1
ADMINISTRATIVE OFFICES OF THE
U.S. COURTS
ADVISORY COMMITTEE ON
APPELLATE RULES
Tuesday, April 13,
2004
One Columbus Circle, N.E.
Washington, D.C.
20544
2
PARTICIPANTS
HONORABLE SAMUEL A. ALITO, JR., Chairman
PROFESSOR PATRICK J. SCHILTZ
HONORABLE CARL E. STEWART
MARK I. LEVY, ESQ.
PROFESSOR CAROL ANN MOONEY
DOUGLAS LETTER, ESQ.
Representative of Solicitor General
SANFORD SVETCOV, ESQ.
MARCIA W. WALDRON
Circuit Court
MARIE LEARY
Federal Judicial Center
PROFESSOR DANIEL R. COQUILLETTE
PETER G. McCABE
Secretary, Commission on Rules of
Practice and
Procedure
HONORABLE JOHN G. ROBERTS, JR.
HONORABLE T.S. ELLIS, III
W. THOMAS McGOUGH, JR., ESQ.
JOHN K. RABIEJ
Chief, Rules Committees Support Office
HONORABLE DAVID F. LEVI
HONORABLE J. GARVIN MURTHA
3
C O N T E N T S
TESTIMONY OF: PAGE
Hon. Myron H. Bright, United States 6
Circuit Court of Appeals for the Eighth
Circuit, Fargo, ND
Honorable Diane P. Wood, United
States 24
Court of Appeals for the Seventh
Circuit,
Chicago, IL
Richard Frankel, Goldberg-Deitzler
Fellow, 66
Trial Lawyers for Public Justice,
Washington, D.C.
Judah Best of Debevoise & Plimpton,
on 86
behalf of the Section of Litigation,
American Bar Association, Washington,
D.C.
Professor Stephen R. Barnett,
Elizabeth 101
J. Boalt Professor of Law, Emeritus,
University of California, Berkeley
(Boalt School of Law), Berkeley, CA
Honorable Haldane Robert Mayer,
Chief 126
Judge, United States Court of Appeals
for the Federal Circuit, Washington,
D.C.
Honorable John M. Walker, Jr., Chief
Judge, 182
United States Court of Appeals for the
Second Circuit, New Haven, CT
Carter G. Phillips of Sidley Austin
Brown 200
& Wood, LLP, chair of the Federal
Circuit
Advisory Committee, Washington, D.C.
William T. Hangley of Hangley
Aronchick 210
Segal & Pudlin, on behalf of the
American College of Trial Lawyers,
Philadelphia, PA, and James Morris,
President-Elect, American College of
Trial
Lawyers, Richmond, VA
Honorable Edward R. Becker, United
States 235
Court of Appeals for the Third Circuit,
Philadelphia, PA
4
C O N T E N T S
(Continued)
TESTIMONY OF: PAGE
Jessie Allen, Associate Counsel, Brennan 257
Center for Justice, New York University
School of Law, New York, NY
John A. Taylor, Jr. of Horvitz &
Levy LLP, 274
chair of the California State Bar
Association Appellate Courts Committee,
Encino, CA
Steven R. Wallach of Morrison Cohen Singer 314
& Weinstein, LLP, New York, NY
Brian Wolfman, Director, Public
Citizens 325
Litigation Group, Washington, D.C.
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1 P R O C E E D I N G S
2 JUDGE ALITO:
Can we come to order? We're
3
here this morning to hear statements concerning a
4
number of rules that we have published for comment.
5
We've received over 500 comments.
Most of them
6
have been about a rule concerning unpublished
7
opinion or our rule concerning the counting of
8
votes for rehearing en banc.
We've also had
9
comments on a new proposed rule regarding briefing
10
in cross-appeals, not very many comments on our
11
proposal to change the reference to President's Day
12
to Washington's Birthday, but maybe one of the
13
witnesses this morning will want to comment on
14
that.
15 We appreciate the tremendous line-up of
16
witnesses that we have this morning representing a
17
broad array of views and a great deal of
18
experience. The first witness on
our list is the
19
Honorable Myron H. Bright, United States Court of
20
Appeals for the Eighth Circuit.
Judge Bright?
21 STATEMENT OF THE HON. MYRON H. BRIGHT
22 JUDGE BRIGHT:
Good morning, Mr. Chairman
6
1
and members of the committee, staff, and guests. I
2
am the first hitter, lead-off, so I don't expect to
3
be like Casey and strike out but I'll do the best I
4
can.
5 I'm really very pleased to be here to
6
discuss Rule 32.1, as proposed, and to tell you why
7 I
oppose it. I do so on the basis of my
8
experience. I've been a federal
appellate judge 35
9
plus years and I've sat with many of the courts and
10
I've been a senior judge now for almost 19 years.
11
And I might mention that as a senior judge I've
12
served frequently not only in my own circuit, which
13
is the Eighth, but I've served with the Second, the
14
Third, the Sixth, the Ninth, and the Eleventh
15
Circuits and somewhat less consistently with the
16
Fifth, the Seventh and the Tenth Circuits. So I've
17
been around a while.
18 I'm at the stage of life, incidentally,
19
known as the fourth stage. The
first stage is
20
young. The second stage is
middle-aged, as some of
21
you are. The third stage is a
little older, as
22
maybe one or two may be around here.
And the
7
1
fourth stage is "You're looking good." In point of
2 time
and seniority, I'm the ninth in point of
3
service of all of the appellate judges in this
4
country.
5 Now I know you've had hundreds of comments
6
on Rule 32.1, some for, some against, and Dean
7
Schiltz--you know, I always mispronounce that,
8
Dean. I should know it because
my daughter married
9 a
guy by the name of Schultz, which is not too far
10
different. And I know you've
given the committee
11
and those of us who are testifying and others
12
really a very good summary and a conclusion, which
13 I
may not agree with in all events but you have
14
your views and I certainly respect them.
15 I'm speaking here for the Eighth Circuit.
16
As you know, Jim Loken, our chief judge, has
17
written a letter pointing out that 10 of 13 judges
18
on our court who responded opposed the rule and
19
three approved the proposed rule.
I also speak on
20
my own behalf and most of the remarks are really my
21
own views.
22 While I'm going to speak on my experience,
8
1 I
want to mention four letters, three of which you
2
have and the fourth one you'll have because it was
3
written to me. Those letters are
really quite
4
significant to me because they represent a spectrum
5
of people that I know and respect and their views
6
are pretty important.
7 On one side of the coin is Ken Starr.
8 Now, as you know, he was an appellate judge. He's
9
now an appellate attorney and soon, Patrick, he's
10
going to be a dean. On the other
side of the coin
11
is a person who's been an appellate practitioner
12
and I've done programs with him and is now an
13
appellate judge, and that's Tim Dyk of the Federal
14
Circuit. I also have a great
deal of regard for a
15
letter which I have from Gerald Tjoflat of the
16
Eleventh Circuit. He and I go
back a long time.
17
We've served on committees together.
We've been
18
great friends. And I have a copy
of that letter,
19
which I'll see that you get. And
the fourth is
20
from the Attorney General when I became a judge,
21
and that's Ramsey Clark.
22
Let me go back a little
bit in appellate
9
1
history. If there were a perfect
appellate world,
2
when I became a member of the court it was almost
3
perfect. We heard arguments in
every case unless
4
it was a pro se appeal, no lawyer, or unless it was
5
just frivolous and dismissed. We
gave each case
6
full treatment, published an opinion unless it had
7
been dismissed earlier.
8 Well, we soon had to change. The Eighth
9
Circuit adopted the nonpublication rule in 1973 and
10
we followed the leading circuit, and that was a big
11
Fifth Circuit which just had so many cases that
12
they had to do something, so they developed a
13
program of screening the cases, putting them on a
14
fast track with no argument if they didn't seem to
15
justify full treatment and writing a very short
16
opinion, really for the parties and giving their
17
reasons therefore.
18 In the '70s and '80s, with the litigation
19
explosion and, of course, the increase in appeals
20
in the federal courts, that nonpublication rule
21
really became a judicial necessity.
The language
22
"unpublished" simply means, to me, that we judges
10
1
have not had the time to carefully write an opinion
2
to worry about precedent and we really concentrate
3
only on is the result right? And
lots of times the
4
work on opinions, maybe most of the time, is not
5
our own.
6 Let's turn for a moment though to compare
7
how I as an appellate judge and I think many of the
8
appellate judges look at a case as compared to the
9
lawyers, and there are a number of lawyers who are
10
here and are in favor of the proposed rule and part
11
of it, I think, is because the perspective on which
12
we're on.
13 Now with the appellate lawyer, and many of
14
you have or are appellate lawyers, the appellate
15
lawyer really puts the sources together, puts the
16
cases together and serves it out to us on a plate.
17
Not too much of it is original except how it's
18
arranged. On the other hand,
when we have to write
19
an opinion for precedent, we are really an author.
20
We're a creative writer. When I
was first a judge
21
and it just scared the living you-know-what out of
22
me and I'd done a lot of appellate work but it was
11
1
different. And, as you know,
writing an opinion is
2
different. So
there's a difference of
3
perspective there, members of the committee.
4 Listen, I've written on cases, and many of
5
you have, and I've worked weeks, sometimes months
6
on a case and it takes very thoughtful, careful
7
writing and editing to write an opinion which you
8
know is going to be precedent.
It requires
9
extensive work and very careful writing. I try to
10
make every phrase, every sentence, even every
11
paragraph really meaningful and right to the point.
12 Now I want to remind you that to change
13
the no-citation rule to allow all opinions to be
14
cited puts into the inventory of cases each year
15
about 20,000 of the 27,000 cases decided by the
16
appellate courts. About 80
percent of the cases,
17
as you know, are nonpublished opinions.
18 Sometimes I think there's too much law out
19
there, you know? The Federal
Reporter Second was
20
391 when my name appeared as a judge and now it's
21
at 370 Federal Third, 969 volumes later, and the
22
volumes are thicker now, you know?
Estimating at
12
1
1,500 pages per volume and that's not a bad
2
estimate, I don't think, we have between 1.3 and
3
1.4 million pages of legal writing.
4 I make two other comments. I know you've
5
been exposed to the argument that if unpublished
6
opinions are citable, judges will take time away
7
from the important cases that they want to write a
8
publication opinion on and will not be able to
9
spend that much time. I think
that argument is
10
well taken. Adding so much law
in over 20,000
11
opinions published each year will really mean from
12 a
research standpoint the cup runneth over.
13 I'm a firm believer, having sat with many
14
circuits, that while the way we sit and the way we
15
decide cases is pretty much the same, the
16
procedures vary and I believe that the circuits
17
should have the right and prerogative to handle
18
their own caseload in the best way possible. As
19
you know, some courts don't allow any citation of
20
unpublished opinion except in narrow areas, like
21
res judicata, law of the case, and so forth, and
22
others allow it in limited circumstances.
13
1 Now I want to mention a couple of circuits
2
and I know that Judge Walker's going to be here
3
from the Second Circuit but I've sat there many
4
times and I love that court because they hear
5
arguments on almost everything and I love to hear
6
oral argument. But in those
cases we hear the oral
7
argument, we've done our preparation, we really on
8
the bench ordinarily say, "Is there anything to
9
write?" "Well, we're
going to affirm." The judge
10
writes a short opinion, usually the presiding
11
judge. The other two judges take
a quick look and
12
concur and the next day there's an order going out,
13
which usually affirms. Very few
unpublished
14
opinions reverse that I've seen and they shouldn't.
15 Now I see no reason in the Second Circuit,
16
for example, to make those opinions published and
17
citable without a lot more work on the part of the
18
judges.
19 Now the Ninth Circuit has its own special
20
problems. They hear about 5,300
cases a year.
21
They've got 28 active judges and--I don't know--I
22
think about 17 senior judges and a lot of the
14
1
publication of those opinions really would create a
2
problem and I think most of the judges have written
3
to you about them. And I'm not going
to mention
4
anything special except that I think the criticism
5
of its nonpublication rule is really not well
6
taken.
7 I'm going to put the Third, the Sixth, and
8
the Eight Circuits together because all three of
9
those circuits allow publication under certain
10
circumstances. As a matter of
fact, I think in the
11
Third Circuit there really are no bars to it but to
12
tell you the truth, I have rarely if ever--well, I
13
have but I've rarely seen an unpublished opinion
14
brought to the attention of the court.
The one
15
case that I do recall once in a while, and we do
16
get them once in a while, would be sentencing
17
guideline cases because many of those are
18
unpublished and probably should not be published,
19
except in the few instances where there's a new
20
twist to some of the guidelines.
21 In our circuit we had an absolute
22
no-publication rule except for limited exceptions,
15
1
like res judicata, and so forth, until 1994 and
2
then we put in this so-called persuasive rule. If
3
there's no case otherwise citable, you can cite an
4
unpublished opinion. Well, it
hasn't caused any
5
problems and I haven't seen really, as I've told
6
you, much in the way of unpublished opinions. I
7
know there was one mentioned in the famous or
8
infamous Anatasoff case, and I won't go into that.
9 Well, I suppose you could say what's the
10
beef? What's the big deal? It's not causing any
11
problems. Well, let me tell
you: Rule 32.1 trumps
12
the advice that we give not to cite unpublished
13
opinions. It really puts on the
same level to the
14
appellate lawyer that he or she can cite an
15
unpublished opinion and it makes a difference to
16
us. Really while the argument
made in an
17
unpublished opinion may always be repeated in a
18
brief, what the lawyers want is the imprint of
19
three judges on that opinion.
And let's face it.
20
If we know that our so-called unpublished