Does the Time from End of Briefing to Oral Argument Predict the Result in Civil Cases?

In previous posts, we’ve suggested that the period from the end of amicus/supplemental briefing to the oral argument is a reasonable proxy for the Court’s decisional period.  So, if we revisit the data, divided by affirmances, reversals and split decisions (partly affirmed, partly reversed) – can we predict the result based on the wait from briefing to argument?  Let’s review the data.

In Table 1154, we review the average days from end of briefing to oral argument, divided by affirmances, reversals and partly affirmed, partly reversed.  One caveat before we dive in – split results where the Court affirms in part and reverses in part are very rare in any particular year, so some caution is appropriate in reviewing that data.

In the 1990s, there was no clear association between lag time in the decisional period and the final result.  Affirmances took the longest in four years, split decisions took the longest in three years, and reversals took the longest in three years.  Note the wide divergences at times – in 1991, affirmances averaged 296.23 days, while split decisions averaged 168 days and reversals averaged 153.15 days.  In 1993, affirmances averaged 184.21 days to 105 days for splits and 117.21 days for reversals.  In 1996, affirmances averaged 132.6 days, split decisions averaged only 77.33 days and reversals averaged 207 days.

Between 2000 and 2009, affirmances took longest in four years, reversals took longest in four, and split decisions – partial affirmance, partial reversals – took the longest in two years.  In 2002, affirmances averaged 156.68 days, split decisions averaged 192.75 days and reversals averaged 246.86 days.  In 2003, reversals averaged 226.48 days, affirmances averaged 127 days and split decisions averaged 101.75 days.  In 2008, split decisions averaged 378.67 days, affirmances averaged 290.31 days and reversals averaged 257.43 days.  In 2009, reversals averaged 325 days, split decisions averaged 250 days and affirmances averaged 232.33 days.

Between 2010 and 2019, affirmances took longest in four years, reversals in three and split decisions in three.  In 2011, affirmances averaged 101 days from end of briefing to oral argument.  Reversals averaged 152.43 days while split decisions averaged 406 days.  The following year, affirmances averaged 208.71 days, reversals averaged 245.47 days and split decisions averaged 319 days.  In 2014, affirmances averaged 160.8 days, reversals averaged 296.67 days, but split decisions averaged only 88 days.  In 2015, reversals took 331.55 days, affirmances took 234.56 days, but split decisions averaged only 166.33 days.  In 2016, numbers jumped: reversals took 407.16 days, affirmances took 310.6 days and split decisions took 345 days.  In 2017, split decisions averaged 509 days.  Reversals averaged 385.56 days, while affirmances averaged only 344.18 days.  In 2018, affirmances averaged 296.5 days, reversals averaged 231.09 days, but split decisions averaged only 110 days (recall, the previous year, they averaged 509 days – a reminder that split decisions are a very small database in any given year).  So far this year, affirmances have averaged 295.4 days, reversals have averaged 259.77 days, while split decisions – partial affirmance, partial reversal – averaged only 134.33 days.

Join us back here next Thursday and we’ll further explore whether there’s any correlation between lag times and case result.

Image courtesy of Flickr by Bureau of Land Management (no changes).

What’s the Average Time From Argument to Decision in Civil Cases at the Supreme Court?

Today, we’re reviewing the data for the average lag time between oral argument and decision in civil cases at the Supreme Court.

During the 1990s, the average time increased significantly.  In 1990, there was an average of 61.56 days’ wait from argument to decision.  That dropped to 59.23 (1991), 56.42 (1992) and 59.26 (1993), before gradually edging up to 64.57 (1994), 69.44 (1995) and 65.84 (1996).  In 1997, the average lag time was 73.24 days.  In 1998, the average rose to 76.15 days.  In 1999, the average was 72.98 days.

For the most part, the average remained in the 70-day range between 2000 and 2009.  In 2000, the average was 76.35 days.  In 2001, it dropped slightly to 69.65 days.  From 2002 to 2005, the average stayed over 70 days – 75.46 days (2002), 74.05 days (2003), 71.64 days (2004) and 70.02 days (2005).  The average fell to 67.68 days in 2006, but rose to 70.13 in 2007 and 72.35 in 2008 before falling a bit to 68.25 days in 2009.

Between 2010 and 2013, the average wait dropped a bit: 64.4 days (2010), 61.33 (2011), 69.5 (2012), and 69.63 (2013).  For the rest of the decade, the average remained at the trend level – 70.35 (2014), 74.81 (2015), 78.97 (2016), 78.81 (2017), 79.18 (2018) and 79.48 (2019).

In Table 1153, we report the entire thirty years’ data in a single Table.  The data shows the gradual increase from an average lag time of 60-70 days from argument to decision until about 1995 to an average of 70-80 days for the remainder of the period.

Join us back here tomorrow as we review a new question about our lag time data.

Image courtesy of Flickr by Darron Birgenheier (no changes).

How Long Typically Passes from the End of Briefing to Oral Argument in Civil Cases, 1990-2019?

Today, we reach a critical milestone in civil litigation at the Supreme Court: the average lag time from the last brief – regardless of whether it’s a party reply brief, an amicus brief or a supplemental brief – to the oral argument.  Because of California’s rule that cases must be decided within ninety days following submission, this lag time is a proxy for the period in which the Court is working up and deciding the case.

We report the data for 1990 to 1999 in Table 1146.  In 1990, the average lag from briefing to oral argument was 228.56 days.  That fell to 202.25 in 1991 and 203.71 in 1992.  In 1993, the average was down to 136.54 days.  In 1994, it was 137.22 days.  From there, the number started edging up again: 151.95 days (1995), 170.45 days (1996), 146.22 days (1997), 185.59 days (1998) and 236.37 days (1999).

For 2000, the average lag time was 235.18 days.  The average fell for three years – 206.48 days in 2001, 200.29 days in 2002 and 183.98 days in 2003 – but then increased again, to 246.94 days in 2004, 268.24 days in 2005, 297.4 days in 2006, 232.13 days in 2007, 279.68 days in 2008 and 276.93 days in 2009.

Although it has appeared at times in the past ten years that the average lag time might be increasing further, the data for 2018 and 2019 suggests that the trend might be reversing itself.  In 2010, the average lag time was 235.93 days.  It fell to 185.03 in 2011 before rising to 241.23 in 2012 and 277.88 days in 2013.  The average lag fell to 211.43 days in 2014 before increasing sharply: 288.78 days (2015), 355.06 days (2016), 385.48 days (2017).  The average lag fell back to 233.48 days in 2018 – only two days from the 2010 average.  The average so far in 2019’s civil cases has been 244.34 days.

In Table 1149, we report all the data together.  Measured from one decade to the next, this shows the lag time from final brief to oral argument steadily increasing: from 1990 to 1999, the average was 179.84 days.  It rose to 242.73 days from 2000 to 2009 and 265.86 days from 2010 to 2019.  But the Court may be reversing the trend.  The average lag time from final brief to argument for 2018 was only five days longer than the average for 1990.

Join us back here next Thursday as we continue our review of the lag time data.

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

How Long Does Supplemental and Amicus Briefing Typically Take in Civil Cases, 1990-2019?

Last week we reviewed the data for how long party briefing typically took in civil cases at the Supreme Court.  This week, we’re looking at the next guideposts.  The Supreme Court accepts additional briefs in nearly all its civil cases: amicus briefs; responses to amicus briefs; and supplemental briefs.  How long does extra briefing typically take?

In 1990, the average civil case took 218.57 days from the reply brief to the final extra brief.  That number quickly leveled out: 110.31 days (1991), 115.62 days (1992) , 127.45 days (1993), 141.77 days (1994) and 115 days (1995).  From there it fell further: 69.7 days (1996), 76.54 days (1997), 77.43 days (1998), 76.75 days (1999).

Between 2000 and 2003, the average lag time remained about the same: 127.67 days in 2000, 112.69 days in 2001, 99.74 days in 2002, 100.23 days in 2003.  Then it jumped 20 to 30 days: 142.32 days in 2004, 142.28 days in 2005, 114.1 days in 2006, 201.02 days in 2007, 148.19 days in 2008 and 142.79 days in 2009.

The average supplemental briefing period increased further from 2010 to now.  In 2010, the average was 177.78 days.  It fell to 152.4 days in 2011, 268.35 days in 2012.  The average fell to 123.86 days in 2013 before increasing to 231.95 days in 2014 and 221.36 days in 2015.  The average fell to 139.68 days in 2016 and 81.08 days in 2017 before increasing to 272.1 days in 2018.  The average period so far this year is 165.15 days.

Table 1145 reports the entire thirty years of data in a single graph.  The table reflects that although average lag time for supplemental briefing isn’t a stable number from one year to the next, the multi-year averages have increased steadily across the past thirty years.  Between 1990 and 1999, civil cases averaged 112.91 days from the filing of the reply brief to the final amicus or supplemental brief.  Between 2000 and 2009, the average rose to 133.1 days.  From 2010 to 2019, the average has increased to 183.37 days.

Join us back here tomorrow as we review the data for the average lag time from the end of briefing to oral argument.

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

How Long Does Party Briefing Typically Take in Civil Cases, 1990-2019?

In our last post, we showed that the lag time from the order granting review in civil cases to the filing of the opening brief has edged up over the past thirty years by roughly twenty days.  This time, we’re looking at the span for the next guidepost: the average number of days in civil cases from the filing of the opening brief to the final party brief.  The minimum time for this metric, assuming no one files their brief early, is 50 days – 30 days from filing the opening brief to filing the respondent’s brief (Rule of Court 8.520(a)(2)) and 20 days from filing the respondent’s brief to filing the reply brief (Rule of Court 8.520(a)(3).)

In 1990, party briefing in civil cases averaged 72.29 days.  It fell to 63.74 days in 1991 before bouncing back to 73.67 days in 1992 and falling again to 63.02 days in 1993.  In 1994, the lag rose to 88.67 days before falling back to trend: 68.25 in 1995, 74.19 in 1996, 76.04 in 1997, 75.81 in 1998 and 72.88 days in 1999.

By 2000, party briefing had risen to 80.45 days.  After bouncing around in the early part of the decade, a sustained increase took hold: 98.84 days in 2005, 88.66 days in 2006, 101.65 days in 2007, 112.78 days in 2008 and 95.3 days in 2009.

In 2010, the average lag was 104.98 days.  It fell to 85.36 days in 2011 but bounced back to 101.16 in 2012 and 96.38 days in 2013.  Since then, the lag for party briefing has remained high: 110.48 days in 2014, 100 in 2015, 123.3 in 2016, 113.64 in 2017, 110.76 in 2018 and 115.76 in 2019.

Finally, we report the entire thirty years on a single graph.  The time required for party briefing has clearly been edging upwards over our period.  In the 1990s, party briefing averaged 72.86 days.  By the following decade, the overall average had risen to 93.15 days, with the number rising over 100 in 2007 and 2008.  Between 2010 and 2019, the average time for party briefing has been 106.18 days: a thirty-four day increase since the 1990s.

Join us back here next week as we address the next two guideposts in the Court’s civil docket.

Image courtesy of Flickr by Pacific Southwest Region USFWS (no changes).

 

How Long Do Civil Cases Average from Grant of Review to Filing of the Appellant’s Opening Brief?

Our next step in our comprehensive review of lag times at the Supreme Court is the average time from the Court’s order granting review to the filing of the Appellant’s Opening Brief.  Absent any extensions, the appellant’s opening brief is due 30 days after the order granting review.  (Rule of Court 8.520(a).)

From 1990 to 1996, grant-to-opening-brief was relatively static: 41.26 days in 1990, 46.71 days in 1991, 53.08 days in 1992, 45.76 days in 1993, 52.78 days in 1994, 43.77 days in 1995 and 53.77 days in 1996.  In the three years that followed, the number edged up: 57 days in 1997, 65.06 days in 1998 and 72.07 days in 1999.

But the increase didn’t hold – from 2000 to 2005, the average declined: 62.35 days in 2000, 53.85 days in 2001, 51.1 days in 2002, 50.39 days in 2003, 48.96 days in 2004 and 45.75 days in 2005.  In 2006, grant-to-opening-brief averaged 54.81 days.  The next year, the average was 62.05 days.  In 2008, the average was 65.45 days, but in 2009, it fell to 58.61 days.

The average hasn’t made a sustained move either up or down between 2010 and 2019.  In 2010, the average was 60.71 days.  In 2011, it was 68.48 days.  In 2012, the average fell to 56.92 days.  In 2013, it was 57.47.  In 2014, there were 65.65 days from the grant of review to the opening brief.  The average fell to 54.59 days in 2015 but rose to 68.32 days in 2016 and 70.5 days in 2017.  The average fell back to 60.39 days in 2018 before rising a bit in 2019 (so far) to 66.17 days.

In our final Table, we review all the data in a single graph to see the long-term pattern.  What we see is that there has been what appears to be a sustained uptick in the average number of days from grant of review to filing of the opening brief.  In the early-to-mid-nineties, the average lapse of time was between forty and fifty days.  Since about 2007, the average has tended to be between sixty and seventy days in most years.

Join us back here next time as we review the data for the next pair of guideposts for the Court’s civil cases – the average days between the filing of the opening brief and the filing of the last reply brief.

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

Part 2 – How Long After Filing is the Typical Petition for Review Granted in Civil Cases?

Last time, as part of our review of lag time data for civil and criminal cases at the Supreme Court, we reviewed the composite lag time data – grant of review to oral argument.  For this study, we’ve divided lag time data for civil cases by seven guideposts – Petition for Review filed; Petition granted; Opening Brief filed; Reply Brief filed; Last amicus or supplemental brief filed; Oral argument and decision.

Today, we’re reviewing the data for lag time from the filing of an ultimately successful petition to the grant of review.  There’s a limit as to how high this number can go – according to Rule of Court 8.512(g)(1), the Supreme Court must resolve a petition for review within sixty days of the filing of the final petition (subject to the Court’s power to extend the time for a maximum of thirty days).  In the data below, occasionally we’ll see a year-long average above sixty days, but that’s typically not an indication that the Court exceeded the deadline in most cases – rather, it’s an indication of a few outliers in the year’s data.

For most of the decade of the 1990s, the petition-to-grant average was between fifty and sixty days.  Although the average rose to 59.93 in 1993 and 67.56 in 1997, it fell back to 54.23 days in 1999.

Petition-to-grant was a bit up for the years 2000 to 2010.  The civil case average was 69.24 in 2000, 72.29 in 2002, 65.11 in 2004 and 61.91 in 2007 before settling back to 57.55 days in 2009.

In 2010, the average petition-to-grant figure was 70.66 days.  It fell back to the fifties in 2011 and 2012 before rising to 60.88 days in 2013 and 62.13 days in 2015.  The average fell to 59.72 days in 2016 but rose to 64.07 days in 2017.  In 2018, the average was 58.15 days, and so far in 2019, the average is 54.38 days.

Join us back here next week as we address our next guidepost in the life of the Court’s civil cases.

Image courtesy of Flickr by Adrian Clark (no changes).

Are Civil Cases Taking Longer – and If So, Why? (Part 1 of a Series)

Today, we’re beginning a new series of posts about an area that’s been controversial for generations: the lag time involved in appellate litigation, and the perception that cases take too long to resolve.  We’ve published lag time data on the blog before divided into only two numbers: days from grant of review to oral argument and days from oral argument to decision.

But it occurred to me a while back, reading about an ABA study of the problem of delay in appellate decision-making, that “grant of review to oral argument” is a composite statistic which could be hiding any number of things.  Both civil and criminal cases have milestones – filing the petition for review, grant of the petition, the first brief is filed, the last party brief is filed, the last amicus or supplemental brief, etc., etc.  The observation that the “grant of review to oral argument” metric is edging upwards could be concealing an increase in one – or even several – of these time spans.  So today, we’re beginning a new series of posts, reviewing the grant to argument data we’ve discussed before one piece at a time.  Then I’ll describe the mileposts, and then we’ll start working our way through the data.

There was no indication of a sustained edging upwards of the grant to argument number during the 1990s.  In 1990, the average lag was 449.62 days.  In 1999, it was three days less – 446.27 days.  In fact, for most of the decade, the lag time for grant to argument was significantly down – between 1995 and 1997, the average was 334.19 (1995), 343.39 (1996) and 342.02 (1997).  The average increased 40 days in 1998, and another sixty in 1999.

The lag time started to substantially increase in the second half of the 00s (seriously – have we agreed on a name for that decade yet?)  In 2000, the average was 489.84, and it hadn’t increased much by 2004, when it was 496.6.  But after that, it rose to 532.78 in 2005, 531.28 in 2006, 560.84 in 2007, 594.98 in 2008 and 557.41 in 2009.

Although things have improved so far in 2019, by and large, the past decade has seen a sustained increase in the grant-to-argument metric.  In 2011, the lag time was 477.42 days.  In 2014, it was 609.43 days.  By 2016, it was 675.22 days.  The average dropped to 639.12 days in 2017 before rising to 660.24 days in 2018.  The grant to argument average dropped to only 583 days so far in 2019, but we’ll see whether that’s a sustained trend.

In our final table, we graph the grant-to-argument data for the entire thirty-year period, 1990 to 2019.  As of 1990, the average civil cases required 449.62 days.  After a drop into the 300s for several years, the lag time rose to 489.84 days in 2000.  By 2004, the average civil case was taking 496.6 days.  For the second half of that decade, the lag time rose into the 500s.  The average lag time rose to the 600s from 2014 to 2018 before falling so far in 2019 to 583 days.

Join us back here next time as we examine the data for the first guidepost of civil cases – the average time from the filing of the petition for review to the grant of review.

Image courtesy of Flickr by Tracie Hall (no changes).

Where Did the Supreme Court’s Sixth District Criminal Cases Come From, 2005-2019?

Today, we’re concluding our survey of the originating trial courts for the Supreme Court’s criminal cases from the Sixth District, looking at the numbers for the years 2005 to 2019.

In 2005, the Court decided two criminal cases from Santa Clara county.  In 2006, there were four Santa Clara cases and one each from San Benito and Santa Cruz counties.  In 2007, there were three cases from Santa Clara.  In 2008, the Court decided one case each from Santa Clara and Santa Cruz.  In 2009, the Court decided three cases each from Santa Clara and Monterey counties.

Eighty percent of the Court’s Sixth District criminal cases for the years 2010 to 2014 originated in Santa Clara county – two in 2010, one in 2011, two in 2012, five in 2013 and two in 2014.  Santa Cruz county accounted for one case in 2012, and Monterey produced one case each in 2012 and 2014.

Things have been even more lopsided since that time – between 2015 and 2019, ninety percent of the Sixth’s criminal cases have originated in Santa Clara county: four in 2015, three in 2016, one in 2017 and one so far in 2019.  The Court also decided one criminal case from Monterey county in 2018.

For the most part, the criminal cases in the Sixth District are distributed more or less proportionally to its population.  Santa Clara county has 71.52% of the Sixth District population (as of the 2010 census), 76.92% of the criminal cases and 76.56% of the civil cases.  Monterey county has 16.08% of the population, 10.99% of the criminal cases and 15.63% of the civil.  Santa Cruz county is 10.12% of the District’s population and has produced 10.99% of the criminal cases and 6.25% of the civil cases.  Finally, San Benito county has only 2.27% of the total population, 1.1% of the criminal cases and 1.56% of the civil cases.

Join us back here next week as we begin a new series on lag times at the Court.

Image courtesy of Flickr by Egan Snow (no changes).

Where Did the Supreme Court’s Sixth District Criminal Cases Come From, 1990-2004?

Last week, we reviewed the data on which counties accounted for the Sixth District’s civil cases decided by the Supreme Court since 1990.  This week, we’re looking at the criminal cases.

In 1990, the Court decided one criminal case each from Santa Clara and Monterey counties.  In 1991 and 1992, the Court decided three cases per year from Santa Clara.  The Court decided one case from Monterey county in 1991.  In 1993, the Court decided one case from Santa Cruz county and one from Monterey.  In 1994, the Court decided three cases from Santa Clara and one from Santa Cruz.

The Court decided one case per year from Santa Cruz county in 1995, 1996, 1997 and 1998.  The Court decided five cases from Santa Clara in 1995, four in 1996, three in 1997 and none in 1998.  The Court decided three cases from Santa Clara county in 1999.

The Court decided three cases per year from Santa Clara in 2000, 2001 and 2004, and two in 2002.  The Court decided one case from Santa Cruz in 2001 and one from Monterey in 2003.

Join us back here tomorrow morning as we address the data for the years 2005 to 2019.

Image courtesy of Flickr by PiConsti (no changes).

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