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.