Brian Keller: Mathematician of Appellate Law
In a hole in the ground there lived a hobbit [...] it was a hobbit-hole, and that means comfort. — The Hobbit by JRR Tolkien
Brian Keller’s hobbit hole is the world of appellate law and practice. For this JRR Tolkien fan, a career as an appellate lawyer is the perfect match for Keller’s self-described nerdery—the practice requires mastery of a host of activities revolving around brief-writing and oral argument, and the appellate bar speaks its own unique tongue: forfeiture and waiver, plain error, abuse of discretion, de novo, etc.
As Keller explains, the world of appellate lawyering is not unlike that of a mathematician.
Never have one of my interviews been quite so comprehensive in its treatment of the subject, so I’ve split this Q&A into two posts. Today’s post will satisfy those who wonder whether their particular temperament is suited to a career in appellate law. Next week, we’ll look at the many nuts and bolts of appellate lawyering.
Background of an Appellate Lawyer
Who are you and where are you from?
I’m a Midwestern boy, grew up in Nebraska. I’m in D.C. now, far from home.
What’s your area of practice?
I’m an appellate lawyer. And that means comfort. (Tolkien reference there—feel the nerdery?) I practice in D.C., before appellate courts that have jurisdiction over military cases, and the Supreme Court. I’m the Deputy Director, and supervisory appellate attorney, in the Department of the Navy’s appellate division.
How long have you been in practice?
I’ve been a practicing attorney since 1998. A sudden onset of patriotism almost caused me to fall into a job as a reserve Marine truck driver until a Navy recruiter pointed out that as a law student, I had other options and could still become a Marine, but maybe looking into the “judge advocate” route would be wise. I had no idea what a judge advocate was, but the road was swift after that.
I was commissioned a Marine officer and became a Marine judge advocate within the year. During law school summers and after graduation, I practiced in various areas of law as a Marine, including trial defense, family law, as a deputy staff judge advocate, and on deployment as a garrison and strategic advisor.
Since 2005, I’ve practiced solely in appellate law. By luck I was stationed at the joint Marine and Navy appellate litigation division. I had the good fortune to step into a leadership role while still active duty. When the Navy decided to create a new position to ensure continuity of appellate expertise in the division, I became the Department of the Navy’s first civilian appellate resident expert a few short years later. My practice focuses on extraordinary writs, appellate remands, interlocutory appeals, and capital cases, although I supervise all our office’s litigation and thus work on all sorts of cases and guide the legal writing and position-taking on behalf of the United States, oral argument training, and attorney development. In all, I’ve represented the United States in some 1,000 cases, argued a dozen or so cases, and briefed numerous others. I was also on-brief and intimately involved in our Department’s Supreme Court litigation, which was an absolute thrill. (We just needed one more vote—hello, Justice Kennedy!)
In 1996 when I began law school, I felt an immediate “I get this” with appellate law—and nine years later, I ended up where I always knew I was supposed to be. Appellate law is unique, and it takes certain skills—it was an immediate fit.
Temperament of an Appellate Lawyer
How is the world of appellate lawyering like that of a mathematician?
Every attorney who steps through my doors is a stranger to appellate law. I face the challenge of helping them become a competent appellate attorney quickly enough so that they make a contribution before they “rotate” anywhere from two to three years later. That’s difficult, since it takes a minimum of six to twelve months before I can “force” them through the ringer of exercises that brings them up to speed. I find that the easiest analogy—the easiest sell—is to describe appellate law as mathematics. And really, it’s true.
In high school, I took a four year course with a superb teacher, and the course kicked my ass. We had to do college level logic problems in seventh grade—100 step logic proofs which began with presumptions, applied the presumptions to various rules, then popped out the conclusions we were looking for. Later it was rhetoric and Aristotle. In college it was Hegel, Heidegger, and “the incomprehensibles,” as I like to call them, the turgid philosophers. The lessons I drew from that were twofold: First, logic proofs give you concrete and irrefutable results. Second, incomprehensible writing gives you results that are up for grabs. Aristotlean logic and math proofs always get you where you need to go, by the shortest route possible.
And so it is with the law. Write what you need to say, and no more. Structure your appellate writing like a logic proof. While you may win friends in trial courts with fuzzy logic or appeals to conscience, you will come closest to winning the day if you treat appellate law like mathematics. Even deviations from precedent are seldom conscience based—there’s some legal or logical reason that gets you where you need to go. And that’s almost always the easiest sell for appellate judges.
What would you say to a young lawyer or law student who wanted to be an appellate lawyer, or an older lawyer who would like to take on appellate cases?
Know that you can’t be a successful appellate lawyer and cut corners. If you are a skilled conversationalist and expect you’ll win over judges with your charm, you’re wrong: it’s about the law. And know that you will win accolades as a new appellate lawyer by massive amounts of preparation—long hours reading the record and reading all the cases relevant to your issue, both in and outside your jurisdiction. You won’t win accolades if you only know the facts of your case and one case that seems to be on point. You have to be able to walk the entire landscape of your issue’s jurisprudential history and wrestle with an entire host of crazy hypotheticals to test the limits of your position. You can’t just respond: “But that’s not this case, your Honor.”
How did you become an appellate lawyer?
My route is unique because I ended up as an appellate practitioner at the whim of the military rotation gods, and had the good luck to stay. The thing about military appellate practice is that it is nearly identical to civilian appellate practice. So attorneys who practice in the military appellate divisions find themselves more marketable to civilian employers than they may be in many other military law jobs—there’s simply a one-to-one translation between the skill set of military appellate lawyers and civilian appellate lawyers in many cases.
If you’re going to become a judge advocate, I’d recommend you make it known early and often that you want to practice in your service’s appellate division—but so you’re worth the billet, I’d cut your trial teeth first, read widely in criminal law, and hone your writing skills.
If you’re a private sector attorney, appellate practice is fast becoming a niche practice. Appellate practices are springing up all over the place, from appellate sections in big firms to boutique small-firm appellate practices. Make your interest known if you’re in a big firm. If you’re a solo, just start doing it. There are also plenty of nonprofit organizations, such as the Center for Constitutional Rights, that do lots of appellate litigation that looks fascinating—and in many ways is very much like the constitutional litigation we’re doing in my office.
Finally, if you don’t mind government work, both states and the federal government have appellate divisions—Justice’s civil and criminal appellate divisions, state solicitors general offices, and solicitors offices within federal agencies. The opportunities are out there. You just need to dig. I almost landed in another federal agency’s appellate office that practiced a very narrow issue before federal circuits across the country, but chose my current job because of the very broad swath of constitutional criminal issues we routinely litigate, which is endlessly fascinating.
What do you love about appellate law?
I love reading the other side’s brief as a kicking-off point, then diving headfirst into the law, figuring out what it all means, and dozens or hundreds of cases of LEXIS research later, coming up for air and shouting, “Aha! There’s a much, much better argument they should’ve made—and here it is. And, by the way, what they said is much, much more succinctly summarized like this (blah blah blah).”
We may lose—we may win—but figuring out what it “really means” is exhilarating, especially when you get there together with your colleagues. Not everybody loves this stuff. For some, it’s about only the case in front of them. Appellate law is by definition law that can instantly change the lives of hundreds or thousands or more, so the narrow view is on the one hand a personal choice. On the other hand, it’s dangerous. If you prefer the narrow view, stay away from appellate law. You’re helping to make precedent, persuasive or binding, whether you like it or not. “That’s not this case” is simply an excuse from those who don’t understand appellate law, at least most of the time. You’re affecting lots of lives. You have to want to help the judges understand that, too, so your persuasive task is daunting.
What do you hate about appellate law?
Nothing. In a sense it’s law for law’s sake, or the embodiment of a system of laws, not of people, as the saying goes. I do wish that law schools—and there’s a move afoot to change this presently—would plunge law students into residencies, like medical school, to prepare them for the realities of legal practice. Bad and sloppy writing are too frequent, but that’s a product of elementary and high schools. If students get into college without a solid foundation for reading and writing, it gets more difficult to do much about it.
Tell me about Doctor Who.
Doctor Who was a TV show that started in 1963. I first encountered Doctor Who around 1978, when I recall hiding behind the couch and watching the Doctor and his companion Leela walking over a pit of flesh-eating worms. I’d visit relatives in other states, and see the same show, the same character, with a different face. And he’d invariably resolve problems with lots of conviction, lots of science, and minimum violence. It was different fare than most American TV, and fascinating. I was hooked.
By the 1980s, I was a really devoted fan. I’m guessing there were over 500 episodes at the time, and five “regenerations” of the main character. It was a far more expansive show than Star Trek. But because it wasn’t massively popular in the United States, and had a relatively small fan base over here—and because it was British—it had a very cohesive mythology. It wasn’t helter-skelter due to fan fiction run wild. It made sense and the narrative developed gradually. It was a rule nut’s dream.
How does Doctor Who relate to appellate law?
Knowing baseball stats was some kids’ thing. For me, it was knowing everything there was to know about Doctor Who. How many regenerations can a Time Lord have? The author who wrote The Hitchhiker’s Guide to the Galaxy—what was his involvement with Doctor Who? What’s the “Second Law of Thermodynamics”? If something was made out of “Dwarf Star Alloy,” would it really be extremely dense? These were all crazy trivia that Doctor Who threw me into caring about.
As with appellate law, I buy into the backstory of Doctor Who. And so, I think, do superfans like author Neil Gaiman, director Peter Jackson, and Doctor Who’s current showrunner Steven Moffat. They really get this 50-year old backstory, and they try very hard to stay true to it, or invent very reasonable excuses for diverging from it. That’s a zone of “comfort” for an appellate lawyer, and another reason I think my love of appellate law, and Doctor Who, are intricately related.
Don’t even get me started on Tolkien.
One Last Question
In case it hasn’t been made clear, what would make a lawyer particularly suited for appellate practice?
Intense curiosity, excellent writing skills, and immaculate attention to detail.
Thank you, Brian!
The pleasure is all mine.