SOME 2014 STATISTICS, DECODED
[Posted September 10, 2015] We’re overdue for a quick look at some of the meaningful takeaways from the appellate courts’ 2014 statistics.
Supreme Court of Virginia
First and foremost, business is off – way off. In calendar 2014, SCV Clerk Trish Harrington opened just 1,918 new files. If you go back to 2009, that figure was 2,639, so the drop-off in filings is more than 27%. In just five years! If you go back just a little further, to around the turn of the millennium, new filings hovered around 3,000 per year for several years in a row.
There are several potential explanations for the crash in new appeals, some more plausible than others. For example, it’s theoretically possible that trial judges have stopped making mistakes; but as long as humans occupy the Commonwealth’s benches, that’s not a very likely reason. Actually, if trial judges ever did become perfect, I’d be out of a job.
The more likely explanation is the economy. Appealing isn’t cheap, and a litigant who loses, say, a $75,000 judgment might not be able to find a capable appellate lawyer who’ll take the matter on for a fee that makes economic sense. Economic factors might also prompt more potential appellants to mediate or otherwise settle their cases, thus further reducing the number of appeals. (Mediation is to appellate lawyers as a lighted match is to the scarecrow in The Wizard of Oz; if the parties settle, no one appeals.)
The number of writs granted is also down, but much more sharply than the rate of new filings. From the mid-1990s through about 2010, the court granted, on average, about 200 writs per year. Then the writ market crashed: 152 writs in 2011, 123 in 2012, 109 in 2013, and 120 in 2014.
These numbers are down in a statistically significant way, and the drop in the court’s incoming business doesn’t explain the plunge. For that explanation, you have to look to increased attention paid by the court to procedural defects, and probably to increased communication before writ panels convene. Your chances of getting a writ in a civil case are now about 15%, down from 21% a few years ago.
If you’re looking for an increasing indicator, there is one, but you aren’t going to like it: procedural dismissals in civil cases have skyrocketed in the past several years. In the mid-1990s, when the court first started keeping track of such things, the court dunked about one civil appeal in nine or ten for procedural defaults. From 2009 through 2014, the average has been 23.6%, an appalling figure that reflects poorly on the lawyers who file these appeals.
Incidentally, their criminal-law cousins are doing much better; the procedural-dismissal rate in those appeals has remained around 7% for a long time. Of course, that good news is offset by the fact that the Supreme Court grants almost no criminal writs – just 3% in 2014, which is fairly typical for the previous several years.
One last statistic: Published opinions are becoming scarce. From 1995 through 2004, for instance, the court issued an average of 144 published opinions per year – right at 24 per court session. From 2010 through 2014, the court handed down more than 100 published opinions only once, in 2012. Last year, there were just 74. That number, too, is much lower than the drop of incoming appeals would indicate alone. The justices are writing far fewer opinions for publication.
Court of Appeals of Virginia
The first thing to remember is that while the CAV’s docket includes four case types – criminal/traffic, domestic relations, admin law, and Workers’ Comp – criminal filings dominate the docket. Almost three of every four new filings in that court are criminal in nature.
Business is down in the Court of Appeals, too, though not nearly as dramatically as in the SCV. From 2010 through 2014, incoming cases fell from 2,721 to 2,350, a drop of 13.6%.
The CAV can decide an appeal by published or unpublished opinion. In the past several years, there have been about four or five unpubs for each one that’s published. That matters because unpubs are generally of little or no value as precedent. Last year there were 76 published opinions, an average of seven per judge, and 327 unpubs, about 30 per judge. By way of comparison, last year the Supreme Court handed down 10.5 published opinions and 8 unpublished orders per justice (not counting the senior justices).
For quite a while now, the writ-granted rate in criminal and traffic appeals has hovered around 10% of such petitions. If you represent a criminal appellant, that gives him a sense of the likelihood of just getting a writ and moving on to the merits stage.
Unlike in state appellate courts, business has been reasonably steady in the Fourth Circuit, with new filings dropping just 1.9% from 2010 to 2014. (Note that the federal courts’ statistics run from October 1 through September 30, while the state courts are on a calendar-year basis. For statistical purposes, the difference is essentially irrelevant.) The court takes in about 400 new filings per month.
The caseload has, however, shifted around somewhat. Criminal appeals fell by almost 30% and private civil filings were down almost 28%. Prisoner filings increased sharply over the same period.
One interesting statistic that the federal courts keep but the state courts do not is the median time between two given events in the appellate system. We’ll focus on the time between the filing of the notice of appeal and the final appellate order, in cases decided on the merits. In prisoner cases, that time was just 4.7 months in 2014. Criminal appeals took just under 8 months, and civil appeals averaged just 6 months.
This means that appeals will make their way through the federal circuit courts significantly faster than a comparable appeal in state court. (Right now, the typical span between notice of appeal and final appellate decision in the SCV is roughly one year.) That, of course, is due to the fact that in the federal court, all appeals are of-right, while the Supreme Court of Virginia operates on a writ system; it takes most appellants six to eight months just to get a writ.
In the Fourth Circuit, it takes about two months to get an opinion after the date of oral argument. That’s roughly the same as in the state courts; the SCV normally announces its ruling seven weeks after oral argument, and the CAV generally gets its opinions out within about 60 days.
In one significant respect, the Fourth is the stingiest federal circuit in the nation: The court grants oral argument just 13.1% of the time, deciding the other 86.9% of appeals on the briefs alone.
Here’s one last statistic that will affect your clients’ decisions whether to appeal or not: the reversal rate. As you might expect, criminal appellants fared poorly, securing reversals just 5.9% of the time in 2014. Prisoner petitions also got meager results for appellants, with only a 4.5% reversal rate. Private civil appeals won reversals only 7.1% of the time. In all, the court affirmed 94.4% of all appeals presented to it. Only the Eighth Circuit (95.1% affirmed) was more deferential to district courts. The nationwide average, for comparison, is an 8.3% reversal rate. The Fourth Circuit is a great place to be an appellee.