I’ve enjoyed reading two short pieces in the past few days.

The first was a charming article that Shelly Collette wrote about her experiences as a young lawyer appearing in two cases before the Supreme Court of Virginia. She writes very honestly about the experience–case in point:

I was almost physically ill my first time at the Supreme Court of Virginia. I excused myself to use the restroom after an argument and discovered that you are not allowed back in the Court until after the argument is finished. I had to wait outside the courtroom and as soon as the doors opened, naturally the next case was mine.

Yikes! Experienced SCV advocates know that it’s critical to factor the Bathroom Rule into your argument prep. The bailiffs will literally lock the courthouse door.

Collette is also quite frank about how intimidating she found the Court, and about the sense of awe that she had about the experience.

Overall, she wrote a nice, feel-goody piece. I’ve always liked the way that writ arguments–and especially the annual traveling writ panel day–expose a range of lawyers to the Court, and there is something neat about hearing lawyers’ reactions to their first shot at appellate advocacy. This stuff is fun, after all.

But then I read the second article: the Curmudgeon’s Breakfast with Easterbrook.

I commend the whole piece to you–practically everything that Mark Hermann writes is wonderful–but there are two major takeaways I want to discuss.

First, Hermann reported Judge Easterbrook’s story about the importance of unwritten local rules:

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook has a good point here–and he was apparently years ahead of the curve when it comes to the danger of unknown unknowns:

(That clip never gets old.)

Ms. Collette ran into the teeth of one of the more important unwritten rules in Virginia practice. And there are plenty other surprises awaiting the inexperienced advocate at 100 North Ninth Street.

Even the Fourth Circuit–with its published Rules, Local Rules, and Internal Operating Procedures; its customer-service surveys; and its super-helpful case managers–still has a few idiosyncrasies that you can’t really anticipate or appreciate until you’ve been there a few times.

The second takeaway from Hermann’s article was another Judge Easterbrook story, this time one that the Curmudgeon heard second-hand:

Judge Easterbrook often tells audiences that he expects different quality briefs from different authors — he excuses poorly written briefs filed by certain overworked government agencies or small and unknown law firms handling low-stakes cases that plainly won’t bear any substantial legal expense. But the judge expects different quality briefs in high-stakes cases being handled by nationally prominent firms.

Now, isn’t that something? Courts expect different things from different lawyers. They probably expect (and hopefully get) more out of their interactions with established appellate lawyers.

So just as I was getting over my “aww, ain’t that sweet” reaction to a young lawyer’s first experiences in appellate court, the Curmudgeon drops at least two strong reasons why it’s in the client’s interest to use experienced counsel: they know the unwritten rules, and they raise the Court’s expectations.

On the other hand, there is real value to letting new lawyers argue in the SCV, and the experience means a lot to many of them.

At least one obvious way to resolve this tension suggests itself: lawyers unfamiliar with an appellate court can associate more experienced appellate counsel for the appeal.

You get the benefit of our knowledge and credibility, and we can make sure that you don’t get locked out of the courtroom.