(Posted December 30, 2021) With the Virginia appellate courts closed today, it’s safe to report on some preliminary numbers. I’ll have a fuller stats essay when I get the courts’ caseload reports in two or three months.


Supreme Court of Virginia

In an update that I posted back on January 7, I noted that the Supreme Court had opened just 1,571 new files. That was a decline of about 10% from 2019, when the total was 1,760. I predicted then that 2021 would be an even leaner year.

I got this one right (relax; I’ll tell you about my less-than-accurate prediction in a moment). From what I can discern from the court’s case-information web page, the Clerk opened just 1,233 records this year. That’s a drop of 21.5% from last year’s depressed total, and of 30% over the past two years.

I expect next year’s total to decline, too, but for a different reason. Starting with next week’s notice-of-appeal filings, civil appeals go to the Court of Appeals of Virginia first. Only after the CAV acts on those cases will we likely see some of these appeals in the Supreme Court. That means that we’ll probably experience a one-time delay of eight or nine months with effectively no civil petitions coming into SCV Clerk Muriel Pitney’s office. My best estimate is that the 2022 total, for all case types, will be somewhere around 1,000, after which it will start to rebound in 2023.

In the humility column, I incorrectly forecast that the justices would issue noticeably fewer merits decisions in 2021. They handed down 84, comprising 46 published opinions, 9 published orders, and 29 unpubs. That’s essentially unchanged from 2020, when the total was 83. And the court received oral argument in 89 merits appeals this year, up seven from the previous year.

Given this year’s significant decline in new filings, the only way the court can keep hearing 80-90 merits appeals per year is to grant a higher percentage of writs in deciding petitions for appeal. I know better than to start dishing out predictions on that one.


Court of Appeals of Virginia

The CAV’s published-opinion count dropped again this year, falling to 61 from 2020’s total of 71. The 2019 spike to 86 continues to look like an anomaly.

This, too, will change. With the Commonwealth’s overhaul of the appellate system, I expect a sharp increase in the number of published opinions, starting somewhere in the middle of 2022 and carrying into the following years. For courtwatchers, 2022 will be a year unlike any we’ve seen since 1985, when the Court of Appeals was born.

I’ll wait for the Spring stats report before checking to see if the court modifies its tiny reversal rate in criminal cases. Given the way the stats report reads, I may not be able to discern that reversal rate easily starting in 2023.


David-Goliath Index

The Supreme Court decided nine appeals that meet the criteria for a David v. Goliath appeal in the final quarter of 2021. Actually, it was ten, but one of them, Stoots v. Marion Life Saving Crew, ended as a mixed result, with a partial victory for each side. I elected to disregard that one instead of awarding each side half a victory.

That means that 4Q 2021 was a clean sweep for Goliath: Nine victories (five opinions; four unpubs) and no losses. That brings our year-end total to 15 wins for our Davids and 38 for the Goliaths, for a final D-GI of 28/72. That’s almost identical to the 2020 index of 30/70.

Many years ago, the index usually came out within a very few points of 50/50. Those days are gone. It’s possible that the looming retirements of the chief justice and Justice Mims, and the elections of their successors, might bring back some semblance of balance starting next year; but I tend to doubt it.