The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Jason Zarrow is an appellate lawyer whose practice is devoted to creating and executing legal strategy for bet-the-company litigation at both the trial and appellate levels. Jason’s expertise spans multiple industries, including transportation, pharmaceuticals and medical devices, consumer products, healthcare, insurance, and financial services. He is particularly well-versed in the law of federal preemption, having filed numerous briefs in trial and appellate courts on (among other things) Airline Deregulation Act preemption and drug/device preemption. Jason also has a mastery of complex procedure, including substantial experience litigating class actions and crafting legal strategies designed to defeat or limit class certification.
Although much of Jason’s practice is dedicated to bringing an appellate lawyer’s eye to trial work, he is also an experienced appellate advocate, both defending favorable trial judgments and overturning unfavorable ones. He has authored numerous merits, amicus, and certiorari stage briefs in the U.S. Supreme Court and even more in state and federal courts of appeal. He has also argued in trial and appellate courts across the country, delivering crucial victories for his clients—from defending defense verdicts in hostile fora to overturning criminal convictions carrying mandatory prison time.
Describe your practice area and what it entails.
As an appellate lawyer, my practice consists mainly of legal research and writing, both at the appellate level and for dispositive and class-cert briefing in trial courts. I also draft jury instructions and verdict forms when serving as embedded appellate counsel on trial teams. Substantively, my work varies widely—from arbitration disputes and consumer class actions to labor and employment cases and pharmaceutical and medical device litigation.
What types of clients do you represent?
My clients run the gamut. I represent major airlines, life sciences companies, consumer products companies, and insurance companies. I also represent individuals, typically in criminal cases.
What types of cases/deals do you work on?
As a generalist, I work on all sorts of cases. Many of my cases for airline clients involve either consumer disputes or labor and employment disputes. My cases for life sciences companies often involve the intersection of state tort law and federal preemption. I frequently litigate class certification, both in the district courts and on appeal. I have handled several arbitration appeals in the recent past.
Perhaps most rewarding is my work in criminal cases. In Dubin v. United States, for example, we convinced the U.S. Supreme Court to adopt a narrow construction of the federal aggravated identity theft statute. The statute was a powerful tool for prosecutors because it carries a mandatory two-year sentence that must run consecutive to the sentence for the underlying crime. Systemically, the decision is important because it narrows the type of conduct the government can charge and prosecute as aggravated identity theft. On an individual level, I was thrilled that our client was no longer required to serve a two-year sentence.
How did you choose this practice area?
I enjoyed law school and clerking, and an appellate practice is the most like that, consisting mainly of legal research and writing. I also enjoy the diversity of issues I confront as an appellate lawyer. I tend to do more trial-level work than many appellate lawyers because I like the challenge of coming up with the arguments in the first instance rather than being hemmed in on appeal by the arguments presented previously.
What is a “typical” day like and/or what are some common tasks you perform?
Writing, writing, writing. An appellate lawyer’s main job is writing briefs, and that is typically what I do.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
You need to be a talented writer, not necessarily in terms of prose, but definitely in terms of clarity and organization. As for experience, it is extremely helpful to clerk.
What is the most challenging aspect of practicing in this area?
Having to learn new substantive areas of law, which makes it interesting and also challenging. For example, a few years ago I worked on a bankruptcy appeal for an electric utility. Many people specialize in bankruptcy law. I do not, so I had to learn all about bankruptcy law for the appeal. I recently handled a patent appeal in the Federal Circuit. Same story. I enjoy this practice because I am not litigating the same issues over and over, but that is also what makes it challenging.
What do you like best about your practice area?
The diversity of issues. Because of the wide variety of cases, the job doesn’t get stale.
What misconceptions exist about your practice area?
That appellate lawyers only do appeals. Almost every appellate lawyer I know works at the trial level too.
What is unique about your practice area at your firm?
How early in the case we incorporate our appellate lawyers. For us, appellate lawyers don’t just parachute in at the end once the court has entered judgment. We often have appellate lawyers working hand in hand with the trial team to ensure the record is developed to set up a future appeal, whether as an appellant or appellee.