Appellate law is not exempt from the global technological pivot we are experiencing in these strange times. Lawyers all over the nation are adopting technology in a way that they haven’t been forced to do up until now. Raffi Melkonian of Wright Close & Barger is the contemporary embodiment of the “lawyer of the future” in this age of video technology and social media. Known as the Dean of #AppellateTwitter among his followers on Twitter, he has made significant inroads in turning the popular social media platform into a positive venue for fruitful collegial discussions. Listen in as he joins Todd Smith and Jody Sanders in the show to talk about his experiences in the practice, social media influencing, and advocating in the US Supreme court.

Listen to the podcast here:

Appellate Law in the Age of Video and Social Media with Raffi Melkonian

Our guest will be no stranger to anyone who is part of the #AppellateTwitter community. He is known as the Dean there. If you’re a member of the Texas Bar, you may have seen some of his CLEs particularly on legal writing or his mostly-weekly newsletter on the Fifth Circuit. It is Raffi Melkonian, an Appellate Lawyer in Houston. Raffi, welcome. Thank you for joining us.

Thank you, Jody and Todd. It’s great to be on.

We’re glad you’re here. To start, for those who aren’t as familiar with you on Twitter, can you tell us a little bit about what you do, your background and how you got there?

I’m an Appellate Lawyer in Houston at the firm of Wright Close & Barger. We’re an appellate firm and we mostly do appeals and we also have some great trial lawyers. I do most of my work in the Fifth Circuit and other federal courts of appeals around the country, but that’s not a rule. I do some Texas Appeals. I do Texas Supreme Court. I do appeals in other state courts elsewhere. If I had to break down what I do, it’s mostly the Fifth Circuit work. In terms of my background, that makes sense because I clerked for the Fifth Circuit and that’s how I ended up in Texas. I was a New York lawyer, to begin with, and Judge Jennifer Walker Elrod lured me down here and she kept me here because I loved it when I got used to Texas. It’s been great years since we’ve moved here.

You didn’t start out doing appeals. In fact, you started a very different career path. How did you end up finding your way into appeals or what changed?

I have a strange career path for an appellate lawyer. In law school, I thought I would be a mergers and acquisitions lawyer doing transactions mostly in New York or London or something like that. I took all these corporation courses in law school and then I clerked for the Delaware Court of Chancery right out of law school, which was the same theory that I was going to be this corporate lawyer. I went to the New York law firm of Cravath, Swaine & Moore where they do a lot of corporate law. I did some M&A for 2.5 years. The big realization is that I am very bad at it. I’m terrible. I think what had been driving it is that I thought it was exciting in that kind of work. If I’m being honest with myself, like Scrooge McDuck swimming around in vats of money images. It turns out the day-to-day work of being an M&A lawyer is not at all like that. It’s very detail-oriented. It’s intense pressure and you’ve got to be able to coordinate tons of people on a lot of stuff for days and days.

I’m bad at that. I’m totally awful. I was miserable doing that. While I was in the middle of that misery, I thought about, what should I do? This isn’t the right answer. Some professors in law school had told me that, “You’d make a good appellate lawyer.” At that time, I mocked them because I was like, “No. I’m doing the corporate law Scrooge McDuck thing.” They were right, I had no business doing that at all. I started thinking about how to accomplish becoming an appellate lawyer. I took two big steps. One is that I asked my law firm to move me over to litigation which is unusual but they did it after a bunch of begging. The second thing is I applied to federal appellate clerkships because I thought like, “How else am I going to signal to potential employers that I’m an appellate lawyer?” I thought clerkship could be that pivot. I applied to must have been 100 appellate judges across the country. I was very fortunate to get interviewed with Judge Elrod and that the interview went well. I had a great year and here we are.

That’s a nontraditional clerkship path. You heard about career law clerks and Supreme Court clerks coming in after some practice experience, but you went back and got that judicial clerk experience after having been in practice for a while. How long did you practice before getting that?

I’d been out for five years including the first clerkship.

That’s something that you’re very vocal about for lawyers is if you are trying something and you’re miserable, then don’t be afraid to try something different. That’s great that you’re out there advocating that because that is important. I certainly didn’t know, looking back and getting out of law school that I’d be doing what I do now. It’s wildly different than what I expected. A lot of people are in that boat. You have 1 or 2 years in law school to decide what you want to do you feel like and then you’re locked in for the rest of your life but that’s not always the case.

Law is so big that you can find a niche that you love and it doesn’t have to be appellate practice. We’re all appellate lawyers, but it could be anything. You could end up loving it and getting deeply embedded in it in a way that the other thing you were doing, you hated and they’re both law. You just have to find the thing that makes you happy if you can.

A lot of our lawyer brothers and sisters have a hard time finding that thing. It’s great for all three of us to have found it and know now at this point. Some of us take a little more circuitous route to get here, but we were doing what we enjoy doing because we can all agree that this appellate practice is the best practice area, but particularly among litigation practices.

It’s self-serving but yes, that’s true.

TALP 11 | Appellate Law

Appellate Law: The idea of having Zoom arguments does not sit well with the US Supreme Court.

 

The three of us agree. I don’t know that some of the litigation people that I work with would agree because the last thing they want to do is sit at a computer all day and read cases whereas that’s my perfect day most of the time, especially lately since I’ve been working from home.

It fits great for the work-at-home model. As long as you can find quiet time, that’s the challenge. 

One of the things you’re known for is social media, which is something that you’ve been doing for a long time. Can you tell us about how you got into social media and more particularly into Twitter and the creation of #AppellateTwitter, the phenomenon that exists now?

I have been involved on the internet for a very long time, even before people called it social media. I was one of the original crops of law school bloggers that arose in 2002, 2003. I had a One L law blog that I wrote when I was a law student. It was anonymous that everyone apparently figured out who I was very quickly. I wrote about going to class, exams, the professors, that kind of stuff. I thought I was writing One L, the book by Scott Turow. That’s how I started. I kept doing that until my clerkship when the judge told me to knock it off, which I did. When I was at Cravath, I didn’t do any blogging because I was too busy. When I made this transition to appellate practice, I would miss the interaction online with people because even back in the blogging days, there were a lot of commentaries.

People give those comments under the blogs and you would respond and blogs would fight with each other. Hopefully, they believe it but sometimes not. I started looking around for what that outlet was going to be in the modern world. It turned out that that was Twitter. I went on Twitter and then I thought, “I need to find someone appellate lawyer.” I started searching around and I found a bunch to begin with. The very first one I found was Jason Steed, a fellow Texas appellate lawyer whose handle is @5thCircAppeals. I thought this guy must be someone I want to talk to. Jason led me to a lot of the other people that I’ve gotten to know so over the last few years including you all, but also the folks in DC like Sean Marotta and Jaime Santos and all those kinds of people that have such a big presence on Twitter.

You’re underselling yourself a little bit, Raffi, because a lot of folks who are reading this blog will know you as the Dean of #AppellateTwitter. Do you want to tell us a little bit about how that phenomenon got started?

It was an accident. I was looking around for something to do on Twitter with appellate practice and I was getting to know these appellate lawyers across the country. It turned out a few of them were having lunch in DC, at a Texas barbecue restaurant. I was jealous of them. I wished I was there so I will meet these cool people that I’ve been reading about online. I tweeted something like, “We in the provinces are jealous #AppellateTwitter.” For whatever reason, that struck a chord, and now people have been using the hashtag to organize a lot of discussions about appellate practice and judging those kinds of interesting topics. It’s been amazing from my perspective in terms of letting me interact with great lawyers around the country and making friends. It’s invaluable to me.

I’m following you. It’s interesting to see all the experiences you’ve had. The places you’ve gone, the people that you’ve interacted with, the things that you’ve gotten to do. It’s cool that what started as a little bit of a joke on social media turns into that. It’s like this show almost. That’s how we got started, a joke on a tweet. It got turned into something and here we are however many episodes later doing this. I was halfway joking before and then Blake Hawthorne pushed me into being serious and here we are. It’s funny how that all works.

There’s a lot of serendipity in social media. My tweet that has the most likes ever, it’s something like 20,000 likes now. It’s the word, “What???” There’s no originality in it. There’s nothing, yet that one caught fire and #AppellateTwitter is a bit like that. There’s no reason why it ought to have caught fire the way it did or it ought to have organized all these people into chatting about appellate practice but it did and it’s great.

It’s an interesting community. We were talking to Kendyl Hanks and Kristen LaFreniere about this and it’s amazing that you have this little corner of Twitter, which can frankly be a cesspool if you dwell in the wrong areas where you have great supportive people who want to meet up in person and share tips and share work. That’s not something that’s a common social media story. It’s cool that it exists.

It isn’t that common that people would be so friendly and helpful, but it’s been amazing. The kinds of help I’ve gotten from social media, even in my practice over the last few years is mind-boggling. I would never have told you that you get that pro bono, free assistance on questions I might have or people to bounce ideas off. It’s been remarkable.

This ties back into the point I made earlier about appellate practice being the best at litigation practice because that’s consistent with the overall feeling of collegiality that you have along with appellate lawyers. Those of us that are in it all the time, if you don’t have a great knowledge of Twitter and how it can be a cesspool in places, it would be no surprise that we would have that collegiality going on in #AppellateTwitter. That’s one of the things that makes it stand out, the whole #AppellateTwitter phenomenon. Primarily you, Raffi, you’re showing to the world through the things that you’ve helped develop that there is another way of communicating on Twitter and approaching social media generally than trolling and doing things that are mindless and stupid. It can be a very positive experience.

You have to remember that it has to be intentional. If you don’t think about making it positive every time you’re on there, it can degenerate quickly because just like anyone else, your temper might get riled up and you might want to respond to that person who’s calling you a name, saying something bad about you or the kinds of things you’re saying. You’ve got to intentionally refuse to do that to the extent you can. It doesn’t work every time. Sometimes things slip out. If you do that and you try to commit to helping others and being friendly on Twitter, it can be positive. That’s not true for most of it but you have to do your best.

Law is so big that you can almost always find a niche that you really love. Click To Tweet

More broadly speaking, that also is a microcosm of the practice of law in general, particularly litigation practices. Appellate is not quite as bad, but you have those same interactions with litigators whether by email, on the phone, by letters, paper in the file back and forth. It’s always important to remember that to be intentional about how you respond to those things because we’ve all seen on above the law when they’ve gotten completely out of hand and then ended up in front of a judge.

Especially in the Texas appellate community, you’re going to run into that person again. It’s a small world and you’re going to be litigating with these people, maybe on their side or against them for many years, hopefully. There’s no reason to be uncivil.

I saw that you had a very important anniversary of something that got you a lot of coverage on social media and beyond. You argued your first United States Supreme Court argument, right?

That’s right.

Tell us a little bit about what it was like to be a first-time advocate at the United States Supreme Court.

Let me jump back to something we were talking about because that is also a very collegial appellate bar up there that works on the Supreme Court. I’ve heard from some people that it can have sharp elbows at times and I’m sure that’s true. These are all very important and brilliant Supreme Court lawyers. The experience I had was unbelievably positive. The spontaneous outpouring of help for me, the kindness including from our opponents at Hogan Lovells including Neal Katyal. I thought it was a remarkable experience from that perspective. The fact that everyone was interested in helping me do a good job at that court even though they might be against me or they don’t like what I was advocating. That alone was unbelievable to experience.

You were the respondent, which is not always the place you want to be when you’ve got a cert granted at the Supreme Court.

It was definitely not where we wanted to be. We vociferously argued the denial of the petition but it was granted over our objections. There’s a real perverse incentive there. I wanted to argue at the Supreme Court. Every appellate lawyer has that somewhere in the back of their head but for my client, it would be better to have had that petition denied. We would have had resolved that case some years ago. We did do our best to try to get the thing thrown out, but it didn’t then so I got to have this extraordinary experience that I don’t think I’ll have again. I’m not lying, once is fine. I’ll proudly carry my cools around to the end of time.

What was the preparation process like? I know it’s different than you would do in your typical appeal, at least from what I saw with you and other people that I have talked to you. How did you go about preparing that it was different than you would in a normal case?

There were two things at work there. One, the preparation for everybody is more intense for the Supreme Court argument and for any other briefing or argument. Also as a first-timer, I thought I cannot be embarrassed up there. No matter what, I’m going to do this argument and people are not going to say, “He didn’t know what he was doing.” I took it perhaps too far but I thought I was going to do everything I could possibly do to be ready for that argument. What it amounted to is I put aside about two months to prepare for the argument. Not every single day, not eight hours a day, but I was doing something for the argument for about two months. There’s briefing going on at the same time. There was a lot of work going on in that. I did four moot courts. Two of them were outside DC and then I did two in Washington, DC right before the argument.

I prepared a lot of things. As an example, I prepared 200 or 300 notecards of questions the Supreme Court might ask me. On the other side, I scribbled what the answer was and I would go through them every day, again and again, asking myself those questions, improving the answer, scribbling more stuff on the other side. I took pictures of myself giving the answers to the questions which got memed on #AppellateTwitter. It was an all-consuming intense experience to get ready for it. In part, it was driven by my own anxiety that I would do a good job but also the thing is like that, consuming.

One issue would be you don’t know what level of preparation is adequate. It seems like you would tend to over-prepare because of the size of the stage and the significance of that. I’m sure there’s no doubt you were over-prepared based on what you described. That’s incredible. I love the notecards idea. No matter what court we’re arguing in, we’d try and anticipate questions that we’re going to get from the bench. That’s a strategy that you might have used studying for the bar exam or something, to be able to have that instant recall of an answer to a question that you might get hit with at any time in the argument. I love that idea. I might have to steal that one from my next argument.

I ordered David Frederick’s book on preparing for oral argument in the Supreme Court at the beginning of the process. On one of the very first pages, it says, “Not all advocates a faint at their Supreme Court argument,” or something. I was like, “If that’s the standard, I need to get on this if that’s the intensity.” In that book, it does recommend writing out questions and asking them to yourself in random order. I thought the way to do that is notecards that I would shuffle and read to myself and then trying to answer. I had my wife read them to me. At the time, I even had my six-year-old son try to read some of them to me, just anyone who could yell things at me.

TALP 11 | Appellate Law

Appellate Law: In the Supreme Court, what an advocate really does is to mediate a discussion between the justices because they have never talked to each other about the case before.

 

Did you have him do it in different voices for the different justices?

I didn’t get that advanced, maybe next time.

It’s a good plan to have. How did you feel the oral argument went after all that preparation?

I said on Twitter, I was not nervous about the oral argument at all by the time we got to it because the moots were so intense, especially the Georgetown Clinic moot, which is the keystone moot for preparing for the Supreme Court. It’s allocated to one of the two sides. You flip a coin to get it. They get five high-level Supreme Court practitioners and they hammer you for two hours. Once you’ve done the Georgetown moot and if it goes well, you have nothing to fear from the Supreme Court argument. I had these three other moots. I was extremely prepared. What stressed me out was making sure my friends had seats, my law partners, my family and my client. The Supreme Court only allocated us seven seats. We had all those people I mentioned, plus the team from Stanford Law School which had helped us prepare the brief and argument. That was complete panic. I’ve analogized that to being the practice squad defensive back that the team goes to the Super Bowl and you know you’re out of place but you’ve got to get everyone into the game. There’s no StubHub for the Supreme Court, but it was like that. That stressed me out way more than the argument by the time all the preparation ended.

Did you manage to get seats for everybody that wanted them?

My partner, Russ Hollenbeck, had to beg the Marshall of the Supreme Court for a seat for his son and the Marshall took his teenage son and put him in the attorney lounge during the first argument, then stuffed him into the courtroom during the second. We don’t even know how he did it and so it worked out. Almost everybody that wanted to get it got in. We had a few people turned away, but that’s going to happen. There were not that many seats in there.

It’s funny you see the pictures and you see it in person, then it ends up being a very small courtroom compared to what your impression is seeing the building from the outside.

It’s very cramped. Everyone is sitting right next to each other.

We’re still on our lockdown for the Coronavirus. It’s been in the news about the courts are trying to carry on their business as best they can and the US Supreme Court has heard, I’m not sure they’ve already heard them or they’re going to hear telephonic arguments.

They’re going to hear them.

I didn’t think it had come up yet but it seemed to me that was an interesting approach to having an argument in the age of video. The court is famous for not allowing cameras in the Supreme Court courtroom, but it seemed this was the time to have a Supreme Court oral argument over video. We’ve seen the Texas Supreme Court lead the way on that by having a Zoom argument. What do you think about the video in the US Supreme Court? Would this have been the right time to do it? Why do you think the court is still holding steadfast to not doing video?

The idea of having a telephonic argument in the US Supreme Court is not going to go well. It will because the lawyers are so good and the justices are good and everything, but the unique aspect of the Supreme Court is that often the advocate is not arguing to the Supreme Court. What you’re doing is mediating a discussion between the justices because they’ve never talked to each other before about the case. When they set up there, that’s the first time they’ve had any interaction with each other about hearing the matter. They’re talking to each other and you’re there directing traffic. I don’t know how you do that on the phone. When I was up there, I would see Justice Breyer sit up to ask me a question. On the other side, Justice Alito was wanting to say something and so you look at Chief Justice Roberts and he would figure out who to turn to.

You’d have to remember that Alito wanted to talk so you’d have to go back to them. I don’t know how you do any of that on the phone and I don’t know how they’re going to handle it. I know that they’re going to think hard about that question so they’ll come up with some answer. As an advocate, it’s impossible. A video would have been way better. The problem is they don’t want to be on video. They don’t want their faces in public. They don’t want to be recognizable and they sensibly think that people will try to hot dog if there’s a video recording of these arguments. I don’t think it’s a problem as all of us watch the Texas Supreme Court that’s never happened as far as I can tell that people try to make rhetorical points so that they can get it on video. The US Supreme Court is very conservative about that. I don’t think they’re going to be doing it.

#AppellateTwitter shows us that communicating in Twitter and other social media platforms can be a very positive experience. Click To Tweet

I figured they’ll do rotary phone for their phone arguments, get a dial-in with the clicks. Call the operator, have them patched you in.

That’s certainly going to be happening.

That’s an interesting observation about how’s the traffic going to be directed on a call like that. I would hope that in light of how things have gone with other state high courts with Zoom arguments being successful that the US Supreme Court would rethink that but I don’t think that’s going to happen. We’re going to wait for all this to pass and resume handling arguments in person like they always have. It does seem to me though, Raffi, that we’re in a place where we’re adopting some technology in a way that lawyers haven’t been forced to do up until now. We’re having Zoom hearings and oral arguments. It’s a good opportunity for courts to adapt technologically. If the concern is that they don’t want people to grandstand, you can look at the Texas Supreme Court and we’re not seeing that. Maybe you’re right that they don’t want to be publicly recognizable and that’s a shame because they’re extremely important figures in American society.

Put on top of that, the other problem in which we were discussing that it is nearly impossible to get a seat in the Supreme Court to come to watch one of the three branches of their government function. If you’re not part of the bar, you have to go camp out there for a night or two in important cases. You could hire people to go sit in line for you but they’ve eliminated that. Nonetheless, there is no other way to get at the Supreme Court other than showing up in Washington or hearing the audio that they release on Fridays. That’s not the same as being in the court itself. I’ll give a story from my experience. I didn’t realize this Justice Thomas and Justice Breyer chat the whole argument and they do that constantly. I went to several arguments to get ready. I went to Washington a week in advance and I went to all the arguments that I could get to and they chat. Justice Thomas seems to give Justice Breyer notes throughout the argument. Some people have said that those are questions that Thomas would like Breyer to ask on his behalf.

If you don’t get that understanding, there’s no way to get that from the audio because you can’t see in the audio them leaning back and jabbering or chuckling or whatever else they’re doing. There are some things you miss on the audio that is heartwarming. This was reported in the Supreme Court Press but Thomas holds Justice Ginsburg’s hand when they leave the bench, takes her down the steps and takes her to the back because she’s frail. That’s a nice moment that I don’t think people would get from the fact that their ideological opponents or whatever. They’re supposed to hate each other, I take it from Twitter. In fact, it’s a very gentle moment that people would like to see and like to have some faith that the government is made up of people who are trying to work together. There’s a lot of things missing from the fact that we can’t see these justices. I understand the counter-arguments. There are some strong arguments on that side too.

It makes me wonder now if the long hypothetical has come from Justice Thomas on a note instead of Justice Breyer himself.

They are small notes.

It must not be, those are original.

Why Justice Thomas doesn’t ask the questions himself as he’s known for not speaking during arguments. It seems like it’d be as easy to ask himself, but these are things that we will never know. I assume. Raffi, one thing that we ask all our guests to do. You’ve already thrown in a couple of war stories, but we wanted to invite you to provide another one if you like, a tip, or something else. A tip for folks preparing for the US Supreme Court for the first time, although you’ve covered that already as well. What would you like to tell the audience?

Let me tell you a couple of things. One in terms of a tip, you should go get some help for the Supreme Court. It doesn’t mean you need to give up the oral arguments, that you need to give up the direction of the brief or writing the brief yourself. There are a ton of amazing Supreme Court lawyers who are willing to help you and will give you some latitude to take the case yourself, including law schools, professors, small firms, all kinds of people. The cadence of how you write a Supreme Court brief is so different to me than how I would write a Fifth Circuit brief that it was incredibly valuable to have that person to tell me, “The Supreme Court doesn’t care about that argument you’re about doing so knock it off.” Think about that. If you ever get a case, even at the search stage and you want to oppose the petition, call around these people that you see on SCOTUSblog and #AppellateTwitter to know what they’re talking about and see if they’ll give you a hand. It’s an amazing resource.

The reason they’re going to do that for you is that there are few cases that they’re an incredibly valuable commodity for the Supreme Court bar. They have an incentive, you have an incentive if it works great. One more story I’d like to throw out. The Solicitor General of the United States was on our side in Fort Bend County versus Davis because the EEOC had decided that we were right about how the statute works on Equal Employment Opportunity Commission. First of all, in order to achieve that, you go to this incredibly intense meeting at the Department of Justice where 20 to 30 lawyers from DOJ show up representing all kinds of agencies and interests. They sit there and they pepper you for two hours. I didn’t know anything about this thing before we got into the Supreme Court case. Apparently, there’s whole wizardry to how to handle that, how to assuage the concerns of each agency and make sure that they can make the right argument to the Solicitor General who ultimately makes the decision on which way the US is going to go.

That’s one thing I had no idea about. It’s the most terrifying meeting I’ve ever been to. The other thing is I was chatting with the Solicitor General’s office on the day of the oral argument. I had arrived three hours in advance because even for someone arguing, you have to stand in all kinds of lines or whatever. I said to the lawyer from the SG office, “When did you get here?” He said, “We drive into the basement. I got here two minutes ago.” They take an elevator into the courtroom. It’s astounding. Being a government lawyer gets you some cool benefits. The other note about that is that they do not take their commemorative quills that everyone who argues at the Supreme Court gets because they’re too cool for quills because they have so many of them. You can take their quill. That’s another hint I was given by the expert bar in DC as I was getting ready.

It’s extra parting gifts. Raffi, we want to thank you again for being with us and spending this time with us. It’s enlightening to hear about that experience. I remember following it at the time and thinking how neat it was that you were getting to do that and it’s great to hear you talk about it. We’ve talked about Twitter and your presence there. Do you want to give your Twitter handle out to folks if the audience wants to follow you there?

TALP 11 | Appellate Law

Appellate Law: There are many amazing Supreme Court lawyers who are willing to help you and give you some latitude to take the case yourself.

 

I’m @RMFifthCircuit.

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About Raffi Melkonian

TALP 11 | Appellate LawRaffi has broad experience in both trial and appellate matters nationwide. He has briefed and argued dozens of appeals in federal and state courts of appeals around the United States. Raffi also maintains an active practice in the United States Supreme Court, including both merits and amicus briefs. In 2019, Raffi briefed and argued Fort Bend v. Davis, where his client prevailed in a 9-0 decision written by Justice Ruth Bader Ginsburg. The Firm later successfully represented Ms. Davis in her jury trial on remand.

Raffi is widely experienced in many different kinds of litigation.  To take only a few examples, he has handled appeals in securities fraud litigation, corporate governance litigation, employment litigation, antitrust class actions, products liability class actions, insurance coverage disputes, partnership disputes, and intellectual property litigation. Raffi regularly litigates the most difficult and complex appellate cases.

Raffi tweets about appellate practice at @RMFifthcircuit. As Social Media Chair and council member of the State Bar of Texas’s Appellate Practice Section, he helps administer the Section’s twitter account @TexAppOrg.  He is also the Chair-Elect of the Houston Bar Association’s Federal Practice Section. Raffi regularly speaks and writes about appeals in forums across Texas and the United States.