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Kirk Jenkins brings a wealth of experience to his appellate practice, which focuses on antitrust and constitutional law, as well as products liability, RICO, price fixing, information sharing among competitors and class certification. In addition to handling appeals, he also regularly works with trial teams to ensure that important issues are properly presented and preserved for appellate review.  Mr. Jenkins is a pioneer in the application of data analytics to appellate decision-making and writes two analytics blogs, the California Supreme Court Review and the Illinois Supreme Court Review, as well as regularly writing for various legal publications.

Two weeks ago, we addressed the question of how common cases with a dissent at the Court of Appeal were on the Supreme Court’s docket.  Our analysis illuminated the issue of whether it’s true that there’s no point in pursuing a petition for review from a unanimous Court of Appeal decision.

This week, we’re digging

Last time, we reviewed the share of the Supreme Court’s civil caseload made up of decisions with a dissenter at the Court of Appeal.  Now let’s look at the criminal cases.

It turns out dissenters are even less important on the criminal side.  In 1990, only 1.25% of the criminal docket had a dissenter below. 

Last week we looked at the frequently heard claim that getting Supreme Court review of an unpublished decision of the Court of Appeal is a hopeless task.  This week, we’re looking at a similar bit of conventional wisdom – the Supreme Court doesn’t review unanimous decisions from the Court of Appeal.

In the table below,

Last time, we showed that for the most part since 1990, anywhere from twenty to forty-five percent of the Court’s civil decisions have arisen from unpublished decisions at the Court of Appeal.  This time we’re looking at the Court’s criminal docket.

Unpublished Court of Appeal decisions are far from the exception in criminal cases –

This week we’re concluding our review of the individual Justices’ question patterns during oral argument by looking at the record of Justice Groban since he took his seat in 2019.  We begin as usual with civil cases.

Continue Reading What Are Justice Groban’s Question Patterns When He Disagrees With the Majority in Civil Cases?

When Justice Kruger votes with the majority in a criminal case, she follows the expected pattern, more heavily questioning the losing party.  When she joins the majority in an affirmance, she averages 2.38 questions to appellants and 1.91 to respondents.  When she joins the majority in a reversal, she averages 3.6 questions to respondents and 3 to appellants.  When she joins the majority in a split decision, she averages 1.77 questions to respondents and 1.68 to appellants.

Continue Reading What Are Justice Kruger’s Question Patterns When She Disagrees With the Majority in Criminal Cases?

We determined last time that Justice Cuellar tends to more heavily question appellants than respondents in civil cases regardless of how the majority is leaning.  This time, we’re looking at the data for criminal cases.

Continue Reading What Are Justice Cuellar’s Question Patterns When He Disagrees With the Majority in Criminal Cases?