TALP 36 | Amicus Practice

 

In most appellate cases, the record and the arguments drive the decisions. But at the US Supreme Court and state supreme courts, amicus support often highlights other important considerations and potential impacts beyond the parties to the dispute. In this episode, Carl Cecere, owner of Cecere PC, joins Todd Smith and Jody Sanders to talk about his development of an amicus and US Supreme Court practice in a solo setting after working in both large and boutique firms. Listen to this episode to hear how Carl has focused on building his brand around Supreme Court advocacy and, in particular, amicus work, which he describes as planting seeds for a court that shape not only the particular cases, but future development in an area of law.

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Planting Seeds in Amicus Practice | Carl Cecere

Our guest is Carl Cecere. Any of you that hang out on Appellate Twitter have already heard of and probably seen Carl. If you watch local news clips, you see Carl on TV sometimes in the Dallas Fort Worth area talking about cases. I know I’ve seen him from time to time on there. Carl has his own solo practice over in Dallas that focuses on appeals and, in particular, Supreme Court practice. Thanks for joining us.

Thanks for having me.

Carl, for our readers who aren’t that familiar with you, can you give us a little bit of your background and how you ended up where you are?

I have my own law firm here in Dallas, devoted to Supreme Court Appellate Law. I started my career at Akin Gump after a clerkship with Mary Lou Robinson in the Northern District. I was at Hankinson-Levinger for a time and then I decided to open up my own shop. I’ve been doing that since 2013.

You got the full experience, you had big law firm experience, you had smaller law firm and now solo. What led you down that path?

There are a lot of factors that drove me from Akin Gump to Hankinson. Most of which is I didn’t see a position for partnership opening up for me. It was a great experience. The Supreme Court group was top notch, if you like, even Patty Millett was there at the time. I didn’t get to work with a critique who has the office now, he’s also fabulous. There’s a limited amount of appellate work within the firm and I didn’t see myself getting there. I went to Hankinson and had a great experience there. The only thing that drove me into solo practice was a necessity. I had brain surgery in 2013 and recovery took a lot longer than I expected and a lot of complications, a lot of difficulties, all of it meant that I needed to decide whether I need to step back a little bit.

I was considering whether to leave the practice entirely because I was having trouble reading. I was having trouble with my eyes. I will open up my firm, hang out a shingle and I can take a few cases while I figure out. I did that. I was able to relax a little bit and recover a little bit with a much-reduced workload. Things started building from there. I then decided this was a good environment for me to work in. It’s freeing. That’s manning the initial hub of not having a ton of work, which is a blessing for me. After that, it’s fabulous to be on your own. I’m loving it now.

I know you did a federal district clerkship. Even coming out of that, did you have a sense that you wanted to do more appellate law as opposed to straight litigation?

TALP 36 | Amicus Practice

Amicus Practice: It’s self-defining when you’re on your own and you’re the brand.

 

I didn’t. In fact, when I was going through law school, I was thinking, I’m not going to try writing briefs because it seems tedious and horrible and citations and all that stuff. I didn’t enjoy the process. I found writing hard. I thought writing hard in my clerkship and Judge Robinson’s demanding. I wouldn’t say I was steering toward that, but I arrived at Akin Gump when Tom Goldstein was coming to the firm who could work on Supreme Court cases. I threw my hat into the ring. I thought that would be fun. Once you get that Supreme Court, you’re stuck, you can’t do anything else. You’re too spoiled. That’s why I decided right then and there, I wanted to angle my practice that way.

You’d been at Akin Gump, which, Tom Goldstein had a big Supreme Court presence, but then you moved on to Hankinson, which is not a place that you think of as a US Supreme Court shall do. Were you still able to work on those matters as you migrated out?

As it turned out I brought the matter with me at Hankinson, and I was able to work on that and continue. After that, it sorts right out and expects you to jump back to the Supreme Court game, loved to have done so, but it’s such a commitment that I didn’t expect the firm to be able to handle it. When I went out on my own again, I got back in touch with Tom who had since gone out on his own again from the beginning. We immediately started working on some things, and we’ve done tons of projects ever since then. Even that seemed like it went off after a while, but I realized after a couple of other people had contacted me, seeing things I’ve done with Tom, that it could be a practice that I started centering things on.

I don’t follow the Supreme Court bar that closely because it’s not something I do day-to-day, but is having a fellow Supreme Court practice something that’s fairly common or is it more with larger law firms having a Supreme Court group?

Each month has its benefits and its detriments. If you’re at a big firm, you’re going to run into a lot of conflicts, especially in areas where the Supreme Court comes in a lot. You can only take one side of your average discrimination case or your average employment law case or arbitration case because of your firm’s conflicts in both, pure client conflicts and issue conflicts, are going to become a big problem. The soul is freed from that. At the same time, it’s a ton of work and every case is infinitely deep. We searched legislative history, you can go to the library of Congress and find the memos between congressmen about what they thought this statute meant. It was nice to have five people underneath you to go down every rabbit trail to help you out. On the whole, I enjoy being on my own because I’m totally free. I run complex in my head, and I can jump in on anything and if I want to change directions and my strategy needs to get tricky, then I do it. There’s a little bit of a downside and then there are more late nights to that practice.

You described the lack of conflicts in a solo practice. I hadn’t thought about it in terms of the complexity of a conflict check for someone on a firm, who’s doing a US Supreme Court practice, but it applies at every level of appellate practice. I certainly experienced that going out on my own years ago. It was nice when I was able to keep conflicts in my head and you do it long enough and you have to start thinking about, “I don’t think I’ve represented that person.”

It closes your horizons a little bit when you’re in a firm because you’re like, “I’m part of the firm’s brand and we do this. I’m going to look for opportunities in this.” Those are the paths you start walking down and then you’re foreclosing a lot of other paths by doing that even before an actual conflict arises. When you’re on your own and you’re the brand, it’s self-defining

As you’ve gone through, you are now in your seventh year of solo practice, is that right?

Every seed you plant tends to sprout. Click To Tweet

Yes, somewhere around there. I don’t quite have the start date nailed down.

What things have you learned being on your own that you wish you had known going in as a solo practitioner?

I didn’t feel I was a complete appellate lawyer when I started. The biggest thing I learned in my practice was to practice. I had to do my first oral argument on my own, I did my first recharge on my own, going in all those things. The takeaway from it is that you can do those things but it’s scary, and I wouldn’t recommend it. At the same time, I have my experience and it’s made me an evangelist for starting your own firm. A lot more people would be a lot happier if the profession looked a lot different than it does. There weren’t many huge firms, which to me looked like gigantic cauldrons of conflict and difficulty, and everybody was a bunch of loosely affiliated solos who work together on occasion.

When expertise arises, you strike out with somebody and start a case. It’s a better way to practice in many different ways and it’s not as hard as it might seem. You got to work, and you have to do a lot of things, especially that appellate lawyers don’t congenitally love to do. You have to get out there and talk to people. You can’t sit in your office and wait for your phone to ring and you can’t hide in the library and study your way into the practice. There’s only one way to get it and that’s to go meet the people who need legal services. That’s also fun. I enjoy it. I like it better than attending board meetings. I like it better than giving CLEs. I like going and having lunch and coffee with people and talking about their problems. It’s great.

When you first went out on your own, you talked a little bit about how you got started, but how did you identify the targets of your business development efforts when you were first starting out?

It all grew out of my complete aimlessness, from when I started I didn’t know whether I was going to practice or if I wasn’t going to practice what I could parlay the half-baked skills I had, what I could turn them into. The only thing I could do after I sent out all the resumes and worked every contact and I didn’t know what else to do, I was like, “I’m going to go to lunch with all my people, my mentors and my contacts, and feel them out and see what they think and what advice they have.” The way it worked was the lunches would all follow a similar pattern where I would go to lunch with somebody and they’d be like, “You should talk to this guy. You should talk to this guy,” and I’d come away with a list of 3 or 4 names of the next round of lunches.

I followed that path for a while. I realized that that’s a great way to develop a business, not just finding your business, but develop it because, “Go talk to that guy,” it organizes your path for you. That’s become the core of the marketing effort. I figured that I could be as well known in DC as I am in Dallas. If I went once a year, under a year, spent a week in DC, and did breakfast coffee, lunch coffee, afternoon coffee, dinner, drinks and late-night coffee with as many people as I could, I figured that way I would go to lunch more often with people in DC than the people in DC, which is the most networked place in the world.

There are people who say, “It’s almost as if you have an office in DC,” and it’s only because I spend four weeks a year there talking to people. It’s amazingly powerful and it leads to collaborations. My core business belief is once you share a meal with somebody your relationship’s changed, and it makes up for every cocktail conversation you could ever have at any bar event. Once you sat down and you feel each other out and learn how another person ticks, you’re going to do stuff together in the future. It’s a matter of when.

TALP 36 | Amicus Practice

Amicus Practice: Once you share a meal with somebody, your relationship’s changed. It makes up for every cocktail conversation you could ever have at any bar event.

 

What type of people have you talked about of networking your way around? What are you approaching? Are you approaching lawyers, business people, people in groups that have Supreme Court-type issues, all of those things?

In DC, I wanted to get to know the people who are in the Supreme Court bar. I wanted to know people who might hire me for amicus type work because I built my practice up from amicus work. In Texas and about practices developed the old-fashioned way, you talked to trial lawyers. I talked to trial lawyers and met a lot of trial lawyers and some people that I work with, some people I hadn’t worked with before, your name gets around real fast in this town, in the state because there aren’t many appellate lawyers. There are a lot of trial lawyers and there are a lot of trials here. We’re blessed for work here because people love fighting and duking it out in court in Texas in a way that you can’t find anywhere else. I talked to people in DC and they hear about how it works in Texas and they’re like, “It’s amazing that you can do that easily.” We’re blessed, we have developed a highly skilled trial bar. They recognize that they have things that they bring to the table and that somebody else might have their own set of skills.

You still do some State Court and more local type appeals, not just the Supreme Court practice.

Supreme Court practice doesn’t generally pay a lot of money. A lot of the work I do is free or low bono, they call it. I’ve developed a nationwide reputation for appellate work generally. I do a lot of work in Texas. I do a lot with circuit and I also work in circuit courts and state courts all over the place. It’s all developed as a unit after a while. My goal was to become geographically independent, but certainly to build on what you can do in Texas because it’s easy here. Every seed you plant tends to sprout.

As far as the low bono type of work, you hear in the Supreme Court circles that’s the nature of the beast. There’s a lot of cases. There’s a lot of competition for all the cases that are headed up to Washington. From the big firm’s standpoint, how do the firms justify supporting that work if it’s not good-paying work technically?

It’s interesting because some of the biggest firms like the Wachtel’s of the world, they don’t develop appellate work. They don’t want a Supreme Court practice. They don’t think that it adds anything to them. You don’t see Covington lawyers in the Supreme Court. You don’t see Wachtel guys. You don’t even see Jones Day in the Supreme Court for as many Supreme Court clerks as they hire. They’ll hire a class of eighteen people out of every Supreme Court class, but they’re not, you wouldn’t call them the Supreme Court powerhouse as a result of it. There are a lot of firms that don’t think that you get much out of it. Where it seems to add value from the firm’s perspective is if it can burnish your reputation that it isn’t quite there. I’m talking like the Gibson Dunn’s of the world, they have Supreme Court lawyers baked into their DNA. When Paul, Weiss hires Kannon Shanmugam, it brings them up a level, even though they’re a great firm. It says they’ve got another capability that their competitors don’t necessarily have.

That’s worth paying Kannon a boatload of money when he doesn’t necessarily produce. He’s not going to be a one-to-one contributor, for every dollar he takes from the firm. He’s going to be doing a lot of pro bono work, even at his level and Kannon’s. I know Kannon well. He’s a phenomenal lawyer. We talked about this, but he’s the best in the business. They still have to do some pro bono petitions to get the cases to the court. They also get paid a fair amount, too. I don’t think that’s bad. He does big cases at the court. There’s a lot of money spent on those big law firms, whether to take on a Supreme Court practice because you’re talking about investing millions upon millions of dollars into something that polishes the nameplate a little bit and you got to figure out a way to make that happen, too. It may not mean something for every firm to do that.

Their clients may not care. They may be in Joe Schmo industries and like, “I’m an oil and gas guy. I don’t care if you have 85 Supreme Court lawyers, I’ll pay $1 billion for your transactional work and your regular litigation because that’s what matters to me, but I don’t care.” There are a lot of clients like that. If your client base is a lot like that, it’s not going to matter to you. For a small person, it’s a huge investment, too, on a percentage basis in maybe the same. I might spend, in some years, 1,000 hours on pro bono, do 1,000 hours of litigation and then do 1,000 hours of little stuff. It helps my name break out of the metroplex and it does that quickly because you get in touch with people all over the country, even before your name. I may not be known well nationwide, but I work with people from all over the country. The next time that something comes up, they’re like, “This, too.”

If you write enough amicus briefs, your name will eventually show up in front of a lot of Supreme Court practitioners. Click To Tweet

You touched on it earlier about doing amicus briefs. That’s one of those things that if you don’t do Supreme Court work, you don’t necessarily think about, but that’s such an important part of that process. How did you find yourself doing that?

That’s how it was that the work came to me without doing any work. A few start petitions fell into my lap, but beyond that, it was these opportunities to do amicus briefs. That started to get my name out there with people. It was Tom bringing me amicus work, and he always took care to bring me amicus work that would always pay knowing that I was trying to feed a family. I appreciated it twice, that was the work that was available. I also think that it’s ironic that people think of amicus work as the tail-end of a Supreme Court practice, but it’s the much harder part of a Supreme Court practice. When you’re writing a petition for search CRA, it’s going to be at least familiar to you if you’ve taken a case to the Supreme Court of Texas or another Supreme Court last resort within the state. You’re going to understand the basic dynamics and you’re going to be able to write a brief on the merits, at least the basics of one.

The idea of writing a petition to a State Supreme Court is going to be familiar to a lot of appellate lawyers and writing briefs on the merits and things that you’re at least familiar with doing but writing an amicus brief means doing something other than that. In fact, if you do that, and you write the legal argument as straight up as you can, your brief isn’t going to be ready even. What you need to do is find a way to contribute beyond, what the parties are likely to do. It makes you think creatively about the legal argument, what matters, how to prove a case beyond the brass tacks in case. Where are the resources that you might go to to find things that the parties might not have found that will contribute to their cause? What’s the other angle you can take on a case that someone else hasn’t done for it?

It contributes to how I work as an appellate lawyer because I try and tell more story than I would have otherwise, all the way through a brief to try and make it sing a little more, in a way that I wouldn’t have done in a lot of amicus work. It is a lot harder in a lot of ways than the regular merits work. It teaches a lot of lessons about good writing and good legal argument. It’s great. It also helped me develop my practice because I wrote some amicus briefs and when you write enough amicus briefs, your name gets, you show up in front of a lot of Supreme Court practitioners. A lot of them were reaching out to me to get to know me.

That filled up my lunch schedule and I went and I met other people and that’s how I got into the Supreme Court scene a little bit. Another great thing about it is that the Supreme Court bar is tight and they’re helpful for each other because you always need your amicus brief now, but you might be friends tomorrow because you might need somebody to write an amicus brief for you. I wrote a lot for free and that meant there were a lot of people who are looking to do me favors when I needed them. That was great, too. It’s been phenomenal. They’re amazing people and they’re amazing mentors and they spent a lot of time helping me figure out my way and it’s a difficult practice. It’s been great.

Do you find that there’s any difference in your approach when you’re doing an amicus brief in the US Supreme Court as opposed to, say, maybe the Fifth Circuit or a Texas State Court?

Yes, definitely. I don’t want this to sound bad to anyone in the lower courts, but there’s a level. They’re expecting a lot. They expect a high level of argument. When you’re a Fifth Circuit judge, I don’t think you want all that. What you want is a ten-page brief that tells you something you didn’t know, that they can read and help them decide a case in an important way without having a bunch of gooks in their workday. It’s get in, get out, get it done without a lot of us. The same thing goes for a Supreme Court brief to the Texas Supreme Court or Court of Appeals brief. I do approach the two differently because what they’re expecting and what will be helpful to them is different.

I’m asked not infrequently about the benefit or potential benefit of an amicus brief in the intermediate state court appellate courts. You don’t see those all that often. What’s your experience in that area?

TALP 36 | Amicus Practice

Amicus Practice: A good amicus brief is one that brings a practical perspective to bear on the topic.

 

It’s hard to get people to pay money to produce an amicus brief at an intermediate court. Maybe at the circuit level in the US courts, but in the state courts, they don’t generally want to invest their time in that. Not every case has the kinds of issues where an amicus brief would pop up, but a lot of cases do. It’s interesting to think that, there was a bank case and it had a big bank, to think that the bank ought to think about getting involved at the intermediate Court of Appeals stage. That’s where a lot of log gets made and it sits around for a long time before the Texas Supreme Court can take it up because they don’t take up every case. People ought to take another look at that viewpoint, but it is a viewpoint a lot of people hold, they don’t want to spend money on it. It’s because it’s going to be $10,000, $15,000 minimum, to put one of these things together.

You are trying to convince the Texas Supreme Court of issues important to the jurisprudence of the state. If you’ve got some reasons outside of your two parties, that helps put that in perspective even before you get to that court.

That’s part of it, too. When the Texas Supreme Court is looking at an issue and the US Supreme Court is looking at an issue, they think of amicus support as key to whether or not they should look at the issue at all. Whereas the Court of Appeals is looking at the issue whether they want to or not or whether you want them to or not, it’s happening. I don’t think they’re quite invited in the same way. When I see an amicus brief come in on the other side, I imagine that the court itself is looking at it in exactly the same way and that is, “If it helps me, it’s good, but if it doesn’t help me, it’s a distraction. I’ve got a lot of paper on my desk.” Sometimes it can be a little bit of a negative.

What are some things that practitioners who don’t do a lot of amicus briefing, what are things they should think about if somebody approaches them on joining in on an amicus issue?

It’s one thing if someone comes to you and says, “Go find an amicus and write for me.” That’s a challenging task. When you have someone who represents a party and says, “I’ve got this potential amicus they would like to write a brief,” then you write the brief for them. That alone is the guidepost that helps me the most. I went to, “Who is my client? What is their interest? In which way does this case impact them? How does that help determine what the outcome ought to be?” If I’m writing for a union in the labor case, I’m going to tackle what impacts my union members and what it’s going to mean for their brass tacks.

That’s a good amicus brief is one that brings a practical perspective to bear on the topic. If I’m going to write for government officials, I’m a megaphone for the party’s position. I can say similar things. It’s when a group of ICE department officials write in support of a nominee saying all of the great things about that, it doesn’t matter what they’re saying. They can say it in some nice soundbites and that’s nice, but it matters that they’re standing behind the position that the parties are taking. I’ll do more duplication when I’m standing up for people who are government officials or senators. When you’re representing government officials who wrote the law, you’re saying, “This is what the law means, this is what we wanted it to mean.”

When you’re representing government officials and say, “This matters to the US government because of this.” There’s a lot of cases in which we had a group of government officials who heard the argument. The solicitor general will say, “The United States’ interests are essential because,” and you will say, “We’ve done this job and we want to tell you that, ‘No, it’s not necessarily that.’” You can blunt the impact of the SG’s argument on behalf of the government’s interest if you can say our government doesn’t exactly work that way. We have a lot of experience. The client to a huge extent guides my analysis. The other thing that guides my analysis is where I read even good briefs. I’ll be able to see the places where their analysis is, in the place where they couldn’t go as deep. That’ll help me a lot too, I can say. My brief could read as saying, “We agree with everything that the petitioner is saying, legally. We want to talk about this one part of that analysis.” Oftentimes that can come in when it’s a complicated case and the law is open-ended.

If it is open-ended, if the law isn’t settled, then a lot of times what I try and do, if there’s a test that the court could establish how to resolve cases like this that are bigger than this one case, then I spend my time defending that test in line with all the precedent and in line with everything else. At the end of the day, even at the Supreme Court, the parties want to win the case. They’re going to narrow in, contour their argument to winning this one case, letting this one thing squeak through. Whereas if you take a little bit of a broader view, you can help the petitioner by saying for justices like, “I’m not willing to buy it off on the narrow position that the petitioner is taking. What’s a broader way I could get to the same result?” I then can offer that to them.

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This is one of the things that a lot of people don’t do in amicus briefs, their positions line up exactly with the petitioners. Like, “I don’t want to have there be any daylight between me and the petitioner.” When you’re starting, you shouldn’t do that. There is a little bit of a benefit sometimes to be able to say, “We don’t quite look at it exactly the way the petitioner does. This is how you get to that different route.” Usually a little bit broader, usually with a more established test or something, “You should say this, Justice O’Connor.”

That seems to be where the value of an amicus lies. If all you’re going to do is, “Me too, I’m on the petitioner’s position or an appellant,” that’s when the brief stopped being effective. Courts see through that quickly, it seems.

You don’t want to say the same stuff over again. I can’t imagine being a Supreme Court justice and having a pile of 80 briefs in a case and trying to read them and get anything out of them at all. I can’t even imagine being the clerk assigned to that case who has got to figure out what’s valuable in that stack because it can be ridiculous. I try and announce my intention right up front, and say, “This is what we’re doing. This is our discrete task. This is why it’s different than what everybody else is doing. This is my project,” and then go to town on it.

I assume too, that often less is more in an amicus brief. I can’t imagine if you’re worried about keeping the court’s attention, by virtue of being an amicus, if you submit a 50-page amicus brief, it seems that would dilute the value to your ten-page. You mentioned ten pages as an example. Concision would be an appropriate and important skill to work in that area.

It’d be hard when you’re in a particularly meaty topic to not get into things and be like, “I’m not going to talk about that.” That’s the most important skill is to say, “What is my task?” Stick with that and do that. There’s a rule of thumb in the Supreme Court, where the pages are small. They don’t contain that much text in a Supreme Court brief because it’s printed in this booklet format, but they say no more than 20 to 25 pages to an amicus brief, absent exceptional circumstances. That’s good. It’s nice when it can be digested in a sitting after you’ve read three other briefs and then you got 2 or 3 points out of it that stuck in your mind as being different than what everyone else was saying. The longer a brief gets, the more points you’re making, the less your individual points get focused on and the less they stick out.

There’s a little bit more room for some creativity too. Back to Evan Young’s brief from the Masterpiece Cake Shop case where he put in the pictures of the cakes and you don’t have to say a lot. It speaks for itself, but it’s such a great perspective. That’s not bound in the record, but makes the point that, “This is something that you need to think about.” That’s cool that it gives some opportunities for a little bit of freedom that you may not have in your normal merits briefing type practice.

I think of party’s briefs having to lay so much pipe, they’ve got to do every step to make the water flow. They’ve got to make it go whereas you don’t have to do any of that work. It frees you up to be more creative or make an impact in a different way. Punctuate one point hard, that’s much better.

This is not a big part of my practice. At the times that I’ve done it, I’ve enjoyed it. What I have found challenging about it is if it’s an amicus client that I’ve never worked with before, understanding their position and how it contributes to the case, there can be a fair amount of ramp up to that.

TALP 36 | Amicus Practice

Amicus Practice: The longer a brief gets, the more points you’re making, the less your individual points get focused on and the less they stick out.

 

There are briefs that initially I didn’t like, but I came to like them over time. There was a brief, and you’ll see it show up in a lot of union cases or labor cases, where you get a group of five people together, not necessarily affiliated with any particular union or anyone in particular, that say, “This case in me, because this is the way I’m different, the rule will impact my daily life. This is why the current state of the law needs to be the way it was, because this is how I run my life and how I run my business. You’re going to change my business if you do this.” I feel those breaks have a ton of impact. Not because they move anybody’s ideas of law, but they make the court think about the actual people, the real-life ramifications of their actions. That can make a big difference in a lot of cases especially when you’re worried that the court is not going to care about your case because they’re not politically inclined or it’s a busy court, maybe they won’t give this particular case a lot of attention. You can make a big difference in getting them to focus on you.

Carl, you are visible on Twitter and I don’t know if you use other social media platforms, but that’s the place where I see you most often. How did you get into that?

During my soul searching time, when I was opening up my own firm, Julie Silverbrook, who used to run a nonprofit called ConSource and now works for iCivics, which is O’Connor’s, iCivics project. She said, “You ought to get on Twitter.” I said, “That sounds stupid. I don’t see anything at all.” She said, “You got to do it and you got to get on there. You’ve got to start talking to people.” I did, I had no idea why I should do it for a long time. I didn’t see much to it. It seemed to be that I came on to Twitter around the time a lot of other appellate lawyers happened to become visible on appellate Twitter, like Raffi Melkonian in Houston. He started doing a lot of Twitter stuff and Jason Steed here in Dallas started doing it.

He had Justice Willett when he was on the Supreme Court doing a lot of tweeting and it was fun. I saw there was a group of people who were like-minded, who discussed these issues so I jumped in there. I realized it was one of the ways in which the appellate world has become flat you can meet the people in the Supreme Court bar by talking to them on Twitter, and then you go have lunch with them and you know them all of a sudden. It’s an easy way to develop my practice. I was never there to seek out followers or to bloviate about Supreme Court practice. I wanted to get on there and get to know people and then turn those relationships into real-life relationships. It’s been fantastic for that. It’s also a fun place to go bloviate and talk about whatever you want to talk about too. That’s great, but that’s not why I’m there. That’s the extracurricular part of it.

It is interesting, you wouldn’t think, “I’m going on this random social media site and make a lot of new friends that I’d never have met.” I’ve had a similar experience, not in the Supreme Court context, but meeting appellate lawyers throughout the US and running into them in person, “I’m nearby wherever you live, let’s go grab lunch or coffee or something.” Making friends and contacts all over the place.

It’s fun too, because it’s great to have people, when you’re into something hairy, that you can reach out to talk to them. Especially when you’re a solo, there’s no one in my office that I can go and grab a cup of coffee with, to talk something through. I got to get out there. There are brilliant lawyers out there who are giving of their time and I’ll walk through it with them.

It does make the world smaller. That’s one of the takeaways I’ve always had about Twitter. We’ve talked about the Appellate Twitter Community here regularly, it is a great group of people. It gives you hope in the current climate that there’s something useful to come out of Twitter besides, it’s not useful a lot of the stuff that you see, frankly, as we’re coming up on the election.

It is one of the amazing things about Appellate Twitter specifically. They call Raffi “The Dean,” not by accident. He put the stamp of his personality on it, by being his own good self and providing a model for decorum for other people to follow. That makes it a special place because I hate Twitter. Anytime people post I’m like, “They write something.” Anytime someone from outside of that circle writes on it, I despise it because it’s either uninformed or it’s mean, or it’s some guy who likes to stir up trouble. It shows what an exception that Appellate Twitter is, compared to the rest of the internet. It’s stressful, you watch politics and everything else is falling down around as compared to this one little corner of the internet that seems to work okay.

People shouldn't get discouraged by the distance that they see between themselves and the real greats of the legal community. Click To Tweet

What would you say to law students who could see themselves wanting to be a future Carl, they want to do appellate practice, but are thinking, “Maybe solo practice is a good fit for me?” What things should they be thinking about before they even get out of law school and start their careers?

You should get on Twitter and get to know some of the people involved. I feel Twitter can be such a great resource for so many people. For this reason, you can get in touch with the experts in your field right away or at least see what they’re doing and see if that’s something that you’re interested in doing. It’s valuable to do that, to get a Twitter account and post what you’re interested in, what you’re doing and what you’re thinking about. I get contacted 4 or 5 times a week by people who want to talk about how to build their practice and I try to spend some time talking to them. Twitter can facilitate that in a way that nothing else can. I encourage people to do exactly what those other people have done, which is to contact the people that they admire and think are cool. See how they got to where they are.

As for the path that I saw, the solo practice has been good for me. It could be good for a lot of people. It’s certainly not something that a young lawyer should contemplate, especially right out of the gate. I was on the perilous edge of being incompetent when I started my firm. Things generally worked out fine. I could have screwed something up and I couldn’t afford the insurance coverage that it would’ve cost me to fix it. This is a serious business, and it gets serious fast. You want to get your legs under you somehow, you need to find a place where you can do appellate work and you need to write briefs.

That’s what we do, where everybody thinks of us as the great philosophers of the law, but we’re not, we’re rule followers. We are rule followers. We know local rules, we know judges, we know that’s what we do is follow the rules, to get to know the rules. If you managed to stumble into some artistry, that’s fine but that’s not your job. Philosophizing is not your job. Your job is to make sure you didn’t forfeit anything on appeal. To put the best arguments forward that you can. A lot of laps, doing a lot of appeals and however you can get them and that if you want to do that, that’s going to mean a lot more work than a lot of other people are doing because people can be gifted into litigation practices or little niches. If they’re comfortable doing whatever someone hands them to do, that’s easy for them.

If you’re going to seek out appellate work, you’re going to usually be 4th and 5th in line to do it. For a lot of other people wanting to do it too because it’s fun, it’s great, you got to be able to go out there and advocate for yourself in whatever setting you find yourself in and then look for ways to advance your path toward that goal. Look toward the government, look toward smaller boutiques that focus on appellate work. You got to find where you can do the work and go do it. You’ve got to do a lot of it because there is something to the 10,000-hour rule. Once you’ve done it a billion times, it’s easy. It looks magic on the outside, but it’s laps, it’s doing it over and over again and you get comfortable with it. It’s not a lot of magic to it.

I love that analogy of laps, and you’re in a pool you’re swimming over and over again until you’ve mastered that turn kick.

The 85th time, you’ve written a brief. I learned a few things after 85 times. Small things, and these little things add up.

There are a lot of different paths to appellate practice as we’ve talked about on the show. That’s great advice and making yourself, making that known as a young lawyer in whatever your firm practice setting is. If you’re in a larger firm or a midsize firm it’s making it known that that’s your interest. I would add to that, doing legal-related motions work, one thing you’ve got to have as an appellate practitioner, no matter how you get to that career is you’ve got to be able to write. To your point, Carl, about the 10,000-hour rule, most law students have written a lot by the time they get into practice, but it’s never too much. You can always write more. If your goal is to be able to stand at the lectern and talk to judges about the law, you’ve got to start with being able to convey those thoughts onto paper and convince your managing partner, whoever it is, that’s helping manage your caseload. That’s a skill set that you bring value with. It’s harder to do as a sole practitioner for sure, as a young lawyer. I can’t imagine trying to do it. You’ve got to learn somewhere. Somebody’s got to teach you the ropes.

TALP 36 | Amicus Practice

Amicus Practice: Philosophizing is not your job. Your job is to make sure you didn’t forfeit anything on appeal, to put the best arguments forward that you can.

 

You’re right, you can learn a lot in dispositive motion practice about getting it done. Even a good motion for continuance that argues why you should do it rather than throws up a bunch of junk, that will teach you a lot. I am a token. People shouldn’t get discouraged by the distance that they see between themselves and the real greats of the legal community. There’s a YouTube channel I follow called the Blog Blood Brothers. It’s these two brothers that live in different cities and they post videos to each other, a couple of times a week and that’s how they communicate. They’ve got a huge following. This has always stuck with me.

He says, “You have to give yourself permission to suck bad.” You got to be okay with not being perfect because if you’re going to expect perfection every time, you’re never going to be happy and you’re never going to be able to progress. What you got to do is say, “Okay, I suck. Now I got to accept, I got to recognize it that I suck. I got to accept that I suck. I’ll think of ways to get better.” For me, it’s looking at great briefs that did it. I read a lot of briefs by people I admired and I learned a ton about a good legal argument or digesting them. I’d try and play it and it would suck and it was not good. It would take me forever and a bunch of times I had to write off to get there. A couple of years down the road, after I did that a bunch of times, I was like, “This is a lot easier. It’s coming easier.” It makes me a lot more focused on other things that I see, the deeper lessons I get from those same briefs that you couldn’t see before.

Carl, we’ll give you the opportunity to pass on a tip or a war story, that you think would benefit our readers.

I would love to leave people with the idea that your profession can be great. You can have a great time doing it because I love what I do. It’s about intention and figuring out a path to the job that you want and going out there and ultimately making it for yourself. It’s a rewarding thing to do. It’s one of the fun things in the law and I’m glad that I got to do it. It helped a lot of people do it, too.

That’s a great point. I won’t use myself as an example, but a lot of young lawyers, and you touched on this, who say that they want to do appellate work are told all the reasons why they can’t do it. You have to decide, you have to make up your mind that this is what you’re going to do and whatever setting it’s going to be in, whether it’s in a big firm, medium-sized firm, or as a sole practitioner. That’s great advice. It will benefit the younger lawyers who are interested in doing this as a practice area. Carl, thanks for being on with us. We are grateful for your time. I learned a lot about amicus practice in particular. You may be getting more tweets coming out on the show, people asking me more about it. You definitely come to mind when I think of amicus and certainly Supreme Court work. It’s great to have you. We never had anybody talk about that up to now.

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 Carl Cecere

TALP 36 | Amicus Practice

Carl Cecere is skilled in delivering arguments that provide maximum impact. He’s the product of an elite, big-firm appellate practice, but he started Cecere PC in 2012 to deliver those same services in a more efficient manner, with direct attention, flexible fee arrangements, and flexible roles.

Carl works in areas where the law is uncertain, where the stakes are high, and the subject matter is often highly technical — where the need to skillfully deliver arguments with maximum impact is at its most critical. He has represented parties in the United States Supreme Court and in other federal and state appellate courts nationwide.

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