Building an Appellate Clinic, an essay by Professor Tillman J. Breckenridge
This essay originally appeared on the ABA website. ©2016 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Reflecting on my first four years building the William & Mary Law School Appellate and Supreme Court Clinic (Clinic) into the mature program it is now, I can’t help but think of the myriad challenges we faced, and the help I got meeting those challenges. Without the support of 36 students (30 enrolled in the Clinic, and six research assistants over that time), our dean, and numerous other faculty, the Clinic could never have achieved its numerous successes. There are many sources of potential support, and to all the lawyers out there itching to put a clinic together but who do not have the time, there are ways in which you can be the support.
The Clinic after Four Years
Most cases that come to the Clinic face a near-zero chance of success on appeal because the issues are complex, and the clients are either unrepresented or represented by counsel who may have a strong trial background but lack the experience or available time to effectively appeal an adverse ruling. Nonetheless, the Clinic has filed briefs and presented oral arguments that have (1) produced positive outcomes for our clients, (2) established important precedents affecting large swaths of the American population, (3) provided 30 students the opportunity to learn professionalism and appellate practice by working appeals all the way through the process, and (4) aided the media coverage, reputation, and brand recognition of the school. Among the Clinic’s many successes are:
- The mayor of Philadelphia announced that, based on a ruling of the Third Circuit in a Clinic case, as well as another case, he would change Philadelphia’s policy toward joint operations with the United States Immigration and Customs Enforcement (ICE). The Clinic represented three American citizens detained by the ICE for hours after determining they were American citizens out of a speculative fear they would tip off other cab drivers to the sting operation that had ensnared them. The Third Circuit ruled such detention was unallowable.
- The Supreme Court relied on the Clinic’s amicus brief in Riley v. California and United States v. Wurie, the cell phone search cases, in which the Clinic represented criminal law professors and argued—based on the articles of William & Mary Law School Professor Adam Gershowitz—that requiring police officers to obtain warrants to search cell phones would not lead to significant loss of evidence because police could use Faraday bags, or even ordinary aluminum foil, to protect the data on the phones.
- The National Law Journal named a Clinic cert petition its Brief of the Week. The petition raised the—unfortunately still unanswered—conflict among the circuits over whether the detailed affidavits of indigent civil plaintiffs and criminal defendants should be presumptively sealed to prevent extortion, embarrassment, and identity theft.
- The Sixth Circuit ruled that taking a person from home confinement to jail is a change in conditions of confinement, triggering constitutional rights against such confinement.
There are many ways to structure an appellate practice clinic. Most law schools do not blend federal intermediate appellate court practice with Supreme Court practice. They have one clinic or the other, or sometimes both operating separately. I believe there is particular advantage to blending the work into one clinic. First and foremost, it gives participating students a full view of the entire appellate process. They get to work on the strategy of cases that usually present issues that may become cert-worthy and plan accordingly. Second, it offers a variety of experience. Some students are most excited to work on a cert petition. Others get their kicks with arguing a case. In the William & Mary Clinic, they may find themselves doing both. Third, it helps build a lasting relationship between the students and the clinic. I constantly receive emails from my former students asking me about their cases that are working their way through each level. The long arc of some of these cases binds the students through the years, and the Clinic itself.
One particular case, United States v. Williams, worked its way through each of my four classes so far. Thankfully for the client, no other students will have to work on the case. My first class found the case—a criminal matter presenting an issue that has vexed me since I was two years out of law school: at what point one Terry stop becomes two Terry stops, whereby the second stop must be supported by independent suspicion. My second class briefed the issue in the Fourth Circuit, as well as an alternative ground for reversal, on which the circuits were divided—whether a traffic stop may be extended for the purposes of engaging in a drug investigation. The case was set for oral argument, but then stayed pending the Supreme Court’s resolution of Rodriguez v. United States. After Rodriguez, my third class engaged in supplemental briefing on how Rodriguez affects the question of whether there were sufficient indicia of drug activity during the traffic stop to extend it into a drug investigation. Then, finally, my fourth class argued the case, and thankfully, received a thorough, published opinion that explained how indicia of drug activity interact, and held that our client was subject to an unconstitutional extended detention.
Seeing the end of that case was bittersweet, because it left only the Clinic itself as a link between the coming year’s students and all the students who came before them. It also yielded an opportunity to reflect on how far the Clinic has come. As I contemplated changing firms six years ago, I saw an opportunity to fill a void. A petition for a writ of certiorari had been denied in a case that I felt should have been granted. I looked up the petition and read it. I was disappointed in the poor quality. Right then, I knew that I would enjoy forming a clinic to pursue broad-reach appeals in the First and Fourth Amendment realms.
I was fortunate enough to have had an appellate clinical experience at the University of Virginia School of Law, and I could remember what I felt were its strengths and weaknesses. I relished the opportunity to build a clinic on a new model that retained the strengths and allayed the weaknesses of what I had seen before. I also relished the opportunity to teach again, almost a decade after I had taught First Amendment law and constitutional civil liberties courses at DePaul University. I missed teaching, and I missed the energy of interacting with students. I wanted to make an impact on the law, and I wanted to make an impact on some of the people who would shape it in the future. I also wanted the practice development opportunities a clinic could provide.
Over the next several months, I set out to design a new form of appellate clinic that worked at both the intermediate level and the Supreme Court level. I studied clinics from all over the country, and found none that blended the two. I learned about federal intermediate appellate clinics, and I studied the handful of successful Supreme Court clinics. I wanted to give my students the ability to see the full appellate process, and I wanted to give at least some of them the opportunity I had to argue a real federal appeal before they finished law school. I then looked for the ideal school at which to teach. I was, of course, limited by geography and whether a school already had an appellate clinic, but that still left several options. In the end, I chose William & Mary based on the quality of its students, my perception of its atmosphere, and the flexibility I felt it could provide. I made the right choice.
When I proposed the Clinic to William & Mary, it had shown clear support for clinical programming. Clinical Professor of Law Patricia Roberts, the head of clinical programs, was my first contact. I emailed her pretty much out of the blue, and I asked a William & Mary alum to follow up with an endorsement. The three of us had lunch shortly thereafter, and Professor Roberts was excited about my design from the outset. She provided invaluable advice about what to include in my written proposal, and she pressed me with tough questions she knew I would need to answer.
Professor Roberts and I then met with Dean Davison Douglas. Dean Douglas was skeptical of whether we could obtain the case load necessary to thrive under my plan, which eschewed the traditional method of going to the home circuit court and asking it for cases. Rather, we would scour the dockets for broad-reach First and Fourth Amendment cases. Thankfully, Dean Douglas had the humility to defer to his expert head of clinical programs, and the willingness to take a risk on a program that could be a great boon to the law school’s offering for students. He has been a champion of the Clinic ever since.
The Lifeblood of the Clinic: Support from All Corners of the Law School Community
Particularly as a course taught by adjunct faculty, the Clinic could not achieve these successes without outstanding support. The Clinic would not have gotten started without the support of Professor Roberts and Dean Douglas. The students are the largest source of support, particularly in terms of hours spent. When I ran my design of the Clinic by some professors at several schools, many expressed concern over the amount of time involved, insofar as it may take longer to rewrite student work than to simply do the work myself. Thankfully, I have had an outstanding group of students that very rarely turn in work requiring a significant rewrite.
The faculty also have been incredibly helpful. They have had open doors to the students to ask questions of the experts on particular subject matters during briefing, and a dozen or more professors have lent their time to students as judges on moot panels. Most students have mooted a case five or more times before their arguments, and that is wholly dependent on the strong support the faculty provide.
Some schools have full-time positions for faculty running appellate clinics, but for a part-time faculty member like me, firm support also is key. Clinical adjuncts must effectively convince their firms of the benefits of having a partner spend a large chunk of his or her time on pro bono cases. In the appellate realm, the cases help build brand recognition for the firm and help develop the reputation of the appellate practice. Some firms recognize this more than others, and that can affect the success or failure of a clinical program. I am very thankful for the support Bailey & Glasser has provided, as I know some colleagues at other firms would like to found clinics but are prevented by onerous and short-sighted firm metrics.
For anyone thinking about starting a clinic, or anyone running one now, a supportive law school environment is key to success. I encourage clinicians to evaluate from where they receive support, and evaluate from where they might receive more. Lawyers from outside the school could be a great additional source of support for almost any clinic. When I was at a larger firm, I was able to utilize associate help. Another course would be to team up with an organization. For instance, I would love to have a companion criminal appellate clinic that teamed up with a pro bono organization on the defense side, or the government on the prosecution side. Many such clinics exist around the country. A third course would be to find four experienced appellate lawyers who would team up with my four pairs of students to provide an additional viewpoint and sounding board for cases. So I encourage practitioners to contact their local law schools to see what help they can provide to a clinic of their interest. It has been an incredibly rewarding and fulfilling experience for me. And it would not be possible without a wide swath of intelligent and generous supporters.
Tillman J. Breckenridge is a partner at Bailey & Glasser LLP and an adjunct professor of law at William & Mary Law School.
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