Category Archives: Probability of Success

Use a probability-of-success number that most closely matches your case

My “other civil appeals” category is big – it includes all civil appeals other than bankruptcy appeals and prisoner petitions. A statistic that shows that for FY 2013, 81% of 642 “other civil appeals” in the Third Circuit ended in affirmance or dismissal is useful. But it would be more useful to have figures on the various types of cases within the broad category. In earlier posts, I presented the percentage affirmed or dismissed for my FY 2013 samples of employment cases (91.3%) and contract cases (78.57%). Here I present statistics for other types of civil case appeals.

Other Civil Rights cases (e.g., Section 1983 cases):

Number of cases in sample:    203                     Percent affirmed or dismissed: 86.2%

Labor cases (e.g., ERISA, FLSA, Labor/Management relations):

Number of cases in sample:     38                      Percent affirmed or dismissed: 78.9%

Social Security benefits cases:

Number of cases in sample:     16                      Percent affirmed or dismissed: 93.8%

Cases brought under other statutes (e.g., antitrust, securities, intellectual property, tax, consumer credit, RICO):

Number of cases in sample:  114                       Percent affirmed or dismissed: 63.1%

Tort cases:

Number of cases in sample:    87                       Percent affirmed or dismissed: 82.7%.

Percentages derived from smaller samples – like Social Security cases – are likely to be more susceptible to the mix of cases that the court decided in FY 2013. But the percentages do show quite a bit of variation, and suggest that using 81% may be overly optimistic (e.g., other civil rights cases) or overly pessimistic (other statutory cases).

Percentage-Affirmed Statistics Over Time: Some lessons from four samples of employment-case appeals

Yes, I’ve gone back to my academic roots and inserted a colon in the title of this post.

I mentioned before that my data shows that the percentage of Third Circuit employment-case appeals that ended with either an affirmance or a dismissal was high – 91.3% to be exact. I don’t think that result comes about because something is wrong with my sample, but it could occur because of the type of cases that the Third Circuit decided in FY 2013. To see whether in other years a similarly high percentage of employment-case appeals ended with either an affirmance or dismissal, I checked what my data showed for FY 2010, FY 2011, and FY 2012. (No doubt you are thinking that I must have way too much time on my hands to read and code all those cases. But I do have a plan . . .).

First, the numbers. As before, the appeals are from employment cases brought under statutes such as Title VII, the ADEA, and the ADA. Each fiscal year begins on October 1 and ends on September 30. Thus, FY 2010 began on October 1, 2009 and ended on September 30, 2010.

FY 2010:           91 cases        85.71% affirmed or dismissed.

FY 2011:         129 cases        94.57% affirmed or dismissed.

FY 2012:           97 cases        90.72% affirmed or dismissed.

FY 2013:           92 cases        91.30% affirmed or dismissed.

Across the 409 employment cases (sum of all four years), the Third Circuit affirmed the district court’s judgment or dismissed the appeal in 372 – or 90.95%.

So now the lessons. The percentages do show some bounce – no doubt because the nature of the issues raised in the appeals can’t be expected to be exactly the same year to year. They do not by themselves suggest any trend – it may well be that both FY 2010 and FY 2011 were unusual (and thus are associated with the low and the high percentages, respectively) and that FY 2012 and FY 2013 are more the norm. If the percentage affirmed or dismissed is going to be used to decide whether or not to appeal in FY 2014 an adverse judgment in an employment case, 90.95% is probably a safer number to use.

Determining whether any of the above percentages is low or high requires a comparison to something. For that something, I took from my data all the “other civil appeals” the Third Circuit decided in the four years and calculated the percentage affirmed or dismissed for cases other than employment-case appeals. I got:

FY 2010:         650 cases        82.31% affirmed or dismissed.

FY 2011:         609 cases        81.28% affirmed or dismissed.

FY 2012:         546 cases        82.78% affirmed or dismissed.

FY 2013:         550 cases        79.27% affirmed or dismissed.

The number for FY 2013 is different from the number that I presented in an earlier post (see here) because the employment cases have been removed.

These percentages don’t bounce as much because they reflect a mix of a wide variety of cases (Section 1983 cases, CERCLA cases, antitrust, tort cases, contract cases, etc.). But a comparison shows that in every year, the affirmed-or-dismissed percentage for employment cases is higher than the percentage for other civil cases. This suggests that it is more difficult to get a district court judgment reversed or vacated – in whole or in part – when that judgment is in an employment case compared to another type of civil case.

Third Circuit judgments in a sample of civil appeals

A few posts ago, I reported 81% as the share of “other civil appeals” in my sample that were affirmed or dismissed by the Third Circuit in FY 2013. See here. Because this percentage treats everything that is not an affirmance or a dismissal the same way, I thought I’d give some more detail on the Third Circuit’s judgments.

For FY 2013, I collected information on 642 Third Circuit appeals that fell within the “other civil appeal” category (i.e., they were not bankruptcy appeals or prisoner petitions). Of those 642 appeals, the Third Circuit:

Affirmed the district court’s judgment in 489 cases (or 76.17%);
Dismissed the appeal in 31 cases (or 4.83%);
Reversed the district court’s judgment in 36 cases (or 5.61%);
Reversed the district court’s judgment in part in 16 cases (or 2.49%);
Vacated the district court’s judgment in 41 cases (or 6.39%); and
Vacated the district court’s judgment in part in 29 cases (or 4.52%).

Reasons for the dismissals included a lack of jurisdiction (12 cases), the issues had become moot (8 cases), and failure to prosecute (or abandonment) (2 cases). I treated one denial of a petition for a writ of mandamus as a dismissal because the petitioner asked the Third Circuit to order the district court to reverse two interlocutory orders. The court dismissed 8 appeals under 28 U.S.C. § 1915 because the appellant’s challenge lacked an arguable basis in law.

If the dismissed appeals are removed from the total, the Third Circuit:

Affirmed the district court’s judgment in 80.03% of 611 cases;
Reversed the district court’s judgment in 5.89%;
Reversed the district court’s judgment in part in 2.62%;
Vacated the district court’s judgment in 6.71%; and
Vacated the district court’s judgment in part in 4.75%.

To appeal or not to appeal – an example using Third Circuit contract appeals.

Switching from the employment-case scenario of my last post, now let’s say you just learned that the district court judge granted the opposing party’s motion for summary judgment in a breach-of-contract case. As before, you’re still within the period you have to file a notice of appeal. My data has 84 contract-case appeals the Third Circuit decided in FY 2013.

A bit of background on those 84 cases: About a third of them involved insurance policies. In about 30% of the 84 cases, the claims were dismissed, usually under Rule 12. In another 39%, the district court granted summary judgment. Judgment was entered after a bench or jury trial in another 12%. These percentages don’t add up to 100 – other cases came to the Third Circuit after decisions on injunctions, Rule 60 motions, as well as other motions. Some other statistics:

Time to disposition:    First quartile – 9.12 months
Median – 11.57 months
Third quartile – 14.73 months

Percent affirmed or dismissed:                      78.57%.

Time to disposition is about what it is for “other civil cases” generally, and the percentage affirmed or dismissed is slightly smaller. See FY 2013 statistics here. The percentage affirmed or dismissed is a good deal smaller than the comparable percentage for my sample of employment cases, though contract-case appeals also appear to take longer. See here.

A quick way to get an idea of whether it makes sense to appeal from the district court’s summary judgment decision in the contract case is to apply the above percentage to what’s on the table. If, for example, $100,000 is at stake – this is what you’ll get (or get to keep) if you win the appeal – then an estimate of the “expected benefit” of the appeal is $21,430. From that, you’ll have to subtract attorney fees and other costs associated with the appeal that you will have to pay.

Why only $21,430? If 78.57% of decisions in contract cases are affirmed or dismissed, then 21.43% (100-78.57) can be taken as an estimate of the chance that there will be some meaningful change to the district court’s decision – either it’s reversed or vacated in whole, or reversed or vacated in part. If you lose the appeal, you’ll be out attorney fees and other costs you have to pay and you will gain nothing (you will still be faced with the adverse district court decision and what that means for what you’ll have to pay or do without). If you are looking at fees and costs likely totaling more than $21,430, then you’ll have a negative expected value of the appeal. Generally, this means you should not appeal.

Now, if there’s $1M at stake, the expected benefit would be $214,300, and, unless your attorney’s fees and other costs are more than that, you’ll be looking at a positive expected value of the appeal.

This expected value example is a simple one; it does not include all the factors that you should consider when deciding whether or not to appeal. But it may give you a good – and objective – starting point.

Should you appeal your employment case?

How can you use statistics like the ones published on this site to help you decide whether to appeal a court judgment? Let’s say you just learned that the district court judge granted the opposing party’s motion for summary judgment in the Title VII case in which you’re a party, and you’re still within the period you’re allowed to file a notice of appeal. Statistics can give you some idea of what might happen once your case is on review (hence the name of this site, by the way – Once Upon Review). The statistics I’m going to address here are:

For Civil Rights – Employment cases (N=92):

Time to disposition: First quartile – 6.99 months
Median – 9.55 months
Third quartile – 11.91 months

Percent affirmed or dismissed 91.30%

In FY 2013, the Third Circuit decided 92 cases brought under employment-related statutes (e.g., Title VII, the ADA, the ADEA). I’m not including in this discussion cases brought under Section 1983 that allege some constitutional violation in the context of an employment relationship (e.g., retaliation for exercising First Amendment rights).

Of the 92 cases, 57 ended with a decision on a summary judgment motion (about 62%). Another 19% ended with a dismissal, usually on a Rule 12(b)(6) motion. Eight cases were brought to the Third Circuit after a jury or bench trial. Yes, I’m going by the data that I collected here – the Administrative Office’s published information doesn’t include such details.

By the time of the Third Circuit’s decision, those 92 cases had been on the appellate court’s docket from 65 days (minimum) to 1,196 days (maximum). The median time between docketing and disposition was 290.5 days, or 9.55 months. So, 50% of the 92 cases were decided in about 9½ months. Other statistics show that 25% of the cases were decided in about 7 months and 75% of the cases were decided in just under a year (362.25 days or 11.91 months). So, one way of looking at the statistics above is that they suggest that if you do appeal, you can expect that you’ll have to wait 9½ to 12 months to get a decision on the merits of your employment case. Obviously, a lot of things can happen to bring your specific case either under or over that range, but that range is a probably a good starting estimate.

Now, what you’re probably most interested in is your chances of success on appeal. Taking things from a general perspective – without delving into the specific facts of your case – one indicator of your chances of success is how often the Third Circuit affirms the district court decision. From an appellant’s perspective this is usually a complete loss, and conversely, from an appellee’s perspective, it is a complete win.

In FY 2013, the Third Circuit affirmed or dismissed 91.30% of the 92 cases described above.

Yes, that’s a high number. Yes, that’s a quite a bit higher than the 81% percent listed in my prior post for “other civil cases” – the category that includes the 92 employment cases. And finally, yes, that number means that you could wait a year only for the Third Circuit to tell you that you lose.

What the percent affirmed number doesn’t tell you is whether your specific case is like the cases in which the Third Circuit affirmed or whether it is more like the cases in which the Third Circuit reversed, reversed in part, vacated, or vacated in part the district court’s judgment (the remaining 8.7%). If someone is advising you to appeal, however, a good question to ask that person is how your case is more like the cases in the 8.7%.