STATEMENT TO THE COMMISSION ON STRUCTURAL ALTERNATIVES

FOR THE FEDERAL COURTS OF APPEALS

PETER W. DAVIS
SAN FRANCISCO
MAY 29, 1998

Thank you for allowing me to address you on the important charge to this Commission on the Circuit Courts of Appeals. Although I am a member of several organizations and committees that have an interest in this issue, I speak here only on my own behalf.⁽¹⁾

An ABA subcommittee that I chaired in 1992 studied the issue of circuit size and concluded that the increasing caseload, not a limit on the number of judges on any circuit, was the major issue facing the federal Courts of Appeals. The Committee found no basis for splitting the Ninth or any other circuit.⁽²⁾ My conclusion is the same today. In fact, the statements of Chief Judge Procter Hug and many others make a compelling case against splitting the Ninth Circuit.

Rather than reiterate all of those points, I would like to add my perspective on just three issues the Commission is studying. First, the assumption that collegiality can be fostered only in smaller courts does not appear to be justified. Collegiality is a function of the attitude of the individuals in a group and can thrive in large as well as small groups. Second, the assumption that decisional inconsistency will be fostered by larger courts also appears to be unjustified. The issue of decisional inconsistency relates to who the judges are, not how many there are. Finally, the real problem confronting the circuit courts is not their structure, but their overwhelming caseload. That problem will not be solved until an adequate number of judges are provided to meet it.

1. The Fear That Collegiality Will Be Sacrificed In Large Appellate Courts Is Unfounded

Our national heritage may make us suspicious of large organizations, but that can be a handicap in today's world. When I entered the practice of law, the largest law firms consisted of about 50 lawyers; the firm I joined had only 12 lawyers in 1968. I recall in the '70s the discussions at bar meetings about how large firms could get, and many people could not envision how firms could properly function if they grew much bigger. They said that firm collegiality and cohesiveness would disappear and that a large law firm could not deliver a high level of service efficiently. Today, however, our firm has more than 200 lawyers, and none of these fears turned out to be justified. Those large law firms that are motivated to maintain collegiality can do so. Those that are well managed are also efficient and deliver a high level of client service.

The fears I heard 30 years ago sound a lot like the fears that some are expressing today about the growth of the circuit courts. And although there are some obvious differences between law firms and circuit courts, the law firm lesson is instructive: growth per se does not preclude collegiality and it may enhance efficiency. Collegiality in any large group is a little more difficult. But if the participants make it their goal, cooperative decision making can be accomplished. Indeed, collegiality should be easier to achieve in a court than in a law firm because of the absence of internal economic competition.

It is therefore not surprising that there is no indication that the Ninth Circuit lacks collegiality. In fact, all indications are to the contrary. For example, in their statements to this Commission, visiting judges like Judge Wood from the Seventh Circuit, who has sat on many Ninth Circuit panels, have noted how collegial the Court has been. Judges Aldisert, Merhige and Schwarzer -- all from different courts -- appear to agree. This has been my perspective as well, both as counsel for parties and from participating in many committee and bar activities with Ninth Circuit judges. As Judge Wood says, the Ninth Circuit judges are sensitive to the issue and try harder to make the system work. Drawing again on my law firm experience, that is exactly what is needed.

Indeed, as Professor Resnick points out in her thoughtful statement to the Commission, most circuits already sit on a regular basis with visiting judges whom they do not know well or sit with often. There is no evidence that collegiality or the decisional process suffers when these visiting judges participate on a panel. If near strangers in three judge panels can work well together now in courts of 10 to 30 judges, there is no reason they could not work together in courts with even more judges. Thus, collegial courts larger than the present size of the Ninth Circuit are also possible.

A related aspect of collegiality is how a court deals with the parties and counsel that appear before it. To be sure, increasing the size of any organization can make it less user friendly and resistant to change. Appellate courts are no exception. But the Ninth Circuit also has adapted exceptionally well to its growth. Perhaps because of its size, the Court has endeavored to be user friendly, open to improvement, and innovative. For example, the Ninth Circuit had already implemented virtually every suggestion later made by the American Academy of Appellate Lawyers on the structure and operation circuit rules advisory committees.⁽³⁾ I have served on the Ninth Circuit Advisory Rules committee under three chief judges and found that the Court is genuinely interested in examining and improving the appellate process. At one judge's suggestion, the Advisory Rules Committee instituted a series of Bench-Bar conferences to obtain feedback from lawyers, and conducted a focus group with experienced appellate lawyers who regularly practice in the Circuit. Both resulted in constructive suggestions for change, many of which the Court instituted, some within a few days. In contrast, the most bureaucratic and procedurally difficult appellate court I practice before is a small court with fewer than ten judges.

Thus, the most important factor in ensuring collegiality and responsiveness is the motivation and attitude of the clerk and judges in the court, not the size of the court. The Ninth Circuit and its personnel have the requisite motivation.

2. Decisional Inconsistency Is Not A Consequence Of Circuit Size

Whatever inconsistency exists between prior published cases of a court and cases later decided by that court -- and let's face it, they all have some -- is not necessarily related to the number of judges or the number of appeals. What judges need to know is the relevant law on the issues before them, and with today's computer capabilities, that can readily be ascertained regardless of circuit size. In the Ninth Circuit, the Court also has computerized issue-tracking, so that any judge can learn what issues are pending in cases briefed but not yet decided. Thus, any decisional inconsistency that exists cannot be based on a judge's inability to quickly ascertain prior circuit law -- or the law of other circuits --regardless of the size of the circuit. If a panel reaches a conclusion different from an earlier published decision, it is nearly always because the panel found what it felt was a defensible distinction with the prior case law or because it chose to disregard or disagree with prior case law to reach a different result. Either type of resolution can, and does, exist in any court of any size.

Professor Hellman studied the claim that the Ninth Circuit had a high number of inconsistent opinions and found no basis for that perception.⁽⁴⁾ And no other objective study has challenged his findings. Nevertheless, the Commission has heard about a perception that more decisional inconsistency exists in the Ninth Circuit than in other circuits because of its size. For example, one attorney refers to a "perception" that the Ninth Circuit has too many conflicts (it is not clear if he is referring to intra-circuit or inter-circuit conflicts) and feels that perception should be addressed. No comparison is made to anyone's perception about conflicts in other courts. More importantly, it is not apparent that a split of the Circuit would reduce such conflicts. Conflicts are created by judges, not geography.

Some highly respected judges feel that decisional consistency is inexorably linked to small courts but I practice before several state intermediate appellate courts that sit in the same assigned panels year after year, and I see at least as much decisional inconsistency there. From my observations over 25 years of practicing in many appellate courts, the judges' ability to shape and maintain a coherent body of law and provide decisional consistency is not related to size of the court. Rather, it is related to each individual judge's own commitment to those principles and to his or her views about how the law should develop in a given instance.

Of course, decisional inconsistency is often in the eye of the beholder. A principled distinction to one person may appear as an unjustified departure from settled law to another. And even through objective eyes, there is a gray area in many cases where reasonable arguments can be made on both sides of whether a distinction from prior cases is justified. Aside from the Hellman studies, the decisional inconsistency issue is viewed through such a subjective lens that the Commission should be very reticent to conclude that there is more of a problem with decisional inconsistency in the Ninth Circuit than in other circuits. And even if the Commission were to so conclude, there is no basis to find that circuit size is a cause or that splitting the Ninth Circuit is a cure.

3. The Real Problem Is The Size Of The Workload For The Number Of Circuit Judges, Not The Structure Of The Courts

It is difficult to see how the division of the Ninth Circuit in any fashion would address, much less improve, the four administration of justice goals identified by the Commission. The statements of many others to this Commission have forcefully made that point as to the splitting of the Circuit. The proposal to create administrative divisions in the Circuit suffers from the same failings. The administrative division proposal appears to be an attempt to create a compromise position that would address some of the political concerns that have been expressed without the evil of actually splitting the circuit. But it would not advance any of the determinative criteria identified by the Commission, would instead invite Congress to micro-manage the circuits, and would introduce a new and undesirable "local representation" criteria into the operation of circuit courts.

The real problem is not the structure of the circuit courts but their workload. That is the problem that should be addressed. The Commission already is familiar with the crushing burden of appeals, which will not be reduced dramatically even when all the vacancies are filled in all circuits. Professor Meador said in his 1979 book that judges could not do justice to more than 225 appeals per year.⁽⁵⁾ But the Eleventh Circuit is now deciding on the merits almost 800 appeals per judge per year.⁽⁶⁾ The average of all circuits in 1995 was 449 appeals per judge per year.⁽⁷⁾ That is almost two appeals per day per judge. Even worse, the Judicial Conference's Long Range Plan forecasts that this is just the tip of the iceberg.⁽⁸⁾

The need to keep up with an ever increasing number of cases is turning Article III judges into managers rather than hands-on decision makers. Through screening procedures parties must, in effect, petition staff in most circuits to get access to judicial attention and oral argument or even a written opinion is becoming the exception rather than the rule. This fundamental and overriding problem will not be solved by tinkering with circuit structure. In fact, doing so may exacerbate the problem since there will be less flexibility in matching judges with need, and the focus on the structural issue tends to divert attention from the pressing workload crisis.

The Ninth Circuit has been innovative in reducing the burden of judges, such as by appointing an Appellate Commissioner. The Commissioner has authority to rule on non-dispositive issues, such as attorney fee applications, which help free judicial time for deciding appeals. But even those innovations are not nearly enough. No amount of innovation will eliminate the basic problem of too many appeals for too few judges.

Congress is not going to cut back the jurisdiction of the federal courts, nor is the population of the country going to shrink. Cases will keep coming and in increasing numbers. Thus, the most important recommendation this Commission could make is to urge Congress to add more judges to the Courts of Appeals. In the end, that is the only way that the fourth criteria -- "adequate, deliberative attention of judges" to appeals -- can be achieved. And adding judges is also the best way to achieve the first criteria of "reasonably timely disposition" of appeals. Nor is the addition of judges likely to defeat either of the other two goals the Commission has identified -- decisional consistency and national uniformity.

It is time to shed nostalgia and get down to facing the need for more judges. In a world where organizations in every other context routinely have learned to be efficient and effective in very large groups, the circuit courts simply cannot take the position that they are incapable of functioning in three judge panels drawn from comparatively small groups of 30, 50 or 100 judges. We are about to enter the next century and circuit courts cannot be left behind.

2. Report On Federal Circuit Size, Appellate Practice Journal and Update, ABA Section of Litigation, Appellate Practice Committee (Winter 1993). A copy of this report is enclosed with this statement.

3. Lawyer Advisory Committees to the U.S. Courts of Appeals - Report and Recommendations, 175 F.R.D. 110 (1997).

4. Arthur D. Hellman, Dividing the Ninth Circuit: An Idea Whose Time Has Not Yet Come, 57 Montana L.Rev. 261, 277-279 (1996)(describing and citing to the studies).

5. Paul D. Carrington, Daniel J. Meador, Maurice Rosenberg, Justice on Appeal 196 (1979)

6. Statement of the Honorable Joseph W. Hatchett at 2 (March 23, 1998)

7. Hon. Ruggero J. Aldisert, Then and Now: Danger in the Courts, Federal Lawyer, 41 (January, 1997)

8. Judicial Conference of the United States, Long Range Plan For The Federal Courts (December 15, 1995)