What are my chances? Federal Courts of Appeal by the numbers.

• Author: Scharf, Erik W.

Both practitioners and their clients often confront decisions concerning whether and how to pursue remedies in Florida's state and federal courts of appeal. The question often arises: "What are my chances?" Although no one can answer that in the abstract, and all cases are different, the related questions of how often anyone secures relief and how a given type of appeal tends to fare in different courts frequently arise. Similarly, once judges are assigned, questions often arise regarding their voting patterns. This article provides practitioners with an overview of the available statistical information, which sheds some light on these questions. This article focuses on the two federal appellate courts most of interest to Florida practitioners: the 11th Circuit and U.S. Supreme Court.

This article begins by reviewing basic statistics for the 11th Circuit, including caseload and reversal rates for various types of appeals. It also briefly compares the 11th Circuit on these metrics to the other circuits and nationwide averages. The article continues in the same vein for the U.S. Supreme Court, but adds some metrics applicable to that institution; for example, it looks at how often certiorari petitions are granted and the voting tendencies of particular justices. Finally, the article offers practitioners a broad overview of some of the more advanced statistical research currently circulating in academic literature. In particular, it offers a summary of a study authored by Cass Sunstein and his colleagues, which analyzes the effect of partisan politics on the federal circuit courts.

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The 11th Circuit by the Numbers and in Contrast with Its Sister Circuits

The Administrative Office of the United States Courts compiles statistics from the various federal courts and publishes them to its website. These statistics provide a glimpse into the workings of the federal courts. Of particular relevance to this article are the statistics collected from the various U.S. courts of appeals, which can inform the judgment of both counsel and client in considering appellate options. Although this article provides direct links for the statistical tables as they exist at the time of publication, the more surefire way to access them is to go to the main website for the administrative office, (1) click the "Statistics" tab near the top of the page, then click "Federal Judicial Caseload Statistics" in the toolbar on the side of the page, and finally click "Caseload Statistics 2011"--or the statistics for any other year--in the drop-down menu that appears.

Table B provides overall caseload statistics, broken down by circuit. (2) The data provided is limited to Article III courts of appeal and does not include data for the federal circuit, which is broken down in a separate table. (3) In 2010 (4) the 11th Circuit had 6,699 filings. In 2011, the court had 6,290 filings. The termination numbers show that the court has been keeping up with its caseload: In 2010, 6,833 cases were terminated by the court and, in 2011, 6,279 cases were terminated. This is despite the fact that the 11th Circuit has the third-highest caseload out of the various courts of appeals. The Fifth Circuit had the second-largest caseload, with 7,217 filings in 2010 and 7,687 filings in 2011. The Ninth Circuit had the highest caseload with 12,327 filings in 2010 and 11,975 filings in 2011.

Table B-7 provides greater insight into the types of cases that comprise each circuit's caseload. (5) For the 12-month period ending March 31, 2011, the 11th Circuit had 3,680 civil cases and 1,501 criminal cases. The various categories in the table are too numerous to list in this article; however, Figure 1 (below) illustrates the top 10 types of civil proceedings most frequently seen by the 11th Circuit in the 12-month period ending March 31, 2011.

Interestingly, the Ninth Circuit had only 108 more criminal cases than the 11th Circuit, despite the Ninth Circuit having 2,717 more total cases. Out of the 11th Circuit's 1,018 cases for this period in which the U.S. government was a defendant, 513 involved motions to vacate sentences. In addition, 2,237 of the 11th Circuit's cases arose out of federal question jurisdiction, as opposed to 376 diversity jurisdiction cases. Drug offenses comprised 582 of the circuit's 1,501 criminal cases.

Table B-5 breaks down the various reversal rates of the circuits. (6) The reversal rates are derived from only those cases the court decided "on the merits." According to the Administrative Office for the U.S. Courts, "[m]erit terminations are based on the rights and liabilities of the parties and a court's power to hear and determine a case and differ from procedural terminations that are based on an administrative aspect of the appellate process." (7) The breakdown by circuit is illustrated in Figure 2 (next page).

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