If you want a successful win/loss record* as an appellate attorney, always remember to only represent the Respondent when a case goes up on appeal.
In 2012, US federal courts of appeal granted the Appellants reversals in only around 12% of all civil cases appealed out from federal district courts, considered federal trial courts.
Nationwide in 2008 (most recent data I found), the combined rate for US state intermediate appellate courts (e.g., usually state “courts of appeal”) that reversed lower court decisions averaged out at only 15%.
Also nationwide in 2008, in cases appealed to a state court of last resort (e.g., usually a state “supreme court”) the cases affirmed outnumbered reversals more than two-to-one. While nationwide the same year, cases affirmed by state intermediate appellate courts outnumbered reversals at a rate of four-to-one.
Finally in 2008, leaving my local courts last, but certainly not considering them least, in deciding 147 civil and criminal appeals combined, the Supreme Court of Minnesota only issued reversals in about 14% of all appeals. Meanwhile, in Minnesota’s intermediate appellate court, the Court of Appeals decided 2,046 criminal and civil cases, with the Appellants doing slightly better by obtaining reversals about 16% of the time.
The numbers don ‘t lie. If you want to have the best possible win/loss record for your appellate practice, the odds are much higher if you only represent the party that prevailed at trial court level: The Respondent.
If your practice allows you to pick and choose cases on this basis, please leave a detailed comment below explaining for me how it’s done, because I sure don’t enjoy that luxury in my practice!
* Other outcomes may be considered a “win” or a “loss” as well, but are not incorporated in the above discussion in order to keep the definition of a “win” as clean, clear and indisputable as possible. The outcomes left out that could be considered either a “win” or a “loss,” depending on the interpretation of each particular case’s final result, can include cases where an appellate decision is issued that modifies a lower court’s decision (one way or the other), cases when an order is issued dismissing an appeal (for any number of reasons), cases when an Appellant voluntarily agrees to dismiss the appeal (usually with undisclosed reasons), along with many other potential outcomes that are never so neatly and distinctly defined that they fit in a classical “win” column or “loss “column.
- Cohen on Civil Cases in State Intermediate Appellate Courts (lawprofessors.typepad.com)
- Tom DeLay verdict overturned by Texas appellate court (khou.com)
- Appellate Court Over Turns Conviction Of Marissa Alexander (lezgetreal.com)
- Supreme Court reverses Kurwa v. Kislinger – there are limits to the manufacture of appellate jurisdiction (calblogofappeal.com)