The Tough Road for Appellants in the Eleventh Circuit Keeps Getting Tougher
Posted on October 3, 2012
A few months ago I wrote a post, found here, about why appellants need to be bold in writing an appeal brief. Simply put, most appellants lose, and that trend is growing, at least in the Eleventh Circuit Court of Appeals. According to data I recently found from the Administrative Office of the United States Courts, in the Eleventh Circuit in 2001, only 10.1% of all appellate matters ended in reversals. While that number included both civil and criminal appeals, and the percentage for criminal appeals is likely very low and thus weighs down that for civil appeals, what’s important here is not just the low percentage but also the trend. In 2006, the percentage of reversals decreased to 9.1% and further decreased to 8.5% in 2011. That represents a 15% decrease in the number of reversals over the ten year period.
The appellate process simply favors the winner below and the amount of time that an appellate court spends reviewing the briefs in any appeal is amazingly small. This was pointed out in my earlier blog post about a presentation given by Judge Joel Dubina, the Chief Judge of the Eleventh Circuit Court of Appeals, found here. Judge Dubina noted that the number of appeals handled by that Court had doubled between 1990 and 2010 and that there had been a substantial decrease in the percentage of cases with oral argument, from 52% down to only 18%. As described in my post, Judge Dubina noted that most cases in the Eleventh Circuit are decided when the judge reviewing the matter to decide if oral argument is necessary writes a preliminary opinion which is circulated to two other judges. If only one of the two agrees with the opinion, the case is decided by the 2 – 1 vote. Thus, if the screening judge is not impressed enough with the appellant’s brief to determine oral argument is necessary, you can bet the lower court is almost certainly going to be affirmed.
So, to win on appeal, an appellant has to catch that screening judge’s attention very quickly. So, as I’ve posted before, lead with your best facts, lead with your best argument, and, for your client’s sake, make it interesting. Take advice from Judge Ruggero Aldisert of the Third Circuit Court of Appeals: “You better sell the sizzle as soon as possible; the steak can wait.”