1

COMMISSION ON STRUCTURAL ALTERNATIVES

FOR THE FEDERAL COURTS OF APPEALS

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DALLAS, TEXAS

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PUBLIC HEARING

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WEDNESDAY,

MARCH 25, 1998

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This transcript was produced from tapes

provided by the Administrative Office of the United

States Courts.
2

I N D E X

Judge Patrick Higginbotham . . . . . . . . . . . 4

U.S. Court of Appeals, 5th Circuit

Judge Carolyn King . . . . . . . . . . . . . . . .15

U.S. Court of Appeals, 5th Circuit

Judge Robert Parker . . . . . . . . . . . . . . . 39

U.S. Court of Appeals, 5th Circuit

Question and Answer . . . . . . . . . . . . . . . 53

Sharon Freytag, Attorney at Law . . . . . . . . . 80

Dallas, Texas
3

1 VICE CHAIR COOPER: This is a public

2 hearing called by the Commission on Structural

3 Alternatives for the Federal Courts of Apppeals. This

4 Commission was created by Congress and charged with

5 the following functions: 

6 Number 1, study the present divisions of

7 the United States and of the several judicial

8 circuits.

9 Number 2, study the structure and

10 alignment of the Federal Court of Appeals system, with

11 particular reference to the 9th Circuit.

12 Number 3, report to the President and the

13 Congress its recommendations for such changes in the

14 circuit boundaries or structure as may be appropriate

15 for the expeditious and effective disposition of the

16 case load of the Federal Courts of Appeals, consistent

17 always with the fundamental concepts of fairness and

18 due process.

19 This Commission, thus, has a broad mandate

20 to examine the entire federal appellate system and

21 make recommendations to strengthen and improve it. As

22 was stated in the announcement of public hearings,
4

1 the Commission is interested in obtaining views on

2 whether each federal appellate court renders decisions

3 that are reasonably timely, are consistent among the

4 litigants appearing before it, are nationally uniform

5 in their interpretations of federal law, and are

6 reached through a process that affords appeals

7 adequate, deliberative attention of judges. 

8 The Commission has much to do within a

9 relatively short period of time since our final report

10 is due in December. In undertaking this important

11 mission concerning the administration of appellate

12 justice in this country, the Commission welcomes the

13 views of all interested persons and organizations

14 either as witnesses at the hearing or in writing. 

15 We now call our first witness, Judge

16 Patrick Higginbotham, of the United States Court of

17 Appeals for the 5th Circuit. Judge Higginbotham,

18 thank you so much for being with us today.

19 JUDGE HIGGINBOTHAM: Thank you, Chairman

20 Cooper. Judge Rymer, Professor Meador. It's a

21 pleasure to me to be here this morning and visit with

22 you about this important topic. I congratulate each
5

1 one of you on your willingness to serve in this

2 important mission.

3 I'm going to be brief. My message is

4 pretty straightforward. I see no need for structural

5 change in the present set-up. I think that our court,

6 the 5th Circuit, the court with which I am the most

7 familiar, is working well. I think that bottom line is

8 we simply do not need help by way of change nor do we

9 need help by way of additional judges. I think we are

10 working effectively to deal with a changing a docket.

11 I should tell you that for some time I

12 have maintained that the formula for the calculation

13 of the numbers of judges needed to do the judicial

14 workload has not persuaded me that it has much value.

15 Under the formula that exists in the AO's office for

16 some time, our court would have like 28 judges.

17 Frankly, that's absurd. We now have 16. We have for

18 much of the time that I have been on this court in

19 earlier times when we had a much heavier workload,

20 functioned with 12 judges. And I think we've

21 functioned very well. I frankly see very little

22 differences on a per judge basis of 12 versus 16, as
6

1 far as the perception of workload. 

2 I worried about numbers. One of the

3 things that troubles me about what I see happening is

4 the wide disagreement about the interpretation of

5 numbers. And I think that's important to your mission

6 for the reason that the empirical base of the

7 operation the court will shed a light on many

8 problems. Unless you've worked from some kind of a

9 common consensus about what the numbers are, you are

10 only going to magnify what the inevitable differing

11 interpretations of that data base. 

12 We start from the fact that when

13 discussing workloads, when people talk about, for

14 example, the 5th Circuit, the second largest circuit

15 in the country only to the 9th Circuit in terms of

16 total caseload, they look at this large number of

17 7,000 or 8,000, such as it is and they see that number

18 "increasing" and they have the perception that somehow

19 or another courts are being overwhelmed. The truth is

20 that when one looks carefully at those numbers, you

21 find that that increase is attributable to -- I don't

22 want to say exclusively -- but almost exclusively to
7

1 the increasing number of prisoner suits that have been

2 filed. 

3 If you back out the prisoner cases, what

4 you find in our circuit is that general civil appeals

5 have been on steady decline for the past five years or

6 so. What we are seeing is that in the last 18 months

7 an inability to have enough cases to put together full

8 panels. Now, by full panels, I mean our traditional

9 way of handling cases, which takes a three-judge panel

10 to New Orleans to hear 20 cases set for oral argument.

11 And what we increasingly find is we're having three

12 day sittings, because there simply aren't enough cases

13 coming through the pipeline in a timely way for us to

14 have a full sitting. 

15 I've had only, as I recall, one four day

16 sitting this year. My upcoming sittings are short.

17 I got a call the other day for my May sitting, they

18 want to cut it to two days. Now, that's cutting back

19 from four days. Now, this is a court that's

20 assertedly, I've read, besieged. I just don't know

21 how people read those numbers. What's happening is

22 that the large number of prisoner petitions simply
8

1 should not count in any way in the same measure as

2 should other general civil cases. 

3 We have developed procedures which we

4 think are responsive to that burgeoning area of the

5 docket, in particular conference calendar, and we have

6 another little calendar we call an Aegean Panel

7 (phonetic), which takes care of some matters as well.

8 Judge King, my colleague, our future Chief Judge, will

9 discuss those with you, I'm sure in more detail. 

10 But my only general purpose that I want to

11 make with you is that as you move around the country,

12 I would not accept at face value these assertions of

13 numbers. The increasing number of prisoner cases is

14 replicated throughout the United States. The

15 percentages will vary because it has the percentage of

16 the total docket and the general (indiscernible)

17 number will vary somewhat. But I think it's fair to

18 say that all the circuits have experienced a

19 significant upturn in that general category of

20 litigation. 

21 That's important because most of that

22 litigation flows through on a track that reflects the
9

1 reality that those individual cases, while deserving

2 of attention, simply do not command the judicial

3 resources, should not command the same level of

4 judicial resources as others. That is they simply to

5 be soundly and properly decided do not require that

6 much time and energy. They are largely moved through

7 magistrate judges.

8 A second concern that I have, and it does

9 not go to structure, and I don't know that it's within

10 your compass, but it's one that I see as troubling

11 about the developments within the court system itself,

12 and I think it's in part a byproduct of this affection

13 that judges seem to have with the perception of being

14 besieged and beleaguered as large caseloads. 

15 I've seen on the district court and I've

16 seen on the court of appeals. I sat on the district

17 court, in fact in this courtroom, among others, on

18 this floor for nearly seven years some years ago.

19 This is my 23rd year on the bench. In those years we

20 did not use United States magistrates. We had five

21 judges. We had on an individual judge basis, a

22 heavier caseload than they have now. We tried over 30
10

1 percent more cases. The only explanation I have for

2 what's happened in the meantime is that we have the

3 explanation given to us that the cases are somehow

4 more complex. And I said "by what measure" and they

5 said "well, because they are longer." The data does

6 not bear that out. They turn out to be shorter. The

7 explanation is, "well, we have more multiple defendant

8 criminal cases." I looked at that and that's true but

9 only by very, very small margin; .01 percent or

10 something. 

11 Are there more cases? There are obviously

12 some areas which are consuming more judicial time. The

13 changes in sentencing procedures and so forth, it

14 takes longer to take a plea. And I mean no criticism

15 of anyone. I am saying to you, though, that there is

16 an increasing bureaucratization that is fueled in part

17 by this perception. It leads to things that are

18 undesirable; increased delegation, increased

19 ministerial tasks of judges, less hands-on work of

20 judges. 

21 In our court we've worked hard to see that

22 the judges, themselves, are engaged in hands-on work
11

1 with prisoner cases, for example, in our conference

2 calendar. And I think Judge King will make that point

3 forcefully to you. I have no answer to this tendency

4 to grow as bureaucracy but I see that as a practical

5 and very powerful, insidious force upon the

6 independence of the judiciary.

7 We're creating magistrate judges to assist

8 as auxiliaries, the theory of them and they, just as

9 we've predicted, they've become an entire level of

10 courts. Some say that's good and they point to the

11 amount of workload that's being done. I caution

12 people in the interpretation of those numbers because

13 of the highways effect. If you put people there and

14 create another level of staff work, you will also

15 generate work that would not have been generated. 

16 I was taken, as the work I've done in the

17 past year, as an editor of more subtle practice Rule

18 26 area, which took me into FRD, an area that I had

19 not visited with some regularity recently. And I must

20 tell you, if you time the time to look at what's

21 happening to FRD, what you will see are volume after

22 volume of published, written opinions by magistrate
12

1 judges about routine discovery matters. I frankly

2 found it disturbing that we're generating a whole body

3 of just case after case of published opinion and most

4 of those are matters that would have been disposed of

5 by district judge directly orally and maybe without

6 even papers and now we have a full panoply of those

7 level of courts generating opinion, which leads me to

8 my final conclusion that the model by which the courts

9 of appeal operate with this long-winded published

10 opinion may not be the complete and the best model for

11 a good operating court system. We need courts, to me,

12 to be devoting the time and energy of the judges to

13 sound decision-making and writing those few opinions

14 that really need to be written and offering briefer

15 explanations to parties in those cases in which the

16 law will not be advanced by publication of opinions.

17 I think we can learn a great deal from British

18 appellate model in that regard. 

19 So I think in sum, the increasing

20 bureaucratization of the courts is troubling. I think

21 the increasing remoteness of judges from the actual

22 hands-on work that is a product of the pressure of
13

1 bureaucratization is troubling, and at the bottom of

2 that, I think like this perception of workload. 

3 I conclude with a story that I heard first

4 in this courtroom some years ago at the swearing in of

5 a United States District Court judge and I've come to

6 realize that it has more truth than humor. And one of

7 our judges explained to this lawyer about to become an

8 Article III judge, he says, "You know, a strange thing

9 happened at the swearing in." He said, "It's a

10 phenomenal thing." He said, "A could descends on the

11 courtroom as the oath is administered and when the

12 cloud dissipates, three things happen. The newly

13 anointed formerly lawyer, now Article III federal

14 judge will tell three lies within 24 hours. The first

15 is that he or she is overworked. The second is that

16 they are underpaid and the third is that they were a

17 great trial lawyer when they were appointed to the

18 bench."

19 I've come to recognize that there is a

20 certain element of truth to that and that's not to

21 cast any doubt on the sincerity of the judges. It is

22 that when you're sitting on the front lines in a rifle
14

1 platoon, it takes a little discipline to pause and

2 opine on the causes of war. And that's a little bit

3 of what happens when you ask sitting judges to come in

4 and talk to you about these realities. 

5 I thank each one of you for your patience

6 and appreciate the opportunity to be before you. I'll

7 be pleased to answer any questions you may have.

8 VICE CHAIR COOPER: Thank you, Judge. Do

9 you have any questions? 

10 I think -- what would be your preference?

11 Would you rather us hear from Judge King and then ask

12 them both questions? 

13 JUDGE HIGGINBOTHAM: I think it would be

14 useful to hear from Judge King and then whatever

15 questions you may have about the docket or whatever --

16 VICE CHAIR COOPER: All right. That would

17 be fine. Then we could address them to either one of

18 you, if that would be appropriate. 

19 JUDGE HIGGINBOTHAM: That would be

20 appropriate and Judge King would probably give you

21 better answers than I would. 

22 VICE CHAIR COOPER: All right. The next
15

1 witness is Honorable Judge Carolyn King of the U.S.

2 Court of Appeals for the 5th Circuit. Judge King, so

3 nice to have you with us. 

4 JUDGE KING: Thank you. I'm pleased to

5 have an opportunity to be here. I don't speak for my

6 court. That's always a hazardous undertaking. I just

7 speak for myself.

8 I realize that you're looking at

9 structural alternatives and I don't propose to speak

10 to alternatives. Much has been written on that

11 subject in the last 15 years. What I think I would

12 like to do is to talk about how one very large court

13 has addressed what I call volume-driven problems, with

14 only a modest increase in the last 20 years in the

15 number of judges, and the change that I think has

16 resulted in the function of an appellate judge in

17 many, although not all, of the cases that come before

18 us. I think these comments are germane to your

19 inquiry because they point up, they make it possible

20 to evaluate the necessity for structural change. 

21 We have been the second largest circuit

22 for two decades, in terms of the number of appeals
16

1 filed, terminated, the number of judges. Appeals

2 increased from 6,382 in 1992 to 7,573 in 1997. But

3 those numbers, gross filings numbers as Judge

4 Higginbotham as suggested, really don't tell the full

5 story because the lion's share of the increase during

6 that five year period has been in direct criminal

7 appeals and in prisoner litigation. And by that, I

8 mean, federal and state habeas cases and prisoner

9 civil rights litigation. 

10 Of the new appeals, this is a startling

11 number, of the new appeals filed in the 5th Circuit

12 during 1997, 64 percent consisted of direct criminal

13 appeals and prisoner litigation. 51 percent of the

14 appeals filed in our court during that year were pro

15 se. And as Judge Higginbotham pointed out, our civil

16 litigation over the last five years has actually

17 declined somewhat. 

18 An active judge participated last year in

19 591 appeals terminated on the merits and 148

20 procedural terminations and prepared a total of 189

21 written opinions. Now, that sounds heavy but during

22 the year 1994, the numbers were substantially higher,
17

1 739 cases terminated on the merits and 247 written

2 decisions. And only a portion of this reduction is

3 attributable to the filling of vacancies which has

4 occurred in the meantime. And there were a

5 substantial number of vacancies that have been filled

6 and so now we are operating only one judge short

7 instead of four. And that's significant. 

8 But really, the most significant portion

9 of the reduction in our workload per judge occurred

10 during the last year and is attributable to the AEDPA

11 and the Prison Litigation Reform Act. So the upshot

12 of all this is that for the first time in two decades

13 there has been a meaningful reversal in the upward

14 trend in the judicial workload in this circuit. 

15 Now, whether this is going to continue or

16 whether it's going to be erased with the stroke of a

17 pen by subsequent legislation, you just can't predict.

18 But it does point up the skepticism with which you

19 should view gross filing statistics as an indicator of

20 judicial workload, as well as the hazards of relying

21 on straight line projections in projecting future

22 workload. 
18

1 And the good news of the Lord is that we

2 are current. We ended last year and we have ended the

3 last three years with no backlog of oral argument

4 cases, nothing ready for argument that is not already

5 been argued. Furthermore, our cases pending under

6 submission have actually declined over the last five

7 years and are at a very low level. So the judges are

8 getting the work out.

9 Now, beginning in 1960s when Chief Judge

10 Brown was at the helm, literally and figuratively, we

11 developed a whole series of mechanisms to handle what

12 has been a steadily increasing caseload without a

13 concomitant increase in the number of judges. We have

14 been, in the 5th Circuit, I really believe kind of a

15 laboratory for the nation in pioneering new

16 techniques. 

17 Now, there is I think one more statistic

18 that you need to sort of complete this picture. Our

19 court's own statistics reflect that we had 3,114 fully

20 briefed cases screened for decision as to oral

21 argument during the 12 months ended June 30, 1997.

22 Now, of that number only 30 percent were sent to the
19

1 oral argument calendar. The balance of the cases

2 screened were disposed of by summary calendar panels,

3 which is 54 percent and the conference panel

4 calendars, which is almost 15 percent of the cases.

5 We devised the conference calendar in 1992

6 in response to the escalating caseload and the failure

7 of the Legislative and Judicial Branches -- I mean of

8 the Executive Branch to fill vacancies. We had four

9 years with vacant judgeship statistics ranging from 35

10 to 42 per year in months. And the net effect of this

11 is what seemed like an avalanche of fully briefed

12 cases being mailed to each judge's chambers for

13 screening and for decision for those cases that were

14 going to be argued. And we also had a huge increase

15 in the number of motions. 

16 So the result was that each judge's

17 workday was devoted to dealing with an increasing

18 number of what we perceived to be fairly routine

19 matters that left very little time in the average

20 workday for the preparation for an oral argument

21 calendar or for research and writing on the cases that

22 were hard. So our theory of the conference calendar
20

1 was we're going to leave the easiest cases in New

2 Orleans and thereby hopefully increase the time we had

3 to spend in our chambers on the harder cases. 

4 Each judge serves on one of these panels

5 a year. And the panels, we have -- a conference

6 calendar panel meets every other month for three or

7 four days in New Orleans to dispose of approximately

8 30 cases a day. The judges who are assigned to that

9 calendar don't work on anything else in those three

10 days. The principal criteria for a conference

11 calendar case is a limited record, are a limited

12 record and a limited issue that has been frequently

13 decided and is well settled. If you have to spend

14 much time in the record, or you have to do more than

15 minimal research or you have to think very much about

16 a case, it shouldn't be on the conference calendar.

17 The initial decision as to what goes on

18 that calendar is made by the staff attorney's office,

19 but each judge looks at that decision and decides

20 whether or not that's going to stick or it's not.

21 Each day of the conference calendar, each judge that's

22 been assigned to that calendar has 30 cases to review,
21

1 ten cases in depth, in the sense that the judge is

2 responsible for reviewing the briefs, the record, a

3 memorandum prepared by the staff attorney's office,

4 and a proposed opinion. And the judge is also

5 responsible for reviewing the 20 other cases that the

6 other two judges had the primary responsibility for.

7 We convene at 3:00 in the afternoon and we decide 30

8 cases by the end of the day. Each case is discussed

9 orally and all the judges have something to say. At

10 the end of the day, 30 cases are done. I mean, you

11 are exhausted, you are a vegetable, but it is done and

12 you go on for two more days.

13 But in my experience, these cases get much

14 more hands-on attention from a judge, from all three

15 judges, than they would get if they were simply

16 assigned to the summary calendar panel and channeled

17 through our offices by mail. 

18 We don't have any limitation on the kinds

19 of cases that come to that calendar. We do decide a

20 lot of prisoner cases on it, but in our court we

21 decide a lot of prisoner cases on any calendar, and so

22 I don't think we have necessarily any more on this
22

1 one. 

2 Now, our summary calendar technique is

3 much more, I think, commonly understood and I don't

4 want to spend a lot of time on it. At this point in

5 our careers, 54 percent of our fully briefed cases are

6 decided on that calendar, the summary calendar. Those

7 cases come in to a judge's office by mail, fully

8 briefed and with the record and the exhibits, in many

9 cases, accompanied by a memorandum from the staff

10 attorney's office, and a proposed opinion. If all

11 three members of the screening panel subscribe to the

12 opinion, it gets sent to the clerk's office and the

13 case is completed. We do not -- we rarely reverse the

14 case on the conference calendar, to put it mildly.

15 And we do not frequently reverse a case on the summary

16 calendar either.

17 Personally, I find the summary calendar to

18 be very troubling. The sheer volume of cases that we

19 have to deal with each day makes it all too tempting

20 to rely on the initiating judge's efforts. This means

21 as a practical matter that these cases can easily

22 become one judge cases, with the other members of the
23

1 screening panel doing little more than relying on the

2 staff attorney's memo or the writing judge's proposed

3 opinion. And the problem gets worse if the initiating

4 judge is under pressure and relies too heavily on the

5 staff attorney's memo. 

6 So you know, one of the golden rules in

7 this business is that judges rarely talk about the way

8 they decide cases. That's a piece of information that

9 most judges don't put out. So it's hard to evaluate

10 how serious a problem these short cuts are, but my

11 guess would be that that varies a lot from one judge

12 to another and also with the level of hard cases that

13 a judge has under submission.

14 The other thing I want to mention, because

15 you have here today from my court three very

16 experienced judges talking to you about the way our

17 court works, as they perceive it. But you have to

18 recognize that we from time to time get new judges.

19 And these judges, if they do not come from the federal

20 district bench, frequently have to spend a great deal

21 more time preparing for argument and just simply

22 preparing to decide a case than the experienced
24

1 judges. So when Judge Higginbotham and Judge King and

2 Judge Parker say to you that this workload is heavy

3 but manageable, that may not be the candid assessment

4 of a less experienced judge. And the risk of course

5 is that a less experienced judge, with this tremendous

6 volume of getting -- the time required to get up to

7 speed is going to start taking shortcuts and that

8 those shortcuts then become a part of that judge's MO

9 from then on with real risk to the system. 

10 So it seems to me that any judicial, any

11 decision-making mechanism that you evaluate, you've

12 got to look at from the standpoint of how well it is

13 applied in a court that's composed of experienced

14 judges and some inexperienced judges. The

15 inexperienced judges bring something to the system.

16 They bring a fresh look and that's all to be

17 encouraged, but you have to look at how they can

18 handle the workload. 

19 Now, the one thing I want to point out, I

20 mean, the thing that should be loud and clear from

21 this, is that we have been able to do what we do on

22 our court only by adding staff. Today our court,
25

1 which consists of 16 active judges and five senior

2 judges, employees 42 staff attorneys in New Orleans

3 and 64 elbow clerks, which results in a total of 106

4 lawyers working for the court. Ten years ago we had

5 16 staff attorneys and only three law clerks apiece.

6 Many judges now have four.

7 Now, fortunately, we've been in a buyers

8 market, as far as hiring staff attorneys is concerned

9 in the last ten years, though that may be getting

10 ready to change. And we have been hiring very able

11 people. And I think there is some comfort to be taken

12 from the fact that these staff attorneys develop

13 expertise in dealing with certain areas of the law

14 like direct criminal appeals, federal and state habeas

15 petitions, pro se litigation, civil rights cases, and

16 there are some federal question cases and some agency

17 litigation, such as Social Security cases and

18 Immigration cases. So they do develop expertise in

19 this area, but it is clear to me that we would not be

20 able to handle the volume of cases that we handle

21 today without 106 lawyers working for us.

22 Now, all of this means that there has
26

1 been, in my view, a change in the way appellate judges

2 in my court function from what was the case a

3 generation ago. The speech that -- I must say -- take

4 great comfort from is Justice Renquist's (phonetic) to

5 the American Bar Association in 1976, which every time

6 I re-read it I find something more in it that he saw

7 down the road that has happened. He was talking about

8 direct criminal appeals and the way they were being

9 handled in 1976 but what he was talking about is true

10 today of a much broader group of cases. He said,

11 "Appellate courts now process criminal appeals rather

12 than decide them. The sheer numbers have thought to

13 require the addition of staff clerks in almost all

14 appellate courts but there is also a subtle change in

15 the function of the appellate judge." He's a tennis

16 buff so you can take this right from the horse's

17 mouth, so to speak. "A change from the role of the

18 linesman at a tennis match to that of an inspector on

19 an automobile assembly line. The tennis linesman

20 doesn't start out with any presumption that the

21 service will be in or out. He simply judges each

22 serve on the merits, but the assembly line inspector
27

1 assumes that a part is good unless he sees some defect

2 in it." 

3 And then he goes on to say, "The person

4 who actually decides an appeal is an appellate judge.

5 The person who supervises the processing of such

6 appeals to ultimate decision, though he be called an

7 appellate judge, is really more of an administrator.

8 Instead of personally delving into and casting a vote

9 on, say ten cases, he takes part in supervising law

10 clerks who delve into 20 or 30 cases. He approves

11 what the law clerks have done in half or two-thirds of

12 that number, and personally delves into and decides

13 the remainder." 

14 And here is the part that I take great

15 comfort from. "So long as the clerks and judges are

16 capable as they generally are, there is no denial of

17 justice in this system. But the appellate judge who

18 is one of its supervisors plays a different role, than

19 the appellate judge of a generation ago. The great

20 hallmark of judges, to my mind, has always been the

21 idea that whatever goes out over a judge's signature,

22 while not necessarily composed in its entirety by him
28

1 has at least been fully considered and understood by

2 him. Any significant increase in this trend of

3 converting judges into administrators would jeopardize

4 this principle of judging."

5 Now, that was 22 years ago. 

6 Now, in my view, which I might add is not

7 shared by all the judges on my court, we have gone a

8 long way down the line of converting judges into

9 administrators in the last 20 years. We still

10 personally delve into and decide many cases each year,

11 the number varying from one judge to another. But our

12 efforts in a substantial number of these cases

13 consists of supervising law clerks who delve into the

14 cases and of approving what they have done. 

15 Now, this has all happened, not because

16 we're lazy or because we wanted it to happen because

17 speaking for myself anyway, I would be far more

18 comfortable functioning in the way a judge did a

19 generation ago than I am in terms of the way we

20 function today, because I would be less worried about

21 the accuracy and the quality of our decisions. But

22 we've been compelled to do it, become administrators,
29

1 by reason simply of volume and the defensible decision

2 of a majority of the judges in my court to limit the

3 number of judges. And that is a defensible decision.

4 What I am concerned about is that this

5 core principle of judging that Justice Renquist

6 identified that whatever goes out over your signature,

7 while you don't necessarily have to have composed it

8 yourself, has at least been fully considered and

9 understood is in jeopardy today by reason of the sheer

10 number of matters that go out over our signatures.

11 Now, one of the judges on my court

12 commented a couple of years ago. He said, "We now

13 have discretionary review." I didn't ask exactly what

14 he meant by that, but I think this problem sort of is

15 at the heart of what he was talking about. The one

16 thing I can say about all this is I think our court

17 will deal with this problem the same way it's dealt

18 with all of these volume-driven problems, and that is

19 by confronting it and by making the kind of changes in

20 our decision-making process that it calls for. 

21 It doesn't exist on our court in the way

22 we handle oral argument cases. It does not exist in
30

1 the way we handle conference calendar cases. It

2 exists, I think in the way we handle summary calendar

3 cases and it exists more in the case of some judges

4 than it does of others. I think what we need to do is

5 look at more and more of our summary calendar cases

6 with a view to seeing how many of them we could add

7 into a process that's akin to this conference calendar

8 where we have a collegial conference. Judges who come

9 to a collegial conference and talk about a case are

10 engaged and they do make the decisions that they have

11 to make. 

12 Now, I want to just talk briefly about a

13 couple of other problems that I've seen addressed in

14 the literature, to say the least, at length. One is

15 collegiality. A court is collegial when the work of

16 each of its members is based on knowledge of and

17 respect for the existing law and the views of the

18 other members of the court and respect for the orderly

19 process of change that is central to the rule of law.

20 When the objective of a collegial court is a body of

21 law that is clear and consistent, in my experience it

22 is possible for a collegial court to come close to
31

1 meeting that objective, even during a period of

2 substantial change in the law and we've had that in

3 our court in the last ten years. But I think that

4 even during a period of change it is possible to have

5 a clear and consistent body of law.

6 But in my view, the greatest challenge to

7 collegiality doesn't come from the size of the court.

8 It comes from the occasional judge who comes to the

9 court with a kind of "take no prisoners" attitude and

10 who may not respect either the existing law, the views

11 of other judges, the orderly process of change or all

12 of the foregoing. That kind of a judge creates a

13 potential for chaos. Fortunately, judges with that

14 attitude are very few, and they are by no means unique

15 to large courts. But the presence of one of those

16 judges on the court places a particular premium on

17 careful review by each judge of the opinion output --

18 well, first of the opinions submitted for concurrence.

19 You've got to pay attention to what comes in front of

20 you, and on careful monitoring of the court's output.

21 But in my view, that review and monitoring in

22 combination with the en banc process resolves most of
32

1 the problems created by collegiality challenged

2 judges, which I think is probably the best way to

3 describe it. 

4 The other topic that I saw on the list of

5 topics that you're going to be considering is the

6 difficulty of monitoring opinions. The objective of

7 monitoring opinions is the same as the objective of a

8 collegial court, and that is to maintain a clear and

9 consistent body of law. It may have the incidental

10 effect of pointing up cases that are wrongly decided,

11 but that's in the sense of an individual case that's

12 wrongly decided. That's not the point of it. 

13 In our court the percentage of appeals

14 terminated on the merits that have resulted in

15 published opinions has declined steadily from 1981 to

16 1997. In 1982, which was the first year -- well, it

17 was actually the year of the split. We published 832

18 opinions and we put out 646 unpublished opinions. So

19 the percentage of opinions published was 56 percent.

20 In the most recent 12 months, the court issued 585

21 published opinions and 2,607 unpublished opinions, so

22 the publication rate was 18 percent. So we have gone
33

1 from 56 percent to 18 percent. 

2 The number of published opinions remains

3 fairly steady during most of this period between 800

4 and 900. But in 1994 is when we began to have this

5 very substantial decline. Now, I don't know exactly

6 the reasons why this is so but I think that it's

7 obvious that one reason is that a steady percentage of

8 the appeals in the view of the judges consists of

9 courts that don't make any -- I'm sorry -- of cases

10 that don't make any new law. And therefore, don't

11 require publication. 

12 And this points up again the importance of

13 paying attention to the statistics and being

14 discriminating about the use of them. Much of our

15 case law explosion has consisted of direct criminal

16 appeals and prisoner litigation which frequently

17 involve the application of settled law to a particular

18 set of facts and don't require publication. So you

19 have to pay attention to the fact, I mean it seems to

20 me, that a large court and a large docket don't

21 automatically translate into more precedent setting

22 opinions. 
34

1 If you think about it, Congress made the

2 decision in 1981 that 14 judges, active judges, could

3 monitor 832 opinions. That's the judgment that was

4 made when the circuit was split. So I think it goes

5 without saying that 16 or 17 active judges can monitor

6 585 of them, and we can. 

7 Of course we have the ability to look at

8 first petitions for rehearing en banc, which point up

9 inconsistencies, also. I don't think our court is

10 plagued by a high level of inconsistency in panel

11 decisions. I encounter that in the course of the

12 year, maybe a couple of times, and I think when I look

13 at it that they are frequently inadvertent. And some

14 of this has been alleviated simply by the

15 technological advances that make it possible very

16 easily to pull up all the cases on point including

17 very recent cases. So we don't have that many, and

18 the ones that we do have we can resolve through the en

19 banc process.

20 Now, I want to talk just about two more

21 things. One is the en banc court itself, because we

22 have done it differently than the 9th Circuit. We
35

1 have not elected to utilize the option of an en banc

2 court consisting of less than all the active judges.

3 The consensus on our court has been that such a

4 procedure may result in en banc decisions that do not

5 reflect the views of a majority of the active judges.

6 An en banc court that consists of 17 judges is

7 cumbersome but it's not so cumbersome that we have

8 been unwilling to make ample use of it. During the 12

9 months ended September 30, 1997 we decided 15 cases en

10 banc, second only to the 9th Circuit, which decided 16

11 and far ahead of the other courts in the country.

12 Now, I have to say there is nothing quite

13 like the prospect of an en banc court of 17 judges to

14 keep inner circuit conflicts to a minimum. But more

15 important than its (indiscernible) effect, the en banc

16 court serves an important educational function of

17 providing regular lessons, very good lessons, in the

18 values and the techniques of a collegial court. So

19 long as the burden of convening 17 judges doesn't

20 cause us to shy away from en banc consideration, as

21 far as I'm concerned, getting the whole group together

22 is a very worthwhile enterprise. 
36

1 The only other thing that I would have to

2 say that troubles me is that beginning in about 1995

3 when the staff attorneys started submitting proposed

4 opinions along with memoranda, we have gone to the

5 procedure of not giving reasons for the decision in a

6 large number of cases. Basically these opinions will

7 list the issues on appeal. They do list the issues,

8 and they conclude where appropriate with a statement

9 affirming "for essentially the reasons given by the

10 district court." Now, not all the judges utilize

11 these opinions, but I would have to say that many of

12 the judges do. 

13 There are good arguments for those

14 opinions. In a frivolous appeal, all it does is

15 possibly suggest if you write a full scale opinion in

16 a frivolous case, all that does is add fuel to the

17 fodder of having more frivolous appeals from the same

18 person. And there is many cases -- I noticed that the

19 district courts are giving reasons more and more

20 frequently and where a district judge has given a good

21 statement of reasons, they really don't add anything

22 by putting more on it or repeating them. 
37

1 But I think there are many cases in which

2 the litigants would be more likely persuaded that we

3 have at least paid some attention to their case if we

4 gave succinct particularized reasons for the decision.

5 And you can't rely on the petition for rehearing to

6 identify error by the panel if you don't give any

7 reasons, because then all the petition for rehearing

8 does in my experience is just regurgitate the brief.

9 And you cant look t it to tell you what mistake you

10 made.

11 And finally, I think that giving reasons,

12 however brief, provides a basis for accountability for

13 the court and for the whole judicial system so I think

14 that a short statement of reasons, not a law clerk

15 special, but a short statement of reasons is

16 important, and I would encourage that on my own court.

17 I came to the conclusion a long time ago

18 that a federal appellate court has very little control

19 over the number of authorized judges, over the rate at

20 which vacancies are filled, or its caseload. When you

21 think about it, I mean, we have very little control

22 over how much person-power we can devote to deciding
38

1 cases and we have almost no control over our caseload.

2 Those are political decisions that we can hope and try

3 to inform but we in any event have to honor and work

4 with. So I think it's our responsibility. It's the

5 responsibility of each of these courts that you're

6 looking at to devise decisional processes that will

7 allow us to dispose of whatever our caseload is at the

8 moment, in a manner that preserves the historical role

9 of appellate judges to the best extent that we can and

10 that also insures the justice position of appeals. 

11 We, in this court, have demonstrated both

12 the ability and the resolve to do that. Our

13 mechanisms are what have to be viewed as sort of works

14 in progress but I'm confident that on the 5th Circuit

15 we will continue to evolve in ways that enhance the

16 quality of justice that we dispense.

17 Thank you. 

18 VICE CHAIR COOPER: Judge King, thank you

19 so much. 

20 JUDGE KING: You're welcome. 

21 VICE CHAIR COOPER: We want to hear from

22 Judge Parker, hear from all three of them and then we
39

1 can kick it around, don't you think? 

2 Our next witness -- we'll save questions

3 for all the 5th Circuit judges until all have had a

4 chance to make a statement and we're pleased to call

5 the next witness, Judge Robert Parker of the United

6 States Court of Appeals for the 5th Circuit. 

7 JUDGE PARKER: Thank you very much. I

8 appreciate the invitation to be here and I noted that

9 now that I'm in my sixth decade, I've started thinking

10 about what I'm going to do when I get to the middle of

11 that decade and it's been 19 years since I was

12 privileged to stand in the pit. I kind of like the

13 feeling. It may be pushing me in that direction. 

14 VICE CHAIR COOPER: Judge, it's kind of

15 fun sitting up here as a trial lawyer too. I'll tell

16 you that. 

17 JUDGE PARKER: Well, we might just swap

18 for awhile. I'm in pretty much agreement with most of

19 what was said by both Judge Higginbotham and Judge

20 King. I want to take a little different tack with you

21 and I'll push you in the direction of examining our

22 court and our system a few years down the road. 
40

1 I agree that we're functioning well today.

2 One of the things I did to prepare for coming up here

3 over the weekend, I went back and read what members of

4 this court have said about our process over the past

5 25 years, starting with Griffin-Bell (phonetic), and

6 to a person they call complained about the quality of

7 the cases are decreasing and the numbers are going up.

8 We're still saying the same thing today. Our

9 perception is the cases we deal with are not as

10 important as they were earlier. Exactly the same song

11 being sung. Griffin-Bell was lamenting the

12 trivialization of the federal courts by the Congress.

13 As you make your decisions about your

14 recommendation and whether any structural change needs

15 to be made and what might happen down the road, there

16 are four things that I think are vitally important

17 that's part of that equation. 

18 Number one, case filings will increase.

19 There are a lot of factors that will contribute to

20 that but that is a given. I mention my view of those

21 factors in the paper. 

22 Number two, Congress will not change.
41

1 There is not going to be a reduction, a jurisdictional

2 reduction. There will continue to be federalization

3 of traditional state court crimes. There will

4 continue to be an increase, sporadic maybe, in civil

5 causes of action. The rate may fluctuate but that

6 leopard will not change its spots.

7 Three, in my view, fewer circuits are

8 better than more circuits. We have this curious

9 system where federal law, national law, law that

10 applies to the entire country is different in

11 different parts of the country. Now, if you just sit

12 back and look at that, it's a rather curious

13 phenomenon. There is a good case to be made for the

14 percolative effect of how the law works its way

15 through the circuits and for ultimate resolution by

16 the Supreme Court. But there should be an outer limit

17 to the number of circuits, as that relates to the

18 order of the system. My personal view is that ten are

19 plenty. At some point we overburden the Supreme

20 Court's ability to resolve splits in all the circuits.

21 This last term 26 out of 75 cases was

22 granted on the basis of split among the circuits.
42

1 That was 35 percent. I don't have access to the

2 numbers of how many petitions were based on claimed

3 split between the circuits. 

4 And the fourth foundation, in my view, is

5 that there is an inverse correlation between the size

6 of a court of appeal and its ability to speak with one

7 voice. And the ability to have a consistent, coherent

8 body of circuit law is indispensable. And the more

9 judges you have, the more difficult that becomes. My

10 personal view is that when you get over 12 you greatly

11 complicate that task. 

12 I'm not going to cover the material Judge

13 King covered. Let me just barely touch on that. In

14 profile of our circuit last year, approximately 7,500

15 filings for 16 judges, 69 percent of the cases were on

16 the summary calendar, decided in chambers without

17 conference. Now, Judge King has a concern about that

18 process versus the summary calendar. It was

19 interesting, I thought my view was just the reverse.

20 I personally think cases probably get a little better

21 attention on the summary calendar than they do on the

22 conference calendar. But I don't lodge a complaint
43

1 about either one. Published opinions, 21 percent and

2 the oral argument, 27, but that's misleading. 

3 And this relates to one of the things

4 Judge Higginbotham said. He talked about recent

5 experience of three day panels. I've had that occur

6 to me on two occasions. And next month I'm sitting at

7 Baylor Law School and we have 20 case docket, typical

8 20 case docket, but we've taken six of those cases off

9 the oral argument calendar since the briefs were sent

10 out. And that's becoming a common occurrence. There

11 are a number of reasons for it. Matter of fact,

12 that's one thing that we're starting to hear

13 complaints from lawyers about and I think it's a

14 legitimate complaint. Judge Higginbotham and I have

15 discussed it. 

16 We get this list of 20 cases, we look at

17 them. One of the three of us will say oral argument's

18 really not going to help here. Why don't we just

19 decide this NOA? So we start taking them off the

20 docket. We're down to 14 for next month now out of

21 the 20 so we're looking at three days instead of four.

22 That's a reason for this recent phenomena. And
44

1 another reason is the steep incline of cases that are

2 being decided on screening calendar, summary calendar

3 versus oral argument. But we started out on 20 years

4 ago it was about half the percentage that it is today

5 and it continues to go up and it will continue to

6 increase. 

7 Going back and looking at what some of

8 these other judges have said, I ran across an article

9 by Tom Gee (phonetic) who mentioned -- I for some

10 reason have never looked at these numbers. He

11 mentioned the fact that when the circuit was split,

12 there were 25 active judges, plus one vacancy. There

13 were 11 senior judges on the 5th Circuit at that time

14 and we had 4,280 filings. Today we've got 16 with --

15 we have five senior judges but we have two active

16 senior judges, and we're 7,500 filings. I agree the

17 mix has changed but the truth of the matter is that an

18 opinion today that we devote six pages to, 15 years

19 ago would have had 26 pages. It has to do with the

20 way we go about doing our business. We have short --

21 we have instituted shortcuts pretty much across the

22 board. And the reason the numbers are what they are
45

1 today is because of these case management techniques

2 that we've instituted. 

3 Now, what I really wanted to do today was

4 to get you to focus on the 5th Circuit with 10,000

5 filings. According to the circuit exec's officer, who

6 I gave a blood oath to I would not attribute it to

7 them, so I don't. They say it might take ten years

8 for us to get to the 10,000 level. But it doesn't

9 matter how accurate that prediction is. If it takes

10 eight years or twelve, it makes no difference. We

11 will get there. 

12 Now, what will happen to this court when

13 we get to 10,000 filings? If we proceed to handle our

14 business exactly the way we're handling it today,

15 we've got serious problems. We will have intra16 circuit conflicts that will be a real problem. We'll

17 see lawyers appealing cases for the roll of the dice

18 to see what kind of panel they get. I think it will

19 impact on morale. I think an en banc process will be

20 very problematic. Monitoring will become very

21 difficult. And we may have two or three more judges

22 over that ten year period. I mean, that would
46

1 typically be what we might expect. 

2 But what's more likely to happen when we

3 get to 10,000 filings, whether that's in eight years

4 or ten years, is that we won't conduct our business

5 the way we do today. What we will do is -- I'll

6 characterize as an incremental corruption of case

7 management techniques. We'll handle a lot more cases

8 on the conference calendar with a whole lot less

9 conference or maybe no conference but we might still

10 call it a conference calendar. 

11 The bottom line is we will be exercising

12 discretionary review, but not be honest about it and

13 we'll be calling it something else. Now, there is a

14 legitimate complaint that we're doing some of that

15 today. We have this jurisdictional defect calendar

16 that we affectionately call our Aegean Calendar. Tom

17 Waverly (phonetic) penned that name on it when we

18 started out sweeping out the judicial stables. And

19 staff counsel identifies these cases that have a

20 jurisdictional defect. It's a small step to get to

21 the point where, well, this case has a little merit

22 defect so we'll just do it on this summary of summary
47

1 calendars and we'll dispose of 30 of those in one day.

2 I think it is imperative that this process

3 have integrity. I think it's imperative that we

4 actually do what we say we're doing. If we institute

5 discretionary review by some other name, it will not

6 go undetected. And the bar will know it, our

7 colleagues will know it, the academicians will know

8 it. It will result in a loss of confidence in the

9 system. So what do we do? We're looking at this

10 court with 10,000 filing. 

11 When you look at the options. There are

12 a number of options and I think it's fair to say that

13 pure discretionary review, which I happen to favor

14 because it's the most honest approach and it serves

15 more of the objectives laid out for the courts. But

16 it may well be an idea whose time is not yet ripe. We

17 will get there. That's the way the courts of appeals

18 will handle their business in the future. It's just

19 a question of when and admittedly, we may not be there

20 now.

21 There are incremental steps that can be

22 taken short of pure discretionary review, but if you
48

1 look at the other options, one of the options that the

2 proposed long range plan looked at was restructuring

3 all the various circuits to equalize the sizes of the

4 circuits and to produce administrative efficiency.

5 There is some benefit to that and there may well be

6 more downside than benefit. I think it would create

7 much resistance in the bar. It would create an

8 administrative nightmare for X amount of time and at

9 best, it would be a short term fix and not a long term

10 solution. 

11 We're going to move to the outer layer,

12 between the district court and the court of appeals,

13 or do you build in an appellate division of the

14 district court? Well, if we assign a high level of

15 importance to each case getting plenary review, that's

16 an obvious solution because you can do that by adding

17 a layer, either in between the two or as part of the

18 district court. You can provide -- both circuits

19 under control. But this too is problematic. It would

20 not be greeted with enthusiasm by the district judges.

21 The fact is that they would be getting cases with less

22 romance. They would be involved with error correction
49

1 in cases considered "less important" and there would

2 be serious resentment from the district judges in my

3 view in participating in such process. The Congress

4 is not going to be enamored with creating however many

5 new district judges it make take to implement such a

6 program. But depending on, again, depending on the

7 level of importance you attach to the objective of

8 providing a full appeal for each case, that is a

9 viable option. 

10 Now, commissioners or magistrates at the

11 court of appeals level has been bandied about now for

12 several years. It has the obvious disadvantage -- I

13 mean, I've got a lot of cases in my office right now

14 I'd love to give one like I used to give to the

15 magistrates when I was on the district court. But

16 it's got the obvious disadvantage of, I'm assuming

17 there will be Article I judges. I see no political

18 support to create this whole new category of Article

19 III judges, but I'm assuming therefore, they will be

20 Article I judges and for Article I judges to be

21 grading the papers of Article III district judges is

22 really problematic. 
50

1 So the only way this appellate magistrate

2 -- appellate commissioner process, I think could be

3 successful is if they are Article III judges and

4 there's huge resistance to creating a whole new cadre

5 of judges. 

6 We have a long history of using pilot

7 courts for experimentation. We've done in any number

8 of areas. And the long range planning committee

9 suggested that if we decide to really get into some

10 structural change, it probably should be on the pilot

11 court basis. It would seem to me that if we get to

12 that point, the 5th, the 11th and the 9th have the

13 statistical fit that would justify their selection as

14 a pilot. The 11th, numbers are almost the same as

15 ours, but they manage to keep it at a 12 judge level,

16 I believe, or is it 13 now? One or the other, but

17 they've got nine senior judges and they have a very

18 high level of visiting judge in the mix with district

19 judges that they bring in to hear cases. 

20 I remain persuaded that of all the

21 objectives that we should focus on, the most important

22 is the maintenance of a predictable uniform body of
51

1 law. The entire business community depends on it,

2 social planning depends on it. Our whole system is

3 tied to the predictability of knowing what the law is,

4 knowing it's not going to rapidly change with shifting

5 winds. And to maintain a predictable, consistent,

6 coherent body of law the number of circuits have to

7 remain under control and they have to be produced by

8 courts that are small enough to do it within their own

9 court. And I sincerely believe that that's best

10 served by no more than ten circuits and courts with no

11 more than 12 judges. 

12 And one last thing. We will have

13 discretionary review. It's a question of what we're

14 going to call it, whether we're going to be honest

15 about it. And that's going to effect the integrity of

16 this system. I think we need to be up front. I think

17 if we're going to have it, let's call it what it is.

18 Our Rule 47.6 that permits us to dispose of cases with

19 one word, "affirmed," it doesn't take a genius to

20 figure out that that's a wonderful tool for the

21 implementation of discretionary review. But if we do

22 that, and we will when the numbers get to the point
52

1 where we have to, and judges are problem solvers.

2 Judges are going to handle the business of their

3 court. We will do that. And at the same time we will

4 be holding ourself out to the country and to the bar

5 as providing plenary review when in fact, it will not

6 be the case. 

7 I suggest that the best thing to do is

8 give that a hard look. We may ease it in with certain

9 kinds of cases but I remain persuaded that it's the

10 best way to proceed. 

11 I appreciate very much your attention.

12 VICE CHAIR COOPER: All right. Judge,

13 thank you. I'll ask a question of you to sort of

14 start this off, if that's all right. 

15 You say you want ten circuits and 12

16 judges. Would you just redraw the lines nationwide?

17 JUDGE PARKER: Well, if you have to go to

18 ten, you have to reduce somewhere. I'm certainly no

19 expert on where the lines should be driven. 

20 VICE CHAIR COOPER: I don't know if the

21 math works. I haven't looked at the number of judges.

22 We have 11 circuits and we have more than that now.
53

1 JUDGE PARKER: I can't stand up here and

2 tell you that there's a huge difference between ten

3 and 11 but there's got to be some limit on it. You

4 can't -- a comment Tom Gee made one time, said, "The

5 rate we're going we're going to have a court of

6 appeals for metropolitan Ulster." And you know, we're

7 getting continually pushed toward having our system

8 mirror the state court systems. We're handling their

9 cases and you keep splitting the circuits and you

10 know, we're going to have them for each state. The

11 federal nature of it -- you're dividing up national

12 law and permitting areas where it controls within a

13 geographical region, the number of those regions

14 should be small. But I can't tell you there is a

15 magic number.

16 VICE CHAIR COOPER: All right. Thank you,

17 Judge. We appreciate you taking the time to be with

18 us today. 

19 Judge Rymer, you want to sort of -- you

20 can address questions to any of the three judges or

21 throw it out for any of them to respond?

22 JUDGE RYMER: Well, I came in with a lot
54

1 more questions than I ended up with because the

2 comments were extraordinarily thoughtful and incite3 full and I, for one, really appreciate the time and

4 trouble that went into them. Obviously, discretionary

5 jurisdiction is something that is rather harder to

6 talk about as a possibility. But there is also a very

7 strong sentiment in favor of oral argument. If not as

8 a (indiscernible), sort of as a (indiscernible) and I

9 would like to hear particularly from Judge

10 Higginbotham about the scenario that you see, if in

11 fact these filings do continue to go up. And if any

12 of these filings were of a more or somewhat more

13 difficult than you both believe, and I guess I would

14 share the belief, exist now.

15 JUDGE HIGGINBOTHAM: Well, on the question

16 of discretionary review, which is one of my colleagues

17 pets -- I see a significant difference between a

18 summary affirmance which says no more than affirmed

19 and a denial of review. The difference is more than

20 simply -- I think it's a large step when you move from

21 an appeal of right to discretionary system. At

22 bottom, what you have changed is that, what you have
55

1 done is to acknowledge that the court of appeals'

2 primary role is not error correcting, but rather is

3 lawmaking. 

4 Now, we may -- maybe some judges do -- I

5 don't think Bob does -- perceive our role in a way

6 that would accent more heavily its lawmaking function

7 and less its error correcting function. I think once

8 we say that there's discretionary review, then I think

9 we have changed in a significant way what I think is

10 the simple mission of the court of appeals, which is

11 error correcting and not lawmaking. By way of accent,

12 I would accent the error correcting function of it. 

13 I don't see discretionary review as an

14 inevitable event. That type of prediction really

15 rests a lot on the underlying premise of straight line

16 projection, which is flawed just as Griffin-Bell's oft

17 quoted comment about the number of prisoners in the

18 growing prison population. He said we follow your

19 straight line projection, everybody in Georgia is

20 going to be in prison, to which someone said that's

21 the way you started off. 

22 But I think that the docket --
56

1 VICE CHAIR COOPER: I assume that was

2 meant to imitate Judge Bell's accent, Judge

3 Higginbotham. 

4 JUDGE HIGGINBOTHAM: That was close. I

5 can't mumble in quite the same way. I just don't see

6 it as inevitable. I think it's a very basic, very

7 basic change. I am not bothered by the fact that at

8 some point in the future there may be 10,000 filings.

9 I'll worry about that when it comes. The problem is

10 that we've -- in trying to deal with that hypothetical

11 now is that we don't know in what form they'll come.

12 What we've been saying today is that the very mix of

13 the cases informs or should inform the response to

14 them. And equally so, whatever will be the number of

15 cases we have in the future, it's the mix of cases,

16 the types of cases that will inform the appropriate

17 response. 

18 And finally, I really think that the

19 bottom line is we're functioning well and we ought to

20 be left alone, at least insofar as any kind of a

21 structural change that is involved. I -- we've not

22 talked about it. I personally disagree with Professor
57

1 Meador, for whom I have great warmth and respect, with

2 regard to the question of specialized courts and I

3 hope that we do not move in that direction. The

4 longer I'm in the business, the more I'm persuaded of

5 the value of the generalist judge. I see great merit

6 in that. I see a lot of difficulties with courts of

7 specialization. 

8 I hope that responds in part to your

9 question. 

10 PARTICIPANT: Is it appropriate for me to

11 remind Judge Higginbotham that the reason he rose was

12 to answer your question about oral argument. 

13 VICE CHAIR COOPER: I was going to do

14 that, judge, but that was good. Would you like to

15 answer that? We certainly can't make you answer the

16 question. 

17 JUDGE HIGGINBOTHAM: How quickly I get

18 back in the role when I move down here, of needing to

19 be prompted and directed. 

20 The question you want me to address

21 precisely is what, with regard to the oral arguments?

22 I think if you look at the numbers again of our
58

1 docket, I don't see an appreciable difference in what

2 realistically has happened. You have to start with

3 this number, let's say of 7,000 cases. Remember that

4 over 1/3 of that total number of cases are disposed of

5 almost by dispatch. A number that approaches nearly

6 16 percent never leaves the clerk's office. They

7 never see a judge. I mean, and so we look at these,

8 we're being besieged? These are -- what happens to

9 them? Well, they're cases that are not pursued. They

10 are cases that are appeal -- notice of appeal is filed

11 three years after the judgment's final, etcetera.

12 Those cases are not going anywhere. They are

13 administratively processed. 

14 And then you add in the conference

15 calendar and then you add in -- we've disposed of a

16 whole range of these cases and there's no real

17 question with regard -- I don't see any question with

18 regard to the substantive accuracy of these kinds of

19 summary dispositions. The fact of the matter is that

20 these cases are chosen for this type of disposition

21 because realistically they really don't permit but one

22 answer. And you give the answer and go on. 
59

1 I think that when you eliminate that group

2 of cases and then you look at the universe of cases

3 for which oral argument might be helpful, you will

4 then see that very few cases in my view for which the

5 parties want oral argument and have any really

6 arguable basis are really decided without oral

7 argument. It's easier today, I think, to get oral

8 argument than it was when I was practicing before this

9 court some years ago. 

10 VICE CHAIR COOPER: Do you see oral

11 argument changed -- the going in result, on occasion?

12 JUDGE HIGGINBOTHAM: I think the oral

13 argument process is quite significant. I think the

14 oral argument process means that the judges are

15 engaged in a level that they will not be engaged in

16 the summary calendar and I think in that sense, Judge

17 King I think is right on -- I think. But if the

18 system is working properly, it will be a type of case

19 that -- for which that kind of engagement is -- there

20 is enough there to warrant that much effort. But you

21 put three judges and their focus in oral argument and

22 in preparation in three separate chambers, that case
60

1 has gotten a lot of attention. 

2 I'm not bothered with the fact that those

3 cases may not produce a written opinion. The length

4 of opinions, I would disagree with Judge Parker. I

5 think the length of opinions sort of went up

6 considerably as we added these law clerks. There is

7 a tendency to add law clerks. Some of my colleagues

8 have four and I don't criticize their choice to that.

9 I don't know -- I happen to think that is not a good

10 thing in the court as an institution. 

11 I think if you want to look at the length

12 of opinions, they're directly reflective of the amount

13 of staff function and not earlier. If you look back

14 just pick out -- go back to Fed 1st and look at some

15 of the opinions written by this court before when at

16 best you had one law clerk. And what you will see is

17 a much shorter opinion. I think that -- and that's

18 true, I think of courts in general. I think that a

19 model of what's an appropriate opinion sort of has

20 changed and I don't think for the good. We don't need

21 to shoot every dog in town. I mean, that's -- in

22 every opinion that's what it comes down to. 
61

1 VICE CHAIR COOPER: Let me ask a question

2 to any one of the three of you. How big a circuit in

3 number of judges is too big? Do we have any thoughts

4 about that? If anybody has any thoughts with respect

5 to -- I think Judge Parker already stated his view on

6 that but we've exceeded your view, I think, Judge

7 Parker, with all due respect. But does anybody else

8 have any views to pose and you know we're specifically

9 charged by Congress to take a look at the 9th Circuit

10 and you all are familiar with the size of that. Does

11 anybody have any views not directed to the 9th Circuit

12 but just what would trouble you? If you got to 20

13 judges, or 30 judges or 25 judges? 

14 Judge King?

15 JUDGE KING: That varies dramatically with

16 each judge. Each judge has a different view of that,

17 in my experience. And it's very difficult, if you

18 start asking, well, exactly why do you think that,

19 it's very hard to get all the reasons why a judge

20 thinks that. And it's difficult to make sense out of

21 some of it. I would not accord 25 judges for three

22 years. It wasn't 25 the whole time. It was, I think
62

1 like 19 to 25. 

2 I personally did not find that to be a

3 problem. It was a very collegial court. The old 5th

4 Circuit was a very collegial court, and the judges had

5 enormous respect for one another and for the process.

6 PARTICIPANT: And all of the Alabama

7 cases. 

8 JUDGE KING: Yes, well, I mean we may have

9 suffered from when we (indiscernible). So in terms of

10 consistency of respect for the law and so on, and for

11 one another, the old 5th with 25 judges was a very,

12 very collegial court and its decisions were on the

13 whole consistent. 

14 The problem is, the thing that finally was

15 the coup de grace of the old 5th was a couple of en

16 bancs that I participated in where we had 25 judges

17 and people were just sort of dismayed by that, and

18 thought that that was a very unwieldy group. 

19 Let me say that the process of dealing

20 with an en banc court of 17 judges takes some getting

21 used to. I remember that when we had this court of 25

22 and I was very nearly the junior judge in this crowd,
63

1 and the rule was that you went around and everyone had

2 to speak. My God, 25 people each feeling compelled to

3 speak is awesome and it came to me, I was the 25th and

4 I said, "I really don't think I have anything to add."

5 And there was just a stunned silence and then a great

6 round of applause.

7 Let me say that that was the breakthrough

8 and then I noticed that several of the cases that we

9 handled, you know, some of the judges would speak and

10 some of them would say, "I don't have anything to add.

11 Judge so and so has pretty well said what I think."

12 And so we went from 25 judges having to all run their

13 mouths and got it down to the people who had something

14 to say. And it began to look like it was going to

15 work, but the general sense was that it was something

16 that people just didn't want to try. 

17 But it does take experience and it takes

18 practice and it takes some sense of self restraint to

19 make a court of that size function in en banc form but

20 it can be done. So I don't personally -- it doesn't

21 concern me but I know a lot of judges on our court who

22 would say, "Oh, my God. We can't have that." Well,
64

1 the answer is you can have what God gives you. You

2 just have to make do with what you have and you'd be

3 amazed at the techniques that you can devise to make

4 do with a court of that size, and make it work. 

5 VICE CHAIR COOPER: Is there any thoughts

6 anybody has about geographical diversity, for example?

7 I'm not saying this is on the table, but someone felt

8 that we ought to split Texas up. 

9 PARTICIPANT: In other words, what do you

10 do with Mississippi?

11 VICE CHAIR COOPER: Right. Well, we know

12 what happened to Mississippi. They wanted to go east

13 but they went west. Judge Gottenbaugh (phonetic) told

14 us that in Atlanta, about how that came about. 

15 No, with reference to any thoughts, all

16 sorts of configurations have been given to the 9th

17 Circuit and we don't endorse any of them but do you

18 split California? You can relate to a Texas

19 situation, because Texas dominates the 5th. 

20 JUDGE KING: I think it would be very ill

21 advised to split a state, because you know, you have

22 a great many cases in which you're essentially
65

1 pronouncing what state law is. And that's enough of

2 a problem as it is, without having two federal

3 appellate courts pronouncing as to the state law. So

4 my own sense would be that that's problematic but let

5 me say I haven't lived with the problem the way the

6 9th Circuit has. So I couldn't -- I certainly could

7 be persuaded otherwise. 

8 VICE CHAIR COOPER: Judge?

9 PARTICIPANT: Well, do you see any

10 problems -- (indiscernible) sort of automatically says

11 state law problems and now that you have state law

12 certification that would all be (indiscernible) but it

13 has occurred to me that an equally interesting

14 difficulty would be with respect to habeas and capital

15 case decisions. Would you have any view based upon

16 your experience dealing with those cases in the 5th

17 Circuit?

18 JUDGE KING: Insofar as splitting a state

19 law like Texas, would that adversely effect us in

20 federal -- 

21 PARTICIPANT: Even though I don't have

22 anything to say, I think it would be a serious mistake
66

1 to do that. I think that having the circuit as it now

2 is (indiscernible) is about as small circuit

3 geographically as -- that I would like to have. 

4 PARTICIPANT: You talking about the 5th?

5 PARTICIPANT: I'm talking about the 5th.

6 We're talking about the 5th because we're taking Texas

7 as a surrogate issue to the 9th Circuit thing in

8 California. And now we're talking about Texas. I

9 think that you would run immediately into a lot of

10 problems in the state law area, not just diversity

11 cases. I think the habeas (indiscernible) would be --

12 would cause a great deal of difficulty. You'd have

13 two different bodies dealing with a court trying to

14 administer capital punishment laws for the State of

15 Texas which is one of the more active states in the

16 Union in that area. 

17 There seem to be a lot of -- I think there's

18 real value in the geographical mix as well as the --

19 in the court. 

20 Judge Parker was talking about the leaning

21 toward -- pushing toward a more national sized court.

22 To me on the one hand you want a court that is large
67

1 enough that it is viewed as more federal than

2 parochial but at the same time you want them viewed as

3 a court that is not so large that it is all federal

4 and not parochial. You want to balance, as

5 (indiscernible) with a local view. And that to me

6 argues for a multi-state circuit. I think that a

7 state has a certain kind of identities. There are

8 distinct differences in identities among these

9 circuits and I think the court can reflect in their

10 appointments and in the nature of the cases that are

11 brought to the court. 

12 If you look at our court, we have some

13 evident maritime practice. We have new policies

14 coming off the Mississippi River and coming off the

15 Gulf coast, etcetera. There is more identity, frankly

16 between the 5th and the 11th and it follows to reason

17 that if they were a circuit for a number of reasons,

18 not all -- of course it was political but the politics

19 drawing those lines of what was the underlying causal

20 identities that I think are very, very important.

21 So when we talk about the political lines

22 that in drawing a circuit, it's not some abstract,
68

1 arbitrary figure that a politician ought not to

2 trouble judges with, quite the contrary. It reflects

3 a judgment of identity that -- I'm not bothered with

4 the fact that political lines in circuits have

5 historically been drawn by Congress. They might as

6 well (indiscernible) full powers. (Indiscernible) I

7 like the balance. I like the way it is and though I

8 would never -- I don't want to say never but to me, it

9 (indiscernible) with any state and certainly Texas.

10 JUDGE KING: Also, let me point out one

11 thing. The certification process that we now have in

12 Texas we didn't have for a long time but we now have

13 it, is a little -- has to be treated very carefully

14 because the Texas court and the Louisiana court, for

15 example, they don't want to take all the cases that we

16 would like for them to tell us the answer to. So we

17 have to think very carefully before we certify a case.

18 We've only got -- like dissents. You've only got so

19 many dissents you can write in a year and you lose

20 your credibility. Well, it's also true that you've

21 only got so many cases you can certify in a year

22 before the court is just going to say, well, you know,
69

1 enough is enough. We're not just here to take your

2 cases.

3 So we are very careful about what cases we

4 certify and any process that puts more cases into the

5 certification process seems to me to be run the risk

6 of having the state court say, no, we don't want to

7 take all these cases. 

8 I wanted to make one point in response to

9 your questions on oral argument. We have more and

10 more cases nowadays in which both parties waive oral

11 argument, mainly because it's an expensive proposition

12 and the sense is that they don't need it. So I think

13 that's something to focus on. And also, when you have

14 51 percent of your docket is pro se, we don't allow

15 people for the most part, we don't allow people who

16 are pro se to argue. Now, I understand that the 2nd

17 Circuit does that regularly. We don't. But

18 usefulness of oral argument when your customer is pro

19 se, is sort of problematic. 

20 VICE CHAIR COOPER: Professor Meador. 

21 PROFESSOR MEADOR: May I ask you a

22 question about the internal processes recorded -- as
70

1 you know, there are people out there who assert that

2 the quality of the appellate process has been graded

3 over the years. There's a perception, rightly or

4 wrongly, a perception by many people that a lot of

5 cases are not getting the kind of attention they

6 deserve and if we put together the totality of what's

7 happened, you say you went from I believe 16 staff

8 attorneys to 42?

9 JUDGE KING: Right. 

10 PROFESSOR MEADOR: And your law clerks

11 have multiplied. All of that, when you couple that

12 with the diminution in the number of cases getting

13 oral argument, and so on sort of look at the totality

14 of it, what is your view about the overall quality of

15 the appellate process inside of the court today, as

16 compared to say 25 years ago. 

17 JUDGE KING: Let me ask you a question, if

18 I may. And that is, how is you -- quality in what

19 terms? If you mean in accuracy of the outcome, I

20 would say that the accuracy of the outcome in the

21 individual cases is high. And the only way I can tell

22 about that is by measuring it terms of petitions for
71

1 rehearing. But I would say it's high.

2 If you mean does each case get the

3 attention from each judge that it would have gotten 20

4 years ago, I think the answer to that is no. Due to

5 hard cases in the sense of cases that truly demand

6 careful attention by an Article III judge to get that

7 attention, I would say the answer to that is yes. 

8 PROFESSOR MEADOR: I'm not quite sure I

9 understand the difference between the sort of case

10 that goes to the conference calendar and this other

11 case that goes through the summary calendar. What are

12 the criteria that routes a case to one or the other?

13 JUDGE KING: Mainly a conference calendar

14 case has to be a case that you don't have to spend any

15 time at all on the record, that the amount of effort

16 that has to be made in looking at the record is very

17 small. 

18 PROFESSOR MEADOR: The easier case in a

19 summary calendar?

20 JUDGE KING: Much easier, yes. 

21 PROFESSOR MEADOR: I see. Let me ask you,

22 do you still have the oil and gas calendar?
72

1 JUDGE KING: No. Let me say, I think

2 there are still some cases in it. There are still

3 some cases on the oil and gas calendar, yes. I've

4 never been on it so I don't --

5 PARTICIPANT: They exist on a separate

6 panel only because of the liberation of the

7 (indiscernible). What happened in that field is that

8 people may (indiscernible) a Chevron card or an Exxon

9 card says you're recused and so these cases are not

10 fun cases and I must say they're certainly first

11 cases. They complicate records and (indiscernible)

12 judges in this area are likely to be recused. The

13 stock owners gather the fact that they may own some

14 very small fraction of interest in some old gas15 producing property.

16 PROFESSOR MEADOR: How many judges serve

17 on the oil and gas panel?

18 PARTICIPANT: At the moment we're down to

19 three or four. 

20 JUDGE KING: Yes. There's not much

21 volume. 

22 PARTICIPANT: The cases don't lie and
73

1 there are very, very few cases. 

2 PROFESSOR MEADOR: Let me ask Judge

3 Higginbotham a question. Are you comfortable or

4 uncomfortable with the existence and work of the

5 Federal Circuit?

6 JUDGE HIGGINBOTHAM: I don't like courts

7 of specialization in taxes, for example. I think that

8 is a mistake. I understand the components for it. My

9 judgment is it's pre-Byzantine law and I've read

10 conflicting reports back in practitioner. What I

11 really don't have countenance to stress an opinion of

12 it. As to the (indiscernible) I try (indiscernible)

13 on district court. I had some (indiscernible)

14 practice, not much. I thought that requiring the

15 (indiscernible) of appellate judge (indiscernible) was

16 very useful. And I thought kind of correspondingly

17 putting that before the case, but it didn't. It works

18 out that the concentration of effort can be

19 counterproductive. I really am not comfortable giving

20 you an honest, informed judgment about the work of

21 that because when I been out of it, and I really don't

22 see the work enough to make that judgment. 
74

1 My fear was that it would produce

2 increasingly hyper-technical kinds of distinction but

3 it failed clearly here in the law which is a peril

4 that by a course of specialization might be

5 (indiscernible). I don't know. I've heard comments

6 but it's purely (indiscernible). 

7 PROFESSOR MEADOR: I have one more

8 question.

9 VICE CHAIR COOPER: Go ahead. 

10 PROFESSOR MEADOR: Judge Parker has given

11 us his view of future lines of development and his

12 suggested way to meet it. I'm not quite sure that

13 I've heard that from Judge Higginbotham and Judge

14 King. Assuming the dockets intended to grow at

15 whatever rate you want to project, 10,000, 12,000 or

16 whatever, what would you do? There are several things

17 that can be done. 

18 What would you suggest that the Commission

19 consider? We're supposed to look to the future, not

20 just today or six months from now. The Commission is

21 supposed to think about an appellate system to serve

22 the country effectively over the years ahead. And
75

1 there are only predictions or projections about how we

2 assume an increase in filings, of substantial sort.

3 What would you propose doing?

4 JUDGE KING: I agree with the comment

5 Judge Higginbotham made and that is I really think

6 it's difficult to say what you would do for the reason

7 that you don't know what those cases are going to look

8 like. 

9 PROFESSOR MEADOR: Is that what the

10 Commission should say? Just say, "We can't say what

11 to do. Too bad --" 

12 JUDGE KING: I'm not sure what the

13 Commission should say. All I'm saying is that if you

14 had said to me back when our caseload was

15 substantially smaller than it is now, "All right. In

16 the year 1998 your caseload is going to be 7,500

17 cases, what are you going to do about it? What do you

18 think we should do?" I might have made an answer that

19 in view of the case mix we have today, would have been

20 the wrong answer, because the case mix we have today

21 is a huge percentage of cases, prisoner cases that

22 simply don't require the same amount of attention, my
76

1 attention as a judge. They don't require as much work

2 as the rest of the cases on our docket because they

3 are very, very, very repetitive. 

4 So I think that's the problem. You can't

5 say what those cases are going to look like ten years

6 from now and it makes a big difference what they look

7 like in terms of what kind of judge-power we need to

8 handle them. 

9 JUDGE HIGGINBOTHAM: I would not make the

10 assumption that we're going to necessarily have a

11 large increases in any particular kinds of categories

12 for reasons that (indiscernible) too many other things

13 that are not going on now in terms of the profession

14 and litigation in general that are in place. How the

15 Wall Street Journal Monday, July 21st of '97, 100 big

16 company joined the disputes, litigated disputes

17 agreeing to take cases out. I wonder why it is that

18 we have a steady -- it's not just one year or two

19 years. It's well over five years of steady decline in

20 this category of general civil appeals. It used to be

21 a very large stable of the court's work. Why is that

22 happening? Is it mediation? Is it arbitration?
77

1 Maybe it's in part because economy is good -- at least

2 most recently it's been good and some believe in good

3 times litigation tends to decline, you know, we aren't

4 trying to pass on losses to other people as much. 

5 But whatever the reason, we don't know why

6 but if we know that it's steadily declining and while

7 we've seen a rapid upsurge in prisoner cases, we can

8 attribute -- we know what the underlying cause of that

9 is. We have so many -- such a huge increase in prison

10 population. But at the same time, you say, given that

11 increase in prison population, assume that's not going

12 to change. They're going to keep coming. Well, then

13 we get the Prison Litigation Reform Act. And we don't

14 know just what that's going to do to that mix. Seems

15 to be cutting back substantially upon that area. 

16 So there have been -- we're spending a lot

17 of time on capital cases. There was a new

18 (indiscernible) and frankly, that count of cases and

19 habeas in general certainly have been reduced

20 substantially in terms of the work demands it places

21 upon this court. So in a period of 18 months or so

22 we've seen Congress take actions which can make
78

1 substantial differences in this burgeoning caseload we

2 have from the prison side and we see a steady decline

3 yet on the civil side. We have a slight uptake on the

4 (indiscernible) criminal side. 

5 I think -- I can't demonstrate this but

6 most of that is -- most of those cases are being

7 brought -- a high percentage of those cases, I should

8 say, are coming to us because of sentencing

9 guidelines. We just see an awful lot of appeals on

10 pleas of guilty. And we knew that was coming, the

11 sentencing guidelines but that's a source of a lot of

12 that. Will that change? I don't know. 

13 But I can see a situation in which the

14 prisoner litigation goes down, for reasons we talked

15 about, changes in guidelines -- with new standards for

16 guidelines, such as getting back to what the original

17 standards were in the sense of true discretion and the

18 wide -- long range of discretion for trial judges and

19 that would substantially reduce the numbers of appeals

20 coming forward and would reduce the waivers of appeal

21 and plea bargains. 

22 All those things could cause enough of a
79

1 reduction in the caseload that the general population

2 growth, which is what you would expect over the years

3 of projection, would be all set. So the underlying

4 premise of growth is one that I would put a big

5 footnote by. I just don't know. And that's

6 (indiscernible). I think it's a mistake to try to

7 propose structural changes for what might happen.

8 It's tough enough to do to make changes and respond to

9 what's happened. If you add to that the layer of what

10 might happen, I think it would be just too much of a

11 (indiscernible).

12 That doesn't mean that your engagement and

13 your thoughtful consideration and exploration is not

14 important. Quite the contrary. I think it is

15 something that has to go on in the study that, for

16 example, Professor Meadors has conducted for so many

17 years, are awfully important, part of the literature

18 (indiscernible). And so I think yes, we talk about

19 it, yes we speculate about it but when push comes to

20 shove, right now, (indiscernible) and comes up

21 (indiscernible). 

22 VICE CHAIR COOPER: Judge Rymer?
80

1 JUDGE RYMER: Does this district have a

2 mediation program?

3 JUDGE KING: Yes. We started it about two

4 years ago and it's sort of in its infancy but it's

5 doing very well. 

6 PARTICIPANT: The (indiscernible) numbers

7 are in my prepared statement. 

8 JUDGE KING: Okay. Thanks. 

9 VICE CHAIR COOPER: All right. Well,

10 thank all three of you for being here. Anybody that

11 says we can't convene a three judge panel just wasn't

12 here today and so we appreciate you being in here.

13 And we have our next witness, Sharon Freytag. And Ms.

14 Freytag, it's so nice to have you with us today. And

15 we appreciate you taking the time to be with us.

16 MS. FREYTAG: Thank you. I do appreciate

17 the opportunity to share my comments with you but

18 before I begin with the comments, I'd like to give you

19 a brief background of my experience so you'll be able

20 to understand the perspective from which I give those

21 comments. 

22 After I graduated from law school in 1981
81

1 I was Judge Higginbotham's judicial clerk for a year

2 and a half, first in the Northern District of Texas

3 and then when he was appointed to the 5th Circuit, I

4 continued my clerkship with him there. And then after

5 that extended clerkship, I joined Haines and Boone

6 (phonetic), a law firm now of 300 attorneys. 

7 Our litigators and our appellate attorneys

8 have appeared before all of the circuit courts and the

9 United States Supreme Court several times. And we do

10 have a separate appellate section. There are 16

11 members in our appellate section and six of us are

12 partners and I'm the one to whom questions about

13 federal appeals are directed often so I think that's

14 why I'm the firm's representative here today and I am

15 pleased to be here. 

16 While I have the opportunity to talk to

17 you today, I am going to focus primarily on the second

18 question that you posed to each one of your witnesses.

19 The question is what measures should be adopted by

20 Congress or the courts to ameliorate or overcome

21 perceived problems in the Federal System or any of its

22 circuits. And as my brief description indicates, I
82

1 will address the issues from the point of view of a

2 practicing appellate attorney. I do that 100 percent

3 of my time.

4 I would like to address three issues. The

5 first is the proliferation of local rules among the

6 eleven circuits. The second is what's available on

7 the web sites for each one of the circuits. And the

8 last is a possible suggestion for equalizing the

9 workload among the judges in the eleven circuits. 

10 The first problem that I identified is the

11 proliferation of local rules among the eleven

12 circuits, to the extent that it makes appellate

13 practice from the practicing attorney's point of view,

14 extraordinarily expensive and extraordinarily

15 complicated. In fact, I would propose that the

16 Commission consider recommending that we recognize

17 that the Federal Rules of Appellate Procedure are the

18 national guidelines for appellate practice in the

19 United States, and that the various circuits should be

20 very careful about promulgating rules that make

21 appellate practice much more onerous. 

22 In 1994 I was privileged to chair an ABA
83

1 subcommittee of the section of litigation that studied

2 the local rules among the eleven circuits. Our report

3 then became the adopted report of the section of

4 litigation that was provided to the Judicial

5 Conference when they were considering amending the

6 Federal Rules of Appellate Procedure. And what our

7 report concluded after a year-long study of all of the

8 circuits was that the proliferation of local rules

9 affects the ease of federal practice. It dangers the

10 uniformity of federal practice and it complicates

11 appellate practice unnecessarily.

12 After our report was submitted to the

13 Judicial Conference Federal Rule of Appellate

14 Procedure 47 was amended, the rule that applies to the

15 promulgation of local rules. But it didn't go far

16 enough, because we are still in a situation at

17 practicing attorneys where there are -- I pulled out

18 the local rules. There are -- it's like over 2,000

19 pages of different local rules among the eleven

20 circuits. We're still in that situation where we have

21 to very carefully, in order to represent our clients,

22 review in great detail and at great expense to the
84

1 client, each one of the -- some people say

2 idiosyncratic rules of the eleven circuits.

3 I'm not here to say that these local rules

4 are bad, because in many instances, they are very,

5 very good. What I'm saying is that if they're good

6 enough to be mandated, then they should be good enough

7 to be proposed to the Judicial Conference and the

8 Appellate Committee on Rules so that they do become

9 part of the Federal Rules of Civil Procedure.

10 One of the main areas of disparity among

11 the rules is the area related to appellate briefing,

12 which is what we spend a lot of our time as appellate

13 attorneys doing. In addition to the requirement that

14 are pretty detailed in FRAP 28, each of the eleven

15 circuits has increasingly more detailed requirements.

16 For example, the 8th Circuit requires that the

17 statement of issues also include the top for apposite

18 cases for that issue and the apposite constitutional

19 and statutory authorities. And that's a good idea.

20 As I said, it's not that they're not good ideas, but

21 when you go to the D.C. and the 11th Circuit, you are

22 required to place asterisks in the Table of Authority
85

1 beside those authorities that you're primarily relying

2 upon. And then when you move to the 9th Circuit, you

3 have to remember that if you want to get attorney's

4 fees for appellate fees, that you have to state

5 specifically in the brief what entitles you to the

6 fees and the underlying authority.

7 And although FRAP 32 is very particular

8 about the format of the briefing, when you go to the

9 2nd Circuit, you have to recognize that they prohibit

10 the use of proportional computer fonts, unless it's

11 identical to a typographic facing. And in the 10th

12 Circuit, they say they strongly prefer typewritten

13 briefs, and we've come a long way since typewritten

14 briefs.

15 The circuits also differ, not just on

16 matters of form and briefing, but on the propriety of

17 citation to unpublished opinions. And the reason I

18 think this difference is primarily important is

19 because it goes beyond what is a procedural variation,

20 because whether or not counsel can cite to certain

21 unpublished opinions or not, and the value of that

22 citation goes to the substance of the decision-making
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1 process.

2 The 3rd, the 8th, the 10th and the 11th

3 Circuits declare that their unpublished opinions are

4 not binding precedent but can be cited as persuasive

5 authority. The 4th and the 6th allow citation as

6 precedential value when counsel believes that the

7 unpublished opinion goes to a material issue in the

8 case and that no published opinion would serve as well

9 for the argument. And in the 5th Circuit, the local

10 rules provide that unpublished opinions issued before

11 January 1, 1996 are precedent, while opinions issued

12 after that date are not precedent, although they are

13 persuasive. 

14 As I said, the variations among the rules

15 in this particular area, I think are particularly

16 worrisome. Why? From the appellate practitioner's

17 point of view, each hour spent in having to locate,

18 digest, understand and apply the local rules is

19 expensive to my client. And because of the variety of

20 rules making them more complex, more detailed, counsel

21 necessarily, even counsel that spends 100 percent of

22 their time doing appellate practice, makes more
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1 mistakes. And as a result, it requires the staff in

2 the clerk's office to spend more time identifying

3 those errors and asking that they be corrected. 

4 I was intrigued that Judge Choplatt

5 (phonetic) on Monday made the statement to this

6 particular Commission in his comments, when he said,

7 "The pressure placed on the courts of appeals by their

8 increasing caseload might be lessened by a number of

9 measures." And one of the possible measures he said,

10 from the point of view of a judge is that local rules

11 and operating procedures and the Federal Rules of

12 Appellate Procedure should also be revisited with an

13 eye toward expediting and streamlining appeals. It

14 encouraged me to believe that it's not just from the

15 practicing attorney's point of view that the local

16 rules need to be revisited. 

17 And the problem is exacerbated by the

18 difficulty in obtaining updated local rules, because

19 at any point in time if you go to the advance sheets

20 in the Federal Reporter, you will see that a number of

21 circuits are considering amending rules at that point

22 in time. So staying up with the most recent rules is
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1 a very challenging endeavor. 

2 There are matters of uniquely local

3 concern that require local rules. But when you talk

4 about matters of local concern, it's my opinion that

5 those matters should be unique circumstances that go

6 to the physical size of the circuit, that go to the

7 geographical location, or that go to the caseload of

8 the circuit. And not to effecting the litigant and

9 the parties' responsibilities and rights, as is

10 possible by some of the variety among the local rules

11 as it now exists. 

12 Whenever the Federal Rules speak to an

13 aspect of procedure it seems to me to make sense that

14 they should be recognized as the exclusive provision

15 by which counsel should abide, and that

16 supplementation should only be allowed in those areas

17 where the Federal Rules are silent on a general

18 subject or where the Federal Rules specifically

19 contemplate the promulgation of a local rule. And

20 that's now in 22 instances, in 22 rules. It

21 contemplates that a local rule be passed. For example,

22 21D of the Federal Rules of Appellate Procedure allows
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1 local rules to set the number of copies for a petition

2 of mandamus. 

3 On the other hand, it would seem to me not

4 wise not to allow the circuits to streamline the

5 procedures available in the Federal Rules of Appellate

6 Procedure. I am quite grateful that the 5th Circuit

7 allows us to file the record excerpts as a shortened

8 form of what's required in the Federal Rules of

9 Appellate Procedure. Streamlining saves my client

10 money. 

11 In sum, what I'm saying is that Federal

12 Rule of Appellate Procedure 47 should be understood to

13 establish uniform Federal Rules of Procedure as the

14 national standard that all of the circuits abide by.

15 And that promulgation of more onerous standards should

16 be discouraged. In fact, I would propose at this

17 Judicial Conference once again, amend Rule 47 to make

18 it absolutely clear in no uncertain terms that

19 promulgation is discouraged. And as the Judicial

20 Conference has the authority in 28 U.S.C. 2071 to

21 abrogate local rules, I would encourage the Commission

22 to consider recommending that the Judicial Conference
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1 study the local rules and abrogate those that seem

2 unnecessarily burdensome. 

3 Finally, it would seem to me that it might

4 even be possible that the Rules Enabling Act should be

5 amended to transform the Judicial Conference's

6 negative veto power over local rules into an

7 affirmative power of approval so that they would have

8 in essence pre-clearance power over the local rules.

9 The second issue I would like to address

10 is I'd like for the Commission to consider

11 recommending the implementation of web sites for each

12 of the eleven circuits that require the same

13 information. Each of the eleven circuits has a web

14 site. And most give access to their opinions back

15 through at least 1994. And they give the capacity to

16 search those opinions by key word and by party. But

17 the 5th Circuit gives us a lot more. 

18 In fact, they have just updated their web

19 site and as an exhibit to my statement, Exhibit A,

20 I've provided for your review, copies, hard copies, of

21 the pages of the web site that are available on the

22 5th Circuit and if you'll look at that, you'll notice
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1 that what the 5th Circuit gives to practicing

2 attorneys are new opinions released twice a day, an

3 archive of published opinions that goes back through

4 1991, a full text index that I can get on and use key

5 words to search through all of those opinions back

6 through 1991, the ability to view docket sheets on a

7 daily basis and to monitor cases without having to

8 call the clerk's office. It's an, it would seem to

9 me, an amazing amount of time saved from the clerk's

10 staff point of view because of the fact that we don't

11 have to call them to ask what's happening. We can

12 just simply get on line and see what's happening

13 through the docket sheet. 

14 PROFESSOR MEADOR: -- used to getting

15 interrupted so I'm just going to go ahead and ask a

16 question. 

17 MS. FREYTAG: Absolutely.

18 PROFESSOR MEADOR: All right. Does the

19 5th Circuit maintain on line unpublished as well as

20 published dispositions?

21 MS. FREYTAG: No. In fact, I tried

22 yesterday to get an unpublished opinion and I couldn't
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1 find it on line. 

2 PROFESSOR MEADOR: So there is no

3 practical way that unpublished dispositions are widely

4 available?

5 MS. FREYTAG: I can find it on Lexus or

6 West Law but not on the 5th Circuit web site. 

7 PROFESSOR MEADOR: Okay. But you can get

8 it off of Lexus or West Law?

9 MS. FREYTAG: Yes. 

10 PROFESSOR MEADOR: All right. It's kind

11 of bandied about but there is a lot of inconsistency

12 in the law, at least some circuits, that is buried in

13 unpublished dispositions. Do you find that to be a

14 practical problem in the circuits in which you

15 practice?

16 MS. FREYTAG: More than an inconsistency

17 among the unpublished and published opinions, I'm

18 finding in my practice that there are unpublished

19 opinions in the 5th Circuit that do speak to an issue

20 that none of the published opinions do speak to. And

21 in order to do the creative advocacy that I need to

22 do, it's helpful to have that as analysis, even though
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1 I might not be able to cite it as precedent. But

2 that's why I was suggesting some uniformity on whether

3 or not I could cite it as precedent would be helpful,

4 because I do find that there are issues addressed and

5 decided in unpublished opinions that are not decided

6 in published opinions. I haven't seen as much

7 conflict. 

8 I'm excited about the 5th Circuit web

9 page, as you can tell, because although I'm a novice

10 computer user, it is exciting to me to be able to have

11 this easy access and if you'll notice, the 5th Circuit

12 web site has the local rules. So while I was

13 suggesting that they're hard to get hold of in a lot

14 of circuits, I can get them in the 5th Circuit by

15 having access to the web page. And as long as we're

16 going to have that disparity in local rules, it would

17 seem to me to make a lot of sense to recommend to the

18 circuits that they make this kind of thing available

19 to practicing attorneys. As I said, it not only saves

20 me time but I would think it would save the clerk's

21 office time as well. 

22 The final suggestion that I would like to
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1 make is that the Commission should consider, if only

2 in the interim, recommending the transfer of circuit

3 judges among the circuits to equalize the workload.

4 The statutory authority exists in 28 U.S. C. 291 and

5 331 for temporary assignment of circuit judges to the

6 circuits where the need most exists. And if there is

7 genuinely a problem about which I'm sure others know

8 a lot more than I, but if there is genuinely a problem

9 in the inequality of the workload among the circuits,

10 it would seem to me that this transfer of authority

11 already statutorily allowed would help to equalize

12 that workload. And it also seems to me that Congress

13 contemplated that kind of annual review, annual

14 consideration, and annual reassignment of judges. 

15 PROFESSOR MEADOR: Do you not think that

16 the use of out of circuit visiting judges has an

17 effect on the stability or predictability or coherence

18 of the law at circuit? That's a problem?

19 MS. FREYTAG: I think that if you have a

20 visiting judge from the 9th Circuit, for example, sit

21 in the 5th Circuit or vice-versa -- I think that it

22 would require the examination necessary to say do we
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1 do this just in federal question cases, because then

2 you would not be impacting the state -- the

3 interpretation of state law. And I do not pretend to

4 have the nuances for the way it was contemplated to be

5 done, but it seems to me that it's possible to have a

6 workable plan, to at least temporarily try assigning

7 judges, as you assign district judges as visiting

8 judges on the appellate court -- sometimes from out of

9 the jurisdiction.

10 PROFESSOR MEADOR: Well, may I -- the

11 question then is there is a lot of that already going

12 on. I'm not quite sure what it is you're suggesting

13 that isn't now happening. The very high percentage of

14 uses of visiting judges in many circuits now. 

15 MS. FREYTAG: Of circuit judge being

16 reassigned to other circuits?

17 PROFESSOR MEADOR: You mean reassigned

18 permanently?

19 MS. FREYTAG: No, temporarily. 

20 PROFESSOR MEADOR: Just a visiting judge.

21 MS. FREYTAG: As a visiting judge. 

22 PROFESSOR MEADOR: There is a great deal
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1 of that going on. That's why I'm --

2 MS. FREYTAG: -- explain that the idea

3 came to me through a -- I won't own the responsibility

4 for the idea nor take credit for it because the idea

5 of using the statutory authority to transfer judges is

6 an idea that came in a conversation with former Chief

7 Judge Clark (phonetic) who was the Chief Judge of the

8 5th Circuit for a number of years and still believes

9 that while there may be some assignments and

10 reassignments being done, that there is not enough in

11 order to equalize the workload. 

12 Although this isn't really in the

13 parameters of what I had thought I would say today,

14 when Chairman Cooper today said that you had a large

15 mandate to assess the appellate practice, I thought

16 I'd just add one thing that makes appellate practice

17 more complicated for appellate attorneys. When I am

18 contacted the day a judgment is signed to become

19 appellate counsel for a client, it is very challenging

20 and sometimes nearly impossible to file within ten

21 days a motion for a new trial and a motion for

22 judgment as a matter of law because in that ten days
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1 time to digest the record, to study it, to identify

2 the issues, even with the assistance of able trial

3 counsel, is very challenging. So if you have any

4 ability to make a recommendation that the time be

5 stretched from ten to 30 days, it would help

6 immensely. 

7 And I'd like to address finally, very

8 briefly, the question that you ask what is working

9 well in the Federal System, because I would like to

10 give accolades to the 5th Circuit and the 5th

11 Circuit's clerk's office. We do primarily business

12 litigation and appellate practice in our firm and the

13 consensus among all of the partners that I spoke to

14 from whom I collected the collective wisdom, is that

15 we are very encouraged by the fact that our 5th

16 Circuit judges are very willing to get into a

17 complicated record, to study it, and to evaluate it so

18 that we feel we've gotten serious appellate review.

19 And we're also very impressed by the fact that they

20 take the issue of attorney/client privilege very

21 seriously. So when that privilege is challenged, they

22 look at the issue very seriously.
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1 And I am personally very impressed with

2 the clerk's office. They are responsive. The staff

3 is well informed, intelligent and that makes my life

4 on a day-to-day basis a lot easier. 

5 Thank you very much for the opportunity to

6 share my thoughts with you. 

7 VICE CHAIR COOPER: Any more questions?

8 PROFESSOR MEADOR: You say -- did I

9 understand you to say that the lawyers in your office

10 have appeared in all the Federal Circuits?

11 MS. FREYTAG: That's correct. 

12 PROFESSOR MEADOR: But you, yourself, how

13 many have you yourself appeared in?

14 MS. FREYTAG: I have not appeared. I've

15 only appeared in three separate circuits. 

16 PROFESSOR MEADOR: Do you have any

17 observations about the differences among those

18 circuits, any impressions of how they function, are

19 there some problems in some and not in others, some of

20 them?

21 MS. FREYTAG: Only to say that perhaps

22 because of my familiarity with my home circuit, I find
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1 it easier to work with the clerk's office here than I

2 do in the other two, the 9th and the 10th, where I was

3 but I only had one case in the 9th Circuit so I can't

4 really speak with a great lot of experience there. 

5 VICE CHAIR COOPER: Thank you so much. We

6 appreciate you taking the time and giving some

7 thoughtful incite. 

8 That will adjourn the hearing for the

9 morning and I appreciate everyone being here in

10 attendance. The hearing is adjourned.

11 (Whereupon, the hearing was adjourned.)

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