My name is Sharon Freytag. To explain my perspective, I will begin with a brief description of my experience. After I graduated from law school in 1981, I was Judge Patrick Higginbotham's judicial clerk in the Northern District of Texas. I continued clerking with him when he was appointed to the Fifth Circuit Court of Appeals. After that extended clerkship, I joined the law firm of Haynes and Boone in 1983. Haynes and Boone has offices in 5 cities in Texas, in Washington D.C. and in Mexico City. We have 300 attorneys. Our litigators and appellate attorneys have appeared before every circuit court and the U.S. Supreme Court numerous times.

Haynes and Boone has a separate appellate section with 16 members, 6 of whom are partners. I am the partner to whom the questions concerning federal appeals are often directed, and I am pleased to be my firm's representative here today. I have gathered the collective wisdom of several of my partners on the questions asked by this Commission, but the responsibility for the opinions I am about to share is mine. During the time I have this morning, I will focus primarily on the second question the Commission posed to witnesses and comment briefly on the third.

II. What measures should be adopted by Congress or the courts to ameliorate or overcome perceived problems in the federal appellate system or any of its circuits?

I would like to address two issues from the point of view of the practicing appellate attorney.

A. The proliferation of local rules among the circuits makes appellate practice more complicated and more expensive.

The Commission should recommend that the Federal Rules of Appellate Procedure be followed as the uniform national guidelines for practice in the courts of appeals. The Judicial Conference and the individual circuits should discourage local rules that make appellate practice more onerous. Or Congress should intervene.

In 1994, I chaired an ABA Subcommittee that had the opportunity to study the impact of local rules on the quality of appellate justice. Our report was adopted by the Section of Litigation for submission as public comment to the United States Judicial Conference on proposed amendments to the Federal Rules of Appellate Procedure ("FRAP"). The report concluded that the proliferation of local rules has impaired the uniformity of federal appellate procedure and unnecessarily complicated appellate practice. While FRAP 47 concerning local rules was amended in 1995, it does not prevent circuits from imposing and enforcing technical and burdensome requirements, so the situation my subcommittee found in 1994 still exists today.⁽¹⁾

Each circuit promulgates its own local rules rather than taking suggestions for procedural reform directly to the Judicial Conference's Advisory Committee on Appellate Rules for proposed incorporation in the FRAP. As a result, local variations, often on minor points of briefing or motion practice, raise unnecessary technical obstacles to the efficiency of appeals.

One of the main areas of disparity among the circuits is the preparation of an appellate brief. In addition to the detailed requirements set forth in FRAP 28 on briefing, most circuits have other detailed requirements. The Eighth Circuit requires that the statement of issues also include a list of up to four of the most apposite cases and the most apposite constitutional and statutory provisions relied upon by counsel. The D.C. and Eleventh Circuits require that asterisks be placed in the table of authorities next to those authorities that are primarily relied upon. The Ninth Circuit requires that any party who intends to seek attorney's fees for the appeal include in the brief a short statement identifying the authority under which the attorneys fees will be sought.

Although FRAP 32 provides the rule for the form of the brief, each circuit's application differs. The Second Circuit specifically prohibits the use of proportional computer fonts unless the result is visually identical to standard typographic printing. The Tenth Circuit prefers typewritten briefs.

The Circuits also differ on the propriety of citation to unpublished opinions. The Third, Eighth, Tenth, and Eleventh Circuits declare that their unpublished opinions are not binding precedent but authorize citation of these decisions for their persuasive value. The Fourth and Sixth Circuits allow citation when counsel believes that the unpublished opinion has precedential value in relation to a material issue in a case and there is no published opinion that would serve as well. The Fifth Circuit has decided that unpublished opinions issued before January 1, 1996 are precedent while opinions issued after that date are not. The variations in this area among the circuits affect not only procedure but substance, impacting decisions on the merits of the case.

Many of the local rules incorporate worthwhile procedures, but the issue is not that any of these procedures is bad or good; the issue is that the federal courts of appeals were created as a unitary system and these disparate procedures are far from uniform. Each hour of attorney time added by the need to discover, understand, and comply with idiosyncratic local rules inflates the expense of an appeal. Moreover, when the rules to be followed for such basic tasks as preparing a brief are excessively varied, complex, and detailed, the inevitable result is that more mistakes are made by counsel. In turn, more time is required by the court's staff in identifying and requiring correction of errors.

The problem is exacerbated by the difficulty in obtaining updated information concerning each circuit's local rules. A cursory review of the advance sheets of the Federal Reporter shows that, at nearly any point in time, some circuit is considering yet another wave of changes in local rules.

There are matters of genuinely local concern that properly may be subject to regulation by local circuit rules. However, "local concern" should be understood narrowly to mean unique circumstances that arise because of the physical size, geographical location, or caseload of the court, not a different philosophical attitude held by the judges in a circuit about adjudication or litigation. To the extent that a procedural issue implicates a value judgment about the rights and responsibilities of litigants and their counsel, the matter should be governed by a uniform federal rule. Individual circuits should not be permitted to add to the burdens upon counsel, as when they dictate additional elements that must be included in a brief. Such directives do not legitimately reflect genuinely local concerns and instead complicate appellate practice with additional technicalities. If the rule is important enough to be mandated, it is important enough to be part of the Federal Rules of Appellate Procedure.

Whenever the federal rules speak to an aspect of procedure, they should be recognized as the exclusive provision governing that point. Supplementation should be allowed only in those areas where the federal rules are silent on a general subject or expressly contemplate elaboration through local rules. (There are now 22 federal rules that contemplate local rules. For example, rule 21(d) allows local rules to set the number of copies for the petition for writ of mandamus.)

On the other hand, individual circuits should not be precluded from simplifying or streamlining the appellate process, provided that compliance with the national standard is not penalized. Regardless of the local rules, compliance with the FRAP should always satisfy a party's obligation to the court. However, if a circuit, by local rule, has adopted a streamlined or simplified procedure, a party's adherence to that procedure should also satisfy a party's obligation to the court (such as the simplified record excerpt procedure allowed by the Fifth Circuit).

In sum, Federal Rule of Appellate Procedure 47 should be understood to establish uniform Federal Rules of Appellate Procedure as the national standard that precludes courts from adopting requirements that are more onerous than allowed by the Federal Rules. Yet, the circuits should be allowed to modify the national rules to simplify or streamline practice in the circuit, so long as compliance with the national standard is not penalized.

The Judicial Conference, which represents the federal judiciary from across the nation and from each of the thirteen federal appellate circuits, should amend Rule 47 to state in no uncertain terms that local promulgation to set additional requirements is barred. Also, as the Judicial Conference has the power to abrogate local rules,⁽²⁾ it should exercise this power to reduce the number of local rules.

Finally, the Rules Enabling Act should be amended to transform the Judicial Conference's negative veto power into an affirmative power of approval. The Conference would thus have preclearance powers over any proposed local rule.

B. The Commission should consider the implementation of web sites on the Internet with required information for each circuit.

All of the courts of appeals have a web site. Most give access to decisions back to at least 1994 and the capacity to search the decisions by key word or party's name. The Fifth Circuit's site at www.ca5.uscourts.gov/ provides more information and is a good example of the communication possible to keep attorneys and parties informed. I have provided copies of some of the information available on the web site for your review. See Exhibit A. The Fifth Circuit is the only circuit that has local rules on site. As long as there are hundreds and hundreds of local rules, attorneys should have easy access. The Fifth Circuit site also has docket sheets so attorneys can monitor the cases for which we are responsible. If all circuits had such information, the clerk's office would have fewer calls from attorneys and staff consultation time would be cut considerably.

Even beyond what the Fifth Circuit provides, each web site could include the names of the panel once a case is assigned to oral argument, links to the opinions of those panel members, and biographies of the judges. The possibilities are as endless as the imagination, but at least the basics provided by the Fifth Circuit web site should be required of each circuit.

C. The Commission should consider recommending transfer of circuit judges among the circuits to equalize the workload.

The statutory authority exists in 28 U.S.C §291 and §331 for assignment of circuit judges to the circuits where the most need exists. The transfer of judges would more nearly equalize the workload among the circuits, and it seems Congress contemplated an annual adjustment, an annual reassignment of circuit judges.

II. What is working well in the federal system?

We who practice in the Fifth Circuit are encouraged by the obvious willingness of the judges to review the records in complex business litigation to give the appeal a serious review. We are also impressed by the fact that the judges take the issue of attorney-client privilege very seriously and will give cases in which it is challenged in-depth consideration.

I personally am impressed with the clerk's office in the Fifth Circuit. It is very responsive; its staff is very well-informed and very congenial. Access to receptive, intelligent staff makes day to day appellate practice much easier.

2. 28 U.S.C. §2071(b) provides that any rule prescribed by a court other than the Supreme Court shall remain in effect unless modified or abrogated by the Judicial Conference.