NOTE ON RECENT APPELLATE DEVELOPMENTS
(Posted April 7, 2020) While daily routines are wistful memories for most of us now, things continue to happen in the appellate world. Here are a few of them.
Court closings – sort of
Despite the contagion that afflicts the Commonwealth, the nation, and the world, the three appellate courts that convene in Virginia are still technically open. That comes with an asterisk, of course: Going inside the building is either forbidden (Fourth Circuit) or discouraged (SCV and CAV).
But you can still file documents. The Supreme Court’s recent announcement regarding “Tolling of Appellate Deadlines” seems to indicate that all SCV deadlines are tolled, but I recommend that you file anyway if you can; it’s possible to interpret the order to toll some but not all filing due dates, and you should err, if at all, on the side of caution. In the Court of Appeals of Virginia, the order tolls filing things that go to the trial courts, but not things that go to the appellate court clerk. The Fourth Circuit expects you to file everything on time, though I suspect you’ll get succor with a timely filed motion to extend.
The Fourth has continued its second consecutive sitting due to the judicial emergency. Those cases will either be recalendared to a later sitting, or decided without oral argument. In the state appellate courts, litigants in writ and now merits arguments are given the choice: phone it in, or waive argument.
I gave my first-ever remote writ argument in the Supreme Court last week, and while the technological aspect of the process came across as seamless, it was eerie to hear so many arguments – I heard six, including my own – with so few questions. There may be something about this dynamic that makes the justices a bit less likely to interrupt.
I’m a week late in delivering the first David-Goliath Index of 2020. This is the ratio of decisions that go in favor of identifiable little guys to big guys in the Supreme Court of Virginia.
In the first quarter of this year, I counted just 16 decisions – eleven published and five unpubs – from the Supreme Court. Not all of those were suitable for the D-GI because they didn’t have a clear big-guy-vs.-little-guy angle. I found ten rulings in favor of our Goliaths and just two in David’s favor. That produces a D-GI of 17-83. As a stats geek, I encourage you not to draw too many conclusions from a small sample size like this. On the other hand, this marks a continuation of a clear trend in recent years: David continues to get clobbered in the Supreme Court of Virginia.
A peek at 2019 statistics
I’ve seen the stats report for the Supreme Court of Virginia for last year. Here are a few highlights.
Business is up slightly – New case filings rose from 2018’s nadir of 1,704 to 1,760. That’s only about a 3% rise, but it’s an encouraging sign.
But writs are down – The justices issued 81 precious writs in civil appeals in 2018, but just 58 last year. That drop is so precipitous, I checked it twice to ensure I wasn’t missing something. Criminal writs dipped by a statistically insignificant number, from 28 to 27. In all, the court granted just 98 writs. I have statistics going back to 1970; this is the first year in all that time that the number has fallen below 100. The average over that time is probably close to 200.
A healthy market in procedural dismissals – I always hate reporting this, but once again, one civil appeal in four died a procedural death, often without even a visit to a writ panel. The procedural dismissal rate was 25.7% last year, about the same as in 2018. Criminal appellants fared better as usual, with a 7.6% dismissal rate.
Combining these last two items – An appellant is more than twice as likely to suffer a procedural dismissal as to get a writ. That’s true for civil and criminal appeals.
Grant rate in non-procedural dispositions –This figure plunged in 2019. Assuming the appellant clears the formidable procedural-default gauntlet in a civil case, the court granted appeals just 16.3% of the time. My best explanation is that this is a return to historical levels; last year’s 21.2% grant rate was an aberration. Criminal appellants got writs 3.8% of the time, up just fractionally from 2018.
Merits affirmances outnumber reversals again – In published and unpublished rulings combined, the court affirmed just over half of the appeals it decided – 52.2%. That figure is close to last year’s figure but noticeably higher than recent years’ average, which reflects affirmance just under 49% of the time. These numbers aren’t segregated by civil and criminal appeals.