I frequently receive calls from law students or lawyers looking to become appellate lawyers. And I find myself having lunch with people and discussing how I started out. What I am writing here is what I typically say on those calls or at those lunches.

I have a background that suited me for appellate practice. Though, at the time, I had no idea that I was preparing myself for appellate practice. I came to college wanting to be a lawyer. Only, as I excelled in college classes, I wanted to become a professor instead. I chose as my major the typical cookie cutter pre-law route of political science. But political science ultimately became a minor. And I double-majored in English and Religion. So, I changed my mind about law school and decided to attend a seminary (my aim was to go from the M.Div. to a Ph.D. program and ultimately become a religion professor). And as seminary neared its completion, I decided to go to law school, which is what I wanted to do when I started college in the first place.

I entered law school three years older than most 1Ls and with a depth of research and writing experience. It never occurred to me that I would do appellate law after law school. In fact, I never even did moot court. I was a mock trial guy. And I was fairly convinced that I would go on to be a criminal trial attorney. And why was that? I wanted to be in the courtroom, and I knew that criminal practice would place me there early and often.

During my 3L year, I came to work for a criminal defense attorney. And on the days I was with him, we’d go from court to court together. His paralegal would lay out his day’s agenda in a little printout atop some gray files. And off we’d go in his little Porsche. As we went from place to place, he’d smoke tiny cigars. Eventually, all of my clothes, papers, and even my apartment came to smell like those tiny cigars. After court, we’d end up at a bar where he and his investigator would down Gin and Tonics. It was like living in a Michael Connelly novel.

After I had been with him a few months, I took a file on a rape case he was defending and prepared it for trial. I spent an entire weekend calling every witness on the State’s witness list, conducting interviews and preparing summaries what their testimony would. I printed these out, and I put them in individual files. Along the way, I found out that the victim had not actually made an outcry to the person the State would call as its outcry witness. They called the victim at trial and she doubled down on her claim that she’s outcried to the person. And the lawyer I worked for spent about 25 minutes of cross-examination really committing her to that story. The outcry witness was then called and she said on the stand what she’d said in my interview. The victim had never made an outcry to her. The jury acquitted in about 15 minutes. What I learned from this was that criminal cases are often won by calling witnesses, listening to them, and preparing detailed reports more so than big television moments. Yes, I was a big part of a trial win, but my contribution to the case felt like a graduate school research project more so than it felt like something from an episode of Law and Order. It was pretty clear that the DA hadn’t interviewed any of the witnesses. She tried the case just from the discovery file. If you outwork your opponent, you will likely beat your opponent. And lawyers don’t really have the time to do what I did in the case. I learned that it is pretty easy to gain the edge in law.

Then something else happened. I learned that the lawyer was doing appellate cases. But he was farming out the appellate work to a former associate of his who had retired to the mountains. The lawyer was handwriting the appellate briefs and mailing them to my boss’s paralegal. And she was typing up the briefs. The writing was pretty terrible, and the lawyer I was working for wasn’t doing very well when it cases to appeals. Shortly afterward, while we were on a tour of Atlanta and as I was buzzed from cigarillo smoke yet again, I asked my boss if I could try my hand at an appellate brief before he sent it out to the mountain man. My boss agreed.

The brief I wrote was on behalf of a guy named Thomas Graham. As I read through the transcript, I noticed something missing. The prosecutor had failed to establish venue in the county where the case was being tried. Back in the early 2000s, there was an absolute loophole in the law. The prosecutor had to ask a witness, “In what county did these events take place?” Only, in this case, the State had failed to check that box. And Mr. Graham had been convicted of murder. I worked hard on that case and ultimately my brief won the day in the Supreme Court of Georgia. And I went on a little streak of wins. I would write these briefs, my boss would review and sign them, and they’d go off to the Court. And we’d win. The law office bought me a laptop of my own. And when I was hanging out in the courtroom with the lawyer, I’d work on cases off in some corner. This was the era just before WiFi was a thing. And I remember having all of the Georgia cases on a set of DVDs. But things got done. When I became tired of working in the office, I’d take the laptop and go someplace else to work. Appellate practice, I was learning, was portable. I do not know ultimately what became of the mountain man. But I know that he was out of the appellate business with this one firm. And I, as a 3L was this little firm’s emerging appellate division. And as our days of touring Atlanta-area courtrooms would wind down, I’d be stuck at some bar. And off to a booth I’d go to work on appellate briefs as I listened to late afternoon bar banter in the background. I was having the most fun of my life. And I soon learned the value of not being stuck off somewhere without your own wheels and without a way to get work done.

After I passed the bar, I stayed on as an associate in the firm. And my first solo break came. A man named Billy Collier hired me to be his appellate lawyer. He was an older man who had gotten into a bar fight in Columbus, Georgia, in a small juke joint called the Pop-A-Top Bar. My client came out of the fight better than his opponent. And he was convicted of aggravated assault and given a lengthy sentence to serve in prison. I recall meeting him at the Jackson, Georgia, Diagnostic Center. He was an elderly gentleman in big heavy cuffs and ankle shackles. And I vowed to myself that I would win his case. And I ultimately did — on prosecutorial misconduct.

It took a while, years even, to consider myself an appellate lawyer. But I think I backed myself into a career for which I was uniquely suited. Had I stayed on the political science track and gone straight to law school, I probably would not have been as ready. But what I found was a way to practice law that was sort of like being a graduate student or college professor. Had I gone on with my Ph.D. Plans, I might be in some cold climate teaching in a community college right now. And my work would be great, but I wouldn’t have overturned criminal convictions, which became sort of a guilty pleasure.

I also became active in GACDL (I’m now the President of it). One night, after a GACDL function, I gave a circuit public defender a lift home. And, over the course of that car ride, I was asked if I’d be interested in taking on their conflict appeals. This conversation led to a steady stream of appointed criminal appellate work. And through this, I started getting more active in the appellate courts. From there, things took off even more.

I still try cases. And when I do, it’s always fun. But appellate law is where it’s at for me. I think these are the lessons from my story.

  • Before you can do appellate law, you should be suited for it. I think years of research and writing helped. Also, I chose majors where I read text after text. If you want to do appellate law, a deep background in reading and writing helps a great deal.
  •  There is some level of serendipity involved in getting started. I landed in a little practice that had a heavy caseload of appellate cases and a need for someone to step up.
  • I had to be willing to do it all fairly cheap. There was no substitute for doing a bunch of appellate cases. And I took all of those cases and worked them hard.
  • If you’re a good writer, a fast reader, and thorough, you will certainly have an unfair advantage over other lawyers. I hate to say this, but good writers are rare in law school and just as rare in the practice of law. Also, most lawyers would rather do anything but write a brief. If you’re willing to work, there are opportunities.
  • You don’t have to be awkward, quirky, or anti-social to be a great appellate lawyer. I am very comfortable in a courtroom, at a party, or in a plea negotiation. But I happen to love appellate law. Emotional/social intelligence is just as important in appellate law as it is in other kinds of litigation. And most appellate lawyers are not at all the stereotype.

And remember that part of my story where I wanted to be a professor?It turns out that I’m doing that now. I teach regularly at a law school in an indigent habeas clinic. And I also teach Georgia Appellate Practice and Procedure. So, I’m now practicing appellate law and teaching!

So, there is my story. I hope that there are some lessons in there that will help an aspiring lawyer who is interested in doing appellate law. Also, if you want to ask me to lunch or call to ask for advice, please fire away! I happen to like lunch and talking about all of these topics.

A new episode of the podcast of the Georgia Association of Criminal Defense Lawyers is out. This one features an interview with Atlanta criminal defense attorney Erin Gerstenzang. Erin and I discuss the basics of marketing for lawyers. We discuss her office in a co-working space at Ponce City Market. And my favorite moment was when Erin and I discuss her decision to give her cell phone number out to clients — the number on her website is her cellphone number. It turns out that this is not a modern millennial thing. Rather, it was a lesson she learned from her father who gave out his home number frequently to clients when Erin was growing up. I have been experimenting with giving my cell phone out to a small sample of clients. And I have been surprised at how well it works. I hope you enjoy the podcast.

We, as a profession, are not doing well. A very large percentage of us are suffering from significant mental health issues. We are one of the top five professions for rates of suicide. And many of us battle significant substance abuse issues. Today, Bob Rubin and I gave one of the most significnt CLE talks I have ever given. And our topic was what lawyers can do to better cope with stress. We were slated to talk about an entirely different talk and made a gametime decision to switch it up. Bob had a Powerpoint from a previous talk on this topic, and I had information because this topic has been of personal interest to me for quite some time. For those who attended today for for everyone else, I want to provide more information and some links.

  • Running. Running has pretty much saved my life. About 3 years ago, I was about as unhealthy has I have ever been. My weight had peaked. My suit buttons had not seen their buttonholes in quite some time. I came home and zoned out. I was irritable and unhappy. On a friend’s recommendation, I downloaded a couch to 5k app for my phone. I did the program. And I ran a 5k. Then I ran another. And I did another. I’ve since run a full marathon and a few half marathons. I am currently getting ready to run another full marathon in Chattanooga in October I owe my health and sanity to running. For me, it has made all the differene.
  • Meditation. Equally important to me has been meditaiton. A year ago, I put the Headspace app on my phone after hearing a TED talk for its creator. This app is absolutely the best. But, in the past few weeks, I’ve noticed a change in my meditation practice. I want more silence and less of a guiding voice. On a friend’s recommenation, I downloaded Enso, a meditation timer. When I spoke with Bob about meditation, he said he considered himself to be an unsuccessful meditator because he can never focuse on the breath and lots of thougths pop up. But I told him what I’ve heard in a few places. If a meditation session produces only a minute of focus, then it was a good session. Noticing all the thoughts is a big part of the value of the exercise. The value in the excercise may be simply noting all the thought in an observational way.
  • Email Practices. I’ve blogged about this topic before. But email will kill you by a thousand cuts if you constantly check it. I don’t. I use two services for email. One is called SaneBox, which clears out a bunch of the clutter before I check it. The other is InBox Pause, which holds email out of my inbox until I schedule it to come in. Right now, email comes in at 4:00 p.m. on Monday through Friday. I process and take my email to zero for about 30 minutes to an hour. After clearing out the email, I return calls. If something important is going on, I will suspend that pratice from time to time (if I’m in a plea negotiation, for instance). This practice is entirely in keeping with a lawyer’s duty to communicate with a client. Our job is to provide the client with the necessary information to make informed decisions, to respond to reasonable requests for information, and to keep the client apprised regarding my strategy on the case. The Bar does not require me to be on 24/7 call, interrupt family time, or to answer messages instantly at all hours. And If I did that, I would not get much case work done. I highly recommend, by the way, Cal Newport’s Deep Work, on this topic.
  • Journaling. This never came up, but I meant to cover it. I spend thirty minutes every day writing whatever comes to mind. Sometimes what I write generates a great idea. But more often than not, the activity clears the cruft out of my mind. The app I use is DayOne. All the posts live in the cloud and sync among my devices. But I’ve also done this activity on a yellow legal pad.

I’ll repeat here what I said today, No client, no judge, opposing counsel, or case is worth my health. And if you make being a great lawyer your second or third priority, you are more to be a great lawyer because you will have the health and heart to reach your professional goals.

IMG_0021I’m off to Baltimore for a Federal sentencing conference. But I’m still looking back to last week’s coaching certification class for my son’s clay shooting team. And I wanted to share another life lesson from that conference. Most sports lessons are life lessons in disguise after all.

A big part of the curriculum dealt with how to correct the athlete’s mistakes while also preserving the athlete’s enjoyment of the sport. We were told to lead our critique by telling the athlete about something he did correctly. Then we discuss some item or items we noticed that needs to be addressed. And we encourage the athlete to keep a written log of observations from practice and competition. According to the research from our manual, we lose about 50% of what we hear if we do not write it down.

The clay shooting community strikes me as a fairly conservative and old-school crowd. So, this was not new-age, millennial froo froo, stuff. However, perhaps unwittingly, we were being taught a fairly “zen” concept. The idea here is that we notice the athlete’s actions and point them out. The actual shot is forgotten, but the observations are what we take away. “Today, I learned that I need to follow through after the shot and that my footwork is good.” We don’t take away from the experience, “I’m the greatest clay shooter ever” or “I really suck at clay shooting.”

There is something in this for the practice of law and for life. What if I kept a little log of what I learned after I file a brief, after an oral argument, or a client consultation? Then I would notice the experience, making habits out of what went well, and correcting for things I could do better.

It might help us to climb down from the negative self talk treadmill. What do I mean by this? When we move beyond the level of noticing behavior to the level of self-criticism, we either over-inflate our value (“I’m a tremendous trial lawyer”) or we short circuit the likelihood of better performance. Better to notice what we are doing, let go of the behavior that misses the mark, embrace right action, and keep up with the lessons along the way.