The Illinois Supreme Court Review recently marked its sixth anniversary. In April, the California Supreme Court Review turns five.
So I thought it was time for a first: cross-posted reprints from the earliest days of the blogs. My early attempts to provide context for the work and to answer the question I often heard in those days: "Interesting, but what difference does it make?"
So for the next 2-3 weeks, we'll be reprinting those context posts - with minimal revisions - both here and at the sister California blog. For readers who follow both blogs, be warned - the two posts reprinted each week will be largely identical (and don't worry - it'll be easy to tell when we resume our regularly scheduled programming . . .). So here we go:
One of the primary reasons why appellate lawyering is a specialty is because appellate lawyers must contend with persuading a collective, institutional decision maker. An appellate panel isn't like a jury. The members of a jury come together for the first time for a particular case, and part forever when it's over. Members of an appellate panel have generally been on the Court for months if not years and will be there for years after a particular case is over. Members of a jury don't share anything akin to the "law of the Circuit" or the "law of this Court" as a collective enterprise built over a span of years. And although historically, there's been considerable pressure on jurors to find unanimity - although less so in recent years on the civil side - they almost always are trying to reach a binary decision: yes/no, one side wins, one side loses. An appellate panel, on the other hand, is attempting to reach unanimity on a collective reasoned, written argument. Decision making by appellate panel rather than individual judges has all kinds of potential effects on the outcome, and therefore on appellate lawyers' task of persuasion - from making judges more reluctant to dissent from a decision they disagree with, to causing judges to vote in a more (or less) liberal or conservative direction than they otherwise would because of the panel's deliberations.
Over the past few generations, political scientists, law professors, economists and statisticians have developed a host of tools for better understanding the dynamics of group decision making. These include game theory, organization theory, behavioral microeconomics, opinion mining and data analytics. Some researchers have used game theory to develop important insights about everything from the inner workings of the U.S. Supreme Court1 to why Federal Circuits follow Supreme Court precedent.2 Others have used traditional labor theory in an attempt to develop a unified theory of judicial behavior.3 With the rise of widely available massive computerized databases of appellate case law, the most fast-growing and widely varied area of research has applied sophisticated statistical and "big data" techniques to understanding the law.
Data analytics is revolutionizing litigation. Several different companies are offering such services at the trial level. Lex Machina (acquired in 2015 by LexisNexis), Ravel Law (acquired two years later, also by LexisNexis) and Premonition each offer detailed analytics about trial judges, courts and case types based on databases of millions of pages of case information. ALM has also expanded its judicial profiles services to increase their focus on judge analytics.
In 2015, I started this blog to bring rigorous, law-review style empirical research founded on data analytic techniques to the study of appellate decision making. A year later, I expanded the project to the California Supreme Court Review. Both blogs are based on massive databases consisting of 125-150 data points (depending on the year) drawn from every case, civil and criminal, decided by the Illinois and California Supreme Courts, respectively.
Why? Simple. Litigators, no matter whether they're usually in the appellate or trial courts, frequently find themselves predicting the future. This jurisdiction or this judge tends to be pro-plaintiff or pro-defendant. Juries in this county tend to return excessive verdicts, or they don't. Trial or appellate litigation in this jurisdiction takes . . . this long. What does it mean that the state Supreme Court just granted review? Or what does it mean that the Supreme Court asked me way more questions at oral argument than they did my opponent?
Every one of these questions has a data-driven answer. Not just in Illinois and California, but in every jurisdiction in the country. Sometimes the data confirms the traditional wisdom - and sometimes it proves that the traditional wisdom is dead wrong.
Want a more high-flown answer? Try this one from Posner, Epstein and Landes' The Behavior of Federal Judges:
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.
So that's what we do here. For everyone who's been with us for most or all of the six years since we started, thank you. And for first-time visitors: we hope you'll join us.
Footnotes
1 James R. Rogers, Roy B. Flemming, and Jon R. Bond, Institutional Games and the U.S. Supreme Court (2006).
2 Jonathan P. Kastellec, "Panel Composition and Judicial Compliance on the U.S. Courts of Appeals," The Journal of Law, Economics & Organization, 23(2): 421-41.
3 Judge Richard A. Posner and Professors Lee Epstein and William M. Landes, The Behavior of Federal Judges: A Theoretical & Empirical Study of Rational Choice (2013).
Originally Published by Arnold & Porter Kaye Scholer, March 2021
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