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During the past few years, statements have been made, articles have been written and questions have been posed about whether a backlog exists in the dockets of federal district courts. These questions are often raised in association with queries concerning judicial vacancies, travel, workload, courtroom hours and other issues that raise the ire of chronic critics of the judiciary. Unfortunately, they are sometimes based on cursory examinations of statistical data, which are often misunderstood and, at times, intentionally misused and abused. In an effort to examine the severity, if any, of such backlog, this article examines various data from the Administrative Office of the U.S. Courts for the years 2000 to 2005. A cursory review of the Annual Reports of Judicial Business in the U.S. Courts for the relevant years initially appeared to discount much of the concern. (See www.uscourts.gov/judbus2005/contents.html and the charts on pages S6, S7.) It indicated that, cumulatively, filings, terminations and pending cases had remained relatively stable over the five-year period in question. Median times from filing to disposition for civil cases ranged from a low of 8.2 months to a high of 9.5, while time from filing to completion of trial in civil cases went from a low of 20 months to a high of 22.6. The percent of civil cases more than three years old did rise from a low of 12.2% to 14.9%, but none of these ranges seem startling or an indication of a major gridlock problem. This is especially true given that none of these ranges exhibited a consistent upward trend. Instead, they showed mild fluctuations during the period studied. Once the focus shifted from cumulative figures to individual districts, however, the potential questions became both more numerous and more interesting. On a variety of indices, courts often differ dramatically from one another, both intercircuit and intracircuit. For instance, pending civil cases in district courts within the 4th U.S. Circuit Court of Appeals dropped by 60.9% from Sept. 30, 2004 to Sept. 30, 2005, while they increased by 10.4% in district courts within the 6th Circuit during the same period. Within the 4th Circuit, pending cases in the District of South Carolina decreased 86.1%, but increased 6.7% in the Eastern District of North Carolina. If one examines the South Carolina data more closely, they indicate that 23,599 cases were filed in fiscal year 2004, and 24,178 cases were terminated from that district in fiscal year 2005. These are astounding numbers. One possible explanation is that many cases related to the same event (for example, a mass tort, or a large bankruptcy) or the individual cases of a multidistrict litigation were filed in 2004 and either dismissed or transferred the following year. Statistical anomalies occur, and this article has neither the space nor the data-if they exist-to explain the causes for these disparate results. Instead, it sets forth some of the more extreme examples that occurred between 2004 and 2005 and suggests possible hypotheses that might be worthy of future study and would provide a more realistic view of the workload in federal courts. Trial rates An interesting, though relatively minor, variance deals with trial rates across the country. The overall percentage of civil cases terminated in 2005 that went to trial was 1.4%. The ranges among districts were from 0.2% (in South Carolina, with its unusually high termination count that year) to 4.3%. Of the 12 districts whose rate was 3% or above, three had no authorized Arbitration, Early Neutral Evaluation and Mediation Program, and several of those remaining had programs that were only lightly utilized. (Approximately 69 of the 94 districts have such programs.) Many of these court-annexed alternative dispute resolution (ADR) programs are relatively new, and the methods of collecting data are not uniform. Further, the increasing use of private ADR providers, which often have a settlement success rate of more than 95%, is likely also pulling cases off trial dockets. Thus, attempting to determine an association, if any, between the availability of ADR and trial rates also remains a question for another day. The next example is based on changes in case profile, i.e. the nature of the suits commenced. The total number of cases commenced decreased by 10%, but the distribution of cases by categories altered significantly. Real property actions decreased by 22%; banks and banking by 29.5%; environmental matters by 27%; deportation cases by 36.4%; and securities, commodities and exchanges by 34.1%. On the other hand, protected property rights (intellectual property) as a category increased by 27%, with copyright cases, constituting a whopping 92.8% increase and patent cases actually decreasing by 11.6%. One can speculate on the reasons for these statistics: legislative acts by Congress that modified the jurisdiction of the district courts; a changing emphasis by federal agencies as to the focus of internally generated litigation; and an increased emphasis on communication technology, globally and domestically, raising the economic value of copyrights. One can also speculate on how this shift may affect the workload of the courts. The role of IP cases It is fair to say that there is a perception among at least some federal district judges that patent and copyright cases generally consume far more court resources than do most other types of civil cases. They often involve claims for huge sums of money for alleged past bad acts, as well as concerns over market position in fast-moving technologies, leading to aggressive litigation postures, e.g. more discovery disputes, more motions, etc. One could thus assume that although a reduction of real property cases in 2000, matched by an increase of IP cases the same year, may be statistically neutral in a composite view, the reality of such a shift is far different. It would also be extremely helpful to know the judicial vacancy rate in the districts affected by such shifts. Generating the facts to fully and fairly examine any of the above requires an expenditure of resources that may quickly exceed the value of the answers, in the minds of many. Simplistic as they may be, however, questions like this help to demonstrate some of the circumstances that make a rational analysis of judicial workload a complex and time-consuming problem. One of the measurements often used by Congress and others looking to find fault with the performance of the district courts is the percentage of cases pending for three years or more. As of Sept. 30, 2005, that number overall was 14.9%, which may or may not be indicative of anything. But the usefulness of such index is immediately suspect when a “quick peek” indicates that the Middle District of Louisiana’s rate was 85.2%, the Eastern District of Michigan’s was 75.1% and the Virgin Islands’ was 30.1%. On the other hand, of the 94 districts, only 15 (approximately 16%) had a three-year pending rate of 10% or more (including Guam and the Northern Mariana Islands, whose case counts are very low). The point is that unusual circumstances in only three districts can sometimes skew results, leading to conclusions both erroneous and unfair. Recent changes in cases filed The final example focuses on the percentage change in cases filed between 2004 and 2005. Overall, the statistics show an 8% drop in cases filed. Does this indicate less work for the courts? For some, perhaps. The District of Rhode Island is down 30.8%; the District of Delaware, 36.3%; the District of South Carolina, an astounding 83.2%; the Western District of Arkansas, 33.2%; and the District of Minnesota, 42.6%. Other courts, however, were in a very different situation. The Eastern District of Louisiana was up 40.7%; the Middle District of that same state was up 31.8%; the Eastern District of Arkansas up 39%; and the District of Arizona up 38.4%. The important point is not the cause of the individual changes as much as the danger of assuming that the district courts have less work, because of one cumulative number, or of assuming that any of these changes are indicative of long-term changes rather than temporary blips on the radar screen. Empirical data are a valuable and necessary tool in virtually all of modern research and study. But, like any tool, it can be, and often is used erroneously and for inappropriate purposes. The federal judiciary is an integral and fundamental cornerstone of the checks and balances of our system of government. Of course it should be open to analysis and to constructive criticism. But it deserves that such analysis be done carefully and with the respect due any branch of government. Fern M. Smith spent 17 years as a judge for the U.S. District Court for the Northern District of California, in San Francisco. She is currently a full-time mediator and arbitrator with JAMS, The Resolution Experts, based in San Francisco. She can be reached at [email protected].

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