Student Appellate Work: A Great Learning Opportunity
by Anayat Durrani
The Wisconsin Innocence Project offers free legal assistance to inmates who have provable claims that they were wrongly convicted. It enrolls about 12 law students who investigate and litigate claims of innocence in Wisconsin and other states. Students work a full year in the project. Many inmates who have been wrongly convicted have been set free after new evidence surfaced, such as exculpatory DNA evidence.
Clinical Associate Professor Keith Findley serves as co-director of the Innocence Project and said that students in his appellate project are very effective.
"We have analyzed the cases we have handled and have found that our students tend to identify and litigate more issues than attorneys in the field and that they have a higher success rate than both public defenders and private attorneys appointed by the public defender," explained Mr. Findley.
Mr. Findley believes this is so because students in the clinic are afforded more time and possess the enthusiasm to scrutinize the cases in a more thorough manner, work together collaboratively, and can give top-quality representation with each case.
"We have luxuries of time and resources that many practicing lawyers don't have. But that is important to our educational mission. We hope to teach students how to handle appellate cases as thoroughly and expertly as possible."
Mr. Findley said that students work in pairs or small teams on cases, always under clinical faculty supervision. Mr. Findley said his students take primary responsibility for cases and function as a regular assigned attorney would. He said the goal is to provide students an opportunity to take ownership of the cases.
"I always felt I had enough supervision, but you're trusted with a lot of autonomy and responsibility right away," said Mr. Harrigan. "And it can be pretty scary when you are trusted with helping decide whether or not to take a case, and you only just finished your 1L year. After all, you're probably an inmate's last chance."
Mr. Findley said that appellate work provides a great learning opportunity for law students.
"It offers an opportunity to learn important lawyering skills—from fact development to legal research and analysis to legal writing and oral advocacy. It also provides a wonderful vehicle for learning about and reflecting on the criminal justice system and the role of lawyers in that system," said Mr. Findley. "Students get to evaluate cases critically, with benefit of the full record of the trial court proceedings. They can essentially engage in a postmortem on a case, evaluating the lawyering, the strategies, and the application of the law in a critical way."
Mr. Harrigan said that student appellate work goes beyond the typical research and writing experience a law student gets. He said a student is given boxes filled with old notes and transcripts from attorneys who handled the case many years earlier and must spend time sorting through material to determine what they are dealing with. He said it requires looking at a case with a fresh set of eyes and sometimes coming across something that was missed before.
"You also acquire a healthy sense of skepticism and an appreciation of how important it is to do things right the first time. Listen to your client, track down witnesses and documents before they disappear, take good notes, and keep your client informed every step of the way. These skills cross over into any line of legal work," he said.
John Gartman is a trial lawyer, Managing Partner of Fish & Richardson's 55-lawyer San Diego office, and responsible for hiring the majority of partners in his firm. He said student appellate work demonstrates a student has worked hard at honing oral advocacy skills. And, he added, if they have won competitions, it shows they are probably very good at it. He said both appellate and trial clinical work serve as valuable skills.
"Is it more, or less, valuable than student trial advocacy work? I'd say neither. The reality is that there will be many jobs out there for trial lawyers and few jobs out there for appellate lawyers," said Mr. Gartman. "In fact, there are only a handful of firms in the country that focus on appellate practice in any significant respect. But both trial firms and firms with a substantial appellate practice will view the experience in school as beneficial, maybe even predictive of success."
Estelle McKee—Lecturer, Cornell Law School—said that through appellate work, students can concentrate on developing legal arguments and improving their writing. "Although trial-level work also gives students practice with applying law to fact, the focus there is often more on fact development and presentation. At the appellate level, the arguments involved are often more complex and require more analytical skill."
Ms. McKee teaches the Asylum and Convention Against Torture Clinic at Cornell. Students write appellate briefs to the Board of Immigration Appeals on behalf of clients who have petitioned to remain in the United States because they face torture or persecution in their home countries. Students handle all aspects of the appeal, but under attorney supervision.
"In our clinic, we find the students extremely effective. Our clinic only handles appeals to the Board of Immigration Appeals. At that level, approximately one out of ten cases succeeds. Our clinic, on the other hand, currently has a 50% win rate," Ms. McKee said.
Maureen E. Laflin is Director of Clinical Programs at the University of Idaho College of Law and teaches the Appellate Clinic. Students work individually or in pairs on one or two complex cases that require strong knowledge of an area of law and the related public policy issues involved. "My students do mainly prisoner civil rights cases before the Ninth Circuit and criminal appellate cases in state court," she said.
During their two semesters in the clinic, students are generally able to take at least one case to oral argument and completion. Students work under the supervision of a licensed attorney.
"The students do the work and argue the cases. Some have stayed on a case after graduation," said Ms. Laflin. "Oftentimes, new students pick up the case if it lasts beyond the initial students' tenure."
And if one wonders whether student work passes muster, the quality of work by the interns of the Appellate Clinic at the University of Idaho has not gone unnoticed by the Ninth Circuit. For example, in Frost v. Agnos, 152 F.3d 1124, 1127 (9th Cir. 1998), the court wrote in a footnote, "We commend pro bono counsel for their outstanding performance at oral argument and for their fine legal work on this case."