I spent the weekend in chilly Williamsburg, attending my first VTLA convention. The convention featured two appellate presentations, one from John Davidson and another from Roger Creager. Both were excellent. John probably had a slight advantage, because his came with lunch, but I’d like to pick up on a point that Roger made: the winner in the trial court wins on appeal in the vast majority of cases.
Using statistics available on the Supreme Court’s website, Roger calculated that, in 2008 (the most recent year for which statistics are available), 416 civil petitions for appeal were filed. Of those, only 108 appeals, or 26%, were granted. I’d quibble with Roger’s exact figures–for example, I don’t think they account for petitions that were dismissed on procedural grounds–but his basic point is sound: the party who won below has a huge systemic advantage on appeal. If an appeal is not granted, for any reason, it’s game over–and the appellee wins by definition.
In fact, Roger understates his point by not including petitions dismissed on procedural grounds. Using the same caseload statistics, I’d put the figure for civil petitions for appeal granted at about 19% (assuming that the Court’s figures account for petitions that were withdrawn, granted on a petition for rehearing, etc.) This means that appellees won 4 of 5 appeals right out of the gate.
And things weren’t all that much better once an appeal was granted. That’s to be expected, because the Supreme Court of Virginia is not solely a court of error correction. Of the 124 cases decided by opinion in 2008, 54–or 43.5%–affirmed the decision below. Another 81 cases were decided by orders. We don’t know how those came out, but it’s reasonable to assume that they basically tracked the split for cases decided by opinion.
By Roger’s figures, this means that the party who won in the trial court won on appeal 7 out of 8 times in 2008. My figures are even more favorable to appellees. By my count, they won about 92% of the civil appeals in 2008.
The point of this exercise is that it pays to be a winner in the trial court. If 4 out of 5 petitions for appeal never make it to the merits stage, then a good result below gives you a little margin for error.