GUEST-POST | 2010 U.S. Supreme Court and Fifth Circuit Activity Reports

By Don Philbin

U.S. Chief Justice John Roberts released his sixth Year-End Report on the Federal Judiciary on New Year’s Eve. While most of the press coverage has turned on his discussion of judicial vacancies, a three-page appendix highlights the workload of the federal courts. The Clerk of the Fifth Circuit produces a similar workload report containing insightful statistics, and the Texas Lawyer recently reviewed certain statistics for the U.S. District Courts in Texas. John Council, Moving Right Along: Annual Slowpoke Report Examines Pending Motions, Civil Cases, (January 3, 2011). (Free registration required.)

Appeals are down marginally in the Fifth Circuit and down with regard to paid filings at the U.S. Supreme Court. District and Bankruptcy Court filings are both up, however, reflecting the economic downturn and serving as a proxy for future appellate activity. Fraud cases, in particular, posted significant increases in 2010. Fraud filings were up 12%, as were the number of named defendants. In fact, the broader measure of civil cases trended upward in both the U.S. District Courts and the Fifth Circuit, although criminal and in forma pauperis cases distorted the overall trends in the Circuit and Supreme Courts. The Fifth Circuit disposed of more cases by unpublished opinions, many of which were delivered per curiam. That data point is particularly noticeable in the ADR cases we are currently reviewing for Texas Tech’s annual symposium issue due to be published in May.

Trials continue to dispose of very few civil filings. According to Chief U.S. District Judge Fred Biery of the Western District of Texas, less than one percent of civil cases filed in the district went to trial. That is consistent with recent figures from the Texas Office of Court Administration, which stand at 0.5%, and earlier works by Justice Nathan Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. Tex. L. Rev. 163 (2005), and Professor Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empir. Leg. Stud. 459 (2004).

When parties decide whether and how to resolve their disputes (decision tree here), a high level look at the court workloads and their impact can be helpful. For instance, in the Fifth Circuit the odds of reversal stand at 7.4%. If you lose there, only nine of 210 en banc petitions (4%) were granted in 2010. Additionally, only 77 of 7,738 cases filed (1%) in the U.S. Supreme Court were disposed of by opinion. Even when running those odds, it is important to keep in mind the time value of money. Other disposition time stats can help decision makers decide the cost /benefit of trial.

By the numbers:

U.S. Supreme Court docket down 1% to 1,596

• 82 cases argued; 77 disposed of in 73 opinions
• In forma pauperis docket increased 7% to 6,576 filings
• Overall filings up 5.4% as a result

U.S. Appellate Court activity down 3% overall to 55,992

• Fifth Circuit stats:
• New appeals down 1% to 7,337
• Pending appeals down 6% to 4,744
• Reversal rate down slightly to 7.4% from 8.0% in 2009
• Petitions for Certiorari Filed to Opinions up slightly to 26%
• Summary Calendar up 8%; Oral Argument Calendar down 3%
• Published Opinions down 5%; Unpublished Opinions up 3%
• Per curiam Opinions up 2.3%, 98.2% of which were Unpublished Opinions
• En Banc Petitions up 4 to 210 (6.5% of opinions); 9 were granted
• Federal Question cases up 9.9%
• Diversity cases up 7.4%
• U.S. Civil cases up 9.5%
• Bankruptcy cases down 21.3%
• Appeals from the U.S. Western District of Texas down 4%

U.S. District Court civil filings were up 2% overall to 282,895

• Federal question claim filings rose 2% to 138,655
• Diversity jurisdiction filings rose 4% to 101,202
• Fraud filings set a new record:
• Fraud cases grew 12% to 9,371
• Defendants in fraud cases rose 13% to 12,639
• Less than 1% of civil cases filed in the U.S. Western District of Texas went to trial (from: Texas Lawyer)

U.S. Bankruptcy petitions climbed 14% to 1,596,355

• Highest number since 2005 (pre-Bankruptcy Abuse Prevention Act)
• Business petitions down 1%
• Chapter 7 filings up 16%
• Chapter 11 filings down 4%
• Chapter 13 filings up 9%

Technorati Tags: arbitration, ADR, law, U.S. Supreme Court

Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer, and arbitrator. He has resolved disputes and crafted deals for more than two decades as a business and commercial litigator, general counsel, and president of communications and technology-related companies. Don holds a Masters of Law degree from Pepperdine‘s top-ranked Straus Institute for Dispute Resolution, where he is now an adjunct professor, has trained and published at Harvard’s Program on Negotiation, is an elected Fellow of the International Academy of Mediators and the American College of Civil Trial Mediators, a member of the Texas Academy of Distinguished Neutrals, and was one of the first U.S. mediators certified under the international standards established by the International Mediation Institute. He has mediated hundreds of individual and class matters in a wide variety of substantive areas and serves as a neutral on several panels, including CPR’s Panels of Distinguished Neutrals. Don has published widely in the field, is Chair of the ABA Dispute Resolution Section‘s Negotiation Committee, and a member of the ADR Section Council of the State Bar of Texas. Mr. Philbin is listed in THE BEST LAWYERS IN AMERICA, TEXAS SUPER LAWYERS, and THE BEST LAWYERS IN SAN ANTONIO. His firm is listed in the inaugural edition of U.S. News and Best Lawyers “Best Law Firm” survey and the BAR REGISTER OF PREEMINENT LAWYERS.