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New Appellate Academy President Talks Post-COVID Practice


Dan Polsenberg, the new president of the invitation-only American Academy of Appellate Lawyers, spoke with Law360 Pulse about his plans as president, the impact COVID-19 has had on appellate lawyers, and the role appellate lawyers have to play in today's legal community.

Polsenberg, a Nevada-based partner at Lewis Roca Rothgerber Christie LLP, was invited to join the Academy 19 years ago. He said that he has been active with the organization from the beginning, attending almost every biannual meeting and eventually running for its board.

His one-year term as president started in January. This interview has been edited for length and clarity.

Q: What are some plans you have for your year as president?

One of our best programs right now is our diversity committee. This committee isn't just concerned with diversity within the academy, it's also looking to help law students and diversify the appellate practice of law itself. We're involved with the appellate project in Washington, D.C., and we're looking now for mentors among the academy members to bring law students along and get them involved in appellate practice so that we can change the face of the profession, trying to get more and different people involved in appellate practice. I think the legal profession benefits from that. I think the law benefits from that.

We also want to re-energize our amicus committee that would file amicus briefs not just in the U.S. Supreme Court but in all appellate courts to develop the law more fully and more precisely. And our rules committee is going to reach out to help with rule reforms. The federal committee's starting to change some of the rules, and I think we have a great body of people who can benefit the courts.

We have two meetings a year, and we're about to meet in Pasadena at the end of this month. Every five years, we meet in Washington, D.C., but it's been seven years since we've gone. But we're getting out into the public. Our members are coming out of the cave. We're getting together again.

Q: What are some things going on in the world of appellate practice or for the appellate courts right now?

A lot of it has been practicing remotely. We had an in-person meeting for the first time in a year and half, and we were all just talking about how much our lives have changed as a result of practicing and living remotely. Before that we had to cancel three meetings, and we actually had remote CLE seminars. So we've been trying to evolve into what the pandemic has given us.

I do think it's made the courts more accessible. Even though everything has been locked down, we've been able to get together both as an organization and with courts in ways that we weren't able to do before that because of the expense of having to travel. I think we're seeing changes in appellate practice because of that.

But I am looking forward to being back in person — meeting with the members of the academy in person and doing arguments in person.

Q: The COVID pandemic has had a lot of impacts on courts and limited the ability to hold trials. Has that had an impact for appellate lawyers?

I was expecting there to be fewer appeals because there were fewer trials — and yet cases still found a way to get up on appeal. The numbers of cases are still there and the importance of cases to clients are still there. So, while I expected there to be a downturn, there really hasn't been for appellate practitioners.

Q: Appellate practice is one where there is a particular emphasis on oral arguments and making your case. How has the switch to a remote format affected appellate lawyers?

You know, I always thought in person arguments are more important. There's just a feeling, an electricity, when you're in the room with the judges, and you don't have that when you're doing it remotely. I think there's some communication that's lost. I tend to look to judges' facial reactions to know if I'm getting through, and that's really hard when you're down to a little screen.

So I think it's been an ordeal to have to do oral arguments remotely, and I'm looking forward to getting back.

When you're in an argument, you need to develop a sixth sense about how well an argument is going, and it just doesn't work as well remotely. And it's probably the same for jury trials. You have to keep an eye on the jury.

I always say that it's an art form to argue to the same seven judges over and over again. They get a feel for you as a person. They tend to know what you're like. That's hard when you wind up being in a cookie-cutter formula, doing it remotely.

Q: For the academy, what are some things that will change as we hopefully all need to rely less on being remote?

I'm hoping that we can use the technology that we've been relying on to extend our reach. I was talking before about the diversity committee; I think we'll be able to have people mentor young lawyers remotely, where we couldn't do that before.

You know, you have to have 15 years of practice before you can be invited to the academy, so we are definitely dealing with Boomers, who have had some trouble adapting to the technology. But now that we've been forced to do that, I think our reach will be able to grow, and we'll be able to go into both legal communities and literal communities that we've never been able to touch before. There's definite outreach that the academy wants to do. We want more members, more diversity, and to have a real impact.

What role do you see for appellate lawyers right now in the legal community or in society more broadly at this moment? Are there particular skills or perspectives that appellate lawyers have that might be relevant right now?

Absolutely. So, I grew up in politics in Philadelphia, and I originally planned to run for elected office. And then when I went to law school I saw how you could shape the law more effectively representing a client at a time and arguing to judges and building a body of law than you ever could being part of the legislative process. I think every appellate lawyer I know understands that, and realizes the beauty that good law can be and the role the individual lawyer can play in bringing that about.

You get 300 of them together and that's a powerful force.


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