The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Sally Pei's practice spans a broad range of subject areas, with a particular focus on transnational disputes and foreign sovereign immunity. Sally has been the principal brief writer in numerous federal and state court cases, including before the U.S. Supreme Court. She has argued before the Sixth and Ninth Circuits. In addition to her U.S. litigation practice, Sally advises clients in international arbitration proceedings and maintains an active pro bono practice, with an emphasis on matters relating to immigrants' rights. Sally was a law clerk to the Honorable William A. Fletcher of the United States Court of Appeals for the Ninth Circuit and a Legal Adviser to Judge O. Thomas Johnson at the Iran-United States Claims Tribunal.
Andrew Tutt focuses on Supreme Court, appellate, and complex litigation. He has won cases in federal courts across a broad cross-section of subjects, with particular experience in administrative law, intellectual property law, and civil rights law. He has argued and won three cases in the United States Supreme Court, led appeals in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and DC Circuits, and led the strategy, briefing, and argument in complex cases in federal district courts nationwide. Andrew served as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice, as a law clerk for Judge Cornelia T.L. Pillard of the U.S. Court of Appeals for the DC Circuit, and as an associate at a large international Washington, DC law firm. He is the author of numerous law review articles on constitutional and administrative law. His seminal article, “An FDA for Algorithms,” remains a widely-cited contribution to the still-developing law of algorithmic regulation.
Describe your practice area and what it entails.
Sally: Appellate litigation involves advising and representing clients in connection with proceedings in courts of appeals—either challenging or defending a decision made by a lower court. The work of an appellate advocate often begins long before the appeal. Appellate litigators help clients identify, frame, and preserve legal issues early in the life cycle of a case in anticipation of later appellate proceedings.
In addition to strategic thinking, appellate litigation involves digesting and synthesizing complex information and communicating it in a straightforward and concise fashion, both in written briefs and at oral argument. Appellate judges hear cases on an endless variety of matters, and appellate litigators must be able to function as generalists who can present arguments to non-specialist judges in a persuasive way.
Andrew: My practice as an appellate and Supreme Court advocate involves aiding clients in navigating all aspects of the appellate review of lower-court decisions. When cases are still pending in the lower courts, that can involve counseling clients about how best to preserve issues for appellate review or to ensure that issues favorably resolved in the lower court are insulated from later attack on appellate review. When cases reach the appellate courts, my practice involves crafting persuasive legal arguments that help clients win their appeals.
What types of clients do you represent?
Sally: I represent a wide range of clients, including individuals, businesses, and governments.
Andrew: As an appellate lawyer, my clients can be anyone who needs help navigating an appeal. I represent clients across the spectrum, including companies, victims of civil rights abuses, non-profit organizations, criminal defendants, prisoners, and more.
What types of cases/deals do you work on?
Sally: My practice has spanned a broad range of subject areas, but I focus in particular on representing clients in disputes with an international dimension. I frequently represent clients in cross-border civil litigation, including foreign sovereign clients in cases raising questions of foreign sovereign immunity.
Andrew: Many of the cases that I work on, especially those at the Supreme Court, involve nationally important legal issues with important consequences for companies, individuals, and the legal system. A recent case established that Congress has the constitutional authority to override state sovereign immunity to authorize soldiers to bring lawsuits against the states under USERRA. Another established that there is a First Amendment right to film police officers performing their duties in public. Another established a landmark interpretation of the reach of the general federal civil rights cause of action in 42 U.S.C. § 1983.
How did you choose this practice area?
Sally: I have always enjoyed researching, writing, and crafting legal arguments, all of which form the core of an appellate practice. I also was attracted to the generalist nature of appellate practice and the constant intellectual challenge. Each case presents a new issue and fact pattern and new puzzles to think through.
Andrew: I always knew that I wanted to be an appellate lawyer. I enjoyed figuring out how to make compelling legal arguments based on text, precedent, and history more than I liked the drama of trials or the nitty-gritty work of investigations and discovery. Being an appellate lawyer has not disappointed. I still think working on an appeal is the most fun you can have in the law.
What is a typical day like and/or what are some common tasks you perform?
Sally: I spend a lot of time reading, analyzing cases and authorities, and drafting and editing motions and briefs. A typical day also often will include meetings (whether with colleagues at the firm or with the client) to discuss case strategy.
Andrew: More than anything else, I find that it is my job to know the law. I spend a lot of my time researching—reading legal cases, precedents, and other materials that help me to understand the law in a particular area and what arguments are available to make about it. I also spend a lot of my time writing, teaching the law to others, explaining the arguments that are available and unavailable, and ultimately drafting briefs and motions that present those arguments to courts and other tribunals.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Sally: Strong legal research, analytical, and writing skills are extremely important assets for anyone wishing to practice appellate litigation. Clerking, particularly on a court of appeals, is also a very valuable experience. Learning firsthand how judges think about and decide cases, and gaining exposure to a wide range of written and oral advocacy styles, provides an excellent foundation for appellate practitioners.
Andrew: As for specific classes, if you want to go into appellate law, you cannot go wrong paying special attention in classes like civil procedure, federal courts, and statutory interpretation. But the best preparation for appellate law—regardless of the specific classes you take—is to be curious and read a lot. You want to be curious and willing to question why a legal rule is one way and not another, and to always be thinking about what arguments could be made to challenge it.
What are some typical tasks that a junior lawyer would perform in this practice area?
Sally: Junior lawyers in the appellate group at Arnold & Porter are given as much responsibility as they can handle. Typical tasks include conducting legal research; drafting and editing memos, motions, and briefs; and helping colleagues prepare for oral arguments. Junior lawyers at Arnold & Porter are also encouraged to get experience arguing cases themselves. The appellate group is very supportive of associates leading and arguing appeals.
Andrew: Junior lawyers in the appellate practice group are asked to take on large amounts of responsibility and take on tasks very similar to the tasks performed by the most senior lawyers in the practice. Junior lawyers are asked to research legal issues; draft analytical memos; and draft petitions for review, merits briefs, and motions. They are also expected to be able to read and edit the legal writing of others, and to think creatively and devise strategies for winning complex and high-stakes legal cases.
How do you see this practice area evolving in the future?
Andrew: I expect that appellate law will continue to become more data-driven in its approach across every dimension. In the use of legal sources, we will continue to gain greater access to relevant sources like historical documents and relevant precedents. Indeed, with ever more legal reading happening on a computer (rather than a printed sheet of paper), we may increasingly see courts require hyperlinks to sources and record cites in legal filings. With respect to legal decision makers, we will continue to obtain more relevant information that we can use to craft legal arguments that will be persuasive to them. And in the art and craft of legal rhetoric, we will likely continue to benefit from more advanced tools that will aid us in writing clearer, more persuasive briefs and motions.
What are some typical career paths for lawyers in this practice area?
Sally: Many appellate lawyers work in private practice, but there are also excellent opportunities in government (both federal and state). Some appellate lawyers go on to become judges.
Andrew: Appellate lawyers often remain at law firms and become partners who practice in the area of appellate law. Appellate lawyers also frequently become judges on courts of appeals and law professors.
What is your routine for preparing for oral arguments?
Sally: I refamiliarize myself with every page of the briefs and all the evidence in the record. I also compile a list of the hardest questions I expect to receive, and prepare and practice answers to each of them. In this respect, moot arguments are a critical part of the process because they help identify the aspects of the case that are the most difficult or vulnerable.
Andrew: In preparing for an important oral argument, I will often hold multiple moot courts to try to get a sense of what folks think is strong and weak about our cases and to get a sense of the questions that the judges might ask. In Supreme Court cases, I will try to write down, to the word, the answers that I plan to give to the most important questions I expect to get, and have those answers in front of me ready to read at the oral argument (…if not memorized to deliver!). My goal in preparing for a high-stakes argument is to be absolutely confident that everything I say at the argument is something that was thought about beforehand, intentional, and helpful to our case.