Bench Brief Burdens

At Above The Law, fellow curmudgeon turned Anglophile, Mark Herrmann, raises the inside baseball problem of who feeds appellate judges the bench memos upon which they rely in familiarizing themselves with a case before them.

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.

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.


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.


The alternative procedure was that each judge would have his clerks prepare bench memos for each case, so that each of the three judges on a panel would have three different bench memos as prepped by their own clerks. The practice of one bench memo per case persists in some circuits today.

Mark is certainly correct in his complaint, that feeding all judges on a panel one memo, so that there is no diversity of views and the judge is left with the quality of comprehension of a clerk selected by someone else, is the least beneficial practice.  And thus, three judges with three bench memos prepared by their own chambers is better than one.

But that’s not likely much comfort to most of us.

When preparing an appellate brief, an enormous amount of thought and effort goes into every aspect of the argument.  It may be highly nuanced, requiring both a deep understanding of law and practice, as well as an appreciation of humanity and the ugly reality in which it exists.  Every word is parsed for precision. Every sentence vetted for tone. Every aspect of the brief undergoes scrutiny over and over, to be sure that it expresses the argument as clearly and persuasively as possible. 

And then, it’s butchered in the hands of some snot-nosed kid whose greatest achievement was being a law review editor, who has never experienced life and who is far more concerned about bluebook citations than how much a child will suffer for adherence to a beloved rubric. 

The underlying chambers explanation is that appellate judges are too busy to do their own work, such as reading briefs. After all, they have articles to write, speeches to practice and the occasional snarky retorts to Supreme Court judges who don’t care for their book reviews.  Then there’s time needed for looking at pictures on the computer. Who could possibly fit brief-reading into this busy schedule?

Plus, they get a gaggle of baby lawyers, fresh-faced and desperate to let their important opinions be known, who can brief cases like no get-out, explaining their law school GPA and authority to pass judgment on lawprof articles.  These are smart people, even if only book smart.  Certainly they can reduce a 50 page appellate brief into a few salient sentences, and it would be shame to waste them.

Of course it’s better to have a panel with bench memos reflecting three takes rather than one.  When the judges are working off one kid’s rewrite, his bias and naivete infects the panel.  Bear in mind these are appellate judges, who are unlikely to have any personal experience at the far counsel table and may have never tried a case, either as advocate or jurist, in their lives. Chances are even better that they never held the hand of a sobbing mother or child; you don’t get many of them when representing Fortune 100 companies.  And so, the significance of the bench memo is magnified. Greatly magnified.

In those circuits where the judges feel so horribly overburdened by their workload that they not only can’t take a few minutes to read the pages that took a lawyer a hundred hours to prepare, the least they can do is consider more than one wholly inexperienced view of the case.  The very least, as this falls far short of anything remotely resembling a fair hearing and understanding of the case.  To be so incomprehensibly lazy as to rely on one kid’s work reflects utter disrespect for the lawyers and the lives of the people who mistakenly believe that meaningful review exists.

Granted, the use of clerks to prepare bench memos is a time-honored tradition, and the clerks who do so believe their work is excellent and fair.  And perhaps it is, at times. But the depth of understanding and experience they lack prevents them from appreciating where they fall short, miss ideas, mischaracterize points and fail to appreciate what is obvious to any experienced lawyer.

And given how much stock we all put into appellate decisions, their precedential value and the affect they can have on so many lives, it’s just not good enough to leave it in the hands of children,  Certainly not one.  Not even three.  And if judges are too busy to do their core job, then they shouldn’t wear robes.  And now you know the dirty, little circuit secret.

21 comments on “Bench Brief Burdens

  1. JA

    What makes you think COA judges don’t read briefs? I clerked at the fifth, and never saw any indication that the judges weren’t reading briefs (though I don’t think they always read the bench memos). For certain, my judge always read every brief, and nearly disregarded bench memos. I just wonder why you seem so confident that there’s an epidemic of judges not reading briefs at the courts of appeals. Doesn’t comport with my experience at all.

    But maybe the fifth circuit is exceptional.

  2. SHG

    I can only go by what people who have clerked (including Herrmann) for circuit judges say, and they say their judges don’t read the briefs. So apparently, your experience is exceptional.  It shouldn’t be.  Mind you, if every judge read the briefs, they wouldn’t have much need for bench memos, regardless of who prepared them or whether they differed from chambers to chambers, as they would have first hand knowledge of the case.

  3. SHG

    Me? You’ve got to be kidding. Not that any judge would have me, but I had to work for a living or starve.  Kids like me didn’t do clerkships.

  4. MM

    JA’s experience is not exceptional. I recently clerked on the 10th Circuit, and AFAIK every judge there reads the briefs (although some do not read footnotes). Nor do I know anyone who has clerked for a judge who didn’t read the briefs.

    Also, I don’t think you understand the function of a bench memo, which is to double-check every legal and factual citation for accuracy. Is counsel misrepresenting the record or case law? Are any binding precedents being ignored? This is very different from simply reading the briefs.

  5. SHG

    Nothing would please me more than to be completely wrong about this, and to learn that contrary to what I’ve been told, most (all?) judges read the briefs.

  6. JA

    I suspect that at least at the court of appeals level, the percentage of judges who read all the briefs is close to 100%.

    Don’t know much about D Ct level; I’d guess there’s some superfluous briefing that goes unread there, but that almost all Federal D Ct judges read almost all dispositive briefing.

  7. Chris

    While the gist of this post makes sense, the substance has a few flaws.

    First, even assuming that you personally put a ton of care into your briefs, I think you’d acknowledge that isn’t true for (or practicable for) every lawyer. Rather, often, briefs fall short.

    Further, even if everyone did put an incredible amount of work into their brief, each case would have at least two (apparently fantastic) opposing briefs. The inconsistencies between these have to be reconciled somehow.

    And last, I think any lawyer understands that Congress has been unwilling to confirm new judges, leaving overcrowded appellate dockets.

    These three factors, among others, require that a huge amount of research and drafting be done for each case. And unless you advocate tripling (or more) the number of active appellate judges, I imagine you realize bench briefs serve an important role in preparing judges and helping them rule. I agree that judges should read all briefs. And I think most do. However, past that, I think relying on “snot-nosed” kids who were at the top of their law school classes and have nothing to work on but the cases they are assigned isn’t the worst alternative.

    Your piece fails to reflect the above realities.

  8. SHG

    Not sure where you get “at least two (apparently fantastic) opposing briefs,” as that’s never the case in criminal appeals and not necessarily the case in any appeal, but your concern for current problems with judicial staffing problems over the responsibilities toward litigants is telling. 

    The courts exist to serve society, not make judges lives easy. That there aren’t enough judges is a problem, but not the litigants problem, and the litigant deserves the review of a judge, not a kid fresh out of law school no matter how highly they think of themselves.


    The inconsistencies between these have to be reconciled somehow.

    Absolutely. That’s what judges do. Fact and cite checking is one thing. “Reconciling” the competing arguments is another. Who cares what kids think of the relative merits of the arguments? It may be convenient, but it’s wrong.

  9. Chris

    I was referencing the care you indicate is put into your own briefs. If that amount of care was put into every brief, I imagine judges would have a much easier time. If you put that amount of care, at least two briefs per case will be well done.

    Let’s overlook the fact that judges leave lucrative legal careers in favor of public service. I personally think that because of that, they shouldn’t be working 100’s of hours per week just because Congress can’t get its job done (even though they also exist “to serve society”).

    Even if the premise that judges exist to serve society is true, it’s unrealistic to expect them to handle their case loads alone. Even if each judge worked literally every waking hour per week, it would not be feasible.

    Every litigant deserves the review of a judge. And they all get it–judges read briefs, review drafts, and surely decide the direction of the final opinion.

    With your commitment to litigants’ rights, a parallel argument could be made: every client deserves legal help from a partner. But you’d acknowledge that isn’t realistic, and that great legal work often results from research by associates and review by partners. Just because a judge is involved does not change this fact. The reality of every profession is that we want the most well-trained to be more involved, and to let this happen, we let them delegate some of their work. I don’t see why judges should be disallowed from doing that when doctors, CEOs, and other lawyers can do so without a problem.

    It’s not what kids think of the relative merits of the arguments. The judge decides that. But for the judge to decide that, they have to know all of the relevant law (which may or may not have been cited in the briefs), they have to understand how other cases have applied that law, and they have to know the facts well enough to apply it. But unless every brief is truly exemplary, getting to that point takes a lot of work. That’s where kids come in.

  10. SHG

    Whoa. No, we do not share a view of what’s required, reaslistic, or much of anything else. No, not all judges leave “lucrative careers.” No, it is not unrealistic to expect a “partner” to do his job. No, I do not “acknowledge” that it’s unrealistic to expect people to do what they promise to do, or that “great legal work often results from research by associates and review by partners.”

    You’re blowing smoke out your ass straight down the line. This is your slacker fantasy. Being a lawyer or a judge is hard work. No, there is no easy way around it. And since you appear to be unaware, doctors, CEOs and other lawyers work hard too if they want to be successful and fulfill their responsibilities.

  11. Chris

    I agree it is hard work. As a lawyer, I know that. But you completely failed to respond (presumably because you can’t) to my argument that realistic time constraints require help from others besides the judge.

    I’m not saying it’s ideal to have clerks work extensively on cases. But the alternative is to appoint more federal judges. With dockets as crowded as they are, it’s just unrealistic (even with hard work) to have a judge personally research and write every opinion. Anyone who has clerked, or who isn’t blowing smoke out of their own ass, knows that.

  12. SHG

    I hadn’t responded to your argument because I couldn’t find it among all the false assertions. Now that you’ve stated it clearly, and although it’s not incumbent on me (or anyone else) to respond to every argument someone makes in a comment, I will do so.


    With dockets as crowded as they are, it’s just unrealistic (even with hard work) to have a judge personally research and write every opinion.

    First, not everyone agrees that circuit judges are overworked. You take that as a given. Others do not. I will assume, for the sake of responding, that you’re right. There are two answers to having insufficient judges to handle the caseload. (1) Get more judges. (2) Do less work.

    It’s perfectly understandable why someone at clerk level would see the second answer as the only reasonable option. Now you’re next response should be, they may need more judges, but given that the Senate has refused to confirm judges and politics has made it impossible to add a sufficient number to do the job, the first option is not reasonable.

    To which I respond, it is not expedient. It remains reasonable. Start a constitutional crises if necessary, but compromising on the function of the office by shifting the job off to clerks is never a viable solution. Note, I have no issue with clerks cite-checking and researching, with the caveat that the judge remains responsible for the accuracy of their work. But it is not the role of clerks to make decisions, bias decision-making or exert influence on the substance of any decision that the Constitution requires be made by a judge.

  13. Chris

    I don’t care much about “reasonable” options. I care about realistic options. This isn’t an academic debate–it’s a question of how real world cases should be handled.

    In the near future, I don’t see Congress deciding to appoint more judges (and keep in mind, to abandon clerks, we would need a huge increase in the number of judges). I also don’t see the number of cases up for appeal going down.

    With those two realities, something has to happen in the interim. One is for judges to do less work on each case and no longer use clerks. The other is for clerks to work extensively on cases, with judges in an oversight role. I’m not sure either is ideal, but to me, having at least one person (even a clerk, though you constantly deride them as only capable as cite checkers or researchers) look at a case in detail seems preferable.

    I’m not sure where you have heard clerks are making decisions or exerting extensive influence. They certainly have an effect, but the influence of a lawyer without many preconceived notions (given their novice level) seems better than a seasoned lawyer with stronger biases.

    Unless you advocate judges doing their job completely alone, I just don’t see what system you realistically (not reasonably, or ideally) you envision. The current system may not be perfect, but without proposing a true alternative, this sort of commentary isn’t that helpful.

  14. SHG

    Do away with clerks? Was there anything said that suggested such a thing? You’ve moved your arguments to the extreme end of the spectrum in order to achieve your “realistic” solution, and we’re no longer addressing anything resembling the point. 

  15. Sgt. Schultz

    So the entire federal judiciary would collapse without law clerks doing all the heavy lifting, and that’s not a problem?

    Your idea of realities is my idea of nightmares.

  16. SHG

    Apparently, I’m not sufficiently realistic. Kinda reminds me of not being realistic about the need to accept the fact that we’re going to execute a few innocents to make sure all the guilty go down. It’s the price we pay for the best system every created.

  17. Sgt. Schultz

    Well, who cares about doing things right when we can be realistic. After all, isn’t that really what it’s all about?

    And bad things can happen, but hey, you just have to be realistic, so that makes it all ok.

  18. Chris

    I don’t know that doing research and drafting opinions given a general direction and subject to a judge’s final approval is really the “heavy-lifting.” Almost every important position involves huge amounts of delegation–I don’t know why there’s such discomfort with it in the judicial context.

    The focus on being realistic is just to point out that musing about flaws without a proposed better solution isn’t really worth much. Anyone can say that it’d be right to have judges do all the work, on everything. It’d also be best to have our best doctors treat every patient. And our best businessmen run every business. Those solutions might be “right” but they aren’t worth anything because they simply can’t happen. So with that in mind, what do we do? Your proposed solution is create a constitutional “crises [sic].” But what about the interim? And what if that simply doesn’t work? Does the judiciary really have the clout to make that happen right now? Anywho, this is probably far too grounded in abhorrent reality, as opposed to what is right or reasonable.

  19. SHG

    If every time you’re faced with the choice between doing what’s right and doing what’s expedient, you pick expedient, then you will never do what’s right.

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