Even though the burgeoning dockets of the federal courts of appeal are well known (there were nearly 5,000 new appeals in the Sixth Circuit last year) most attorneys would be surprised to learn that over 50% of those cases were decided pursuant to recommendations made by staff attorneys. Like all other circuits, the Sixth Circuit has a staff attorney’s office that prepares memoranda and proposed orders in certain cases. Of course, the judges review all recommendations and make the final decisions, but the staff attorneys are an essential part of the court. The Sixth Circuit has approximately 28 staff attorneys and four motions attorneys who handle motions in orally argued cases.
Staff attorneys in the Sixth Circuit draft memoranda and proposed orders in cases that are considered less complicated or in some cases where the litigants do not request oral argument. This includes many prisoner and immigration cases, cases with pro-se litigants, requests for certificates of applicability, and many habeas cases. The attorneys do handle civil cases but rarely see commercial appeals. While briefs that ask for oral argument do not ordinarily go to staff attorneys, there is a some movement in the Sixth Circuit (and other circuits) to push all appropriate cases to staff attorneys for a screening review regardless of the parties’ preferences or the type of appeal. As noted by 6th Cir. I.O.P. 34(e), the staff attorneys are also involved in the initial identification of which cases can be decided without oral argument under Rule 34(a)(2).
After a staff attorney writes a memorandum and proposed order, a supervisor reviews the draft, then the draft is sent to the motion judge or panel. As in the First, Second, and Third Circuits, there is generally no interaction between the staff attorneys and the judges in the vast majority of the cases. The Fourth Circuit presents an interesting contrast. Its judges discuss each case with the responsible staff attorney before the case is decided.
It is also worth noting that the Sixth Circuit may rely less on staff attorneys than some other circuits as measured by the ratio of staff attorneys to the cases per active judge. The D.C. and Third Circuits have one staff attorney for every 9 cases per active judge. The Fourth Circuit uses one attorney per 10 cases/judge. The First Circuit has one staff attorney for every 13 cases, which is just more than the Sixth Circuit’s use of one staff attorney for every 12 cases. In absolute terms, the Sixth Circuit has about two staff attorneys per active judge, while the First, Second, and Fourth Circuits have roughly three attorneys per active judge. The difference between the relative and absolute numbers of staff attorneys is probably due to the relative volume of immigration or prisoner appeals (or similar cases) in each Circuit.
This is part of a series of posts on the case management procedures in the Sixth Circuit, and draws on a recent article by Marin Levy in the Duke Law Journal discussing the practices in other circuits.