Improving the appellate process worldwide through maximizing judicial resources.

• Author: Wallace, J. Clifford

ABSTRACT

As the number of cases filed each year has surged, U.S. federal appellate courts have evolved in order to fulfill their core functions of deciding appeals and setting guiding precedent. Many of the challenges created by overwhelming caseloads are also being tackled in foreign judicial systems. In this Article, Judge Wallace offers the approach of the United States Court of Appeals for the Ninth Circuit as a possible model of reform, although he also points out that each judiciary will need to tailor reform efforts to its particular circumstances.

In Part II, Judge Wallace details several of the case management techniques that have proved most useful in the Ninth Circuit. Where possible, he also identifies appellate courts in other U.S. and foreign jurisdictions that have similar mechanisms in place.

Part III considers in greater depth two particularly significant reforms: appellate level mediation and the appointment of an Appellate Commissioner. These reforms more fundamentally alter the conventional approach to appellate court adjudication.

Part IV briefly considers arguments that these reforms erode the quality of judicial decision-making. Judge Wallace concludes that increasing efficiency with streamlined case management and mediation mechanisms does not necessarily compromise core judicial principles.

TABLE OF CONTENTS I. INTRODUCTION II. EFFICIENT CASE-MANAGEMENT TECHNIQUES A. Initial Review B. Special Considerations for Pro Se Cases C. Issue Identification and Case Grouping D. Motions and Screening Panels E. Deciding the Appeal on the Briefs F. Unpublished Dispositions III. APPELLATE-LEVEL MEDIATION AND THE APPOINTMENT OF AN APPELLATE COMMISSIONER A. Mediation B. Appellate Commissioner IV. THE QUALITY OF JUDICIAL DECISION-MAKING I. INTRODUCTION

There has been no shortage of studies profiling the stark surge in the United States federal appellate courts' caseloads. (1) The numbers speak for themselves. Filings leapt from 3,900 a year in 1960 to 11,600 in 1970, then almost doubled over the next decade, only to double again by 1992. (2) Since 1992, filings have jumped an additional seventy-five percent, exceeding 60,000 in 2003. (3) The number of appeals pending at the end of each fiscal year rose from 2,220 in 1960 to 44,600 in 2003, (4) more than a twenty-fold increase.

I have witnessed this growth firsthand, and I can vouch that the statistics and resultant workload are indeed startling. During my thirty-two-year tenure on the Court of Appeals for the Ninth Circuit, I have watched the circuit's appeals more than quintuple from 2,258 (5) to 12,872 filings a year. (6) I was appointed in 1972 to fill one of thirteen authorized active judgeships; at that time, five judges were serving the circuit on senior status. (7) I am now one of twenty-two senior judges. The active ranks have grown to twenty-eight judgeships, and there are urgent pleas to add more.

Many commentators have treated the burgeoning caseload as a cause for alarm. (8) The quality of appellate decision-making, they say, has been diluted by more cases in competition for finite judicial resources. Enlisting an ever-expanding army of judges to cope with the volume has decreased collegiality among those on the bench. Article III judges are forced to delegate more responsibility to their staffs; law clerks and staff attorneys actually make the decisions, some fear, while the judges relegate themselves to supervisory roles. A shrinking proportion of litigants is afforded the opportunity to present cases orally before the tribunal; fewer parties still are fortunate enough to have their disputes resolved in a published, fully reasoned decision. Despite all of the procedural shortcuts, expediency has given way to protracted delay. (9)

Although the rise in caseload has been striking, I see no reason for doomsaying. Federal appellate courts continue to fulfill their two core functions: (1) to decide the appeals by correcting material errors in the cases reviewed, and (2) in so doing, to establish clear precedent to guide constituents within the circuits' jurisdictions. In other words, appellate courts are still delivering justice to individual litigants while laying the foundation for a just and orderly society. True, courts could not have succeeded had they not changed the way they approach their duties, and the need to adapt certainly remains constant. But we do not have to throw our hands up in desperation.

I have made it a point to think prospectively and constructively rather than yearn nostalgically for the past. That is, I focus on how appellate courts can evolve to preserve-in the face of the challenge presented by an overwhelming caseload--the twin aims of deciding appeals and setting guiding precedent. As the Chief Judge of the Ninth Circuit from 1991 to 1996, for example, I worked to implement a series of structural reforms to mitigate the court's inefficiencies. Similarly, for more than three decades I have worked with foreign judiciaries on my vacations and, since stepping down from the chief judgeship and assuming senior status, I have spent roughly half of my time participating in international consultations and legal education programs. The goal of these initiatives has been to improve the administration of justice in judicial systems throughout the world.

Initially, these programs afforded little opportunity to apply my experience as an appellate judge directly. The countries involved logically wanted to tackle first the problems plaguing trial courts, including their impossibly clogged dockets. For instance, the second Conference of the Chief Justices of Asia and the Pacific, held in Islamabad in 1987, kicked off a two-year endeavor by the Chief Justices to lessen trial court delay. A later survey revealed that a large majority of the countries had implemented judicial education programs to train judges in conducting trials more efficiently. (10) In fact, more than one-third of the countries had established institutions to find the optimal method for handling caseloads. The Chief Justices have indicated that their efforts were successful.

As efficiency has improved at the trial level, cases arrive at the appellate court more quickly, and the backlog and delay have naturally shifted upward. (11) The focus of reform efforts likewise is now being drawn to the appellate courts. The Law Commission in New Zealand, for example, recently recommended altering the New Zealand Court of Appeal's jurisdiction in light of its recognition that the "Court of Appeal cannot continue to operate with its present volume of work." (12) Although reforms thus far have been modest, as the case of New Zealand demonstrates, it is clear that the impetus to improve appellate court case management is growing.

That is where this Article enters the picture. Since courts in the United States have confronted many of these problems already, I offer the approach of one--the United States Court of Appeals for the Ninth Circuit--as a possible model. (13) The approach is a simple one. Experience in every part of the globe has demonstrated that trial court reform is most successful if based upon two key aspects: case management and alternative dispute resolution (primarily mediation). (14) Our program focuses on these two principles, but adapts them to fit the situations facing appellate courts.

I advance this model assertively, putting aside the qualms others have expressed about the state of federal appellate court decision-making. Despite my confidence, though, I do not intend to suggest that courts in other jurisdictions should adopt the Ninth Circuit strategy in its entirety. Rather, a foreign judiciary needs to consider those modifications that have the potential to improve its appellate courts, and it should tailor the methodology herein to fit its particular circumstances. I also do not mean to imply that this is a one-way street; U.S. courts have much to gain from the expanding practical knowledge of foreign courts. In addition, the dialogue among courts struggling with similar problems and embracing similar solutions will assure us that our judicial system has not headed down the wrong track, but rather is adjusting properly in order to continue serving its important purpose.

With these goals in mind, I organize this Article as follows. Part II describes several changes that an appellate court can undertake to administer its caseload more effectively. Part III considers in greater depth two additional significant reforms: appellate level mediation and the appointment of an Appellate Commissioner. Part IV briefly considers arguments that these reforms erode the quality of judicial decision-making.

2. EFFICIENT CASE-MANAGEMENT TECHNIQUES

   As the largest appellate court in the country, the United States Court of Appeals for the Ninth Circuit might have collapsed under the weight of its ever-increasing caseload had it not developed innovative ways to allocate its limited judicial resources. I detail here several of the case management techniques that have proved most useful. Where possible, I also identify appellate courts in other jurisdictions that have similar mechanisms in place.

   1. Initial Review

      We have learned from trial court reforms that early court intervention is indispensable. Similarly, it goes without saying that an appellate court must begin managing the life of a case the moment it arrives at the courthouse. When a party undertakes to file the appeal, the clerk should confirm that the party is remitting all the required fees and submitting all the necessary papers. Court staff should simultaneously chart the course to come by imposing a schedule for the compilation of the appellate record, submitting the parties' "briefs" (i.e., written arguments) and completing whatever else is necessary for the court to hear the appeal. The court should apprise litigants of the consequences of failing to comply with deadlines--such as dismissal...