Abogado Aly: The Least Transparent Courts of Appeals

Thursday, August 27, 2015

The Least Transparent Courts of Appeals

Originally published by Barry Barnett.

Survey says

Since January 1, 2007, I’ve surveyed decisions by the 13 U.S. courts of appeals almost every working day.

The experience has highlighted for me a range of quirks — from their highly variable websites to their peculiar schedules for releasing opinions to the small-bore or high-caliber of the disputes they decide to the great range of writing talent.

I’ve also learned that they vary a lot in their openness. That trait manifests itself most obviously in the seemingly mundane information they provide (or withhold) in the captions of their opinions about the cases they decide.

Today I finally took a look at how transparently these geographically, culturally, and philosophically diverse courts deal with facts that can aid people like you and me in assessing how well they do their jobs.

[See examples from all 13 of the courts at the end of this post.]

The basics

Some things appear in all the courts’ opinions:

The names of the judges on the panel.

The number of the case in the court of appeals.

The date of the court’s decision.

The name of the district court in which the case originated.

The identities of the judges — and particularly of the judge who authors the unanimous or majority opinion — of course does provide important information, but even there the judges may decide to obscure authorship by using the “per curiam” (by the court) device. The other bits of data tell you almost nothing that could help you evaluate the quality of the panel’s work.

Lack of transparency

Most of the courts of appeals do a good job of providing additional indicia regarding the judging process. But a minority of the courts stand out for their opaqueness:

Four (the Fifth, Eighth, Tenth, and Eleventh) do not name the district judge whose rulings they review.

Another four (the First, Second, Fifth, and Eighth) leave out the district court case number.

Five (the First, Fifth, Tenth, Eleventh, and Federal Circuits) omit the date of oral argument or submission.

In yet another quad (the Fifth, Seventh, Eighth, and Eleventh Circuits), opinions make no mention of counsel.

You may not think that these information deficits matter, but if you do I beg to differ. Leaving out details like these deprives the most knowledgeable observers — other judges, lawyers, legal reporters, and bloggers — of tools that can help them evaluate the quality and persuasiveness of the appellate judges’ work.

Your confidence in a Second Circuit ruling, for instance, might turn in part on whether the modern equivalent of Learned Hand or an imperious tyrant presided over the case in the district court. You would also like to know the identity of a trial judge who did something outlandish so you could either avoid his court next time or at least take his failings into account if you wind up before him anyway.

As for the case number in the district court, if you don’t know it, you’ll have trouble finding the relevant decision online through PACER. You may not (probably won’t) bother looking for it (who has the time?).

A big lag between argument of an appeal and the court of appeals action on it also undercuts the credibility of the decision. What took so long? What effect will the delay have on the lawyers’ ability to present the merits of the case? Can you remember the facts?

Finally, the failure to identify the lawyers who briefed and argued the appeals may seem innocuous, but again the knowledgeable observer will form a judgment about the court’s decision partly from the reputation of the parties’ counsel. You can also call them if you have their names handy.

Not all bad

The Second and Ninth Circuits stand out for offering a summary of each decision. The former far outperforms in the elegance of its precis, but both get big points for making the extra effort to enhance the understanding of their audience.

All in all, the courts of appeals do a splendid job with the work they have before them. A bit more transparency can make their product even better.

First Circuit