Like sportswriters and weathercasters, appellate lawyers are constantly asked to make predictions. Just about every potential appellant who who contacts our firm (directly or through their trial counsel) has three basic questions:
- How much is this going to cost?
- How long is it going to take?
- What are my chances of changing the result?
Cost is driven by variables such as the size of the record and the number of issues to be raised—factors somewhat within the lawyer’s knowledge and control. Time to decision can depend on such things as the appellate court’s workload, whether it’s campaign season, whether the court holds oral argument, and whether a justice has pulled the case down for a dissenting or concurring opinion. The third inquiry—the chances for success—is probably the hardest to gauge.
Guidance is available for an appellate lawyer looking to advise a client on time to decision and the chances for success. The Office of Judicial Administration publishes helpful statistics from each the intermediate courts of appeals and the Texas Supreme Court. The OCA data shows the total numbers of cases filed, disposed, transferred, and pending; the number of cases disposed of by affirmance, reversal and remand, reversal and rendition, or other method; and the average time from filing to submission, and from filing to disposition.
Another resource is Lynne Liberato and Kent Rutter’s 2012 article, Reasons for Reversal in the Texas Courts of Appeals. After identifying the statewide reversal rate in civil cases and a rate for each of the intermediate courts, the authors examine reversal rates and reasons for reversal in various procedural and substantive contexts. For example, if the client lost on summary judgment in a tort case that would go up to either the First or the Fourteenth Court of Appeals, the article summarizes information that may help estimate the prospects for success, notwithstanding the merits of that particular case.
I have searched unsuccessfully for statistics on (1) the number of reversals in cases that were submitted to courts of appeals without oral argument, and (2) the number of reversals in docket-equalized cases. These variables come to mind because so many cases are decided solely on briefs and because a seemingly larger number are being transferred from one court of appeals to another under docket-equalization orders. I suspect that the affirmance rate is higher for both categories of cases than the general population of matters in the Texas appellate system.
For purposes of advising my own clients, those are some statistics I’d like to see. I bet others would, too.