A LOOK AT APPELLATE STATISTICS – PAST AND FUTURE

(Posted March 18, 2021) The Robes by the James have stiffed us for opinions for the third consecutive Thursday. Let’s look at some numbers instead. After all, there are three kinds of people in this world: those who can count, and those who can’t.

2020 SCV stats

My annual goodie bag has arrived – the Supreme Court of Virginia Statistical Report. It contains scads of details about the court’s operations. Here’s some of what it shows:

Filings are (unsurprisingly) down – SCV Clerk Doug Robelen opened 1,575 new files last year, down roughly 10% from 2019’s figure. I had expected a drop like that because of the pandemic. As appellate lawyers are well aware, circuit-court final judgments dropped off a cliff last year once the pandemic set in; we saw almost no circuit-court jury trials after the Ides of March, and they’re only starting to resume now.

Final judgments in those cases are the raw materials of an appellate practice. Until the trial courts resume something approximating their pre-pandemic pace, appellate courts will see depressed caseloads.

The pain of this reduction wasn’t felt across the board. Criminal appeals remained nearly constant – 831 in 2019 and 818 last year. There was a minor reduction in habeas cases, too. But almost all of the statistical decline came in civil cases: 496 in 2019, down to 360 in 2020 (-26%). The reason for that civil-criminal dichotomy is that the SCV gets criminal appeals only after a stop in the Court of Appeals. The halt in jury trials didn’t affect that pace last year, because the CAV kept on deciding appeals. Thus, The Robes continued to receive criminal appeals while the civil pipeline was mostly stopped up.

Decisions are down, too – The justices announced just 50 published opinions last year. That’s easily the smallest number in all the years for which I have court stats, and my records go back to 1965. I bet you can guess what year finished second-lowest by this metric: 2019, with 59 published opinions.

When you add in the cases decided by order (omitting those where the appellant withdrew the appeal, the parties settled, etc.), last year we got only 86 merits decisions.

Appellees are doing well – Again counting only those merits decisions where the court ruled, the court affirmed roughly 58% of the time. It reversed in whole or in part 41%. This is within what I consider to be the normal annual variance. Note that with a shrinking pool of decisions, we’re likely to see wider swings away from the 50% mean.

Of course, appellees always win when the court refuses or dismisses a petition for appeal. From all 398 civil appeals on which the court ruled last year, it granted 72 (18%), procedurally dismissed 86 (22%), and refused 237 (60%). Criminal appellants took a bludgeoning, as usual; the court granted only 19 writs out of the 794 criminal appeals, a grant rate of 2.4%.

OJ petitioners fare no better – The justices have an original-jurisdiction docket, too. These aren’t truly appeals, in that they’re originally filed in the Supreme Court. They represent things like mandamus and prohibition requests, habeas filings, and the occasional petition for a writ of actual innocence. In 2020 the justices awarded OJ relief to five petitioners out of the 250 filed. That’s 2%.

Last Chance Gulch: rehearings – I met an appellate lawyer from Montana last month, and he told me that Last Chance Gulch was the original name of Helena, the state capitol. (No, really.) That’s poetry, I thought. I decided that that would be a suitable title for the Hail Mary pass that is a petition for rehearing.

In the SCV, there are two types of rehearing petitions. You can seek rehearing after a panel refuses or dismisses your petition for appeal, of you can try it after the full court issues a decision on the merits. For the former type, called panel rehearings, the court granted relief three times and refused it 221 times. For session rehearings, all eleven petitioners struck out. (The last time the court granted a session rehearing was in 2018.)

A crystal-ball peek at 2022 stats

This retrospective-review stuff is too easy. Anybody with a head for numbers can look at what happened last year; the real skill is figuring out what’s going to happen next year. Given the tremendous changes that appear to be on the appellate horizon, let’s venture into the future and see what we can forecast.

First, a word about SB 1261. I’ve mentioned the progress of this bill on a few occasions, most recently on February 12. Both chambers passed versions of the bill, providing for an expanded Court of Appeals that would have original jurisdiction of almost all appeals, civil and criminal, on an of-right basis. The SCV would become a court of pure certiorari.

A conference resolved the differences, and both chambers then passed the legislation on a party-line vote. The bill will increase the size of the CAV to 17 judges effective January 1, 2022. It’s on the Governor’s desk, and he has until March 31 to act on it. I believe he’ll sign it.

This bill has become a political lightning rod, as Republican legislators claim that it’s a Democratic plot to stuff the court full of liberals. As I explained previously, the proposal itself is nonpartisan; also, there are ten judges that I think I can describe as all being fairly conservative on the court now, so the best the Democrats would be able to do is install a minority of liberal judges. In this analysis, I’ll leave the political squabbles to others. Let’s just focus on how the change would affect the courts’ caseload.

Changes in the CAV – I’m hearing Chicken Little warnings about how the Court of Appeals is going to be buried in new filings and won’t be able to keep up, even with a 70% increase in judicial talent. I firmly believe that that’s not true. Let’s look at the numerals. I’m going to use 2019 stats as a baseline here, because I want prepandemic figures for comparison’s sake.

Filtering out the cases filed mistakenly in the CAV, Clerk Cyndi McCoy opened about 2,000 new files in 2019. About 1,500 of those were in criminal appeals. Starting in January 2022, the court will now receive what’s now the SCV’s civil docket, too.

In 2019, SCV Clerk Doug Robelen opened 496 new civil files, a stat that I reported above. Let’s call it 500, and assume that the CAV gets them all. That’s a docket of 2,500.

Two factors will foreseeably cause these numbers to rise. First, the absence of a writ process may lead more disgruntled civil litigants – God, how I love disgruntled civil litigants – to roll the dice on an appeal. After all, if you have an appeal of right, why not take the chance? I believe that the increase in civil petitions will be on the order of 10-20%. But let’s be liberal with this estimate and call it 50%. That adds another 250, for a total docket of 2,750.

The next factor is one that has nothing to do with SB 1261: Virginia has dropped jury sentencing, effective July 1, 2021. This development promises to cause a spike in criminal jury trials across the Commonwealth, as defendants won’t be frightened into plea agreements by the prospect that a jury could send them to prison until the Gaga Administration, second term.

Again, this factor isn’t traceable to the expansion of the CAV, but let’s assume that another 33%, or 500 criminal appellants decide to try their hand with an of-right appeal. That increases the criminal docket from 1,500 to 2,000. Now the total CAV docket is around 3,250.

Right now, the court is handling a 2,000-appeal docket with ten judges. If my figures are right, the caseload will increase by a little over 60%. But the court is getting 70% more judges. I don’t see the crisis.

There’s more. Fifteen years ago, in 2006, guess how many appeals the CAV took in? I’ll spoil your surprise: it was 3,211. That’s roughly the number that I’ve estimated for 2022. And the court handled that larger docket with just eleven judges.

There are complicating factors in the details. Each criminal appellant will now get an oral argument before a three-judge panel instead of the initial one-judge review on the briefs alone. That might make for more work in some criminal appeals. But in my experience, in most appeals in which the one-judge per curiam order refuses the petition, the appellant currently seeks automatic review by a three-judge panel. That means that the overall workload won’t grow by an order of magnitude; you could even make a plausible argument that the total judicial work in the average criminal appeal will go down.

There will inevitably be growing pains in the first year, as former trial judges or practitioners adjust to life as an appellate jurist. But I don’t perceive that the sky’s falling here.

Changes in the SCV – Next year will bring a significant change for the justices. On January 1, 2022, the pipeline of civil appeals will shut off abruptly. Oh, the court will still get the occasional petition to review a CAV judgment in domestic-relations or Workers’ Comp decisions handed down by the Court of Appeals in late 2021. And the stream of unhappy criminal appellants will continue unabated. But for the first chunk of 2022 – my ballpark estimate is about eight months, from January through August – the court will see a noticeable downturn in incoming business.

Of course, we might not notice that downturn, given what 2021 is likely to provide. See above, where I described the effect of the now year-long shutdown of jury trials on the appellate dockets. Let’s just say that, as measured against prepandemic dockets, 2022 will bring a significant reduction in the Supreme Court’s caseload.

We’ll see the effects of this in the size of the SCV’s merits dockets. As noted above, criminal appeals enjoy a tiny rate of success at the petition stage. And over the past five years – from 2016-2020 – civil appeals have made up roughly ¾ of the merits docket. At some point in 2022, those appeals will simply vanish from the Supreme Court’s radar; they’ll be next door, in the Court of Appeals. This should last for about eight months, probably starting in mid-2022. You should expect to see some micro-dockets in 2023.

Differences for practitioners – It isn’t only the jurists who will have to adapt. If you practice in the appellate courts, you may never have to prepare another petition for appeal again – unless, of course, you don’t like the butt-kickin’ that the CAV just administered to you, and you’re hoping for succor from the Supreme Court.

If, like me, your practice is almost exclusively in the Supreme Court now, you’ll need to familiarize yourself with the slightly different rules in the Court of Appeals. (Here’s one, for starters: If you’re going straight to the Supreme Court now, you file your notice of appeal in the circuit court clerk’s office. In the CAV, you have to file that copy, but also another copy with the CAV Clerk. Omit this step at your peril.)

The Court of Appeals has different rules for many things, from appendix designations to rehearing procedures. You’ll need to bone up on those before the end of this year. You’ll also need to know how to identify by sight, and to pronounce the names of, a whole new bunch of judges, not even including the ones who are yet to be elected.

If all of this sounds revolutionary, that’s because it is. If you’re one of those lawyers who are allergic to change, you’re going to have to deal with it; if the Governor signs his name, these changes are coming. I personally regard this revolution as a wonderful development. Virginia now joins the other 49 states in providing a right that’s considered fundamental to a modern system of justice. Be ready.