Conventional wisdom is that 3% of all appeals cases win a reversal of the trial court decision.  All lawyers I talked to seem to have heard that, but the hard evidence is otherwise.  The U.S. Department of Justice study of civil appeals in 46 large counties from 2001-2005 (http://www.ojp.usdoj.gov/bjs/abstract/agctlc05.htm), indicates that of intermediate appellate decisions in civil cases which have a written opinion, unsigned per curiam opinion, or a published order, 20.7% find reversible error. The problem with this statistic is that it is based upon written opinions, rather than actual cases—that is, it looks only at what the court publishes rather than at what the court actually does. 

So I became curious, largely because I calculated my own work and the rates at which I was able to obtain reversals, and was curious as to how I compared with all my colleagues.  I contacted West Publishing, and its supervisors were unable to find that anyone had every calculated this.  So I set to work, and much more work than I had anticipated I have a few preliminary results on my analysis of reversal rates.  My goal was to simultaneously create a publishable analysis and, quite frankly, to see how my batting average compares to others.   

I have looked at the 1008 appellate cases filed in the Cincinnati court of appeals (First Appellate District of Ohio) in the calendar year of 2005 AD.  By working forward from all cases filed in the court, I hope to avoid the inherent error of the US Department of Justice analysis caused by looking only at what the court publishes.  Eliminating all the duplicates, dismissed cases, and pending cases which do not have an decision as of 12/30/06 left 549 cases decided by this court by 12/30/06 out of the 1008 cases originally filed.  Of those 549 cases, 172 were civil cases, 372 were criminal cases, and 5 were extraordinary relief (habeas, mandamus, procedendo, and prohibition) cases.  The other 459 cases included 42 cases which had not yet been decided as of 12/30/06, 277 cases that were dismissed (some voluntarily, others involuntarily, and yet others for reasons that cannot be determined from the records available to me), and 140 cases that had duplicative filings and thus multiple case numbers.¹ 

On the civil side of the house, there was one abortion appeal decision, which was a reversal of the trial court.  There was one decision in a declaratory judgment case, one forfeiture decision, one post-judgment decision, one workers’ compensation appeal decision, and six probate appeals decisions, all of which affirmed the trial court. There were eight domestic relations decisions: six affirmed and two reversed. There were 153 other general civil decisions: 113 affirmations and 40 reversals.  The average civil case filed in 2005 in the Court of Appeals for Hamilton County, Ohio, therefore, stood exactly a 25% chance of resulting in a reversal (43 out of 172). My personal average in state court civil appeals is 46% when representing the appellant.  Thus I am batting almost twice the state average; though of course my average is calculated since 1990 rather than merely considering the one year.

On the criminal side, there were 372 total decisions from this court.  There were twelve delayed appeals, of which 5 resulted in the reversal of the trial court and 7 affirmed the trial court’s decision.  There were 17 appeals in juvenile cases: three reversals and 14 affirmations.  There were also eight post-conviction appeals, of which one was successful and seven unsuccessful.  There was one successful sexual predator appeal, with none unsuccessful.  There were six traffic cases appealed to the court, of which only one was successful.  Finally, there were 328 criminal direct appeals, of which 73 were successful in achieving a reversal of the trial court decision, and 299 were unsuccessful.  Thus the reversal rate for criminal cases filed in 2005 in the Hamilton County Court of Appeals is 19.6%.  My own average on criminal appeals in state courts is 53%, though again this is over the 16 years since 1990 rather than merely in one year, and it includes appeals courts all over Ohio and some in Indiana and Kentucky, rather than merely in Hamilton County, Ohio. 

Finally, there are the extraordinary remedy cases.  In 2005 there were five cases filed that have made it to decision: two habeas corpus cases, two mandamus cases, and a prohibition case.  The Court of Appeals granted one each of the habeas and mandamus cases, and denied the other three.  I have filed two mandamus cases in my life, though one was in federal court—I won that one, accomplishing an order from the Sixth Circuit Court of Appeals to Judge Susan Dlott (Stan Chesley’s wife) to recuse herself from hearing a case because her sister-in-law was the acting U.S. Attorney for the Southern District of Ohio.  The other one I lost in Hamilton County.  Since I am limiting this analysis to state rather than federal court, I must conclude that I am batting .000 in extraordinary relief in state court. 

One future project will be to a longitudinal study to see how reversal rates have changed over time, and a geographical study to see how they have changed depending on the specific county.  Then there may be a federal court study.  I am dying to see how my federal numbers stack up—I have won 62.5% of the federal criminal appeals and 50% of my federal civil appeals. I can’t wait to figure out how that stacks up!

¹  The duplicates include cases filed involving the same issues but with a different case number, and this appears to have happened for several reasons.  First, people fear that if they do not file an appeal at every adverse decision of the trial court, when they do appeal the case they might lose because they filed too late.  Second, some people file a separate appeal from the criminal charge—thus an indictment with an A, B, and C charge sometimes results in three separate appellate cases.  The court of appeals generally treats them as one case and issues one opinion with multiple case numbers.  Third, some appeals are filed but the parties then settle their dispute.  Fourth, some lawyers just can’t seem to get the record properly filed on time, and the court of appeals dismisses the case for this violation of the rules—sometimes this results in protracted further litigation as the late filer tries to undo the mistake.  Fifth, some appeals are filed by the trial lawyers as an accommodation to their clients with no intentions of ever filing an appellate brief; eventually these appeals are dismissed.