Let’s Revamp the Appellate Rules Too

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Now, how about the appellate rules? As the preceding articles in this issue explain, big changes intended to streamline litigation in district court have come to the Federal Rules of Civil Procedure. Most important, the new Rule 26 aims to ease the burden of discovery on parties and lawyers, making litigation faster and cheaper. In the same spirit, maybe it’s time to take a closer look at appeals.

Appellate motions, briefs, and oral arguments are overly formal, redundant, and time-consuming, and there are obvious ways tweaking the rules and incorporating basic technologies could greatly simplify all three. The status quo is fine for lawyers and judges, who are well versed in current practice. But inefficient and unnecessary procedures add to the time needed to handle an appeal and so harm litigants by imposing unnecessary cost.

Before getting into specifics, it’s worth stating my underlying (if head-bangingly obvious) premise up front: Legal procedures should be as easy and affordable as possible without compromising the quality of judicial decision-making. The first duty of courts is to the public—not judges or lawyers. Familiar ways of doing things may be comfortable or convenient for the bench and bar, but if they add cost while only marginally or occasionally improving the quality of appellate decisions, the basic interest of litigants in less expensive justice should prevail.

Some of my proposals may save clients only a few hundred or thousand dollars by eliminating an hour or two of billing here and there. Others could save much more. But what client wouldn’t prefer to keep even small sums of money rather than spend them on lawyers? And even small amounts multiplied by thousands of appeals add up to untold millions in legal waste.