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July 01, 2014

Appellate Practice: The Next 50 Years

By Peter M. Koelling

In many ways, it is easy to predict the future of appellate practice. Because the courts tend to lag about 20 years behind the adoption of technology, looking forward 20 to 25 years should be simple. Looking beyond 2040 may be more difficult as variations in what may happen become wider and wider.

Information and communication technologies have had and will continue to have the biggest impact on appellant practice. In the past three decades, the technology for information management has been developing and expanding rapidly. Courts primarily manage and handle information in many forms, including pleadings, documents, testimony, motions, and briefs. Yet the courts have been one of the slowest institutions to fully adopt and fully integrate the widening capabilities of information management technology. Electronic filing, sophisticated docket management software, videoconferencing, and other technologies are often adopted by the private sector first, then the courts are dragged along and pushed to embrace the new technology.

To be fair, such adoption costs money and the courts are dependent upon the legislature or other entities to provide funding. Over the past decade, court budgets have been so tight it is unrealistic to expect a court to ask for an investment in infrastructure when it is struggling to get sufficient funds merely to operate.1 However, even the funders may eventually understand that these new technologies can make the courts more efficient and will provide the necessary investment.

As we adopt new technology in both the trial and appellate courts, many predictions have focused on what will happen to the record. Of course, both the file and the transcript of proceedings will all be electronic. These terms will continue to mean different things in different jurisdictions.2 I use the generic term “file” to refer to all things in the clerk’s file such as pleadings, motions, briefs, docket entries, and so forth, and the “transcript of proceedings” to be that which the court reporter takes down. Fifty years from now, will the transcript of proceedings merely be a video recording? There will be economic pressure to go in that direction. As many a trial judge knows, the best-paid employee in the courthouse is often the court reporter. Not only are court reporters employees of the court, but in many jurisdictions they receive additional payment for every page of a transcript. Daily copy for a trial in progress will add a premium on top of that. This is a sizable cost for both the court and anyone who wishes to appeal. The cost of the transcript is typically covered by the court for indigent defendants.

Despite the lobbying pressure of court reporters and the resistance to this change to video by judges, this change will eventually come to pass. However, the appellate court will not be dealing with video. By the time all courts have the capability to create a video record of proceedings, the software that allows for immediate transcription of testimony will also exist so that the record will contain both a video recording and a full transcription of the trial.

The record with both the file and the transcript and all pleadings and briefs in the appellate court will be submitted electronically. Briefs must hyperlink to all citations of cases, statutes, and references to the record both video and transcribed. Doing so should eliminate the need for filing record excerpts that contain pertinent parts of the record. Record excerpts are still required to accompany a brief in many jurisdictions. As an appellate lawyer, I appreciate the ability to take the judge directly to the place in the record where my evidence exists rather than hoping that the judge will take the time to find it in the record. But this will be even stronger as I can take the judge to a video of the actual testimony or the ruling by the trial court. I would be able to bring the court’s attention to physical and demonstrative evidence. It will make the record much more accessible. Lawyers who have grown up with this technology will push it on the courts as they become judges. It will be easier to carry all the case materials in a tablet or laptop computer rather than a briefcase.

The other major technological advance has been in communication. The ability to not only talk but see the other person with whom you are talking changes the level of interaction. We already see the use of video technology in many jurisdictions between the jail and the courthouse, allowing the judge to hold bond or bail hearings without the need to transport prisoners from the jail to the courthouse.

With the advance and adoption of this technology, by 2050, oral arguments will no longer need to be in person; the judges and counsel will be able to appear remotely from their offices or from courthouses across the country. It will not appear to be the judicial version of ESPN’s Around the Horn; it will have the look and feel of an actual courtroom.

Last year, Massachusetts Institute of Technology scientists announced that they had developed new technology that allowed for cheaper full-color holographic projection.3 Over the next 30 years this technology will become better and more affordable. It will be able to create the experience of people being able to appear to be sitting in a room together. Each courthouse will have its own holographic studio so that oral argument will have the appearance of taking place in the actual courtroom from both the judges and the advocates’ points of view.

Of course the courts will adopt this technology some 10 years after it has become the standard practice for taking depositions by lawyers in private practice. This evolution will have positive effects; for example, eliminating travel costs of judges making regular trips from Dallas to New Orleans for oral arguments. It will also have negative effects, such as eliminating the circuit judge’s expense-paid trips from Dallas to New Orleans, at least for the judges and some lawyers whose clients would foot the bill.

With the advance in technology in these two areas, the biggest change will be in the U.S. Supreme Court. Do not be alarmed, but there will still not likely be any cameras in the Court. The justices will continue to believe that cameras would put the focus on oral argument and personalities of the justices and not the opinions of the Court. Oral argument will continue to be in person to give the case a better sense of importance rather than a routine appeal. However, the Court will not continue to require briefs to be commercially printed and at some point will allow for the electronic filing of applications, motions, and briefs.4 If a writ of certiorari is granted, the court below will send an electronic record. The Supreme Court will continue to limit the number of cases that it schedules for oral argument in the 75–85 case range and deal with an equal number of cases without argument but will be able to dramatically increase its output of argued cases with the use of electronic records and briefs and easier communications. These tools can bring a vastly spread-out group together at low cost, and this capability will allow a change in the way that cases with conflicts among the circuits are handled.

The Supreme Court does not have enough capacity to handle all cases where there are significant disputes among the circuits. Although a conflict in the circuits on an issue can be the basis for the granting of a writ of certiorari, the Supreme Court made clear that it would not take all cases with a conflict when it added the word “important” to Rule 10 in the mid-1990s to define the types of conflict cases it would take.5

There are many cases with valid inter-circuit conflicts that the court does not hear, leaving that conflict in place. This has been an issue for a substantial period. Federal law should be, but is not, consistent throughout the United States. As Justice White stated in a dissent from a denial of the Court, “In any event, denial underlines the fact that the federal law is being administered in different ways in different parts of the country; citizens in some circuits are subject to liabilities or entitlements that citizens in other circuits are not burdened with or entitled to.”6

How to handle this caseload that is not being heard has been a question for a significant period of time. The judicial branch considered it when a study group of the Federal Judicial Center proposed creating a National Court of Appeals in 1972.7 In the 1980s, Congress was concerned by the lack of uniformity in national laws due to the differing interpretations among the circuits and a bill was introduced to create an Inter-circuit Tribunal of the United States Courts.8 Some have posited that the Court simply needs to hear more cases and is not at its capacity; others have argued that the Supreme Court should be expanded so that it has additional capacity to hear more of these cases.9 The matter was addressed again in 1990 by the Federal Courts Study Committee.10 Growing pressure on the Supreme Court will eventually cause the Supreme Court to create a mechanism that will allow these conflicts to be resolved.

To resolve the dispute among circuits, any decision must have the force of law of a Supreme Court decision. How can the Supreme Court increase its capacity without taking on more cases?

The creation of a new rule of Supreme Court practice will allow the Court to accept the writ of certiorari on the particular issues that the Supreme Court wants to have addressed and to assign the matter to an En Banc of the Circuits for conclusions of law. The En Banc of the Circuits will have a judge from each of the 13 circuits. This will be due to the split of the Ninth Circuit into two courts in 2031, creating the new Twelfth Circuit covering Washington, Oregon, Idaho, Montana, and Alaska. Each chief judge of each circuit may assign a member of its court to sit on any case, or may designate themselves to do so.

The essence of the decision-making model is to have the record, the briefs, the lawyers for the parties, and the judges at the same place where they can come together. Technology allows this paradigm to change. They no longer need to gather in a physical place because this new courthouse can be virtual. Technology can be used to bring the circuits together even while spread throughout the country. The concept of a single place where papers can be filed and accessed by the court and where the parties can come before the tribunal and present their case can be achieved. The clerk of the Supreme Court will collect the briefs electronically and then send them to the circuit court judges assigned to the case. It will also make the record electronically available to all judges assigned to that case. The En Banc of the Circuits will schedule oral argument and hear the oral argument via holographic teleconference or by whatever name that technology will go by.

Counsel would be required to brief the matters for which writ of certiorari is granted in the same way that they would do so for the Supreme Court. Each month a separate circuit will be designated as the presiding court of the En Banc and the Supreme Court justice assigned to that circuit will preside over the oral arguments and conference for cases set in that month. Following oral argument the judges will meet via holographic teleconference to vote on the cases that they have heard at a time when the Supreme Court is not hearing matters or is in conference. By reconfiguring the display screens in the holographic studio for a conference room rather than a courtroom, each judge will appear to be sitting around a table just as they would if all were present. Voting will begin with the court that is presiding and go in numerical order; the D.C. Circuit will be deemed the Thirteenth Circuit. There must be a majority of votes, and only in the case of a tie would the supervising justice vote, which due to the odd number of circuits should be rare. Nor will the justice draft opinions for the En Banc panel. The presiding justice will assign the opinion to a judge in the majority. The draft opinions will be circulated to the judges for comments and changes in much the same way as the judges in the circuits communicate with each other as they draft opinions. The justice may comment and suggest changes.

Once the opinion is drafted and approved by the En Banc, it will be transmitted to the Supreme Court. This is an internal process and the lawyers for the parties will not have access to the opinion until it is issued by the Supreme Court. The Supreme Court may then take one of three steps: it may adopt the opinion and render a judgment or order other action in accordance with that opinion; it may reject the opinion and dismiss the writ of certiorari; or it may reject the opinion and hear the case. If it rejects an opinion where more than two-thirds of the circuits (nine or more) have agreed on the opinion, then the Court may not dismiss the writ unless the Court’s decision to do so is by a two-thirds majority. If the Court disagrees with a position that two-thirds of circuits agree with, the Court has an institutional obligation to weigh in on such an issue and should hear the matter itself.

By adopting the opinion, the opinion will have the same precedential value as a Supreme Court opinion. This would be binding on the circuits and would resolve the conflict. Adopting the opinion of another body is not completely out of the ordinary; it would be similar to the practice within the Texas court system that allows the Texas Supreme Court to refuse to hear a case with the designation of “writ refused.”11 This designation indicates that the Court is essentially adopting the opinion and it has the same authority as one written by the Supreme Court.

This procedure would be an internal practice of the Supreme Court and could be adopted by the Supreme Court itself and, to the extent that it involves the circuits, rules may also be adopted by the Judicial Conference.12 It would not require the creation of an inferior court, which must be established by Congress, but rather a procedure to make a finding of law in the same way that the Court may refer matters for which it has original jurisdiction to make findings of fact.

With this procedure in place, the Supreme Court will then be able to increase its capacity by as much as 50 to 60 percent without having to overload itself. This increase will be made possible by the technology that will allow the judges from all circuits to come together to hear arguments and confer without having to travel. While doing so will add 40 to 50 new cases to each circuit’s docket, this procedure should not overload the circuit courts because it adds only one additional opinion for less than a third of the circuit judges each year, at most. The value in having these conflicts resolved should help to make the law clearer and more standard across the United States.

The other advantage to this procedure would be its flexibility. There is a large backlog of matters where there is a clear conflict among circuits, but they are not considered significant enough issues for the Supreme Court to hear.13 These issues are brought before the Court through petitions for writs of certiorari time and time again. If these issues are resolved and the backlog of issues reduced, the number of matters referred to the En Banc over time may also be reduced. The number of issues may increase for the first few years, as the additional capacity may encourage the consideration of more issues that lawyers previously had no hope of even being considered. Stephen Wasby has pointed out that there is generally a “norm of avoidance” by circuit judges to avoid conflict with other circuits.14

Allowing for greater capacity to resolve conflicts should reinforce that norm and the need for uniformity in the interpretation of federal law. Over time the number of cases referred to the En Banc will be reduced. If such a reduction occurs, the system would not be saddled with a permanent infrastructure and can increase and decrease the number of cases that could be referred simply based on necessity. While many of these ideas are not new, the advance of technology makes them easier to implement and to do so at lower costs.15

In 1990 Justice White commented, “. . . even if we have taken all of the cases that we could be expected to decide . . . there would remain those unreviewed cases that leave in place the many different interpretations and applications of the federal law as administered in the courts of appeals, an issue that merits the attention of Congress and the legal establishment.”16 It could be possible that within 75 years of this request by Justice White, the matter could be addressed. These decisions should not be rushed. The courts are a conservative institution that is slow to change. As Clifford Wallace noted, “The independence and stability of our federal courts makes them among the best, if not the best, of any nation in the world.”17 This is an advantage in a constitutional system of checks and balances. The courts are not as quick to react to the whims and opinions of the populace as the political branches. This being the case, the odds are also great that none of this will happen and we will continue to muddle on as we have before . . . and there will be cameras in the Supreme Court.


1. William (Bill) T. Robinson, Rising to the Historic Challenge: Funding for State Courts, Preserving Justice, 51 Judges’ J., no. 1, Winter 2012, at 9.

2. See generally Appellate Practice Compendium (Dana Livingston, ed. 2012).

3. Brian Dodson, New Technology from MIT May Enable Cheap Color Holographic Video Display,, June 24, 2013.

4. Sup. Ct. R. 33.

5. Sup. Ct. R. 10.

6. Beaulieu v. United States, 497 U.S. 1038, 1039 (1990).

7. Comm’n on Revision of the Fed. Court Appellate Sys., Structure and Internal Procedures: Recommendations for Change, 67 F.R.D. 195, 208 (1975). This is more commonly known as the Hruska Commission Report.

8. Arthur D. Hellman, The Proposed Intercircuit Tribunal: Do We Need It? Will It Work? 11 Hastings Const. L.Q. 375 (1983–84).

9. Tracey E. George & Chris Guthrie, Remaking the United States Supreme Court in the Court of Appeals Image, 58 Duke L.J. 1439, 1455 (2009).

10. Fed. Courts Study Comm., Report of the Federal Courts Study Committee 116–29 (1990).

11. Ted Z. Robertson & James Paulsen, Rethinking the Texas Writ of Error System, 17 Tex. Tech L. Rev. 1, 25 (1986).

12. See 28 U.S.C. §§ 2071, 2072.

13. Arthur D. Hellman, By Precedent Unbound: The Nature and Extent of Unresolved Intercircuit Conflicts, 56 U. Pitt. L. Rev. 693, 795 (1995).

14. Stephen L. Wasby, Intercircuit Conflicts in the Court of Appeals, 63 Mont. L. Rev. 1 (2002).

15. See Hellman, supra note 13, at 695.

16. Beaulieu v. United States, 497 U.S. 1038, 1039 (1990).

17. J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill, 71 Cal. L. Rev. 3 (1983).