TALP 42 | Appellate Blogging

 

For years, appellate attorneys and judges have stayed on top of the latest appellate news with the How Appealing blog. Howard Bashman, the attorney behind the blog, joins Todd Smith and Jody Sanders to share his journey into appellate law and starting his blog. Howard’s career has seen the full spectrum, starting as a clerk for Judge William Hutchinson of the Third Circuit, working at various-sized firms, and finally settling into solo practice. Howard shares stories about maintaining a successful solo practice, building client relationships, and some of his more memorable cases.

Listen to the podcast here:

Appellate Blogging and Solo Practice | Howard Bashman

We have with us one of the very early law bloggers out in the blogosphere, a fellow appellate attorney, Pennsylvania appellate lawyer Howard Bashman. Welcome to the show, Howard.

Thank you for having me. It’s a pleasure to be here.

We’re happy to have you. It’s quite a treat for me as a longtime blogger myself to get to see you face to face, such as it is on a Zoom call, talk with you and learn more about your practice and how you got going with the blog. Before we launch into all that, tell us where you are, what you’re doing, and give us some background information on you.

I began as a journalist in high school. I was fortunate to become the editor in chief of my student newspaper at Penn Charter in Philadelphia, which is a Quaker school. It had the first-ever student newspaper in the United States going back to 1700 and something. I went to Columbia University in New York City as an undergraduate and wrote for the Columbia Spectator as the daily reporter. I was fortunate to go to law school at Emory University in Atlanta. I had a clerkship on the Third Circuit, which is the federal appellate court based back in Philadelphia, which is where I grew up. My judge was based in Pottsville, Pennsylvania, which is famous among other things for being the home of Yuengling beer. It’s in Schuylkill County, Pennsylvania, which is an anthracite coal region.

That was an interesting two years I spent working for that judge. I was fortunate to get hired at a litigation law firm in Philadelphia that did not have an established appellate practice set up. I was interested in doing appellate law and we can discuss how and why that came about. I was fortunate to be able to focus on that at that firm and become a partner there. Around 2000, I went to another law firm, the Pittsburgh-based Buchanan Ingersoll law firm, in its Philadelphia office with a number of my partners from my prior law firm.

In February of 2004, I became a solo practitioner. We can talk about how that came to be. In between there, in May of 2002, I started the How Appealing blog, which is the way that many appellate lawyers from throughout the nation know me. In addition to that, since the year 2000, I’ve written a monthly appellate column in a newspaper called The Legal Intelligencer, which is the daily newspaper for lawyers in Philadelphia. That monthly column about appellate law that is read by all of the lawyers in Philadelphia is a much greater source of my name recognition and the types of business I get to work on in my legal practice than my blog, which is more or less something I enjoy doing on the side. That’s what I’ve been doing since becoming a solo practitioner in 2004, thankfully I’ve been successful. I continue to enjoy doing it and so here we are.

What got you interested in appellate practice? Did it start with your clerkship or was it even going back further than that?

It was during law school when I was fortunate to be on the law journal at Emory. Back then, you’d have some office hours or you had to be there. It wasn’t always the most exciting time to be sitting in the law journal office. They had the softbound copies of the Federal Reporter on the shelf. What would happen would be when the library got the bound copies of the Federal Reporter, which contains federal appellate decisions, the library would move the softbound copies into the law journal offices.

For whatever reason, out of boredom, I began at some point looking through the Federal Reporter and noticing some of these decisions are interesting. It is also well-written and the type of persuasion that was being used, even by the judges, and arguing back and forth between the dissenting opinion and the majority opinion. I became interested in possibly doing appellate law at that time. Because of the fact that I went straight through from high school to college, to law school, by the time that I was going to be graduating law school, I was still quite young. I was fortunate also not to have huge student loans. We’re talking now about graduating in 1989. It’s not like now where you can rack up incredibly large student loans.

Back then, there were limits on those. Even though I had used student loans to get through school, it was not such a burden that I had to look for a high paying job at that time. Given all those considerations, I decided to apply for an appellate clerkship. I looked at the Second Circuit, the Third Circuit, the Eleventh Circuit, among others. I was fortunate to get interviews on all three of the circuits that I mentioned. The judge who hired me was a former justice on the PA Supreme Court before President Reagan appointed him to the Third Circuit. That clerkship in particular ended up being a wonderful one for what I do now, which is practicing largely in the Third Circuit and the Pennsylvania State Appellate Courts.

TALP 42 | Appellate Blogging

Appellate Blogging: Part of being a good appellate lawyer, whether you’re on your own or at a firm, is being someone easy to work with.

 

That was going to be my next question. What type of work do you do? Is it primarily civil, civil and criminal? Geographically, it sounds like you focused on the Third Circuit in Pennsylvania.

My practice is largely civil. From time to time, I’ll do a criminal appeal, but only if it’s an area that I feel comfortable. The particular area of practice that I’ve managed to develop, more or less through word of mouth, is being the go-to appellate person for plaintiff’s attorneys in high dollar personal injury cases. That’s any type of case, medical malpractice, car accidents, injury at the workplace. Even though my practice is not looking to see, how can I get to the US Supreme Court? Although I have sat at the counsel table twice in two cases that came up when I was at my first law firm and wrote the briefs in a case called Celotex v. Edwards, which is the Celotex US Supreme Court case that no one has ever heard of.

There’s one that’s still famous as being the summary judgment standard. It’s not this one. This is the one that involves bankruptcy and supersedeas bonds, which ironically are at least one area that appellate lawyers care a lot about. The other is highly technical, which is another thing that appellate lawyers seem to focus on a lot. In that case, I was told to write the briefs for Celotex on behalf of a huge team of lawyers. A lot of people knew exactly what the case was about and what was going on in these areas of law. My side ended up winning that case 7 to 2 in an opinion from Chief Justice Rehnquist. Upon going on my own as a solo practitioner, that’s the practice area that I’ve developed, plaintiff’s side, high value, personal injury cases. There are other cases in which I represent companies in commercial disputes. If it’s defending a personal injury case, chances are that’s not something that I can take on because that would be too much of a conflict with my bread-and-butter practice.

You’ve been in practice long enough where that’s an issue. We talked about solo practice and one of the nice things about that is not having big conflict issues. If you’re regularly and consistently representing injured plaintiffs, to be hired on the other side wouldn’t be the best development for you among your plaintiff lawyer clients.

Our careers to some degree do parallel one another because I see you became a solo in 2004. If I have the dates right, that’s after spending around ten years practicing at a pretty big firm. It’s funny you should bring up the issue of conflicts because in a case where I was working on a commercial dispute on behalf of a bank, the case was heading to appeal where they were suing a developer for having defaulted on a loan. I was in the background at the trial court level, meaning that I was consulting on the case until it reached the appellate court. At some point, I got a call on the phone in my office from the other party asking me if I could be his appellate attorney. I didn’t even know at the time if I was cleared to reveal that I was already hired by the other side because it had not been made public yet. It’s a voicemail message, to begin with. I went back to my client, I said, “I’ve been contacted by the other side. I can’t represent it, but do you want me to tell them that I’m on your side or I can’t do it?” They said, “You can tell them that you’re on our side and that’s why you can’t do it.” It is a small world that I did have at least one case that comes to mind where both sides wanted to have me.

You’ve reached a point of success in solo practice if both sides of litigation are calling you about the same case. That’s neat.

How is the legal landscape in Pennsylvania for personal injury? I know in Texas we have a wide and varied landscape on that. Generally speaking, we have a lot of conservative appellate courts and a conservative Texas Supreme Court overall. What’s it like in Pennsylvania?

I’d say in Pennsylvania, it’s far more balanced. Our Supreme Court has more Democratic-elected justices than Republican-elected justices. It’s not purely a matter of political background either. One of the Republican-elected justices was for quite some time married to a successful plaintiff personal injury attorney. She has a lot of insight and appreciation for the law in that area, and often rules in favor of the plaintiff’s side. I appreciate what you’re saying because there are wonderful plaintiff-side firms in Texas. Many of these lawyers end up coming to Pennsylvania. If you want to listen to the Chamber of Commerce, Philadelphia maybe a hell hole. If you want to say it may be a more even-handed basis, it’s a desired forum to be in oftentimes on the plaintiff’s side.

I’ve done many appeals for attorneys who were based in Texas and some of my favorite memories are those cases and the wonderful outcomes that they’ve produced. I’m happy that the sorts of cases that I’ve been able to work on here are not ones that have come from local firms, which do end up sending me the bulk of my work. For these out-of-town lawyers who have asked around and who have been told, “You might want to see this guy. He might be able to help you out.”

When you’re working with the plaintiff’s lawyers, how are you structuring? Are you working on a contingent fee basis? Are you doing a flat fee arrangement or does it depend on the case?

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I’m open to all different approaches depending upon what the person who has contacted me prefers. A lot of these law firms that I end up working for are successful plaintiff-side firms. It’s more in their interest to pay me an hourly rate than to cut me in on part of the action. To pick one case several years ago was a $54 million Acura Integra rollover case involving brain injury. The person was unable to walk again following the accident. The question was whether the car safety features had worked properly or not. Acura is part of Honda. They went out and hired Ted Boutrous of Gibson Dunn & Crutcher, who is a well-known appellate attorney.

I argued the appeal against him in Pennsylvania State Intermediate Appellate Court, which was a ton of fun. Todd, since you mentioned it, being a solo practitioner, one of the wonderful things about it, in my view, is that you can offer to represent clients on a fee basis that makes sense under the circumstances. As my wife will say, “Howard, why aren’t you doing more cases on a contingent fee basis? All those that you have done so far have been so wonderful.” I’ve been fortunate in that a high number of the overall cases I’ve accepted on a partial contingent fee basis have ended up producing results for everyone involved. As long as I have work to do, I’m happy. If they want to pay me the hourly rate, that’s great. If they want to do it on some other basis, I’m happy to consider that as well. Flat fee, a lot of times that does make sense. I try to be competitive there as well when I can do so.

The beauty of solo practice is you can do what works for your client base. If you’re like me, you represent the actual party litigant. Your client relationship most often is with the trial lawyer.

That’s part of being a good appellate lawyer, whether you’re on your own or at a firm, is being able to be someone who’s easy to work with. There are so many different aspects to that. One is doing good work. The other is understanding the perspective of the people that you’re trying to help. I’ve been in situations where somebody brings me in as the trial lawyer to have a meeting with me to discuss an appeal that they might like my help on. This doesn’t happen all that often anymore. I recall it happening from time to time in the past, “Howard, I have a list of 80 things that the trial judge did wrong in our case. Let me start off with these things.”

At some point, you have to explain, those 80 things are horrible, but the chances of our success here are going to be much greater if we could try to focus on the ones that are the most important. Maybe the ones that have the greatest likelihood of altering the outcome if we’re not happy with it or keeping the outcome the same if we like the outcome. It is always an enjoyable experience to work with other attorneys. One of the things that I enjoy the most is when they become repeat customers. At some point, it’s as though they realized that you know what you’re doing. They want you to look at it before it gets submitted. They’re happy with your work because you’ve already shown them that you know what you’re doing, you can get results where possible.

I’m familiar with those conversations. Thankfully, it’s usually not 80 issues, but you have to have that funnel conversation, “These are all crummy things that happened to you, but we’re going to have to pick our best shots and go with them.” Once you get past a small number, they’re not going to be interested anymore.

One thing that prompted us to get in touch was you had made a comment on Twitter. I had written a tweet describing our mutual acquaintance, Carl Cecere, who is practicing unapologetically solo. I get the sense, Howard, that you fall in that same category. You’re a solo lifer more or less. Is that the case?

To begin, there’s not a day where I don’t thank my lucky stars that I’m able to do this work. I was very happy with the firms that I came up through after my clerkship. I made a move to another firm that seemed to be more financially advantageous to me and my colleagues who went there. It’s a little bit difficult at a bigger firm to show up and expect everyone to turn over their appeals to you because you’re the appellate guy who has appeared on the scene. At that second firm, I was running into a variety of issues.

One was the amount of work from inside the firm that I was getting. There was not as much as there was at my original firm. Maybe I’ll spend a second at some point explaining how things worked out so wonderfully at the start of my career at that original firm. It’s an interesting story. That even involves Akin Gump to some degree back out of Dallas. Focusing now on going solo, at my new firm, fortunately, I was at a point in my career where people would be seeking to hire me from outside. In particular, one potential new client came to me and they were representing a bank that was having a commercial dispute with another bank.

Neither bank was a client of this firm. I put it through the conflicts process and somebody who was representing a bank that was a client of the firm came to me and said, “Howard, what if my client doesn’t like the fact that this other bank is being sued by our firm in your case, on behalf of this other bank?” I said, “Are you saying I can’t do this case now?” He said, “Yes, pretty much you can’t do this case.” There came a point where I saw that I had enough work to do on one particular case. It wasn’t specifically that case. If I went and became a solo practitioner at this time, I knew that at least for six months or so that I’d have work to do.

TALP 42 | Appellate Blogging

Appellate Blogging: There is a fine line between blogging and journalism.

 

Fortunately, this was one of those cases where I did not settle and went through the whole process. Thankfully, the phone kept ringing. I realized that solo practice is not for everyone because you need to get work. As I was alluding to before, thanks to my appellate column and word of mouth among the plaintiff’s bar in the Philadelphia area, my marketing consists of writing that monthly appellate column and answering the phone or responding to an email. That’s how it works out.

Have there been times where I’m sitting here wondering, what am I going to do next? I’m sure that happens from time to time. Those periods have been few and far between, and haven’t lasted for extended amounts of time. I’ve been fortunate to be able to be successful here. Not to spend time talking about my wife who’s a wonderful person and who has known me since high school, she had said to me back in 2004, “Do you think that going out on your own is the right thing to do or not? Because you have this financial security being at a firm. If you’re on your own, you wouldn’t have that.”

I’m happy to say that it has worked out well. Being able to keep rates at what they had been before and stay competitive in the market. What she’s been able to realize is that now with my overhead, which is way smaller than what it had been before. I can work a lot fewer hours. I could coach my son’s softball team. He graduated from law school himself. He doesn’t have a softball team anymore that I’m coaching. When he was growing up, I could be there for him and be around in a way that I couldn’t if I was working at a big firm, crazy hours, spending an hour commuting back and forth to Center City, Philadelphia. My office now is five minutes from home. That’s the way it has been since I went solo.

When you talked a little bit about your marketing in your column, one of the things that people know you the most for is your How Appealing blog. How did that get started? You’ve been doing it for a long time.

It has an unusual origin story. I was at that second firm that I came in to be the appellate partner at the Pittsburgh-based firm. One of the associates who came with me from my original firm, who was a smart and interesting fellow, kept visiting me and saying, “Look at this website. It’s a website where law professors are talking about interesting issues in the law.” I kept brushing him off saying, “Why would I care about what law professors think about anything?” My apologies in advance to law professors who are not tuning out our podcast because I’ve changed that view. It was the Volokh Conspiracy website, which had started a little bit earlier in 2002. I did take a look at it.

I thought, “This is interesting. I wonder if anybody is writing any blogs about appellate law.” I did a quick search for appellate blogs and I did not find any. I did find one from a Reed Smith partner based out in California, that was a personal blog. She was an appellate lawyer, which is why that came up in the search, but she wasn’t talking about appellate things. I figured I’d give it a shot because I’ve been writing the column now for a few years. From time to time, there would be topics that might not justify treatment as an entire month’s topic that I thought might be fun to write about. I started the site.

Soon thereafter, Eugene Volokh links to a post on my blog and his site already had an established readership. That caused the readership of my blog to grow. Within a short amount of time after that, Tony Mauro, who writes for the National Law Journal, wrote an entire article about my blog in the National Law Journal. That caused the number of readers on my site to skyrocket. For a time there, I don’t have it anymore, it was called like a hit counter or something. You can go in and see who’s visiting your blog. It would blow my mind that there would be, “The US Supreme Court is visiting your blog.” I’d always stay cool. It’s got to be Justice Scalia or Justice Thomas.

At a Fourth Circuit conference that I was invited to speak at, I bumped into Chief Justice Roberts. If I recall it accurately, he said, “Howard, if you’re here, who’s writing on your blog right there?” At some point either before or after that, I had a couple of reporters who cover the US Supreme Court tell me that they had interviews in Chief Justice Roberts’ office. My blog was on his computer. That was the most mind-blowing thing of all. I can assure you that if I had to sit there and think that Chief Justice Roberts is going to read this post that I’m about to send on, I could never post anything because I’d be too terrified. Those are the sorts of things that I keep out of my mind as much as possible.

How do you incorporate it into your practice and keep up with it every day? It seems like a lot of work to stay on top of that stuff.

As I alluded to before, to have a loyal and enthusiastic readership, I will get emails or Twitter messages throughout the day if I seem to have overlooked something or something has happened that maybe somebody would like to draw my attention to. As I’m sure you guys have seen, thanks to Twitter. It used to be when I started my blog back in 2002, there was no Twitter. At some point in 2006, Twitter comes onto the scene and there is this wonderful appellate Twitter community that I’d like to think of myself as a small part of as well that involves a lot of practitioners and journalists.

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These journalists, who are much more skilled at this than I am, they can sign up through the PACER ECF notices so that they get instantaneous notice of court rulings even before they’re posted to a court’s website. It’s not unusual this happened when the First Circuit decided the Harvard affirmative action case to see, mention of it immediately on Twitter, even though the First Circuit’s website hasn’t posted the opinion up there yet. I’ve even had on rare occasions where judges send me an opinion that has been issued by their court that hasn’t appeared on the court’s website yet.

I’m sure if I went in through PACER ECF, I could probably download it myself. I’m not breaking any confidentiality by doing that. It is interesting to see how people like to get noticed on my blog. I appreciate that people think that it’s helpful to them to see their work, their article or whatever is mentioned on my sites. That reinforces to me that there is some value in what I’m doing. To reiterate this, my blog has gotten me some business, but if I were to try to figure out how much time I devote to it versus how much business I get out of it, it’s truly a labor of love as I’m sure this show is for you guys.

In May of 2017, my blog celebrated its fifteenth birthday. I decided for the heck of it to put up a post saying, “If people want to share their impressions of how you’ve liked the blog over the years or what you think about it, send me an email and I’ll publish these emails over time.” I ended up publishing one a day until the end of May 2017. I got emails from a whole variety of people, Adam Liptak who covers the US Supreme Court for the New York Times, William K. Suter, who was the other Suter at the US Supreme Court telling me when he was working there, he would read my site every day and a whole bunch of other encouraging feedback from readers. Having the blog allows me to indulge my journalistic tendencies if not doing a lot of original work serving as a clearinghouse or collection of resources for people who share similar interests with me.

There is a fine line between blogging and journalism. You got in on the ground floor of the blogging wave. The earliest blog was in 2000 or something like that. The law blogging started even after your blog started. It was going great guns when I went out on my own in 2006. I wouldn’t even say it was going great guns. It was still fairly early. It was novel when I started a blog. To your point about judges reading them, I knew that this was important when I had a Texas Supreme Court judge pulled me aside and say, “You haven’t posted in a few days, is everything okay?” As I’ve gotten busier in my career, it’s been more difficult to spend time doing that because it does take up a lot of time. I’m surprised to hear you say, Howard, that you don’t get a lot of business right off your blog.

I will say that you get a lot of name recognition that comes from it. It’s hard to measure the ROI on a blog because you can’t say that spending this amount of time or this amount of money translates into this part of your revenue stream. There’s an intangible benefit that is hard to duplicate. Maybe you see it now in social media like Twitter, to some degree the same, but it’s amazing that you’ve accomplished this speed of keeping the thing up all these years. You’re quite a prolific poster and you provide a lot of information. I’m looking at your posts. There are quite a few already on timely topics. It’s neat how you managed to meld your interest in journalism with the blog so that you’re providing that newsworthy service to people about this little niche area that you work in. It’s cool.

It’s an area that has many wonderful people practicing it. I’ve been fortunate to get to know a lot of them as the results of my site. At some point, we’re going to talk more about Texas and maybe I’ll launch into that right now. If it wasn’t for the pandemic continuing to rage out of control, I would be in Austin, Texas now at the Appellate Judges Education Institute Conference that had been scheduled to take place there. I was fortunate to be asked to serve on that Entities Education Committee starting in 2016 when it held the conference right here in Philadelphia. I’ve enjoyed being a part of that organization.

Hopefully, we’ll be able to do it in 2021. I would have already found my way down to Black’s Barbecue in Lockhart and had a beef rib. In some ways, it’s healthier possibly that I’m not there, but I do enjoy visiting Texas. I was also reminded of Texas when I got a decision in a case that I’m appellate counsel from the PA Superior Court, Pennsylvania’s Intermediate Appellate Court in a case where Dana Livingston of Austin had argued the other side. The reason I’m mentioning this is because my side was happy with how it came out. I was reminded of Texas again, thanks to that. It is amazing, being here in Pennsylvania, how many wonderful lawyers I’ve been able to argue against mostly, whether it was Lisa Blatt at the Third Circuit. She’s at Williams & Connolly, she’s the attorney who has this amazing winning record at the US Supreme Court.

I believe she argued the first remote oral argument of the pandemic in the case involving Booking.com. The court delivered one more ruling in her favor. She was on the opposite side of me at the Third Circuit in a case that was on a 1292 B Certification that my side was able to get. I mentioned Ted Boutrous before at Gibson Dunn. I’ve argued against Paul Clement at the Third Circuit. Neal Katyal was on an Amicus brief against me at the PA Supreme Court. Sean Marotta, who is one of the leading voices on Appellate Twitter, was the second chair against me in the PA Superior Court.

Jay Lefkowitz is not a name that is known to everyone, but he’s a US Supreme Court lawyer at Kirkland & Ellis, which is now Paul Clement’s firm as well. Jay does a lot of their prescription drug preemption cases. He had won a case involving a generic preemption of prescription drug labeling at the US Supreme Court. He came to the PA Superior Court to argue a case against me where I was on the plaintiff’s side. Even staying home, I’ve been fortunate to get to know and even to get to appear against many talented attorneys.

That’s a neat experience. I’m surprised that you’ve had such a deep level of experience going against lawyers up there in Pennsylvania. It’s true that I’ve seen a lot of plaintiff lawyers in particular who have expanded outside the state’s boundaries. You mentioned Philadelphia is a judicial hellhole. I can’t remember that Philly was on that official list of judicial hellholes from several years ago, but there were parts of Texas that were on that list.

TALP 42 | Appellate Blogging

Appellate Blogging: It’s hard to measure the ROI on a blog, but there’s an intangible benefit in it that is hard to duplicate.

 

It’s either the Chamber of Commerce or some other business organization that puts those lists together. It’s not my term. It is somewhat humorous because I see plenty of cases here where the defendants win at trial. Don’t give up hope if you’re on the defense side, it is possible to do. I was mentioning how I came from the clerkship to that firm, that was my first firm. We had this case against Akin Gump. It was interesting because this was a firm that continues to exist now that I still have a lot of great feelings towards called Montgomery McCracken based in Philadelphia. I started working there right after my clerkship in 1991. They had hired a class that maybe had ten or so associates. I was the only one coming in out of the appellate clerkship if I recall correctly. They would send newsletters once a month or so.

I remember seeing a newsletter where it had mentioned that some of the first-year associates had started early and were already at these seemingly fancy locations in Europe on a project. I was coming in technically as a third-year associate because I did a two-year clerkship on the Third Circuit with my judge. I was thinking, “Why didn’t I get sent somewhere nice in Europe?” I get there and I find out that it was like a document review project for a medical device manufacturer client of the firm. They were saving me to work on some appeals and other stuff that needed me to be in the office in Philadelphia. Not too long after starting work there, I was fortunate to be asked to work on a case that firm had handled on a plaintiff’s side contingent fee basis, which was unusual for that firm. It’s mostly a defense firm.

They had obtained a $54 million verdict for a plaintiff in a business tort case in federal court in Philadelphia. A good amount of that money involved a punitive damages award. The defendant was Swarovski Crystal and they were represented by a big Philadelphia firm, maybe Morgan Lewis. I forget exactly which one. For their appellate case, they also brought on Akin Gump out of Dallas, Texas. I was asked to work on the appellate brief in that case. They had a draft already, which I’m sure is another experience you have had in cases.

What they did is they took all the trial court briefs and tried to make it into this appellate brief. It was like an 80-page document. That was way over the page limit at the time. It was a huge mess. I said to the partner who had tried the case, “Instead of me trying to fix this, would it be okay if I took this and then created something that would be how I would do it if I used what was in there, but wrote it anew?” They said, “That’s fine. We still have plenty of time. If we don’t like that, we can always go back to this.”

They did like that. Even the person who had put that monstrosity together agreed that what I had done was preferable to that. We ended up going more or less with what I had done. The case was argued somehow when I was on vacation with my wife’s family and my wife in the US Virgin Islands, which for the record is part of the Third Circuit. The case is being argued back in Philadelphia. I wasn’t there to see the oral argument, but I heard about it on the phone while I was away. Maybe 2 to 3 weeks later, and this was 2003, 2004, back when some appellate courts still did this, we’re on the winning side of the trial. The Third Circuit, after the oral argument, puts down what they call a judgment order that says, “Upon hearing the oral argument that briefs the parties, the judges affirm.” That was the decision in a case that was a $54 million case that had punitive damage, had a lot of questions involving can a new business sue for loss of profits or not.

All these different cutting edges of the law and this was at the same time that the TXO case was up in front of the US Supreme Court, which was another punitive damage case that the Supreme Court decided to hear out of West Virginia. The other side decided that they would try to ask Justice Suter for a stay of the mandates. They didn’t have to pay the judgment pending their cert petition. I believe that the motion was filed right at the end of the term, but still before the TXO decision came down. We had to scramble to put in an opposition to that. Maybe a week later that was denied. The punitive damages challenged and TXO is denied, and ultimately cert was denied. My client had recovered the judgment from the surety bonds before the cert was even denied because there was no stay of the mandates.

That was a contingent fee case for my firm since they ended up getting maybe a $13 million fee out of that case. The firm was maybe 70 to 100 lawyers at the time. That was doubling the profits of every partner at the firm for that year. That was the first appeal that I did at that firm from start to finish. At that point, as you might imagine, the partners at that firm would not hesitate and did not hesitate thankfully to come to me when they needed somebody to help them.

You made them all a whole lot of money that year. What an amazing outcome generally, but that one-word opinion affirmed. What would there be for the Supreme Court to review in that situation? There’s no application of the law. That’s crazy if you think about it.

The Third Circuit has gotten away from deciding cases on that basis. You still see it sometimes now with the federal circuit. I don’t know if it’s patent cases or other cases there. It usually for better but maybe sometimes for worse, if you’re not of the witty good. You do at least get some explanation from appellate courts. As someone who is a commentator as well as a practitioner, I do appreciate that. Being on the winning end, you can’t beat it.

That whole experience of being a relatively new lawyer and getting told to turn the prior briefing into an appellate brief. They even did you the favor of putting together a draft for you. That would have been a half a day’s project for you then, Howard. Good brief.

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I like to call that a Frankenbrief where you take a bunch of stuff and stick it all together and say, “Here’s a brief.” “No, not quite.”

We need to continue educating our trial lawyer brothers and sisters, about what an appellate brief is, because that’s not it.

I know it’s been so many years since I did my clerkship. One of the lessons that was driven home to me again and again during the clerkship is the difference that a good brief can make as compared to one that’s not helpful at all. I have nothing against big law firms, great law firms. Great law firms are great for a reason. As practicing lawyers, we realize that any law firm’s output is only as good as the people that are doing the work. During my clerkship, again and again there would be times where I’d see a brief from a law firm that I think, “This is a great law firm,” but you read the brief and maybe it wasn’t a great brief. This was from 1989 to 1991 before there was maybe as much specialization of appellate work as there is now.

Even now in the minds of many lawyers, if you’re someone whose job it is to be a litigator, you should be able to do the case from start to finish. One of the things that we’re here to try to help people appreciate is that in many cases, you can gain value by having someone who is an expert or good at doing what we do and communicating, writing and who understands what the judges are looking for and how to be effective. After that oral argument that I had over the Zoom call with Dana Livingston, one of my co-counsel said to me, and this struck home with me.

I can’t appreciate this while I’m doing it because he was watching over the YouTube stream, “Howard, I could tell when you were talking to the judges that these judges are listening to what you have to say intently.” This was a panel of judges who I have argued before numerous times in many important cases. Some of whom I’ve spoken with off the bench as well. That is special to me as a practitioner to think these judges care what I have to say. It’s what you hope for, but it’s nice to see it there in action.

That ties directly into the name recognition that you acquire and spending time putting out good content related to the appellate field. People associate your name with what you’ve been writing and knowing that they can trust what you say. That’s 75% of being a good appellate lawyer. It is being able to open your mouth and have the courts listen because they know that what you say is trustworthy. You’re advocating a position, but you’re going to be true to the law or explain your reasons in a way that’s more than just a firewall. Hopefully, you’re on the winning side, but not always. Nobody bats 1,000 in this practice area. That’s for sure.

Credibility is huge and important. That might mean having to deal with the problem side of your case in a frank and honest way. Judges do appreciate that like everyone. It takes time to become comfortable giving oral arguments. I’m still nervous from time to time when I’m about to give that even though I’ve done it many times. I enjoy doing it as well at the moment. Also, being somebody who follows the rules that you’re supposed to follow, which is if the judge opens his or her mouth, you shut your mouth. I’ve been at the other table where a Third Circuit judge will say to somebody else, “Don’t point at me while you’re arguing.”

Some people will get up there and have styles that turn off the bench. Having done the clerkship, you can see what works when other people are at the podium and maybe giving a jury speech is not the way to do it on appeal. There are many different styles that can be effective. That was one of the things that I tried to work hard on early on. Carl’s touched on this in his appearance here, which is: become a student of good writing, read the briefs on the Solicitor General’s website, read the opinions of judges who are great writers, read good writing in The New Yorker or other places that convey facts in an interesting way. See how to develop persuasion that is powerful without using adjectives and ad hominem attacks on people. Many people think that that’s the way to do it. It’s exactly the opposite way to do it.

I’ve enjoyed hearing your stories, Howard. One thing we like to do is ask our guests to provide a tip or a war story. You provided a good tip and looping back to our discussion, but did you have another one that you’d like to leave as your parting thought for our readers?

Still one of the highlights of my careers in appellate advocate arguing cases at the Third Circuit as a young associate, I was invited by a partner on a case to give an argument in a case where I wrote the briefs on behalf of Borders Bookstore. They were sued by somebody who was offended by the cover of a music CD that was somewhat offensive. It was by some rap group that was trying to make people angry about something. Borders Bookstore is now out of business, sadly gone the way of many brick and mortar bookstores these days. On the other side was Michael Smerconish, who is now somewhat famous individually, has a CNN show every Saturday morning. He has a radio broadcast, maybe national, but he also had a radio broadcast for many years in Philadelphia before going national. He’s somewhat of a conservative Republican commentator.

TALP 42 | Appellate Blogging

Appellate Blogging: Develop persuasion that is powerful enough not to need ad hominem attacks on people.

 

In this case, he was on the plaintiff’s side suing for damages. I was working at a well-known plaintiff-side firm at the time. He was on the appellant side. He got up to the podium at the Third Circuit and said, “I’m Michael Smerconish.” Even by then, he was somewhat famous, more famous than I was at the time. He began by saying, “Someday this case will be in all the First Amendment case books as a leading case involving First Amendment Law.” That case was decided by an unpublished opinion that affirmed the judgment. A number of years later, he had me on as a guest on a show to discuss maybe the Solomon Amendment cases before the US Supreme Court, which was a law that did not allow college campuses to uninvite military recruiters if they wanted to continue to receive federal funds, whether that violated the First Amendment. It was funny because when he started out my appearance on the show, he said, “Howard reminded me that he beat me in my first Third Circuit oral argument.” That’s a funny war story that shows that not every case was either what or who was the better-known attorney in the room.

Will you tell people where they can find you for those who haven’t seen your blog or on Twitter, on social media and stuff. Where can they go to find more about you?

My Twitter handle is @HowAppealing. My website is at HowAppealing.AboveTheLaw.com or if you type the words “How Appealing” into your Google search engine, it should come up as the top results, which as I was mentioning earlier, it was not the case when I started it. The top result was a lingerie company. People can decide on their own, whether that’s an improvement or not, or that’s progress.

Thank you so much, Howard. We appreciate you joining us. Before we go, we’d like to pause and thank our sponsors, Thomson Reuters and Court Surety Bond Agency. We appreciate their support.

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About Howard Bashman

Howard Bashman has always had a single focus in the practice of law: achieving excellence in appellate advocacy.

Today Bashman is a nationally-known appellate attorney who has compiled a notable record of success representing clients before the U.S. Court of Appeals for the Third Circuit and Pennsylvania’s state appellate courts.

 

 

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