GUEST-POST | More Interest in Empirical Data Weighing on Case Evaluations

by Don Philbin

Earlier this month, I was pleased to be the invited luncheon speaker for the Advanced Texas Administrative Law Seminar in Austin. Of course, I knew that my job was to discuss advanced decision analysis and the analytical and graphical illustration tools that I’ve been working on to help communicate such case analyses. What I didn’t know was that I would be followed by an excellent presentation that would drill into appellate statistics and disposition times in the administrative law realm.

Steven Baron, in a presentation titled “Winning: Some Reflections and Empirical Observations about Challenging Agency Action,” suggested that parties weighing an appellate challenge to an adverse administrative agency decision consider three questions:

1. What are my chances of success?
2. How long will it take to get a decision?
3. How much will it cost?

To guide people wrestling with those questions, Baron surveyed approximately 230 Texas appellate decisions over the three-year period from August 2007 through July 2010. His first cut revealed that the courts of appeals reversed the agency on one or more of the principle issues in 81 of the 230 cases, or 34.5% of the total. Baron then teased out the specific issues on which parties were successful. By a two to one margin, misinterpretation of the relevant statute or agency rule came in first. Those claims appeared in one third of the challenges and they were successful 29% of the time. Closely related claims that the agency exceeded its authority (acted ultra vires) occurred in 13% of cases and succeeded 26.6% of the time. Baron noted that combined, statutory/rule misinterpretation and ultra vires claims appeared 41% of the time and had a success rate of 24%. He continued that analysis for other claims that were raised less often. Baron then factored the numbers to show an overall likelihood of reversal by claim type. While statutory/rule misconstruction won by more than 2 to 1, the overall likelihood of reversal was still just under 10%. With those long odds of appellate success, Baron turned to the question of time to obtain that result.

Baron reviewed a number of statistics on appellate dispositions in administrative appeals. The average disposition time, not including any subsequent remand, was 3.45 years. He also noted that these disposition times varied by court. The Third Court of Appeals in Austin hears half (48%) of administrative appeals and takes 25% longer on average than other appellate courts to dispose of such cases. Baron recalled that the Texas Supreme Court observed in O’Neal v. Ector County Independent School District, 251 S.W.3d 50 (2008), that appeals and remands may extend procedures for years in administrative law cases.

Finally, Baron turned to the question of costs. He knew that costs are a function of the usual factors in lawsuits, with the added complication that administrative law cases are essentially tried twice since the standard of review in the district court is de novo. Baron reached the fairly obvious conclusion that even a sub-10% chance of reversal may make a lot of sense in cases where the stakes in that particular case or in forward-looking matters that would be impacted by the precedent would vastly exceed the cost of the challenge, even when factored by the less than 10% chance of success two or three years down the road.

Baron did a fine job of pulling the quantitative statistics together in the administrative law context. This is a continuing area of interest to me. It won’t be long before my own program automating many of these and other analytics is available.

Technorati Tags: law, ADR, arbitration

Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer and arbitrator. He has resolved disputes and crafted deals for more than 20 years as a commercial litigator, general counsel and president of communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels, including CPR’s Panels of Distinguished Neutrals. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee and a member of the ADR Section Council of the State Bar of Texas. Don is a Fellow of the American Academy of Civil Trial Mediators and is listed in The Best Lawyers in America (Dispute Resolution), Texas Super Lawyers (2010), The Best Lawyers in San Antonio and the Bar Register of Preeminent Lawyers.