Can You Predict a Split Decision in Criminal Cases at the California Supreme Court After Oral Argument?

Now we turn to the data for the criminal docket.  In outright reversals, respondents averaged more questions than appellants in three of five years between 2016 and 2020 – 2016, 2018 and 2020.

We mentioned in a previous post that there was some indication – notwithstanding the tiny data sets – that partial reversals might have an unexpected impact on the question patterns.  Turning to split decisions in criminal cases, we find that appellants average more questions in all five years between 2016 and 2020.

Join us back here next Thursday as we turn our attention to further oral argument data.

Image courtesy of Flickr by Ian Sane (no changes).

Can You Predict a Split Decision in Civil Cases at the California Supreme Court After Oral Argument?

Last week, we reviewed the academic literature on oral argument analytics and compared the data on oral arguments at the California Supreme Court.  Last week, we aggregated the data on reversals – reversals plus partial reversals (“affirmed in part, reversed in part”).  This week, we’re checking if the oral argument data is any different for partial and complete reversals.

We report the data on outright reversals in Table 1456 below.  We expect the losing party to get more questions, and sure enough, the losing appellees get more questions in four of five years between 2016 and 2020.

However, in partial reversals, appellees only received more questions in one of five years – 2017.

Join us back here tomorrow as we turn our attention to the criminal docket.

Image courtesy of Flickr by Bennilover (no changes).

 

Can a Winner Be Predicted In California Supreme Court Criminal Case Oral Arguments?

Yesterday, we surveyed the academic literature in oral argument analytics and then reviewed the data for 2016-2020 civil cases from the Supreme Court.  Today, we’re looking at the criminal docket.

Between its earliest posted arguments in 2016 and the end of August, the Court asked 8,256 questions in criminal, quasi-criminal, juvenile and mental health matters: 4,514 of appellants and 3,742 of respondents.  In every individual year during that period, questions to appellants have predominated.

Next, we separate out the affirmances – winning respondents versus losing appellants.  Appellants averaged more questions each year.

Finally, we review the data for reversals.  Curiously, losing respondents only received more questions than appellants in two of five years.

Join us back here next week as we continue our review of the past five years of oral arguments.

Image courtesy of Flickr by HarshLight (no changes).

Can a Winner Be Predicted In California Supreme Court Civil Case Oral Arguments?

Today, we begin a new subject in our ongoing analytics study of the Court’s decision making – oral arguments.  Although the academic community has been producing analytics studies of appellate decision making for a century, the analytics study of oral arguments is a much more recent development.

[We repeat the next five paragraphs for the benefit of any readers who don’t also read our sister blog the Illinois Supreme Court Review, where this material was published earlier this week.  For readers who do, you can skip the following five paragraphs.]

The earliest study appears to be Sarah Levien Shullman’s 2004 article for the Journal of Appellate Practice and Process.  Shullman analyzed oral arguments in ten cases at the United States Supreme Court, noting each question asked by the Justices and assigning a score from one to five to each depending on how helpful or hostile she considered the question to be. Once seven of the ten cases had been decided, she divided her observations according to whether the Justice ultimately voted for or against the party. Based upon her data, she made predictions as to the ultimate result in the three remaining cases. Shullman concluded that it was possible to predict the result in most cases by a simple measure – the party being asked the most questions generally lost.

John Roberts addressed the issue of oral argument the year after Shullman’s study appeared. Then-Judge Roberts (at the time, two years into his tenure on the D.C. Circuit) noted the number of questions asked in the first and last cases of each of the seven argument sessions in the Supreme Court’s 1980 Term and the first and last cases in each of the seven argument sessions in the 2003 Term. Like Shullman, Roberts found that the losing side was almost always asked more questions. So apparently “the secret to successful advocacy is simply to get the Court to ask your opponent more questions,” Judge Roberts wrote.

Professor Lawrence S. Wrightsman, a leading scholar in the field of psychology and the law, took an empirical look at U. S. Supreme Court oral arguments in a 2008 book. Professor Wrightsman chose twenty-four cases from the Supreme Court’s 2004 term, dividing the group according to whether they involved what he called ideological or non-ideological issues. He then analyzed the number and tone of the Justices’ questions to each side, classifying questions as either sympathetic or hostile. Professor Wrightsman concluded that simple question counts were not a highly accurate predictor of ultimate case results unless the analyst also took into account the tone and content of the question.

Timothy Johnson and three other professors published their analysis in 2009. Johnson and his colleagues examined transcripts from every Supreme Court case decided between 1979 and 1995 – more than 2,000 hours of argument in all, and nearly 340,000 questions from the Justices. The researchers isolated data on the number of questions asked by each Justice in each argument, along with the average number of words used in each question. The study concluded, after controlling for other factors that might explain case outcomes, all other factors being equal, the party asked more questions generally lost the case.

Professors Lee Epstein and William M. Landes and Judge Richard A. Posner published their study in 2010. Epstein, Landes and Posner used Professor Johnson’s database, tracking the number of questions and average words used by each Justice. Like Professor Johnson and his colleagues, they concluded that the more questions a Justice asks, all else being equal, the more likely the Justice will vote against the party, and the greater the difference between total questions asked to each side, the more likely a lopsided result is.

[ISCR readers resume here.]

The California Supreme Court began posting videos and audios of its oral arguments in 2016.  Since that time, the Court has asked 8,569 questions in civil cases – 4,450 of appellants and 4,119 of respondents.  Appellants received the most questions in every year between 2016 and 2020 (so far).

In the next two Tables, we divide this data between affirmances and reversals.  First up – civil affirmances.  Did the (losing) appellants receive more questions, as the research would lead us to expect?

The answer is yes.  Losing appellants in civil cases averaged more questions in every year from 2016 to 2020.

Finally, we review the data for full and partial reversals, where the respondents are the losing party.  For four of the last five years, we see the expected relationship between average questions for the winner and loser – the respondents average more questions.  The only exception was 2019.

Join us back here tomorrow as we review the same metrics for the Court’s arguments in criminal cases.

Image courtesy of Flickr by Becky Matsubara (no changes).

What Kinds of Civil Constitutional Law Cases Does the Supreme Court Decide (Part 2 – 2005-2019)?

Between 2005 and 2019, the Supreme Court decided 53 civil constitutional law cases.  Thirty-two of those cases involved challenges to state government actions.  Ten cases involved claims of individual rights.  Seven cases involved civil procedure and judicial issues.  Finally, four cases related to challenges to local government actions.

Join us back here next Thursday as we proceed to a new issue.

Image courtesy of Flickr by tdlucas5000 (no changes).

What Kinds of Civil Constitutional Law Cases Does the Supreme Court Decide (Part 1 – 1990-2004)?

In the past two weeks, we’ve taken a deeper look at the Supreme Court’s cases in two areas of law, asking which sub-areas those cases fall in.  Today, we’re moving on to another subject – civil constitutional law cases.

Between 1990 and 2004, the Supreme Court decided ninety-six civil constitutional law cases.  Just short of half of those cases – forty-seven in all – dealt with challenges to state government actions.  Twenty-three cases involved claims of individual rights.  Nineteen related to civil procedural and judicial issues, and seven cases were challenges to local government actions.

Join us back here tomorrow as we complete our review of the Court’s constitutional law docket.

Image courtesy of Flickr by Becky Matsubara (no changes).

What Kinds of Insurance Cases Did the Supreme Court Decide (Part 1 – 1990-2004)?

Last week, we drilled down on the Supreme Court’s tort cases, looking year by year at what sub-areas of tort law produced the Court’s cases.  This week, we’re doing the same thing for the Court’s docket of insurance cases.  We’re dividing the field of insurance law into six sub-areas: coverage; separate torts against insurers (outside of coverage under the policy – mostly bad faith); exclusions; defenses; regulatory; and “other.”

We begin with the first fifteen years of our period of study: 1990-2004.  During those years, the Court decided 51 insurance law cases.  Thirty-one of those cases involved coverage questions.  Coverage cases were roughly flat throughout the period – usually 1-3 cases a year, with the exception of four cases in 2001.  The next most common sub-issues on the Court’s docket were separate torts and regulatory issues – six each.  The Court decided only four cases involving defenses to coverage.  The Court decided two cases involving exclusions and two which fell in the “other” category.

Join us back here tomorrow as we review the data for the years 2005 through 2019.

Image courtesy of Flickr by Don Graham (no changes).

What Kinds of Insurance Cases Did the Supreme Court Decide (Part 2 – 2005-2019)?

Between 2005 and 2019, the Supreme Court decided only 29 insurance cases – far fewer than in our first 15 years.  Fourteen of those cases involved coverage questions (although four of those fourteen fell in a single year – 2005).  Three involved insurer torts, four dealt with exclusions, only two addressed defenses, three related to regulatory issues and three fell into our catch-all category of “other” (mostly procedural issues which typically arise in insurance cases).

Join us back here next week as we turn our attention to a new issue.

Image courtesy of Flickr by Alex Beattie (no changes).

What Kinds of Tort Cases Does the Supreme Court Decide (Part 2 – 2005-2019)?

Between 2005 and 2019, the Supreme Court decided 73 tort cases (a sharp reduction from the 137 tort cases decided in the preceding 15 years).  The most frequent sub-area in the docket was once again duty, which accounted for 31 cases (but none in 2006, 2010, 2015 or 2019).  There were 25 cases involving tort defenses, including only one in 2005, 2011, 2014-2016 and 2019 and zero in 2013 and 2017.  All other sub-areas of tort were in single digits – eight damages cases in the past 15 years, seven “other” and only two relating to breach and causation.

Join us back here next week as we turn our attention to another area of law.

Image courtesy of Flickr by Stephen Kelly (no changes).

What Kinds of Tort Cases Does the Supreme Court Decide (Part 1 – 1990-2004)?

For the past few months, we’ve been taking a detailed look at the Court’s results record and the individual Justices’ voting records in various areas of the civil and criminal law.  Today, we begin a new series of posts drilling down on that earlier project to specific sub-areas of law.  What are the sub-areas within each field from which the Court draws its cases?

We begin by dividing the tort docket into five categories, based on the primary issue as to which the Court granted review: duty, breach, defenses, damages and other (primarily procedural questions specific to tort).  For anyone unfamiliar with the type of chart below, the height of each bar is the number of tort cases the Court decided in that year.  Each differently colored segment of the bar describes the number of cases in each sub-area.

Between 1990 and 2004, the Supreme Court decided 137 tort cases. Nearly half involved questions of duty (68 cases).  The second most common issue was defenses – 30 cases.  Duty cases only spiked in a few of these fifteen years – 1993 (8 duty, 1 defenses), 2001 (6 duty, 0 defenses) and 2002 (9 duty, 2 defenses).  Otherwise, the two areas were close in the docket each year.  The Court decided 20 cases in this period involving issues of tort damages.  The damages cases were evenly spread through the period – only in 1990 and 1996 did the Court decide no damages cases.  The Court decided 14 cases involving issues of breach and causation.  Breach didn’t appear on the docket at all in 1990, 1992, 1996, 1999, 2000 or 2003.  Finally, the Court decided five cases in our “other” category, all of them between 1998 and 2001.

Join us back here tomorrow as we review the tort docket for the years 2005 through 2019.

Image courtesy of Flickr by Ken Lund (no changes).

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