Staff Attorney Offices Help Manage Rising Caseloads

     The number of federal appeals court judgeships has not changed since 1990. In that same period, those courts' caseloads increased by 41 percent. Of great aid to judges in the 12 regional appellate courts over those years have been the 12 court staff attorney offices.

     "We could not survive without them," Judge Rhesa Barksdale of the U.S. Court of Appeals for the Fifth Circuit said of his court’s staff attorneys.

      Voicing a similar sentiment, Judge Joel Dubina of the U.S. Court of Appeals for the Eleventh Circuit said, "We could not handle our caseload without the assistance of staff attorneys. The staff attorney office is an integral part of our court."

     Core responsibilities vary among staff attorney offices, but in each appeals court they include review of all appeals filed by prison inmates without a lawyer’s help. Screening such "pro se" prisoner cases was the initial focus of staff attorney offices when they were formally authorized and established by Congress in 1982.

     Central legal staffs on the federal appellate level had evolved during the 1970s, however. In 1973, the Fifth Circuit was the first to receive separate funding to hire staff law clerks, as distinct from judges’ law clerks – or "elbow clerks" as they are sometimes called. The U.S. Court of Appeals for the Ninth Circuit followed in 1974, and by 1980 there were 117 staff attorneys working for the various appellate courts.

     Over time, the scope of the office’s substantive legal work expanded, involving staff attorneys in a larger percentage of the 60,000 federal appeals filed each year. Today, the 12 senior staff attorneys supervise more than 380 attorneys, both career and term employees, and more than 80 support staff.

     Allocations of staff are based on the number of authorized judgeships and on caseloads. The busiest appellate court – the Eleventh Circuit in terms of per active judge statistics – has the largest staff attorney office staff.

     "The most significant change is that the volume and level of complexity of appeals referred to staff attorneys has increased with time," said Robert Jaspen, senior staff attorney for the U.S. Court of Appeals for the Fourth Circuit.

     Duties handled by staff attorney offices today range from screening all appeals, to drafting proposed opinions on preliminary matters, to preparing proposed orders, to reviewing pro se appeals for issues warranting oral arguments.

     Chief Judge William Wilkins said the productivity and reliability of the Fourth Circuit court’s staff attorney office allows judges and their law clerks to "minimize the time spent on the large number of pro se and counseled cases that do not present factual or legal issues that require oral argument for appropriate resolution."

     "This enables us to allocate additional time to those more complex cases that are set for oral argument," he said.

     Jaspen said his office exists to help Wilkins and the court’s other judges work faster and more efficiently. The work also benefits litigants, he said, because "cases are decided far more quickly."

     Tony Bonfanti, senior staff attorney for the Fifth Circuit court, agreed. "We save the judges a lot of time because we develop expertise in the appeals and motions screened. This permits us to write memoranda that concisely present the issues and legal analysis, saving the judges time because they can focus on the issues and make quicker decisions," he said.

     In the Fifth Circuit, staff attorneys participate in the screening of direct criminal appeals, civil cases in which the United States is a party, prisoner cases challenging conditions of confinement, and habeas corpus, civil federal question, immigration, civil rights and Social Security cases.

     In the Eleventh Circuit, staff attorneys, among other things, screen every appeal for possible jurisdictional defects. "We save the judges a lot of time by carefully going through volumes of handwritten and often imprecise legal arguments, and putting these in a form, along with citations to the record, briefs and applicable case law, that saves the judges time," said Naomi Godfrey, the court’s senior staff attorney.

     Kim Jones, senior staff attorney for the U.S. Circuit Court of Appeals for the Eighth Circuit, said that without her office "judges would not be able to give the pro se and other non-argued cases the amount of time needed to cull out the important issues, because there are just too many cases and not enough judges."

     Eighth Circuit Judge David Hansen said the experience and institutional memory of Jones and supervisory staff attorneys provides the court with a real advantage.

     "We also benefit greatly from the experience of our long-tenured motion practice attorneys who give us advice on the myriad of motions filed with the court," he said. "More than one member of our court has chosen an elbow clerk from among our cadre of staff attorneys."