The California Appellate Law Podcast

Five Hard Truths About an Appellate Practice, with Raffi Melkonian

• Tim Kowal & Jeff Lewis • Season 1 • Episode 124

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Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very hard to do.

We discuss his five observations about why a full-time appellate practice is hard:

  1. Breaking in to the practice is very hard.
  2. Don’t expect to get full-time work writing appellate briefs—you’re going to have to mix it up some in the trial court.
  3. Once you’ve done the very hard work modifying expectations and breaking into the practice, get ready: maintaining it full-time is even harder.
  4. Which is why you are going to have to make some trade-offs.
  5. The business of law was not designed with an appellate practice in mind, so doing high-end sophisticated appeals all the time is no one’s idea of a sound business model.

Raffi Melkonian’s biography, LinkedIn profile, and Twitter/X feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Announcer  0:03  
Jeff, welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Koel and Jeff Lewis,

Jeff Lewis  0:17 
welcome everyone. I am Jeff Lewis

Tim Kowal  0:18 
and I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast co host, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice as always. If you find this podcast helpful, please recommend it to a colleague. Yeah,

Jeff Lewis  0:34  
and before we jump into this week's interview, and I'm really fired up about this interview, we want to thank casetext for sponsoring our podcast. Casetext is a legal technology company that's developed AI backed tools to help lawyers practice more efficiently. Since 2013 casetext has relied on by 10,000 firms nationwide, from solo practitioners to am law, 200 firms and in house legal departments. And in March 2023 keystex launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use. Professional use, all warming, teaming, security and privacy. And our listeners enjoy a special discount on case text research@casetext.com slash kelp. That's casetext.com/calp

Tim Kowal  1:14  
all right, Jeff. And today, our guest is Rafi malconian. We want to welcome Rafi to the show. Rafi is in appellate litigator based in Houston, Texas, who in 2009 secured a unanimous nine oh decision at the US Supreme Court in Fort Bend County versus Davis. But more important than that, Rafi is the dean of the hashtag appellate Twitter, a community that engages fellow practitioners and scholars in appellate law and fosters discussions and debates on various legal topics, including how to make a career in appellate law, which we'll be talking with Rafi about today. So Rafi, welcome to the podcast. Thanks for joining us.

Raffi Melkonian  1:49  
Yeah, thanks for inviting me. I'm very happy to be here and to chat with you all now,

Tim Kowal  1:53 
one thing I wanted to ask you about is a little while back, you started your own podcast, the appellate wander. I know you've been on a little bit of a hiatus. Jeff and I have been on a hiatus for about two weeks, which is why I've been stumbling through our introductory remarks, including my own name. But tell us a little bit about the appellate wander and what you're doing on that podcast.

Raffi Melkonian  2:10 
Yeah. So you know, as you may know, I went to college in Scotland, and I have a graduate degree from the University of Cambridge in England, and during those years, I spent a lot of time traveling around Europe. I'm also an immigrant to the US. So I was born in Damascus and came to the US when I was a boy, and so that's always made me very interested in legal systems around the world. I I try not to get too buried in the fact that we're a very large country, and, you know, a very powerful country, and so there's a lot of, you know, parochialism in our law. And so what I was trying to do was learn about how other countries do it, and other democratic countries that have good legal systems, that work perfectly well, that do it differently than us. And so that's the concept. I've had four interviews so far. I have a fifth one that has been done and is just needs to be edited and all that. But my my hope is that I can get up to 15 or 20 and cover the sort of big democratic countries that all of us are fairly familiar with, and then, you know, branch out from there. If I have time,

Tim Kowal  3:22  
it's interesting. What kind of factors are you? Are you looking to explore about things that are different? Things are that are similar among judiciaries in different Western democratic countries? Well, so

Raffi Melkonian  3:35 
some of the ones I've been pressing on are like, how, how does the judge come to a decision with his or her colleagues. So for example, in my very first episode, I spoke to a Mexican lawyer who had worked for the Supreme Court of Mexico for many years, and what he told me is that their deliberations are done live on television, the internal court deliberations. And of course, what that means is that the real deliberations are presumably done elsewhere, you know, not on the live television feed. So that kind of thing is very interesting to me. Or another fact that he told me is that you can request the next ex parte meeting with a justice of the Mexican Supreme Court, and the other side will do that too. And so again, like, that's something that seems very off the wall to us, but it works for them in a strange way. And so that's what I'm trying to get as like, why do they do it that way? And why is it okay? Or maybe it's not okay, but anyway, why? Why have they gotten to that result and and partly, I want to think about how that reflects on our our system, and whether we're doing it the right way.

Tim Kowal  4:43 
That is interesting. That makes me think that one thing that I think about sometimes in talking with some of the potential clients who call me and they want to take this desperate, quixotic appeal, is because, not because they think they're going to win. I'll tell them that you're not going to win this, but there is something that they cannot. Rest or they can't. Something is at is not doesn't sit right the way that things came out at the trial court. And hopefully things will get smoothed over, at least if there is another kind of patina of some you know, of appellate review is one way that we're able to sleep at night, so to speak. After major like decisions are made for us by by one rogue judge. Well, if it's made by a panel of three robe judges, then it's still the same outcome. But somehow, maybe we're able to have some peace about it. So maybe have the ability to have ex party communications with justices, or to see the deliberations live on TV, even if everyone knows it's even if it's an open secret that it's all fake or it's not the true deliberations, maybe somehow it makes people sleep easier

Raffi Melkonian  5:41 
right now, one

Tim Kowal  5:42 
thing that I've learned turning to turning to appellate Twitter, is that that you're something of a chef was one of the one of the little, maybe trivial things, but puts a human element on some of us, appellate attorneys. What other what other hobbies. Do you see other appellate attorneys sharing about on appellate Twitter?

Raffi Melkonian  6:05  
Oh, well, you know, there's been a big outgrowth in appellate lawyers and other kinds of lawyers who knit in their spare time that I've seen on appellate Twitter. Now, I don't know the exact right terminology, whether it's crocheting or knitting or whatever it is, but there's a large number of blankets and hats and scarves and even knitted Texas Longhorns being shared on appellate Twitter these days, and that I think has a lot in common with cooking. I find cooking contemplative in the sense that I'm sitting there chopping or cutting or what doing, whatever I am, and I can sort of shut off the analytical part of my mind for a bit while I'm doing that. And I, I haven't asked those folks, but I feel like that may be what's going on there too. They're, you know, they can shut off the thinking for the couple of hours while they're making a blanket. Yeah,

Tim Kowal  7:00 
yeah. Are they? Do you have you noticed a trend among the different types of hobbies that appellate attorneys will take up? Are they largely indoor activities, or do you see, you see any hobbies taken up by appellate attorneys that that struck you as surprising for us indoor types,

Raffi Melkonian  7:16  
to be honest, I think we live up to the stereotype of pellet burglary. There's a lot of Star Trek and Star Wars and, you know, maybe some hiking, but it seems to me that all of the true appellate lawyers you know live up to the billing. Yeah, yeah. If

Jeff Lewis  7:35  
you take Venn Diagram of Dungeons and Dragons players and appellate law, there's quite a bit of overlap, if you do some digging beneath the thin veneer of appellate Twitter, yeah.

Raffi Melkonian  7:45  
I mean, as you may know, I have a appellate Twitter Dungeons and Dragons campaign going on right now. I have been, I've taken over while the true Dungeon Master is resting for a few sessions, and that's been a lot of fun

Jeff Lewis  8:00  
well as a forever DM, let me say thank you. I'm alphaball DMS for giving him a break. Thank you.

Tim Kowal  8:06 
Now, what about those of us who spend more of our time on LinkedIn? Does appellate Twitter or appellate LinkedIn? Does it port over as well to LinkedIn? What have you What have you discovered about about the way that US appellate attorneys are able to convene on other social media platforms like LinkedIn,

Raffi Melkonian  8:23 
yeah, I think it's not quite as casual on LinkedIn. So there's a lot more, like, you know, written pieces about something that's going on in law, or, you know, kind of, and I've done this myself, so I'm not attacking anyone, but self congratulatory posts about victories or interesting cases that you may be litigating, that's not as much what Twitter has been used for. You know, obviously, we all know that there's been changes on Twitter to post the Elon Musk acquisition, and so maybe the two platforms are converging a little bit as people flee Twitter or X and go to LinkedIn, but I do think that there are different mediums, you know, the cooking stuff I don't put on LinkedIn. It just doesn't seem to have a place there. It

Tim Kowal  9:13 
seems a little bit more like a professional brochure LinkedIn does. Yeah, that's right, yeah. And tell us just a little bit more about about Twitter or ex post Elon Musk and how that's affected appellate Twitter, yeah,

Raffi Melkonian  9:27  
I think the fact that Mr. Musk, a has some views that many people think are distasteful, and the fact that he's removed a lot of the content moderation has driven away a lot of really good people who used to participate on appellate Twitter, some of them you can find on blue sky or some other kind of alternative Mastodon or whatever else. But some have just disappeared, and that's unfortunate. It's made the place a lot less fun and a lot less. Interactive. I'm trying to, you know, keep us going by continuing to post and with the hopes that one day it'll return to what it was. But if it doesn't, you know, sometimes everything has a season. And, you know, that's, that's that, but I hope we can find that again. Yeah,

Tim Kowal  10:18 
I my heyday was, was in the MySpace days, and I couldn't believe when it went away. Yeah,

Raffi Melkonian  10:25  
I started Social Media back in 2002 when I was a law student and I had a blog. The idea was I was going to write the new sort of 1l, by Scott Turow, live on this blog. Obviously that didn't work, but I've been doing this a while, and, you know, I realize that it's pretty cyclical. It comes and goes

Tim Kowal  10:46  
and and then one other, one other question, by way of prelude to our discussion about about starting and maintaining an appellate practice. You've described a practice in appellate law as a cross between litigation and scholarship or something to that effect. I wonder if you could elaborate on that a little bit. Yeah,

Raffi Melkonian  11:05  
you know, I took that from my First Amendment seminar Professor Eugene Volokh, who is actually how I found appellate practice as an alternative. I was, sort of, I was a corporate lawyer, as you may know, at the beginning of my career, and I was casting around for alternatives because I didn't like that. And I found a post from Professor Volokh saying that, you know, some of his students who didn't really want to be academics, who wanted to have a little bit more, you know, practical job, but still had those kind of bents we're going towards appellate practice because it gave you the time to be a little bit more, you know, again, contemplative in terms of how you think about law, to work on puzzles, to find answers. You know, in a way that's different than a trial lawyer who has a jury sitting and has got to prepare that outline like right away, and so I think that's basically right. I found that to be true in my practice, that I sit in between what I think I might be doing as an academic and what I certainly was doing as a trial litigator early in my career. I

Tim Kowal  12:20  
think that is a good a good realization, or it was a good realization for me when you when you shared that story, because I recall, after law school, I really enjoyed law school. I was on Law Review, wrote law review articles, and then when I started legal practice, I thought, this is not nearly as much fun, you know, it's too much nuts and bolts, and don't get to spend as much time going deep into into the law, just enough to get the motion written. And remember thinking about, well, what else is there for me, other than maybe exploring a path in academia? But then it took me some time, and then a certain podcast co host here, as years back, told me, you know, you can get a special, you can do a specialty in appellate law, and, you know, and there was no turning back from there. And it's been a perfect Nexus. And I used to think about, I used kind of daydream about being a professor and no longer. And same thing with, wouldn't it be great to be a judge? And now I don't, I don't even know if it would be as much fun as being an appellate litigator.

Raffi Melkonian  13:17 
Yeah, I feel the same way. Sometimes I certainly don't want to be a professor anymore. I did at the very beginning of my career, but I feel like this is a better fit for my skills judge. I'm just not going to worry about that one

Jeff Lewis  13:33  
you've you've said too much on Twitter. I think to ever be a judge. And I'm not saying anything specifically, but when there's so much out there, you get yeah,

Raffi Melkonian  13:40  
like I said, I'm that's not among my list of concerns.

Jeff Lewis  13:45  
Hey, have you ever seen something you wrote on Twitter, appellate Twitter pop up in an adversary's brief or has it come up at your firm where there's been some kind of real world low back from one of your posts? Yeah, it

Raffi Melkonian  13:57  
wasn't actually one of my posts. It was a partner's post that someone quoted in a footnote, and it didn't, you know, the judge didn't think anything of it. It didn't end up mattering at all. And so, you know, there was a couple hours of, you know, worry about, like, what the client might think about it. But in the end, it was, you know, it just blew over. I'm pretty careful about talking about anything that could possibly be traced back to my cases. You know, I of course, don't talk about my cases, other than sometimes I'll post the result. But you know, if someone tried to do that and tried to sort of hoist me on my own petard of some thing I've said, I just don't think judges would care very much. They know what I say as a person, as an and as an advocate are different, you know, right? I think least that's my hope. All right.

Tim Kowal  14:55 
Well, let's get into some of your old tweets back in January, you posted. A series of ideas for law students and Associates about an appellate practice, about those who are aspiring to have an appellate practice, how one would go about starting an appellate practice and and then once, If, supposing, when we're able to stake one out, how would you go about maintaining an appellate practice? We'll include a link to to your tweets in our show notes there, but you've talked about your your original legal career plan was to make a ton of money in corporate law. Which corporate law has a good model for doing that? But maybe not so much appellate law. And so I wondered if, just to start out, if you felt any disappointment when you learned that, hey, I really love appellate law, but gosh, it's it's hard to make scrape two nickels together, doing it for a living. Yeah,

Raffi Melkonian  15:43  
yeah, I do. I haven't felt that kind of disappointment. What I I'll say, and I think I've said this in other mediums, though I'm sorry to be repeating myself, but because I'm a competitive person who was always sort of type A in terms of achievement, I felt like a failure at the beginning, when I realized corporate law wasn't going to be appropriate for me, you know, I felt like, Wow, I can't do this at all. This sucks. And so that's probably the first time I'd ever not achieved anything academically or at work. And so that was, you know, not super fun, but in terms of money, no, I that that hasn't ever bothered me. I'm, you know, I think if you're able to do something you really like for a living and earn enough money to keep yourself fed and clothed, that's, that's a huge privilege.

Tim Kowal  16:37 
Okay, well, let's, let's get into your your five tips and observations for starting and maintaining an appellate practice. Tip and observation number one, breaking into appellate practice is very hard, and now that's that seems intuitive, but then, then again, every mistake made by a trial attorney is a job opportunity for us appellate attorneys. So why do you think breaking into appellate practice is so hard?

Raffi Melkonian  16:59  
Yeah, I mean, I think I can talk about a project I just did where I read every published opinion of the Fifth Circuit in 2023 and I made sort of a almanac for the year to try to figure out what kind of cases were coming to the Fifth Circuit and being resolved in a published manner. And the answer, you know broadly the bottom line is, there are not that many appeals. There are not that many appeals that involve lots of money that could require a specialist appellate lawyer to handle. And so whereas there's 1000s of trial cases in the federal courts, there's very few commercial appeals that anyone can possibly handle some of them, you're going to be knocked out of because they're, you know, run by the government or whatever else. Some you can't possibly build enough for or you're too expensive for one or the other. Some are going to be handled by the elite firms out of Washington, DC or New York or wherever it is, and so there just is not that much of a market. There is a bigger market in the Texas State courts, as I'm sure is true in the California courts as well, or at least I would guess. But even so, there's a lot of competition for those cases. So it's just a hard path to make a living in appellate practice, and also to run affirmative appellate practice like like we do,

Tim Kowal  18:26  
yeah, one of the ways I try to maybe use pure rationality to try to will more appellate work into existence is you take the old The old adage that you know, if a case, if a case is worth, worth, worth filing, it's worth taking it to appeal, or worth taking a trial. And then I try to add on to that, well, if it's worth going to trial on it, it's worth going to appeal on it, because the trial is just a crapshoot in a certain sense. But you know, it doesn't, doesn't really work out that way. A lot of litigants, by the time they if they get to trial, and they can get through the trial, they're tapped out by the end of that, and they're running on fumes, and don't have enough to take it, to take it to trial. So, so your observation is right, that if, if it is a gangbusters case with a ton of money at stake, then, you know, the big firm appellate guys, or the the DC lawyers are probably all already lined up, and it's if it's one of these marginal cases, then then you got a lot of attorneys like, like Jeff and me, you know, competing to get that business. So there's not a whole heck of a lot of meat left on the bone to go around with a lot of these, these civil money cases. What advice do you have for those who are passionate about appellate practice, but but struggling to find these opportunities? Where can they where can they start to try to at least get their foot in the door.

Raffi Melkonian  19:41 
Yeah, I'm often asked about that. I get a lot of law students who reach out to me on Twitter because, and this is one good part of Twitter, is that it gives junior lawyers an opportunity to get at, you know, mid level like me or very senior lawyers and talk to them a. About what to do. And what I often tell them is, look, you can go to the government for a while. That certainly is a good way to get a volume of appellate cases that can persuade people that you were a serious appellate lawyer. So just as part of my own life, I volunteered for four months in the Office of the New York Solicitor General in between Cravath, where the law firm I was at in New York, and starting my clerkship for Jennifer Elrod on the Fifth Circuit. And I got there and I did five arguments in four months, because they had all these fully briefed cases that they needed someone to go to court on so that's one way to get a bunch of appeals. I recommend pro bono. And you know, with the caveat that you better do just as good a job on those cases as you do for your paying clients. I mean, I think that's very important, that you don't see pro bono as like, oh, I'll just mess around here. And, you know, take my paying clients more seriously, but that's a very good place to get some experience. And the other thing I say to people is you should, if you're in a firm, even a mid sized firm, you should go to whoever the sort of nerdy appellate type lawyer around is, and you've got to tell them you want to do appeals if you don't tell them anything they're not going to know. And so you've got to be vocal and somewhat aggressive and telling people, telling everyone you know that you want to be an appellate lawyer, because you don't know where that's going to end up. Someone might say something to somebody, and then you have a case that can be yours, or you'll be given a case that the firm has that maybe would have been given to somebody else. So I mean, those are some of the ideas I give, but you've just got to be pretty scrappy in order to break in again, unless you're and I think most people are not, but unless you're the kind of person who clerked for, you know, Chief Justice Roberts, and then went to the Department of Justice and all that kind of stuff. But if you're a regular person, like all of us, you know, I think those are the paths,

Jeff Lewis  22:10  
yeah, yeah. I didn't, you know, I didn't clerk, and I took a similar path, which was I took indigent criminal defense cases on appeal in California, and it wasn't pro bono, but it's pretty close to pro bono, especially during times when California had no budget and there's a freeze. And yeah, you learn a lot. You learn a lot about appellate law, and you can get a volume of work under your belt doing that kind of work.

Raffi Melkonian  22:39 
And it can also help you decide if you really have the bug for it, right? Like, sometimes people think they they like it because they did it in law school, and they did moot court and and then they realize, no, this is a little, you know, too slow, or, like, you know, too lonely for me, and you can make that decision too. And that's, that's a great answer if you decide you want to do trial work, that's That's terrific, yeah.

Tim Kowal  23:04 
And one of the things you you said a minute ago, Rafi, about being being scrappy in going about establish yourself as an appellate attorney, leads to observation number two, which is that a 100% appellate practice is is broader than it must be broader than just briefing and arguing appeals, even if briefing and arguing appeals is the ideal. Can you talk a little bit more about that? I know that you call yourself an appellate litigator, and I think that that holds part of the key. Yeah.

Raffi Melkonian  23:35 
So I think for me, my ideal practice would be to brief and argue cases in the courts of appeals and in the state Supreme Court. But like we were talking about a couple minutes ago, I don't think there's enough volume to do that necessarily. Maybe there is for some people at the very tippy top of the profession, but I don't think there is for me or other people like me. And so the question is, what do you do? That's appellate work, but isn't that and gives you the same satisfaction as appellate work? And so for our firm, you know, the answer is that we accompany trial lawyers who are not at our firm to trial, and we handle, for them all, dispositive motions. We handle the eliminates. We handle the jury charge. We handle post judgment motions. We handle directed verdict. But you know, to the extent they want us to, obviously, if they don't want the help on that, then that's fine too. And I think what we sort of offer to people is, look, you can concentrate on trying your case on, you know, nailing that expert on cross, we'll handle all the stuff you don't want to that's kind of annoying to do while you're getting ready for trial. And so, you know, it is common for us to be referred to in court as. The law lawyer by our trial co counsel. So the judge might ask a question, and the lawyer might say, You know what, let me ask my law lawyer about that. And that's that's our goal, is to get to that level of trust with our CO counsel so that they can turn to us when there's those kinds of questions. And I think those are all appellate jobs. That is an appellate lawyer's job. It's not in a court of appeals, but it's, it's the same mindset as the appellate lawyer. So that's what I tell sort of recruits to our firm or potential recruits, is, you know, look, we will give you 100% appellate work, but we won't give you 100% briefs. Some part of it is this stuff that I'm talking about.

Tim Kowal  25:43 
Do you have any tips for what does it take to to build and nurture that relationship with with trial attorneys? If you're an appellate attorney, you want to start doing this stuff, doing trial support being the law lawyer, or the embedded appellate counsel. What does it take to build that relationship with trial attorneys so a they know that, look, I need to have an embedded, embedded appellate counsel, or else I'm going to get in trouble here and making yourself the one that they're going to call when the time comes.

Raffi Melkonian  26:12  
I think it's respect. I think it's that you have to come in with the attitude that this person is probably a really tremendous lawyer that you're coming to help, and they can handle themselves, but what you're doing is doing things that are in your skill set that can enhance the result for their client and enhance their trial ability. And I think we often get put into cases by our national clients who ask us to join a case that's about to go to trial. And sometimes, you know, the initial reaction from the trial counsel is, you know, what is this like? Who is this person who showed up on the eve of trial and is messing around? And it takes a little while, and it takes, I think, this attitude of deep respect for that ad, for that initial reaction to to go away, and for them to realize that you have they have a asset with them, not someone who's there to try to take away their work or second guess them, or, you know, do Monday morning quarterbacking or anything like that. And so I think that's at least in my practice, where I've been successful in getting repeat business from trial counsel. I think that's, that's the attitude I've taken. It's just, you guys are great trial lawyers. I'm here to help you and support you, and we want to win, and I hope there's no appeal, and I hope that's that works, you know,

Tim Kowal  27:35  
yeah, all right, let's get to tip number three, or observation number three, maintaining a practice of 100% appeals is even harder than breaking into appeals in the first place. Now, I think you know again, this, this is, this is true in my experience, but, but why is it true? It seems like there should be a if you build it, they will come type of phenomena going on. But why doesn't it happen? Why? How come, once you're branded, you branded yourself as an appellate attorney, and you've, you've gotten some appeals under your belt. How come the floodgates don't just open up?

Raffi Melkonian  28:07  
Yeah, you know. And that tip was especially meant for younger lawyers and for lawyers in their mid level as they're moving up. And what I was trying to get at is there's this, like, there's this flood of inertia. I don't know if there can be floods of inertia, but let's assume there can be pushing you into trial litigation. And it's it's inertia caused by economics, right? Because there's more money to be made on the trial side. And so you were often going to be presented with a partner who comes to you and says, Hey, can you help on this summary judgment? Can you do this? Can you do that? And it will be very hard for that junior lawyer or mid level lawyer to say, No, I really can't do that. I have to concentrate on this appellate work that I'm working on, because you want to be helpful first of all. But also, here's this senior person who has their job, has your job in their hands, asking you for help, and if you don't say no, or if you don't find a way to extricate yourself, then it's going to be very easy for the next time for you to do that summary judgment again, or take some depots, or whatever it is, and it once you fall into that habit, My view is that that is the end of being 100% appellate lawyer, because that's the way to make money for your colleagues. So why would you say no, if you don't absolutely have to be an appellate lawyer?

Tim Kowal  29:33  
And do you think that there is that a danger? Do you dilute your brand, so to speak, as a pure appellate attorney, if you start taking on well, you know, this is more lucrative. I'm going to do this right. To do this right now and then. What the trial attorneys who otherwise might dial you up when they're getting ready for trial says, oh, no, he's, he's, he's doing all those depositions in that other case, he's, he's just a litigator. Yeah,

Raffi Melkonian  29:55  
I think it does dilute the brand, or at least dilute what other people think about you all. So if you're a real appellate lawyer, a person who has that bug, that sort of sickness, for appeals, you're probably not as good at that stuff. And so maybe, I mean, there are some people who are just as good at both, and like, you know, more power to them. But I am not. And if I am asked to go do a bunch of record development, you know, depositions, other kind of work, like that, expert testimony, people will not think I'm very good at it and that I don't want that impression to go out at all. I'm, I think I'm good at what I do, but I don't, I want to do that, not stuff I'm not well suited for. Yeah, yeah,

Tim Kowal  30:39 
something you said made me think about, you know, we're as, as appellate attorneys, we're critics of the record, and we rely on the record. That's the we're all we're all in on the same team. That's the end product we all want. But we're critics of the record, and we'll point to deficiencies in the record while the trial attorney has to create the record. It might be kind of like the difference between authors and their editors, and I think they always have a kind of a love hate relationship. I wonder if that's if that explains a little bit about the kind of inherent distrust, I think, that maybe trial attorneys have with appellate attorneys, is that if we hire the appellate attorney, they're just going to criticize all my work. Yeah,

Raffi Melkonian  31:18  
I have a senior colleague who, and I don't know if he came up with this or if he read it somewhere, but he says that he's a trial lawyer. He says that appellate lawyers are like people who come onto a battlefield after the battle and kill the wounded. And so, you know, I take that as a compliment of sorts, but, you know, I think that's a pretty good explanation of the attitude sometimes,

Tim Kowal  31:44 
yeah, yeah. I guess it's not, it's not very complimentary of us, but I guess someone's got to do it. Yeah, exactly. You've also said that you'll take all types of appeals from personal injury cases and and small dollar amount cases, interlocutory appeals, appeals over personal jurisdiction issues, even contingency appeals, which I want to ask you about in a minute. But you said that because that you're kind of a door attorney, a door appellate attorney. Take any appeal that comes in the door that sometimes you say a unicorn will sneer at you. What do you mean? What's a unicorn?

Raffi Melkonian  32:19  
Yeah, so a unicorn is my tongue in cheek way of referring to those people who've had that paved golden path to appellate practice. So they've been to the best law school. They clerked for the best judges, they worked at the best appellate fancy firm in DC, and all they do are the most elite and complicated appellate cases, you know, usually in the federal courts of appeals, and usually the ones that are in the newspaper, that is not my practice. And so sometimes when I'm telling that kind of lawyer about what I do, I'll get a bit of, you know, pushback, of like, well, you know, that doesn't sound very good at all, but you know, it doesn't bother me, because my sort of thing I want to do is appeals. I want to do appeals all the time. And as I, as I think we've discussed, you know, the way to do appeals all the time is to take appeals, yeah, and it doesn't really matter what they are, because all appeals sometimes push off really interesting issues that you wouldn't have imagined are hidden in them.

Tim Kowal  33:26 
Let me ask you about contingency appeals. Have you been able to structure contingencies on appeals? Very frequently,

Raffi Melkonian  33:33 
not very frequently. We have to be really careful about taking those because, you know, let's say you take a case where there's a trial verdict against the plaintiff's side, that is really hard to flip in any kind of court, and so it's almost never going to make economic sense to do that unless you just found the most tremendous error you know that seems very obvious to you, and you think that the Court of Appeals will will do something about it, but you know where we're defending, the what we look for is where we're defending a judgment in our favor, our our site's favor, where the other side is hired really good appellate counsel, and so we can bring value there. We can offer the plaintiff in that scenario, sort of an equalization. We can say like, Look, they've hired that fancy guy. Well, we're here, and we can defend your verdict. And in those kind of cases, we've been able to figure out something that works for the for the Coalition of the plaintiffs lawyers, or whoever it is, and also works for us. So that's what we look for. Usually. That doesn't mean I won't try to make something else work if I think there's a good chance of getting a reversal. But that's a tough business. You've got to really be careful.

Tim Kowal  34:52 
Okay, that's interesting. So there it's, so it's, it's pretty much, it sounds like it's limited for the most part, to to represent. Of the appellee. Representation

Raffi Melkonian  35:01 
of the appellee in most cases, rarely the appellant. So, for example, right now I have, I'm waiting on a decision where I represented a individual appellant, but that was really more kind of a, you know, not pro bono, but pro bono esque kind of representation. So that's not what I'm doing, as you know, with some notion that we're going to make

Tim Kowal  35:27  
a ton of money, and I think I read that you that you will charge different rates depending on the case. Now, is that? Is that common? You know, does the RATE SHEET go out the window when you're an appellate attorney and you just have to be flexible with your rates. Or do you see that as a more? Is that a burgeoning development where we're even litigation trial attorneys are throwing out the rate sheet and just doing it custom?

Raffi Melkonian  35:53 
Yeah, I don't know about the trial side. I do know that in order to sort of execute the plan that we're talking about, which is, you know, taking all kinds of cases to make sure there's sufficient volume of appeals, not just to let me do appeals, but also my colleagues and the associates I work with and all those folks. Sometimes you've got to figure out a financial package that works for that person. And so sometimes it's, you know, a low rate, but with some kind of success fee. When that's legal, obviously, sometimes it's a flat fee, sometimes it's a capped fee. Sometimes you've got to adjust the dollar per hour so that it can work. I want to make sure I get enough appeal so that we can do this job going forward. And that just means, you know, rigid fee amounts don't work. And that also, you know, when I'm talking to my big firm colleagues, who a lot of them are charging $1,500 an hour now for people of my vintage, that cuts out almost every appeal in the country. You know, there's like, 10 appeals that could possibly pay that amount of money, and if you do that, you just won't do a pellet practice and like, that's that's not good for me, so I have to be flexible.

Tim Kowal  37:08 
Yeah. Okay. Observation number four, achieving 100% appeals requires some form of trade off, unless you're a unicorn, as we talked about unicorns, what kind of trade offs do you mean in order to have 100% of appeals, what kind of trade offs do you have to make?

Raffi Melkonian  37:26 
Yeah, the trade offs are kind of what I was talking about before. So you have to be willing to do cases that are not, you know, super high profile. You have to be willing to do smaller cases, or cases that, you know, I get, uh, and this is probably true of me too, when I was in law school, I would never have thought I would do personally injury appellate practice, right? But that is a huge aspect of Texas appellate practice, because we have really large verdicts here. Um, those verdicts need to be appealed in many cases because, you know, the defendant may not have the money to pay that amount or whatever else, like, who knows. And those provide tons of work for appellate lawyers in Texas. And without them, you know, we couldn't have the big, vibrant appellate bar that we do here. And so, like I sometimes, I will get a law student who seems kind of dubious of that kind of work. And you just have to get rid of those kind of preconceptions if you're going to do this work full time again, at least in Texas. I don't know about other places, and we've

Tim Kowal  38:32  
been talking about scarcity problems, that the difficulties in maintaining appellate practice, because there typically aren't enough cases to go around. But you know, we're not immune to the to the feast and famine conundrum, where, you know, sometimes we're scrambling for cases, and other times we have an embarrassment of riches. When you do have, you know, when the pipeline is is flowing. How do you prioritize the kind of cases that that you will take, or do you try to take them all and just figure out the, you know, meeting the deadlines later? Yeah.

Raffi Melkonian  39:07  
I mean, I'm blessed with good colleagues. And so there is that I can have people help me when that's entirely impossible, you know, when we're just beyond capacity. I do turn down gazes. I think you have, you have to, in order to make sure that each client is getting your best effort and, you know, getting the value that you're proposing to them. When I'm, you know, I don't know that I have a system for prioritizing. Obviously, when a long standing client calls like I'm, you know, I feel obligated to help them, because I want to make sure that they're being served. So maybe that's like the, the most powerful, you know, engine of choosing cases is making sure the clients we have already are getting what they need. When you

Tim Kowal  39:55 
do have potential clients come in, one, one thing that that that is. Is challenging for me is, you know, if you to compare it with a regular litigation case, the client comes to you and they just tell you all the bad things that happen to them, and do I have a case? Well, yeah, it looks like you have a case. We can draft a complaint. You're off to the off to the races. But for an appeal, there's so much water that's gone under the bridge, and you there's record to review. There's all the pleading, the look through the whole docket, all the courts ruling, maybe previous interlocutory rulings, to get a sense of whether there is an appeal here that I want to put my name on. Do you have a way of an approach for, kind of deciding whether you want to work on a case without having to spend, you know, 10 hours in evaluation,

Raffi Melkonian  40:44  
yeah, you know, my approach is to go talk to the trial lawyer. That's my first thing that I do. I call up the trial lawyer, and I want to have a discussion with them, and we'll, you know, the trial lawyer often has a long list of grievances with the district court or the trial court, we all know that right, they've the trial court did this to them and that to them, and the client's very sad and like all these things. And so the goal there is to listen to them really carefully and try to discern from there what the things that could be a good appeal are in that whole pile of grievances and upsets that happened at trial or at summary judgment. And so that's the first thing I do, and then I'll ask for the backup documentation of you know, for the things that I think are interesting. Having said that, I have this view that there is more error than anyone believes in trial courts, and I find it hard to believe that you can't find error in almost any case. And so I

Jeff Lewis  41:47 
must have you must have never done criminal defense appeals. Ah, well, sure,

Raffi Melkonian  41:52 
there's lots of error there. You just don't get any relief.

Jeff Lewis  41:57 
I'm sorry. I interrupted. I'm sorry,

Raffi Melkonian  42:01 
but yeah, so I am pretty willing to take cases where even, uh, people think that the verdict or the summary judgment or whatever it is is pretty strong, because I feel like I can usually think up, you know, an issue that makes sense to present to a court and is consistent with, you know my reputation, whatever it is, in those courts, but obviously there are some cases that you know is there's just no path, and you've got to tell the client that, if you can,

Tim Kowal  42:31 
okay, let's get to the fifth and final observation. This is about the business of law, understanding the business of law, and why doing high end, sophisticated appeals all the time is hard as a business. Understanding that fact is really important. What do you mean by that? What about the business of law makes appellate law intrinsically difficult as a business model? Yeah, so

Raffi Melkonian  42:56 
I when I was in law school, and again, I thought I was going to be like Scrooge McDuck in law school. So like that. I wasn't thinking about the business of appellate practice at the time. But if you would ask me, What are the business problems of appellate practice, I don't think I would have had the first clue about any of it. I would not even have thought that there was a business problem like i It wouldn't have occurred to me that, for example, staffing an appeal with a partner and an associate is less profitable than staffing a document discovery project with 12 associates, three partners and a senior partner, the way my big firm that I started in New York would do. It just would never have occurred to me. And yet, that's like one of my main preoccupations in my job is figuring out how to make enough money to keep our lights on, to pay everybody to share with my partners. You know, in cases where I cannot staff it with five or six or 10 people, and that's like, literally, would never have occurred to me. So whenever a junior lawyer talks to me, I always tell them, like, you need to be thinking about that from the beginning of your career, thinking about, how can I make enough money to make this practice work? And that's really what I was getting at, is, you know, it's it's a business, so you have to make money unless you're in government service or unless you're working for a nonprofit organization. And also it's a service business, so you have clients that need to be served. And that also, I guess, brings it to one other thing, which is that in appeals, your clients are often one off. So you've you get the client, you save them from the terrible verdict somehow, but then hopefully for them, they never call you again, right? Like calling an appellate lawyer is a terrible situation. You don't want to have to do that. Obviously it would be. It's great when you get big institutional players who have a lot of appeals. But you know, it's. Hard to keep grinding and making sure that you get the clients. And the part that I would not have like known is that your clients are trial lawyers. At least in our practice, it's not the underlying client, it's the trial lawyer who is the repeat player, and that's where your work can come from. So all those kind of realities of running a business that happens to be a pellet law that that's what I was trying to get at. Yeah, and

Tim Kowal  45:27  
there's also a difficulty is there not with with scaling something like an appellate practice. And one way that I've tried to colorfully describe what an appellate practice is like is to is to refer to Harvey Keitel character in Pulp Fiction, where he's the fixer. He's Mr. Wolf The Fixer. He comes in in these, you know, very complicated, very unexpected life and death situations. But these highly specialized types of services make for a difficult business model, because how do you scale that, you know, how, how do you estimate how many Mr. Wolf's you're going to need, and you know, to have this, this a very specialized set of skills. You know, how do you, how do you scale that, other than you, you know, if you get enough business, of course, you hire another person like you. But the problem we've been talking about is, how do you, how do you predictably keep that, that kind of highly specialized type of work coming in, yeah? And, I

Raffi Melkonian  46:25 
mean, the the other related point is that, like us, Mr. Wolf is a expert in a procedure, which is, you know, cleaning up that kind of problem. And we are not usually experts in some substantive area of law, right? And so that's hard to sell to a client, because the clients sometimes will say, Well, I have this, let's pick something out of there, an ERISA case. Are you an expert in ERISA? Like, no, I'm not an expert in ERISA. What I'm an expert in is explaining to generalist appellate judges what the trial lawyers were talking about, the specialist trial lawyers were talking about, what kind of words they were using, what, you know, what, what the world of this kind of law is, and that's kind of a hard concept to explain to some clients, is like, Well, yeah, I kind of take what these guys were saying and I explain it to these other people, and that's not like an obvious thing.

Tim Kowal  47:24  
Should my last question here, do you think that first year attorneys, or just early on, attorneys, should be thinking about a career in appeals? How's Is there a point where it's too soon to be thinking about it? I guess where I'm where my head is at is, at least from my own personal experience was, I was just in the trenches, just doing whatever, whatever litigation work I could get, whatever litigation experience was, was thrown at me, just doing it and and then later on, realize that, hey, all that experience proved very helpful for for Thinking about complicated issues on appeals. But if I had thought on day one of my legal practice that I'm going to be an appellate lawyer, I wonder if that would have made me think that all these other tasks are beneath me.

Raffi Melkonian  48:12  
Yeah. I mean, I'm like you. I was flailing around doing whatever I could do that wasn't corporate laws. So I didn't have that path. I think if I had known I was going to be an appellate lawyer in law school and then in my early career, the difference it would have made is that, for example, in school, I would have done some clinical work, so I would have taken on an appeal or two with a supervision of a professor. In my early career, I would have asked for appeals, or appellate work or summary judgment work to help get me used to that kind of stuff. So hopefully, I wouldn't have thought the other work was beneath me, because I think it's actually quite important to be provisioned in at least to some extent, in what happens in trial court. But I think I would have been more intentional about preparing my career in a way that would land me in appellate practice, and that I do recommend that to the law students, I say, Okay, you need if you want to go work at a general commercial litigation practice for three or four years, that's great, but if you want to be an appellate lawyer, you should be thinking about that part of your life too at that time.

Tim Kowal  49:27  
All right. Rafi, well, thank you for answering those questions for us. I've got to turn it over to to Jeff. Now we've got to ask the dean of appellate Twitter some of our nerdiest appellate law questions. So Jeff, take

Jeff Lewis  49:38 
it over. All right, this is the time for our patented, copyrighted segment of the show that answers the most pressing questions at bexapellet Nerds around the world, the dreaded lightning round, short responses, one sentence or one word, if you can font preference. Century schoolbook, Garamond or something else. Century

Raffi Melkonian  49:58  
schoolbook, unless. Someone's paid me for equity.

Jeff Lewis  50:01 
Nice. Two spaces are one after the period, one, very good Oxford comma. Yes or no,

Raffi Melkonian  50:10  
absolutely. You

Jeff Lewis  50:11  
know, I don't know what they call them in Texas, but in California, the trial courts are referred to as the Superior Court. What was it called in Texas? District Court, District Court in briefs, do you capitalize the DNC in district court when referring No, no, I

Raffi Melkonian  50:27  
tried to strip capitalization out of my briefs. Nice.

Jeff Lewis  50:30  
All right. Well, you foresaw my next questions for headings of arguments, all caps, initial caps, or capitalize all words, or just those under four letters, just the

Raffi Melkonian  50:41  
first word, okay, nice, left

Jeff Lewis  50:45 
justify, or full

Raffi Melkonian  50:47  
right justify. You know, full, full,

Jeff Lewis  50:50 
all right, the final and most controversial question cleaned up, yep, or no.

Raffi Melkonian  50:56  
I've used it. I think it's good

Jeff Lewis  50:59  
that the Dean has spoken. Tim, the Dean has spoken. Oh, the

Tim Kowal  51:04  
one, what? One black mark in an otherwise spotless record. You

Jeff Lewis  51:09  
survived our dreaded lightning round. Congratulations. We'll send you a podcast mug for your participation. Wonderful.

Tim Kowal  51:16  
All right. Well, thanks again. Rafi, Jeff, that's going to wrap it up for us today. Again, we want to thank case text for sponsoring the podcast each each week, we include links to the cases we discuss from casetext daily updated database of case law, statutes, regulations, codes and more listeners of the podcast enjoy a special discount on casetext basic research when they visit casetext.com/calp That's casetext.com/calp

Jeff Lewis  51:40  
yeah. If you have suggestions for future episodes, or you want to explain to us the difference between crocheting and knitting, please email us at info@calpodcast.com, and our upcoming episodes look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  51:55 
All right, see you next time you

Announcer  51:56  
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