Changes in Appellate Judges and Practice During the Last 50 Years

Vol. 53 No. 3

Roger D. Townsend is a partner in the Houston office of Alexander Dubose Jefferson & Townsend LLP. He is a member of the Council of Appellate Lawyers and the immediate past president of the American Academy of Appellate Lawyers.

Fifty years ago, things were very different. We’re talking about 1964. Can you remember? The Warren Commission had not yet issued its controversial report on President Kennedy’s assassination. Vietnam was just starting to enter the public consciousness. The civil rights movement was under way but was just gaining congressional support. LBJ’s Great Society was being conceived. Gunsmoke and Bonanza were two of the most popular television programs. America was still booming economically, but cities were so much smaller than today. Even if they lived in an urban area, most Americans still had close relatives living in rural areas. The interstate highway system was far from complete. Mickey Mantle and Sandy Koufax were the major sports heroes, along with Jim Brown and Bill Russell. Cassius Clay had just defeated Sonny Liston to become, as Muhammad Ali, “The Greatest.” Astronaut John Glenn had recently orbited the earth. China was about to embark on its Cultural Revolution. The Beatles had just swept America. Gasoline cost about 25 cents per gallon. I won’t even mention computers.

In light of the societal and technological changes since 1964, it is not surprising that appellate advocacy and judging are not what they used to be. Fifty years ago, appellate caseloads were smaller and there were fewer complex cases. There were fewer statutes; fewer criminal cases; fewer regulatory proceedings; and fewer lawyers, judges, and court staff. There were very, very few appellate specialists.

Appellate judges not only personally read each brief, but took careful notes about the arguments and thought about their ramifications. When the facts were disputed, the judges could review the record to determine which side was accurate. The judges themselves not only read the key authorities cited by the parties, but they also could independently research the area of the law when it seemed necessary, or at least suggest avenues to their clerks to explore.

A huge percentage of cases received oral argument, and the arguments were long by today’s standards. Counsel were given a lot of time to argue their cases with little interruption—even in the Supreme Court. All judges on the panel took an active role in deciding the case.

Of course, as they always do, things changed. The rate of change, however, accelerated in the 1960s. The driving force is volume; there are many, many more cases today. According to recent statistics, the federal appellate courts handled 59,000 cases with 167 judges. That’s an average of 350 cases per judge—or just about one case per day every day of the year.1 This leaves an average total of less than five hours per case for reading the briefs, researching the law, hearing oral argument, deciding the case, writing an opinion, and studying the petition for rehearing.2

The courts now spend important time in deciding which cases to allocate their resources to. Some are easier than others. There is a natural temptation to delegate as much as possible to the staff just to keep the assembly line moving. Some cases reflect, to some extent, one-judge decision making with the others on the panel largely following along because they often lack time to study each case in equal detail.

In many jurisdictions, oral argument is granted only in complex cases and even then with short time periods.3 In some jurisdictions, oral argument often is almost an oral motion for rehearing because the decision may have been tentatively reached in conference the day before.

From the advocate’s perspective, the cost of handling an appeal also has increased despite, perhaps because of, the ability to use computers. Information overload has made research cumbersome because there are too many authorities to research and the authorities are often conflicting. Records are far too long because few trial lawyers know how to present a case efficiently and too many trial judges are too lenient.

This increase in volume and complexity, together with new technology, has changed the decision-making process, the writing and reviewing of briefs, the use of amicus briefs, the role of law review articles, and oral argument since the founding of the Appellate Judges Conference 50 years ago. This article will touch on those changes and suggest what changes the future might hold.

Decision Making

Appellate courts spend a lot of time with triage: determining which cases require more attention. Many cases are decided without argument on summary calendars. Simple cases are sometimes disposed of en masse via an “Augean Docket”—though each does receive individual attention, albeit relatively brief. For courts of discretionary review, “conveyor belts” may be established so that cases automatically are denied unless a justice pulls it off the belt for more study or discussion. Cases are now often pre-assigned to a particular judge before oral argument to divvy up the workload. Opinions are written quickly for the simple cases, so more time can be allocated to complex cases. Draft opinions are circulated by e-mail, with limited person-to-person interaction. The increase in the number of judges, and the increase in diversity, may also have effects on handling the workload because new judges often face a learning curve and diverse judges may possibly bring different perspectives that sometimes properly delay reaching a consensus.

And the increase in caseloads has led to more law clerks and permanent staff attorneys, who may take on an even greater role than in the past. More judges eligible for senior status are remaining active, and even many senior judges carry larger loads than in the past.

The Internet allows research outside the record, though its propriety remains controversial. Most opinions are not technically published, though available online. Use of unpublished opinions raises issues about consistency and stare decisis. The ease of research also has implications for reliance on authorities from other jurisdictions, and—at the Supreme Court level—even from other nations.

Many of the most interesting cases settle due to alternative dispute resolution and even court-sponsored mediation. While this deprives the courts of some intellectual challenges, it probably is necessary because the complex cases take the most time.

Writing Briefs

Busy courts first adopted page, and now word, limits on briefs. Good advocates welcome this because it forces them to focus the argument. But it also takes time to select the issues, winnow the arguments, and edit the prose to fall within the limits. The use of headings and sound bites as topic sentences in the argument are usually good ideas with busy courts. Techniques for writing for an on-screen reader also are different.

Many appellate lawyers now use computer programs to annotate the record. These should improve accuracy in representing and citing the record. Computerized legal research is, of course, the norm.

Because oral argument is no longer guaranteed, the brief must be complete. Filing electronic briefs with hyperlinks to the record and authorities is in the process of becoming the new normal.

Reviewing Briefs

Many, perhaps most, judges now use computers and tablets to review the briefs and annotate their notes. Judges also can easily review the record and key cases when they have been hyperlinked.

The role of law clerks and staff attorneys with regard to the briefs has changed over time, though it varies from chamber to chamber. Also, there may be more good briefs than in the past because of a specialized appellate bar. Paradoxically, improved briefs may have lessened the need for oral argument. The better the briefs, the less that remains for oral argument except in very complex cases.

Role of Amicus Curiae Briefs

It appears the amicus practice has proliferated into a cottage industry. Certainly there are too many “Me, too” briefs. Leave of court to file those briefs is sometimes, perhaps often, being denied in those instances.

Amicus briefs raise the tension between appellate judicial notice and what’s in the record. The so-called Brandeis Brief is a clear example. The social-science statistics it contained were very helpful to the court, but was it properly considered in terms of the rules of evidence and the appellate record? Even all these years later, there is no consensus.

Use of Law Reviews

Law reviews have proliferated like a plague. We can all identify multiple reasons for this. One, of course, being the “publish-or-perish” syndrome in academia. But has their value to appellate judging declined? In short, do most articles have any relevance to the real world? It’s doubtful. And how does one easily cut the wheat from the chaff, given how many can be found through computerized research?

We’ve also seen lawyers with pending cases writing, speaking, or blogging about them in a way that seems designed to try to “shape” the law before it’s applied in the lawyer’s particular case. So far the ethics rules don’t seem to cover those situations.

Oral Argument

Busy courts have given themselves discretion to decide cases without oral argument. Even when it’s granted, oral argument has very short time limits. This is partly to focus the lawyer (or some of the judges), but it’s also become necessary from the caseload.

Some courts now have argument by video, and the author recently had one by telephone, though only over a substantive appellate motion. In light of budget restrictions, will the future see more of this? Does this affect collegiality and even collective decision making? It’s probably safe to say that it makes working together more difficult than in the past.

Courts have changed how they prepare for oral argument. Cases often are pre-assigned to a particular judge, who usually winds up asking the most questions. This allows counsel to speculate about who will be writing the opinion and can sometimes affect settlement negotiations.

Many courts now webcast oral arguments, or at least make audio available shortly afterward. Aside from saving clients and other interested parties travel expenses, does this improve the public perception of justice?

And given the improvement in briefing, has oral argument really turned into largely a due-process ritual, rather than a necessary component of decision making? Because many judges admit that oral arguments rarely change their minds, it is safe to say that most oral arguments are something of a ritual. The problem is that one cannot always know ahead of time which argument might make a difference.

Predicting the Future

One can imagine that opinions might one day be written electronically, interspersed with copied excerpts from the briefs, so that the opinions can just focus on the precise rationale for the court’s decision. Doing so might speed up opinion writing because many of the procedural and substantive facts could simply be lifted from the briefs.

Another possibility is that oral argument could evolve into a series of e-mail exchanges, allowing counsel to focus on the precise concerns of the court. Thus, oral argument would come to resemble an open-book examination, rather than a contest to see who has the best memory and can think fastest on her or his feet.

It is likely that budget crunches will continue to affect the courts. So more changes are likely, though who can predict what new technological developments there will be?

The only certainty is change. Usually the law changes slowly. It is likely, as the rate of change in the world continues to accelerate, that the legal system for the administration of justice will have to speed up its rate of change, too.

I am deeply indebted to Chief Judge Carl E. Stewart of the U.S. Court of Appeals for the Fifth Circuit, Vice Chief Justice Scott Bales of the Supreme Court of Arizona, and Chief Judge Margret Robb of the Indiana Court of Appeals for the Fifth District for their insights that have influenced my thinking. Nevertheless, the errors and controversial comments in this paper are solely mine.

Endnotes

1. See, e.g., Ruggero J. Aldisert, Then and Now: Danger in the Courts, Fed. Law., Jan. 1997, at 40; Edith Jones, Back to the Future for Federal Appeals Courts: Rationing Federal Justice by Recovering Limited Jurisdiction, 73 Tex. L. Rev. 1485 (1995); Stephen Reinhardt, Too Few Judges, Too Many Cases, 89 A.B.A. J. 52 (Jan. 1993); Thomas E. Baker, Rationing Justice on Appeal (1994); William L. Reynolds & William M. Richman, Studying Deck Chairs on the Titanic, 81 Cornell L. Rev. 1290 (1996); Carl Tobias, The New Certiorari and a National Study of the Appeals Courts, 81 Cornell L. Rev. 1264 (1996).

2. Aldisert, supra note 1, at 41.

3. See David R. Cleveland & Steven Wisotsky, The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119, 120, 142–43 (2012).

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