Do I need an appellate lawyer or a FOIA lawyer?

June 19, 2012 9:42 AM

I (mostly) won my FOIA case, pro se. They're going to appeal the decision. Ruh-roh....

Late last week, the decision in my FOIA case came down. (The FOIA blog gives a link to the opinion here.)

It was a split decision: the Court (SDNY) ordered the defendants to release the documents I really wanted, but I didn't get a second set that I was hoping to get.

I think it was a just decision, though, obviously, there are parts I wish the judge had decided differently. So I'd be inclined to leave the decision be. However, I'm almost certain that the government is going to appeal.

I'm out of my depth in the second circuit, and am afraid of the precedent this will set if the decision's overturned. So I'm going to find a lawyer.

My question: Is it more important for my lawyer to be a good appellate lawyer or a good FOIA/transparency lawyer?

The case was decided after a motion/cross-motion for summary judgment; there were no sticky procedural questions or objections. So, it seems that the appeal, like the initial case itself, hinges entirely on the interpretation of law. Would a crack FOIA lawyer be the best choice, then, or does the appellate experience count more than I'm giving credit for? (Of course, I'd love to find a FOIA lawyer with extensive appellate experience -- recommendations gratefully accepted via memail if anyone knows someone, or even suggestions on the best way to find someone like that.)

Thanks, hivemind!

posted by cgs06 to law & government (9 answers total)

Do you have access to a freedom of information-type group who can take on this case as a matter of principle? Around here, we have the Wisconsin Freedom of Information Council. Even if you're not doing this strictly for journalism purposes, this is what groups like this are there for.
posted by Madamina at 9:53 AM on June 19, 2012

Congratulations on pursuing this so far with partial success! You should definitely be contacting public interest groups interested in NIH issues, as well as groups interested in FOIA. You could start with Public Citizen Litigation Group. These groups will be concerned with exactly what you're concerned with -- setting bad precedent.

Don't worry too much about the FOIA/appellate lawyer distinction. A good FOIA lawyer will be a good appellate lawyer by definition (because FOIA issues tend to be appellate or appellate-like issues.) Anyway, appeals are in some ways much simpler than trial/district court proceedings -- much less paperwork, stamina, evidence, discovery, etc. required on appeal.
posted by yarly at 10:23 AM on June 19, 2012

The first organization that came to my mind was the RCFP. They can probably provide some guidance.
posted by phearlez at 10:52 AM on June 19, 2012

Thanks much for the answers so far...

I tried a few FOIA-type groups when I initiated the case, but didn't get all that much help... but it's definitely worth trying. (Public Citizen's at the top of the list, as the case exactly aligns with their interests. RCFP's a good suggestion, too.)
posted by cgs06 at 11:32 AM on June 19, 2012

That's why I said guidance rather than help; there's more out there than these folks can take on so they're of course going to be selective. You might also try Megan Rhyme from the VA Open Government. We're 4th Circ, not 2nd, but it's not so far that she and her org may not be able to suggest/guide you to someone.

I also forgot about the SPJ. They did a tour kinda thing and their total lessons-learned (or something) is here. There's some interesting ideas in there, including requesting the FOI logs - possibly someone else asked for the same thing you did and you can leverage them now that victory is in sight?

There's also a FOI listserv run for your area and owned by someone at Syracuse U. Def a place you might find knowledgable help.
posted by phearlez at 12:45 PM on June 19, 2012

Is it more important for my lawyer to be a good appellate lawyer or a good FOIA/transparency lawyer?

In my opinion and experience it is more important to have a lawyer who understands the appellate process than one who understands the particular subject material. In my opinion, this same principle holds true in trial law: It is more important to have an attorney who understands trial practice—what works and what doesn't, what's admissible and what isn't—than an attorney who has a deep understanding of the particular legal issues (tort, contract, criminal, etc.).

These are rules that I believe, and like all rules they have exceptions. I would also caution you that I see plenty of room on the other side for another lawyer to come in and present a reasoned and convincing disagreement with my comment. This is just my personal opinion, based on my experience and in answer to your question.

Appellate law is art and craft. (Many things are.) Smart lawyers can disagree on what to address in a brief and how, and how to prepare for oral argument and how important oral argument really is. Yes, it is absolutely crucial, especially at oral argument, for the advocate to have a comprehensive grasp of the underlying facts and basic legal tenets at play. But I think it is easier for a good appellate lawyer to acquire that grasp on a case-by-case basis than it is for a specialty-law attorney to develop good appellate skills fast.

As an analogy, I might suggest that it's a bit like school. Consider who might have an easier time acclimating and succeeding in a high-level graduate program: An experienced professional who has spent his life learning about that field hands-on and firsthand, or a "professional student" who has never worked in that field but has earned four other advanced degrees from various universities. If the goal is to ace the program, I would suggest that the professional student will have an advantage. He knows the forum.

Having said all that, you may be able to find both—either two-in-one like you suggested, or two minds willing to work together. If I were in your shoes, I might look for a smaller firm that has (1) at least one attorney with some background or expertise in the particular field of law, and (2) as a firm, some appellate successes. Good luck.
posted by red clover at 1:10 PM on June 19, 2012

In my opinion and experience it is more important to have a lawyer who understands the appellate process than one who understands the particular subject material.

I agree with you in general if you're trying to hire a paid attorney; not so much if you're looking for a public interest group to represent you for free. In that case, you're only going to attract them based on the underlying issue, obviously. And most public interest groups that litigate in a certain issue area are going to be able to handle appellate work. Also, FOIA is one of those areas where it's really more "appellate-like" at any level, because the issues are going to be mainly legal, as opposed to heavy discovery, motions practice, etc. So even at the trial level, you want somebody really smart who writes good briefs, as opposed to a trial lawyer.
posted by yarly at 1:27 PM on June 19, 2012

I just glanced at the opinion -- wow, it's great! I really encourage you to continue pursuing getting representation on appeal with one of the public interest groups.
posted by yarly at 1:38 PM on June 19, 2012

Thanks, all...

I joined FOI-L, the Syracuse listserv; I've called a few advocacy orgs, and I might have a bite for one that's interested in getting involved.

If not, I have a better sense of whom to try to hire.

Thanks again!
posted by cgs06 at 6:15 PM on June 19, 2012