COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS
Witness Statement
Charles E. Carpenter, Jr.
Appellate Lawyer
Richardson, Plowden, Carpenter
& Robinson, P.A.
1600 Marion Street
P.O. Drawer 7788
Columbia, South Carolina 29202
Telephone: (803) 771-4400
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To end disputes between citizens and express consistent law in a way that does substantial justice and legitimizes the judicial branch of government, the next response to the crisis of volume in the appellate courts should be more justice blended into less administration. The greatest need is for more good judges and the structure this addition would require which is probably more circuits or divisions within circuits. A greater volume of appellate justice may not be a bad thing. The structural, personnel and procedural responses since the 1960's have already gone too far in holding back the supply of justice needed to meet the increase in demand.
The purpose of appellate courts has not changed. The burden on appellate courts has changed dramatically. The ability of courts to serve their purpose and to serve the citizens who employ them has not kept pace with the increases in demand.
Stressed trial courts, stressed lawyers, rocket dockets and the like generate more appeals and should. New legislation, new causes of action, more educated citizens and more prosperity generate more appeals and should. Enhanced rights of criminal defendants generate more appeals. Other factors have also increased demands. Courts, like schools, have more burdens shifted upon them from eroding families, eroding churches, transitory communities, heterogeneous people, technology and urbanization. More citizens are more confrontational. We see this in sports, the streets, the classroom and the appellate courts. Excellence in the administration of justice is difficult to achieve.
Our responses since the 1960's have been several-fold but primarily in the realm of administrative changes. One response has been additional layers of courts. Another has been to add more law clerks and radically convert their functions. Another response has been to add central staff attorneys. Another response has been to add conference attorneys to mediate appeals. Other responses have included truncating the work of the judges. Oral arguments are endangered. Written opinions are greatly reduced. Conferences of judges have diminished.
We can continue this emphasis on rationing and efficiency but we must avoid the reality or the image of HMO's and McDonald's. We see danger so we say no more than two law clerks per judge, no more staff attorneys than judges, no more than one-half of the cases by expedited process. We want a discount house for the cheap stuff and a premier purveyor of fine goods when appropriate. We spend a great deal of resources on screening and management to bring this about. We might do a better job for the citizens who bring cases before us if we use the same resources to have a good quality department store for everyone.
We were taught that in an appeal each judge would read the briefs with care and discrimination. We thought they would read the record to the extent necessary to understand the case and validate significant facts. We were told they would hear oral argument and listen attentively to what clients paid dearly to have their lawyers say. We heard that these lawyers who have lived with the case might be useful providers of some of the implements of decision. We expect independent consideration and then serious and meaningful conference and collaboration with colleagues. We expect independent research if it is necessary. We were told that a judge would then write an opinion or study and contribute to the opinion written by a colleague. In short, a judge would take full advantage of the adversarial process, decide the case, and then publicly explain the reasons.
The judges who would perform these tasks would be interested, impartial legal scholars who could think for themselves, act within a collegial court and work well in the relative loneliness of appellate chambers. These judges would be well known to the bar. They would not be anonymous and they would not be auxiliary civil servants. They would possess much of the experience which Holmes described as the life of the law. They would bring great wisdom and sufficient common sense to the task of deciding appeals.
If this is a reasonable model, how do the facts which stare back at us conform to the model? To begin with, even within the model, appellate courts are institutions which are not often seen by lawyers or citizens. They are housed in impressive buildings designed to legitimize the judicial process but the judges, the lawyers, and the litigants are not in the courtroom very much of the time. Most of the work is done where the consumers of justice do not see it take place. There is very little direct contact with the litigants. The courtroom stands empty and silent like a nave most of the time and like a nave is the setting for dignified and meaningful proceedings but ones which are only available as brief and fleeting respites from the otherwise frenetic pace of the life of the law.
The primary contact that most citizens have with the appellate court is through their representative, their lawyer. The citizen's lawyer, they believe, prepares a brief for the members of the court to read and delivers an argument on the citizen's behalf setting forth what counsel selects as important input in an adversarial system. Wise and experienced judges then ponder, confer, decide, and explain the decision. It is not happening. Internal operating procedures now carve deep chasms in oral argument, written opinions, and conferences of judges. Briefs are delivered to law clerks and staff attorneys who are often too young to have rich and full life experiences, do not know trial practice, appellate practice, or the body of law of the jurisdiction and, while extremely bright, have not yet had the opportunity to develop the kind of wisdom and practical experience that a citizen expects in a high judicial office. These law clerks or staff attorneys filter the case, recommend the answer, and draft the opinion.
There is much spirited but unpersuasive argument that they remain law clerks or staff attorneys and do not become assistant judges or controlling bureaucracies but consumers of justice do not believe it. The only sure and certain method by which a client and a lawyer have any idea that a real judge has heard advocacy on their behalf is through the oral argument the most endangered of the available procedures. Even when oral argument is granted, it is often conducted after tentative decisions have already been made (a practice which the judiciary rightfully forbids anyone else to do). The time is usually very abbreviated. The method is often inquisitorial and increasingly used as a technique to lobby for a position already predetermined. That decision making can benefit from reflective listening to the independent thoughts of the advocate the client has paid to devote long hours to the case seems a discarded idea. Without oral argument, and with layers of screening and legions of staff attorneys and law clerks, the consumers of justice are led to believe that their carefully prepared, dearly paid for brief setting forth their cause is mailed off to a great black box staffed by bright, young interns who figure out what to do and submit the solution to senior management for approval.
The client has invested much expense, time, and effort into the case. When told that the court is so busy and the cost of judge time is so high that the court cannot afford to make judges available to the citizen to hear their representatives argue their case, the client's response is: "I am sorry to hear that the court is in such desperate financial straits that it cannot afford 30 minutes of time so that my attorney can come present my case in person. My lawyer says that a half hour in the office arguing a case out with a partner saves time and brings clarity to the case more quickly. But, you seem to disagree. If you will please tell me what your billable rates are, I will be glad to reimburse the Court of Appeals for one-half hour of time for each of three judges in exchange for their courtesy in hearing my cause. I have expended far more than that on more mundane aspects of the case and will be glad to bear that expense. It is important to me to know that I have at least had this one-half hour of your personal attention. It is important that it be face to face. I know there may be some exceptions to this. I certainly don't mind if you invite me to waive it in a given case, but I would really like to preserve the opportunity.
"If I cannot even have that one-half hour, then I really wonder what you did with my brief and with the record. To whom is my lawyer writing the brief? It matters. If the primary audience is you and an experienced panel of judges, the brief should be written one way. If the primary audience is young lawyers unversed in trial or appellate practice and with little knowledge of the law or experience in adult life, the brief should be written another way. I would really like for you to personally handle my case and not delegate it to one of your bright young associates. I will be glad for them to hear one of my cases in a few years. They seem to have great promise and I like them a lot. But, I would like for you to hear my case, please."
The classic symptoms of the need for more judges have been identified as the denial or abbreviation of oral argument, reducing conferencing time and reducing deliberation time, adding law clerks and central staff attorneys, and reducing the amount of explanation of the reasons for decisions.
There are certainly legitimate concerns about adding more judges. The primary ones are said to be cost, cheapening, collegiality, and coherence. Certainly there will be added costs. But if adding judges is combined with reducing administration, then some of the increase in cost can be offset. If staff attorneys and multiple law clerks and all of the associated costs of housing and feeding and managing and supervising them is traded for a proportionate additional number of judges with one law clerk each, much of the cost could be offset and the quality and quantity of justice could be improved. Cheapening, collegiality, and coherence are more at risk by further delegation and truncating than by adding judges.
These added judges, unlike staff attorneys and law clerks, would be identifiable, personally responsible, experienced judges. They might have to do with fewer bench memoranda or staff memos but perhaps that is not all bad. A staff memo is sometimes described as a method for giving an accurate background "uncolored by advocacy." That may not be all good. It may trade the benefits of an adversarial system deployed by experienced lawyers for an inquisitorial system deployed by inexperienced lawyers. Bench memoranda often have as contents:
1. Description of procedural history and posture of the case;
2. Statement of the issues;
3. Summary of facts necessary for a decision;
4. Summary of arguments.
Each of these functions is redundant and can be found in the front of the briefs of the parties. Some of the remaining functions of the bench memoranda include:
5. The staff attorney's or law clerk's own analysis of the law or facts;
6. Their own recommendations of disposition;
7. A draft memorandum decision;
8. A recommendation on oral argument.
These four functions are undesirable and inappropriate. They preempt the role of the lawyers and the judge. They are carried out by those who have not been chosen for the office and who do not have the qualifications for the office.
The last function of the bench memoranda is:
9. Suggestion of issues to be discussed at oral argument.
This is a perfectly appropriate and useful function for a law clerk or staff attorney to provide to the judge. More of these functions may be appropriate in cases filed by pro se litigants who truly cannot provide the court with a coherent presentation.
However, it is an inappropriate filtering of advocacy and an inappropriate delegation of judicial responsibility to have a pre-hearing attorney recast the facts, recast the questions presented, recast the arguments of counsel, recommend a disposition, and draft an opinion.
We need more judges and we need more judge time. Staff delegation is not consistent with the constitutional concept of the judicial branch of government. It does not produce good error correction. It does not produce good law enunciation. It does not legitimize the institution. We often get more oral argument time on a motion to clear up pleadings or compel discovery than for an appellate case.
It is helpful to screen pro se cases. It is helpful to have conference attorneys to mediate appeals. It is helpful for each judge to have one law clerk. But, we need more judges. If increasing the number of judges brings about a bench that is too heavily populated for a given jurisdiction, then the attendant problems of that unwieldiness should be solved by creating more circuits or divisions within circuits. The responsible limits of delegating functions and eliminating functions have been reached and sometimes exceeded. If it is worth having an appeal, and it is, it is worth doing it right. There is only so much that can be substituted for having wise, experienced, interested, scholarly judges carefully read the briefs, familiarize themselves with the facts, listen to arguments from those who have lived with the case more than anyone else, ponder alone, deliberate together, decide the case, and explain their reasons. We need more.
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