Tom Sobol is a prominent plaintiff-side litigator and the President of Public Justice – a nonprofit legal advocacy organization dedicated to fighting abuses of corporate power. He spent the first 17 years of his career, however, working in a large corporate law firm. “The bulk of my work was to represent corporate interests, or moneyed, interests. In that role, the primary thing that you do is try to create roadblocks.”  Tom describes civil corporate defense as a very deconstructive kind of lawyering. “Every single thing you do as a defense lawyer is intended to drag the litigation out. Everything you do.  If somebody says, ‘Can you get back to me tomorrow?’  You get back to them next week.  If somebody says, ‘Can you be available on this day?’ You can’t be. If a court sets a hearing, you’re not available. Ever. If there’s an opportunity to seek to take an interlocutory appeal, you seek to take the interlocutory appeal.” In Tom’s words, dragging things out is “absolutely thoroughgoing” in everything that civil corporate defense lawyers do. Some of the firms that defend corporate interests pay their attorneys to do just this. “Some of my competitors got incentive awards if their case went on for a certain period of time. They were actually getting paid to delay litigation.”

“Some of my competitors got incentive awards if their case went on for a certain period of time. They were actually getting paid to delay litigation.”

Working on behalf of plaintiffs and against powerful corporations is very different. “One thing that I learned when I went over to work on the plaintiff side, is that it’s all creative,” Tom told me. “It’s all about trying to make sure that everything gets put together the right way, and that everything goes forward. You’re really trying to do what you can to get to the substance of a dispute and not spend as much time getting held up by way of procedural issues.

David Seligman’s work on behalf of plaintiffs in Aurora, Colorado, exemplifies this dynamic. For eight years, David has been litigating a class action suit against GEO Group—a corporation that runs for-profit detention centers under contract with U.S.Immigration and Customs Enforcement (“ICE”). In Colorado, GEO Group allegedly forced detainees to perform unpaid labor under threat of solitary confinement. David is arguing, on behalf of current and former ICE detainees who were confined in the facility, that the company violated federal human trafficking law and unjustly enriched itself off of forced detainee labor. After nearly a decade of pre-trial litigation, the GEO Group case is finally expected to go to trial in the spring of 2023.

The ICE detention center run by GEO Group that is the subject of Towards Justice’s class action suit

“These cases can be really, really, really expensive,” David explained. “On the defense side, your client is paying; they’re footing the bills all along.  On the plaintiff side, that’s not happening. Sometimes you’re not getting paid at all, sometimes for years. And that does, unfortunately, put people in a position where they must settle cases and move towards settlement, maybe prematurely.” This is one of the systemic pressures that enables wealthy corporations to shape the legal landscape to their benefit over time. Plaintiffs often trade off on the possibility of winning a case and producing “good law” due to financial pressures. Corporations can throw money at a dispute and settle it if it might produce “bad law” for them, and they can afford to litigate a case for years and years if they think it has the potential to produce “good law” for corporate interests.

Corporations can throw money at a dispute and settle it if it might produce “bad law” for them, and they can afford to litigate a case for years and years if they think it has the potential to produce “good law” for corporate interests.

The GEO Group lawsuit was first filed in 2014, and David and his team have been fighting non-stop in the years since to overcome pre-trial hurdles so that the case can be heard on the merits – that is, the actual issue of whether GEO Group violated the law. One of these pre-trial hurdles included getting the class of detainees “certified” by a court and then defending that certification on appeal in front of the Tenth Circuit Court of Appeals. Unlike most legal issues, class certifications can be appealed before a case ever goes to trial through a mechanism called an interlocutory appeal (and remember what Tom told us: if there’s an opportunity to seek to take an interlocutory appeal, corporate defense attorneys always seek to take the interlocutory appeal). Unsurprisingly, GEO Group sought the appeal.

The certification question got kicked up to the appellate level for review, and the case was paused until David and his team won the appeal. A seven-year study of these kind of appeals shows that plaintiffs tend to do worse than defendants both in getting appellate courts to agree to hear their claim and in convincing appellate courts to rule in their favor. This pattern is observed across the legal field: civil plaintiffs tend to do worse on appeal. There are various potential explanations for plaintiffs’ low appellate success rates, and the best evidence we have suggests that there’s a link between plaintiff losses and the plaintiff-defendant gap in access to specialized appellate representation.

David’s organization, Towards Justice, handles appeals in the way that most small plaintiff-side practices do. “If it’s your case, you argue it all the way up. You’ll file the complaint, you’ll do the discovery, and you’ll argue the appeal,” David explained. This is starkly different than what goes on at the corporate defense firms that David often litigates against.  At big law firms, experienced appellate specialists take over the briefing and argument on appeal. “It’s really rare for a plaintiffs’ shop to have something like that,” David explained.  “That experience matters.”  There is a major imbalance between civil plaintiffs and defendants when it comes to expert appellate representation. As a Stanford Law Review article observed, the lack of available appellate representation on the plaintiff-side is particularly acute in cases in which an individual sues a corporation. Law firms with appellate practices are often willing to take on pro bono cases representing plaintiffs, but big firms are typically unwilling to take on plaintiffs who are challenging corporate interests.

This imbalance in appellate representation between plaintiffs and corporate defendants didn’t occur by accident. The development of a specialized field of appellate advocacy that heavily favors corporate interests is a result of a coordinated mission by the conservative business lobby starting in the 1970s. In 1971, corporate lawyer Lewis Powell wrote a letter to the head of the education committee of the U.S. Chamber of Commerce, urging the Chamber to combat the growing influence of public-interest litigation groups by launching a “multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court.” In what is now famously known as the ‘Powell Memo,’ he laid out a plan to coordinate conservative, pro-business interests and to utilize appellate courts as a crucial arena in which corporations could advance their agenda: 

“Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations… [T]he judiciary may be the most important instrument for social, economic and political change… This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.”

Two months later, Lewis Powell was appointed to the Supreme Court by President Nixon. A few years later, the Chamber established the National Chamber Litigation Center to litigate on behalf of business interests across the judiciary. The Chamber’s strategy was highly coordinated and exceedingly effective (especially at the Supreme Court). It identified cases that could advance business interests and offered moot court arguments for the lawyers arguing them. It hired highly respected appellate advocates to convince the Court to hear more business cases. And it filed amicus – ‘friend of the court’ –  briefs on behalf of corporations litigating their own cases. When law firms started developing specialized appellate practices of their own, the Chamber coordinated the strategy of those lawyers in the most important business cases.  From a bird’s eye view, the Chamber was deciding which cases had the capacity to bring long-term strategic advantages to corporate interests, and they were devoting time, resources, and expertise to ensure victory.

The development of a specialized field of appellate advocacy that heavily favors corporate interests is a result of a coordinated mission by the conservative business lobby starting in the 1970s.

Today, the Chamber’s success in the Supreme Court serves as a good proxy for quantifying how coordinated, specialized appellate representation shapes our legal landscape. The Chamber’s win/loss ratio at the nation’s high court – a whopping 70% – is staggering, but the group’s influence is more insidious than that.  The Constitutional Accountability Center (“CAC”) tracks the success of corporate interests at the Supreme Court by monitoring the Chamber’s broader influence. Its findings reveal a troubling pattern.

First, in selecting cases for review, the Supreme Court rarely reviews lower-court victories for business interests. This maximizes the opportunities for the corporate lobby to undo unfavorable lower-court decisions while minimizing those opportunities for the people who challenge corporate wrongdoing. Second, when the Supreme Court does side with plaintiffs against corporate interests, it generally does so in narrow, cabined decisions. Meanwhile, the Court “regularly issues landmark rulings that fundamentally transform the law in favor of corporate interests.”  The result is devastating. As the CAC concluded, “this lopsided pattern means that year after year, efforts to promote corporate accountability or restrain harms caused by industry generally tread water, at best, while big business repeatedly enjoys seismic victories that reshape the legal landscape in its favor.”

Two graphs created by the Constitutional Accountability Center reflecting the Supreme Court’s increasing support for the U.S. Chamber of Commerce and displaying a breakdown of how often each justice votes in favor of the Chamber’s position. https://www.theusconstitution.org/series/chamber-study/

What’s at stake here is not just big wins in big cases. Instead, it’s the very landscape of our law and the legal tools available to hold powerful actors accountable for inflicting widespread harm. In his seminal 1974 article, “Why The ‘Haves’ Come Out Ahead,” Marc Galanter described the phenomenon that we’re seeing play out: repeat players have the capacity to play for rules in litigation instead of just playing for short-term gains. The resulting body of precedent cases – which then influence the outcome of future cases – are skewed in favor of those repeat players.   The Chamber has successfully coordinated litigation efforts across the judiciary to play for rules that help corporations entrench their power and evade accountability. There’s no comparable force on the plaintiffs’ side.

To appreciate the systemic consequences of the gap in appellate representation, we should consider how appellate work differs from trial work and what makes appellate expertise so influential.

Michael Dreeben is an appellate expert who served in the Solicitor General’s Office for more than 30 years and has argued over 100 cases in the Supreme Court. He currently co-runs Harvard Law School’s Supreme Court and Appellate Advocacy Workshop, where he helps students understand how appellate courts are influenced by advocates and how advocates can participate in the process of developing the law.  In describing how an appellate advocate’s skills differ from those of a trial lawyer, Michael explained, “the task in appellate litigation is to explain, develop, and apply law, and the kinds of things that you need to do in interacting with law are a little bit different than what you need to do in developing facts at the trial level.  It’s a specialized audience. Understanding the constraints and priorities of an appellate court is different from thinking about how to persuade a jury.”

Adam Hansen and Colin Reeves work at Apollo Law, a plaintiff-side appellate firm that represents employees and consumers who challenge corporate wrongdoing. Apollo’s mission is to do much of what the civil defense bar has been doing at the appellate level. As Adam described it, Apollo’s goal is “to collaborate with trial lawyers, nonprofit lawyers, and academics in order to pick and choose cases in a way that’s going to have a meaningful impact on the on the body of legal precedent for the types of folks that we represent.”  Adam and Colin described the key benefits of having an appellate specialist working with a trial team on appeal. “Appellate specialists can see the law differently. They can understand how the appellate court is approaching the law, what they care about, and what they don’t care about. They can see around the next corner and understand where the law is headed, where the judges might be interested in pushing the law, or where the judges might be tempted to put on the brakes. Having that institutional background knowledge tends to be very valuable.”  Both Adam and Colin – like many appellate specialists – previously worked as clerks in federal appellate courts. As Colin explained, “clerkship experience provides insight into what clerks and judges are like and what kinds of arguments and ways of framing a case might work for them. We’re thinking in those kinds of terms and trial attorneys are not.”

Michael Dreeben expressed a similar sentiment regarding the impact of specialized appellate advocates. “In a great many cases, it doesn’t matter who the advocates are. So long as the briefs are above minimum, the judges will do the work and get it right. But in many important cases, success stems from judgments about what arguments to make and what arguments to drop, seeing developments in law over time and projecting them outward, and borrowing analogies from one area to another area of law. An appellate specialist is more likely to do those things than a generalist.”

These accounts align with the data that’s out there on the impact of specialized appellate representation: empirical studies suggest that access to expert appellate representation often determines who wins and who loses.  There’s also evidence indicating that appellate expertise has a powerful peripheral effect on our legal landscape, aside from directly impacting who wins and who loses. One way is through simple name recognition. A 2004 study based on interviews with 70 former Supreme Court law clerks found that 88% of clerks lent more careful consideration to amicus briefs filed under the name of a reputed, repeat-player appellate advocate.  Being an experienced appellate player can also impact how courts use cited precedent. A 2013 study of Seventh Circuit Court of Appeals decisions suggests that an attorney’s prior appellate experience (or lack thereof) often influences whether the court will use the precedents that were cited in the attorney’s brief, regardless of who won the case. Even when they lose, attorneys with appellate experience are more likely to see the court’s opinion address the precedents they raised positively. Through the identification of relevant precedents, appellate advocates can shape the contours of a court’s opinion, even in defeat.

“Whether through skill, name recognition, or a combination of the two, having a repeat-player appellate advocate on your side seems to make a difference. By extension, plaintiffs should be concerned when only their opponents have access to this reservoir of talent and influence.”

Plaintiff-side appellate specialist Deepak Gupta has written on this plaintiff-defendant gap, and he summarizes the issue well: “Whether through skill, name recognition, or a combination of the two, having a repeat-player appellate advocate on your side seems to make a difference. By extension, plaintiffs should be concerned when only their opponents have access to this reservoir of talent and influence.”

Some firms and non-profits on the plaintiff-side are working to remedy this imbalance, but the endeavor is no small feat. Adam from Apollo Law described the ways in which the defense side is still far ahead. Much of it comes down to coordination. “The defense side is beating us in two respects. First, they’re making better decisions about which cases to appeal. Oftentimes, when defendants lose at trial they just pay and move on. When defendants do choose to appeal, most of the time there’s a substantial issue there. There’s some real risk that the plaintiff could lose. The plaintiffs, by contrast, appeal a lot more often, especially when they lose. Plaintiffs tend to generate a lot more losses in the appellate courts for that reason.”  

Decades of organizing by the business lobby has enabled it to avoid these kinds of losses. The Chamber of Commerce’s Institute for Legal Reform works with private firms to coordinate activity and files amicus briefs to urge courts to reject cases that could make bad appeals. There’s no comparable force on the plaintiffs’ side with the resources and authority to prevent plaintiffs from taking on doomed appeals.  The body of legal precedent – the appellate cases that set the legal rules for future disputes between individuals and corporations – tends to favor corporate defendants as a result.

The second way the defense side is out-coordinating plaintiffs involves their ability to identify and overturn key plaintiff wins. According to Adam, “when the plaintiffs win and the defendant does take it up on appeal, the plaintiffs’ counsel often don’t appreciate the risk.”  It’s natural to assume that, after you’ve won at trial, winning the appeal will be a slam dunk. “Oftentimes, yes,” Adam acknowledged, “but that’s not always the case.”  Overall, “the civil defense bar does a really good job of evaluating the appeals and bringing in appellate counsel at the appropriate point for the cases that they are strategically picking to push. While the plaintiffs’ bar does the same thing, I don’t think we’re doing quite as effectively,” Adam concluded.

Deepak Gupta provided a blueprint for leveling the playing field on appeal and strengthening the plaintiff-side appellate bar, and his firm Gupta Wessler plays a vital role in this space, especially when it comes to litigating on behalf of plaintiffs at the Supreme Court. The solution to the appellate imbalance requires increased coordination among existing plaintiff-side players, and it also requires changes at the legal education stage.

One of the factors stunting growth in plaintiff-side appellate work has to do with how legal institutions orient students as they start their careers. During his first year at Harvard Law School, Matt Jones noticed the prevalent interest in appellate litigation among his peers. “I asked myself, does anyone here not want to do appellate litigation?”  Despite this popularity, it’s relatively rare for students to pursue plaintiff-side appellate work. The vast majority of law firms that Harvard hosts during its on-campus interview program are corporate firms, and there’s a general sense that success is defined by working at a big corporate defense firm.  For the past three years, students in the Harvard Plaintiffs’ Law Association have organized their own plaintiffs’ law job fair, but there’s been no significant institutional support for the endeavor.

“There’s something about being a good student in law school and having a lot of offers and opportunities that almost causes an atrophy to the entrepreneurial muscle.”

“The more stakeholders that recognize that this is a thing, the better,” Adam emphasized. “There may be law students as well as lawyers, practitioners, and law professors who are just unaware of this space in the legal market as a matter of first principle. Getting the word out and letting people know that this is a part of the legal labor market and this is an area that people can practice in…  That’s an enormous part of solving this imbalance.”  When asked about legal education, Adam and Colin agreed that there’s more law school outreach to be done.

The dearth of talent in this practice area also stems from internal pressures. “The people who would be best positioned to be plaintiff-side appellate practitioners are top law students who go to top law schools and who have good clerkships,” Adam explained. “Those people have a lot of options, and they particularly have a lot of options that are economically secure.”   On the plaintiff-side, work is often contingency-based. You can have just as much success representing plaintiffs, Adam assured me, but “you need to be the kind of lawyer who is comfortable with risk. You need to have something of an entrepreneurial bone in your body.”  Those two characteristics, high levels of success in law school and an entrepreneurial spirit, seem to have a strangely small overlap. “There’s something about being a good student in law school and having a lot of offers and opportunities that almost causes an atrophy to the entrepreneurial muscle,” Adam explained.  Students tend to think: ‘I have all these great opportunities in front of me, so I’m just going to take the one that’s the most stable and traditional.’

“I’ll see people who got an extraordinarily fantastic private grammar school education, who go to a wonderful private high school and have gobs of money spent on them to get a great education. They go to a fantastic college, go to one of the great Ivy League law schools, and clerk for a judge. They come out of all of that, and do you know what their contribution to society is?  Dragging out litigation and creating roadblocks as corporate defense attorneys. Their job, day in and day out, is to avoid adjudication on the merits.”

Tom Sobol also recognized the dissonance that occurs in the minds of students who attend elite educational institutions. “I’ll see people who got an extraordinarily fantastic private grammar school education, who go to a wonderful private high school and have gobs of money spent on them to get a great education. They go to a fantastic college, go to one of the great Ivy League law schools, and clerk for a judge. They come out of all of that, and do you know what their contribution to society is?  Dragging out litigation and creating roadblocks as corporate defense attorneys. Their job, day in and day out, is to avoid adjudication on the merits.”   

Of course, many people graduate from law school with a mountain of debt that can make career options seem limited. Many law students find it nearly impossible to turn down more traditional and economically stable routes to success (especially when they come with a standard $215,000 starting salary).  However, attending an elite law school like Harvard also gives students the power and privilege to choose something different. Having that name on your resume opens doors. It gives you the ability to take risks, and it gives you the safety of knowing you’ll likely be able to land on your feet if things don’t go according to plan.

“However, attending an elite law school like Harvard also gives students the power and privilege to choose something different.”

There has long been a flawed (but persistent) myth that there is only one reputable path to success in the law: working at a big corporate law firm. “A lot of people over a lot of years have internalized that idea and then woken up one morning and realized they were taking other people’s expectations and pretending that they were their own. There’s finally some pushback against that idea,” Adam told me. “You can do plaintiff-side appellate work and have an outstanding career. We could use more people doing it, and we need more people thinking about it.”  As I finished up my conversation with the lawyers from Apollo law, Adam’s last point was this: “To the bright people who are interested in appellate work, don’t be afraid to be a bit more entrepreneurial. Don’t be afraid to be a bit more risk taking.  As this practice area matures, the value and benefits should become even more self-evident to even more people.”

If you pick up any law school brochure, the pages will likely be flooded with rhetoric about “pursuing justice” through your legal career. Justice seems to be the central promise of law school, but it’s not always the guiding principle around which law students build their careers. For those who are passionate about using their legal practice to develop the law and promote justice, plaintiff-side appellate litigation is an area where there’s important work to be done. Leading firms and nonprofit groups are working to combat the appellate advocacy imbalance between plaintiffs and corporate defendants, and law students and legal institutions should follow their lead.