Steve Emmert and I are both fans of a New York Times Opinion column by two authors who write a back-and-forth exchange about various topics. When I asked him to be a guinea pig for a lawyer equivalent, he was a good sport and agreed. What follows is a snippet of our conversation (edited slightly for clarity): 

Rachel: How do you avoid writer’s block with your blog? I find it hard to lean into the creative side at times!

Steve: It can be a challenge on occasion. I like to add some new content every week or so, because going several weeks without a change in the home page makes it look like you’ve got a dormant blog, and I eagerly want to avoid that perception. On weeks when The Robes give me one or more new opinions, it’s easy to come up with content, of course.

Rachel: Sometimes the court blesses us (or curses us…) with interesting opinions. But what about when the well runs dry?

Steve: I pay attention. Appellate stuff is happening all the time, and I can usually find a couple of interesting tidbits, whether they’re here or across the Potomac. Upcoming appellate CLEs are usually worth publicizing. String a few of those items together and you’ve got a newsworthy post. I also get a lot of questions about appellate practice and procedure, and I can often turn one of those into a useful essay that will help plenty of practitioners.

What I want to know is what it’s like to step out of the public sector and just hang out a shingle. I never had the guts to do that!

Rachel: Steve, I always appreciate your practical posts—I’ve been a beneficiary myself!

As for the new firm, I feel so genuinely lucky to be doing this work. It is kind of you to say it takes guts—I would have described it as having a touch of crazy! All kidding aside, I have two children and I wanted to practice what I preach to them about not letting fear of failure stop you from trying. I have been doing appeals for years, but switching to the private side was going to be entirely new. I was anxious about learning the business element, but in the end, I’m viewing it as a new challenge. And we appellate lawyers love a challenge.

Have you always loved appeals? Tell us more about how you got your own start.

Steve: Desperation; sheer desperation. I was hired at this firm out of the public sector to serve as a lead trial lawyer, something I had done a lot in City Hall. After three or four years of trying cases, I was so miserable, I just had to do something. My occasional appeals were always fun, so I began to figure out how to create an appellate practice on a full-time basis.

I had no “stencil” for that; the only full-time appellate lawyer in Virginia back then was the Solicitor General. It took about a year to brainstorm and plan everything. But it succeeded beyond my expectations.

But back to you: You’re right that it takes guts to make this leap. How long did you ponder it before you decided to launch?

Rachel: I was so fortunate to have been able to get advice from those of you who paved this path forward for an appeals-only private practice. Cheers to your great idea (side note: it is nearing 5 o’clock as of the time of this writing).

I have always loved appeals, and was fortunate to have gotten great experience in the public sector. There are many wonderful parts to being a government attorney (the dedication to the public interest, wonderful colleagues, benefits!), but there are some downsides. For years, I had thought “if only…” but I started seriously considering this venture while on maternity leave, listening to oral arguments. In total it took me nearly a year to research and plan before I opened the virtual doors to my appellate firm.

That is perhaps the only silver lining of the Covid era: remote work! Are you an office-only attorney or have you embraced working from home?

Steve: We’re dinosaurs here; our doors never closed in the pandemic. I mean not even for a single day. Now, I was willing to work from home a tad more often. An appellate practice really can exist on a mountaintop, as long as you have electricity, a phone line, and an internet connection. I will admit to occasional daydreaming over the years about setting up shop in Burke’s Garden, one of the most beautiful unspoiled places in Virginia.

Perhaps you have a take on a problem that has vexed me for some time: the lack of racial diversity in the Virginia appellate bar. Diversity by sex simply isn’t an issue anymore; we’ve had tons of outstanding female appellate advocates for years now. But racial minorities just don’t seem to be interested in what we do. You can count them on one hand and have fingers left over. Any ideas about that?

Rachel: Oh, boy. Might as well solve global warming and throw in world peace while we are at it (ha!). I don’t want to speak from anyone else’s perspective, but I can say that I believe we can do more to make appeals inclusive. Appellate law, rightly or wrongly, has the reputation of being elitist. But I also think we appellate lawyers don’t want that to be the case!

We need to be accessible: we want our trial lawyers to feel that they can pick up the phone and call us anytime. I personally want to do more to encourage young lawyers to take an interest (law students, brand-new attorneys) and show them a path forward, and perhaps that’s one way to help address some of the underlying inequities in our profession.

What advice do you have for young lawyers who are interested in appellate work?

Steve: That’s about a ninety-minute conversation, Rachel …

Rachel: Fair enough! For the law students reading this, where should they start?

Steve: The Number One, not-even-close, most important skill for an appellate advocate is the ability to write well. No; that understates it. You must be an excellent writer to succeed in the appellate guild.

When people think of appellate advocacy, they envision a lawyer standing at a lectern, holding a panel of Robes enrapt. That’s a tiny part of the process; appellate jurists tell me (on average) that oral argument changes their minds only about 15% of the time. That means that 85% of appellate persuasion is in the briefs. If your brief gets the panel leaning in your favor, the Bad Guys will have a devil of a time trying to turn that around in oral argument.

And for those folks reading this who are thinking to themselves, I’m already a great writer, wake up! You’re not as good as you think. You can and should work consistently to improve your skills.

Rachel: That is so true. I have skilled lawyers on the other side in a few of my cases right now, and I plan to use things I’ve gleaned from them in future briefs. Author’s note: if any of my opposing counsel are reading this right now, I am definitely not referring to you!

If you don’t like to write, this is NOT the area of law for you. To that end, the best way to become a better writer is to read good writing. I read all. the. time. I read fiction, non-fiction, newspaper articles, etc. While good legal writing is a different type of animal than your average novel, there are things to learn from all kinds of authors.

Any favorite reading recommendations?

Steve: I agree that reading good writing is an effective way to improve your own. The disappearance of copy editors from most newspapers hurt the quality of those papers’ stories and even editorials.

The Wall Street Journal, The New York Times, and The Atlantic consistently offer high-quality writing. Those are great places to start.

I also recommend a simple addition to the writer’s daily life: Subscribe to Bryan Garner’s Usage Tip of the Day from LawProse. It’s free. You get a short e-mail every business day with an entry from Garner’s Modern English Usage. Over the course of a year, at perhaps 90 seconds a day, you’ll get 250 easy-to-digest tidbits. Your writing is bound to improve, incrementally at first and more noticeably over time.

New topic: Tell me a fun (or funny) war story from something that you’ve seen in an appellate courtroom.

Rachel: Buckle your seatbelts and sit back for a “what not to do” story.

In one of my first appellate cases, I met my opposing counsel in person for the first time immediately before oral argument. When our case was called, this attorney went to the lectern and pulled out three copies of a case that neither of us had ever cited. She went up to each judge and passed them her case. And if you’re doing the math on copies—Nope, I did not get one.

This attorney then accused me of misstating the law, according to the opinion she had produced for the first time that day. The panel was as shocked as I was. The judges told me not to worry about responding then, and gave me the opportunity to submit a letter afterwards so that I might have a chance to review the case.

Lo and behold, the case opposing counsel brought to oral argument had been overturned by the Supreme Court. You can’t make this stuff up.

Your turn! And then I will let you call it quits. It’s been too much fun.

Steve: Karma strikes again! It serves her right for trying to ambush you. This is a good reminder that when you plan to cite a new (or newly discovered) decision in oral argument, you need to write to the appellate clerk to notify the court about it, and copy your adversary. Your opponent that day undoubtedly sustained a lingering loss of personal credibility.

Long, long ago – probably in the early 1990s – I was arguing a petition to a Supreme Court writ panel. As I stood at the lectern, mid-sentence, the ceiling light bulb directly over the lectern went out with a soft “piff!” I could still see from the other lighting in the room, but it was noticeably darker where I stood. Somehow I had the presence of mind to stop talking, look up at the ceiling, and then say to the justices, “But maybe I’m wrong …”

 *Rachel’s/Editor’s Note: I removed the portion where I was forced to admit that I ultimately lost the case to the attorney who ambushed me.

Thanks for reading this first installment of Courtroom Conversations. If you’d like to participate, please contact me at rachelyates@yatesappeals.com, or follow along at YatesAppeals.com.