Your Chances on Appeal and How to Improve Them

The author uses statistics to answer common questions about appeals, and he makes the case for involving an appeals lawyer, even at the trial level.

The D.C. Circuit hears oral argument in more than 50 percent of its cases. Most of the other circuits hear oral argument around 20 percent of the time, with a few circuits approaching 30 percent. However, the chance of oral argument in a civil case are much higher than these numbers suggest.

Most appeals are decided within three months of submission. The D.C. Circuit is the fastest to render decisions. The Fourth and Eighth Circuits were almost as fast as D.C. The Second Circuit was the slowest.

The chances of winning depends on the details of each case, but the Fifth Circuit affirmed the lower court decision in nearly 58 percent of all cases brought on appeal. It also affirmed “in part” the decisions in another 6.1 percent of all cases. Nearly 28 percent of cases were dismissed without a ruling, usually due to a procedural flaw.

That means looking at it one way, in 2014 appellants in the Fifth Circuit failed nearly 92 percent of the time, but the author illustrates how this actually translates to a 14.5 percent success rate.

Two recent studies support the notion that the presence of experienced appellate counsel will improve your chances of winning on appeal. Data showed that appellees in particular “appeared to enjoy some advantage in preserving trial court victories” when they hired an appellate attorney.