Of all the possible federal court reforms to pursue, cleaning up filing requirements ranks fairly low. Supreme Court justices don’t adhere to any defined set of ethics, transparency is almost non-existent, and the system is designed to disfavor age and experience in favor of promoting youth and inexperience to exert dead hand presidential legacies for decades.
But even if filing papers isn’t as weighty as those concerns… this nonsense is out of hand.
I looked at Federal Circuit appellate dockets from the 10 most recent decided appeals (from District Court).
10/10: EVERY DOCKET included at least one paper that had to be re-filed because of errors. pic.twitter.com/OovbF1t6og
— Prof. Dennis Crouch ⚖️ Patent Law & AI (@patentlyo) April 27, 2021
That’s University of Missouri School of Law’s Professor Dennis Crouch, author of the the Patently-O blog, doing a little spot checking of the Federal Circuit and finding the incidence of attorneys being forced to refile at exactly 100 percent.
This is admittedly a small sample size, but the odds that 10 consecutive appellate attorneys are running slapdash operations strains credulity.
Thankfully, Professor Crouch didn’t stop at 10:
Remember, this is the Federal Circuit we’re talking about, one of the last places in the federal judiciary to find pro se litigants and N00b attorneys. It boasts the most specialized bar in the whole system and lawyers are still constantly getting dinged.
Is it something unique to the Federal Circuit? Do they just have a more technical read on filing requirements because they’re all tech geeks in robes? There does seem to be something to the argument that this is a bit parochial, and perhaps the Federal Circuit — because of its unique place in the system — guards the exclusivity of its bar by playing up as many byzantine local wrinkles as possible. But while local and individual rules always introduce mischief into the process — and smack of a sense of judicial entitlement that’s problematic on a whole other level — the “invisible” local rule takes this to a new level:
“Does not actually require this.” That’s the chef’s kiss on this.
This is unacceptable for any court. Enforcing general uniformity in filing helps courts efficiently consider arguments, but when it gets to the level of “you put a blank where you meant ‘N/A’ so we’re rejecting the whole filing,” it’s just a court unnecessarily jacking up client fees by forcing attorneys to sacrifice valuable time crafting substantive argument to play arbitrary gatekeeper games. And before anyone says, “it’s not costing clients because lawyers shouldn’t charge for redoing the work,” I’m not even talking about that. Lawyers are billing clients extra to cross all these capricious “T”s in order to file it right the first time.
And this goes for the entire court system. We’ve discussed before how technical filing rules discourage pro se filers, a problem that’s only going to get worse as hiring legal counsel becomes less and less accessible to more and more people. It’s also an obstacle for pro hac counsel. Sidney Powell’s struggles to file a metric tonne of garbage on the federal courts were funny, but it probably shouldn’t be that hard for a former federal prosecutor to get a paper filed.
Again, this may not be the biggest problem in the judiciary, but it may be the only one where we can generate some quick and easy bipartisan support. So please, we’re begging you, do something about this.
And if anyone is thinking of citing this article in a formal request of the powers that be, remember to consider any specific local or individual rules before you do.
Punctilious Docketing Review [Patently-O]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.