Ladies and gentleman:

I appear today on behalf of the Chicago Council of Lawyers, a public interest bar association with approximately 1,200 members, established in 1969. Many of our members have extensive federal appellate experience, much of it in the Seventh Circuit, and today I would like to discuss the Council's vision as both purchasers and consumers of the services of the federal appellate courts.

Lawyers are "consumers" of appellate services in at least two senses. As appellate attorneys we obtain decisions for our clients through participation as both appellants and appellees, and as advisers we transmit and interpret the court's decisions to our clients. From this prospective, in 1994 the Council conducted what it believes is the first-ever evaluation of a federal appellate court, reviewing in that year the Seventh Circuit. The evaluation, subsequently published in 43 DePaul Law Review, was in three parts. The survey reviewed the performance of each of the sitting judges of the Seventh Circuit, using procedures that the Council had developed over the years in three assessments of the sitting judges of the Northern District of Illinois. Another section of the study, based on the Council's years of evaluating candidates for federal judicial positions, recommended qualifications -- such as substantial experience in preparing, litigating and trying civil cases, an understanding of the practicalities of trial and appellate practice, intellectual capacity, and increased racial and gender diversity -- which it believed candidates for federal appellate positions should have.

The third part of our evaluation is, we believe, of most immediate interest to this panel. There, the Council critiqued a number of the decisional and procedural practices of the Seventh Circuit. For example, the Council noted the problem of deciding unbriefed issues, with a suggested procedure for the court to alert litigants about such matters before oral argument. The Council also criticized the court for what it felt was an unreasonably stringent use of page limitations, the perception that presiding judges assign cases on the basis of apparent expertise, thereby allowing certain judges to dominate the development of the law in particular areas, and specific criticism of some aspects of oral argument practice in the court.

The Council has no way of gauging the effect, if any, of its survey on the court. It believes, however, that a court can only profit from such scrutiny, and that the other federal courts of appeals would gain from similar appraisals of their decisional and procedural practices. While it would be desirable for bar associations to undertake this work, as far as the Council is aware none has in the four years since the Council published its analysis. The Council believes, however, that a conscientious self-appraisal can bring to a court's attention many of the problems that the Council identified in its survey. As its first recommendation, the Council urges this Commission to develop, possibly with the assistance of the Federal Judicial Center, a self-appraisal process for the courts of appeals, in which they are asked to appraise themselves (with input from local bar groups).

As noted, besides obtaining decisions from appellate courts attorneys also "consume" legal services as we read and digest decisions to aid in advising our clients and in shaping our presentations in the courts. To assist us, there are a number of services that digest important decisions. These range from general publications like Law Week to specialized journals in almost every field. Lawyers rely on these services for two reasons. First, we lack the time to read all reported opinions ourselves, and in any event prefer to rely on specialists who keep on top of emerging issues and so can select "key" decisions.

Unfortunately, a number of circuits have taken it upon themselves to decide which disputes are worthy of full consideration. This occurs principally through the practice of relegating a number of cases to second class status, by giving them summary consideration and then resolving them through unpublished opinions. The difficulty here is whether the court is in a position to determine which disputes in fact will be of interest to the public.

In contrast, the practice of the Seventh Circuit is instructive. The court permits oral argument in about three-quarters of private civil cases, thereby allowing the attorney to argue directly to the court any general importance of his or her case. In contrast, a number of circuits, notably the Third, Tenth, and District of Columbia, grant oral argument in fewer than half of their private civil cases. Also, a number of Circuits dispose of very substantial numbers of cases in unpublished and uncitable opinions. As its second recommendation, the Council as "consumers" of legal products urges this Commission to study, or ask the Federal Judicial Center to study, whether the cases subject to summary disposition are in fact of general interest, and whether the courts need guidance as to any systematic, albeit innocent, biases in their summary disposition selection. This study for example could look at what kinds of cases in fact are selected by specialized publications for review and comment, and make this information available to the courts of appeals to assist their summary disposition determinations.

In addition to their role as consumers of legal services, appellate lawyers are also "purchasers" of these services when on our client's behalf we initiate appeals in the federal appellate system. A chronic complaint of circuit judges is that far too many appeals are taken. Or rather, that too many appeals are taken that knowledgeable lawyers should be able to predict with a high degree of certainty will not succeed. The cost to the courts, from what we hear, is that too much of their efforts are spent on cases in which the issues do not justify the time required for resolution. The result is a series of measures which lawyers hate: unpublished opinions, decisions without oral argument and the like.

From an attorney's point of view, what steps can the federal appellate courts take so that appellate services will be purchased only when the work of the appellate court satisfies a real need? We have two suggestions. The first is persuading more appellate attorneys to take the opportunity for pre-appellate mediation seriously, and the second to better publicize likely outcomes.

Mediation of appeals is one of the great unheralded success stories of appellate court management. For example, since November, 1994 the Seventh Circuit has had a full-time, experienced staff mediator. The results are spectacular: overall, of the 374 cases conferenced in its first two years of operations, 44% were settled at mediation, with those conferenced on request settling at a somewhat higher rate (53%) than those selected at random (42%). This is in contrast to a rate of approximately 27% for voluntary dismissals by appellants in non-mediated cases.

The Seventh Circuit's program is of course not unique. According to a recent publication of the Federal Judicial Center, "Mediation and Conference Programs in the Federal Courts of Appeals" (1997), every circuit has a mediation program, and so similar success rates can be expected elsewhere. But do appellate attorneys know about these successes? The Council submits that they do not, and it is the fault of the courts. The "Mediation and Conference" booklet records that each circuit keeps records of mediation outcomes, but reports that in every circuit they currently are apparently only for internal use. Indeed, "Mediation and Conference" itself has no statistics, even though its publication was a golden opportunity to publicize the successful outcomes.

Why is it important that the figures be publicized? Mediation is not a magic process. Like everything else a lawyer does, the more preparation the greater chance for success. A lawyer aware there is a substantial chance of resolution at the mediation stage will more diligently prepare his or her client for the possibility of resolution, and with appropriate authority will devote him or herself to the process. The Council believes that in contrast, many, perhaps most, lawyers look at mediation as just another step in the appeal process. To counter this, our third recommendation is that mediation outcomes be meaningfully publicized. By this, we mean not only the number of resolutions but also resolution by types of cases (perhaps in the categories used by the Administrative Office in its annual statistical reports such as Table B-7, where it reports private non-prisoner civil case filings by some 26 categories).

The Council's fourth recommendation follows the third. Although sometimes appeals are taken for non-outcome related reasons -- for example, to ease the precedential effect of a district court decision -- in general appeals are taken to obtain a reversal. To the extent that an attorney can advise his or her client on the likely outcome of the appeal, appeals with a low chance of success will be discouraged and the misallocation of the court's efforts alleviated. Available statistics indicate that while overall an appellant, at least in private civil actions, has little chance for success the success rate varies considerably by kind of case and identify of appellant (plaintiff or defendant below). For example, the Administrative Office reports a remarkably consistent overall reversal rate in private civil actions for the Seventh Circuit for the years ending March, 1994 through March 1997 of between 15.7% and 18.1%. However, a recent study of outcomes in some 271 employment discrimination appeals during this same period found a reversal rate of approximately 23%. See 1 Employee Rights & Employment Policy Journal 71 (1998).

Parties of course assess their chances on appeal in part on the basis of the kind of case and whether they were plaintiff or defendant below. Unfortunately, the only figures published by the Administrative Office of which we are aware are inadequate in two respects. First (in its Table B-5) it does not break down non-prisoner private civil cases by case type (although such a breakdown is provided in its reports on the number of appeals taken, Table B-7). Second, even in its omnibus B-5 report it does not report on outcome by identify of the appellant, but only for all appellants. To aid lawyers making recommendations on whether to appeal and in shaping their client's position at mediation, the Council urges that the appellate outcome statistics be reported by case type and identity of appellant.

To summarize, the Council has four recommendations:

1. That the courts of appeals, with input from local bar groups, conduct self-appraisals of their decisional and procedural practices according to a uniform methodology to be developed by the Commission or the Federal Judicial Center.

2. That the results of each circuit's mediation efforts be publicized in terms of success rate by category of civil case.

3. That each circuit's affirmance/reversal rate be publicized, by category of civil case and identify of plaintiff or defendant as appellant.

4. That a study be conducted and published, either by this Commission or the Federal Judicial Center, on whether cases subjected to summary disposition are of general interest and whether there are any systematic biases in category of case or identify of appellant selected for such disposition.

We hope these suggestions from practitioners will assist the Commission in considering ways to improve the workings of the courts of appeals.

We thank you for your consideration.

Respectfully submitted on behalf of the Chicago Council of Lawyers by Thomas R. Meites, Esq,