Plus, Blog Observation on Anecdotal Application to Appeals Involving Fee Awards.
We give a hat tip both to Benjamin Shatz of En Banc and Greg May of The California Blog of Appeal for highlighting the Judicial Council of California’s recent issuance of the “2008 Court Statistic Report” for California courts during fiscal year 2006-2007 (as well as prior intervals, for you statisticians out there). We now hone in on the results for civil appeals and then provide our thumbnail analysis of what these statistics tell us about results on civil appeals involving fee awards.
First, we give you the cold, hard statistical results for California Courts of Appeal, because that is where most of the law emanates from:
· The category: disposition of civil appeals—Courts of Appeal.
The results: 66% -- full affirmance;
10% -- affirmance with modifications;
20% -- reversal; and
3% -- appeal dismissed.
(Can’t tell you where the missing 1% went!)
· The category: publication rate for civil appeals—Courts of Appeal.
The results: 18% on a statewide basis.
(Lowest civil publication rate – Fourth District, Division Two – 4%;
Highest civil publication rate – Third District – 29%.)
Second, we give you a blog anecdotal observation as far as what these statistics might mean in relation to attorney’s fees award. Based upon our review of 135 published and unpublished state opinions for the last four months (May 13-September 5, 2008 as discussed on our posts), the statistics break down like this for the four-month period: the full affirmance rate on fee awards is about 63%, while the affirmance with modifications rate is only 3%. Reversals are 29% of the total, and dismissals accounted for 5%. The affirmance rate seems consistent with the abuse of discretion standard governing many of the appeals. The reversal rate—about a third more than the 20% reversal rate for all civil appeals—may be accounted for by two trends we see in many fee/costs opinions: (1) the trial judge used the wrong legal standard in determining fee entitlement or in exercising his/her discretion, or (2) the appellate court simply believed that there was an abuse of discretion, opining that no trial court could come to a different decision that the conclusion reached by the reviewing panel.