of pick your fight, pick a modest goal of I’m going to be the person – and it’s not terribly modest – it is trying to be the best known person in some issue, and then build from that. So, find your niche.

Erik Jaffe: I agree. Finding a niche that both interests you, that is sort of digestible in the sense that you don’t suddenly want to become the world’s greatest securities lawyer if you’re just starting out, because that’s an awfully big niche. But you may want to pick one particular securities act that you’re very, you know, you’re going to make yourself an expert on, and then build from there as you mature and get some experience. But it definitely helps. One thing I did early on because I did a lot of amicus briefs, which is not a subject matter niche so much, but it is sort of a subsection of appellate work that is sort of an art form in and of itself.

And if you do amicus briefs well, you can sort of figure out what it is that an amicus is supposed to do and how to do that well and efficiently. But some niche that you can manage, especially if you’re a solo, is very important.

Stephanie Francis Ward: Erik, can you give me a sense of what the work for amicus brief – what you can get paid for on that for a young lawyer?

Erik Jaffe: It depends who your clients are. If you’re a young lawyer, in all likelihood, your clients are going to be less well-funded than if you’re a more established lawyer. So when I started out I did a lot of briefs for nonprofit groups, and the amount you get paid for those briefs varied widely. My first brief I got paid $2,000 for, and I think that’s probably all I made in ’97. That was just a part year, but that was very low, and in some ways I had nothing better to do, so why not? When you get more established clients, it would be $10,000, $15,000, $20,000 depending on the nature of the brief.

But that was always a struggle for nonprofit groups typically, and what you try to do is get a bunch of groups together to split the cost. If you’re working for corporations, you know, for profit corporations that have cash and have a genuine business interest in a case, rather than just sort of an academic interest in a case, you can get $20,000, $30,000, $40,000, $50,000 depending on the nature of the brief, and the level of interest of the corporation.

Stephanie Francis Ward: For both of you: When you were starting out, did you kind of learn how to get other groups onboard? Is it called appellate wrangling or something like that on the amicus briefs? Because I’ve heard there a bit of an art to that to get others to come in, too.

Erik Jaffe: For me, I never gave it a particular name other than trying to find as many people as possible so you can get to “yes.” It’s a lot easier to tell several clients it’s only going to cost you $3,000, $4,000, $5,000 rather than tell one client it’s going to cost you $15,000 or $20,000. I don’t know if there’s an art to it; it’s just a lot of legwork. You’ve got to figure out who’s interested and what groups make reasonable alliances, and what groups make improbable-but-nonetheless-good alliances at least temporary. And figure which ones actually have money to spend.

A lot of groups don’t have money to spend. Many groups that nominally do have the money to spend may have in-house people to do it. You’re not going to get the ACLU to pay you to write a brief. They have their own people for that. So you’ve just got to – it’s just a lot of legwork. There’s nothing beyond that to it.

Stephanie Francis Ward: You mentioned the amicus briefs, but I’m also curious, are there ways to get appellate clients particularly for young lawyers that perhaps many don’t think of? Both of you have a background that are very heavy on U.S. Supreme Court matters, but you also handle matters outside the Supreme Court.

Tom Goldstein: Your question is how is it that you develop clients more broadly?

Stephanie Francis Ward: Right, that perhaps don’t immediately come to mind for young lawyers.

Tom Goldstein: Well, I think that, as Erik suggested at the very beginning, clients and getting work is really a question of relationships. As much as I said that there are niches in the law for – enough niches to accommodate everybody – it’s also the truth that there’s a huge amount of competition. So there are a ton of other lawyers out there, and people have a lot of choices. So you’ve got to go to people that you know and try and build off of that, and get the kinds of referrals that Erik was talking about.

Beyond that, I think that being able to use your competitive advantages against bigger firms: to be able to be less expensive; to be able to give fixed fees where clients will know exactly what it is that it’s going to cost them; to be able to assure the client that you’re going to do the work personally, rather than have some brand new associate who doesn’t have experience and judgment to do the work. The clients care tremendously about personal contact and personal attention, knowing that you care a lot about their business, and are invested in their business, and are learning about them and their priorities, without making them pay for it.

All of those kinds of personal touches I think are the kinds of things that can differentiate you in the marketplace. And you also have to be willing just generally to sell yourself, and that’s something that a lot of lawyers are much less comfortable with.

Stephanie Francis Ward: Do you think that’s particularly true for the appellate bar?

Tom Goldstein: That is particularly true for the appellate bar. It is really the case that most folks who do what we do are used to bringing work to them, and they have incredible strengths and talents as lawyers. But those aren’t the same thing as strength and talent – and call it what you will, because in some quarters it’s not really favored – of really being willing to go out there, find the work, say that you want to do the work, explain why it is that you’re going to do the work and not be upset or disappointed when you’re told no, which is going to happen most of the time. If you’re going to measure your success by the volume of work, that’s really going to have to be your priority and your skill set.

On the other hand, a lot of people who do this really measure their success in the great work that they do, and the great opportunities that they get to influence the development of the law. So there are different metrics for success, but it’s not – business people are kind of surprised, I think, that even when the very best most talented lawyer doesn’t have work walk in the door because there is so much competition, and it is hard to break out.

Erik Jaffe: I think Tom is dead on on that. There really is an art to – for lack of a better phrase – sort of selling yourself to clients and to perspective clients. Remember, for an appellate lawyer, more often than not, a client – the person you’re selling yourself to is not the client per se, it’s the trial lawyer. Most clients, by the time they get to our services, already have a lawyer. They had somebody represent them at trial, and if you’re going to persuade someone to bring you in, the first thing you may need to do is persuade the trial lawyer that it’s a good idea to bring in appellate counsel rather than just to try to handle it themselves.

That’s certainly the case where the lawyer below won and you’re defending a decision, and in the case where the lawyer below lost, you’re sort of in an awkward position. So if the client is particularly annoyed and has dumped their lawyer, that’s one thing. But very often the lawyer is still there, they’re trying to figure out how to reverse a bad result, and if you want to persuade them to bring in some appellate expertise, you have to do so in a way that is both direct enough to point out the benefits of doing that, yet not insulting to the lawyer.

It’s funny, early on in our careers when Tom and I would do stuff, he was exceptionally good at doing this, about talking to an appellate lawyer who had lost a case and convincing them that it would be good for everyone involved – both the lawyer, the client, and of course him – to combine forces. Whereas I’d have conversations like that and (at least to my ears) it always came out sounding like “you messed up, I can fix it, why don’t you bring me in,” and that never works. That’s not the way to go about doing it.

Stephanie Francis Ward: In your first year, Erik, how did you decide what to charge?

Erik Jaffe: I had been at a firm for five years, so I was accustomed to billable hours and to what lawyers of big firms charge. And I figured, well, you know, I’m no different than I was a year-and-a-half ago, so I’m going to charge roughly what my contemporaries at law firms charge. That’s a nice nominal statement that I’m going to charge that, but in fact, what ended up happening most of the time was that you would charge what the client could afford, because the client couldn’t really afford what you thought your services were worth. Because for all you want to say, “I’m worth just as much as an associate at a big firm,” the reality is you don’t have the backup, you don’t have the overhead. And there’s a reason they come to a solo rather than a big firm, and some of that is they’re hoping it will be less expensive.

So I ended up typically starting with a billable rate, but most of the time I negotiated a flat fee, or I negotiated discounted rates or what have you. Or sometimes I’d do contingency fees or partial contingency fees, where I’ll give them a discounted rate, but if I win I’d get back the rest of my rate and then a bonus, or something like that. There are lots of ways of doing it to make cost-conscious clients happy, but I at least started with the notion that this is what the market is charging for a lawyer roughly like me, albeit at a big firm rather than solo.

Stephanie Francis Ward: So in hindsight, what advice would you have for someone about feeling out what a client can and will pay?

Erik Jaffe: I think the first thing to do is you can’t sell yourself too short. So I always had sort of the notion that lawyers to some degree, especially appellate lawyers, are Giffen goods. A Giffen good is a good that demand goes up if the price goes up – so, you know, specialty goods. Certain luxury items are Giffen goods, and I think of appellate counsel in some sense as a Giffen good. So you start that way just so that you’re not signaling to your perspective client that you’re cheap and there’s a reason why, you know, “you get what you pay for” kind of notion.

But having said that, when the client starts to sort of make noise and worry about how expensive that is, I think a ready willingness to negotiate a rate that works for both of you is the best way to do it. You start with your nominal rates and then negotiate it as you go. There’s no real methodology to it. I think it’s just some clients want hourly because that’s what they’re used to, and they like the notion that “this is what it costs and thank you very much.” Other clients want a fixed fee so that they have certainly, and you just have to have that conversation with the client upfront. They usually initiate it. In my experience, they’ll ask, “What do you charge?”

I’ll tell them my hourly rate. I’ll tell them that I often do flat fees, however, and then they start talking about what they can afford, what they can expect, things of that sort. They’ve been pretty candid, at least in my experience.

Stephanie Francis Ward: Tom, what do you say?

Tom Goldstein: I think that that’s right. You have to really be conscious of your place in the marketplace. For a lot of the work that I do, still having done it for 15 years, and having argued 23 cases at the Supreme Court, I’m still not at the top of the market. So there are things that the market won’t bear for me. If you want the very top of the market, you’re going to hire Ted Olson and Paul Clement and Carter Phillips and Seth Waxman. So you can’t try and super premium price. On the other hand, I do think that there’s an element of reverse price discrimination that Erik was describing, and that is, if you describe yourself as super cheap, then the client thinks you’re not worth it.

So you have to figure out, is the work that I’m being asked to do price sensitive? Is that what the client is making a decision based on, or is there a range in which the client is comfortable and just wants the best service? You have to figure out what your selling point is. If your selling point isn’t price but rather experience, and you have a client who can pay, you can say “I’m going to charge a premium here.” And if the client wants you but can’t afford you, then the client will tell you, “Hey, I would like to hire you, but I can’t afford that much.”

And so long as somehow in communicating the price you’re able to say, “Well, what I would ordinarily charge here is X,” leave the door open for them to have that conversation with you, to come back and say, “Well, if you’ll do it for Y instead of X, then I’ll hire you.” Beyond that I just agree with everything that Erik’s talked about in terms of being conscious of who the particular client is.

Stephanie Francis Ward: Okay. I have a question for both of you. Could you see starting your own practice focusing on appellate work? Is that something that works out well for brand new lawyers or someone coming off a clerkship, or should they get some private practice experience with someone else first?

Erik Jaffe: Well, from my perspective, I was very glad to have spent some time in a law firm before going out on my own. I think it would’ve been much more difficult had I not had the basic experience of the young associate: learning how to put together a brief, learning the court rules, having a more experienced partner help me through those stages. So that by the time I went out on my own I had written any number of briefs before; I had worked with skilled lawyers who were very good at writing; I had had my writing criticized by people who understood how to write for courts rather than how to write for law school exams. Those things were all extremely helpful in my opinion.

I wouldn’t necessarily go so far as to say it’s impossible, particularly if you’ve had one or two clerkships under your belt. You’ve gotten to see a lot of legal writing, and you’ve probably had your judge criticize your writing and hopefully teach you how to do better. But I think the wiser choice is to be in an environment where people have been doing it for a while, and have procedures for teaching younger associates.

Stephanie Francis Ward: And Erik, you opened your own practice after you clerked for Justice Clarence Thomas. What prompted you to do that as opposed to going back to private practice?

Erik Jaffe: A friend prompted me to do that, a mutual friend of Tom’s and mine who had done it himself under somewhat different circumstances, but had been on his own for a number of years. So he talked to me at the end of my clerkship and said, “You should really think about this. It’s been pretty good for me, and I think it would work out for you,” and sort of described the virtues of it to me in ways that he knew I would find appealing, because he and I shared some similarities in our work preferences.

But I originally had planned to just go back to a firm. But as I was in the process of negotiating that, it became more apparent to me that if I was going to do what I really wanted to do, which was appellate work, back then it was easier for me to go out on my own. There were some other choices I could have made at the time, but it just ended up evolving into the more sensible choice back then. It wasn’t something I had planned on at all.

Stephanie Francis Ward: Did either of you do panel work when you started your practice, and do you think panel work is a good way to get some money coming in the door for someone just starting out?

Tom Goldstein: I didn’t and I don’t think that Erik did.

Erik Jaffe: No.

Tom Goldstein: But I think it is. You’ve got to build up a steady stream of work. You’ve got to become a part of a community where you can share work and refer work to each other. And if someone is a former law firm partner, and has all those relationships, and can start on Day One with all that, that’s terrific. But for those of us for whom that’s not true, we have to have another path. And you can get great experience; you can get known; you can set up a kind of baseline income stream through panel work. So I think it’s in many respects almost indispensable.

Stephanie Francis Ward: And Tom, you’ve had the big firm and the small firm experience, both as an associate and a partner. Can you just kind of tell us what you think works best and how you’ve chosen your path?

Tom Goldstein: Well, there are great benefits and substantial disadvantages to both. There is so much independence in your own practice. You decide what it is you’re going to do, and you don’t have conflicts that stop you from doing it. On the other hand, nobody’s going to do it for you, and nobody’s going to hand you the work. So you have to be prepared to take on that piece of it, and in a big firm there’s likely to be a lot more work around to be done. If you’re an appellate lawyer in a big firm, the firm’s institutional clients are going to have appeals or brief writing in the district courts and trial courts that will occupy your time and the time of the people who work with you.

But you’re going to be much more constrained in the kinds of things that you can bring in, for reasons of actual client conflicts, positional conflicts, because the firm decides it can’t afford it. If you’re on your own and you think there’s a really amazing case that will really help your exposure, and it’s not a traditional pro bono client but they can pay $5,000, well, you can just jump all over that and do it, because it’ll be perfect exposure. And a big firm’s just going to say no. They can’t afford to have people who fit the mold of a paying client who don’t pay. It just doesn’t work for their business model. So too, there are great lawyers that you can work with at the big firms, where you learn from them.

We also ought not pass over the government, where appellate lawyers really can get the best experience as a young lawyer, probably. Where if you go into the appellate division of the State Attorney General’s Office, U.S. Department of Justice, you’re going to see yourself arguing six Court of Appeals cases. I mean, I didn’t argue six Court of Appeals cases – as opposed to the Supreme Court cases that I really focused on chasing down – I didn’t argue six Court of Appeals cases for years and years and years and years. So the body of experience that you’re going to get is much, much greater in the government.

Now, you’re not going to be able to break out and develop your own reputation in the same way. But you’re going to be able to tell people, “I’ve argued 20 Court of Appeals cases,” and that’s going to make a huge decision in their hiring decisions.

Stephanie Francis Ward: When you were starting out, Tom, how did you find people to bounce ideas off of?

Tom Goldstein: As Erik mentioned, we did a lot of cases together. In getting ready for moot courts, people are, for oral argument doing moot courts, people are really collaborative. And my wife worked with me, and now works with me again, in the firm, so I was only a “solo” as such for seven months. And then we had an associate and then we had a partner, so the firm has never been big, but it hasn’t been just me since really the very beginning. So I’ve always had the benefit of having people around. But it is not the same thing as having a big team of people. There you’re going to be able to get more input.

When you’re in a small shop or on your own you’re going to have to lean on your co-counsel more, and that’s not going to be entirely fulfilling sometimes, because your co-counsel isn’t going to have the kind of expertise and experience that relates to appeals or the Supreme Court.

Stephanie Francis Ward: Erik, do you have anything to add to that?

Erik Jaffe: Yeah, I think that Tom is exactly right. Early on I would chat with Tom a lot about cases. I would chat with some of my former co-clerks, one of whom became an academic, so it was sort of easy to chat with him, because there was no potential conflict or issues like that. He always was sort of in the mood for a conversation on the law. But Tom’s right: You do spend a lot of time talking to your co-counsel, and while they may be great trial lawyers and know the facts of the case, and that’s always extremely helpful to appellate counsel, they’re not necessarily going to think through the legal issues in the same way that you would find helpful from the appellate perspective.

It’s once again one of the reasons that I sort of think for very young lawyers, particularly, going out on your own right off the bat is tough. Now I had some years in there where I spent five years at a big very good firm with very good appellate attorneys and very good attorneys in general. And you learn a lot from those folks, and you learn how to think about a case and how to think about an issue, that you’re not necessarily going to teach yourself just sitting in your own office. Certainly you should develop other relationships in the small and solo practice community. And hopefully you have folks from other parts of your legal life, whether it’s from law school or from clerking, that you might be able to bounce some ideas off (within the confines of client confidence, obviously). But it’s difficult. It’s more difficult when you’re sitting on your own, if you don’t have a decent community of like-minded or like-practiced lawyers.

Stephanie Francis Ward: Okay, gentlemen, that’s everything that I have. Did either one of you want to add anything else?

Erik Jaffe: You know, I want to add one thing that was sort of interesting. It was some advice my father-in-law gave me when I was first going out on my own. And he was a businessman who had gone out on his own for a while, and he said you shouldn’t start up your own business – and this applies to law as well as to other small businesses – unless you’re willing to give it a couple of years without seeing a whole lot of an immediate return. Because it’s an investment, you know: You go out, you write some briefs, you make your contacts, you let people know you’re out there. But that doesn’t mean that tomorrow they’re going to give you business.

They’re going to stick your card in their Rolodex or on their computer, and a year from now, they may say, “You know, I have just the right case for that guy.” But it’s going to take a year or two years in the making before you get a return on that. And if you don’t have either the financial means or the stomach to sit it out and deal with sort of the ups and downs of a developing business, you might as well not start at all. Because then you’re just throwing away a bunch of career development and money, if you can’t let your investment come to fruition.

Stephanie Francis Ward: Thank you both so much, I think this was great.

This podcast was brought to you by the ABA Journal. For more podcasts on the legal issues of the day, visit us online at ABAJournal.com or subscribe for free to the ABA Journal Podcast on iTunes.

Have you ever dreamed of opening your own appellate practice? The 2011 U.S. Supreme Court term opened Oct. 3, and along with the government lawyers and big firm attorneys, many solo and small firm practitioners will be entering the doors at 1 First St. ABA Journal Podcast moderator Stephanie Francis Ward talks with two lawyers about how and why they built their own appellate practices.