March 29, 2004
LAW: Appealing Advice
This Myron Moskovitz column has some good basic advice for lawyers working on an appeal, something I've done a lot of recently. And this nugget, from Howard Bashman's interview with Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit, should make a particular impression as far as the need for clarity and concision:
When I became a member of the Third Circuit in 1968 each active judge was responsible for deciding 90 appeals a year. The national average was 93. That was "Then."
But "Now" in the Third Circuit, each active judge was responsible for deciding 381 cases in 2002, 327 in 2001, 330 in 2000; and 381 in 1997. That's fully briefed cases on the merits. The national average in 2002 was 485 per active judge, up from 429 in 1997. Divide 485 cases by 255 working days a year and you start to get the message I have been preaching for years -- to no avail. One-A-Day is a great name for vitamins, but I doubt that it's equally great in describing the caseload for U.S. Circuit judges.
You must understand that the case you file with us moves along an assembly line of over one case every 4.9 hours. Think about it. That's the time allotted to your case. In that time, the judge must read the briefs, research the law, perhaps hear argument, conference with colleagues, make a decision, write an opinion or order, examine draft opinions written by other judges, and at the same time study motions in other cases or petitions for rehearing. And, of course, travel to the court, check into the hotel. Answer the phone. One fully briefed case for decision every 4.9 hours.
All of this in the highest court to which a federal litigant has a right to take an appeal. Today there is no quiet library time. The circuit judge is on a treadmill, and your case comes to him or her in the midst of a gallop. No time to taste the morsels you dish up for a leisurely dinner here -- a fast-food menu is all that's available.