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Lessons for Texas appellate lawyers in the latest SCOTX statistics

By Don Cruse

Last week, the Office of Court Administration released its official 2010 statistics page. On that list is the “Supreme Court Activity” document that is the focus of so much attention by court-watchers.

What do these statistics mean for you?

I’ve marked some highlights on this version of the document. In short:

• The most prolific author last term was Justice Green. We knew that he led the way with 12 signed majority opinions. Until these statistics were released, we did not know how many of the Court’s unsigned per curiam opinions he wrote. It turns out that he wrote 11 of them, for a total of 23 deciding opinions. (The next closest total was Chief Justice Jefferson at 14 deciding opinions.)

• Last term, the Court took in more causes than it decided. That marked a break from recent years in which the Court had been issuing more decisions. It also led to an increase in the number of causes carried over term-to-term.

• It’s very hard to get the Court to rehear a petition after it has made the initial choice to deny review. Last year’s grant rate seemed abnormally low at just 3.8% (7/185). This year, the number is down to 1.75% (2/171). The Court seems quite firm about its initial decisions to deny review.

• And if the Court doesn’t deny review, if it grants, it seems to have pretty firmly made up its mind that some modification of the decision below is necessary. The rate of affirmance is very low, with only 5 issued in the 2010 term, which works out to about 6% of the time the Court has granted review. (It would take a little more investigation to see what the percentage is for cases actually argued, because OCA does not break out cases by whether they were argued or not.)

So what do I tell my clients?

If you put those last two bullets together — decisions to deny are not second-guessed, and decisions to grant always never result in affirmance — you can see the importance placed on the merits briefs in a case. Once the law clerks have written their study memo and the Justices have taken that initial vote to grant, the train is moving and only a serious disruption can change the destination.

What does that mean for your clients? The lesson I would draw is: Take the request for merits briefing as seriously as you would a grant of review.

When your case is selected for merits briefing — especially if you are on the Respondent side — that is your last, best chance to rethink your approach.

The briefing request greatly increases the chances of a grant, and therefore of a reversal. If that increase in odds changes the economics of your appeal, it may be a time to explore settlement or it may justify additional counsel to help you make the strongest possible presentation.

Full post as published by Supreme Court of Texas Blog on December 08, 2010 (boomark / email).