Is there a Correlation Between Being an Appellate Procedure Geek and a Data Geek? Most Likely. Her

I am proud to say that in addition to being a “procedural geek,” I am also a “data geek.”  I am fascinated by looking at statistics about anything – discovering hidden (and usually meaningless) patterns and trends.  So when you combine appellate procedure and statistics, well, I am just happier than a pig in new slop.

I have just finished compiling the raw data for the filings in the Court of Appeals for the first half of the year, and I am now manipulating the data to see what pops out.  I will likely continue to do this over the rest of the holiday weekend (Happy Fourth of July, BTW) and well into the rest of the month as time permits, but for now let me give you the broad picture.

First, a few caveats.  This data is collected from the public version of the Court of Appeals Case Management System available through the Court System Website.  As we all know (or are presumed to know), the ACMS is not warranted to be accurate, though I find that it is generally well-maintained.  On the other hand. I cannot speak with the same confidence about how well maintained your humble correspondent is, and indeed I have found a few “operator errors” as I review my data entry.

Another important caveat is that “things change” from time to time – for example, there was a case that was initially classified as “Criminal Contempt” back when I first commented on the January filing, but on closer examination it turned out to be a “Civil Contempt,” and I caught this change when I was updating the data.  The Court Clerk’s Office does its best to keep the record straight, but often they are given confused and sometimes conflicting information from the parties, the circuit court clerk, and the attorneys.  Similarly, a case may be filed pro se but then the party hires an attorney, or begins as a represented case but then the party fires his counsel. So if these numbers change a little between now and the next reckoning, don’t be surprised.

Finally, sometimes in classifying some aspect of a case, I had to make a judgment call.  For example, what is the status of case where the appellant files the designation of assignments of error (or even the opening brief) before the circuit court forwards the record to the Court of Appeals.  You see, that really shouldn’t happen because it’s the receipt of the record that triggers the timing of the designation.  In that particular case, I decided that such cases would be designated as “awaiting record” because the Court of Appeals certainly won’t advance the case until it has the trial court record in hand.

Let’s Start with the basics – what types of cases – Appeals and Original Jurisdiction – are being filed?

Monthly Filings By Case Type2022FilingsCRIMWCDRCIVADMINBONDCTMPT-CRCTMPT-CVCWGRIVHABEASINJINTERLMANDSVPWAINONEJAN14557724301201410300258FEB17098518281401110100264MAR175891218362100301302044Q1490244246094470282170241516APR15177615382200101120042MAY15589310472200000000020JUN1639076426201201100140Q24692561631127106013022201102Total9595004091221141303112392252518

CRIM = Criminal Appeal; WC = Virginia Workers’ Compensation Commission Appeal; DR = Domestic Relations Appeal; CIV = Civil Appeal; BOND = Appeal of Denial or Granting of Bond; CTMPT-CR = Criminal Contempt Appeal; CTMPT-CV = Civil Contempt Appeal; CW = Commonwealth’s Pre-Trial Appeal (by petition); GRIV = Appeal of Civil Service Grievance; Habeas = Petition for Writ of Habeas Corpus (OJ); INJ = Injunction; INTERL = Interlocutory Appeal (certified); MAND = Petition for a writ of Mandamus (OJ); SVP = Appeal of Sexually Violent Predator Commitment Proceeding; WAI = Petition for Writ of Actual Innocence Based on Non-biological Evidence; None = Case over which the Court does not have jurisdiction

As you can see, the Court has received 959 filings to which record numbers have been assigned (not all filings are giving record numbers, but those that are not are generally dealt with swiftly and quietly by unpublished orders), and of these, just over half (52%) are in Criminal Appeals.  Civil Appeals are the next largest category and are less than half that (23%).  Cases from the “old” appellate jurisdiction of the Court make up about 17%, while Original Jurisdiction and miscellaneous cases make up the remaining 8%.

While some predicted a flood of civil appeals of right, and a deluge of criminal appeals of right, neither prediction appears to have been prescient.  In fact, I would suggest that with an average of 37 civil appeals per month, the enthusiasm for appeals of right in that realm is decided lukewarm at best.

One factor I did find surprising was the fairly small number of appeals from denial or granting of bond. Given the new lenient standard, I expect to see a somewhat more robust series of appeals at least initially. Perhaps this suggest that the circuit courts are taking the new standard seriously and making judicious (and on the record) decisions.

Pro Se?  You Don’t Say!

Another surprising detail that emerged from the data was how many pro se appellants there were.  Let me concede that while I have dealt with quite a few pro se parties in my career, I have no real concept of how common pro se appeals where.  In the first half of 2022, the Court of Appeals received 201 appeals from pro se appellants. That’s just shy of 21%, more than one in five appeals.  By contrast, there were only 23 pro se appellees, and just 7 of those were in appeals where the appellant had counsel.

I should note that I have excluded from the calculation of pro se parties those cases where attorneys are acting as their own counsel.  I classify these, of which there were 4 including one in which both the appellant and appellee were pro se attorneys, in an entirely different category – Fools.  While the quotation, or variations thereof, that “any many who acts as his own lawyer has a fool for a client” is attributed to many, including Abraham Lincoln, Benjamin Franklin, and Oliver Wendall Holmes, its earliest known appearance in print is in the 1682 book “Humane Prudence, or, The Art by which a Man May Raise Himself and Fortune to Grandeur” by William de Britaine:

Before you act, it’s Prudence soberly to consider; for after Action you cannot recede without dishonour: Take the Advice of some Prudent Friend; for he who will be his own Counsellour, shall be sure to have a Fool for his Client.

It is debated whether de Britaine was speaking specifically of legal counsel, and the sentiment certainly could be applied to many professions and situations.

Status of Cases

Another somewhat surprising revelation from the data is both how quickly and, conversely how slowly, the Court is resolving cases. To explain that apparent contradiction, let me state that I am not faulting the Court for not resolving more cases on their merits. The appellate process is, at the best of times, plodding given that it depends on the actions of many disparate parts, so it is not unusual for an appeal that is filed in January is still not ready for a decision in June, let alone actually considered by the Court with an opinion forthcoming.

What I meant by cases being slowly decided refers to the disposition of cases that are procedurally barred from reaching a merit review.  In looking at ACMS, I noted that there were more than a few cases that appear to be well overdue for dismissal, but appear idle on the docket.  There are, of course, perfectly reasonable explanations for why they might be still active; the most obvious being that they are idle because the appellant has sought and ben given one or more extensions of time to file.  Still, a case that has been waiting for a designation of assignments of error and an opening brief for more than three months seems likely never to advance.

On the other hand, it was quite impressed to see how many cases the Court had cleared from the 2022 docket. The court has resolved, in some fashion of another, 168 cases, 17.5% of the cases filed this year. Now you might not have realized that the Court had disposed of so many cases.  There is good cause for not knowing, however, as only 1 of these cases was disposed on by a published decision – and that was the published order in NAACP (Hanover Chapter), et al. v. Commonwealth of Virginia, et al., decided back in April and dismissing the case seeking an injunction.

Six other cases have been addressed in unpublished opinions, while the remaining 161 were dealt with by unpublished order.  I will eventually get around to break these dispositions out by case type and result, but for now here is the “big picture”: All of the unpublished opinions where affirmances; five cases that proceed by petition had the petitions denied, 97 cases were dismissed by unpublished order, while just two, both in injunction cases, were reversed and remanded.  Fifteen petitions for writs of actual innocence were summarily dismissed, a disposition used only for that type of original jurisdiction case. Eleven cases were transferred to the Supreme Court of Virginia.  Thirty-one appeals were withdrawn.

Ready, Steady, Go!

The final tidbit before I sign off is to report that 164 of the appeals filed in 2022 are fully briefed and ready for the Court to receive (or dispense with) argument – indeed a few have already been heard by a panel.  Some of these might yet be subject to procedural dismissal because of issues not detected until the record has been given a thorough review – it’s actually surprising how frequently this happens given the multiple checks that a case goes through before reaching a panel for decisions.