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).

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 a bit deeper on a related question: are divided decisions from the Court of Appeal more frequently reversed?  The result might help us choose between two possibilities about divided Court of Appeal decisions that wind up at the Supreme Court: does the Court take them because a majority agrees with the dissenter, or does the Court merely regard the dissent as some evidence that reasonable judges can disagree about the issue presented?

We address two data points: first, the percentage of divided and unanimous Court of Appeal decisions reversed outright.  Second, what we’ll call (for lack of a better term) Court of Appeal decisions “not affirmed” – outright reversals plus split decisions (affirmed in part, reversed in part), for divided Court of Appeal decisions and then unanimous ones.

First, we compare straight reversals.  Unanimous civil decisions from the Court of Appeal have been more frequently reversed in nine of the past thirty-one years.  Unanimous decisions led in five years during the nineties, but things have stabilized a bit since then.  Still, this is a lesser difference than we saw in our analysis of the same question at the Illinois Supreme Court.

Next, divided and unanimous Court of Appeal decisions not affirmed – unanimous decisions were more likely to be disturbed at the Supreme Court in nine of the past thirty-one years.  But take a look at Table 1475 – even in years when divided decisions were ahead, the difference was frequently very slight.  This data seems to offer support for the tentative conclusion that at least on the civil side, the Supreme Court doesn’t really pay a lot of attention to Court of Appeal dissents.

Join us back here next time as we address the Court’s criminal docket.

Image courtesy of Pixabay by crispy-fotographie (no changes).

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.  The share rose to 10% by 1993, but immediately fell back into single digits for five of the next six years.  The share of cases with dissents below rose slightly in the decade following; between 2000 and 2009, the share was between ten and twenty percent five times and in single digits five times.  In 2010, the share was 8.22%.  It rose to 11.76% in 2011 and 12% in 2013 but fell to 5.45% in 2014 and 5.77% in 2016.  In 2015, none of the Court’s criminal cases had a dissenter below.  In 2017, the share was 7.14%.  In 2018, it was 10%.  In 2019, only 6.67% of the Court’s criminal cases had a dissent below.  So far in 2020, the share in 15.38%.

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

Image courtesy of Pixabay by USA-Reiseblogger (no changes).

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, we report the year-by-year percentage of the Court’s civil decisions which had a dissenter at the Court of Appeal.  In other words, if it’s true that the Court doesn’t review unanimous decisions, we would expect the graph line to be at or near 100% every year.

In fact, it’s nowhere close.  Between 1990 and 1993, the share of the civil docket with dissents below was less than 20% every year.  It rose a bit to 25.49% n 1994, 21.05% in 1995 and 20% in 1996, but then fell below 20% and stayed there until 2008.  Indeed, in 1998, 2002, 2003 and 2005, less than one in every ten civil cases had a dissent below.  The share rose to 22.5% in 2008, but then fell to 9.09% in 2009 and 7.14% in 2010.  There was a two-year upwards blip beginning in 2011 to 27.27% in 2011 and 23.08% in 2012, but then it returned to long-term trend, below 20%.  In 2017, only 19.05% of the Court’s civil cases had a dissent below.  In 2018, it was 12.12%.  Although the share rose to 20.83% in 2019, it has fallen back to single digits so far in 2020: 7.14%.

Join us back here next time as we review the Court’s criminal docket.

Image courtesy of Pixabay by 12019 (no changes).

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 – they’re the rule.  In 1991, 91.25% of the Court’s criminal decisions were unpublished below.  That fell to 70% by 1993.  Two years later, the unpublished portion was 81.63%, but after that, it settled in for the most part in the 45-65% range.  In 1999 and 2000, the unpublished portion was 45.83% and 49.09%.  That rose to 58.73% in 2003, 58.9% in 2004 and 59.02% in 2005.  It rose to 61.64% in 2010 and 70.59% in 2011, but fell back for several years after that: 51.95% in 2012, 64% in 2013, 61.82% in 2014, 54.55% in 2015, 59.62% in 2016 and 45.24% in 2017.  In 2018, 64% of the Court’s criminal decisions were unpublished below.  In 2019, 83.33% were.  So far in 2020, 61.54% of the Court’s criminal decisions were unpublished below.

Join us back here next week as we address another bit of conventional wisdom about Supreme Court review.

Image courtesy of Pixabay by mbraun0223 (no changes).