Back in July, I announced that I would be posting stats on the filings in the Court of Appeals including the "Icarus Index" -- an attempt to come up with a comparable way of measuring the success of appellants similar to Steve Emmert's David-and-Goliath Index for the Supreme Court of Virginia. Although the Court of Appeals has begun issuing opinion from the 2022 docket, the data for these is still fairly sparse. However, as I have completed updating the status of all the appeals filed in January 2022, I think there is enough data to make for interesting observations about how things are going with appeals of right so far.
I posted stats for the first month of filing back in June and, as you can imagine, those numbers did tell us much about how the Court was dealing with the caseload. I think we have a somewhat clearer view now. Let's start by updating the raw data. As reported in my original post, there were 145 filings in January of all types that received a docket number. Not everything filed in the Court of Appeals gets a docket number, or it might be more accurate to say that not every docket number gets a filing. There were 5 docket numbers that are not associated with any filings, so the last docket number assigned in January was 150.
When I made the post in June, the Court had reached a final disposition on 48 of those cases. As of today, the Court has disposed of 90. The Court has heard argument in 28 more cases, and 25 are ready, but not yet set for argument. The remaining 2 cases appear to be in "limbo" as they are not yet fully briefed. There are several reasons why a case might be in "limbo," with the most likely reasons being the death or disability of a counsel, the bankruptcy filing of a party, or a procedural delay.
Of the decided cases, 5 were by published opinion and 29 were by unpublished opinion. There were 56 unpublished orders, and no published orders. Only 8 of the opinions were issued summarily (that is with the Court finding that argument was not necessary because the appeal was wholly without merit). Argument was waived by the parties in only 6 cases.
Four of the published opinions were in civil appeals, though one of these is technically a "hybrid" case with administrative and quasi-criminal overtones as it involved a request to be removed from the sex offender registry. The other published opinion was from a criminal conviction.
In unpublished opinions criminal appeals prevailed over civil, 15 to 2, with three more from Commonwealth's appeals, and five from domestic relations (yes, technically civil, but also part of the Court's original docket and still treated separately in the Court's database). There was one unpublished opinion in a sexually violent predator commitment proceeding and two from the Virginia Workers' Compensation Commission.
Unanimity was the norm, with only on separate opinion, a dissent, in one of the unpublished decision. Of the 34 cases decided by opinion, all but 4 were affirmed, with two more affirmed in part, reversed in part and remand, another reversed and remanded, and only one case where the judgment was reversed and final judgment entered for the appellant.
The time for noting an appeal to the Supreme Court has not yet run for all of the cases that have been disposed of, but 17 appeal notices have been filed, including some in cases that were procedurally dismissed by order, and 64 have become final with no appeal noted.
The Icarus index for this limited sample is probably not particularly instructive give that the many of the decided cases were decided by unpublished order -- meaning that they were probably procedurally defaulted. A quick review of what the Icarus Index is -- referring to the Greek Myth of Icarus, son of Daedalus, it measure how well the appellant does in attempting to soar to the Sun. On a scale of 1 to 5, a 3 is the expected norm of a decision affirming on the merits -- the equivalent of Icarus getting burnt. A 2, by contrast, is for a decision that results from some failure on the part of an appellant to preserve an issue or bringing a meritless appeal. A 1 is reserved for the worst of the worst -- dismissals with penalties for example. On the upside, a 4 is for an appellant who "lives to fight another day" by getting a remand, and a 5 is for the ultimate victory of a reversed and final judgment. Obviously, these metrics don't always fit nicely with the nature or result of a particular case, so I've used license in grading up or down. For example, I treated an "affirmed" Anders appeal as a "4" because I wanted to reflect that the attorney actually "won" on the request to be relieved. I also awarded a half-point in the case where there was a dissent.
There are two other caveats about the Icarus index. First, it does not include cases that were withdrawn or transferred to the Supreme Court. The Court of Appeals doesn't really "rule" on these cases, no there is no way to determine who "won." Second, the Index applies only to the result in the Court of Appeals; if a case is appealed to the Supreme Court, the index score for the case does not change (unless the case is remanded and a different result is obtained). The index is about how the Court of Appeals deals with its cases, not the subjective merit of the cases themselves.
Once there is more data to work with, I will provide analysis by the different areas of the law, but for now lets look at the basic index results. There were 71 cases that received an Icarus score with the average score being 2.54 for all cases. Looking only at 35 cases decided by opinion, the average score is 2.94. For the cases decided by order, it's 2.13. For published opinions it's 3.6 -- possibly not surprising that opinion worth publishing are probably more likely to have positive results for the appellant than unpublished decisions, with by opinion or order.
I would be surprised if we ever see an Icarus number much above 3.6 in any category -- 3 after all is the "as expected" and it is unfortunate that it's more likely that an appeal will come out worse than expected than better. So the fact that for opinions, the number was close to the expected result on average means that among these cases there were not many that got a "worse than" result. With more data, we should be able to make some judgments about where the Court is "leaning" in certain cases.