AN APPELLATE LAWYER’S LOOK
[Posted August 13, 2012] Those lawyers who follow closely the events at Ninth and Franklin Streets in Richmond can tell you that this isn’t your father’s Supreme Court. In fact, it isn’t even your older brother’s; a significant turnover in court personnel means that if you haven’t been to the Supreme Court in a while, you probably won’t recognize most of the justices.
AT SUPREME COURT STATISTICS
These changes may have practical implications for your trial- and appellate-court practices. Here’s a look at some data that may affect your litigation decisions, and the advice you give to your clients.
Civil writs granted
The fuel for any caselaw engine is the writ, which furnishes the raw material from which the final opinion will be crafted. There isn’t a perfect correlation between writs granted and ultimate published opinions, because the court has typically decided 30-40% of its merits docket by unpublished order; those orders don’t appear in Virginia Reports and generally have little value as precedent. But generally speaking, the more writs there are, the more published opinions will be handed down.
Given the infinite variety of ways in which people can cheat each other, injure each other, disregard wedding vows, or otherwise land in a trial courthouse, you’d think that there would be a steady stream of new civil caselaw. But there’s convincing evidence that the water level in the appellate stream is dropping.
I have statistical records for the court going back to 1980. The number of civil writs peaked in 1993, when the court granted 231 civil petitions. That figure topped 200 twice more in the next four years, and with an occasional spike here or there, has fallen since then to levels that the 1990s practitioner would probably find surprising:
You read that right; the Supreme Court is granting half as many writs as it did in the mid-1990s. The three lowest annual totals in this entire column have come in the last four years. That drop isn’t a result of fewer petitions being filed; the number of civil petitions in those years didn’t vary by much. The court is simply granting fewer writs, in addition to dismissing far more petitions for procedural defects.
What it means for you:
The appellee’s advantage at the writ stage has seldom been stronger. When a petition is refused, the appellee always wins. Last year, more than 80% of the time (in civil cases), the appellee never had to show up and argue in order to preserve a trial-court victory. (Historically, 60% of cases where writs are granted result in reversals, in whole or in part, so appellees win 40% of the time even when they lose at the writ stage.)
These figures should factor into any settlement discussions that you have while the case is on appeal, or while the trial court loser is contemplating an appeal. As an appellant, no matter how strongly you feel about the merits of your case, the raw odds favor the appellee by 88% to 12%. If the court’s merits caseload continues to shrink, that advantage for the appellees will grow.
Criminal writs granted
During the calendar years 1993 through 1996, the court awarded appeals to criminal appellants 54 times, an average of 14½ times per year. More recent numbers reflect a significant change in that pace:
It’s quite apparent that the number of criminal writs grew noticeably in the last decade, reaching levels last seen in the early 1980s, before the Court of Appeals of Virginia was created (1985). This growth probably is the result of a greater receptiveness to criminal-law issues among the current slate of justices.
So why the significant dropoff in criminal writs in 2011? It’s actually a return to a normal level after a four-year mini-explosion. Between 1997 and 2006, the court granted writs in criminal appeals an average of 35 times per year, so 2011’s 31 writs appear much more like the norm.
Subjectively, last year’s dropoff might be traceable to the installation of Justices McClanhan and Powell in place of the late former Chief Justice Hassell and Senior Justice Koontz. Based upon their voting patterns in published criminal appeals while on the CAV, the two newest justices are more likely to side with the prosecution than were the two men they replaced. That translates to fewer criminal writs.
What it means for you:
One noticeable effect of the recent spike in criminal writs granted is a delay in resolution of civil appeals. A generation ago, the appellate process, measured from date of trial-court judgment to date of Supreme Court opinion, was on the order of 11-12 months. In the last few years, it’s taken 18-19 months for a civil appeal to wend its way through the Supreme Court. That’s because, just as in trial courts, criminal cases take precedence in docketing over most civil appeals. Rule 5:23(b). The more criminal appeals there are, the more civil cases get pushed back to the next session.
Present indications suggest that the time lag will shrink. Last year’s dropoff in criminal writs has been followed by yet another plunge; as of today, the court has issued only eight writs in criminal appeals in 2012. That lack of criminal-writ competition has already sped up the timeline for civil appeals. I’ve noticed that acceleration this year, as I’ve received notices to attend sessions for oral argument much sooner than I would have in years past; the court is clearing out its recent backlog of cases. You should temper your expectations for future time estimates accordingly.
Procedural dismissals in civil cases
In decades past, the Supreme Court was perceived as a place where the procedural dismissal was a favored remedy for trimming back the docket. In the “bad old days” of 15 or more years ago, the justices (so the urban legend ran) took great joy in uncovering even the most picayune procedural flaw, and joyfully high-fived one another in the hallways each time an appeal died an untimely procedural death.
This story suffers from the same flaw as many another urban legend – it’s false. While it’s possible that there have been justices who love to decide cases without reaching the merits, those jurists – if they exist at all in Virginia – are outliers. But let’s see what the numbers say, starting with 1997, the first full year for which these figures are available:
While the rumor of cackling in the hallways remains a myth, the explosion in fatal procedural defaults is very real. The court is dismissing twice as many civil appeals for procedural defaults as it did in the late 1990s. This alarming trend has arisen despite the recent growth in continuing-legal-education programs devoted to appellate practice since 2005. It’s probably too early to conclude whether the 2010 overhaul of the appellate rules, designed in part to make the process more transparent and user-friendly, will cut down on the number of defaults. But the horrifying number of defaults in 2011 – more than 25% of the 600 civil petitions filed that year – suggests that it has not done so yet.
What it means for you:
A trip to the Supreme Court is inadvisable for those lawyers with a cavalier attitude toward rules compliance. A procedural mistake that might get you a stern admonition, perhaps accompanied by some finger-wagging, in the trial court may well result in an appellate dismissal.
First and foremost, you must read the rules, preferably well in advance of the time when you need to adhere to them. Don’t assume that you already know them, and remember that they changed in July 2010. Second, make plans to attend a CLE program on appellate practice if you intend to handle appeals yourself. (Even if you plan to hand them off, you should still get some training in how to preserve issues for appeal, so your appellate lawyer doesn’t have to call you early in the appellate process with some bad news.)
One last point: If you choose to believe that the rise in dismissals is due to the fact that the justices have suddenly become vicious and sadistic, well . . . probably nothing I say will change your mind. But if you’re smarting from a procedural dismissal, I advise that the first place you should look for the culprit is in the mirror. The overwhelming majority of procedural defaults could have been avoided by some forethought, by some added attention to detail, or by a call to an appellate lawyer, just to be sure. One thing’s for sure: blaming the justices isn’t going to make you a better lawyer, and it isn’t going to prevent the next default.
Supreme Court tenure
As of August 2012, the justices on the Supreme Court have this much tenure on the job:
Chief Justice Kinser: 15 years, 2 months
Justice Lemons: 12 years, 5 months
Justice Goodwyn: 4 years, 6 months
Justice Millette: 3 years, 5 months
Justice Mims: 2 years, 4 months
Justice McClanahan: 1 year
Justice Powell: 1 year
Even a quick scan of these figures will show you the rapid dropoff in Supreme Court experience after the first two names. Four and a half years ago, Justice Goodwyn presided over a trial bench in Chesapeake; now he’s the third-most-senior justice on the Supreme Court.
What it means for you:
The court respects stare decisis, but even that doctrine has its limits. It might pay to see which recent (or not-so-recent) Supreme Court appeals were decided by slender majorities, and consider whether the current personnel on the court might be more receptive to the dissenting view. The common law doesn’t change as quickly as the court’s makeup does, but neither is set in stone.