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.