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What can we learn (so far) about
appellate practice in
the age of TAMES?
Don Cruse
State Bar Appellate CLE
September 11, 2015
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credited to: thewestmorelandgazette.co.uk
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source: “Spurious Correlations” tumblr
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source: “Spurious Correlations” - http://tylervigen.com/view_correlation?id=28669
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On behalf of every advocate here:
“The judges in the room are cordially invited
to ‘crib’ from our briefs, anytime.”
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Texas Courts of Appeals
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What information is tracked?
• OCA publishes an overview
report and a backup XLS file
with some top-line totals for
the appellate courts.
• After TAMES, the 14 courts of
appeals have a (mostly)
standardized docket system.
This is case-by-case and
includes all case events, along
with some raw metadata.
• The district court information,
in aggregate form, is in a
separate database that the
public can query online.
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All Civil Appeals
SCOTX Petitions
SCOTX Decisions
0.25% (4946)
0.05% (1118)
0.005% (96)
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What Do We Know About
the Courts of Appeals?
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Cases Filed – In 2014, the number of
cases added in the Courts of Appeals
overall decreased by 1.3 percent from the
previous year to 11,101 cases. There was
a 3.7 percent decrease in new fi lings and
16.7 percent increase in other cases.18 The
number of new cases fi led and the total
number of cases added in general was the
lowest number fi led or added since 2009.
Civil cases accounted for 51.5 percent, and
criminal cases 48.5 percent, of all new fi lings
in 2014. Over the last decade, civil fi lings
generally grew as a propor on of all new
cases fi led. For the second year in a row, the
number of new civil cases fi led exceeded
the number of new criminal cases fi led.
Over the last 30 years, the only other me
that this occurred was in 2006, when there
was a diff erence of only 32 cases.
The Courts of Appeals
More than 11,100 cases
added
All New Filings
Civil - 51.5%,
Criminal 48.5%
For the past two years,
the number of new
civil cases fi led have
Figure 16 - New Filings (Civil and Criminal)
0%
10%
20%
30%
40%
50%
60%
05 06 07 08 09 10 11 12 13 14
Percent of Total
Fiscal Year
New Filings
Civil Criminal
12,000
14,000
Total Cases Added, Disposed and Pending
Added Disposed Pending
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The average me between fi ling and
disposi on for all cases decreased slightly
from 8.7 to 8.6 months. For civil cases,
the me to disposi on decreased from
8.3 months in 2013 to 7.9 months in 2014
and ed 1997 and 2012 for the lowest
me to disposi on over the last 20 years.
For criminal cases, the me to disposi on
increased from 9.1 months in 2013 to 9.2
months in 2014.
The average me between submission and
disposi on for all cases increased from 1.7
months in 2013 to 1.9 months in 2014. The
average me for civil cases remained the
same at 2.0 months, and the average me
for criminal cases increased from 1.5 to 1.7
months.
The number of cases disposed of by the
courts of appeals was 448 more than the
number added, resul ng in a clearance rate
of 104.0 percent.
Cases Pending – At the end of 2014, a total
of 7,294 cases were pending statewide,
down 5.3 percent from the number pending
at the end of the previous year. More than
half (53.3 percent) of these cases had been
pending for fewer than six months, and 81.9
percent had been pending for less than one
year. The percentage of cases pending more
than two years increased from 1.0 percent
in 2013 to 1.2 percent in 2014.
Figure 18 - Average Time Between Filing & Disposi on
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2
4
6
8
10
12
14
95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14
Months
Fiscal Year
Average Time Between Filing & Disposition
Civil Criminal Total
175
New Filings Per Justice
Excluding Transfers Including Transfers Avg. of All Courts
Fiscal Year 2014
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The average me between fi ling and
disposi on for all cases decreased slightly
from 8.7 to 8.6 months. For civil cases,
the me to disposi on decreased from
8.3 months in 2013 to 7.9 months in 2014
and ed 1997 and 2012 for the lowest
me to disposi on over the last 20 years.
For criminal cases, the me to disposi on
increased from 9.1 months in 2013 to 9.2
months in 2014.
The average me between submission and
disposi on for all cases increased from 1.7
months in 2013 to 1.9 months in 2014. The
average me for civil cases remained the
same at 2.0 months, and the average me
for criminal cases increased from 1.5 to 1.7
months.
The number of cases disposed of by the
courts of appeals was 448 more than the
number added, resul ng in a clearance rate
of 104.0 percent.
Cases Pending – At the end of 2014, a total
of 7,294 cases were pending statewide,
down 5.3 percent from the number pending
at the end of the previous year. More than
half (53.3 percent) of these cases had been
Figure 18 - Average Time Between Filing & Disposi on
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4
6
8
10
12
14
95 96 97 98 99 00 01 02 03 04 05 06
Months
Fiscal Year
Average Time Between Filing & Dis
Civil Criminal
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“It’s been a month since my case was
submitted. I see that the average wait is two
months after submission. So, that means I have
about a month left to wait, right?”
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Most dispositions happen really fast
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Most dispositions happen really fast
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Those immediate “decisions” are
rarely the droids you’re looking for
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Refocusing: Only cases that affirm/reverse
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0
1500
3000
4500
6000
Monday Tuesday Wednesday Thursday Friday
Random sanity check of the data:
What days of the week are cases submitted?
Not that interesting on its own, but this helps confirm that
the pattern on the previous slide is accurate. Given this,
you’d expect fewer submissions at (n weeks) +3 and +4 days.
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Zooming back out to a “one year” view
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Reversals and Affirmances
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OCA “Annual Statistical Detail Report” for 2014
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What I Counted
• Took the docket entries (rather than the opinions)
• Parsed some of the different wording that the docket
pages use to describe outcomes in the database fields
• Rolled those up and combined them into broad
categories of “Affirmed”, “Reversed”, “Mixed”, and
two other outcomes (“Other” and “Dismissed”).
• Distinguished memorandum from regular opinions.
• Sorted these by the fiscal year in which the opinions
were issued.
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How accurate is counting case
dispositions based on docket entries?
23%
29%
4%
9%
35%
Dismissed Reversed Mixed Affirmed Other
21%
29%
4%8%
37%
Published OCA (FY 2014) This Method (FY 2014)
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How accurate is counting case
dispositions based on docket entries?
66%
34%
Diismissed Reversed Mixed Affirmed Other
Liberato-Rutter Study (FY 2011)
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How accurate is counting case
dispositions based on docket entries?
66%
34%
Diismissed Reversed Mixed Affirmed Other
Liberato-Rutter Study (FY 2011)
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How accurate is counting case
dispositions based on docket entries?
66%
34%
Diismissed Reversed Mixed Affirmed Other
21%
29%
4%8%
37%
Liberato-Rutter Study (FY 2011) This Method (FY 2014)
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How accurate is counting case
dispositions based on docket entries?
66%
34%
Diismissed Reversed Mixed Affirmed Other
70%
10%
20%
Liberato-Rutter
Study (FY2011)
This Method (FY2014)
ignoring dismissals
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How accurate is counting case
dispositions based on docket entries?
66%
34%
Diismissed Reversed Mixed Affirmed Other
66%
12%
22%
Liberato-Rutter
Study (FY2011)
This Method (FY2014)
ignoring dismissals & parental termination
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OCA Stats can tell you how these
overall rates change year-to-year.
A litigant might wonder about a
different question: “What does the
passage of time suggest for my case?”
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Combined the reverse/affirm data
-with-
Data about how long each
case was submitted before decision
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As time passes after submission…
(This is two years)
Affirmances Reversals
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As time passes after submission…
(Zoomed to one year)
Affirmances Reversals
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“So the longer a case is pending,
the higher the odds of reversal?”
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overall rate for this set of cases: 34%
“Does a case pending longer give
more information about
the odds of a reversal?”
* To match earlier slides, this graph excludes parental termination cases.
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The odds of reversal jump (as you’d expect)
and then keep rising fairly steadily
2011-2015: Excludes parental termination cases
“Does a case pending longer give
more information about
the odds of a reversal?”
The rate eventually crosses 50%
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The odds of reversal jump (as you’d expect)
and then keep rising fairly steadily
2011-2015: Excludes parental termination cases
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Long-pending cases after
full briefing is complete
0%
6%
12%
18%
24%
30%
36%
42%
48%
54%
60%
0 15 45 75 105 135 165 195 225 255 285 315 345
Read this chart: As “X” days have passed since the Respondent’s Brief was filed,
these are the odds that the petition will be granted or have summary disposition.
84 days is average
0 days = overall odds
Conferences held
Aging past 4 months
no longer improves
the total odds
By comparison: The grant rate for
long-pending SCOTX petitions flattens out
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The odds of reversal jump (as you’d expect)
and then keep rising fairly steadily
2011-2015: Excludes parental termination cases
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Memorandum Opinions
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The average me between fi ling and
disposi on for all cases decreased slightly
from 8.7 to 8.6 months. For civil cases,
the me to disposi on decreased from
8.3 months in 2013 to 7.9 months in 2014
and ed 1997 and 2012 for the lowest
me to disposi on over the last 20 years.
For criminal cases, the me to disposi on
increased from 9.1 months in 2013 to 9.2
months in 2014.
The average me between submission and
disposi on for all cases increased from 1.7
months in 2013 to 1.9 months in 2014. The
average me for civil cases remained the
same at 2.0 months, and the average me
for criminal cases increased from 1.5 to 1.7
months.
The number of cases disposed of by the
courts of appeals was 448 more than the
number added, resul ng in a clearance rate
of 104.0 percent.
Cases Pending – At the end of 2014, a total
of 7,294 cases were pending statewide,
down 5.3 percent from the number pending
at the end of the previous year. More than
half (53.3 percent) of these cases had been
Figure 18 - Average Time Between Filing & Disposi on
0
2
4
6
8
10
12
14
95 96 97 98 99 00 01 02 03 04 05 06
Months
Fiscal Year
Average Time Between Filing & Dis
Civil Criminal
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at the end of the previous year. More than
half (53.3 percent) of these cases had been
pending for fewer than six months, and 81.9
percent had been pending for less than one
year. The percentage of cases pending more
than two years increased from 1.0 percent
in 2013 to 1.2 percent in 2014.
Opinions WriƩ en – During 2014, the
jus ces of the courts of appeals issued
10,797 opinions, 55.9 percent of which
were published. Since 2004, the rate of
publica on has exceeded 50 percent due
to a change in the Texas Rules of Appellate
Procedure in 2003.19
Docket EqualizaƟ on – To reduce dispari es
in the number of new cases fi led per jus ce
among the courts of appeals, the Supreme
Court issues quarterly orders for the transfer
of cases from those courts with higher new
case fi ling rates per jus ce to those with
75
100
125
150
175
Number of Cases
Excluding T
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“Published,” but with a diminutive
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(mem. op.) has become the rule,
not the exception
~85% of
all opinions
(incl. dismissals)
~70% of
opinions that
affirm or reverse
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52%
17%
32%
75%
8%
17%
Reverse Mixed Affirm
Memorandum Op. Regular Opinions
As you’d expect, they are more
commonly used to affirm
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What about the subsequent history?
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40%
60%
22%
78%
No Pet. Pet.
Memorandum Op. Regular Opinions
Memorandums are less likely to inspire
the losing party to file a SCOTX petition
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4%
9%
27%
60%
2%
20%
78%
No Pet. Pet. BOM Request Grant
Memorandum Op. Regular Opinions
And the Supreme Court takes action
on those petitions far less frequently
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Clear that (mem. op.) signals something.
Unresolved question: To what extent does
the label itself reduce the perceived
importance of a case as precedent?
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What Subjects
Are Being Appealed?
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“Case Type:”
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“insurance”
“arbitration”
“tax”
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“insurance”
“arbitration”
“tax”
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“
insurance”
“arbitration”
“tax”
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“insurance”
“arbitration”
“tax”
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“insurance”
“arbitration”
“tax”
¯\_()_/¯
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“insurance”
“arbitration”
“tax”
¯\_()_/¯
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“mandamus”
“summary judgment”
“miscellaneous/other civil”
“termination of parental rights”
“divorce”
“contract”
“unknown civil case type”
“interlocutory”
“SAPCR”
“personal injury”
“restricted appeal”
“mandamus/prohibition”
“injunction”
“real property”
“malpractice”
“damages”
“declaratory judgment”
“administrative law”
“expunction”
“insurance”
“arbitration”
“tax”
Taxonomy is hard.
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When a single field defines trial procedure,
appellate posture, the subject matter,
and the remedy… it’s probably impossible.
Taxonomy is hard.
Ask your doctor if proceeding past this
point in the slide deck is right for you.
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Something like this happened…
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Something like this happened…
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Some broad procedural groups
Some broad substantive groups
• Plea to the Jurisdiction
• Interlocutory
• Summary Judgment
• Torts
• Contract
• Real Estate
• Parental Termination
• Family/Divorce
• “Miscellaneous”
This grouping covered about 80% (with 25% “misc”)
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Overall: Civil cases filed since 2011
(Zoomed to one year)
Affirmances Reversals
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Procedural Groups
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Pleas to the Jurisdiction
Interlocutory
Summary Judgment
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Summary Judgment
Pleas to the Jurisdiction
Interlocutory
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Substantive Groups
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Overall Rate
Parental Termination
Family/Divorce
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Family/Divorce
Overall Rate
Parental Termination
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TITLE
Parental Termination
Family/Divorce
Contract
Torts
Real Estate