This post is both a request for information and a cry for reform.
Here’s the backstory: Back when God was young, I clerked for a federal appellate judge. I saw how things operated in my circuit, and my friends clerking elsewhere told me how things worked in other circuits. One operating procedure differed between circuits; the procedure affected litigants (without their knowledge), and one system was plainly better than the other.
My request for information is that recent clerks update my information: Does this operating procedure still vary among circuits today?
My cry for reform is that circuit judges discuss this issue internally to decide whether they’re convinced, as I am, that some circuits are hurting both themselves and litigants in the process by which the courts use bench memos….
Back in 1983, at least, some circuits asked clerks to prepare only a single bench memo for the entire three-judge appellate panel. That is: A three-judge appellate panel learned that it would be hearing, say, 21 cases on the May docket. The clerks in the three chambers then negotiated among themselves to decide which chambers would take the lead preparing the bench memo for each case. After that discussion, Judge Solomon’s chambers knew that it was responsible for seven of the 21 cases. Judge Solomon’s three clerks (and perhaps an extern) would negotiate among themselves, and eventually each clerk was responsible for two bench memos (and maybe an extern for one). The three clerks and an extern could thus prepare the seven bench memos assigned to their chambers.
Before argument, the chambers would swap bench memos. In a circuit that worked this way, we would ship my bench memos about the Juliet and Romeo cases off to the other chambers, and we would receive in return their bench memos about the Ariel and Caliban cases they’d been assigned. All of the judges read only my bench memo about my cases, and all of the judges read only the other guy’s bench memo about his cases: One bench memo for the entire appellate panel.
Other circuits rejected that rule. In those circuits, 21 cases arrived for the May calendar, and the three clerks in Solomon’s chambers dutifully set about writing seven bench memos each. Judge Solomon thus read a bench memo about each case, and the other two judges read bench memos prepared by their own clerks.
(Some circuits also followed a middle path: Judges who preferred sharing bench memos could share; judges who disliked that practice could opt out and have their own clerks write memos for each case.)
Why does this matter?
Because federal appellate judges are overworked. Every month, they are deciding motions, resolving cases that are decided without argument, hearing and deciding cases that are argued, considering petitions for rehearing or rehearing en banc, and giving speeches, eating lunches, and doing other judgely things. And judges were often quite engaged in their local communities in other ways before they assumed the bench. (You don’t become a federal appellate judge by sitting home at night watching TV and eating crackers.) These are ferociously busy people.
Clerks, on the other hand, are nobodies. They’re smart young people who graduated at the top of their law school classes and who, to accept an attractive clerkship, often moved to a city in which they don’t know a single living soul. Thus, when a clerk is asked to write just two bench memos in a month, the clerk can tackle those bench memos with abandon, studying the briefs and precedents, reading chunks of the record, and thinking hard about the issues.
The conversation between clerk and judge about a case may thus be a mismatch: The judge has years of experience and perspective, but is thinking about 21 cases this month in addition to many other chores; Solomon’s ability to devote substantial time to any one case is limited. The clerk, on the other hand, may lack perspective, but she has plenty of time and knows intimately the law and facts relevant to her two cases.
Although the situation naturally varies widely by judge and clerk, this mismatch in available time may mean that the judge is forced to lean heavily on the bench memo to decide a case. If all three judges on a panel share the same bench memo analyzing a particular case, then all three judges may be leaning strongly toward a particular result — the one suggested in the memo — before argument. In that environment, a lawyer’s oral argument may have only a very limited capacity to change the panel’s mind.
If, on the other hand, each judge’s chambers prepared bench memos on all of the cases, then the litigants presented their cases to three different people — the clerks — who had the luxury of time to think carefully about the issues, which increases the chance of reaching the correct result. And the panel collectively may have heard differing views about the case before the day of argument: One bench memo may have advocated affirmance; one reversal; and one affirmance on an alternative ground. In that environment, the coin is still in the air when the panel hears argument, and an oral advocate stands a fair chance of influencing the result.
I understand that clerks will be forced to work harder if they’re required to write seven bench memos per month instead of two. And I understand that the nature of bench memos might change slightly in that environment. But if our judicial system is pursuing correct results and justice, we ought to prefer rules that encourage robust debate, rather than undue reliance on a single (young, inexperienced) person’s analysis.
Federal appellate courts should consider having each judge’s chambers prepare bench memos in each case, rather than relying on a single bench memo prepared by a single clerk in a single chambers.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].