Page 44 - FDCC Insights Spring 2022

Another reason for the lack of diversity in appellate and Supreme Court practice is the tendency of some firms to nudge high-performing African-Americans into trial practice, and away from appellate work. I was told that firms faced with diverse juries want to present a diverse team at trial to create a better sense of comfort within the jury. The lure of that reasoning certainly is understandable. But the opportunity cost may not be considered.
If the associate’s highest and best career path is as an appellate lawyer, developing his or her legal reasoning and writing skills should provide greater value than developing the lawyer’s trial skills. And forcing someone more suited to appellate practice into a trial practice does a disservice both to the lawyer and the firm. Using myself as an example, if I had been forced into trial practice—and people tried—I doubt I would be a lawyer anymore. It simply does not fit my personality. Thankfully, I was able to fight my way out of that track, but not everyone is. And a few years later, the firm is faced with an unhappy lawyer, who is not providing his or her best possible value in any event because the time that could have been devoted to developing the lawyer’s appellate skills was spent developing trial skills for which the lawyer had a lower ceiling.
Finally, consider how you can encourage young people to develop appellate skills and help fill the pipeline. As Chair of the Appellate Committee, the lack of diversity is evident in our section, as it is in appellate sections of other organizations with whom I have worked. If you know someone interested
in appellate practice, provide him or her with opportunities to develop those skills. As hard as it is with billable hour requirements, take the time to work with them on their writing. And consider encouraging them to take on pro bono cases in the federal or state appellate courts. I know the federal circuit courts tend to have long lists of cases needing assistance, and the writing and oral argument experience are invaluable.
Perhaps most importantly, please take whatever opportunities you have to guide young people who are interested in appellate practice on the path to success. You don’t need to be an appellate practitioner to know the value of the clerkship, introduce a smart young person to judges, or otherwise provide invaluable advice. Also, take advantage of—and assist in developing—the burgeoning resources for diverse students to learn more about the profession and potentially find mentors and other relationships that will help them along the path. For high school students, the Just the Beginning organization (https://jtb.org) provides programs for students all over the country to participate in education on appellate practice and lawyering and participate in a moot court competition. And a rather new organization, The Appellate Project (https://theappellateproject.org/) helps provide mentoring relationships for diverse law students interested in appellate practice. Both organizations could use all the support they can get, both in donations of time and money, to fulfill their missions.
There are many ways all of us can combat the lack of diversity in what is perhaps the least diverse practice area, and we can do so in a way that helps our own firms and practices. I hope as many readers as possible will join me in these efforts.
Tillman Breckenridge is an FDCC Defense Counsel Member and Chair of the Appellate Law Substantive Law Section. He is a Partner with Stris & Maher in Washington, DC. Contact him at: tbreckenridge@stris.com.
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Insights SPRING2021