#003: Raffi Melkonian - Texas Appellate Litigator and #AppellateTwitter Dean

This transcript was generated by AI.

Raffi Melkonian [00:00:00]:

Trial. Lawyers in trial are like athletes in a game. They are not thinking about, like, well, you know, the other side really has a good point this and that. They're there to knock their head off. And so the client often will talk to me and be like, the trial guy is telling me we're going to win. What do you think? And that's another part of my role.

Jonah Perlin [00:00:23]:

Welcome to How I Lawyer, a podcast where I talk to attorneys from throughout the profession about what they do, why they do it, and how they do it. Well, I'm your host, Jonah Perlin, a law professor in Washington, DC. Now let's get started. Hello and Happy New Year. I'm so excited to welcome today's guest, Raffi Melkonian. Raffi is a partner at the law firm of Wright, Close and Barger LLP in Houston, Texas. He's an appellate litigator who practices in Texas state courts and the Federal Courts of Appeal, where he's briefed and argued dozens of cases. In 2019, he had his debut argument at the United States Supreme Court in a case called Fort Bend County v. Davis, where he secured a 90 decision in favor of his client. When he's not drafting legal briefs, arguing at the lectern, or cooking up family feasts, you can find him on Twitter, where he's known as the Dean of Hashtag Appellate twitter the place where many appellate practitioners and legal academics hang out and find one another to debate everything from whether legal citations belong in footnotes or in the text to whether a hot dog is, in fact, a sandwich. If you haven't already, I strongly recommend joining his almost 43,000 followers by following him at RM Fifth Circuit. His takes are always insightful, interesting, and quite often funny. I promise you won't regret it. In our conversation, we talk about how he got involved in social media, the unique nature of appellate practice in the state of Texas, what he learned from his trial and appellate clerkships, and how he writes briefs and prepares for oral argument. But what interested me most about Rafi was his career path to appellate law. After graduating from the University of St. Andrews in Scotland, completing a master's degree in history at Cambridge, a law degree at Harvard, and a clerkship on the Delaware Court of Chancery, raffi secured a coveted position as a corporate associate at one of the most prestigious law firms in New York City. But then, almost five years later, he took a hard pivot and left the firm and moved to Houston for a clerkship on the Fifth Circuit. After completing that clerkship, he moved back to New York City, where he practiced litigation at a 25 person law firm, only then to move back to Houston a few years later, where he has practiced appellate litigation ever since. Rafi's story is inspiring. It has something for everyone at every stage of their legal career. But most of all, it is a story about not being afraid to say this is not working, not being afraid to say I know what I want to do, and not being afraid to change practice areas or firms or cities to find personal and professional fulfillment here's.

Raffi Melkonian [00:02:58]:

Rafi it's sort of an extremely circuitous path to where I am now. So I guess if it's okay with you, I'll just tell the story how that all happened. So in law school, I had a very much of a Scrooge McDuck theory of my future, which was I was going to be a corporate lawyer in London and make a lot of money and travel around Europe and that was going to be that. And so I planned all of my academics with that in mind. I did a bunch of corporation law, I wrote about Delaware corporate law, and then I clerked for the Delaware Court of Chancery, which really is not a traditional thing to do as a corporate lawyer. But I thought, well, that's going to give me that little bit of extra insight into how corporations work and then I'm going to go do all this M and A work and everything. And so the first little prick in that bubble happened in my summer associate or summer clerkship when I went to London to work for Simpson Thatcher in Bartlett, which is a large law firm in New York and has a London outpost. And it became apparent to me immediately that there is no American law in London. They do a bunch of bond offerings, which maybe some people listening to this don't know what that is, but let me be clear, it's a very boring form of corporate right. It's not what I wanted to do. It's not like buying and selling big companies and whatnot. It's just issuing debt to help companies finance themselves. And it's a great practice, but it's not what I wanted to do. And so I realized quickly that the London theory wasn't going to work. And so then I said, okay, well, I'm going to go to New York and just continue the same path. And I switched firms to another big corporate firm that had sort of an M and a practice that I liked, kirvath Soyne and more. And I got there and realized I was exceptionally bad at corporate law, like just appalling. So when you say exceptionally bad at corporate law, how does one figure out that you're exceptionally bad at corporate law? Absolutely. I mean, partly it was feelings of misery, and I attributed that, like, I quickly figured out that was because I didn't like it. Not because I was working 20 hours a day, which I was. But there were colleagues of mine who were working 20 hours a day and were just invigorated by that experience because they were deep in the weeds of what they wanted to do and what they were good at. But the skill set of a corporate lawyer is so unusual, especially at the junior levels, and it's a skill set I don't have at all. So it's without going too far into a tangent on sure, it's making sure stuff happens. So let's say I had a deal for a large restaurant company, and one of the things the deal was signed, let's say December 1. It wasn't, but I'm just picking a date and it was going to close. In other words, the money was going to be handed over to the seller and the restaurants handed over to the buyer, let's say February 1. Okay. And so in between those two couple of months, you need to do all the things that will make that happen. So, like, literally handing over the leases for all these restaurants, thousands of restaurants, or like, handing over the recipes or writing a contract to make sure that the coupon codes that they use with their newspaper partners work properly. And you just have to be super aggressive and organized and pushy for all that to happen. And I am not any of those things. Right. And so I found just like, completely to be a miserable experience because I couldn't do it. I wasn't good at it. It made me uncomfortable. Like, I hate talking to people I don't know. Sounds like a large chunk of what you had to do in that position. Oh, yeah. I mean, I remember one experience in that deal where several of the things were in Alabama, the restaurants, and the local lawyer who was supposed to help me was a part time attorney general for Alabama. And so I couldn't talk to him Tuesdays or Thursdays because he was the attorney general. That was attorney general days. Yeah, it was just so desperate because I would try to get stuff done on Wednesday and then he would disappear at 430 because he didn't work that much. And so I was constantly harassing this poor guy. And I cannot describe to you how much of an ill fit my skills are for those kind of efforts. What's really interesting to me is that you're talking about not being good at it, but when you really dig down a little bit deeper, it's sure, it has to do with your skill set, but it's also that you like doing things you're good at. And so you kind of set yourself up unbeknownst to you for failure, because even if you could sort of make it work, you didn't even enjoy it. So what was the point? Right, well, right, exactly. Even if the money had been a big enough carrot, and there was a big carrot because obviously at these large law firms, there's a lot of money at the end of the seven year partnership track, sure, I couldn't do it. It wouldn't matter what that number was because I didn't enjoy it and I wasn't good at it. And so I think that's really right. Okay, so you're at the point now where you figured out that this isn't for you. What's the next step? How do you go about sort of making that, I guess what the guys in Silicon Valley call it? The pivot. How did you pivot? Yeah. So there were two pivots. I would say first is okay. I sat down, was like, well, is it the firm? I was at Crevathe. Crevathe is a particularly difficult place, right. I have a fondness for it because it molds you and whatever, for good or ill, that place. But it's also a very difficult and stressful place. So I thought for a while, okay, maybe it's Crevath and I need to go to a place that's further down the pecking order of law firms, and then I'll be able to do this. And what happened in the middle there is that my partner mentor sent me to work in house at a defense contractor for three months because their entire corporate department was on maternity leave. So I moved down to Bethesda, Maryland for three months and basically ran a ten person corporate law department at a large company. There was a general counsel way up the chain, but he was busy with other stuff, right? And so there I got the environment I wanted, the people were awesome, and it was a very pleasant place, but I still hated the work. I was just really still bad at it, even at the level of managing outside council, I just again, didn't like doing that. And so when I went back to Crevath, I was like, okay, it wasn't the firm that was as nice a place as that could be, and it didn't work and said, no, that's not the variable, that's the problem. Exactly. And then I sat back down, I was like, okay, what did I think I was good at in law school? And it became apparent to me pretty quickly that actually what I was good at was reading and writing stuff. And the place to do that is litigation, clearly in law. And so I went to the leadership of the firm and I said, look, I'm either going to quit or you could get some more use out of me by switching me to litigation for a while, and I'm happy to take whatever steps back in salary or whatever you want, it's fine. They said that was fine. So I switched into litigation for two more years at the firm, and it was much closer to what I was trying to do. I could finally feel things clicking. I was like, okay, writing these briefs, getting ready for trials. This is good. And there the firm was the problem. I couldn't do it at that level because again, you're billing 2500 to 3000 hours a year, and I couldn't do that consistent with being healthy, right? So then I thought, okay, what is the best part of this practice and how can I do it in a pleasant way? And so back then there was a post on The Volak Conspiracy, which is a legal blog by Eugene Volak. Professor Volck, who's at UCLA, I think, and I had taken his First Amendment course back in law school. And Professor Volak said had nothing to do with me. It was just he was writing. He said, one thing people who think they want to be academics but don't do often is appellate law. That's a path to have sort of a 50 50 career where you're kind of academic, but you're also practicing, and you had some background in academia before you came to law school, right? Yes. So I have an undergrad degree from the University of St. Andrews, which is a Scottish university. And there I had spent four years doing nothing but history. They don't do elective courses in Scotland. So I was very deep in history. And then I started a PhD program at the University of Cambridge, where I ended up with an MFIL and decided not to become an academic. But clearly I have some kind of academic per elections. Right. And so that post really spoke to me. I was like, well, maybe that's the answer. Maybe it's appellate practice I need to do. And then it was just a matter of figuring out how to do that. And I decided it was a clerkship. I had to get a clerkship on a Federal Court of Appeal, and I applied to every sort of center right judge in the country that I could find. And I was lucky enough to get an offer here in Houston for the judge, jennifer Walker Elrod on the Fifth Circuit. And we came down here, and here I am. Did you have any other sort of connection to Texas when you applied, or you were really just optimizing for getting this clerkship with some kind of moderate bounds for political affiliation? Moderate bounds for political affiliation. Plus I dumped a list of cities on my wife's desk, and I said, Cross out ones you won't live in. Yeah, my wife and I did the same thing, except it was the other way around. She said, you can pick eight cities, and I get to veto two, and that's how we're going to do clerkship applications. So it sort of worked, and it all worked out. So I'm familiar with the concept, and that's not a common path sort of getting a clerkship. What were you, at least five or six years out of law school and having and several years out of another clerkship? Was that a challenge to sort of apply at that point in your career, or is it something you would recommend or not going forward for others? I think it was great substantively. So I was a much more experienced and seasoned lawyer the second time around, and I think I was able to extract a lot more value from the clerkship than I could the first time. And I think I was more helpful to the judge than I was the first time. So from a substance perspective, I think it was great. From a career perspective, it's catastrophe if you don't make it work in the end, because the reaction of every lawyer I talked to was, that's insane. You need to stop doing that. Right. Because you're taking yourself off the path of career progression right at the moment, where you need to be pushing it into a higher gear six, seven years out of school. So I remember the partner I worked for at Crevath at my going away parton party said, Where are you going again? I told him, Fifth Circuit, Houston. He said that's stupid. And then he left. That's amazing. I mean, I guess it's one of those decisions that when you look backward, it makes complete sense, but in the moment, to the rest of the world, because it wasn't what everybody else did, made a little bit less sense. Is that sort of right? Yeah, I think that's right. I thought I gave myself, like, an 80% chance that I was right about it, but I couldn't discount the 20% chance that it was catastrophic. But there was no other option. Like, I couldn't do what I was doing, and something had to be done. Sure. So before we sort of talk about your practice now or your trip back to litigation, can you tell me a little bit about the differences between your clerkship on the Fifth Circuit and on the Delaware Court of Chancery? Sure. The Delaware Court of Chancery is a trial court, and it sits without juries. The Vice Chancellor I worked for, Steven P. Lamb, who is now a partner at Paul Weiss, after his retirement, would hear cases and issue extensive written decisions where he made fact findings. So it's a trial court very busy, very time intensive, because Delaware litigation is not the two or three year kind of time frame that you might expect of litigation. Corporations suing each other in the Court of Chancery expect overnight answers, can we close this merger or not? Right. And so it's an extremely intense experience, but it was terrific. One thing that makes it different than a normal federal district clerkship say, is that the Chancellor and the Vice Chancellors work together to present sort of a uniform face of Delaware law, because certainty is extremely important to corporations trying to structure their financial dealings. And so it's really important to Delaware that the Court of Chancery doesn't have one judge saying X and then another judge saying completely not X all the time. And so we would sit with the other judges and talk about, look, how is this going to come out? What's the right answer? What is the right answer for how Delaware law works? And that I don't think most federal judges do when they're deciding issues, they're deciding their case, and the Court of Appeals will handle the disagreements. But right. I mean, that's sort of a feature not a bug of the traditional American trial. Court practice is sometimes different. Judges, even in the same court, come out with different answers, and that's just fine, and we have a whole process for that. But it sounds like that was a very different approach from the one the Delaware Court of Chancellory takes. Yeah, absolutely. I mean, I'm not saying the Chancellor and the Vice Chancellors don't disagree, but they try not to, and they try to be stable. The Court of Appeals is a completely different world. It's monastic. The judge and you don't see anybody for weeks at a time until we go to New Orleans, which is where the Fifth Circuit sits. The Fifth Circuit sits one week a month. And so we would all troop over to New Orleans and hear 20 cases or 16 cases, and then troop back and write them up without seeing anybody. It's just a much more academic, some would say lonely, but I like being alone. And so it was terrific experience. Right. And you said that you thought you were a better clerk because you had had sort of that experience, even if it was largely in corporate practice. Can you tell me a little bit more about sort of what advantages you felt either generally or specifically? Well, I mean, just very specific anecdote. When I came out of law school, and this may be a function of Harvard Law or I don't know, I literally thought there was, like a list of motions in the rules that you could go find and be like, okay, these are the motions you can make. And so when I got to the Court of Chancery, I sat down with the Vice Chancellor Lamb, and he said, here, deal with this motion to compel recommend something to me. And I went and I was like, there is no motion to compel in here, so we should deny. And he was like, no, that's not how it works. They can move for whatever they want. And of course, motions to compel, as any litigator listening to this knows, are an extremely common motion to force people to hand over documents. But that was my level of naivety about how litigation works when I was a clerk for the Court of Chancery. By the time I got to Judge Elrod, I had litigated for two years in New York. I knew how it all worked. I had some sort of practical sense, but not like I have now, of what made sense for the litigants and what didn't make any sense. And so I was able to give the judge much better recommendations, I think, as to like, okay, we have this. If we reverse this, what is really going to happen when we go back when they go back to trial? And we could have that kind of discussion where the first time around, I had no idea about how it worked. Right, so you've made your pivot, you've spent a year in Houston. Your wife, who I can only assume is amazing because she agreed to come with you to Houston for that year. What's the next step before you fast forward to the Supreme Court and Dean of Appellate Twitter, what's the next step in that journey? Part of my deal with my wife, who is indeed amazing for having come down here, was that we would go back to New York and give that another shot. And so I joined a small firm in New York called schlamstone. It's in downtown Manhattan, and they 25 person firm, really fantastic people. They do litigation and appellate litigation in New York, mostly New York state courts. They do plenty of federal litigation as well. And I thought, okay, I'm going to go up here and I'm going to build a federal appellate practice at Schlumstone with these awesome colleagues I have, and that's going to work. Like, it's going to be great. And they indeed are great, but it's very hard to build an appellate practice in New York. It's just not a practice that people there are familiar with. For example, here in Texas, it's common for trial lawyers to hire an appellate guy or gal when they're going to trial. And in New York, that's completely unheard of. You do it. And so this notion that there would be an appellate practice as such is not really viable in New York. In order to do it in New York, you probably would also have to have done the trial work. That sort of gets you the appeal, and then you could follow through the appeal through the life of the case. Exactly. I guess I'm curious now, how is it done in Texas? No, completely different. There is a very large specialized appellate bar in Texas, and most trial lawyers, if you ask them in a big case, obviously a case that has the money necessary to hire one of us will tell you they need to go get what they would call a law lawyer before getting close to trial. They're the trial lawyer, and I'm the law lawyer, and they need someone to handle the jury charge. They need someone to handle the dispositive emotions. All kinds of trial litigation like that would happen during trial, and that's a very common thing. People would do that most of the time, and if they don't do it, their client will insist on it because the clients are also used to the concept of an appellate litigator hovering around to make sure that everything is preserved for appeal. A big perennial question in Texas is, why is that so? Why have we succeeded in creating an appellate bar in a way that other people have not? And there's a lot of answers to that, but I don't really know. Right, okay, so you figured the practice area that you wanted to cultivate just wasn't there. Is that sort of what made you come down to Texas? Yeah, exactly. The small firm was extremely valuable to me because it proved to me that it was an entirely sustainable life. I was very happy. I liked my colleagues. I liked my work. There was no problem. And so I thought if I could just find that but also doing just appeals, then I would have hit the jackpot. And I knew that I could get that in Houston, and I probably couldn't get that in New York. And so I had to make that decision again, 1 billion kudos to my wife, who again moved down to Houston for a second time when we decided to do that. And I was right about that. But it was obviously a risk. And that's where you are now, right? And that's where you've been for the last couple of years? Yeah, I've been here since 2013. So do you feel like you're a better appellate lawyer because of all of your various experience? Whether that was your corporate experience at Crevath or your small firm experience, would you do it again? I am a very different lawyer because of those experiences than I would be if I had come straight out of law school and hit the jackpot of joining an elite appellate practice in DC. Which is the perfect version of what I do. You come out of law school, you go clerk for court of appeals on the Supreme Court, and then you go join whatever excellent law firm in DC. I'm a much, much different lawyer now than had I done that. I do think that there's ways in which I'm a much better lawyer, much better appellate lawyer, and that's because I've done a lot of trial work before, both at schlamstone and in Cravat. And what about trial work makes you a better appellate lawyer? Because I think that is one of the biggest questions that I get from students all the time, especially students who sort of think they might be on the appellate path. Is it valuable to do trial work, whether that's as a trial court clerk or as a trial court practitioner to become an appellate lawyer? What about those experiences help you as an appellate lawyer? Well, so there's two answers to that. One is Texas specific, and one is general. So let me start with the Texas specific. One, which is a big part of my practice, is going to trial with my trial lawyer friends, and it's much more helpful to them when I show up, often being parachuted on them by their client to know that I understand trial. I'm not just coming in here and saying a bunch of ivory tower nonsense that is going to ruin their trial strategy. So they have a certain comfort knowing that, look, I've done this stuff. I'm not as good at trial as they are, but I understand what they're going through. So that helps a lot. And that's maybe 40% of my practice. So that's an important aspect to what I do more generally, I think it's really important, or at least it can be important, to understand how records are made when you're being and why some things worked out the way they do, how juries are chosen, how juries decide stuff, how judges act. You can get into a lot of trouble assuming the judge is being nuts on appeal because you're looking at a cold record. But if you've done trial work for a while, you realize the judge needed to get a decision down and just move along. Right. You didn't have time to go like, okay, I have three weeks. I'm going to go think about this problem. Right. Yeah. I remember when I was clerking on the district court for DC. Judge Wilkins did part of our training. He's now obviously on the DC. Circuit, and he said, I want to make this 100% clear. My job is to get an answer. It's the Court of Appeals job to get the answer right. The irony is now he's in charge of helping get the answer right. But at the time, his goal was to get the answer, and he said, sometimes what seems to the Court of Appeals like it was the right answer, based on what we heard, they have no idea. It was just a totally different ballgame when it was before me. Absolutely. And I think it's good as an appellate lawyer to know how all that happens. Right. So I think that's helpful. I think there's a certain work ethic thing that comes from being a trial lawyer that's very helpful. So just when you're getting ready for trial, that's a lot of hours, and it's helpful to be able to turn that on as an appellate lawyer when you need to. They're not required to be a trial lawyer. Right. But they're helpful. Right. And it's probably nice to be able to know that you can turn it off as well. Which wasn't always the case in your legal practice. No. What does that look like? Are you sort of integrated with the trial team but sitting with your appellate pen in the corner writing deep thoughts? Yeah. And of course, one caveat here is that in the midst of COVID that practice has declined because we're not having in person trial. I've had two zoom trials in this period, both bench trials, so it's not gone away, but I would have more in normal circumstances. Right. So just like a very typical case, we have a lot of big institutional clients that bring us in at the last minute when a case is going to trial. And there's significant risk of exposure, so they may have tried to settle the case, and they're not going to use appellate counsel for that. And they'll work up the case, let's say through summary judgment. But now summary judgment has been denied, and the trial judge says, okay, trial in two months. Somewhere in there, we'll get hired and show. Up. Now, somewhere in there is sometimes like the Friday before trial, right? And sometimes it's a month in advance. And in both cases, the notion is to understand as much of the case as you can in as short a time and then convince the trial lawyers that you were not there to mess up their plan for how this case is going to be tried. You were there to add value to them and to take away the stuff that they don't want to do, like all these eliminate motions and motions to exclude experts and all this stuff that they really want to be prepping to cross examine people. You just take that away from them and you do it for them. And so I take over all that. I take over the jury charge, which in Texas is an extremely important and complicated part of the practice. You end up waiving legal arguments if you don't present your alternative jury instructions the right way. So I take over post judgment motions, motions during trial, all that. You just take off their plate and tell them you go win this case so that I don't have work afterwards. Right. Once they get that that you're here to help them win, it becomes a really cool experience because then they'll put you in with the trial team and you'll be there for everything, strategy and all that kind of stuff. Always with a bit of a separation because often the client will call you and say, like, look, the trial guys, well, let me step back. Trial lawyers in trial are like athletes in a game. They are not thinking about like, well, the other side really has a good point about this and that they're there to knock their head off. And so the client often will talk to me and be like, the trial guy is telling me we're going to win. What do you think? And that's another part of my role where to moderate what the trial team is saying, say, like, look, I like our case, but this piece of evidence is really bad and that's a risk to us. Let's say you get signed onto a case on a Thursday or Friday for trial Monday morning. How do you get up to speed? What's your technique? Yeah, I'll have a call with the trial lawyer and I'll just say, literally, tell me everything you know about this case. And that will usually end up being like a three hour call because the trial lawyer is so amped up, especially right before trial. Yeah, so he's going to tell you everything. And then I try to discern from that what the key points are. And then I'll go read as much of deposition transcripts and the exhibits that we're going to present as I can. If I can read the opening statement or something, that's obviously the draft opening statement. That's obviously extremely helpful. There often will be, at least in Texas, I assume this is true. In other places, extensive mediation documents, including mediation briefs that our guys have prepared. And so I'll read all that and it's just the cramming session to get as much up to speed as you can before trial. Right. And so are you a timeline person? Are you a notes on a legal pad guy? As a legal practice professor, I get students asking me, like, physically, how do I do this? What's your technique? Oh, boy. Illegible notes on a notepad is my technique. Got it, yeah. Only I can read them and it's not clear. I can always read them, but the act of writing them down is the point. Right, that's what I was going to say next. It sounds like maybe it's just a means for thinking for you, not a means for sort of creating some kind of document at that point. Yeah, that's right. I don't create like, extensive documents. So there's one more trial related practice related to the appeal, and it's something that as a law student or a younger lawyer, I would have told you. I don't even know what you're talking about. But supersedeous bond practice is super important in Texas. So let's say there's 100 million dollar judgment. The other side can start taking your stuff. If you don't do something about that, the jury issues $100 million verdict, the judgement 14 days or 30 days later, depending on what court you're in, they can take your stuff and you need to stop them from taking your stuff. And that is actually a very important part of practice. It's dispositive. In some cases, the case is over. Right. It flips the status quo. Right. Trial lawyers always talk about keeping the status quo in their favor, and that's the greatest status quo flip you could possibly have, I'd imagine, right. Like, if you have the sheriff of whatever county showing up and running off with your clients trucks, your appellate points are worth nothing because the other side has your trucks now. So getting bonds in place and arguing with judges about how big that bond should be is actually a really important part of what I do. It doesn't happen all the time. Often my opponent will say, like, look, you're representing big company X. Like, we know you're good for it. And in federal court, the bond premium is a recoverable cost, and so that's a huge hammer to hold over the plaintiff, say, like, look, if I win this appeal, I'm going to give you a bill for $4 million, so we should think about this. But in state court it's not. And so you just have to have a talk with your plaintiff's lawyer counterpart. By the way, plaintiffs lawyers in Texas also often have an appellate guy, so you're talking to your analog on the plaintiff's side. So you can talk appellate nerd language. Rather, you could have a law lawyer's lunch, right? Is that exactly right? You can call up your opponent and say, like, look, we all understand how this works. We have the money, right? So there's that. Texas has a $25 million cap on bonds. So even if you lose a 500 million dollar case, you can put up $25 million and bond the result. But anyway, that's a very important part of practice. If you don't do that, the rest of it is useless. Right. Putting that aside, the rest of my practice, it's what you would imagine from Moot court. I think it's preparing briefs, arguing cases in various courts of appeals, doing motion practice in appellate court, which I think people don't know enough about. Like, there's a lot of that. Can you give some examples of sort of motions practice that you've done in federal? Yeah, motions for stay. So let's say it's a judgment that's not monetary, so there's no way to stay it with a bond. You've got to get the court of appeals to stay, whatever is going to happen to your client. And that is very significant. Motions practice, motions to dismiss. Let's say there's no appellate jurisdiction. For some reason that ends up being a big deal. Something Texas specific, but also maybe Fifth Circuit specific, is that our courts of state, courts of last resort in Texas are very open to certification. And that's true of Mississippi as well, but less true of Louisiana. And so there's a lot of, like, people will try to move to certify a case in the middle of briefing in the Fifth Circuit. So they'll say like, well, we're briefing the case to you, but also, why don't you just send this to the Texas Supreme Court? And is that just a stall tactic because now the Texas Supreme Court needs to hear the issue? Or is it because they just think it's a better forum for a particular issue? Usually it's because they think they have some advantage in that court, but sometimes it really is an undecided issue of Texas law, statutory law. And the Fifth Circuit is just going to have to do an eerie guess based on some, like, dicta in intermediate court of appeals decisions. And it really is better for the Texas Supreme Court to opine and maybe my client that's bad for them. And so I need to stop that and take with the eerie guess in the Fifth Circuit. So there's a lot of that. So those are some examples of motion practice. Great. Well, I'd love to talk to you a little bit about what your process for writing briefs is. Well, it depends on whether I've been the lawyer at trial, obviously. So if I already know the case quite well, it's a little different than if I've been handed a cold record. If I've been handed a cold record, then I read the entire trial record and take notes again more for the process of writing than read them later. And then I am not an outliner. There are a lot of very excellent lawyers who prepare really good outlines. And then the next step is easy because the outline is difficult, and turning the outline into the brief is easy. I'm not that I just start writing, and then my priority is to get a first draft together, even if it makes no sense and is entirely wrong. And then the work for me happens in editing. So I'll read the record. I'll read the principal cases. Then I'll write something a little bit like how people talk about how Judge Posner used to write things and that you would write an opinion in a couple of hours, but huge parts of it would say, like, make sure this is right. Right. Check the law, find a case. And so I write like that, and then I have to do the hard work of figuring out whether what I'm saying is true or not. And what happens when you if you've tried an argument and then you find the case that says it doesn't work? Is it just back to the drawing board and try again, try again, read some more cases, see if I can come up with something better. So it's a much more haphazard approach than I know some lawyers would say, like, we really tool up this excellent outline, and then that flows into a brief, and that's just not how I do it. That makes sense. Do you typically write a brief with a team in your practice, or are you writing the first draft and the last draft yourself? So it's mostly me, though not entirely. It depends on how big the case is. But I think that's an interesting side note to talk about a little bit, which is that if you work at a large law firm in a way that I don't, at some point you will become too expensive to do the writing. And you cannot go write the entire brief top to bottom, because your client will say, why am I paying $1,200 an hour for you to troll Westlaw? You have associates to do that. Right, exactly. And so your role becomes more of an editing role. I am lucky, in a sense, that my rate is much lower than a big law firm's rate in New York. And so most of the time, I can write every word of my briefs. Now, some briefs are more complex, and so I want one of my colleagues to help me, and I needed it. I always need an extra set of eyes, obviously, but more of my cases are cases where I write every word than otherwise. And so that's a big pleasure for me. I do not want to become a management type appellate lawyer where I'm editing the work of excellent associates. Right. That's a different practice. It's great. I mean, don't get me wrong. That's a great way to do it. It's not what I enjoy as much. Right. And when you get that second set of eyes, especially from someone who doesn't know the case as well as you do. What's the most valuable kind of comments they can provide? So often it's like the thing you're saying doesn't make any sense. Just practically, it's like the high level conceptual, just sort of gut reaction to it is the most important. Yeah, no court is going to say what you want because it doesn't mesh with how trials work or this practice here. Often, for example, I am writing in a specialty practice area where I'm not expert, and I view my role there as translating the experts knowledge into language a Generalist Court of Appeals judge can understand. And so there it's very helpful for the specialist to tell me, hey, this isn't how this works. Now, sometimes they say that and they're wrong, not because that's not how it works, but because the entire industry has misunderstood how language works for a long time. And then I have to tell them, like, no, we're making this argument because that's what it says, and too bad, but most of the time when the specialist tells me, no, that's not how it works, it in fact, isn't how it works. And so I have to sit back and think about the argument I'm making, right. Kind of walk in the line between the way it's done and the way it ought to be done or the way the law says it should be done, something like that. And that happens a lot, for example, in insurance coverage litigation, where the insurance bar has all these informal ways of how it works that do not match up with the policy language. So I want to just make sure we get to talk briefly about oral argument. I know you had your first Supreme Court case in 2019, Mr. Melkonian, Mr. Chief justice, and may it please the Court, but you've had obviously lots of oral arguments. What's your preparation process for that? So the preparation process I sort of shamelessly stole from Chief Justice Roberts. As I understand it, it's a pretty good person to steal from. I mean, he was, for anyone who doesn't know, a preeminent appellate oral advocate before he became Chief Justice. And the way I understand it is he would read the briefs and harvest questions to ask himself and write them down on index cards. And then as he prepared, he would ask himself those questions, shuffled up so that he could answer any question in any order, and then pivot back to his main theme and argument. So that's the way I do it. I read everything. I create as many questions as I can, and then I give practice oral arguments in front of a camera again and again with my huge stack of questions, and I practice fighting off the question and getting back to what I want to talk about. And I found that pretty effective. Everyone has different ways of doing it, but that's what I found to work for me. Well, I actually, in preparation for today, did listen to your Supreme Court argument, and I was really impressed at how you got a lot of different questions. You got case questions, you got policy questions, you got softballs. Were there any of those questions that weren't on the cards, so to speak? Yeah, that's a great question, because I went and did that analysis after the argument. I don't remember how many questions I was asked, but I counted them up, and one was missing from my index cards. Wow, that says a lot about the preparation that you did. I want to talk to you about your role on social media, if you don't mind me asking. Sort of tell me about your approach to Twitter. I know you've talked about this in a few other places, but I'm curious for those who haven't heard the story. Well, so, I mean, I'll tell the story of how I got onto Twitter, which may be part of it, which is in 2013, when I moved here to Texas, I thought it was important to meet other appellate lawyers, because my firm actually is an important point. We're 25 people. 18 of us do only appeal. So it's an unusual place. But I wanted to know appellate lawyers around Texas and around the country, and so I thought, okay, well, Twitter seems like the place to do that. And I went on there and I searched for appellate, and I found some people in DC. Mostly as you would expect, and so I started following them and talking to them. And then there was a big lunch happening one day in DC with a Texas appellate lawyer, Jason Steed, who was visiting. He was being taken out for Texas barbecue at a restaurant in DC. Unfortunate, as a DC resident, I know what that barbecue tastes like. And so I was jealous of this because I wish I was hanging out with those people. And so I wrote something like, we provincials from afar are feeling left out. And then I put in the hashtag appellate Twitter. Not thinking anything of it. I hadn't planned it or anything, and for whatever reason, the hashtag worked. And so people have used that since then to sort of organize discussions about appellate practice. And it's been a wonderful experience for me, being able to sort of be in the middle of it. And you clearly give a lot to that community, that social media community, in the sense that you're very open about your practice and your path and the hard parts of your path and the easy parts, insofar as there are any easy parts for a lawyer. What do you feel like you've gained from that sort of community? Well, I mean, there's both a brass tax answer and, like, a softer answer. The first is I get referrals, so it helps my practice from a bottom line standpoint. Sure. And that's one of my lectures to young lawyers or new lawyers is that this is also a business, at least on the private end. Obviously, a lot of lawyers want to do public service, and that's wonderful. But on the private practice end, you have to sell your services to people. That's how this all works. And so that's an important part of becoming a good lawyer. And this has helped me with that. But now the real answer to the question is I get a lot of camaraderie and friendship from the community. I have friends now in every big city I go to, and often not big cities. I can ask for appellate advice all over the country, and people are incredibly generous with that. I mean, to focus in on the Supreme Court I am not a Supreme Court lawyer, and I never will be. That's just not the level I play at. But when I got my Supreme Court argument, the amount of help I got from appellate Twitter people who are Supreme Court lawyers, including my opponents, not substantive help. But this, by the way, is just how it works when you get ready for argument. Right. Don't argue with me about this time period. This is just how it is, because I wouldn't know what kind of extensions you give or don't give in Supreme Court practice. That's beyond me. And so just that kind of help from all over, especially in terms of moots and that kind of stuff, was unbelievably helpful. Like, I would never have been able to do it had it not been for that kind of right. And you also use Twitter like I try to, to both be a professional outlet, but also talking about your sports interests and cooking. Is that part of the social aspect to it? It's a monastic life, but you also get a little bit of social value from it. Yeah, absolutely. I think that in order to be successful at Twitter and other social media, to the extent I am, you have to have some personality. And for some people, their personality is fighting with everyone. And I try to avoid that. I think that's wrong, and I think it makes for an unpleasant experience online. But I think you can have enough of a personality where it's not just like law, law all the time. You can let out parts of what you are on Twitter. And I try to do that. But you also have to realize, like, you should not let out all of what you are on Twitter, because that path leads to people questioning your judgment and wisdom. And that is not something you want people to question when you're trying to build a practice. So I think there's like a balancing act there. Sure. All right. Well, I'm going to end most of these interviews just by asking what the best advice you would give to someone who wants to be you 10, 15, 20 years down the line? If you want to do this, practice assuming you are not one of the unicorn superstars who goes and clerks for the Supreme Court and whatnot. You have to pursue this with complete concentration. You can't just have in your head, you know, appellate seems fun, I should go do that. It's not going to work because this is a niche practice that is highly desirable. It really is as great as everyone says, and there's a lot of really smart people who want to do it. And so to get here, you have to just say, that's what I'm going to do. And it doesn't matter what career advancement or money or whatever it costs me, I'm just going to do it and I'm going to make sacrifices to make that happen. And everyone has different levels of sacrifices they can do. Obviously, I'm not saying you need to sell all your clothes and to do appeals, but let's say you say to a partner, I really love appeals, but also I don't mind trial. Guess what? You're not going to be an appellate lawyer. And when you say, I have to do appeals, the partner is going to say, yeah, we don't have enough, so you have to do trial. And your answer has to be, no, I have to do appeals, otherwise it's not going to happen. Right? And so that's my advice, is if you want this, you've got to pursue it with complete abandonment and maybe that'll work.

Jonah Perlin [00:50:01]:

Again, that was Rafi Melkonian, who I want to thank for agreeing to be one of my first two guests on how I lawyer. I cannot wait to share his advice on trial preparation, brief writing and oral argument with my own legal practice students this semester. More than that, though, Rafi's professional journey is such a powerful reminder that law is a big profession and it's okay to try things and to pivot until you find your place. And yet at the same time, when you decide what you want to do, you need to pursue it with dedication, patience and focus. I also want to thank you for listening and I would so appreciate hearing your feedback. What did you like? What did you dislike? What do you want to learn more or less about? Who do you want me to interview? I hope you'll reach out. You can contact me by email at lawyer@gmail.com or you can find me on Twitter at jonah perlin. If you enjoyed the show and you haven't subscribed yet, please subscribe wherever you get your podcasts or@howeylawyer.com where you'll get a notification each time a new episode is up, along with a brief summary of the guest and the topics that we cover. Thanks again to Rafi. Happy New Year and I hope you have a great week.