Tag Archives: court statistics

Don’t believe the reported numbers – Your chances of getting a reversal in the Circuit Courts are not going down

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A glance over the last two years of statistics reported by the Administrative Office may lead you to think that the chances of getting a “pure” reversal are going down. Of all terminations on the merits across all the regional circuit courts, statistics for the “percent reversed” went from 8.9% in FY 2011 to 6.8% in FY 2012.  See Judicial Business 2012, Table B-5 and compare the information there to Judicial Business 2011, Table B-5. In the Third Circuit, those percentages went from 9.4% in FY 2011 to 6.4% in FY 2012.  The numbers for the Fifth Circuit went from 8.0% in FY 2011 to 5.4% in FY 2012 and the Ninth Circuit went from 11.8% to 7.7% in the same period. In fact, all but two of the 12 regional circuits saw declines of some sort; only the Seventh Circuit’s numbers went up, and then did so by a small amount.  The numbers for the Sixth Circuit were unchanged.

I suppose that a change in the mix of cases could explain part of these declines.  It’s not unusual to see the numbers bounce over time in a single circuit court, going up one year and going down the next, likely because of the mix of cases that court terminates.  But these bounces tend to cancel each other out in the overall numbers because some circuits see declines while others see upticks.  This explains why the percent reversed across all circuit courts hovered around 9.6% (plus or minus .6%) between FY 1997 and FY2011.  So it is surprising to see 10 of 12 circuit courts move in the same direction and to see the overall percent reversed to go down by over two percentage points.

So what gives?  What I found is one of the frustrations of dealing with reported statistics – unexplained changes in the way data are handled.  Bottom line – the percent reversed figures reported for FY 2012 are not comparable to the earlier percentages.

If you go through the online version of the 2012 Judicial Business report, you’ll find a notation to changes the Administrative Office made to the way its data are reported. The percent reversed numbers above come from Table B-5, and the 2012 Report explains that Table B-5 now presents “data on cases disposed by consolidation” whereas in prior years Table B-5 “did not provide such data.”

Ok, but that change doesn’t explain what happened to the percent-reversed figures.  That’s because the “consolidation” change affected neither of the numbers used to calculate those percentages.

What the Administrative Office doesn’t explain (at least I couldn’t find it) is that another change in the way it did things in the 2012 Report was to now treat certificate of appealability terminations as terminations on the merits. See that column labeled “Cert. Appealability” under the overall heading of “Terminations on the Merits” in Table B-5 of the 2012 Report? That column does not appear in Table B-5 in the 2011 or 2010 reports. In those reports – and in fact in all reports going back to 1997 – the “Cert. Appealability” column is in Table B-5A because those dispositions were considered procedural terminations, not merit terminations.  Why are certificate of appealability terminations all of a sudden merit terminations?  No clue.

The effect of the change, however, is to make the number of cases terminated on the merits larger, and as a result, to reduce the percentage of cases reversed.  So the 3 percentage point decline in the Third Circuit probably has more to do with the fact that certificate of appealability terminations represented over 14.5% of the total number of dispositions on the merits than anything having to do with how judges see things. Taking certificate of appealability terminations out of the base leads to a “revised” percent reversed of 8.3% for all circuits, and of 7.5% for the Third Circuit – both still smaller than in FY 2011, but not by huge margins.  The revised percent reversed for the Ninth Circuit is 11.25%, a mere .5% decline from the FY 2011 figure.  Although the change in the way certificate of appealability terminations are treated doesn’t explain all the declines in the reported statistics (e.g., the percent reversed in the D.C. Circuit went from 15.0% to 8.9%, but that court had only 7 certificate of appealability terminations in 2012), it does explain a sizeable portion of them.

How long will an appeal take – Part II

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What’s available from the Administrative Office of the U.S. Courts is usually a single number, like 9.7 months for a median length of time to final disposition. See my prior post. A range – rather than a single number – may prove more useful to you. Or, you may want to plan using a more conservative number, such as a 3rd quartile figure rather than a median. The problem is that you can’t get those numbers or ranges from the published statistics.

Over the last year, I collected information on Third Circuit cases terminated in fiscal year 2010, 2011 and 2012 (generally, the cases are those I could identify either through the Third Circuit’s archive or the archive of opinions available through Villanova University). Let’s just say that problems at a cellular level meant that I had a lot of time on my hands.

My data are not identical to the Administrative Office’s information. For example, to keep things consistent, I collected the date the appeal was docketed rather than the date a notice of appeal was filed. This was because original proceedings and cases from administrative agencies do not have a “notice of appeal” per se. My data do not include all judgment orders, and I have none of the court’s decisions regarding requests for certificates of appealability or regarding terminations based on the absence of a certificate of appealability. I did not exclude cases terminated through dismissals due to a lack of jurisdiction or mootness (terminations not on the merits) because appellants and appellees still have to wait for a decision in those cases and plan accordingly.

When I calculate the median length of time from docketing to final disposition in FY 2011, I get 321 days (or 10.55 months) – about 26 days longer than the 9.7 months reported by the Administrative Office of the U.S. Courts. The reason my number is higher is likely because I don’t have all the original proceedings (my data include 103 original proceedings cases; the Administrative Office’s data include 251 such proceedings decided on the merits) or terminations based on certificates of appealability. Original proceedings are usually terminated very quickly (the median is 1.6 months, see Judicial Business 2011, Table B-4D) and would tend to lower an overall median.

But here are some length-of-time results from my data:

25 % of cases were decided by 196 days (6.44 months);
50 % of cases were decided by 321 days (10.55 months, the median);
75 % of cases were decided by 483 days (15.88 months).

The smallest number of days it took to terminate a case was 3; the largest number of days it took to terminate a case was 3,406 (yes, that’s 9.3 years). Now, I wouldn’t want to give a client a range like 3 to 3,406 days in response to a “how long will it take” question. But based on these numbers, a conservative 3rd quartile-based estimate would be less than 16 months, and a conservative range would be between 6 and 16 months.

To “see” the data, I also broke the cases down into categories defined by 3-month intervals (e.g., the first category included cases terminated in the first 3-month period since docketing and so on through the 37th 3-month period). Here’s what the breakdown shows:

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In FY 2011, the largest number of cases in my sample (419) were terminated in the fourth 3-month period, i.e., in the fourth quarter after docketing. Just over 63% of all the cases in my sample were terminated in the 2nd, 3rd, 4th, and 5th quarters (bars extending above the 200-case line). By the end of the 5th quarter (first 5 bars), over 78% cases had been decided. So, rather than give a client 9.7 months (or 10.55 months) as an estimate of the amount of time an appeal will take, you could give that client a range of between 6 months and 15 months (2 to 5 quarters).

These ranges do not take into account the fact that different types of appeals take different lengths of time. Stay tuned for more on that subject.

How long will an appeal take?

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Looking for a better answer than “It depends”?

The Administrative Office of the U.S. Courts produces for every fiscal year (Oct. 1 to Sept. 30) a report of the “Judicial Business of the United States Courts.” Included in that report is information about the median time it takes to go through the various stages of an appeal, including the time it takes to go from filing a notice of appeal to a final decision. (See, for example, Judicial Business 2011, at Tables B-4, B-4A to B-4D).

My office is in Pittsburgh, which is in the Third Circuit. For cases the Third Circuit decided on the merits in fiscal year 2011 (October 2010 to September 2011), the median number of months between the filing of the notice of appeal and final disposition was 9.7 (Table B-4). For fiscal year 2012, the comparable number is 7.7 (See Judicial Business 2012, at Table B-4). What do those numbers mean?

Well, generally they mean that 50% of 2,484 cases decided on the merits in 2011 were decided by the time 9.7 months had passed. Same for 2012: 50% of 2,493 cases decided on the merits were decided in 7.7 months. What about the other 50%? Those cases took longer than 9.7 months in 2011 and longer than 7.7 months in 2012. How much longer? The tables provide no clue.

So, what can you say about how long an appeal will take in the Third Circuit? All you can say is that half the cases that court decided in the last fiscal year were decided in 7.7 months.

Does that mean your appeal has a fair chance of being decided in 7.7 months? No.

Whether your appeal takes less than 7.7 months or substantially longer than 7.7 months depends in part on whether it is more like the “lower” half of 2,493 cases decided on the merits in FY 2012 or more like the “upper” half of those cases. Rather than look just at the overall numbers, dig a bit deeper and look at Tables B-4A through B-4D. Those tables won’t give you exactly what you’re looking for either, but they’ll provide better information than Table B-4 will.

In Table B-4A, for example, you’ll see that the median number of months it took to decide 596 criminal appeals in FY 2012 was 11.7 – i.e., 4 months longer than the overall median. The Third Circuit decided half of the 616 “other civil cases” (civil cases other than a prisoner petitions) in 10.5 months. The median for bankruptcy appeals was 10.4 months (Table B-4B). On the other hand, the median for prisoner petition cases (of which there were 627 in FY 2012, making it one of the largest subcategories of cases) was 4.1 months (Table B-4A) and the median for original proceedings was 1.3 months (Table B-4D).

The 7.7 month “overall” median reflects all of these cases (and administrative proceedings as well – see Table B-4C). So, is your appeal more like a prisoner petition case or more like a criminal case, a standard civil case, or a bankruptcy appeal? The answer to that question will help you decide if any of the reported statistics are useful to you and which may be most useful.