Improving Your Chances on Appeal

circuit_map_in_agency_palette-full-sizeCommon questions arise when it’s time to appeal a decision. Will we get oral argument? How long will it take for the court to decide? What are our chances of winning? These are hard questions to answer. But the federal judicial system provides some data that we can use to talk about possible answers to these questions—a statistical ballpark to play in, so to speak. So let’s toss around some numbers.

Will we get oral argument?

According to available data, the D.C. Circuit hears oral argument in more than 50% of its cases. And most of the other circuits hear oral argument around 20% of the time, with a few circuits approaching 30%. To some these numbers might not sound too encouraging, but you have to consider a few important factors.

First, most federal appeals arise in criminal cases, where oral argument is much less frequently granted. So, if a court hears argument in 20% of its cases, and more than half of its cases are criminal, then the rate of oral argument in the court’s civil cases is likely much higher than 20%. Second, the court won’t grant oral argument if the issues are simple enough to be decided on the briefs—and most appeals involve relatively simple issues. So, if a court hears argument in 20% of all its cases, and most of its cases are criminal or simple in nature—where the rate of oral argument is very low—then the rate of oral argument for complicated civil cases could be as high as 70–80%. (At least one study supports this estimate.)

This means if you have a relatively complicated civil appeal and you ask for oral argument, you’ll probably get it.

And if you’re the appellant you should definitely ask for it. You need every opportunity you can get to convince the appellate court to reverse what the lower court did. Plus, reversal rates are higher in cases that hear oral argument than in cases that don’t.

Does this mean appellees should avoid oral argument? Not necessarily. I recently heard a Fifth Circuit judge say that oral argument is the best opportunity an appellee has to respond to the appellant’s reply brief. And it’s a chance to resolve any remaining concerns the judges might have about the decision you’re trying to defend. It’s bad enough to have a victory overturned on appeal; it’s even worse if it’s overturned after you declined the opportunity for oral argument.

Yes, there are times when you should tell the court that oral argument isn’t necessary. But in most cases you want it. And, again, if your case is complicated, you’ll probably get it. Unless you’re in the Third Circuit, which hears argument in only about 8% of all its cases. If you’re in the Third Circuit, make sure you’ve got strong briefing.

How long will it take to get a decision?

Cold hard truth: we just don’t know. The federal courts of appeals are not obligated to decide cases on any timetable. And unlike the Supreme Court, which decides only 70–80 cases per term, the courts of appeals don’t have discretion to deny review—so each circuit must dispose of hundreds and even thousands of appeals every year.

Despite this heavy caseload, most appeals are relatively straightforward and are decided within three months of submission. (A case is “submitted” at the completion of briefing, or at the completion of oral argument if argument was granted.) According to uscourts.gov, the D.C. Circuit is the fastest. From 2012 through 2013, the D.C. Circuit had just one case that remained pending for longer than three months. And the Fourth and Eighth Circuits were almost as fast as D.C.

In flat numbers, the Second Circuit was the slowest from 2012–2013, with 294 cases pending for more than three months, and 74 cases pending for more than a year. The Seventh, Ninth, and Tenth Circuits were also slower, each having over 100 cases pending more than three months.

Bottom line: if your case is even mildly complicated, and you’re not in one of the fastest circuits, then the conservative answer to “how long will this take” is “six months to a year after submission.” So sit back and wait—and just be thankful you’re not one of my clients whose case sat at the Texas Supreme Court for four years.

What are your chances of winning?

Obviously, this depends heavily on the details of each case, and on a host of other factors that are sometimes beyond anyone’s control. (Some say it depends on what the judges ate for breakfast that morning.) But the Fifth Circuit provides some numbers that are interesting.

In 2014, the Fifth Circuit affirmed the lower court’s decision in nearly 58% of all cases brought on appeal. And it affirmed “in part” the decisions in another 6.1% of all cases. Moreover, nearly 28% of all cases were dismissed without a ruling—usually due to a procedural flaw. So, looking at it one way: in 2014, appellants in the Fifth Circuit failed nearly 92% of the time.

Does this mean it’s a waste of time to appeal? No. Remember, 28% of those appeals were dismissed, usually due to a procedural flaw (e.g., the appeal was untimely)—meaning, in some cases, the appeal might’ve been successful if it had been handled correctly. Also, we can recharacterize those cases where the decision was affirmed “in part” as cases where the decision was vacated, reversed, or remanded “in part.” And 8.4% of all appeals resulted in outright vacatur, reversal, or remand. Thus, looking at from another angle: in 2014, appellants in the Fifth Circuit succeeded about 14.5% of the time—and might’ve succeeded more had they avoided procedural errors.

And that’s not all. A large number (28%) of the appeals filed in the Fifth Circuit are filed by prisoners, many of whom are appealing pro se. If we include successive habeas petitions, criminal appeals, and mandamus petitions, we’re talking about 69.5% of the Fifth Circuit’s docket where reversal rates are very low. So it’s reasonable to assume that the reversal rate in the remaining 30.5% of the Court’s docket—i.e., the kinds of appeals that most businesses and individuals are involved in—is significantly higher than 14.5%. As an educated guess, let’s say it’s around 25%.

This would mean a generic civil appellant has roughly a 1-in-4 chance of turning things around on appeal, and a generic civil appellee has roughly a 1-in-4 chance of watching some part of its victory get overturned. And, as always, these odds might get better—or much worse—depending on the strength of the arguments. Which brings us to the most important question of all.

How can you improve your chances on appeal?

Having strong arguments is the best way to win. So how do you make sure your appeal is as strong as it can get? For starters: hire an appellate attorney. Sooner, rather than later.

It’s important to understand that the trial is mostly about facts, whereas the appeal is mostly about law. Your trial lawyer is busy thinking about facts—about depositions, expert reports, affidavits, key documents—and about trial strategy, which involves dealing with opposing counsel, dealing with the trial judge, and possibly dealing with a jury. Trial lawyers don’t have much time to think about an appeal until it’s time for the appeal. And by then it might be too late. With an appellate lawyer on the team, you’ll have someone to focus on the law, to shape your arguments at every stage so they’ll be as strong as they can be for the appeal.

This includes preserving error. But it runs much deeper than that. For example, your appellate lawyer might know that legal argument X will be more persuasive to the court of appeals—even though argument Y is more obvious and more interesting to the trial judge. Your trial lawyer, understandably, will want to argue Y in the trial court. But your appellate lawyer will ensure that argument X is teed up for later.

This is why appellate judges like appellate lawyers. At a recent conference, a group of Fifth Circuit judges agreed that they prefer to see appellate specialists on the briefs and at oral argument, because it means they can count on the arguments to be helpful. Too often, said one judge, trial lawyers will make arguments that are better suited for the trial court. And that isn’t helpful to the court of appeals.

Several justices on the U.S. Supreme Court have similarly expressed a preference for seeing appellate lawyers on the briefs and before the Court. Appellate practice is so different from trial practice that Justice Kagan said it’s sometimes “as if [trial lawyers] are arguing with one hand tied behind their back.” And Justice Sotomayor even suggested it’s “malpractice” for a trial lawyer to argue an appeal when appellate specialists are available.

Two recent studies support the notion that the presence of experienced appellate counsel will improve your chances of winning on appeal. The authors of one study, conducted in the Ninth Circuit, noted that “sophisticated business clients now anticipate the need for appeal and want to have the best appellate practitioners on retainer.” They noted a prior study that confirmed appellate judges are more receptive to arguments from appellate lawyers. And their own data showed that appellees in particular “appeared to enjoy some advantage in preserving trial court victories” when they hired an appellate attorney.

Similarly, another study showed that cert petitions to the Supreme Court are more likely to be granted when an experienced Supreme Court practitioner is involved. And this is, of course, an essential step for appellants hoping to reverse a decision by the court of appeals. (The Supreme Court reverses about 70–75% of the decisions on which it grants certiorari.)

All this is to say that, while it’s hard to estimate your chances on appeal, it’s nearly certain your chances will be better if you have a good appellate lawyer. Just ask the judges.

[A version of this article appeared in Today’s General Counsel.]