The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Here is a test that recruiting directors might try in the summer associate program to determine what practice groups their tender charges ought to try out. Put the group of soon-to-be-lawyers into a conference room full of documents and watch what happens. 

• Some of them will dig into the documents and start creating time lines and witness notebooks and matrices and systems for mastering and memorizing all the facts. These are the trial lawyers.
• Some of them will co-opt other junior lawyers to look at the documents for potential liabilities. These are most likely the transactional lawyers. (If you later observe them looking for drafting precedent or lounging at the printer or playing golf or eating lunch off campus, the match is conclusive.) 
• But a few, we happy few, will first go to the library. These are the appellate lawyers.

In that whole mess of documents, the ones that really matter can probably be contained in a single notebook. In fact, it was one of the best trial lawyers I ever new who told me, “If we can’t tell our story on one Big Red Indian Chief Tablet with a number two pencil, we’re sunk.”

The filter that reduces a room full of documents down to the Big Red Indian Chief Tablet is the law. The law is not in the conference room and it is not on the phone haggling with opposing counsel. The law is in the library.

Well, the law was in the library in the old days. Now it is online, but you get the point.

Appellate lawyers have this law focus because we have typically (at least in my firm) clerked for judges right out of law school--an experience that permanently warps us--I mean changes us to think like judges--to see lawsuits as if we are on the other side of the bench.

And it is never to early in the process to see the case as the judge is going to see it. 

• The law sets out the rules of the road. 
• The rules of the road impact which facts you emphasize
• The rules of the road dictate which adverse facts you have to worry about and which you don’t.
• Even as a trial strategy matter, the rules of the road will inform how you theme the case. 
• Most especially, the law decides and what the jury will eventually decide.  

So why not draft your jury charge and your pleading in tandem as you focus on the elements of proof? Why not know the rules of he road are before you start driving? Why not drive the facts toward a summary judgment? Why not have some impact on those rules, lest you find out that “you can’t get there from here?” 

Why not call the law nerd first, before the verdict, before the discovery or the pleading even?