Third Circuit Chief Judge D. Brooks Smith discussed the state of the circuit yesterday at a CLE program in Philadelphia. The event was put on by the Philadelphia Bar Association. I posted separately here about Chief Judge Smith’s important remarks about judicial independence at the end of the event.
Here are some other highlights from his talk:
- The federal courts’ caseload has declined since 2008, which he called a “concerning phenomenon.” The Third Circuit’s caseload has dropped since 2014.
- Specific caseload areas are growing, including health care/pharma and criminal cases from New Jersey, civil cases from Delaware, and, above all, immigration cases.
- Pro se appeals are a majority of the Third Circuit’s caseload and have been for several years. In 2018, pro se appeals were 56% of the court’s cases.
- Chief Judge Smith spoke at some length about the circuit’s oral-argument rate and why criticism of that rate as too low is overstated. He noted that few pro se cases are appropriate for oral argument, and that hearing fewer arguments allows the judges to rigorously prepare for the ones they hear. And he observed that the court hears oral argument in over a third (34.6% in 2018) of the cases submitted on the merits, which he characterized as “not a bad rate.”
- As to argument video, he noted that court upgraded its video cameras, microphones, and audio to reduce feedback (praise be!). They’ve added the ability to focus on individual judges. He expects video posting to increase over time, as some have pointedly urged, and thinks that is a good thing even though he was “no great friend” of video-recording arguments originally. He reported that, in 2017, the circuit posted of video of 7.5% of its arguments, and 8.8% in 2018. Only two videos have been posted from the 95 arguments so far in 2019, but he predicted that will increase.
- The circuit has been using software that inserts quasi-hyperlinks to cases and other legal authorities for judges reading briefs. He also mentioned software that links to appendix citations, but I’m not clear whether that’s live yet.
- Chief Judge Smith has worked to get the attention of New Jersey’s senators to the state’s many district court vacancies, which have put D.N.J. in “dire straits,” but “so far without any success.”
- The next circuit bench–bar conference will be in May of 2020 in Philadelphia.
- The court held its judges-only conference last fall, which focused on judicial wellness. One aspect discussed was judicial disability, and Chief Judge Smith encouraged lawyers to contact him directly with information about a judge’s misconduct or disability.
- He tries to keep an eye on cases that are taking particularly long to be decided. If lawyers believe a case is taking inordinately long, he invited them to bring it to his attention. (Asked how long is long enough to contact him about, he quipped, “You’re lawyers, figure it out.”)
- He spoke at length about the Judiciary Workplace Conduct Working Group, which Circuit Executive Margaret Weigand was a member of. He emphasized attorneys’ ability to report misconduct based on second-hand awareness as well as judges’ duty to report, and described the efforts as a “major step.”
- Chief Judge Smith was “deeply disturbed” that major news reports had painted a misleading picture about the number of misconduct complaints against judges. He observed that the majority of internal complaints were against non-judges, and that the reports failed to note that the “vast, vast” majority of complaints against judges were brought by disappointed prisoners and pro se litigants.
- He spoke candidly about the court’s decision to create an award named for Joseph Biden recognizing service to the court: “the courts don’t have many friends,” so the decision was made to recognize “in as conspicuous a way as possible” those who had done a lot for them.
- Asked for practice tips, he described, “brazenly and shamelessly,” his dim view of reply briefs. Most are repetitive, merely rehashing the opening brief, rarely presenting much that alters the equation in any way. In fact, his normal practice is to read the opening briefs and answer briefs before giving the briefs to his clerks, but, as to reply briefs, he just asks the clerks to read them and let him know if there’s anything in them he needs to know about. Zounds! He jokingly thanked the audience for letting him “vent on a subject very near and dear to my heart.”
Kudos to the Philadelphia Bar Association for putting on this valuable event.