Data analytics and appellate decision making - JD Supra

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LITIGATION ANALYTICS AND APPELLATE LAW KIRK C. JENKINS SEDGWICK LLP WHAT THE NUMBERS TELL US ABOUT THE CALIFORNIA AND ILLINOIS SUPREME COURTS

Transcript of Data analytics and appellate decision making - JD Supra

Page 1: Data analytics and appellate decision making - JD Supra

LITIGATION ANALYTICS AND APPELLATE LAW

KIRK C. JENKINSSEDGWICK LLP

WHAT THE NUMBERS TELL US

ABOUT THE CALIFORNIA AND

ILLINOIS SUPREME COURTS

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A BRIEF HISTORY OF DATA ANALYTIC RESEARCH INTO APPELLATE DECISION MAKING

Charles Grove Haines, “General Observations on the Effects of Personal, Political, and Economic Influences on the Decisions of Judges,” 17 Ill. L. Rev. 96 (1922)

C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947

The Supreme Court Database (http://scdb.wustl.edu/) –Originated by Professor Harold Spaeth. 247 variables for every SCOTUS decision since 1791

Lee Epstein, William M. Landes & Richard A. Posner, The Behavior of Federal Judges: A Theoretical & Empirical Study of Rational Choice (2013)

SCOTUS (case selection, opinion assignment, constitutional law, interest groups’ effect, appointments); Courts of Appeals (voting behavior, inter-circuit comparisons); State Supreme Courts

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THE BOTTOM LINE

• Approaching litigation like business-people: by quantifying risk

• Replacing decision making by anecdote and experience with data-driven decision-making

• “The better that judges are understood, the more effective lawyers will be both in litigating cases and, as important, in predicting the outcome of cases, thus enabling litigation to be avoided or cases settled at an early stage.”

• Lee Epstein, William M. Landes & Judge Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical

Study of Rational Choice, (Cambridge: Harvard Univ. Press, 2013).

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PANEL EFFECTS –THE EMPIRICAL LITERATURE

• “Ideological Voting on Federal Courts of Appeals: A

Preliminary Investigation,” by Cass R. Sunstein, David

Schkade, Lis Michelle Ellman (2003)

• 4,488 published decisions and 13,464 separate judge

votes

• Democratic judge – 60% liberal; Republican judge –

46% liberal

• DDD panel – 66% liberal; RDD panel – R is 54%

• DRR panel – D is 53% liberal; RDD – R is 34% liberal

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IDEOLOGICAL AMPLIFICATION & DAMPENING

• Affirmative action – RRR upholds program 37%; DDD upholds 82%

• Sexual Harassment – DDD for plaintiffs 76%; RRR for plaintiffs 32%

• Corporate veil-piercing – DDD for plaintiffs – 67%; RRR for plaintiffs –

23%; RDD – R for plaintiffs 37%; DRR – D for plaintiffs 29%

• Environmental regulation – voting against the industry challenger

• RRR – 27%; RRD – 50%; RDD – 63%

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IDEOLOGICAL AMPLIFICATION & DAMPENING II

• Campaign finance – percentage voting to uphold regulation

RDD RRD RRR DRR DDR DDD

35% 30% 23% 40% 38% 73%

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PANEL EFFECTS, PART III

• Robert Steinbuch, “An Empirical Analysis of Conservative, Liberal

and other ‘Biases’ in the United States Courts of Appeals for the

Eighth and Ninth Circuits”

• Variables: political party & gender of trial judge; number of

appeals taken in past year from judge’s decisions; types of

cases appealed; interaction of factors

• Eighth Circuit: statistically significant correlation for 2008

data between district judge’s political affiliation and rate of

reversal

• Eight Circuit 2011 data – reverses Democrats 15% more

than Republicans

• Ninth Circuit data – 2610 cases, no party effect

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PANEL EFFECTS, PART IV

• Adam B. Cox & Thomas J. Miles, “Judging the Voting Rights

Act,” Columbia Law Review 108(1): 1-54 (2008)

• Every published Federal case under Section 2 of the

Voting Rights Act since 1982

• Votes to find liability – Democratic appointees 36.2%;

Republican appointees 21.2%

• Cases decided 1982-1994 – Democratic appointees

+17%; cases decided 1995-2008 – Democratic

appointees +9%

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PANEL EFFECTS IN VOTING RIGHTS ACT CASES

Democratic Judge voting to find liability –3 Democrats 40.7%; 2 Democrats 32.8%; 1

Democrat 27.8%

Republican Judge voting to find liability –3 Republicans 11.1%; 2 Republicans 21.3%; 1

Republican 23.9%

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THE PHENOMENON OF DISSENT AVERSION

• Richard Posner, Lee Epstein & William Landes, “The Economics of Dissent

Aversion: A Theoretical and Empirical Analysis”

• Dissent rate is strongly correlated with ideologically diverse panels

• Is dissent more likely in a reversal?

• Raising the importance of the majority opinion?

• What are the costs of the dissent to the dissenter?

• Does a dissent impose costs on the rest of the Court?

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DISSENT AVERSION II

• Jeffrey Segal, Lee Epstein, Chad Westerland, Charles

Cameron & Scott Comparato, “Strategic Defiance and

Compliance in the U.S. Courts of Appeals,” American

Journal of Political Science 54: 891-905 (2010)

• Random sample of 500 Supreme Court cases, yielding 10,

198 subsequent treatments in the Circuits

• Does it matter if a lower Court believes that the current

Supreme Court has shifted from the enacting Supreme

Court?

• Does it matter what earlier decisions of the lower Court

did with a Supreme Court precedent?

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DO MEN AND WOMEN APPROACH APPELLATE JUDGING DIFFERENTLY?

• Robert S. Erickson, “Treating Appellate Court Assignments as

a Natural Experiment: Gender Induced Panel Effects in Sex

Discrimination Cases”

• 435 Federal gender discrimination cases, 1995-2002

• Female judges about 15% more likely to vote for

liability in gender discrimination cases than male

counterparts – significant at .01 level. Male judges

nearly as likely to find liability with at least one woman

on the panel

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GENDER AND APPELLATE JUDGING II

• Christina L. Boyd, Lee Epstein & Andrew D. Martin, “Untangling the Causal

Effects of Sex on Judging,” American Journal of Political Science, 54: 389-411.

• Thousands of Circuit decisions in sex discrimination cases, 1995-2002

• Non-parametric matching to analyze similar cases

• Likelihood of male judge voting for plaintiff ten points less than female judge,

holding ideology constant

• Men significantly more likely to vote for plaintiff when at least one woman

on the panel

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GENDER AND APPELLATE JUDGING III

• Renee Nicole Souris, “The Impact of Panel Composition

on Sex Discrimination Case Outcomes at the U.S.

Circuit Courts”

• Examined 415 Federal cases – Sunstein database, as

modified by Prof. Epstein

• Logistic regressions for a wide range of gender-based

causes of action

• With at least one female judge and all female plaintiffs,

odds of plaintiff prevailed increases 285%

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GENDER AND APPELLATE JUDGING IV

• Jennifer L. Peresie, “Female Judges Matter: Gender and Collegial

Decisionmaking in the Federal Appellate Courts,” 114 Yale L. J. 1759 (2005)

• 556 Federal appellate decisions, 1999-2001 – Title VII gender

discrimination & harassment

• Controlling for other factors, gender increased probability of plaintiff

vote from 22% to 41% in harassment, 17% to 28% in gender

discrimination

• For harassment, gender a more significant predictor than

Democratic appointment, and equally significant for discrimination

• Sitting with a female judge (controlling for ideology) increased

likelihood of male judge voting for plaintiff from 16% to 35%

harassment, 11% to 30% discrimination. Far more significant

predictor than appointment by a Democratic president

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EMPATHY AND PANEL EFFECTS?

• Adam N. Glynn & Maya Sen, “Identifying Judicial Empathy:

Does Having Daughters Cause Judges to Rule for

Women’s Issues,” American Journal of Political Science, Vol.

59, No. 1, January 2015

• Matching data on judges’ families to nearly 1,000

gender-related cases

• Controlling for ideology, having daughters causes a

male judge to vote for plaintiff 9% more often

• Largely driven by Republican judges – 7% increase in

plaintiff votes, statistically significant

• Effect for Democratic judges is 4% and not

statistically significant

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MYTHS ABOUT CASE SELECTION

• “The Supreme Court doesn’t review unpublished decisions.”

• Illinois: For most of the years 2000-2016, only 75-85% of the Court’s civil docket has consisted

of decisions which were published below.

• California – Unpublished decisions frequently account for 25-40% of the Court’s civil docket,

and in some years have been nearly half of the cases which resulted in non-unanimous

decisions at the Supreme Court

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ILLINOIS SUPREME COURT: PERCENTAGE OF DOCKET PUBLISHED BELOW

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100

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Civil Criminal

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CALIFORNIA SUPREME COURT: PERCENTAGE OF DOCKET PUBLISHED BELOW

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2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Civil Criminal

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SO DO THE INTERMEDIATE APPELLATE COURTS UNDER-PUBLISH?

• Snow & Ice, Inc. v. MPR Management, Inc., 2017 Il App (1st) 151706-U (Hyman, P.J., dissenting in part)

• The failure to publish affects our supreme court as well. The Illinois Supreme Court

• regularly accepts petitions for leave to appeal from Rule 23 orders, which indicates that the court

• thinks some Rule 23 decisions involve more far-reaching matters than a panel thought. In 2014,

• over 40% of the supreme court’s civil docket stemmed from Rule 23 orders. See Kirk Jenkins,

• How Often Does the Illinois Supreme Court Review Unpublished Decisions (Part II), found at

• http://www.illinoissupremecourtreview.com/2015/03/how-often-does-the-illinois-supreme-court

• review-unpublished-decisions-part-ii/. In other words, our application of Rule 23 is unreliable.

• One would think that if a case is important enough to be taken by the supreme court, something

• about it was compelling enough to have been made an opinion

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MYTHS ABOUT CASE SELECTION II

• “The Supreme Court doesn’t review unanimous decisions.”

• California: In a typical year, 10-20% of unanimous decisions and 20-33% of non-unanimous decisions

in civil cases had a dissenter below

• Illinois: Cases with a dissent below tend to comprise 15-30% of the Court’s civil docket

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ILLINOIS SUPREME COURT – SHARE OF THE CIVIL DOCKET WITH DISSENTS BELOW, 2000-2016

0

5

10

15

20

25

30

35

40

45

50

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

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CALIFORNIA SUPREME COURT – SHARE OF THE CIVIL DOCKET WITH DISSENTS BELOW, 2000-2016

0

5

10

15

20

25

30

35

40

45

50

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Non-Unanimous Unanimous

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MYTHS ABOUT CASE SELECTION III

• “The time of year your petition is filed doesn’t matter.”

• United States Supreme Court – the “long conference”

• Illinois Supreme Court – Studied PLA order lists 2007-2016 – Grant rates are several

percentage points higher in the first several months of the year – the “long conference” is the

most difficult time of the year to bring a PLA

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ILLINOIS SUPREME COURT: PERCENTAGE OF CIVIL PLAS GRANTED BY MONTH

0

2

4

6

8

10

12

14

16

18

January February March April May June July August September October November December

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ILLINOIS SUPREME COURT: PERCENTAGE OF CRIMINAL PLAS GRANTED BY MONTH

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5

10

15

20

25

January February March April May June July August September October November December

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ILLINOIS SUPREME COURT: PERCENTAGE OF CIVIL PLAS RESOLVED BY SUPERVISORY ORDER

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5

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15

20

25

30

January February March April May June July August September October November December

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ILLINOIS SUPREME COURT: PERCENTAGE OF CRIMINAL PLAS RESOLVED BY SUPERVISORY ORDER

0

2

4

6

8

10

12

January February March April May June July August September October November December

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ILLINOIS – APPELLATE COURT REVERSAL RATES

• Why you shouldn’t pay that much attention to year-by-year reversal rates

• Aggregate statistics are frequently misleading

• A Hypothetical:

• Lawyer A – Has won 6 of 10 jury trials in the past two years

• Lawyer B – Has won 6 of 10 jury trials in the past two years

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ILLINOIS SUPREME COURT CIVIL REVERSAL RATES –2002-2008 (THREE YEAR FLOATING AVERAGES)

0

10

20

30

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60

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90

100

1/1 1/2 1/3 1/4 1/5 1/6 2 3 4 5 Direct

2002 2003 2004 2005 2006 2007 2008

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ILLINOIS SUPREME COURT CIVIL REVERSAL RATES –2009-2016 (THREE YEAR FLOATING AVERAGES)

0

10

20

30

40

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60

70

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100

1/1 1/2 1/3 1/4 1/5 1/6 2 3 4 5 Direct

2009 2010 2011 2012 2013 2014 2015 2016

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CALIFORNIA SUPREME COURT CIVIL REVERSAL RATES –2002-2008 (THREE YEAR FLOATING AVERAGES)

0

10

20

30

40

50

60

70

80

90

100

1/1 1/2 1/3 1/4 1/5 2/1 2/2 2/3 2/4 2/5 2/6 2/7 2/8 3 4/1 4/2 4/3 5 6

2002 2003 2004 2005 2006 2007 2008

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CALIFORNIA SUPREME COURT CIVIL REVERSAL RATES –2009-2016 (THREE YEAR FLOATING AVERAGES)

0

10

20

30

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100

1/1 1/2 1/3 1/4 1/5 2/1 2/2 2/3 2/4 2/5 2/6 2/7 2/8 3 4/1 4/2 4/3 5 6

2009 2010 2011 2012 2013 2014 2015 2016

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TRUE REVERSAL RATES – ILLINOIS FIRST DISTRICT, CIVIL (2007-2016)

0

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2

3

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6

7

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Reversal Supervisories

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TRUE REVERSAL RATES – ILLINOIS FIFTH DISTRICT, CIVIL (2007-2016)

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4

6

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12

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2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Reversal Supervisories

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DOES LAG TIME PREDICT RESULT? ILLINOIS SUPREME COURT – CIVIL GRANT TO ARGUMENT, 2008-2016

170

175

180

185

190

195

200

205

Affirmances Reversals

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ILLINOIS SUPREME COURT – ARGUMENT TO DECISION, CIVIL CASES, 2008-2016

115

120

125

130

135

140

145

150

Affirmance Reversal

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ILLINOIS SUPREME COURT – LAG TIME IN CRIMINAL CASES FROM GRANT TO ARGUMENT, 2008-2016

245

250

255

260

265

270

275

280

285

290

295

Affirmances Reversals

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ILLINOIS SUPREME COURT – LAG TIME IN CRIMINAL CASES FROM ARGUMENT TO DECISION, 2008-2016

110

115

120

125

130

135

140

145

Affirmance Reversal

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CALIFORNIA SUPREME COURT – LAG TIME FROM GRANT TO ARGUMENT, CIVIL CASES, 2000-2007

545

550

555

560

565

570

575

580

585

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM ARGUMENT TO DECISION, CIVIL CASES, 2000-2007

71.2

71.4

71.6

71.8

72

72.2

72.4

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM GRANT TO ARGUMENT, CRIMINAL CASES, 2008-2016

0

200

400

600

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1000

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1400

1600

1800

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM ARGUMENT TO DECISION, CRIMINAL CASES, 2008-2016

68

68.5

69

69.5

70

70.5

71

71.5

72

72.5

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM GRANT TO DECISION, CIVIL CASES, 2008-2016

570

580

590

600

610

620

630

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM ARGUMENT TO DECISION, CIVIL CASES, 2008-2016

69.2

69.3

69.4

69.5

69.6

69.7

69.8

69.9

70

70.1

70.2

70.3

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM GRANT TO ARGUMENT, CRIMINAL CASES, 2008-2016

0

500

1000

1500

2000

2500

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM ARGUMENT TO DECISION, CRIMINAL CASES, 2008-2016

72

72.5

73

73.5

74

74.5

Affirmances Reversals

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CALIFORNIA SUPREME COURT – LAG TIME FROM APPOINTMENT TO ARGUMENT IN DEATH PENALTY APPEALS, 2000-2007

2700

2750

2800

2850

2900

2950

3000

3050

3100

3150

3200

Affirmances Reversals

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CALIFORNIA SUPREME COURT –LAG TIME FROM APPOINTMENT TO ARGUMENT IN DEATH PENALTY CASES, 2008-2016

0

500

1000

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3500

4000

4500

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2008 2009 2010 2011 2012 2013 2014 2015 2016

Affirmances Reversals

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VOTING PATTERNS – THE CENTER IN CIVIL CASES (GARMAN, THOMAS & KARMEIER)

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2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Garman-Thomas Garman-Karmeier Thomas-Karmeier

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THE DEMOCRATIC VOTES (CIVIL CASES) –FREEMAN, KILBRIDE, BURKE & THEIS

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2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Freeman-Kilbride Burke-Freeman Burke-Theis

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THE REPUBLICAN JUSTICES’ AGREEMENT RATES IN CRIMINAL CASES

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2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Garman-Thomas Garman-Karmeier Thomas-Karmeier

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THE DEMOCRATIC JUSTICES’ AGREEMENT RATES IN CRIMINAL CASES

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10

20

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40

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100

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Freeman-Kilbride Burke-Freeman Burke-Theis

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WHAT DOES ORAL ARGUMENT TELL US ABOUT CASE OUTCOMES?

• Sarah Levien Shullman, “The Illusion of Devil’s Advocacy: How the Justices of the Supreme Court

Foreshadow Their Decisions During Oral Argument,” The Journal of Appellate Practice and Process, Vol. 6,

No. 2 (Fall 2004), pp. 271-293

• Ten oral arguments at SCOTUS – 1-5 score (helpful/hostile) – Party asked the most questions generally lost

• John G. Roberts, Jr., “Oral Advocacy and Re-Emergence of a Supreme Court Bar,” 30 Journal of Supreme

Court History 68 (2005)

• Number of questions in first & last cases of each session 1980 term, and each session, 2003 term

• Side asked more questions far more likely to lose

• So apparently “the secret to successful advocacy is simply to get the Court to ask your opponent

more questions.”

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ORAL ARGUMENT SCHOLARSHIP II

• Timothy R. Johnson, Ryan C. Black, Jerry Goldman, Sarah A. Treul, “Inquiring Minds

Want to Know: Do Justices Tip Their Hands With Questions in the U.S. Supreme

Court?” 29 Wash. U. L. & Policy 241 (2009)

• Transcripts for 2,000 cases between 1979 and 1995 terms – nearly 340,000

questions

• More questions to petitioner means far less likely to reverse – equal questions

means 64%; 50+ more questions means 39%; 94+ more questions means 18%

• Both number and verbosity of questions increasing

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ORAL ARGUMENTS III

• Richard Posner, Lee Epstein and William Landes, “Inferring the Winning Party in the

Supreme Court From the Pattern of Questioning at Oral Argument”

• Reviewed all SCOTUS transcripts from 1979 to 2007

• Counting words, not just questions

• Petitioners won 62% of all cases; where respondent’s questions involved more words, 72% for

petitioners; where petitioner’s questions involved more words, petitioner wins 50%

• Where respondent asked average number of questions (56), if petitioner gets 125 or more,

likelihood of winning falls to 33%

• Roberts, Stevens, Scalia, Souter and Ginsburg all more heavily question side they’re voting against –

Alito & Breyer more equivocal

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ORAL ARGUMENTS – TOTAL QUESTIONS, ILLINOIS SUPREME COURT, CIVIL & CRIMINAL 2008-2016

8000

8200

8400

8600

8800

9000

9200

9400

9600

Civil Criminal

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ILLINOIS – WHO IS THE MOST ACTIVE QUESTIONER ON THE COURT?

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2500

3000

Burke Garman Freeman Karmeier Thomas Kilbride Fitzgerald Theis

Civil Criminal

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THE PARADOX OF THE “HOT BENCH” – ODDS OF WINNING, CIVIL CASES, 2008-2016

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Fewer 10+ Fewer 1-9 Equal

Appellants Appellees

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ODDS OF WINNING, CRIMINAL CASES, 2008-2016

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Fewer 10+ Fewer 1-9 Equal

Appellants Appellees

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ARGUMENTS IN ILLINOIS - CONCLUSIONS

• It’s likely that the first questioner is writing an opinion (30-50% chance, least for Justices

Thomas, Kilbride & Freeman)

• Justice Burke tends to ask more questions of appellants in civil cases, but the effect is lessened

in a reversal.

• Justice Garman tends to question the losing party more heavily when in the majority in a civil

case, but tends to question the party she’s voting against more heavily when in the minority

• Justice Freeman tends to more heavily question the party he’s voting against, whether in the

majority or minority in a civil case – unlike Justices Burke & Garman, writing the majority

opinion does not as a rule prompt heavier questioning

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CONCLUSIONS II

• Justice Kilbride’s question patterns do not typically vary substantially according to his

vote and whether or not he’s writing

• Both Justice Thomas and Chief Justice Karmeier tend to question the party they are

voting against more heavily, and will be more active when they is writing an opinion, both

in civil and criminal cases

• Justice Theis tends to more heavily question the losing party when she is in a civil

majority, but more heavily questions the party she is voting against when in the minority.

Generally questions the appellant more heavily in criminal cases (except when in the

minority of an affirmance)

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TRIAL COURT ANALYTICS

• Lex Machina

• Bloomberg Legal Analytics

• Ravel Law

• Premonition

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RESEARCHING THE TRIAL JUDGE

• Ravel Law – Every federal judge and magistrate; every state appellate judge

• Premonition Analytics – state court library bigger than Lexis, Westlaw and Bloomberg

combined

• How often is your judge cited by other courts?

• Recent results before your trial judge

• Premonition’s Vigil court alert system

• Lex Machina – antitrust, employment, copyright, commercial litigation, patent, securities

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RESEARCHING YOUR OPPONENT

• Bloomberg Analytics – more than 7,000 law firms; focus by clients, date, jurisdiction

• Lex Machina - Law Firms Comparator

• Ravel Law – Firm Analytics – how often does your opponent handle cases in this subject

area, or appear before the trial judge

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MOTION PRACTICE

• Ravel Law – how likely is your judge to grant a motion (90+ different types of motions)

• Visualizations for how different passages of a case cited, and by which judges

• What does your judge most often cite for particular principles?

• Lex Machina – the motion kickstarter – the “motion chain”

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AT TRIAL AND AFTER

• Survey results of recent trials by your trial judge

• Judge’s handling of jury instructions

• How likely to disturb a jury verdict – Lex Machina, Ravel Law and Bloomberg

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WHAT’S NEXT FOR LITIGATION ANALYTICS & THE LAW?

• “Datafication” of the law will accelerate

• More dockets partially or entirely online; data-scraping programs will improve

• More analytics vendors

• More awareness and facility among members of the bar

• New frontiers

• Logistic regression modeling

• Sentiment analysis

• Game theory

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QUESTIONS?

• Kirk C. Jenkins

• Sedgwick LLP

• One N. Wacker Drive, #4200

• Chicago, Illinois 60606

• 312-641-9050

• Illinois Supreme Court Review –

http://www.illinoissupremecourtreview.com

• California Supreme Court Review –

http://www.californiasupremecourtreview.com

• Twitter - @KirkCJenkins, @ISCReview, @CSCReview

• LinkedIn - https://www.linkedin.com/in/kirkcjenkins/