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Rising Star
I mean, it’s not the *only* path but it’s certainly the optimal path and some clerkship (even if not with an appellate judge) is better than no clerkship.
I do criminal appeals on a contract basis through a local public defender’s office. They also hire full-time. I feel pretty confident that I could use my skills and experience to get a private sector appellate position even in a different area of law if I wanted.
There’s a lot of back and forth on this and IMO it’s bc there is plenty of appellate work that isn’t elite SCOTUS clerk level work but (a) it’s not very prestigious or glamorous so most would rather do something else and (b) realistically even if you have those creds, biglaw appellate partner work is usually either a stepping stone to a non-biglaw gig or a weirdly prestigious yet diminutive partner position where you have respect but are below in the pecking order relative to M&A/Capital Markets/etc.
Put another way, appellate work is a prestigious path, not truly a profitable one all else equal, so the market for non-prestigious work is thin. That’s not to say you can’t have a great career as an appellate attorney - just providing commentary on the duality of responses to OP.
I currently practice at a boutique appellate firm, and my federal appellate clerkship helped me tremendously in getting hired. And most of the attorneys at the firm have clerked on a state or federal appellate court. So, it’s not required necessarily, but if you are interested in appeals and have the opportunity to clerk, I definitely suggest it.
If your firm has an appellate group, ask for the work. It is absolutely not necessary to have an appellate clerkship. You need to be a good writer and enjoy digging into the weeds. I’ve done appellate work for more than 20 years, no clerkship—just asked for it because after doing one I realized I liked it better than daily litigation/discovery. Have briefed & argued in a few states and fed circuit courts. Probably will never get a SCOTUS case but love what I do.
Not sure from your title whether you’re a trial court clerk or a student. If you’re in a trial court, I don’t think you should have a problem making the transition. Either way, I highly recommend applying with state appellate courts. State Supreme Court jobs aren’t as hard to get as you’d think. It’s not nearly as prestigious as federal court, but you’ll learn a ton quickly. People hiring appellate attorneys know that.
Maybe people on here disagree. I don’t think a clerkship is necessarily a prerequisite to getting into appeals. But I think a prerequisite to appellate work is having a particular approach to writing. The writing is why people pay appellate attorneys. We do things that trial attorneys cannot. (And in my case, trial attorneys do many things I cannot.)
I can teach someone about the added layers of complication in appellate work pretty easily, although I think the nuances of SOR takes a couple years to learn.
But I can’t teach you much about writing. Some stuff. But you have to teach yourself through writing hundreds and hundreds of pages. I don’t think it really matters much where you’re starting when trying to get into appeals. But you’re not going to succeed at appeals if you’re not always trying to get better.
The person hiring needs to know that’s your mindset.
I got pretty lucky and get to do appellate work at the small plaintiff side boutique I work at, mostly because my writing impressed the right people early on. Clerking is the better path though.
You may be able to get into appellate work, but will you be able to attract clients? I’m in-house and the appellate lawyers who pitch me (and there are a LOT of them) all make it a point to highlight the circuit judges (often prominent ones) and SCOTUS justices for whom they clerked. This will be your competition once you make partner.
Depends on where you go. In my experience at two different biglaw firms, the appellate teams were lean, so appellate work went to those that had federal (COA and SCOTUS mainly) clerkships.
Do NOT be freaked out by people on here talking about SCOTUS clerking. Notice that they are not appellate attorneys and did not get appellate jobs.
I live in a mid size state and 6 months ago we had a two-day appellate attorney bar conference. There were 300 appellate lawyers there. Think of how many appellate lawyers didn’t show up.
Work on your writing every day. Get together a killer writing sample. Find bar events to go to. I did not get my job through a cold email. But I used to cold email people.
If you’re open to criminal work, you can get into that without an appellate clerkship if you develop some experience at a public defender’s office. I do a variety of work but some federal criminal appeals and have gotten to argue before the Ninth Circuit a couple times. I would not want to do it exclusively but it can be really fun and rewarding.
I think it’s true criminal appeals are not as hard to get into. But I think it’s also important to caution you can’t go into them blind. The client only gets one direct appeal, and if you miss something, it’s waived forever.