Academic journal article The Review of Litigation

Defending Texas: The Office of the Solicitor General

Academic journal article The Review of Litigation

Defending Texas: The Office of the Solicitor General

Article excerpt

It is not entirely a coincidence that The Review of Litigation convened a two-day symposium on "The Rise of Appellate Litigators and State Solicitors General" during the very same month that the Texas Attorney General's office celebrated the tenth anniversary of the founding of the Solicitor General's office. Our office has long enjoyed a strong relationship with the Law School - and is grateful to the Law School and to The Review for the opportunity to commemorate this milestone. But the symposium was well-timed for other reasons as well.

In recent years, there has been a growing sense in the legal community that appellate advocacy involves unique skills and talents, warranting the existence of a specialized appellate bar. Not long before his appointment as Chief Justice of the United States in 2005, John G. Roberts, Jr. noted "the rise of Supreme Court and appellate practice departments in major law firms," and "a corresponding development on the state and local government side," as "largely a phenomenon of the past twenty-five years."1 Similarly, the National Law Journal recently noted the increasing interest among state attorneys general nationwide in establishing the position of "state solicitor general, an office whose remarkable growth in the states in the past ten years represents one of the most significant developments in appellate practices in the high court, as well as in other federal and state courts."2

This trend is surely not accidental. It may reflect the fact that many clients are increasingly demanding this kind of specialization. When it comes to the most important and sensitive litigation matters, many private parties and government officials alike believe that their interests are best served when they are represented by a legal team of diverse skills and talents. That includes not only exceptional trial court litigators who are skilled in waging fact disputes at trial as well as discovery battles outside the courtroom. It also includes attorneys who are trained to handle appeals and experienced in the challenging constitutional and other purely legal disputes that tend to dominate the most difficult appellate matters.

These sentiments seem to be shared by one particularly important audience: the community of appellate judges. Judge Ruggero Aldisert of the U.S. Court of Appeals for the Third Circuit once wrote that "[a]ppellate advocacy is specialized work. It draws upon talents and skills which are far different from those utilized in other facets of practicing law. Being a good trial lawyer does not mean that you are also a qualified appellate advocate."3 Judge Laurence Silberman of the U.S. Court of Appeals for the D. C. Circuit put the point even more bluntly: "the skills needed for effective appellate advocacy are not always found - indeed, perhaps, are rarely found - in good trial lawyers."4 And Justice Antonin Scalia summed up his views with one simple observation: "trial judges are fundamentally different from appellate judges."5

So it is no coincidence that the Solicitor General's office in Texas was created, and then strengthened, by two attorneys general who had both previously served as justices of the Texas Supreme Court: John Cornyn and Greg Abbott. It is because of their commitment to ensuring that the state enjoys the highest quality representation possible - including on appeal - that Texas enjoys the reputation it does today in courts nationwide.

I. "OSG"

In Texas, the Office of the Solicitor General - commonly known within the agency as "OSG" - was established in January 1999 as a division within the Attorney General's office.6

The development of a specialized appellate division within the Texas Attorney General's office paralleled efforts in other states7 - as well as similar changes in the private bar. The State Bar of Texas, for example, did not have an appellate section until 1987; the American Academy of Appellate Lawyers was founded in 1990; and the American Bar Association established its Council of Appellate Lawyers in 2000. …

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