Readers of the Blawg of the Sage of Virginia Beach are familiar with the David-Goliath Index in which Steve Emmert reports of the win-loss record of the “little guy” (typically a criminal defendant or solo plaintiff in a contact or tort case) against the “big guy” (the Commonwealth or the well-heeled corporation or insurance company). That may be something of an oversimplification of how the index is calculated, but it’s the general idea.
Never wanting to appear unoriginal, but recognizing a good thing when I see it, the Virginia Appellate Attorney’s Court of Appeals of Virginia Blawg is proud to announce the Icarus Index. The Icarus Index is, of course, a reference to the myth of Daedalus and Icarus. In the most popular version of the tale, Daedalus, the craftsman who built the Labyrinth for King Minos, is later imprisoned there with his son Icarus as punishment for assisting Theseus in escaping the maze after defeating the Minotaur. To escape, Daedalus crafts two pairs of wings from feathers and wax. After testing the wings himself, he gives the second pair to Icarus, admonishing him to follow the same flight path that Daedalus takes.
Most people know how the story ends. Icarus, thrilled by the power of flight, disobeys his father and flies high into the sky, thinking to challenge Apollo, the Sun God. Apollo punishes Icarus by melting the wax, causing the feathers to fall from the wings. Icarus then plunges to the sea and drowns.
However, there is slightly more to the story. In his test flight, Daedalus realized that flying too high was dangerous because of the sun’s heat, but he also found that flying too close to the sea was dangerous as well because the moisture of the fog and spray would weigh the wings down, with the same result. The myth is not so much about the hubris of excessive ambition, as it usually portrayed, as it is about following the mean path between the indolence of a lack of ambition and the hubris of overextending your reach.
Hence, I have conceived of the Icarus Index in which the goal is to portray the result of the appeals of right in the Court of Appeals in finalized case as either on or departing one way or another from the mean, with a slight modification in which I assume that Icarus actually succeeds in challenging Apollo. I decided not to include original jurisdiction cases and pre-trial/interlocutory appeals (including bond appeals and injunctions) because it’s a bit more difficult to classify what the median path for those cases might be. I will also not be including cases that are disposed of by unpublished orders because these cases are often dismissed for procedural reasons having nothing to do with the merits.
What the Icarus Index will cover are those case decided by opinions – both published and unpublished – and published orders from cases filed on or after January 1, 2022 (technically, the Court was closed on New Year’s Day, but the e-filing system was accepting submissions). The scale will be from 1-5, with the idea being that a “3” – the mean – is an “as expected result” for the appeal, which is of course an affirmance on the merits. Some may argue that this is unfair, because it implies that most appeals lack merit – but that is not the case. Rather, it is a recognition that the appellant always has the disadvantage of having to overcome a presumptively correct judgment, almost always with an unfavorable (from the appellant’s perspective) view of the evidence. Moreover, from a “orderly administration of justice” standpoint, we really should see reversals in a lot of cases — because that would mean the trial courts were not doing their job correctly with regularity.
A “5” will be the best of all possible results for the appellant – a victory over the sun if you will. In a “5,” the appellant will have achieved the illusive “reversed and final judgment.” A “4” will be for those cases where the appellant lives to fight another day with a reversed and remanded. Below the mean will be the “2” cases, which will be those in which the appellant wins a pyrrhic victory, which might anything from a “right result, wrong reason” affirmance to a reversal that is merely procedural but really doesn’t give the appellant true solace because, well, it means a new trial with practically the same evidence. Finally, a “1” is the worst possible outcome for the appellant – the equivalent of falling into the sea through lack of ambition – where an appeal is, for example, dismissed because of a procedural error that warrants a tongue-lashing from the Court or an affirmance in which the Court makes plain that the counsel’s lack of diligence sunk the appeal before it left the dock, such as a failure to assign error to an alternative basis for the judgment. A “.5” will be added or deducted from any opinion that has a dissent.
The expected Icarus index would be “3,” so the higher the index climes, the better the appellants are doing, and conversely, the lower it falls, the better for the appellees. It will take some time for the number of opinions and published orders to show any clear trends. At the moment, there are only three decisions that fall within the criteria for the Icarus Index, and it stands at 2.33. As more cases are decided, I will separate the Index into categories of case type as well as an overall.