[Posted July 6, 2016] “Damn you.”

That’s how I began the note of appreciation I sent to the author of a recent article in Litigation, the quarterly journal of the ABA’s Litigation Section. The Spring 2016 issue arrived a few weeks ago, and on the cover, it listed titles of some of the articles inside. “The Discovery Rules Have Changed” was the first one. Happily, I’m largely immune from discovery issues and the inevitable scuffles they generate. I figured I could skip that one.

But the next one caught my eye. “Let’s Change the Appellate Rules Too,” it beckoned. Well, now. That one, I need to read. The author is Martin Siegel, a Houston lawyer who serves as the editor of the magazine. (This makes it easier for him to get his work published, of course.) I found the article on page 30 and dug in.

Siegel begins with a fairly uncontroversial ground rule:

Before getting into specifics, it’s worth stating my underlying (if head-bangingly obvious) premise up front: Legal procedures should be as easy and affordable as possible without compromising the quality of judicial decision-making. The first duty of courts is to the public – not judges or lawyers. Familiar ways of doing things may be comfortable or convenient for the bench and bar, but if they add cost while only marginally or occasionally improving the quality of appellate decisions, the basic interest of litigants in less expensive justice should prevail.

Now, before you read on, make sure you’re comfortable with the premise above. I think it makes perfect sense, but if you’re waffling over this concept, then the rest of this essay won’t have the same impact. Courts are for the benefit of clients and the public. Judges and lawyers serve that purpose; not an independent purpose of their own. If you agree with me on this, we can move on.

Siegel then lists several ways in which he believes appellate procedures can safely be streamlined to reduce the expense of appellate litigation. Here’s one: Create a short form for routine motions, perhaps even a series of click-through menus so you can do it online. Need a few extra days to file? If you have your opponent’s consent, why not just notify the Clerk by e-mail and allow her to grant the extra time ministerially? Sure, there can be limits – no extensions of jurisdictional deadlines; no repeat extensions; a limit of X additional days – but the process of filing even a routine motion can indeed be made simpler, and thus less expensive, without sacrificing decisional quality.

You think I’m dreaming, and that jurists will never delegate to the clerk the power to decide even the most routine motions? Think again! In the Fourth Circuit, who do you think acts on the kind of routine extension motion I describe above?

Motions and applications for orders if consented to, or if unopposed after due notice to all interested parties has been given or waived, or if the orders sought are procedural or relate to the preparation or printing of the appendix and briefs on appeal, or are such as are ordinarily granted as of course and without notice or hearing, need not be submitted to the Court, or to a judge thereof. Such orders may be entered for the Court by the clerk, who shall forthwith send copies thereof to the parties.

4th Cir. L.R. 27(b).

Siegel next turns to briefs, and offers a set of suggestions that may cause old-school practitioners and jurists to rebel. For example, he notes that some mandatory sections in briefs are redundant and can be eliminated with no effect on the end product. FRAP mandates a summary of the argument, placed “right before the reader takes in the arguments themselves.” Why do you need that? He notes that some jurists like the summary – he names Justices Thomas and Alito – while Justice Scalia thought it superfluous.

Siegel also thinks that the jurisdictional statement (required in FRAP) and the statement of the standard of review (required in state and federal courts) can safely be ditched. With the former, he notes that “staff attorneys screen the appeal for jurisdiction early on,” and most appeals unquestionably invoke appellate jurisdiction anyway. Why not reserve a discussion for “the unusual case,” in which the court can direct the parties to be prepared to argue the question?

As for the standard of review, he believes that “[i]n the vast majority of cases, the standard is obvious and the judges are already more familiar with it than counsel.” You know what? He’s probably right. The Rules of Supreme Court of Virginia began a few years ago to require that briefs set out the standard of appellate review, and even before that, good appellate lawyers included it voluntarily anyway, as a courtesy to the court. But why? Appellate jurists live and breathe the standard of review; it is as second-nature to them as the route of their daily commute. With the exception of a few dedicated appellate lawyers, an advocate won’t know the standard as well as the jurists will. Again, if there’s a real question about it, the court can direct the parties to address it, rather than require each brief, even in noncontroversial cases, to mechanically include a statement.

So far, there’s nothing in the article that rises to “Damn you” level. I agreed with some of Siegel’s suggestions and felt that others were unneeded. But now we get to oral argument, where he made my blood boil.

Now, as I’ve mentioned here repeatedly, oral argument is the very best part of an appellate practice. It is, as I’ve phrased it, the butterscotch sundae I get to enjoy after I finish my vegetables (the laborious process of editing my brief again and again and again). Siegel thinks so, too: “Like most appellate practitioners, I love oral argument. … Matching wits with adversaries and well-prepared judges in grand, high-ceilinged spaces is great fun.”

Despite this, Siegel thinks oral argument should be changed in a way that facilitates the premise with which he began: limiting expense without prejudicing the quality of decisions. Here’s the paragraph that stopped me dead in my tracks:

Suppose you read something, or two competing versions of something, and want more information from the authors. You probably wouldn’t ask them to spend lots of time guessing what you might ask, allocate days or weeks to review their materials in preparation, then … sit several feet away on a raised platform and ambush them with previously withheld questions. Instead, what most of us would probably do in that situation, assuming some access to the authors, is email.

I invite you to do what I did, and read that passage again. It exposes the terrible inefficiency – an artificial inefficiency, at that – of our system of appellate oral argument. It reveals that our appellate courts’ approach is geared not toward getting the best possible answer to questions – if you wanted that, you’d ask the questions in advance, and allow the advocates to prepare – but toward finding out which advocate can think, or just remember, better on his or her feet. How on Earth does that advance the goal of improving the quality of judicial decisions?

While I would love to cling to my beloved butterscotch sundae, I have to admit that he’s right. You should know that Siegel doesn’t advocate doing away with arguments; indeed, he notes that “[s]ome benefits of oral argument probably wouldn’t be well served by email exchanges.” For example, the public process of arguments helps to legitimize the judiciary in the public’s eye.

In perhaps his most important recommendation, Siegel suggests that “courts should at least provide some or all questions in advance or focus the parties’ attention on specific issues they want addressed at argument.” This can be done through a “focus order” issued by the court before oral argument. This approach would reduce costs to litigants by enabling the lawyer to concentrate her preparations, instead of having to master a massive record in order to be prepared for every possible question. It has no fiscal impact on the court system, so there’s no countervailing budgetary factor.

There’s more in the article, and I commend it to you for a fuller reading. You can see now why I began my appreciative note to Siegel with, “Damn you.” It was quite painful to recognize that the process that I’ve come to love, that I’ve accepted unquestioningly for so long, is inefficient for no good reason. It actually hinders the efficient fulfillment of the courts’ primary role.

Not long ago, I posted an essay here that decried the precipitous decline in oral-argument time. Fifty years ago, in merits arguments each side got an hour to argue in the Supreme Court of Virginia. Now, after a three-step reduction, it’s down to 15 minutes a side. I continue to believe that oral argument is valuable, and that any case that’s going to be decided on the merits by the Commonwealth’s highest court deserves more than the drive-by arguments we’re allowed now. But Siegel’s article convinces me that there’s a better way to do things than the system we’re using. We owe it to the “consumers” of the court system’s services to explore that.