Judges Programs - Annual Report 2010

Article III Vacancies, Nominations, and Confirmations

As of September 30, 2010, there were a total of 105 Article III judgeship vacancies: 20 in the courts of appeals and 85 in the district courts. Forty-seven nominations were pending: 13 for the courts of appeals and 34 for the district courts. After the 111th Congress convened in January 2009, 41 Article III circuit or district judges were confirmed. Action on Article III judgeships is discussed in the Legislative section of this report.

Visiting Article III Judges

Judges who volunteer to serve in other circuits and districts help the Judiciary address constantly changing workload demands. The Judiciary uses intercircuit and intracircuit assignments of Article III judges to provide short-term assistance to courts with overwhelming caseloads. Since October 2008, when the Conference Committee on Intercircuit Assignments expanded its efforts to recruit visiting judges, the number of intercircuit assignments has increased by 18 percent. For the 12-month period ending June 2010, visiting judges participated in 4,042 appeals closed after oral hearing or submission of briefs. In the district courts, visiting judges closed 1,725 civil cases and cases involving 561 criminal defendants. During the same time period, the Chief Justice approved all 206 intercircuit assignments recommended by the Committee on Intercircuit Assignments.

International Judicial Relations

In support of the Conference Committee on International Judicial Relations, the AO coordinated briefings for 64 international delegations, including 681 judges, court administrators, and other officials from 86 countries during FY 2010. AO staff also supported federal judges who hosted visiting foreign judges and court administrators in their courthouses, and judges who traveled abroad to support international rule-of-law programs sponsored and funded by other federal government agencies and international organizations.

Online System for Clerkship Application and Review

The Online System for Clerkship Application and Review (OSCAR) allows federal judges to post clerkship opportunities and accept electronic applications. In fiscal year 2010, with 1,501 judges participating, the program expanded to include a staff attorney hiring module. This addition allows appellate staff attorney offices to post their attorney position notices online and accept electronic applications from third-year law school students and alumni.

Rules Developments

In April 2010, the Supreme Court approved a series of amendments to the Federal Rules that were proposed by the Conference Committee on Rules of Practice and Procedure, and recommended to the Court by the Judicial Conference in September 2009. Among the amendments are significant changes to Rules 26 and 56 of the Federal Rules of Civil Procedure. The amendments to Rule 26 apply work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, communications between those witnesses and retaining counsel. After extensive study, the Advisory Committee on Civil Rules concluded that the best means of evaluating the merits of an expert opinion is by cross-examining the expert on the substantive strength and weaknesses of the opinions and by presenting evidence bearing on those issues. The advisory committee also concluded that discovery into draft reports and all expert-attorney communications was not an effective way to learn or expose the weaknesses of the expert's opinions; was time-consuming and expensive; and led to wasteful litigation practices to avoid creating such communications and drafts in the first place.

The amendments to Rule 56 are designed to improve the procedures for presenting and deciding summary-judgment motions, to make the procedures more consistent across the districts, and to close the gap that has developed between the rule text and actual practice. The proposed amendments draw from summary-judgment provisions that many local rules have in common, and are not intended to alter the summary-judgment standard or burdens under a rule that has not been significantly changed for more than 40 years.

The Federal Rules amendments approved by the Supreme Court took effect on December 1, 2010.

Civil Litigation Conference

Approximately 200 judges and lawyers attended a Litigation Review Conference organized by the Conference Advisory Committee on Civil Rules held in May 2010 at the Duke University School of Law. Judge John Koeltl of the U.S. District Court for the Southern District of New York chaired the conference planning committee.

The advisory committee invited more than 70 moderators, panelists, and speakers to address pleading, electronic and other discovery, summary judgment, and trial issues. In preparation for the conference, the advisory committee commissioned more than two dozen empirical studies and surveys from the Federal Judicial Center, major bar organizations, and research institutions. The panel members, including plaintiffs' lawyers, defense counsel, corporate counsel, bar association officials, academics, state judges, and federal judges, also presented dozens of white papers describing litigation problems and suggesting alternative solutions.

Reaching consensus on some issues, participants discussed possible rule changes, as well as possible changes in statutes and in judicial and legal education. In October 2010, the advisory committee and the Committee on Rules of Practice and Procedure submitted a report to the Chief Justice outlining the steps they plan to take over the next several years to address the many issues raised at the conference. A web page with resources related to the conference can be located by visiting uscourts.gov and entering "Civil Litigation Conference" in the search box.

Civil Litigation Management Manual Revised

As required by the Civil Justice Reform Act of 1990, the Judicial Conference, with assistance from the AO and Federal Judicial Center, prepares, periodically revises, and transmits to U.S. district courts a manual for litigation management and cost delay reduction. The Civil Litigation Management Manual was first developed by the Conference Committee on Court Administration and Case Management for publication in 2001. Approved by the Judicial Conference in March 2010, the second edition of the manual was prepared under the direction of the same Conference committee during the chairmanships of Judges Julie A. Robinson and John R. Tunheim, with substantial contributions by the AO and the FJC. The manual helps federal judges secure "the just, speedy and inexpensive determination of every action."

The manual was mailed to all judges, and is available on the Federal Judicial Center website. It also can be reached on uscourts.gov, under Federal Courts, Publications.

Appellate Court Statistics Manual Updated

An ad hoc focus group established in 2008 with representatives from nearly every U.S. court of appeals, the bankruptcy appellate panels, and the AO staff, worked to develop a new appellate court statistics manual. The resulting Appellate Statistics Information Reporting Manual is a comprehensive road map for greater uniformity in statistical data reporting for the U.S. appeals courts. Released in September 2010, the manual addresses the introduction of electronic filing, advances in technology, and legislative amendments that created new categories of litigation and the need to track their impacts.

Civil Justice Reform Act Reports Now Online

The Civil Justice Reform Act of 1990 (CJRA) requires the AO to prepare semiannual reports showing, by U.S. district judge and magistrate judge, all motions pending more than six months, all bench trials that have remained undecided more than six months, and all civil cases pending more than three years. In accordance with Judicial Conference mandates of 1998, the CJRA reports also present data on bankruptcy appeals pending more than six months and Social Security appeal cases pending more than six months. In 2010, the Judicial Conference asked the AO to begin making both the summary and detailed CJRA reports available on the federal Judiciary's public website.

Bankruptcy Forms Modernization

Well-designed forms are important to customers in the bankruptcy process. The Forms Subcommittee of the Advisory Committee on Bankruptcy Rules continues its multiyear Forms Modernization Project (FMP), initiated in 2008. Their recommendations will make the bankruptcy forms more user-friendly and less error prone, and more technology driven. With expert help in forms redesign, the FMP has completed initial drafts of most forms. Representatives of professional organizations, software providers, career law clerks, attorneys including "occasional" filers, and lay people will test the forms before they are finalized. The FMP timeline projects the Advisory Committee on Bankruptcy Rules to recommend publishing the package for comment in fall 2012.

Magistrate Judge Statistical Reporting

Magistrate Judge Statistics Through Automated Records (MJSTAR) is an automated reporting function in the CM/ECF system. MJSTAR improves the consistency and reliability of magistrate judge statistical information nationwide by minimizing manual entry of data and standardizing data collection methods throughout the courts. As of September 30, 2010, 90 district courts were "live" on MJSTAR.

International Prisoner Transfer Program

As provided by statute, magistrate judges conduct proceedings to verify a convicted offender's voluntary consent to transfer to his or her country of citizenship to serve the remainder of a sentence in keeping with a prisoner transfer treaty. In FY 2010, magistrate judges conducted consent verification proceedings in Canada, Venezuela, Spain, Panama, Japan, Hungary, Thailand, and Germany. Attorneys from federal defender organizations served as counsel to the prisoners seeking transfer.

Delayed Notice Search Warrant Reporting

The USA PATRIOT Improvement and Reauthorization Act of 2005 requires the AO to submit annual reports to Congress on delayed-notice search warrants. The Act requires judges to inform the AO of their action on any application for a delayed-notice search warrant and on extensions of delayed-notice authorizations. On July 2, 2010, the AO submitted its third annual report to Congress summarizing the information it receives from judges. The report indicated that in FY 2009, judges in 69 districts reported 1,899 requests for delayed notice, including 150 initial requests for delay and 749 for extensions. Six applications were denied, 27 were granted as modified, and the rest were granted as requested.