[Posted April 20, 2016] Yesterday I analyzed some of the key statistics in the Supreme Court’s 2015 year-end report. I hope I was able to “de-math” it for you. Today’s follow-up essay will have fewer numbers and more subjective discussion.

Why is business down?

I noted yesterday that new case filings are down by a third – a thousand cases a year – over the level we saw consistently 15-20 years ago. I’ve given plenty of thought to the question why that would be. Really, any appellate lawyer needs to think carefully about this, because it affects the pipeline of available appeals, and those are the lifeblood of our practices.

Theoretically at least, the number of appeals should rise incrementally with population growth. The more people there are in Virginia, the more of them will hit each other with cars, knock over liquor stores, and run around on their spouses. Each of these events – assuming the perpetrator gets caught – and hundreds more will generate court proceedings, and a portion of those trials will inspire someone to appeal. More people = more trials = more appeals. So why would the number of appeals drop like a stone?

I’ve written about this topic before, and I continue to believe that the likeliest suspects are the economy and the rapid growth of ADR. It’s very expensive to appeal, and when a case settles, no one hires an appellate lawyer to take the dispute to Richmond.

Upon reflection, there are probably two other significant factors. One is the time it takes for a case to wend its way through the appellate courts. There’s some variation, but a good rule of thumb is that you should expect a Supreme Court opinion – assuming the appellant gets a writ – to arrive about a year after the final-judgment date in the trial court.

Some litigants just don’t want to prolong things anymore. If they have a marginally unsatisfying result, they may decide to just end the case rather than invest another year of emotional capital (we’ll omit the financial capital, which I’ve already mentioned) on keeping the case alive.

The second factor I have in mind is the undeniable fact that an appellant faces very long odds in seeking relief. In yesterday’s essay, I mentioned that a criminal appellant has about a 2% chance of getting a reversal in the Supreme Court, while civil appellants can expect a reversal 9% of the time. Those are tough odds, and if a business is evaluating its options, it may choose to forgo an appeal rather than spend a bunch of money (the cost of an appellate lawyer, printing of briefs and appendices, a supersedeas-bond premium) on what looks like a long shot.

In this way, the justices may be helping to shape an environment in which they see fewer and fewer cases, in part because they’re dissuading folks from taking the appellate route. I seriously doubt that that’s their purpose, but I just as readily believe there’s some causal relationship there.

Why the crash in the civil writ-granted rate?

Yesterday I noted that the court is granting appeals in civil cases at about half the rate of the year 2000. What gives? Do the current justices feel more antipathy toward civil appeals than their late 20th Century predecessors? Have trial judges stopped making mistakes?

[Before I resume, I’ll give you a moment to stop coughing.]

The short answer is that I cannot account for all of the collapse of the civil-writ market. Some of it is due to the fact that a few years ago, the justices made a conscious effort to spend more time weeding out procedurally deficient appeals. You’ll recall the recent rule change that now requires you to identify, for each assignment of error, exactly where in the record you preserved your issue for review. That’s caused a steep rise in the number of procedural defaults, which I’ll discuss below. It also leads to correspondingly fewer grants.

The temptation is to moan about the fact that the court is now actively looking for ways to dunk your appeal. Technically they are doing that, but that’s not the right way to look at it. In the past, a panel of the court often granted a writ, after which the appendix was prepared, the case was fully briefed, the lawyers showed up for oral argument … and then it surfaced that the dispositive issue wasn’t preserved, so the case had to be affirmed, or the writ dismissed as improvidently awarded.

That, you will admit, is a prodigious waste of time. If an appeal is destined to die, you might as well get it off the docket sooner rather than later.

That’s cold comfort to the losing appellants, of course; but from the standpoint of judicial economy, it makes sense. Even so, this one factor simply cannot account for this great a drop in the writ-granted rate. There has to be something else, and candidly, I don’t know what it is. I suspect that if you were to ask the justices, you’d get several different possible explanations.

So what about the procedural defaults?

This is a painful topic to take up. Over the past several years, I’ve watched as the procedural-dismissal rate has risen to a shameful level. Last year, the court procedurally dismissed 129 civil petitions for appeal – 24.1% of the total it acted upon. One in four civil petitions never even got to a writ panel. And as I noted in a previous essay, I’ve learned from one of the justices that even that figure is understated; in some cases, instead of dismissing the appeal, the court merely refuses the writ. The actual default rate may be 30% or higher.

By the way, in criminal appeals, the picture is nowhere near as bleak. Perhaps because criminal-defense lawyers handle appeals more often, the dismissal rate is always far lower than in civil cases. Last year it was 10.4%, which is actually a bit higher than the historic norm of about eight or nine percent.

Some of these defaulted appeals are probably filed by pro se litigants. For those, the legal profession is blameless. Given the limits of the statistical report, I have no way of segregating the pro se defaults from the ones involving lawyers. But attorneys who take up appeals need to remember that nowadays, in counseled appeals the justices refer each procedural dismissal to the Virginia State Bar for investigation. That’s a triple whammy: you lose your appeal, your client may be angry enough to sue you, and now you have to take a call from the nice State Bar investigator.

That, you would imagine, ought to be enough to convince lawyers that it’s too dangerous to dabble in the appellate field. Indeed, I strongly suspect that the one-strike rule for State Bar reports (it used to be a three-strike rule) came about as a none-too-subtle effort by the justices to induce lawyers to do a better job of rules compliance.

Guess what? It isn’t working. And as far as I know, the court is not trying another approach.

I sense an imminent rant here …

A number of years ago, I attended a local bar-association function at which the luncheon speaker was the then-chief justice. He told the attendees that once you receive a license to practice law, the Supreme Court regards you as competent to handle any and all legal matters. I don’t recall if he gave examples, but it was clearly intended to run the gamut from preparing wills to handling divorces to real-estate transactions to felony defense to rezoning applications.

When he said that, I thought but did not say aloud (I used to have wonderful inspirations of prudence in those days), That’s so cute. I bet he really believes it, too. The truth is that none of us is capable of doing everything in this profession as we’re walking away from the swearing-in ceremony. And while I know I disagree with an appellate jurist or two on this point, I firmly believe that one should not, must not, dabble in appeals without a paid-up malpractice policy.

Lest you perceive that I’m trying to drum up business for myself here, contact me and I’ll give you the names and numbers of half a dozen of my friendly competitors, any of whom can capably handle your appeal, and most of whom can do it for less than I’d charge. It’s not so important that you consult me; it’s vitally important that you consult someone.

That chief justice – who is now of blessed memory – was kidding himself. He was mistaking licensed authority to act for professional capability to act. The Earth I inhabit doesn’t look like the one he was imagining. Yes, when you get the fancy certificate from the Board of Bar Examiners, you’re allowed to draft a will, defend a murder charge, and negotiate a complex equitable-distribution agreement, complete with tax consequences. That doesn’t mean you should, at least not without help; it takes expertise to do those things. Appeals are some of those things.

What’s a lawyer to do?

The statistical report doesn’t contain recommendations, but here are mine:

Advise your clients clearly. When you’re walking out of the courthouse and your disappointed client is swearing like a stevedore and vowing to appeal, take the time to go over these statistics with her to ensure that she knows the odds and the timeline. And this isn’t appellate advice, but I will gently suggest that you schedule a meeting with that client for a day or two later to do that, so she can make a more dispassionate decision.

Read the rules. Don’t rely on what you heard in a recent (or worse, not-so-recent) CLE program, or what you once read in an old appellate opinion. Get out the book and read the rules that apply to the phase of the appeal where you are now. Do you know how many times Rule 5:17, with its lethal procedural landmines, has been amended in the past ten or fifteen years? Get out the book.

Use your strategic advantage. If you represent an appellee, you have an enormous advantage at the writ stage. Even in civil cases, you win 85% of the time simply because the panel refuses the petition. Put plenty of effort into your brief in opposition. Once the court grants a writ, your advantage evaporates: at that point, the court reverses, in whole or in part, about 60% of the time. You should use these figures in settlement talks, too; don’t be afraid to educate your opponent about the statistics in order to get a more realistic negotiating posture from him.

Get training. If you want to handle appeals, great. It’s a wonderful practice, but it has a completely different focus than does trial practice. Attend a few seminars, or better yet, find an immersive multi-day program on how to handle an appeal.

Get advice. Call me, or any of the several other full-time appellate lawyers here in the state, and ask a question if you need guidance. For simple questions, virtually no one is going to charge you a consultation fee. If it’s more complex than that … well, in those cases, you really do need to call someone, right?