A snapshot of briefs, opinions, and citations in federal appeals.

• Author: Reagan, Robert Timothy

To assist the federal courts in deciding whether to require the courts of appeals to accept citations to their unpublished opinions, the Federal Judicial Center assessed the frequency of citations to unpublished opinions in a sample of federal appeals. (1) This article grew out of that citation study, because my colleagues and I noticed while collecting the necessary data that they contained information about a number of other interesting topics, all of which seemed to us to be of interest to the appellate community. We learned about case disposition times; the frequency with which both published and unpublished opinions are issued; the average length of counseled briefs and the frequency with which they are filed; the average length of both published and unpublished opinions; and the frequency with which various types of authorities are cited in both briefs and opinions. This article presents some of that additional information.

1. THE SAMPLE

   We examined the case files of a random sample of fifty cases in each of the thirteen federal courts of appeals selected from among all cases filed in 2002. (2) Because the data were collected for a study of citation practices, we examined counseled briefs filed in each of these cases. (3) We did not examine pro se briefs, because although citation rules apply to pro se litigants, citation behavior by lawyers would be much more relevant to the development of court rules. (4) We did not examine memoranda supporting motions, because these are often short documents with few citations. (5)

   This article presents data for circuits individually and estimates for all courts of appeals together. In computing nationwide estimates, I weight more heavily the data for courts with more cases. (6) For example, because twenty percent of the cases filed in federal courts of appeals in 2002 were filed in the Ninth Circuit, I weight its data twenty percent in computing averages, while weighting data for the D.C. Circuit two percent, because only two percent of the cases filed in 2002 were filed there.

2. FILING BRIEFS AND PUBLISHING OPINIONS

   Most appeals are resolved without counseled briefs. In our sample, only cases with counseled briefs were resolved by published opinions. Cases with counseled briefs filed on both sides were more likely to be resolved by published opinions than were cases with counseled briefs filed on one side only. Our data suggest that approximately thirty-nine percent of cases with counseled briefs on both sides are resolved by published opinions.

   We found counseled briefs filed in forty-one percent of the cases in our sample. (7) Taking into account the number of cases filed in each court, this suggests that approximately thirty-nine percent of the cases filed in 2002 had counseled briefs filed. As Table 1 demonstrates, the percentage of cases with counseled briefs ranged from twenty-two percent in the Fourth Circuit to fifty-four percent in the Eighth Circuit. (8)

   Not all cases with counseled briefs had counseled briefs filed on both sides. Pro se cases accounted for approximately three-quarters of the cases with counseled briefs on one side only. (9) Some cases were dismissed before appellee briefs were filed, either because of settlement or resolution on motion. (10)

   The data shown in Table 1 indicate that from a large minority to a substantial majority of cases filed in each court had no counseled briefs filed. But as figure 3 demonstrates, nearly one-third of these cases are denials of pro se applications for certificates of appealability or for successive habeas corpus petitions. Almost another third of these cases were dismissed as improper for some reason, such as failure to prosecute or lack of jurisdiction. More than a quarter were voluntarily dismissed. Other reasons for no counseled brief filed included pro se appeals dismissed on motion and mandamus actions decided without formal briefing. (11)

   [FIGURE 3 OMITTED]

   The percentage of cases with counseled briefs on both sides cases we designated as "fully briefed"--ranged from twelve percent in the Fourth Circuit to forty percent in the Third and the Eighth Circuits. From these data, we estimate an average of twenty-seven percent in all circuits combined. (12)

   In our sample of cases, ninety-nine percent were resolved during the study period. (13) Of these, fourteen percent were resolved by published opinions, thirty-one percent were resolved by unpublished opinions, and fifty-five percent were resolved without opinions. (14) If we take into account the number of cases filed in each circuit, this implies that among all cases an estimated ten percent were resolved by published opinions, approximately thirty-one percent were resolved by unpublished opinions, and about fifty-nine percent were resolved without opinions. (15)

   From our sample of case files we can estimate how many counseled briefs were filed in 2002 cases, but to do that we have to take into account consolidations. It is not uncommon for both sides of a case concluded in the trial court to file an appeal, with one of the filings designated the appeal and given one case number, and the other filing designated a cross-appeal and given another case number. The appeal and cross-appeal usually are consolidated, with one set of briefs filed to cover both cases. If we want to estimate from our sample the average number of briefs per case, then we should count each brief filed in a two-case consolidation as half a brief. Similar principles would apply to more complicated consolidations. For example, if three losing defendants each filed an appeal and the three appeals were consolidated, and if each appellant filed a separate brief, but the appellee filed one brief to cover all three appeals, then each appellant brief would count as one brief, but the appellee brief would count as one-third of a brief. Our data suggest that in 2002, an average of 0.80 counseled briefs per case were filed in federal appeals, ranging from an average of 0.31 briefs per case in the Fourth Circuit to an average of 1.28 briefs per case in the Eighth Circuit. (16)

   We determined that fully briefed cases are much more likely to be resolved by published opinions than are cases with counseled briefs filed on only one side. And we also observed that no case without any counseled brief filed was resolved by a published opinion in our sample.

   Among cases without any counseled brief filed, all were resolved without opinion in five circuits--the Second, Seventh, Eighth, Ninth, and Eleventh Circuits. (17) The percentage of cases without counseled briefs that were resolved without opinion in the other circuits ranged from forty-six percent in the Fourth Circuit to ninety-six percent in the First and Third Circuits. Our data suggest that overall, eighty-nine percent of cases filed in 2002 without counseled briefs were resolved without opinions, and eleven percent were resolved with unpublished opinions.

   The Fourth Circuit issued the highest percentage of opinions in cases without counseled briefs--fifty-four percent. Of the thirty-nine Fourth Circuit cases in our sample without counseled briefs, the court resolved twenty-one with opinions. Approximately half of these opinions--ten deny certificates of appealability. Other circuits generally deny certificates of appealability without opinion, but the Fourth Circuit appears to deny them with form unpublished opinions. (18)

   Cases with counseled briefs filed on one side only--"partially briefed" cases--were resolved mostly by unpublished opinions. Our data suggest that overall eighty-one percent of the cases filed in 2002 with counseled briefs on one side only were resolved with unpublished opinions, ranging from just fourteen percent in the First Circuit to one hundred percent in the courts of appeals for the Eighth, Ninth, Tenth, and D.C. Circuits. (19) Our data suggest that overall seventeen percent were resolved without opinions, and two percent were resolved with published opinions. There were only three partially briefed cases in our sample resolved by published opinions. (20)

   Our data--reported in Table 5--suggest that a bare majority of fully briefed cases filed in 2002 were resolved by unpublished opinions and that over a third were resolved by published opinions. In six circuits (the First, Second, Seventh, Eighth, Tenth, and D.C. Circuits), however, most fully briefed cases were resolved by published opinions.

   The court resolving the largest percentage of fully briefed cases without opinion was the Federal Circuit, which resolved seven (or fifty-eight percent) of its twelve fully briefed cases without opinion. Two of these cases were voluntarily dismissed, and one was dismissed as moot. The other four were unsuccessful appeals resolved by per curiam judgments without opinion. (21)

   The First Circuit resolved five (or thirty-one percent) of its sixteen fully briefed cases without opinion. But this court often explains its holdings without opinion in textually rich docket entries. (22)

3. VOLUME PER JUDGESHIP

   It is clear that not all cases require the same amount of work by the court. A case without briefs that is resolved without opinion will generally require considerably less work than a fully briefed case resolved by a published opinion. And not all briefs and opinions require the same amount of work. A 10,000-word brief will generally require substantially more time to read and review than a 1,000-word brief.

   We computed the length of all of the briefs and opinions filed in our sample of cases. These computations were somewhat crude, because although some documents were available electronically, some had to be scanned and passed through character-recognition software. Such software often results in errors, but the data appear to be sufficiently accurate for general conclusions.

   Our data suggest that there were 340 cases filed per court of appeals judgeship in 2002. (23) This ranged from ninety-two cases per judgeship...