Appellate Litigation

Describe your practice area and what it entails.

My practice area is extremely diverse, on purpose. I do complex, high-stakes commercial litigation in the IP, energy, technology, and financial sectors and practice in all types of courts—state and federal, trial, and appellate. A unique part of my practice is also “embedded appellate” work, wherein I am part of a trial team but with an eye towards the briefing and appellate preservation issues at play.

What types of clients do you represent?

My clients are also wide-ranging. I do a lot of technology work, but that spans from airlines, energy leaders, social media companies, and leading telecommunications providers to aerospace and others. I also work with everyone from insurance companies to banks and consumer product providers. Every client presents a chance to deeply learn about their business, their industry, and their main legal interests.

What types of cases/deals do you work on?

I tell people that my “specialty” is trying cases and winning appeals. Otherwise, I do many kinds of cases. In particular, I often litigate trade secret and trademark disputes (for both plaintiffs and defendants), complex insurance disputes, false advertising or other class actions, and handle many business torts and breach of contract fights. And of course, I handle these cases at trial as well as on appeal.

How did you choose this practice area?

I’ve always been competitive and was never one to pull back from a fight. But what drew me in is wanting to be an oral advocate. I fell in love with appellate work because it challenges me to analyze complex issues and present our arguments in a way that simplifies, clarifies, and confirms our position. And trial work is similar because, ultimately, my job is to deeply learn the facts and then find a way to tell my client’s story in a way that makes clear that they should prevail.

What is a “typical” day like and/or what are some common activities in your day-to-day work?

I genuinely don’t have a “typical” day, and that’s what I love about it. The early analytical stages of a case differ from the intensive, document-based preparation needed when you are preparing for numerous depositions. The written advocacy really kicks in when you enter hearings and begin important dispositive motion practice. And the storytelling is crafted throughout but culminates with the all-consuming (but amazing) work for trial or oral argument.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

If you want to be a trial lawyer, you need to write and you need to be on your feet. There’s simply no substitute. Take every opportunity to write substantive pieces, learn to write, get feedback on your writing, and try again. And look for any and every opportunity to stand up and advocate: Do it in class, in mock trial, moot court, or local city council meetings—whatever. Ask to take on depositions, attend hearings, and take any role at all in trial. Just start honing your craft.

What do you like best about your practice area?

I love that I am always learning. Every case presents a new industry to understand and a unique area of law that may be complex, unclear, or evolving. And I love being in court. Whether the audience is a panel of judges or a full jury box, there’s nothing like the chance to make your case—live—and being there when your audience “gets it” and your client prevails.

What is unique about your practice area at your firm?

I feel very fortunate that O’Melveny allows me to be a “double major.” I am fully a trial lawyer, who runs complex litigation and shepherds clients from case filings through trial. But I am also fully an appellate lawyer, where I get to author sophisticated briefings and advocate at all levels of state and federal appellate courts. Very few firms are set up in a way that would allow me to excel in both.

What are some typical tasks that a junior lawyer would perform in this practice area?

Junior lawyers are integral members of the team and doing key substantive work. For trial work, that includes claim analysis, case research, witness and deposition preparation, and briefing. Junior lawyers are often covering or even taking depositions as well. For appellate lawyers, I often rely on junior lawyers to craft the outline and then to do an entire draft themselves to start. The process of refining and revising is a team effort, but junior lawyers are key to framing it up. I also really rely on them for case analysis and talking points to prepare for oral argument.

What is your routine for preparing for oral arguments?

It depends on the case. But it always starts with a deep dive into the brief, trying to assess what a “new” reader would wonder based on the papers and trying to tackle that. I want to go in with talking points that emphasize my strong points and frame the case on our turf but then the many topical sound bites on the issues that are most likely to be points of discussion so that I am prepared to be fully responsive no matter which direction the judges wish to take the argument.

Kristin Cope is a skilled trial and appellate lawyer. She combines bold stand-up representation with goal-oriented approaches to litigation to protect and advance her clients’ interests. Kristin’s practice focuses on complex litigation, frequently involving high-stakes business disputes and cutting-edge issues in the intellectual property (IP), energy, technology, and financial sectors, and encompassing federal constitutional law, patent law, insurance law, trademark, and federal preemption. She has briefed and argued complex appellate issues and advised on appellate preservation and strategy issues during trial and has represented clients in state and federal trial courts, various Federal Circuit Courts of Appeals, and the United States Supreme Court. Kristin has substantial experience in disputes regarding trade secrets and other IP, breach of contract, breach of fiduciary duty, business torts, consumer liability, and class action claims. Kristin serves as the Pro Bono Chair of O’Melveny’s Texas offices and maintains an active pro bono practice. She has received awards for outstanding public service and commitment to the community, is proud of the Dallas team for receiving the Dallas Volunteer Attorney Program’s Gold Award for Pro Bono Service, and actively supports the Leukemia and Lymphoma Society and other charitable organizations.

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.

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.