Although private civil appellate practice can be its own niche, there are many ways to do it—solo or in a boutique, mid-sized firm, or large firm. While the basics remain the same, the individual experience may vary greatly depending on the practice setting. Todd Smith and Jody Sanders sit down with Reagan Simpson of Yetter Coleman LLP to compare and contrast each of their experiences in various practice settings. Both Todd and Reagan started at large firms, with Reagan transitioning through various settings into a boutique practice, while Todd found his way to solo practice. Jody has spent his career working at a mid-size firm. They also talk about the various types of experiences appellate practice can bring, while Reagan discusses his career working as both a trial and appellate attorney.
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Appellate Practice Perspectives: Private Civil Firms | Reagan Simpson
We have with us a trial and appellate lawyer extraordinaire, Reagan Simpson, who is someone who’s known many appellate lawyers around the bar and a lot of trial lawyers, too. Reagan has been a great friend and mentor to folks across the bar. I can count myself among those because Reagan was the head of the appellate practice section at Fulbright & Jaworski when I started my career as a young lawyer there back in 1997. Reagan, welcome to the show.
Thank you very much. I appreciate being here.
We’re excited to have you and we asked you to come on because we’re starting what may turn into a series of episodes dealing with different practice perspectives or different settings in which one may practice appellate law. We thought you would be a great person to have on to talk about practice in private civil law firms. By that, we’re talking about anything to do on the civil side, from solo to big firm, and we happen to have a good representation here to talk about those issues from those different perspectives. Before we launch into the substance, tell us a little bit about your background. I know a good bit of it, but for everyone else’s benefit, tell us about how you came up as a lawyer, where you started your career and an overview of your career.
I’ve been doing this for many years. I’ve been doing it for quite a while. I went to the University of Texas Law School and I’ve worked for Tom Gee on the Fifth Circuit, who was a great appellate judge but he was also a great trial lawyer. We learned a lot from Judge Gee. After that, I never thought I would go to Houston but I met a Houston girl and ended up going to Houston and spending the rest of my career there.
I’ve been in Houston, Texas, except for a fairly short time when I was one of your neighbors, Todd, in Austin for a few years with Yetter Coleman. I was at Fulbright & Jaworski for 24 years. I started off as a trial lawyer and I did commercial litigation, and primarily focused on tort litigation for a long time. I spent a lot of time in South Texas, which is an interesting place to try lawsuits. When Roger Townsend, a great appellate lawyer here in Texas, left for Fulbright & Jaworski, he asked me if I would take over. I had already been board certified in civil appellate law for quite some time. Wendell Hall and I were co-heads of the appellate group there at Fulbright for a number of years.
When I reached about the age of 50, I got enticed to go over to King & Spalding in the Houston office and was there for quite a while. They asked me to go to Austin and open up the Austin office of King & Spalding, which I did. Except during that time, I ended up being a trial lawyer in Illinois, trying and living these old cases for about seven years and handling appeals in the Illinois Courts of Appeals and eventually the Illinois Supreme Court.
I had decided I didn’t want to become an Illinois lawyer for the rest of my life. I came back to Austin and I’ve had the opportunity, unfortunately, to go to Yetter Coleman after Greg Coleman’s death in his plane crash on Thanksgiving Eve, I believe it was. Paul Yetter, with whom I had tried a couple of cases with asked if I would come over and head the appellate group. I did that in Austin for a while and decided to come back to Houston. We closed our Austin office and came back to Houston. I have been practicing appellate law, with some trial law as well, ever since. It’s been a long time doing different things.
I certainly didn’t mean to slight Wendell Hall. He is another person that I consider to be a mentor in my career. I’ve been thinking about calling Wendell and finally getting him out of retirement long enough to talk about standards of review.
I was going to say, “Who’s going to update it?” Fulbright did update it at one point. I’ve got a copy of it and I refer to it but it’s been a number of years since it’s been updated but I don’t know who would take on that Herculean task of updating the Texas Standards Review.
It’s been updated. Wendell passed it off to a small firm lawyer in San Antonio. It pretty much reads the same, Reagan. Wendell’s fingerprints are all over it still but that was certainly always in development when we were practicing together at Fulbright. You’re back in Houston and you’re with Yetter Coleman. You’re one of those rare birds who has the skills to be both a trial lawyer and an appellate lawyer. I’d either forgotten or was not aware that you had spent so much time in Illinois trying those big cases. We talked sometimes on the show here about the differences between the skillsets that are involved in trial work and appellate work. You’re in a unique position to offer some opinions on that. What can you share with us there?
It’s always the audience you’re talking to. It’s different. Talking to a jury is different from talking to a trial judge and talking to a trial judge is different from talking to an appellate judge. You have to take those into account. It is a different audience. I have a different view also of appellate practice. I tend to think of appellate practice as an argument, legal points to a judge, and that includes a lot of things these days. If you think about it, we don’t try nearly as many cases as I did when I first started out. We had workers’ compensation cases and automobile accident cases that I tried in Fulbright & Jaworski.
We don’t have those anymore in the big firms and not much even in medium-sized firms. You have to have a different audience and different attention to detail in what you’re trying to accomplish. You’re trying to persuade them on the facts and you’ve got to develop themes. My partner, Paul Yetter, is wonderful with this and he uses a lot of visual aids because that’s important to jurors these days. He often suggests that I do that in the appellate court and I tell him, “No, he needs to go back to the trial court because judges are concerned about words, not about pictures.” That’s not always true but jurors are a different animal in terms of what you’re trying to do. This all goes back to Aristotle and the things you do to try to persuade and you have to look at your audience.
Trial judges are also different because they are looking at trying to do certain things in the trial court and get the case done and over with. They’re not quite as concerned with some of the legal aspects and nuances of the law as they are with practical aspects of getting the case done. When appellate lawyers are working with trial lawyers, the paramount thing there is to get it to the trial judge. Get it done on time, quickly, and in a brief format. A judge that I had a lot of respect for in Beaumont told us on Daubert issues, “Give me one page that tells me why I should extract this expert.” It was Jim Mahaffey. A lot of defense lawyers didn’t like Jim Mahaffey but I thought he was a good judge. He’s innovative. The first electronic docket we had in the state of Texas was in his court in his best cases.
Don’t cabin yourself. Always let people know you want to do appeals.
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I’ve told that story many times. Trail judges do not have the time to sit there and parse out your sentences and figure out how subjects and verbs go together and listen to all the eloquent language. They need it quickly and they need to be able to digest it quickly because they don’t have a lot of time, particularly in state courts where they have no clerks. It’s different advocacy there. You’re trying to get done briefly and succinctly and always have a practical sense about it. It doesn’t like practical senses. It’s not going to persuade a trial judge. If you’re worrying about every little jot and tittle in your brief to try to achieve the mythical perfect brief. It’s a different level of perfection.
To set the stage for where we want to take this conversation, I’m looking at what civil practices are like from an appellate standpoint. We have here represented, I’m in a solo practice. I’ve been in a boutique with 3 or 4 lawyers practicing civil appeals. As a young lawyer, I spent the first nine years of my career in a large firm. Jody is what I would like to characterize as a large firm lifer. He’s been with Kelly Hart for his whole career. Reagan, you’ve done it all. You bring a lot of different perspectives to this conversation because you haven’t been a solo and maybe that’s the one thing you haven’t done.
No, I’ve not done that. That would be frightening to me. I have a lot of respect for you, Todd, to be able to do that. That would be frightening.
I appreciate that. I would say you’re in a boutique firm, litigation boutique, but you do an awful lot of appellate work there. You mentioned the firms you’ve been with before. We might even classify those as giant law firms. We have a lot of different perspectives to bear on the conversation. We get questions sometimes from people who read this and that’s what drove this. It’s folks wanting to hear some practical aspects of civil appellate practice in particular. What we’re going to do in the subsequent 1 or 2 episodes, we’re going to try to focus on government appellate practice and criminal appellate practice.
For this episode, what we have basically is pretty much the gamut covered on civil appellate practice with a number of years of experience here. Going back to law students or young lawyers, the things that they often ask is, “How do I become an appellate lawyer?” That can be in a court in any practice setting. The standard advice that folks have been given on the show before as well, they went to law school, become editor of the Law Review, if you can, and do a judicial clerkship.
There are some advantages and disadvantages to state versus federal clerkships. Go out, do good work, and develop your appellate practice. Let’s assume that someone has done all that and they’ve managed to land a job. Maybe let’s start with a large firm setting. Maybe the two of you could opine about how one becomes a civil appellate practitioner going into a large law firm. That seems to be what people want to do a lot of times, folks who’ve come out of judicial clerkships and they find it increasingly difficult to accomplish.
Jody, do you want to lead off on that?
Sure. If you want to get your foot in the door to do appellate work at a big law firm, and I use big maybe a little bit differently than Todd. Our law firm has about 150 people. Our appellate group is a little bit more of a boutique. We have about eight people that do primarily appeals but the clerkship is a good way to go, whether it’s federal or state, because that sets your resume apart. In terms of doing the appellate work, that certainly indicates to people that’s what you want to do, but I’m not sure that’s the only way to get there because I didn’t do a clerkship. I would like to say maybe appellate practice found me and a little bit. I started doing litigation at Kelly Hart out of law school and thought that’s what I wanted to do. A couple of years after I started, I’d worked on maybe a couple of appeals but nothing major. I wrote a section of a brief here or there.
I said it found me because David Keltner joined the firm and came into my office one day and said, “I’ve got this thing coming up, do you want to come to help me do some research on an appellate issue?” I said, “Sure, why not?” I started working on that and realized that I liked it and liked working with David. It blossomed into an appellate practice. I don’t think I understood at the time what exactly the difference between an appellate and a trial practice was. I thought that you litigate, do that stuff and you make similar arguments on appeal, but I didn’t realize the nuances that went into it.
I have discovered that and realize that, to your point, Reagan, I like talking to judges. That’s where my strengths lie. Not that I’ve tried a couple of cases. I still do stuff in trial courts, but it’s more the appellate practice you talked about, which is the legal issues, going to trial and helping with the jury charge, doing error preservation stuff. It’s that line of things rather than being the one that gets up and does the actual voir dire, the one that’s taking the witnesses.
One thing I would say to people who want to do it at a larger firm is I wouldn’t cabin yourself off. It’s great to let people know you want to do appeals. If you can be part of whatever is called an appellate section at the firm, you want to be at it. That’s great but don’t turn on litigation, because it’s important to do both. In all of our appellate partners and I know all of our associates that come in, we make sure that they get litigation work alongside the appellate. Don’t think coming in off of a clerkship is enough experience to qualify, you don’t only do appellate law. You need to get down into the trial courts and be in the trenches a little bit and see what it’s like because it’s easy for an appellate lawyer to look and say, “They should have done this differently.”
If you haven’t been there and seen, to Reagan’s point, that split second calls of, “Look, I can preserve this error. It’s going to make the judge mad, it’s going to irritate the jury. Is it worth it at the end of the day doing that to make this point that I might raise, and probably I’m not going to get reversed on appeal?” Until you’ve sat down and seen those calls having to be made and been part of them, it’s hard to understand from an appellate perspective what goes into that. My advice is, if you want to do appellate work, make that clear, but recognize that trial work is important to be a good appellate lawyer.
Even if you don’t want to do appellate work, doing a little bit of it, if you want to be a trial or litigation person, it’s also important because you have to understand where it’s going. Seeing the trial process through and knowing how to do that is incredibly important but knowing how the Court of Appeals looks at things and the things that they look for in the record and frankly, reading your own records of trials is important. The way it sounds in your head looks a lot different on paper. That’s my long, rambling answer.
That’s a great answer, Jody. That’s spot on. I had the benefit when I was hired at Fulbright of being specifically assigned half to the appellate section and half the litigation section. I wouldn’t trade for the opportunity that I had to do litigation work at a firm like that. It was a great litigation’s job and a renowned litigation-training program. I got the benefit of going through that. I do give Fulbright a lot of credit for giving me that experience and letting me have a hand in an appellate matter.
I hear your point about how 150 lawyers are not necessarily what a lot of folks would consider to be a large firm. At a large firm, those appellate jobs are becoming a rare thing because clients I assume are not so gung ho on having a first-year associate take the lead on handling an appeal, especially if it’s a large corporation client with a lot at stake. Reagan, I know you do a lot of that bet the company stuff like high-value dollar cases. What’s been your experience in any of your practice settings? You’ve been in the position of bringing up young appellate lawyers. What advice would you give to someone who’s coming out of maybe a bit of law school or judicial clerkship who wants to get into appellate practice?
A lot of people think they want to do appellate practice, especially if they come from a clerkship because that’s what they’ve been doing and they’ve been in law school doing research and writing. They go to a judge, and it’s an impressive thing. They see arguments and things like that. They know and they are comfortable in knowing how to do that. I encourage people to spend time doing trial work and litigation work before they make a final commitment to appellate, for the same reasons that Jody is saying.
There are certainly some fine appellate lawyers in Texas and anywhere else who have never tried a case. I understand that but if you have been in the trenches, you have a better appreciation for what the important things are. You have a different level of perfection because perfection can never be achieved in the trial court. It’s important to see both. Sometimes people will do the trial work and they’ll say, “I’ve decided that’s what I want to do instead of the appellant.” Don’t cabin yourself in the beginning.
At a big firm, you have to be patient. I wanted to do tort work and they put me on a commercial team. That was fine, I did that for a while and I’ve enjoyed that. Eventually, I got on the tort team. In Fulbright, we had teams. I was able to handle a few appeals of my own. When you demonstrate that you can write and research well and you can demonstrate that emotion practice and summary judgment, briefing, and other things, people will notice that.
They may decide that you would fit in as an appellate lawyer, but you have to be patient about it. Also, take advantage of all the different opportunities in the big firm of seeing different practices in different experiences. That’s one of the big advantages of a big firm as opposed to coming into a small boutique where that’s all you’re going to be doing is the appellate work or the trial work for that matter. Take advantage of the opportunities and not to cabin yourself at the beginning of your practice that you’re going to be doing for a long time. See some different aspects of the practice.
In terms of how to develop into an appellate lawyer, writing is the most important thing that there is. How to express yourself in a way that is clear and gets the point across. That’s the most important thing in developing the skill to be an appellate lawyer. It’s nice to argue where it’s always fun to argue, but it’s always a briefing unless you concede something on appeal that dooms your case. Seldom do you win or lose the argument, but it’s a lot of fun.
Todd, one other thing that occurred while Reagan was talking, if you feel you’re not getting a shot at appellate work, Texas has a good appellate pro bono program. Consider that because maybe your local appellate court has cases, or it may be that a court somewhere else in the state has it. The great thing is there are a lot of resources, particularly now with Zoom and everything to be able to handle an appellate case from wherever. Think about picking one of those up if there’s not a mentor in your firm or practice.
They can help you find one through the bar that will sit on your shoulder and help you if you need it. Think about taking those because it’s a great way, number one, to get the experience, and number two, several courts I know will guarantee you an oral argument if you’re taking a pro bono case, if that’s what you want. Consider that. I wouldn’t do it your first year of practice but if you’re a few years in and looking to try it, that’s a good way to get some experience.
We always volunteered for pro bono criminal cases and most of them didn’t get argued, but a couple of them did and a couple of them made some good law. It was exciting to see who handled it.
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One thing that came to me while Reagan was talking was that just because you’ve decided you want to be a trial lawyer or an appellate lawyer, I’m thinking about it more from the appellate lawyer side, doesn’t mean you won’t be doing one or the other during your career. Reagan, you’re a prime example of someone whose work ebbed and flowed in different directions throughout their career. You’ve expressed a preference for the appellate side of things but you’re one of those rare birds who is a skilled trial lawyer as well.
To some degree, this is maybe more so the case in a smaller either boutique or certainly a solo setting, but you may need to adjust your skills according to the work that’s put in front of you. Sometimes you’ve got to handle something for a client. It’s not necessarily outside your wheelhouse if you’ve got the skills to do it but you may be led to do more litigation, trial work, or more appellate work, depending on what the client’s needs are, especially if you’ve got that relationship and you’re a good example of that.
I remember when I first moved into appellate practice, people said, “He’s a trial lawyer. He doesn’t do appellate work.” After doing appellate work for quite a while, I started doing some trial work again, and they said, “He’s an appellate lawyer. He doesn’t do trial work.” You have to be a little patient. It’s important when I switched into appellate full-time, I made sure that with the bigger appellate seminars, we have such great seminars in Texas, I would go to both of them, the State Bar and the UT main seminars. I’d get involved and get around people who are doing appellate work and find out what’s going on. That’s one of the big problems I see in all the CLE that’s being done now and even before COVID, people doing everything online and looking at the videos. You learn so much by going there, talking to people, and making a presence there. If you’re interested in appellate, go to the bigger appellate seminars, learn things, talk to people. That’s one way to get involved in the appellate practice.
One thing that I thought we might talk about is what happens when you change your practice settings. Reagan, you’ve moved from a big firm to a boutique. I’ve moved around from a big firm to solo, to a boutique to solo, and how that affects your workload and the way that you approach your cases. As far as the solo side of things, you could offer an alternative to someone who’s in a larger firm. If appellate work is what you want to do and you’re not getting the opportunities that you think you should, or that you want, you’re well enough qualified, and you’ve got a decent amount of experience to go out and market yourself as an appellate lawyer, you can do what I did and hang your shingle.
Not everyone has the stomach for that, especially in the market nowadays. I’ll be the first to say that it’s hard work to get if you aren’t already fairly established as someone who does that work. There might be niches that you could build. If you were doing a decent amount of the plaintiff’s work and you had some good relationships with the plaintiff’s bar, you might be able to fill a role there but there are consequences that come along with that, which is mostly along the lines of how you get paid. Reagan, could you tell much of a difference in your moving between large and boutique firms about how those firms approached appellate practice?
How they approached appellate practice, I didn’t see a lot of difference there. In a large firm, naturally, you get more work from inside the firm because there’s a lot going on, a lot of things for cases that are tried or things that are handled. You have mandamus or you have sanctions, hearings, and things like that. There’s a lot going on. It also depends on the firm you’re with. A lot of them nowadays have the appellate lawyer going along with the trial lawyers to the trial to help out. In terms of overall practice, I remember going to Yetter Coleman’s Austin office and realizing there wasn’t a library and that was a big shock to me. I had to learn a little bit more about how to get resources without all the books around me. Now, people probably don’t go to libraries even if they’re there.
There are a lot of changes in how we practice because of the technology, which helps smaller firms, solos, and boutiques more. You don’t need to have all the infrastructure, if that’s the right word, to practice. Todd, knowing a fair number of appellate lawyers over the country, I would say there’s a lot more solo appellate practice in other states than there is in Texas. You see a lot of solo appellate practitioners in other states. One reason is because they don’t have conflicts at all in solo practice, but you see a lot of solo practitioners in other states. Texas has been a little bit different in the way the big firms have at least previously emphasized the appellate practice, along with their trial practice.
That’s interesting to hear. It’s possible to make a good living as a solo appellate lawyer once you get yourself established. You’re exactly right. For the longest time, I pretty much kept my conflicts in my head, but so much time has gone by, I can’t rely on that anymore. To your point about resources captures this issue, which is in a large firm, typically, you’re going to have an abundance and almost an embarrassment of riches, resource-wise. As you scale down smaller in size, that’s going to necessarily decrease because overhead items are not something you’re going to be able to justify, but you’re also correct, and this is something I’ve emphasized when I want to talk on different topics.
For the legal text that’s available out there now, you don’t need a library. I can practice with my laptop and maybe a printer if I’m going to print something out, but maybe not. The most important thing in my practice, besides a laptop, is a fast internet connection. In my Westlaw subscription, I have all the tools I need. I can go on the road for a year. As long as the work was there, I could get it done. Of course, that’s the tricky part, is keeping the pipeline full.
I often say, a lot of the time, we have too much work to do, so we have anxiety about getting it done. When we don’t have enough work, we have anxiety about where the work is coming from. The only constant is anxiety.
Some days, I do miss the days at the big firm where I could show up to work and have work to do, but you reach a certain point in your career and more is expected of you.
Todd, let me ask you a question if I could. In the solo practice, one of the things, even the boutique practice, is you have a lot of people you can talk to about things. We can’t go down the hall, which is a problem with COVID, but you have people you can bounce things off of and talk to you. I usually hand appeals to one other person. We don’t put a whole bunch of people on appeal because I don’t think you need that. You had years in probate where you had a lot of camaraderie with other lawyers and talked about things. How do you do that in the solo practice?
You mentioned COVID. I would sublease an office from another law firm and at least it gave me some socialization. I didn’t stay in my office and work all the time or work from home. That was good, but of course, I couldn’t talk through details of my cases with lawyers who aren’t in the same firm as me. It is a challenge. You have to develop a comfort level with your own ability because you don’t have that ability to go and kick ideas around. That’s certainly something that is a common issue with solos.
You might speak in generalities or go into one of the lawyer Facebook groups and give a hypothetical. Appellant Twitter is another good resource, but you have to be cautious about revealing confidences and revealing strategy. It does make a solo practice a little lonelier because you can kick ideas around with your trial lawyer. It’s also fairly common though that your trial lawyer may disagree with you. That happens across practice settings. It doesn’t matter what setting you’re in.
Whether you’re dealing with a trial lawyer as a sole practitioner or you’re dealing with a probate lawyer or client and working in a large firm or a boutique, part of your job is to advocate your conclusion. You’re doing the same basic task regardless of which setting that you’re in. You have a client in every setting and who that client is varies a little. It is an issue and I won’t deny that. If you have enough competence to be out on your own until sure of your ability, it helps.
Most of my relationships are with a trial lawyer. It helps to have good relationships with the trial lawyers and be able to explain because all that does is it reinforces my confidence and my own thinking on a case, for example, or research. That is something that is definitely an advantage in another firm where you’re practicing among like-minded people who totally understand what it is you’re doing. Maybe even, as you point out, Reagan, working with you on the file. That’s an advantage to being able to kick those kinds of issues around in non-COVID times when you’re down the hall.
Some of what I was saying gets into the question, among different practice settings, where the work comes from. That’s ultimately the issue, whether you’re a solo or in a boutique, or in a large firm. You don’t want to have that anxiety of not having work to do. We might talk a little bit about those various settings where we’re coming from. I know there’s no real generalization because I’m sure it comes from a lot of different forces. I can speak to my own experience, but for folks that are interested in getting into either a boutique or more of an established firm setting, are there any general observations that either one of you can offer on that?
I feel like our little appellate group within a larger firm is a little bit more appellate boutique-like. The reason I say that is most of our business on appeals comes from outside the firm, which is not to say that we don’t do appeals for people inside the firm. The majority of cases I work on come to us not necessarily as the firm that tried the case, and sometimes, not even the firm that handles the intermediate Court of Appeals proceeding. It’s a lot of that. As a generalization, I can say this about civil appellate practice. Unless you have a large client, you don’t necessarily get a lot of repeat clients, or you do but maybe it’s a few years in between.
We have some institutional clients that give us repeat appellate business that are larger companies, corporations that have a lot more litigation. Much of our work at our firm, and it’s the same for you all, come from referrals for trial lawyers because they’re the ones that you get the relationship with and they’re the ones that try a lot of cases. They may have a client that has an appeal, and it may be the only appeal that client ever has, or maybe once every 5 to 10 years, that client has an appeal.
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I’m lucky with the size of our firm that we do have some flexibility on rates, that maybe the big giant firms don’t have. We can do work for the larger institutional clients, but at the same time, I do a fair amount of work for some individuals, some smaller closely-held businesses. We do some insurance work too. It’s nice to have that flexibility because you don’t get pigeonholed on a certain type of case or client, which has been interesting.
Business development is difficult for appellate lawyers. You can’t just do a cold call and go, “Have you got good appeals lately?” They always have disputes and issues, need to send out a demand letter, need to respond to a demand letter, need to evaluate whether we have a claim here or not, or whether the other party has a claim. Those things come up almost every day for some companies, but appeals are usually after you have a trial, which doesn’t happen as often as it used to be, as it used to occur, and then they have a bad result and are looking for somebody to help them.
Part of what you said, Jody, is even trial lawyers who try varied cases, you lose sometimes. When you lose, there’s a tendency for the client to go to a different firm for the appeal or at least to affiliate another firm into the appeals. That may be one reason why in some situations, you get a lot of referrals outside the firm. You have to wait for something to happen. They have an appeal come up, and then they start looking for appellate lawyers. I agree with you. It is important to have relationships with trial lawyers. We can get a little insular as appellate lawyers. We can just talk to ourselves at our own seminars and feel like we know everything.
We can talk about Oxford commas and things that are interesting to us and have no importance to other people. If you can speak at a trial lawyer event, CLE, that’s more important because people say, “That lawyer had some interesting things to say.” Sometimes, you’ll get a call, as I did from a lawyer out in West Texas. He had a question. I never get anything from him, but who knows? I spent some time answering his question and talking to him about the problem. Someday, it may turn out to be something that he gets involved in. He says, “I recommend that you use this lawyer for the appeal.”
How you interact with trial lawyers is extremely important because you can tend to say, “You didn’t do this right.” You’ve got to be careful with that because they are certainly not going to recommend you again if you are highly critical of what they did at a trial practice. You have to be honest with the client about what’s going on. If there’s a serious waiver issue, you’ve got to talk about it but you don’t want to jump the gun and want to necessarily say, “This could have been done differently,” or “It should have been done this way.” It’s always hard to tell, when it’s a judgment call, what the right answer is in a trial. Sometimes, judgment calls that were bad turned out good, and then made good judgment calls, and it turned out bad. You never know what’s going to happen in the minds of twelve jurors.
You talk about CLE talks. You’re right. We do tend to talk amongst ourselves a lot as appellate lawyers, but the nugget of wisdom in what you were commenting on there, Reagan, was it’s a good idea to go where the trial lawyers are, and that’s something that is challenging to do. If you’re a younger lawyer, how do you do that? How do you go about doing that? I was always encouraged to get on the speaking and writing circuit as a way to get my name out there because you have to be exposed to the trial lawyers. They have to know who you are and that you’re competent at what you do before they’re going to be comfortable bringing you into a case.
It does help if you’re in a firm with a good reputation. That makes a big difference. We’re talking about developing work from outside of the firm, and inside the firm is the same thing but you might get trained up a little bit more within a firm. They may be trying to channel a certain work to you as a younger lawyer. One of the hardest parts is when you’re getting started and established, getting out there, getting your name out there, and making known what it is you do and how you can help. That’s the best piece of advice. Make those friendships with trial lawyers because for a lot of clients, even institutional clients, appeals may be a one-time thing for them.
If you’re friends with the trial lawyer, they’re the ones here in the courtroom trying cases and may need help on their summary judgment motions. The best is your clients. They know that you may be in a position to pull their feet out of the fire and know that they might not be the best person to deal with an appeal, or maybe they know that they don’t have objectivity. That’s a little rarer because you hear all the time, “I’ve tried the case. I should be the one to handle the appeal. I know the facts better than anyone else.” My typical response to that is, “The facts are not the most important thing in an appeal.” It’s all good advice.
I know when I was in Illinois trying cases and my charge was to try cases, not settle them, and then we’re going to try to change the law on appeal. That was our strategy. I was the appellate lawyer as well. When I go out of state, I always make sure I have some appellate lawyer in the jurisdiction who’s helping me because you can never know all the rules, even though I’m licensed in Illinois. I would get feedback from him.
As a trial lawyer, you know the case from the inside out. The appellate court sees it from the outside in. That’s the way an appellate looks at it. It’s hard to change that perspective when you’ve tried the case because you remember all these things that happened and how they happened. They may not make one bit of difference to have what happens on the appeal, so you lose some objectivity. You also assume things that you know well, that may not be clear to the appellate court. You have to watch that.
One other aspect and this crosses over across different practice settings certainly, is how to work with clients, how to deal with clients, and different client expectations. My recollection as a young lawyer in a large law firm, Reagan, was the client didn’t know who I was early on, especially on those big pharmaceutical cases that we were working on. That changed some over time as you grew up in a law firm. Of course, in a solo setting, it’s a little different. One of the struggles of a solo or small firm lawyer is being able to detach yourself from being the client’s best friend, but you can get your work done.
There are probably not a lot of generalities, general observations that we can make about client relationships, other than maybe the young lawyers, I would probably advise them coming up in a firm to be patient. A lot of young lawyers crave that client contact. They crave real responsibility on a case or going to court. In a mid-sized or larger firm setting, so often what’s at stake is so much money in civil cases. The client most frequently is going to want to work with someone who has got some level of experience and seniority in the firm. It is a challenge, I would say. Chime in if you disagree.
It is a challenge for someone trying to break in to get a lot of client contact in those settings. When you get to a practice setting like mine, as I say, you sometimes have too much client contact. It depends on the client. Some clients want to just check in from time to time and of course, another aspect of our practices is that we go long periods of time without anything happening. If you’ve got a high maintenance client like that, it’s not a bad thing to be one step from it. What do you all have to say about client relationships?
You’re right. Everyone is a little bit different. For the reasons that Reagan talked about and I mentioned, a lot of times on appeals, if you’re young, client contact is not the most important thing to build in your practice. The most important thing is the skillset. You’ve got to know how to do it and be good at it to be marketable. The second thing is the client, and that is who your duty is to, but so often, the relationship that brings about the business is the trial lawyer. If you don’t get to spend as much time interacting with a client as a young lawyer as you want to, don’t fret about it because that’s not someone that is going to be a steady stream of appellate business moving forward.
Create the right expectations. Be clear up front that most appeals aren’t successful.
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Getting to know as a young lawyer the people that you work with, particularly if you’re in a large firm setting, and forming relationships with the partners and the senior associates that you work with, letting them know your abilities and the things you’re good at. Inevitably, you’re going to move up the ladder and the rope on that and you’re going to get more contact and responsibility because they’re going to trust you to represent them and represent the firm in those scenarios. That’s going to increase. At least, that’s my perspective on it.
It’s important to let the client know what is going on and what to expect. I’m sure both of you had the same thing. I have a letter that tells exactly how things work in the appellate process, what the steps are, how long it usually takes and explains the lengthy petition for the review process, the conveyor belt, and all that stuff. It’s important for them to know how it all works because they don’t always know. One thing is also to create the right expectations. You’ve got to be clear up front that most appeals don’t win. If you’re the appellate, you’re working against several things that are against you, the standard review, primarily the reversal error concept, you try to explain that.
A lot of times, people don’t understand that. I have clients who are into big companies and individuals, even in our practice, and it’s a different communication to them. Some people from the big companies understand and individuals don’t understand why you can’t put in more facts in the Texas Supreme Court to explain why you shouldn’t be held accountable. You’ve got to say, “The time for that has passed. We cannot call another witness at this point.” Be patient about that. You also have to be sensitive in any setting. Who is the lead in things? You don’t want people to get the idea that you are trying to force yourself into a lead position in a case.
If you’ve got a client relationship between somebody else that’s on the appeal, then that needs to be preserved and that’s an important thing. I’ve got a case that the trial order has been extremely successful so far, it’s going to go up on appeal based upon what we did. That’s great. I’ll help out, but I’ve made it clear to him from the beginning that you’re going to be the lead on this. I’m going to help out and I’ll give you suggestions.
You always have to figure out what you’re supposed to do, what the client wants you to do, and what the trial lawyer or the other appellate lawyers are comfortable with you doing. That’s always a delicate dance to figure that out, and that’s important because otherwise, you can create some tension that’s not helpful. If you don’t communicate well with a client and give them the right expectations, then that can be a problem later on.
Large firms are good about messaging, “Here’s what we have to do to communicate with clients about expectations,” and all that. Those who’ve come up and are going out early into a solo setting haven’t necessarily been indoctrinated that way. That’s a great point. One of the most important things that you do as an appellate lawyer, regardless of your practice setting, is to condition your client and set their expectations.
I’ll advise my fellow solo small firmers, “If you’re not doing that, you need to because you’re setting yourself up for big problems later on down the road if you don’t.” Especially if you’re not necessarily in agreement with what the trial lawyer is saying to the client about their chances on appeal. Sometimes, you have to come in. I don’t know the original source of this saying, Reagan, but maybe you do. I’ve said it before, “Sometimes, the appellate lawyer’s job is to come in and shoot the wounded.” That means giving realistic advice, even when it’s hard. If you’ve got maybe a waiver issue, those are the hardest conversations.
Reagan, I’m grateful to you for being willing to come on the show and offer up some of your wisdom on your many years of practice in different practice settings. Thank you.
Sometimes, the appellate lawyer’s job is to come in and shoot the wounded.
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I’ve enjoyed the conversation. Thanks a lot for having me.
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About Reagan Simpson
Reagan’s practice focuses on complex commercial litigation and appeals in the areas of tort, personal injury, and commercial torts. He is a Fellow of both the American College of Trial Lawyers and the American Academy of Appellate Lawyers, a distinction that has been obtained by only a small number of practicing lawyers in the United States. Reagan is also an Advocate-level member of the American Board of Trial Advocates, and a member of the American Law Institute.
Reagan was honored with the 2020 Chief Justice Jack Pope Professionalism Award by the Texas Center for Legal Ethics and selected by the Texas Bar Foundation for the 2020 Gregory S. Coleman Outstanding Appellate Lawyer Award in recognition of his 43 years of commitment to excellence, mentorship, and professionalism. The awards, along with many years of recognition by Chambers and Partners, Best Lawyers in America, and Texas Super Lawyers, reflect his standing as one of the State’s and nation’s premier appellate practitioners.
Reagan is admitted to practice in all state courts in Texas, all state courts in Illinois, the United States Supreme Court, United States Courts of Appeals for the Fifth and Eleventh Circuits, and the United States District Courts for the Southern, Northern, Western, and Eastern Districts of Texas, Central District of Illinois, and the Northern District of Florida.
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