Some believe that who the judge was in the trial court should have no influence on whether to appeal or how to prosecute an appeal. Others believe it makes all the difference in the world. The numbers suggest it is a piece of information that should be considered, but not to the point of dictating filing, or not filing, a notice of appeal.
I’ve been looking at judges’ affirmance rates for several years now – some statistics and rankings are posted here, here, and here. Those tables show the percent of appeals over a three-year period in which the Third Circuit left the judgment or order intact, by judge. Appeals are defined by unique Court of Appeals case numbers; two consolidated appeals counts as two appeals, for example, even if they are disposed of in the same way in the same opinion. If the Third Circuit for any reason vacated in any part or reversed in any part, the disposition counts as a “reversal”; if the Third Circuit affirmed or dismissed the appeal (leaving the judgment intact) the disposition counts as an “affirmance.” Using three-year periods helps deal with the fact that judges don’t hear the same number of cases every year and the fact that any judge can have a “bad” year in any given year. To be listed on any table, a judge had to have at least 10 appeals during the three-year period.
I now have enough data to look at how judges compare across four three-year periods: FY 2010-FY 2012, FY 2011 to FY 2013, FY 2012 to FY 2014, and FY 2013 to FY 2015. If FY 2012 was a particularly good or bad year for a judge, the last period removes that fiscal year entirely.
Because to err is human, no one is likely to be able to sustain a 100% affirmance rate across a diverse set of cases over many years. (No district judge reflected in my data has been able to accomplish this; though one magistrate judge may be coming close). A judge’s affirmance rate is also likely to bounce around from year to year due to such things as caseload and the mix of cases on the judge’s docket. For these reasons, I decided not to use some notion of an ideal (e.g., 100% affirmance, which would equate to a number 1 ranking) as the best way to compare judges’ experiences over time. Instead, I decided to use the percent affirmed across all judges (not just those having at least 10 appeals) for each three-year period. The “global” percent affirmed for each of the four periods are:
FY 2010-FY 2012 86.05% (across 4,753 appeals)
FY 2011-FY 2013 85.92% (across 4,524 appeals)
FY 2012-FY 2014 86.73% (across 4,023 appeals)
FY 2013-FY 2015 85.71% (across 3,705 appeals).
With this information, I could see whether any judge had a greater-than-average affirmance rate across all four periods (as well as whether any judge had a lower-than-average affirmance rate across all periods). Looking at all four periods meant that judges who, for any reason, did not have at least 10 appeals in each period would not considered. Thus, for example, judges who assumed office after FY 2010 and judges who were elevated during FY 2010 were generally not considered. But judges who had numerous cases in the appeal pipeline when they resigned or retired could still be. Of the 105 judges who had more than 10 appeals in at least one period, only 78 had 10 or more appeals in each of the four periods.
There were 24 judges whose affirmance rates were consistently above average between FY 2010 and FY 2015:
- District of Delaware:
- Chief Judge Leonard P. Stark
- District of New Jersey:
- Chief Judge Jerome B. Simandle
- Judge Robert B. Kugler
- Judge Peter G. Sheridan
- Senior Judge Mary L. Cooper
- Senior Judge William H. Walls
- Eastern District of Pennsylvania:
- Judge Legrome D. Davis
- Judge Paul S. Diamond
- Judge Cynthia M. Rufe
- Senior Judge Harvey Bartle, III
- Senior Judge Mary A. McLaughlin
- Senior Judge Thomas N. O’Neill, Jr.
- Senior Judge John R. Padova
- Senior Judge Eduardo C. Robreno
- Middle District of Pennsylvania:
- Chief Judge Christopher C. Conner
- Judge Yvette Kane
- Senior Judge William W. Caldwell
- Senior Judge Richard P. Conaboy
- Senior Judge Edwin M. Kosik
- Western District of Pennsylvania:
- Judge Nora Barry Fischer
- Senior Judge Donetta W. Ambrose
- Senior Judge Gustave Diamond
- (Former) Judge Sean J. McLaughlin
- District of Virgin Islands:
- Senior Judge Raymond L. Finch
Here’s the information I used for all 105 judges – including the 11 judges with consistently lower-than-average affirmance rates: Judges’ Affirmance Rates Across Four Periods.
Results do not appear to be dictated by the number of appeals – though 100% affirmance rates were generally associated with fewer than 25 appeals, the affirmance rates of some judges listed above were based on over 80 appeals in a three-year period (e.g., Chief Judge Conner). Correlation coefficients in fact suggest a weak negative relationship between number of appeals and affirmance rates, with coefficients ranging from -.035 for FY 2010-FY 2012 to -.171 for FY 2013-2015. I have yet to look into whether results depend on the nature of the cases appealed, but this may be more likely to explain the affirmance rates of magistrate judges.
Bottom line: No judge is infallible. But if you were before a judge with a track record of having greater-than-average affirmance rates, this may be something you’ll want to consider in reviewing the strength of your potential appeal and in fashioning your arguments on appeal. You may have a particularly difficult road ahead.