Reforming Richard Posner
[Updates at the bottom of the page]
Many in the legal community were shocked by Judge Richard Posner’s sudden retirement in early September 2017 from the United States Court of Appeals for the Seventh Circuit. So, why did Posner leave the court? As he tells it, he stepped down from the bench because he concluded earlier this year — after 35 years as a federal judge — that the Seventh Circuit was treating pro se (that is, unrepresented) litigants unfairly.
Enter Posner’s new book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, published a few weeks after he retired. (Staff attorneys are court personnel who handle all of the Seventh Circuit’s briefed pro se appeals, a portion of counseled appeals, all of the court’s motions, and all of the court’s certificates of appealability in habeas cases. They are like judicial (chambers) law clerks, but instead of working for only one judge, they write for and assist the court’s judges on a case-by-case basis.)
Posner writes that the book’s main objective is to “convinc[e] the judiciary to render greater justice” to pro se litigants. Unfortunately, the book tells the reader almost nothing about pro se litigants, the hardships they face, or the causes of their troubles. Instead, Posner spends hundreds of pages tearing apart documents written by Seventh Circuit staff attorneys, berating Seventh Circuit judges and staff attorneys alike for their purported hostility to pro se litigants, and exhaustively dissecting his e-mail exchanges with Chief Judge Diane Wood, who vetoed his proposals for “reforming” the staff attorney program.
I have written an article discussing some of the more serious problems with Posner’s book. (The article, available here, is titled Reforming Richard Posner: The Former Federal Judge Needs to Overhaul His Assessment of the Seventh Circuit’s Staff Attorney Program and Correct the Errors in His Book.)
As a former Seventh Circuit staff attorney, I bring an insider’s perspective to bear and point out serious defects in Posner’s book that may not be apparent to those who are unfamiliar with the court’s workings. Because Posner’s criticisms of the staff attorneys’ office are unfounded, I also call on him to correct the errors in his book and to apologize for his unwarranted disparagement of Seventh Circuit staff attorneys.
The following is a brief overview of the book’s flaws; a more detailed analysis is included in my article.
1. A major problem with Posner’s book is his baseless assertion that Seventh Circuit judges and staff attorneys are “massively indifferent” to the plight of pro se litigants. Posner contends, among other things, that Seventh Circuit judges generally “rubber stamp” staff attorneys’ recommendations. But he provides scant evidence to support these beliefs, and the evidence he does offer belies the notion that Seventh Circuit judges or staff attorneys treat pro se litigants unfairly.
He writes for example, that, “[t]hough staff attorneys [currently] are recommending reversing in 17% of the [pro se] cases [decided on the merits], panels agreed with those recommendations only 76% of the time, so only 12.9% of the cases are reversed.”
The rate at which staff attorneys recommend reversal (17%) speaks for itself. But the 12.9% reversal rate that Posner lobs at the reader is incorrect. Using the numbers in his book, a simple calculation reveals that the court’s reversal rate in pro se cases is not 12.9% but 20.4%. Thus, Posner misreports the current reversal rate by more than a third.
Relatedly, the numbers in Posner’s book cut against his claim that Seventh Circuit judges “rubber stamp” staff attorneys’ recommendations. Once again, a simple calculation shows that panels of judges currently are disagreeing with staff attorneys’ recommendations in 11.4% of pro se cases. Posner doesn’t explain how this qualifies as “rubber stamping.”
2. Posner’s main criticism of staff attorneys is that their writing is unintelligible to pro se litigants, but his evidence of this is misleading. Most of the staff-attorney documents he critiques in the book were written by staff attorneys for judges. In other words, the documents that Posner faults for purportedly being unintelligible to pro se litigants were neither written for pro se litigants nor given to them.
This mistake by Posner is not an isolated occurrence. Throughout the book, he demonstrates a lack of understanding regarding the different types of staff-attorney documents, the purposes they serve, and their intended audience.
3. The overriding problem with Posner’s book is that he seems to have only a rudimentary understanding of how the Seventh Circuit’s staff attorney program operates. (This is curious given his claim that he “was the only judge actually interested in the staff attorney program.”)
To take just one example: Posner criticizes staff attorneys for their “verbosity,” but this criticism is inane because it fails to account for the staff attorneys’ having to write for — and please — all of the court’s judges. Staff attorneys walk a fine line. More often than not, one of the judges on a three-judge panel will want a Spartan recommendation, while another will want the staff attorney to address every single one of a pro se litigant’s 23 contentions, even if they all are frivolous or unintelligible. Moreover, staff attorneys must make recommendations based on precedent. They don’t have life tenure, nor do they have the luxury of getting around precedent “by hook or by crook” (as Posner says he did while on the bench).
4. Two words: Posner review.
What is Posner review, you ask? It’s a “modest” (Posner’s word) proposal for reforming the staff attorneys’ office that Posner made shortly before leaving the bench. As he tells it, “The plan was that I would review all staff attorney memos and draft orders before their submission to panels of judges to decide the cases.” Chief Judge Diane Wood nixed the proposal, apparently with the support of the other judges.
Aside from the obvious problems with “Posner review,” I show in my article that Posner’s rewriting staff-attorney documents would not have solved the problem he identifies — the purported unintelligibility of court documents to pro se litigants, most of whom are not well educated. I subject Posner’s opinions to the Flesch-Kincaid readability test, which Posner says “should be applied to every draft order in a pro se’s appeal to make sure the order is intelligible to a pro se.” My analysis shows that the average Flesch-Kincaid grade level of Posner’s opinions is 13.4, making the opinions just barely more “intelligible” than orders written by staff attorneys — orders that have an average Flesch-Kincaid grade level of 15.3.
There are other problems with Posner’s book, but rather than continuing, I invite you to read my full article.
In closing, I note that Posner’s status as a well-known public intellectual and a renowned jurist provides him with a unique platform and the ability to influence the public debate. I hope that in the future he will use these privileges not to punch down at staff attorneys but rather to help pro se litigants, perhaps by advocating for much-needed legal and policy reforms.
Note on the author: I am a lawyer living in Chicago. I was a staff attorney with the United States Court of Appeals for the Seventh Circuit for three years (August 2013 to September 2016). You can reach me at ztasic@gmail.com.
Updates & Corrections:
Update No. 1 – October 5, 2017 (Thursday):
Two readers have notified me of the same error in the PDF of the October 4 version of the full article.
The error occurs near the bottom of page 6. The October 4 version has the following sentence:
“If Posner had said that 12.9% of the cases in which staff attorneys recommend reversal are reversed, he would have been correct (17% × 76% = 12.9%).”
That’s a misstatement. The sentence should be changed to something like:
“If Posner had said that in 12.9% of all pro se cases, panels reverse following a staff attorney’s recommending reversal, he would have been correct (17% × 76% = 12.9%).”
I am uncertain whether the two readers want to be credited, so I’ll update once I hear back from them. [Update, Oct. 7, 2017: The two readers who notified me of the misstatement wish to remain anonymous.]
Also, I identified a typo: a parenthesis is missing from the bottom of page 1.
I’m currently on vacation (typing this on my phone), but I will correct these errors and post an updated PDF of the article next week. A link to the original article from October 4 will remain so that readers can note changes.
Update No. 2 – October 9, 2017 (Monday):
I have now corrected the errors in the article that I identified in my October 5 post (as well as a couple of other typos and stylistic errors).
The revised version of the article (I’ll call it revision 1), is now available here. The fact that this article is a revised version is reflected in the footer of the first page of the PDF, which states, “[Revised Oct. 9, 2017].”
I have replaced the links in the Medium summary to go to the revised version, but the original (October 4) version of the article is still available here.
Any future revisions will be noted here. As I said in my earlier post, all versions of the article will remain available so that readers can note changes.
