May 19, 1998

Commission on Structural
Alternatives for the
Federal Courts of Appeals
Thurgood Marshall Federal
Judiciary Building
One Columbus Circle, N.E.
Washington D.C. 20544

Dear Commissioners:

I appreciate the opportunity to comment concerning the important duties you have.

My comments should not be taken as criticism of the persons or the abilities of the judges and staff of the Ninth Circuit Court of Appeals. They are fine and honorable people.

I write to express my belief that in the best interest of the judiciary, the bar, and most importantly, the litigants, the Ninth Circuit Court of Appeals should be divided.

Because of the large volume of cases to hear and decide, and the equally large number of appellate panels dealing with all these cases, as a trial judge, it is nearly impossible to keep up with the constantly changing law. This situation affects trial litigation daily. I am referring to everything from motion practice to jury instructions and trial rulings.

While I do not speak for the bar, these same uncertainties must also affect the practicing bar and the litigants. Unfortunately, this situation also results in increasing trial and appellate litigation and continually increasing the cost of the litigation process.

J. Harvie Wilkinson, III, the Chief Judge in the Fourth Circuit, wrote in a recent article for the Wall Street Journal, as follows:

Growth in the federal judiciary has three main costs. The first is that of simple inefficiency. Large circuit courts of appeals present problems that small ones don't have. There are more internal conflicts in circuit law. These must be resolved by more en banc hearings of the full court. If the en banc court consists, for example, of 20 judges as opposed to 12, it takes twice the time even to get the decision out. Judges on a large court must also spend more time simply keeping abreast of the work of other panels -- time that cannot be spent resolving their own cases.

The second cost is that of litigiousness. With a smaller court of appeals, the possible panel combinations of three judges are less numerous and the law is more coherent. Legal principles are discernible and judicial outcomes are predictable. As a court grows, so do the possible panel combinations, and the law becomes fuzzier and less distinct. Litigation takes on the properties of a game of chance and litigants are encouraged to come to court for the roll of the dice. When legal outcomes are uncertain, cases are brought for their settlement value and parties lack clear guideposts for their conduct out of court.

Judge Wilkinson has set forth the concerns in a more articulate manner than I have. They are particularly applicable to the Ninth Circuit Court of Appeals situation.

I certainly am aware of not only the vacancies that create problems, but also the extensive and effective use of technology and additional staff in the effort to address the concerns I have mentioned. Unfortunately, the problems continue to exist. I am concerned if there are to be an additional 10 appellate judges as requested by the Ninth Circuit, the problems will be compounded.

Others who are more qualified and have spent great effort in reviewing the matter have adequately addressed how the circuit should be divided. I concur with the thought that the division of the Ninth Circuit is inevitable given the several problems I have mentioned.

I would respectfully urge this Commission to give most serious consideration to the division of the Ninth Circuit in the interest of judicial efficiency, certainty in the law, and most importantly for the efficiency and fairness of the litigants.

Thank you for the opportunity to express these concerns.

I am,
Sincerely,


Fred Van Sickle
United States District Judge