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Training the Next Generation of Appellate Lawyers | M.C. Sungaila

TALP 50 | Next Appellate Lawyers

It’s difficult for new lawyers to transition into legal practice, but appellate practice is especially tough. This sometimes deters firms from investing the time and resources necessary to train new appellate attorneys, particularly when they are between law school and future clerkships. But M.C. Sungaila, head of the appellate practice group at Buchalter, has developed a pilot fellowship program that seeks to address these issues. M.C. joins Todd Smith and Jody Sanders in this week’s episode to talk about how her fellowship program helps develop new attorneys for a future in appellate law. M.C. also provides her insights as a Chambers-ranked California appellate attorney about California’s appellate system and how it contrasts with other states.

Listen to the podcast here:

Training the Next Generation of Appellate Lawyers | M.C. Sungaila

We have with us a guest from California, a member of the California Appellate Bar, MC Sungaila. Welcome, M.C, to the show.

Thank you so much for having me.

Our readers may be asking themselves, why are you having a California lawyer on the Texas Appellate Law Podcast? We have had a number of non-Texans on the show. It’s always interesting to draw comparisons and contrasts between state practices. Before we launch into that topic and some other things we want to talk with you about, why don’t you tell our readers a little about yourself, where you’ve practiced, and your practice situation?

I have focused on appellate law for many years now. I’ve been a lawyer for many years. I had two clerkships, the District Court clerkship and a Ninth Circuit Appellate clerkship coming out of law school. I did some litigation first at Irell & Manella, focused on white-collar criminal defense, business litigation. I found my true love of appeals and I left to go to Horvitz & Levy, which is an appellate boutique here in California. I was there for almost fourteen years. I moved back to my home in Orange County, California from LA and I was at Snell & Wilmer and then Haynes and Boone. Now I chair the firm-wide appellate practice group at Buchalter.

Those are some names that I’m familiar with. As far as the firms you’ve been with, Horvitz & Levy. We have an established appellate bar here in Texas. If you look around at who’s doing that kind of thing in other states, I know that Horvitz & Levy is at the top. I also know Snell & Wilmer, maybe this is not accurate but most of my experience with them was in Arizona. I don’t know where their home office is but that’s certainly a good firm. You mentioned Haynes and Boone. Everyone who reads this episode is going to know that firm. Your Texas connection, is that right?

That is my Texas connection. There might be more but that’s one of them. Mark Trachtenberg was on this program very early in its life cycle. That’s how I first noticed your show was from Mark’s appearance.

We think a lot of the Haynes and Boone appellate group. They’re an outstanding group of lawyers. I don’t think of their offices outside of Texas very often. It’s interesting to hear a little about their California connection. As I highlighted at the beginning when we first started talking, it’s always interesting to do a little compare and contrast of other jurisdictions and how they do things compared to how we do them in Texas. I do know that, as we’ve talked about on the show here a little from time to time, we have a board certification process. We have an appellate specialty that’s recognized by our state bar here in Texas. I believe California has the same thing. Is that right?

Correct.

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I’m also very involved in the State Bar of Texas. You had a mandatory bar and now you’ve got a different organization that’s running the CLE part versus the discipline part. Maybe we don’t have to get into the details of that but there’s been a lot of dissension among the bar and lawyers in California in recent years.

It’s been a significant change that it was all one unitary bar going back decades. It got separated. The California Lawyers Association is now the part run by lawyers. The state bar is run by administrators. That’s the part of the bar that disciplines us. The Supreme Court licenses us. It’s split. It is a little bit rocky in that transition. Maintaining the opportunity for lawyers to have a voice about how lawyers should be regulated and what should happen with their practice is essential when that happens. Between COVID and the rockiness of transferring this decades-long state bar into California Lawyers Association, which itself was a little tumultuous.

I’m setting up a whole separate infrastructure. I serve on the Appellate Practice Committee of, now the California Lawyers Association previously, the state bar. I’ve also been involved with the State Bar Task Force of our local Orange County Bar Association, which is monitoring all things state bar in terms of how they are deciding to make changes with regard to lawyers with no lawyer input most of the time. It makes for a whack-a-mole situation in terms of finding out what’s going on. It takes a concerted effort. It is very different.

We have had in recent years in Texas, Sunset Review periodically because we’re a completely self-regulated and unified bar here in Texas. Now we’re facing litigation over whether we should continue to be a unified bar aside from pressure that might come from the legislature. There are factors for trying to dissolve us through court action. Those have not prevailed. There’s a number of states with lawsuits that relate to these same issues.

It’s not been a no-go in Texas, although there’s a case before the Circuit Court of Appeals right now that is going to decide this. We had a district judge here in Austin, Lee Yeakel, who granted the bar’s motion for summary judgment. The status quo has continued. I bring this up in as much detail as I have because I hope to have some of the lawyers involved in that case on the show, at least maybe when the Fifth Circuit argument has taken place. They’re fascinating First Amendment issues and all kinds of things that you wouldn’t expect to see to come up in these cases. It’s interesting to see what California has gone through.

It intersects with the movement that’s happening around the country, which you see in Arizona, Washington, Utah, to transform the way law is practiced to allow non-lawyers, law firms, electronic apps, to do law. All of this stuff is happening around the centering on an interest in access to justice. Despite very good desires to do that, there’s also a cascading effect of those potential changes that in many cases is not being fully considered, especially of lawyers and including public interest lawyers are not allowed to have their voice heard about it.

It’s an interesting area that has developed over the last few years. I know Todd, as part of the state bar, knows a lot more about this than I do. I have been following that at a very high level. You see it in every state. It goes hand in hand with a push back against a lot of occupational licensing restrictions across the spectrum that’s outside of the practice of law as well.

Some people lament this as the commoditization of law. We had another guest on several episodes back, I believe it was Mike Whelan, who said, “The law is already commoditized. You need to accept it.” He’s a lawyer, too. It’s hard to talk as much about the laws of the noble profession. It is deep down. Those of us especially that have our own practices. It is a business. It would be foolish to not read it that way in many respects. It is difficult to watch, especially now that we’re starting to see things that have happened more so in other states start happening in Texas. The change is afoot in some way. We’re going to have to get used to whatever this new model winds up being. It’s interesting to compare notes on that.

We can’t forget the most important appellate difference between Texas and California, which is the missing S. We have Courts of Appeals here and in California, you only have Courts of Appeal. You can spot an outsider by the way they spell your appellate courts over there.

That is true unless you go to the Ninth Circuit.

I became familiar, having done a little work in California years ago now, I had noticed a few of those kinds of distinctions. There’s that one. There’s the idea of a writ of mandate. Not even to appellate practice, let’s go all the way back to the general demurrer. If you went to law school in Texas, you’ll know that’s one of the things that procedural professors teach you. There are no general demurrers in Texas. I know that California has them. Most Texas lawyers don’t even know what they are because we don’t have them.

I was thinking that there were two other things that I remember from my time at Haynes and Boone that were very different. Our Supreme Court practice and also the way we do our oral arguments. Where there are opinions written before you come to an argument most often and sometimes, they’re shared or thinking is shared prior to argument. The thing that always got me about the Texas Supreme Court was that we have a whole separate petition for review procedure and we identify issues. We do all of this stuff.

We have a full merit briefing in front of our Supreme Court. It very much mirrors the US Supreme Court practice but that is not my understanding of how it works in the Texas Supreme Court. The other thing about the court that was interesting was that I remember there would be a lot of discussion about what would pique the court’s interest in looking at a case. Those factors were different from what the California Supreme Court would look to. It says a little bit about what issues they’re interested in and how the court views its role.

TALP 50 | Next Appellate Lawyers

Next Appellate Lawyers: Eliminating the waste that so often comes with the legal process would really go a long way toward making the system better and, therefore, increase access to justice.

 

Maybe since you were exposed to the Texas practice, it’s been done a little differently for the last few years now. It’s not quite the cert type approach but it’s much closer to that than it once was. We used to have what’s called an application for a writ of error. You were doing the full brief in advance of whether the court was even going to decide whether to look at the case. Now it’s more of you’re doing an abbreviated brief with a petition for review and then a full brief on the merits. I’m not sure if I adequately address the differences. Jody, if you have anything to add.

On the courts giving their opinions or thoughts on cases prior to argument, that’s something that we have not adopted in Texas, certainly at the Texas Supreme Court. Unlike the US Supreme Court and I don’t know how the California Supreme Court is, they don’t take single issues in cases. If they grant your petition, everything that goes with it goes with it. You have to be prepared to argue whatever that is. They don’t give a lot of information other than it’s been granted on all the issues. I have seen a couple of Courts of Appeals over the years, although not very often, put out a letter that says, “This is the thing that we’re interested in talking about but no more than that.” They don’t signal where they are. They say, “We’d like both the parties to be prepared to address X and Y.” I haven’t seen it go far beyond that. Have you, Todd?

I haven’t. Although you hear about it from time to time. If you’ve got a particularly complex case at the Supreme Court, where there were multiple deep issues addressed in the Court of Appeals’ opinion and those have been carried forward largely in the Supreme Court briefing, it would be nice in some circumstances to know what were the ones that caught the Supreme Court’s interest. Every once in a while, I do hear maybe the Supreme Court will tell us what it wants to hear about but no, I haven’t seen that done on a widespread basis yet. I handled an appeal in California years ago. That was my experience. It was in the Riverside area. The court, much to my delight, issued a preliminary opinion before oral argument.

I traveled to Riverside and argued the case with the preliminary opinion right in front of me. I’ve always been interested in that and curious about it because you think about the ways that change the strategy of the oral advocate and, I would assume, the strategy generally, at least mine was as well. I already know what the court is thinking. What do I need to tell the court to get them to find this opinion and make it the final version? From the other side, it’s exactly the opposite. It’s like, “I’m looking at your draft opinion. Let me tell you all the ways that you’re wrong.” Is that how it goes, M.C.?

In Riverside, it’s very special. It’s the only one that has that full approach where they share their draft opinion with you. They share it when they send out the argument notice and some people decide they don’t want to have an argument after that. Either one or the side that is not winning has decided they’re going to take their lumps. There’s nothing they can say that will change anything. It does end up reducing the number of arguments that people choose to have because in California, if any one party wants an argument, you get an argument.

It’s the very opposite of the Ninth Circuit, which itself decides whether you want an argument and for how long. There is that difference. The argument in that court is focused on the opinion, focusing on specific language or specific aspects of it and always rooted in the opinion itself. That’s the way the argument goes, which is different from other courts in the state. There are more courts adopting some tentative procedure, whether it’s shorter versions of summarizing where they think they’re going or sending out questions a couple of days before argument so that you can be prepared to answer them.

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More and more are considering some hybrid of that. It’s been debatable in the appellate bar. Most of the appellate bar is in favor of some production of tentative or questions indicating where the court is going. It seems more efficient. If there’s some issue that you think is important in the case and the court has decided it never needs to reach it, it would be nice if you didn’t have to spend client time and money preparing for some issue, they’re not going to deal with. My personal view is that I prefer the medium method. The full drafted opinion that’s circulated seems to be more difficult if you want to completely move the court in a different direction or a different line of reasoning. My very first appellate argument ever was called in at the last minute after an adverse tentative came in Riverside. I had argued against it, personal history with that.

It does make sense though. If a judge has put in the time and the effort to prepare what looks like a full opinion, it would be difficult to change their mind because they have ownership of that as opposed to, “Here’s our inclination. Here’s where we think this is going to go.” You’ve put thought into it but maybe you haven’t fully developed it. I wish, any Texan judges that are reading, I don’t know if we need to have a rule change or what. It would be helpful from everyone’s perspective, both the courts and the advocates, to maybe have a practice where you even narrow down and say, “Here are the issues we want to talk about in oral argument.” It helps everybody. The court gets to talk about what they want to know about. The advocates don’t have to spend the time preparing for issues that the court is not interested in. If they wanted to talk about that, they could choose to. It does foster efficiency on all sides.

In California, every Court of Appeal and the Supreme Court has some version of a tentative opinion drafted by the time you come for argument. The difference in Riverside is that they share it with you. I do think it’s a logical difference in publicly sharing all of your work product instead of having drafted it and then going back to your chambers and editing.

I’m thinking of a case that I finished up where I was on the appellate side. It was a jury trial, an appeal from a jury verdict. My opponent submitted 64 issues to the Court of Appeals, which there was a lot of overlap as you can imagine. When that case gets argued, it would simplify my preparation and cut down on that time a lot if I knew which issues the court wanted to focus on. As you can imagine with that many issues, they go all over the place. It’s not necessarily applying for the same standard of review. It could be almost anything. I’m trying to prepare for a twenty-minute oral argument on 64 issues. It’s like you’re back to studying for the bar exam or something.

TALP 50 | Next Appellate Lawyers

Next Appellate Lawyers: Appellate law is unique in how it takes us a very long time to really get the craft going and how there’s an additional time on top of that for people to know you’ve reached that point.

 

What are you going to ask me? As I recall in California, you’re not going to be given a twenty-minute speech and you’re going to get hit with the hard questions right out of the gate. I hope, Jody, that this does help generate some discussion about this as a concept in Texas because I’m all about efficiency. I don’t like a waste. We’ve talked about how the legal market itself is starting to tighten up and people are looking at this from a consumer standpoint of what value am I getting for all the costs that go into this. You had talked a little about access to justice and eliminating the waste that so often comes with the legal process would go a long way toward making the system better and therefore increasing access to justice.

I have a question about the Texas Supreme Court. Does your court take a number of issues that might be certified or that they’re asked to take from a federal circuit court?

They do generally. They have a pretty collegial relationship with the Fifth Circuit. In fact, one of our Fifth Circuit justices came straight off of the Texas Supreme Court. The chief judge of the Fifth Circuit came off of the Texas Supreme Court. They’ve always had a robust certification process. Part of that is because the Fifth Circuit doesn’t certify things just to certify them. The Texas Supreme Court recognizes that it’s something that’s worth taking up.

It seems like we see 1 or 2 a year on average. They won and the Supreme Court accepted it. It does happen regularly.

One of the main reasons that we wanted to have you on the show and you were gracious enough to reach out to us and approach us about coming on to talk about a topic that you care a lot about. It’s related to the appellate practice directly but it’s not the nuts and bolts of the appellate practice specifically. That is the training of the next generation of appellate lawyers. How did you get interested in that as an experienced lawyer?

I’ve taught in law school clinics or law school appellate advocacy classes at various law schools, from Whittier Law School to UC Irvine and now Loyola Law School in Los Angeles. I’ve taught as an adjunct in those for several years now. I have a lot of exposure to students in that regard. Frankly, gentlemen, at a certain point in your career, when you’ve been doing things for a very long time, you start thinking about, “How do I keep this going? How do I make sure that we have a good cadre of people coming up in the ranks?” It’s that combination of timing in my practice and my experience with students through the clinics and appellate teaching at law schools.

I understand you created a new parameter your new firm focused on, we even called it appellate fellowships. Tell us about that.

I’ve been thinking a lot about how we provide training and opportunities. I think that appellate law is unique in a couple of different ways. One is that it takes us a very long time to get our craft going. On top of having the craft perfected, there’s an additional time on top of that for people knowing that you’ve reached that point. I remember when I first started at Horvitz & Levy, Ellis Horvitz would tell me that there’s a time delay with being an appellate lawyer, being able to bring in business, and being able to have an independent name or being known as an appellate lawyer. It does take a long time to get good at it. The second part of it is that your cases take so long. You might be doing the super juicy case but nobody even knows that case exists or that there’s an opinion for 2 or 3 years.

There’s already a time delay on that. Most people want to hire people who have experience and they’re not going to hire a 1st or 2nd-year attorney to do their appeal. All of those things combined make it a very old-fashioned long-term game for anyone who wants to do appellate law. It could go off track at any point in that system, which is about 10 to 12 years. I’ve been thinking about how do we encourage people to go into appellate practice? If you don’t come out of a clerkship or have some litigation experience, then it’s hard to get hired by an appellate group in a law firm or an appellate boutique. How do you bridge that? There are more and more lawyers who are not going immediately into clerkships.

This is an appellate fellowship program that no other large law firm has done in the country. Horvitz & Levy has a fellowship. Gupta Wessler, which is a plaintiff’s appellate firm in DC, has a fellowship. There may be some others in other places. Appellate boutiques have fellowships but no large law firm had one. I thought we would be the first to do it. It’s named in honor of Marcus Kaufman, who was on the California Supreme Court and started the practice group at Buchalter many years ago.

The fellowship is designed for newly graduated law students or a student who may have a district clerkship under their belt but is looking to, in the future, go for an appellate clerkship. It’s 1 to 2 years. It’s an opportunity to learn alongside the appellate group, learn skills and catapult them into a clerkship if that is what they want to do. Either they can come back after that or they can go elsewhere. It’s meant to bridge that gap for law students and those who are seeking an additional clerkship. In my time teaching in law schools, I’ve seen some people who are appellate ready even before they have a clerkship. There are not many of them but there are few. There was not a place for them. We decided to provide it.

First, how do they get into the program and then, once they’re in, what do they do?

I launched the program right when I started at the firm. It was a little bit ad hoc at that point. We might monetize in 2021 but I reached out to a lot of great judges. Do you have any clerks or externs or know of anyone who might be interested in this? That’s how we got our first poll of applicants reaching out to judges who have graduates. That’s how it happens so far. I’m sure we could have a more detailed process or it could happen where someone would recommend someone to us. In terms of the work, the fellowship is designed to expand to the level of whoever is in that role.

It’s couture, bespoke fellowship for each person, according to their ability as we see them moving through the program. If one is accelerating, they’ll get to do more work. Our first fellow who started in November 2020 has already done the research for Supreme Court briefs. We’ve co-authored an article that came out in January 2021. She’s working on other articles as well. She even drafted part of a very big brief on some issues that we’re doing. She passed the bar in January. She’ll be able to do more things now that she’s passed the bar.

You get them to hit the ground running then.

It’s designed that way. It’s designed to have them learn as fast as they can learn and get as much experience as they can. Some of the fellowships are more focused on cite-checking and co-writing articles only. I want to prepare them as much as possible for the next step in their career. We want to make that as broad as possible and as much as we can in terms of appellate briefing and in research as well.

I know you mentioned that you want to plug them into clerkships after a couple of years. Do you have relationships with judges? Are you trying to cultivate relationships with these people and judges or do you want to get them the experience and then maybe get them out where they can get to know the judges later?

Some judges are quite supportive of some of the applicants already. There are some that come with very supportive judges as well as our support. If there was an appropriate match, we would do what it takes to mentor and make things happen for people. That’s how careers happen and how careers succeed.

Is there any commitment to the firm beyond, “You’re going to show up, we’re going to train you and give you this extra bit?” I love the idea. It’s something that you can’t get this training in law school. If you’re coming into a traditional associate track at a law firm, this is being able to focus on appellate practice if you haven’t already had a clerkship is difficult. What’s the firm? I don’t want to say angle. It’s clear that you’ve come in. You’ve seen the need. You’ve gotten the firm report. I’ll commend you for that. This is something we can look at here in Texas as adopting. You may be hearing from some of our readers on how to go about doing this. That is the question I’m asking though is what’s the obligation of these fellows to the firm when the fellowship is done?

They have an hours requirement while they’re here but it’s a reduced hours requirement and a reduced pay as well. A reduced hours requirement because part of their job is to work on publications that are not billable. They have a reduced associate number of hours that they bill. After 1 or 2 years then, we have the opportunity to either have them stay on if they don’t get a clerkship and they want to continue in it or for them to go elsewhere as well. It’s very flexible to some degree. We want to adjust to the person involved.

There might be some who move on from the fellowship. You see them as you’re sufficiently trained, you can do this work. You don’t need to necessarily go on and do a clerkship to have a meaningful career in appellate law and having them being hired as an associate at that point.

That’s why it’s flexible. For example, Horvitz & Levy’s fellowship, they don’t let people stay on. It’s for a certain period of time. If they get hired for a federal appellate clerkship after that then they might be able to return to the firm as an associate. That’s the only way. I don’t think that’s the only way based on my experience with law students and training newer attorneys. No, it’s possible that they could decide to stay on. It’s also possible, frankly, that people could decide, “I thought appellate law was something else. I want to do something else.” That’s possible too. The good thing is that whatever the training, that training is solid training for whatever litigation or whatever else you’re going to do afterward. You have to know how to write. You have to know how to present things.

That was a role I’ve played for new litigation associates at large firms previously is that I would be the one who was willing to work with them in their first 1 or 2 years when they were not terribly contributing to litigators in the trenches. I would teach them how to write, teach them all of these things. Knowing that many of them didn’t want to do appeals and weren’t going to be with me, I wasn’t going to get the benefit of that training. I was going to work. The litigators in the firm were going to get the benefit of that. I’ve already done that and I see that can happen but I do think that there are very important building blocks from this in whatever you decide to do afterward.

I know it’s new but have you instituted any formal types of training along the way or is it more one-on-one mentoring as they go along and match what they need to their skillset at the time?

It’s one-on-one. I agree with you, Jody, about more formal training, and I would like to engage the rest of our senior appellate lawyers in doing some formal training, both for the fellows. We have an associate I also hired out of a clerkship. They’re very close in level. I’d like to have more formal training but I’ve hit the ground running at the firm. It’s not for me to hire two new people, run an in-person department and do my work. I have to do it but it is on my list when things settle down a little bit.

One thing that this program is designed to get at is mentoring. Your comment now highlights a gap in the methodology of the practice of law. Unless there’s some internal influence or benefit, it’s difficult unless you care that much about people that spend the time to mentor a young lawyer. I’ll speak from my own perspective, as a sole practitioner, there’ve been times that I’ve wanted to hire a younger lawyer. I’ve had other lawyers that have worked with me and it’s been great but it usually works best when they have enough experience to run on their own. It’s not too long if you’ve got those people, that they start deciding that, “I can do this,” I’m going to leave.

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I’ve enjoyed watching folks that no longer work with me have success on their own later in their careers. The idea of hiring a brand-new lawyer and the time that it takes to bring them up to the knowledge and experience level that it would take for them to be productive in the private practice of law has always been a deterrent to me. In my practice setting specifically and it’s true across the board, there are only so many hours that you can spend on the practice of law. The pressure on you in a larger firm and the pressure on me in a smaller firm is not all that different. You’ve got to contribute to the bottom line.

A program like this, for someone, say, in my position, maybe someone goes and does a fellowship and says, “I like this work but maybe the large firm setting isn’t for me.” Being able to hire someone who’s come out of a fellowship like this, to me, it’s an extra layer from a judicial clerkship. You’ve got that real-world experience that would solve a problem that I have, which is paying to train. I need them to be productive. I liked this idea a lot. I want to encourage anyone reading, if you’re in a practice setting where you can adopt something like this, the underlying message here and the reason why such a program like this is necessary is it is harder and harder to become an established appellate lawyer.

As a young lawyer, it is super hard to get the experience you need to do it. Some of us have come up and had good mentors and received the benefit of that and helping us in our careers. The economics of the large firm these days, it’s like, how does a young lawyer come out and say, “I want to be an appellate lawyer and get any real significant experience early on in their career?” It seems like it’s got to be increasingly difficult these days.

TALP 50 | Next Appellate Lawyers

Next Appellate Lawyers: The idea of hiring a brand new lawyer and the time it takes to bring them up to the knowledge and experience level to be in the private practice of law has always been a deterrent.

 

The other thing in my view the fellowship is designed to address is that you think to yourself, “I’m only one person, there are only so many people I can mentor or train.” In the appellate group, you’re not hiring, unlike general litigation, you don’t have classes of people you’re hiring every year. It’s a very discrete group of people and you might hire one associate this year and not have any other room to hire another associate for 4 or 5 years. There’s a huge gap between who you can train and when. The idea of the fellowship to me was that I’m one person, there are only so many people I can train.

If we have a fellowship where people rotate in and out, I could end up training 2 or 3 times as many people overall, which would contribute to the practice in a much broader way than if I have my 1, 2, or 3 associates that are working with us. Another idea I had in mind in doing the fellowship was that I could maximize my impact on training people because there would be more of them. When I was also serving on the Orange County Bar Association Board of Directors, we put together this online Summer Appellate Academy where we gave the students a certificate. It was online because of COVID, we had students from all over the country, not just in California, who joined us for four sessions.

We had appellate judges, experienced practitioners talking about how to get a clerkship or an appellate job, everything from the basics. Ross Guberman talked about brief writing and oral argument. We had a great oral argument presentation. Those have been recorded so that any law students who join the Orange County Bar Association can now listen to those recorded programs. The North Carolina Court of Appeal decided to do a similar thing as well, putting online their training that they do for their externs since the externs could not come. They decided to open it up.

It was that program from North Carolina where I saw a post on LinkedIn about it that I thought that looks great. I want to do something like that here. We’ll do it through the bar association. That’s continuing. We’re going to continue to do that next summer. That’s another way of maximizing your impact. I may not meet any of those people but at least maybe we’ve planted a seed. There are a couple of people who have reached out to me and said, “I’d never thought about appellate practice but now it seems interesting.” I’m trying many different methods to have a larger impact and to give access to people who might not otherwise think about it or have that access.

What a great resource for law students who realistically are not going to have the exposure to appellate practice in law school in a meaningful way, to understand what it’s about. You do have your moot court, your brief writing, you do it but it’s in such a limited capacity that you don’t get to see what the practice looks like. It’s great that you’re out there doing that and hearing you talk about your fellowship program, it almost is a little bit reminiscent of a judicial clerkship because you bring in a couple of people at a time for 1 or 2 years, give them some skills, build the relationship and then send them off, maybe to come back to you, to go out and train others. Your impact extends exponentially when you do that. That’s a great way to do it.

Another project I’ve been involved in through the American Bar Association Appellate Practice Committee was a couple of years ago we put together a guide that is still available online for pro bono programs in the Federal Courts of Appeal around the country. Another important piece of the puzzle is even if you’re getting some practical experience working on appeals, you rarely get to argue. Having someone get their first argument is also another important training aspect. The pro bono programs are one of the best ways to do that. Most of the federal circuit courts guarantee an oral argument if you take one of their pro bono appeals. We have a guide on what the criteria are for each of those. Who do you approach? How do you get on the list?

Those cases are nabbed up pretty quickly out here in the Ninth Circuit. You have to move fast. That’s another hole to fill in that regard, how do you get them oral argument experience? That’s one resource to look at. I’ve always talked to lawyers about that. I also have a very intentional plan for the associates who work with me at each level. Every January, I sit down with them and ask them what it is that they want to accomplish. I tell them what skills they need to have. We work out a plan to make that happen. At a certain point, one of those things is you need to have an oral argument because I need to be able to tell a client when the client says, “Has this person ever argued before?” I can say yes. It might be one argument. They’ll say, “This is the first time. That’s fine. They can do my case.”

Texas has a good appellate program for pro bono cases. A lot of the people that take them are exactly for the reasons you said it. It’s hard, especially as a young lawyer, because you come in, and even if you have the skillset, if the client asks and you say, “No, this will be the first oral argument,” they don’t want to spend the time and money on them because they could have, M.C., with all your experience, come to argue it. Pro bono is a great way to get exposure both to the practical side of learning and also the arguing part for not the expense of going through the client process.

I’m super sensitive to the pro bono aspects, too. That’s how I started my appellate practice, doing a pro bono case in the US Supreme Court when I was young. It’s always intertwined. The pro bono and appellate practice to me are always intertwined. I’ve continued to do a lot of pro bono both through the clinics that I teach in and outside of that, 2 or 3 cases a year, every year. By now, that’s a lot of cases over many years of career. I believe in it strongly as well. It’s an important thing to give back but since we’re talking about the training aspect, it’s an important aspect of that as well.

In what you’re doing, it does increase access to justice because you’re putting qualified, licensed lawyers out there who maybe don’t want to be career appellate lawyers. If you’re competent to do an appeal, then you have a whole new crop of people that can take on these pro bono projects and handle that in a way that someone else off the street might not want to or be able to do.

I was thinking about what we had in place here in Texas that parallels what the Orange County Bar had been doing. I did think about our state bar, our pro bono appellate program. That is a proving ground. You get preference for oral argument through that program. You get the chance to work with some more experienced appellate lawyers. We also have in the Solicitor General’s office here in Texas, there is the Coleman Fellowship. It’s a one-year fellowship program that is a quasi-judicial clerkship. You’re going to come in on a temporary basis. You’re going to work with the Solicitor General’s Office. We have some outstanding advocates trained at the top law schools and clerked for the top judges. What a great experience that the few people that I’ve known have gone through that have had. It isn’t difficult to imagine translating that into private practice setting, which is what you’ve been able to do, M.C. The foundation is there. We’ve got some things here in our state that parallel what you all have been able to do in California. There’s room for more.

The tradition of the fellowship started in the SG’s offices, both with the Bristow Fellowship at the US Solicitor General’s and then a number of states, Texas, California have one now. Utah has one. Not all of them, but there are a few states, that have that fellowship in the SG’s office, I looked at all of those, how they’re organized. I looked at all of the boutiques that have them, which is maybe 3 or 4 that I know of. I looked at all of that when I was crafting our program saying, which parts do I like? Is there a different way we can organize this? What do we want to accomplish? What’s our mission in doing this? I’m committed to remaining fluid in whatever that mission is and what it looks like for each individual person.

My hope in this is that firms from all over the country, or at least in Texas, will hear what you had to say about it, be encouraged and interested in the development of young appellate lawyers. The overall theme here is training up the next generation. With things being tighter, more difficult to get into this practice area, and with senior appellate lawyers working longer, mirroring the trend and broader society, there are more lawyers being trained up but the work is still scarce. The highest-level work bill tends to go to the most experienced appellate lawyers who some of us would look around and say, “When is that guy going to retire so I can increase my statute? It doesn’t seem to be happening.” How many appellate lawyers, Jody, have you seen retire?

Many and there are a lot of them that are still well into their 70s and 80s.

I hope you kept good notes, M.C., because what I suspect will happen is that you may get some phone calls coming out of this conversation. We’re very fortunate and blessed in Texas to have some outstanding appellate groups at larger firms. Many of those are led by women. This is not a gender-based program. We can all face the reality that we need to make sure that there’s equity in training up the next generation of lawyers. Having said that, I’ll say that our practice area tends to be much more gender-fair than some others. We do see a large number of women in positions of authority in large law firms in the appellate practice sections. A large number of women are appellate lawyers. There may be reasons for that. We’d go a little beyond the scope of our talk but one of those might be that it’s seen as a more genteel practice that’s a little more predictable in terms of scheduling and lends itself to more stability in terms of daily life.

I’m not that old. During my time, focusing on appellate practice, I’ve seen changes in that regard, not always in a good direction. There were many more women, at least in California, in appellate practice many years ago because a lot of the incentive to do it was its interesting work. You can balance other things in your life including family. You can make plans as opposed to how I remember when I was a litigator that was much harder to do. There was that. As the practice has gained prestige, the work has become more sophisticated, and more large firms have departments as well as solo and boutiques, I have seen more men in the practice.

There’s been either a flight or more men applying for positions that they might not have otherwise applied for because it may not make as much money as other kinds of practice but it’s interesting and at least has a prestige level to it. More men started applying and fewer women have come into it unless women have led things. You see that at the US Supreme Court level with not that many women arguing cases. They’re getting trained out of the SGs office largely. Getting trained by the government, not another firm. There’s a need to make sure of that but I would push back a little bit on that in terms of, at least out here in California, there are not that many women in high-level appellate practice. There are not that many who lead groups.

One thing that has become an increasing topic of discussion throughout the nation has been a lack of diversity in appellate practice. I know that there are a lot of groups out there that are trying to push that and be intentional about it. That is great because that can only increase our ranks and help increase that going forward. It sounds like this is a great opportunity for you to help with that too because you get to handpick people who might not traditionally be called in appellate practice. That’s great that you’ve set this in place.

TALP 50 | Next Appellate Lawyers

Next Appellate Lawyers: More generations of lawyers are being trained up, but the work is still scarce, with the highest level work tending to go to the most experienced appellate lawyers.

 

I’m thinking about what you said about the gender gap. We certainly see it emphasized in the US Supreme Court practice. We can speculate and maybe my thought is not very well organized on this but I’m a little spoiled. How we have it here in Texas, it’s still a new specialty. We’ve been at it for 30-ish years or so, which may be one reason why people haven’t started leaving it yet. We have had a good representation of women and maybe we do need to think about the overall representation of women in the profession and people of color, minorities, to try and develop that going forward.

Your program would have a lot of promise in both of those areas, if you can focus on who could be shining stars in the area going forward if they’re given the right opportunity. That’s the thing, getting the opportunity. That’s where it’s hard.

What advice would you give to firms that are hearing this and maybe thinking, “This is a great idea?” What are some things that you wish you had known or, now having done this a little bit and have it under your belt, that you feel are important to think about if you’re maybe considering starting some program like this?

What we talked about, having formal training as well as the one-on-one training, would be a helpful thing to add. That’s something that I’ve planned to add but something that I think would be nice to have from the get-go that there’s something set. I have my apprenticeship model for this week, read this chapter of this appeals guide and then we’ll discuss it the next week but something a little more formal than that would be good. I would also encourage everyone to try and invite the entire appellate group to become involved in that process of working with the fellow so they get exposure to other people and other ways of working and writing. It takes a village to raise someone so that you can spread out the time that people are spending training. I’ve been largely focused on it. This is my heads up to my team to get ready, you might be asked to participate.

I’ve been lucky to have very good mentors. Everybody has such a different style and every advocate has to find their own, too. More exposure to ways of doing things can only help you in finding your own unique way and your own voice because that’s what everybody has to do. There are many different strengths in ways to be a good appellate advocate even within the same process.

I think about it too as not just skills but developing a culture of excellence for them. No matter what they do, I think of it as appellate lawyers, we have to be better than the trial lawyer or litigator down the hall, because why would they hire us? If we weren’t different, why do they need us? Our job is different. We have to look at things differently but we also have to be focused on the excellence of the product. No matter what happens, if someone decides not to be an appellate lawyer after that, having a culture of excellence and care with regard to one’s work is always marketable.

That is a great thing to remember, no matter what your practice is, you do have to be excellent and that’s why you want to be excellent so that people can set you apart from others. That’s a great lesson for anyone to take with them no matter where they go.

Having a culture of excellence and care with regard to one's work is always marketable. Click To Tweet

We usually ask our guests as we wind down an episode to give a tip or a war story but being excellent and all of that is a good place where we could wrap up. Is there something else, M.C., that you would offer on top of that would fit the tip of war story genre?

No, that probably covers it.

M.C., this has been tremendous. I’m glad that you approached us about coming on the show. You’ve been very generous with your time. Thank you so much for doing this and for telling us about what you’ve been working on with the fellowship and hopefully inspiring other firms to do something similar.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About M.C. Sungaila

TALP 50 | Next Appellate LawyersM.C. Sungaila is the leader of the Firm’s Appellate practice group and a Shareholder in the Firm’s Orange County office. Ms. Sungaila is a highly regarded appellate attorney who has briefed and argued appeals raising cutting-edge and fundamental business issues for over two decades. Her work has helped shape undeveloped areas of the law in constitutional law, employment, franchisor liability, product liability, class actions, probate, immigration, Holocaust art recovery, and human rights. She crafts creative approaches to clients’ emerging legal issues and provides pretrial consultations in cases where an appeal by either side appears inevitable.

Chambers USA reports that clients describe her as “a phenomenal writer,” “an excellent strategist,” and a “gifted appellate lawyer who consistently delivers bottom-line results.” Clients praise her “great practical sense,” “laser” focus on key issues, “excellence in creative thinking,” “deep local knowledge of the California Supreme Court, as well as other appellate venues,” and her ability to “advise on the business side just as well as she does on the legal side.” She has been recognized for over a decade by the Daily Journal as one of California’s 100 Leading Women Lawyers, and as one of the state’s Top Labor & Employment Lawyers. She is a recipient of two back-to-back California Lawyer of the Year (CLAY) awards, including one in 2015 from California Lawyer magazine, Daily Journal Corporation, for the precedent-setting franchisor vicarious liability case she argued before the California Supreme Court, Patterson v. Domino’s Pizza.

In addition to her appellate practice, Ms. Sungaila is also frequently recognized for her sustained commitment to community service and pro bono work. In 2017, she was awarded the Ellis Island Medal of Honor, whose recipients include seven U.S. Presidents, Nobel Prize winners, athletes, leaders of industry, artists, and others whose work has made a lasting impact on humanity, for her combined professional achievements and humanitarian and pro bono work. She has also been recognized by groups such as California Women Lawyers, Alpha Phi International Fraternity, Orange County Women Lawyers, the Orange County Hispanic Bar Association, the Women Lawyers Association of Los Angeles, and Coastline Community College Foundation.

Ms. Sungaila is regularly published and quoted in top industry publications, and her articles relating to effective amicus briefing, appellate brief writing, and gender issues are cited frequently and are required reading in law schools throughout North America. She has taught appellate law at University of California, Irvine, Loyola, and Whitter Law Schools.

 

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