How Appealing: The Life of Howard Bashman

These are informal notes from a speech given by Howard Bashman at Moritz Law School (Ohio State University) on March 13, 2006.

Early Life in Philadelphia

Mr. Bashman grew up in Philadelphia, Pennsylvania. As a youth he was interested in journalism. But when he was 16 years old his father died suddenly and unexpectedly of a heart attack. Because Mr. Bashman was the oldest of three children, journalism no longer seemed like a wise or realistic career path. He wanted to enter a profession that would be self-sustaining, and decided on law.

Law School and Clerkship

After attending college at Columbia University in New York City, Mr. Bashman went to Emory Law School in Atlanta, Georgia. Afterwards he received a clerkship with the Third Circuit for a judge who was based in a small town located between Philadelphia and Harrisburg. He expected that going to work for an appellate judge would be both fun and educational, because he was always interested in the appellate side of the law. The clerkship was a truly wonderful two years for him, because it confirmed that he wanted to be an appellate lawyer and that being an appellate lawyer was something that he could do well. As the end of his clerkship approached, he looked for a job in the Philadelphia legal market.

Beginning Appellate Work

There were not many law firms with appellate litigation groups in Philadelphia in 1990. Even today in the Philadelphia market, generally the law firms that have appellate practices use them only for cases within the firm. It is very unusual to have a group of appellate lawyers bringing in cases on their own.  So Mr. Bashman went with a firm that had a large amount of litigation, but had nobody specializing in handling appeals. Then he would work on whatever appeals the firm had.

Appellate litigation is the one area of law that law school actually prepares you for. But many lawyers who handle appeals aren’t very good at it. What does it take to be good at appellate work? You need to be a clear writer, someone who can be convincing without being overbearing. You need to persuade in a way that is subtle. Your job is to convince readers by the force of your argument, not by the strength with which you assert it.

Two Major Cases

He couldn’t do appellate work exclusively at the start, but was fortunate to work on a particular case the firm had in the Third Circuit. This case involved a $54 million judgment awarded in a dispute involving two companies. It was both a contracts and torts case. Mr. Bashman wrote the appellate briefs and helped the firm’s trial lawyer prepare for oral argument. On the other side was Akin Gump out of Texas.

The case was argued at length, and a few weeks later a 1 page court order was issued, affirming the judgment. Mr. Bashman’s firm collected a large contingent fee, equal to one year’s income for the partnership, and the partner in the firm who argued the case told everyone that Mr. Bashman wrote the briefs. [The case is Ebeling & Reuss, Ltd. v. Swarovski (unpublished).]

A couple of years later the firm became involved in another big appeal. This was a bankruptcy case that went all the way to the Supreme Court. The decision again went in favor of the firm’s client, and the majority opinion (7-2) by C.J. Rehnquist followed the arguments in Mr. Bashman’s brief. [The case is Celotex Corp. v. Edwards, 514 U.S. 300 (1995), and is available online here.] Soon thereafter, Mr. Bashman became a partner in that firm.

New Firm, and Solo Practice

Three years after becoming a partner, Mr. Bashman and four others from his current firm decided to move to another firm, headquartered in Pittsburgh, to anchor that firm’s litigation practice in Phildelphia. While working there, Mr. Bashman continued writing a monthly column on appellate issues for the Legal Intelligencer. On the basis of that monthly column and his reputation in the Philadelphia region, appellate cases were coming his way. His firm was also sending him some appellate work from other offices. At this law firm, Mr. Bashman was able to focus solely on appellate work. Eventually he gave notice to his firm that he would be going out on his own. In February 2004, he hung out his own shingle. One reason he was able to start his own practice was his blog.

To have an appellate law practice today you only need three things other than clients and talent: 1) a computer that is connected to the Internet; 2) a subscription to a service such as Westlaw, to gain access to the law; and 3) a laser printer.

The Story Behind His Blog

When Mr. Bashman was still in law school, and was coming through the ranks of law review at the Emory Law Journal, he would often read advance sheets. The law review would get the paperback Federal Reporters, and they would just be sitting there on the shelf. Mr. Bashman would look through the Federal Reporter advance sheets to see what was going on in the courts. So before he ever began his blog, he was already doing the same thing in law school: reading about interesting cases that were pending before the appellate courts.

Mr. Bashman began his blog How Appealing as a partner while at the big firm. Initially the blog was focused solely on appellate litigation. He would look at all the rulings of the various Courts of Appeals online to see if there was anything of interest.

His blog began on May 6, 2002. He would post something in the morning, and something again at night. One benefit of being an appellate lawyer is that when you are not in court, most of your work is done in the office. That is, you don’t have to do the more mundane tasks such as going to a warehouse and looking through documents or sitting through lengthy depositions in far-away cities. And when you are in the office, you have lots of time to think about things, and to write them down. Being in the office allowed Mr. Bashman to keep up with what was going on in the courts. He could then post new decisions fairly rapidly.

Mr. Bashman recounted how his blog’s readership grew. One day the Volokh Conspiracy linked to one of his posts (or recommended his blog generally). Since the VC is popular, his traffic increased. Then Tony Mauro of the Legal Times of D.C., who now writes for law.com, did a story about his site. His blog was the second story of a two-part column, and the first story (completely unrelated to his blog) was a significant article about Justice Scalia. Many people read the column for the first story, and then went on to read the second even though they probably had no idea what a “blog” was. Thereafter, both How Appealing and SCOTUSblog were profiled by the AP. This began a stream of steady traffic.

The Benefits of Blogging

Mr. Bashman has received a number of clients through his blog. How Appealing also generated a law.com column. He didn’t go into blogging to make money, but now the blog itself provides him each year with an extra month’s worth of income on top of the money he makes working for clients. This money comes through advertisements on the blog, the fee he receives for allowing it to be hosted at Legal Affairs (and soon at law.com), and the writing projects the blog generates. Because of the clients obtained through the blog, and the column it led to, Mr. Bashman receives a good amount of income as a result of his blog. He still writes How Appealing for enjoyment, but is happy also to receive a financial benefit from it.

As a lawyer focused on appellate litigation, staying current in the law is crucial. In perusing the recently-issued rulings of federal and state appellate courts, Mr. Bashman frequently finds decisions that he ends up citing in the briefs he files on behalf of clients. If he were not out there looking at court websites for his blog, it is possible that he would not find these cases as easily or quickly.  So, keeping current on appellate law is helpful not only to his blog, but also to his career.

How Appealing now has usually between 5,000 and 7,000 reader visits, and between 10,000 and 15,000 page views, each weekday. His blog is a source of great enjoyment to him. He especially appreciates the email traffic from readers, who often want to be the first to let him know about a court ruling or news article.

One category of readers developed that he never expected: nominees for the federal courts of appeals. Mr. Bashman regularly covers news of these nominations. Of course, often the people who are nominated are very talented and well-known. But typically, once these people are nominated they have very little ongoing contact with the White House that nominated them. Basically, the nominee is cut loose and left on his or her own. No one is really telling you as a nominee what’s going on. And those people who have been through the process before often recommend How Appealing to those who are about to go through the confirmation process.

In recent years, the federal judicial confirmation process has become politicized, contentious, and often bruising for the nominees. In one instance, someone nominated for a federal appellate judgeship emailed Mr. Bashman an appreciation letter after deciding to withdraw from consideration. It basically said, “Thanks for letting me know what was going on.”

The blog has also allowed him to have an unique view of Washington, DC. Mr. Bashman was invited to the White House, where he met Alberto Gonzales while he was serving as White House Counsel, before becoming Attorney General. He was invited by one of Gonzales’s deputies who was a fan of the site. Another time one of Justice Kennedy’s clerks invited him to tour the Supreme Court behind the scenes.

As a result of being a sole practitioner, he can now make the same amount of money as before while working many fewer hours, at an office a few minutes away from home. Because his work is profitable and his overhead is low, he has ample time to purse his blog both as a hobby and as an aspect of his career.

One lesson he has learned: Think outside the box. Don’t just think about one career path that “starts here,” goes in a particular direction, and “ends there.” He has learned that there are other ways of being happy than staying on the path that you started out on. He considers himself very lucky to have a popular blog that thousands read each day, while also having a challenging practice as an attorney.

Question: How do you handle such a large amount of email?

Answer: On one hand, email can be very annoying because so much of it is junk, such as spam, or email that has nothing to do with anything. But if he filters his email he fears losing genuine reader emails. So he leaves the filter off. But he is able to figure out quickly who is emailing him about his blog. There are regular emailers, and he always knows he will be interested in what they have to say. He also gets great email from people he’s never heard from before. Email traffic to him is not a huge problem. He is encouraged when people send him emails, because they keep him posted on what’s going on and often bring to his attention very interesting newspaper articles or court rulings that he probably never would have located on his own.

For example, once when a client matter caused him to be in Kansas City, Missouri, the Eleventh Circuit ruled on the constitutionality of recess appointments to the judiciary under Article III. He instantly received nearly a dozen emails through his Blackberry. He was especially grateful to those emailers who actually described how the court ruled. Although he learned of the ruling as he was wrapping up his work and about to head to the airport to fly back to Philadelphia, before leaving Kansas City he went to a Starbucks with Wi-Fi access, made a quick post on his blog, and then gathered his luggage and headed to the airport.

As he said at the beginning, he always wanted to be a journalist. The mainstream press is not typically on the cutting edge of law reporting. At his blog, he can speak in ways that are more sensible and accurate than many news reporters. And because he has a blog, he can sometimes post news of appellate court rulings faster than the mainstream media.

Question: What advice do you have about legal blogging? Where is it going in the future?

Answer: It doesn’t take much to start up a blog. He recommends that people try it, and see if they have fun with it. Try to develop a readership and then see if it makes you happy. If you don’t enjoy it, you can always discontinue it and nothing was lost. If you stick with it long enough, your readership may grow and even change.

Don’t have unrealistic expectations. If one person begins a blog on a specific legal topic and the blog becomes popular and develops a following, the second person who tries to start a blog on exactly the same subject will have a much harder time duplicating the first blog’s success.

But there are so many areas of law that are out there which are not being covered by blogs. If you want to start a legal blog, just look for an area or specialty that is not yet being covered. That’s exactly what he did himself. Early on, he did a Google search for “appellate litigation blog.” The only blog that turned up was Bag and Baggage by Denise Howell (which became the first real site with any traffic to link to him). But Denise’s site appeared in the search results because she does appellate work as an attorney, not because her blog focused particularly on appellate litigation. So law students and lawyers who are thinking about beginning a blog devoted to a particular area of the law might find it easier to focus on an area of law that is currently not being covered. If you are the first to cover a given area of the law, you will have a tremendous advantage.