Odds of Winning on Appeal

Ruggero Aldisert, author of Winning on Appeal and one of the finest federal appellate judge, offers these sobering statistics:

United States Court of Appeals—National Average of Reversals
[for 2002]

ALL APPEALS......................... 9.5%
Criminal...............................5.6
U.S. Prisoner Petitions..............9.5
Other U.S. Civil Cases..............11.0
Private Prisoner Petitions..........9.9
Other Private Civil Cases..........12.2

...

From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court:

• All appeals: 1 in 10
• Criminal cases: 1 in 18
• Private civil actions: 1 in 9

Since these numbers are averages, I suspect that cases reviewed de novo have a better chance of success than those subject to an abuse of discretion standard of review.  Even so, a case reviewed under even the "generous" de novo standard of review has a poor chance of winning. Perhaps lawyers, as fiduciaries to the clients, should be required to share these statistics with their clients before accepting a large retain for any appellate work.

Of course, every lawyer will say every case is unique.  Fair enough.  But clients deserve to know that, in general, it's not merely likely that they will lose on appeal; rather, it's almost guaranteed.

For more statistics on reveral rates and other interesting federal-courts-related data, check out the Federal Judicial Caseload Statistics site.

Comments

[Donald Caster]

Mike:

Good post. The numbers get even scarier whn you see them broken down into winning/losing party (e.g., appeal of verdict/dismissal in favor of civil defendant vs. in favor of plaintiff) and by nature of suit (civil rights, employment, diversity, etc.). If you are a plaintiff appealing an adverse judgment, your chances of succeeding are much smaller than 1 in 9.

[Fred]

"it's not merely likely that they will lose on appeal; rather, it's almost guaranteed"

In a criminal case it's also almost guaranteed that the defendant will be convicted.

I'm not sure of my point or even if I have one...