Today, we’re dissecting the reversal rate in criminal cases from Division 1 of the Second District.  The following areas of law were the biggest players on the criminal docket in terms of cases which went to the Supreme Court: constitutional law (23.53%); criminal procedure (20.59%); sentencing (14.71%); and violent crimes (11.76%).

The overall reversal rate in Division One was 73.53%.  All three of the highest producers on the criminal side had reversal rates well above that overall average.  The reversal rate in constitutional law was 87.5%.  The rate in criminal procedure was 85.71%.  Eighty percent of the sentencing decisions reviewed were reversed.  Only violent crimes decisions fared well, with a reversal rate of 50%.  Aside from violent crimes, only two areas of law were under the overall reversal rate – juvenile justice (50%) and property crimes (0%).

So the evidence seems relatively clear: the reversal rate in Division One appears to have been driven since 1990 by disagreement in specific areas of law: constitutional, criminal procedure, and to a lesser extent, sentencing law.

Image courtesy of Pixabay by 12019 (no changes).

 

The last couple of weeks, we’ve looked at reversal rates for the Court of Appeal in cases at the Supreme Court.  But the difficulty which few people talk about is that reversal rates are nearly always a composite statistic – either “all cases,” or at most all civil cases or all criminal.  But mathematically, a high reversal rate can be explained by one of two results: (1) a very high rate in a couple of areas of law, and far lower rates in other areas; or (2) reversal rates around the baseline composite rate in a host of different areas.  The difference makes a difference: ten years ago, the reversal rate at the Ninth Circuit became a political football.  So was the Ninth Circuit supposedly out of step with the Supreme Court across the board?  Or was the rate driven by serious disagreements in just a few areas?

This week, we’re splitting up the highest reversal rates at the Court of Appeal by areas of law: Division 4 of the First District (civil cases) and Division 1 of the Second District (criminal cases).

First, we review the civil cases from Division 4 of the First District by area of law.  One-quarter of the cases between 1990 and 2020 were tort – 25.93%, to be precise.  Civil procedure accounted for 16.67% of the cases, employment law was 11.11%, and constitutional law and government/administrative law accounted for 9.26% each.  The remaining areas of law were minor players, contributing only an occasional case.

Overall, the reversal rate for Division 4 for these years in civil cases was 74.07%.  In the Table, we report the reversal rate for cases in each area of law.

The reversal rate in tort law was 78.57% – not much above the overall rate.  The reversal rate in civil procedure cases was below the court-wide average: 66.67%.  Employment law was below average too: 50%.  Rather than being driven by a very high reversal rate in one particular subject, Division Four’s reversal rate was driven by very high rates in areas which contributed only a minimal number of cases to the docket.  Constitutional law, government and administrative law and tax law each accounted for less than 10% of the Court’s cases, but taken together, they are 25.93% of the total.  And the reversal rate in each of these three areas was significantly above the Court’s average: the rate for government and administrative law and tax law was 100%, and 80% of the constitutional law decisions were reversed.

Join us next time as we turn our attention to the criminal docket.

Image courtesy of Pixabay by 12019 (no changes).

 

Last time, we reviewed reversal rates in criminal cases from the Divisions of Los Angeles’ Second District.  Today, we’re looking at the rest of the state – San Francisco’s First District, Divisions One through Five, the Third District, District Four, Divisions One, Two and Three, and the Fifth and Sixth Districts.

Division 2 of the First District has had the hardest time over the entire period, with a reversal rate of 72.41%.  Division 3 of the Fourth District is close behind at 69.77%.  The Sixth District has a reversal rate of 61.7%.  Division 5 of the First had a reversal rate of 58.06%, and Division 1 of the Fourth was at 57.8%.  Division 2 of the Fourth District had a reversal rate of 55.13%.  The Fifth District was at 54.22%.  The Third District fared best, with a reversal rate of 53%.

Division 1 of the Fourth District had the most criminal cases on the Court’s docket, 109.  The Third District was next with 100 cases.  The Sixth District had 94 cases, Division 3 of the Fourth had 86 and the Fifth District had 83.  Division Two of the Fourth District had 78 cases.  Collectively, the First District had 134 cases split among its five Divisions – 31 in Division 5, 29 each in Divisions 2 and 4, 27 cases in Division 3 and 18 in Division 1.

Between 1990 and 1999, 85.71% of Division 3 of the Fourth District’s criminal cases were reversed.  Division 2 of the First District was at 83.33%.  Division 5 of the First District had a 70% reversal rate.  The Sixth District had a reversal rate of 61.76% and the Third District and Division 1 of the Fourth were at 60%.  The Fifth District had a reversal rate for the decade of 57.69%.  Division 3 of the First was at 53.85%, and the reversal rate for Division 2 of the Fourth District was an even 50%.  The reversal rate for Division 4 of the First District was 40%.  Division 1 of the First District fared best, with a reversal rate of only 28.57%.

The highest reversal rates between 2000 and 2009 in this group of courts were Division 2 of the First District (66.67%) and Division 3 of the Fourth (64.52%).  The Fifth District had a reversal rate of 55.56%.  The reversal rate in the Third District was 55.32%.  The reversal rate in the Sixth District was 54.55%.

Division 1 of the Fourth District had a reversal rate for the period of 48.65%.  Division 4 of the First District was 46.67%.  Division 5 of the First District was at 45.45%.  Division 2 of the Fourth District had a reversal rate of 40.91%.  Divisions 1 and 3 of the First District had a superb decade, with a 16.67% reversal rate in Division 1 and only 12.5% in Division 3.

Division 2 of the First District posted the worst reversal rate from 2010 to 2020 – 72.73%.  The Sixth District was 70.37%.  The reversal rate for both Division Three of the First District and Division Two of the Fourth was two-thirds.  The rate for Division 1 of the Fourth was 65.96%.  Sixty percent of Division 5 of the First District’s criminal cases were reversed.

The reversal rate for Division 3 of the Fourth District was 59.26%.  The Fifth and Third Districts were in a photo finish for the period – the Fifth District reversal rate was 47.62% and the Third was 47.37%.  The reversal rate for Division 4 of the First District was one-third.  Finally, Division 1 of the First District had a reversal rate of only 20%.

Join us back here next week as we continue our study of the Court’s reversal rates.

Image courtesy of Pixabay by Goodfreephotos_com (no changes).

 

 

Last week, we reviewed reversal rates for the Court of Appeal in civil cases.  This week, we’re looking at the criminal side of the docket.  First up – the Divisions of the Second District.

Division One has fared the worst since 1990, with a reversal rate in criminal cases of 73.53%.  Division Six was close behind at 70.45%.  The reversal rate for Division Seven was 62.22%.  Division Five was 61.54%.  The reversal rate for Division Three was 54.29%.  The rate for Division Four was 52.63%.  Two Divisions stayed under fifty percent reversal rate – Division Eight (47.37%) and Division Two (45.45%).

Division Seven was the most active Court on the Supreme Court’s docket, contributing 45 criminal cases.  Division Six was next at 44 cases.  Four courts were in the thirties – Division Five (39 cases), Division Four (38), Division Three (35) and Division One (34).  Division Two contributed 22 criminal cases to the docket.  Division Eight had 19 cases reviewed.

Between 1990 and 1999, the Division which fared worst was the First, with a reversal rate in criminal cases of 80%.  Division Six was at 70%.  Division Three had two-thirds of the criminal cases on the Supreme Court’s docket reversed, and Division Five was right behind at 63.64%.  Division Seven had a reversal rate of 58.33%.  Division Two was at 33.33%.  Division Four had the lowest decade reversal rate – only 16.67%.

Division One once again led between 2000 and 2009, with a reversal rate of 86.67%.  Division Six had a reversal rate of 71.43%.  Division Seven was at 70.37%.  Divisions Five and Eight were tied, with decade reversal rates of two-thirds.  Division Four had 54.17% reversal and Divisions Two and Three were tied, with both at 50%.

Division Four led between 2010 and 2020, with a reversal rate of 75%.  Division Six had a rate of 70%.  Three Divisions were in the fifties: Five (56.25%), Three (53.85%) and Two (50%).  Division One’s reversal rate dropped to 44.44%.  The reversal rate for Division Eight was only 38.46.  Finally, the reversal rate in Division Seven fell to only 33.33%.

Join us back here next time as we review the data for the rest of the state.

Image courtesy of Pixabay by 12019 (no changes).

Long-time readers may have noticed that a few things have changed around here in recent days.  And that brings us to our two exciting announcements.

First, I’ve moved my practice to the San Francisco office of Arnold & Porter Kaye Scholer LLP.

I’ve known and respected Arnold & Porter for its brilliant lawyers and its long-term unwavering commitment to the rule of law since I started my career in Washington D.C. at Skadden Arps.  In the extraordinarily competitive D.C. bar, Arnold & Porter was regarded by everyone as representing the very best of our profession.   Today, the firm boasts great lawyers in a long list of different practice groups and most importantly (yes I’m biased) one of the preeminent appellate practice groups in the country.  The opportunity to join that practice group was an unmissable opportunity.

At Arnold & Porter, we are client-driven and industry-focused. Our lawyers practice in more than 40 areas across the litigation, regulatory and transactional spectrum to help clients with complex needs, stay ahead of the global market, anticipate opportunities, and address issues that impact the very value of their businesses. In particular, our top-ranked Appellate & Supreme Court group is well known for aggressively and successfully handling precedent-setting appeals. Our attorneys have won numerous landmark Supreme Court cases, most recently involving religious freedom, state sovereignty and tax fairness. We have also led high-stakes litigation in federal and state courts across the country, securing reversals of multimillion—and billion—dollar verdicts and precedent-setting victories that reshape the legal landscape. As a firm, our core values guide our approach to work, our clients and each other. We are committed to excellence in the practice of law; approaching our work with the highest standards of ethics and professionalism; respecting diversity and individuality among our colleagues; and maintaining our long-standing and deep commitment to public service and pro bono work.

With the switch to Arnold & Porter, we decided it was time for a thorough remodeling, both here and on the California Supreme Court Review.  First, the design of the blog has been completely reimagined to more closely match our Arnold & Porter sister blogs, BioSlice, QuiNotes and Enforcement Edge.  Our new design looks great no matter how our readers access it – desktop, laptop, tablet or mobile phone.  Also, we’ve completely rebuilt and simplified the category and tag structure for the blog’s entire archive, making our past analytics analysis easier for readers to find.

And speaking of our posts archive . . .

I published my first blog post at a predecessor blog, Appellate Strategist, in March 2010.  The Illinois and California analytics blogs joined the fold in January 2015 and April 2016, respectively.  I wrote 617 posts on Appellate Strategist, 604 before today here, 470 on the California Supreme Court Review and 308 on my personal (non-legal) blog – which makes these exciting announcements a fitting subject for post number 2,000!

Image courtesy of Arnold & Porter Kaye Scholer LLP.

This time, we’re reviewing the reversal rates in civil cases from 1990 to 2020 for the areas of California outside of Los Angeles’ Second District – the First District (San Francisco) and the Third, Fourth, Fifth and Sixth Districts.

Division 4 of the First District had the worst reversal rate in this group – 74.07%.  The Sixth District had a reversal rate of 72.72%.  In the Third District, the reversal rate was 70.09%.  Division 5 of the First District was at 63.04%.  Division 3 of the Fourth District had a reversal rate of 62.5%.  The Fifth District’s reversal rate was 61.67%.  Division 1 of the First District was at 59.57%.  Division 2 was right behind at 58.18%.  The reversal rate in Division 2 of the Fourth was 53.52%.  Half the civil cases from Division 3 of the First District were reversed.  The reversal rate in Division 1 of the Fourth District was 47.52%.

The two busiest courts during the 1990-2020 period were the Third District, which contributed 117 civil cases to the Court’s docket, and the Fourth at 101.  Division 2 of the Fourth District had 80 cases.  Division 1 of the Fourth contributed 71.  The Sixth District had 66 cases and the Fifth had 60.  Division 2 of the First District contributed 55 cases.  There were 54 from Division 4, 47 from Division 1, 46 from Division 5 and 42 cases from Division 3 of the First District.

Division 4 of the First District had the highest reversal rate from 1990 to 1999: 73.91%.  The Sixth District was next at 73.08%, followed by Division 3 of the Fourth at 70%.  Division 5 of the First District was at 68.75%.  Division 2 was at 64.29%.  The Third District had a reversal rate of 63.16%.  The reversal rate in Division 2 of the Fourth District was 60.87%.  The Fifth District had a reversal rate for these years of 58.33%.  Division 1 of the First was at 55.56%, and Division 1 of the Fourth was at 51.52%.  Division 3 of the First District fared best with a reversal rate of 45%.

The Sixth District fared worst between 2000 and 2009, with a civil reversal rate of 81.82%.  The Third District was next at 73.21%.  Division 4 of the First District and the Fifth District were tied with a reversal rate of two-thirds.  Division 2 of the First District was close behind: 64.71%.  Divisions 1 and 5 of the First District were tied at 52.63%.  Division 3 of the First District and Division 3 of the Fourth were also tied: 46.15%.  Division 2 of the Fourth had a reversal rate of 45.45%.  Division 1 of the Fourth District had the best reversal rate for the decade: 43.59%.

Two Divisions of the First District have been reversed over eighty percent of the time between 2010 and 2020: Division 4 (81.25%) and Division 1 (80%).  The Third District was at 73.91% and Division 5 of the First had a reversal rate of 72.73%.  The reversal rate in Division 3 of the Fourth was 70.83%.  Division 3 of the First District was reversed two-thirds of the time, and two courts had a reversal rate of 60%: Division 2 of the Fourth District and the Fifth District.  Division 1 of the Fourth District had a reversal rate of 48.28%.  Division 2 of the First performed best in the past eleven years: 30%.

Image courtesy of Pixabay by Foundry (no changes).

This week, we’re beginning a detailed look at the reversal rates, District by District and Division by Division, for the Court of Appeal in the Supreme Court.  First up, reversal rates for Los Angeles’ Second District.

Between 1990 and 2020, Division Four of the Second District had the highest reversal rate at 68.18%.  Division One was next at 67.53%.  Division Six had a reversal rate of 67.39%.  The reversal rate in Division Five was 66.23%.  Division Seven was next, with a reversal rate of 60.29%.  Division Three had a reversal rate of 59.57%.  Division Three had a reversal rate of 59.57% and Division Eight fared best at 59.25%.

Division Three had 94 civil cases on the Court’s docket.  Divisions One and Five had 77 cases apiece.  The Court decided 68 cases from Division Seven, 66 from Division Four, 46 cases from Division Six, 42 cases from Division Two and 27 cases from Division Eight.

Between 1990 and 1999, Divisions One and Six fared worst: 68.97% reversal and 68.18%.  Division Two was next at 66.67%, followed by Division Five, 65.38%.  Division Four’s reversal rate was only 61.54%, and only 56.67% of Division Seven’s civil cases were reversed.

Between 2000 and 2009, Division Seven fared the worst, with a civil reversal rate of 73.91%.  Division Four was next at 69.23%.  Two-thirds of Division Five’s civil decisions reviewed were reversed.  The reversal rate for Division One was 60.87%.  Division Three was at 58.97%.  Division Two was right behind at 57.14%.  The reversal rate in Division Six was 56.25%, and 40% of the civil cases from Division Eight were reversed.

Between 2010 and 2020, Division Six fared worst, with a reversal rate in civil cases of 87.5%.  Thee more Divisions were over seventy percent: Four (75%), One (72%) and Eight (70.59%).  Two-thirds of the civil decisions from Division Five have been reversed.  The reversal rate in Division Three was 58.62%.  Division Seven did relatively well, with a reversal rate of 46.67%, and Division Two fared even better, at 40%.

Join us back here next time, as we continue our trip through the civil reversal rates.

Image courtesy of Pixabay by WilliamCho (no changes).

 

This time, we’re comparing the lag time from grant to decision in criminal cases to the ultimate case result.  In order not to bias the data, we begin by eliminating the death penalty and habeas corpus cases, where the determinants of lag time are quite different than non-death criminal cases.

Once again, there is a strong relationship between the lag time and the ultimate case result: in eight of the past ten years, affirmances have been pending longer in criminal cases than reversals.  In 2011, affirmances averaged 644.67 days to 488.93 for reversals.  In 2014, affirmances averaged 699.38 days to 498.5 for reversals.  In 2016, the difference was even bigger – 1019.25 days for affirmances, 591 days for reversals.  In 2017, affirmances averaged 643.69 days and reversals came down in 551 days.  Last year, criminal affirmances averaged 902.33 days and reversals averaged 548.13 days.  So far this year, affirmances have averaged 672.25 days while reversals have come down in 565.58 days.

Join us back here next week as we turn to a new area of inquiry.

Image courtesy of Pixabay by 12019 (no changes).

This week, we’re looking at the relationship between lag time – the number of days from the grant of review by the Supreme Court to the final decision – and the result in the case.  One might expect that lag time has very little relationship to the case result – surely it’s determined by the complexity of the issues and facts and the Court’s caseload.  But is that really true?

In fact, there is a moderately strong relationship between lag time and result in civil cases: affirmances were pending longer in 7 of the past 10 years.  In many years, the difference wasn’t minimal.  IN 2011, affirmances averaged 625.75 days pending to 499.87 for reversals.  In 2012, affirmances averaged 876.33 days while reversals averaged 632.18 days.  The numbers were closer in 2013 and 2014, but reversals took longer in 2015: 731.1 days for reversals to 623 for affirmances.  In 2017, reversals averaged 741.5 days to 661.94 for affirmances.  But since then, the usual relationship has reasserted itself.  In 2018, affirmances averaged 729.29 days while reversals averaged 705.64 days.  Last year, the comparison was 666.9 days in affirmances to 645.92 days for reversals.  So far this year, affirmances have been substantially slower: 947 days for affirmances, 710.53 days for reversals.

Join us back here next time as we turn our attention to the Court’s criminal cases.

Image courtesy of Pixabay by Code83 (no changes).

Last time, we reviewed the Court’s civil cases, asking whether divided decisions from the Court of Appeal were more likely to be reversed in whole or in part than unanimous ones.  This time, we’re turning our attention to the criminal cases and finding a very different result.

In only four of the past thirty-one years were unanimous criminal decisions from the Court of Appeal more frequently reversed than decisions with a dissent.  In most years, the numbers weren’t at all close (see 1991 – 75% divided cases reversed, 12.9% unanimous ones, 2003 – 80% to 24.14%, 2007 – 60% to 13.73% and 2018 – 60% to 22.22%).

Not surprisingly, our “not affirmed” comparison isn’t close either.  In only five of the past thirty-one years were unanimous criminal cases either reversed outright, or reversed in part, at a higher rate than divided decisions.

But here’s the curious bit (and I don’t have a theory to explain this one yet) – all five of those years were between 2011 and 2020.

So yes, although it’s been a slightly less reliable signal in the past ten years, for the most part, if a criminal case with a dissent below gets granted review, it’s more likely to get reversed at the Supreme Court than a unanimous decision.

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

Image courtesy of Pixabay by 12019 (no changes).