A Quick Read on Appellate Statistics

Recently the Supreme Court of Virginia and the Court of Appeals of Virginia released statistical reports for those courts’ business for the year 2004. (The Fourth Circuit’s numbers are reported in the nationwide Federal Judicial Caseload Statistics Report, the most recent of which was issued in March 2004, so that court is not discussed in this essay.) Here’s a quick analysis of some of the more interesting numbers in the reports, with an eye toward answering the losing litigant’s most frequent question to his or her lawyer: “What are my chances on appeal?”

Supreme Court

The court received just under 3,000 new cases last year. This is in line with the very steady number of such filings over the past six years (never fewer than 2,900 and never more than 3,100 over that entire span). But there is a quick lesson here for the petitioner: With 250 new filings a month, you have considerable competition for the justices’ attention. It is thus wise to get to the point quickly in your petition for appeal. Longer is seldom (I will stop just short of saying, “is never”) better in this context.

The court’s statistics really have to be segregated into criminal and civil in order to be considered in a meaningful context. For civil petitioners, the chances of getting a writ are roughly one in five (115 petitions granted out of 597 acted upon). In the criminal context, the outlook is grim: Just 38 petitions granted out of 1,507 filed (2.5%). This statistic may be misleading because all criminal cases except death penalty appeals go first to the Court of Appeals. This weeds out many appeals that would otherwise clog the Supreme Court’s docket.

Once the petition is granted, things brighten considerably for the appellant. Overall (the court does not separate post-writ statistics into criminal and civil), the court reversed 54% of the appeals it decided (76 reversals out of 141 decisions); that percentage is in line with historical numbers, showing that the court reverses a bit more than 50% of the time. But again, if one segregates the criminal cases, the results are probably more profoundly in favor of the appellant. My own quick tally of the 2005 decisions thus far (three sessions) shows 23 affirmances and 20 reversals, but 13 of those affirmances are criminal. In civil cases in 2005 so far, appellants have won reversals at almost a 63% rate.

The reason for this should be apparent. In order for the court to take a case, at least one justice on the writ panel must think there is reversible error in the trial court’s judgment. The court simply does not grant writs in decisions that are patently correct. Remember, with 3,000 cases a year, 76 reversals is a very small number. But once the appellant gets a writ, watch out, appellees. That fact is the reason why, in my opinion, the single best day for an appellant to talk settlement is the day after the writ hits his desk.

The court decided 416 petitions for rehearing, and denied all but 18. Your chances of getting a rehearing are thus about 1 in 23.

Court of Appeals

There are a couple of very intriguing statistics in the CAV report. First, the court continues to “clear” its docket by deciding more cases than are filed. (This anomaly is explained by a significant number of carryover cases from the previous year.) Last year, the court took in 3,044 new cases, and disposed of 3,322, giving it a “clearance rate” of 109%. Keep this up, your honors, and you’ll be out of a job in about twelve more years; no cases left to decide.

The other big statistical item is the percentage of criminal petitions for appeal that were granted by the court. (Appeals to the CAV are all of-right, except for criminal and traffic cases, where the appellant must go through the writ process.) In 2004, the percentage of criminal petitions granted reached an all-time low for the court of just 9.4%, down from a high of 22.4% in 1990. That means that 10 out of every 11 criminal petitions were refused last year. Of the ones granted, you need to keep in mind that a significant number of those were granted, only to be affirmed after the writ, so the outlook for criminal appellants is dim indeed.

These criminal statistics are worth considering in combination, to see the big appellate picture. A criminal appellant first faces the hurdle of getting past the petition stage in the CAV. Out of every 1,000 such appellants, only 94 get a writ, and of those 94, perhaps 50 get a reversal. As we have already seen, if the remaining 950 appeal further to the Supreme Court, 2.5% of them, or 24, will get a writ from that court, and probably 14 or 15 of those will have their convictions affirmed. (I necessarily estimate here because neither court breaks down its reversal/affirmance figures by case type.) That means that somewhere in the neighborhood of 6% of criminal appellants will eventually have their convictions overturned on appeal.

Of all the cases decided by the CAV, the reversal rate, either by order, by published opinion, or by unpublished opinion, is roughly 13%.

Further appeal

In case you’re wondering, the Supreme Court of the United States grants certiorari in somewhere between 1.5% and 2% of petitions. Even assuming you find a federal component to your case (the Supreme Court of Virginia is the court of last resort for questions of Virginia law) and can therefore head to Washington, your chance of getting in the courthouse door is dauntingly small.

These numbers prove the old adage that the best appellate strategy is to win in the trial court.