We sat down recently with the Clerk for the United States Court of Appeals for the Sixth Circuit, Leonard Green, who has been the Clerk at the court since 1988. Mr. Green was gracious enough to share some of his time and provide some insights on practice before the Sixth Circuit.
Q: How has the process of electronic filing at the Sixth Circuit been going from the court's perspective?
A: It has been going marvelously. We have been using electronic filing now for three years and most of the kinks have been worked out. Everyone is pretty well up the learning curve now, although it was a relatively easy transition for many practitioners who were accustomed to electronic filing at the district court level.
Q: How has the feedback been from the lawyers with whom you've spoken?
A: The feedback is uniformly positive. We spent a lot of time on education efforts at the front end of electronic filing and I think that helped everyone get comfortable with the process. And the electronic filing has certainly made our life easier in the clerk's office.
Q: Is the Sixth Circuit the only circuit that uses electronic filing almost exclusively?
A: Yes, we are the only circuit that does not allow paper briefs in counseled cases (with a few limited exceptions). I still get some strange looks from my fellow circuit clerks across the country about that fact.
Q: How has electronic filing changed the way that judges read the briefs?
A: It varies from chamber to chamber as to whether they print the briefs out or read them on their screens. The majority probably print out the briefs in order to read them, but I think several of the judges are comfortable reading on the screens, and devices like the iPad have made that even easier.
Q: What is the status of the rules revision process currently underway at the Sixth Circuit?
A: The proposed rules revisions have been submitted to the judges, and they are taking some additional time to review these changes before deciding upon them. I would expect that in another month or so we will be in a position to submit the revised rules to the public for public comment. It's my goal to have the new rules in effect by December 1. And we certainly hope that the lawyers out there will give us good feedback on the proposed rules that will be tendered for consideration.
Timing of Sixth Circuit Appeals
Q: The time between the close of briefing and argument seems to have been getting longer. Is this something that the court has focused upon recently in order to speed up the process?
A: The court is very concerned about the timing question. It has been considering adopting changes to the calendar structure in order to facilitate and expedite decisions. Rest assured that the timing question received a good deal of attention at the recent Sixth Circuit Judicial Conference, and help is on the way.
Q: Does the Sixth Circuit still grant argument in virtually every case where counsel requests it?
A: That certainly has been the historic tradition, but now judges are becoming a bit more proactive in evaluating whether oral argument in necessary. The panels do not deem themselves constrained now by a request for oral argument, but they certainly do give deference to the request. I expect that in the next few years, the court will continue to be more judicious in allowing oral argument in cases. There has also been recently an increased frequency of panels issuing opinions prior to a scheduled oral argument.
Q: How many oral arguments does an active judge typically hear in a given year?
A: Each active judge will hear about 125 cases at oral argument over a year.
Organization of the Clerk's Office
Q: How is the clerk's office organized?
A: We have approximately forty people working in the clerk's office, nearly half of whom are case managers. Case managers are the ones who handle the day-to-day management of cases pending at the Sixth Circuit, they interface with the lawyers, they send letters out, etc. In other words, they keep the cases moving. There are also five employees in the calendaring division, who help set up the calendars for oral arguments. However, the Circuit Executive's Office works to constitute the panels and there's a double-blind process so that no one knows which case might be assigned to which judge. We also have other employees, such as an en banc coordinator and individual in charge of the published opinions.
Q: What about motions attorneys and staff attorneys?
A: The motions attorneys are in the clerk's office and they deal predominantly with motions that are filed at the Sixth Circuit. Often, these attorneys will make recommendations to the panel on the disposition of particular motions. Staff attorneys are a separate group outside of the clerk's office, and they have a very important role in terms of screening certain categories of cases and making recommendations to the panel on the disposition of those cases. Staff attorneys devote substantial time to the Circuit's pro se cases.
Types of Cases at the Court of Appeals
Q: Can you tell me a little bit about how the Sixth Circuit's docket is comprised?
A: Direct criminal appeals constitute around 22% of the docket, and habeas and prison civil rights cases take up about 45% of the docket. So as you can see there is a substantial portion of the docket that is devoted to criminal-based appeals. About 7% percent of the cases are immigration cases and about 18-22% of cases are the more traditional federal question or diversity civil cases.
Q: So is it fair to say that commercial disputes comprise a fairly small sliver of the court's docket?
A: Yes, and in fact in recent years the commercial aspect of the docket seems to have been decreasing.
Q: What has been the court's recent practice relative to visiting judges?
A: The court has recently cut back on its use of visiting judges, although they remain an indispensible part of the court's operations. In 2010, senior judges comprised about 15-16% percent of each of the panel and visiting judges comprised about 15-16% as well. So as you can see, it's a tremendous amount of support both from senior judges and visiting judges. In fact, we are fortunate now to have nine senior judges who are all very active and helpful in connection with processing the court's case load.