Yesterday, we determined that a dissent below, all things being equal, will lead to at least a slightly more active oral argument for appellees. The data for appellants is more variable – the averages are virtually identical, but the numbers vary widely from case to case. So what’s the answer for criminal cases?
Between 2008 and 2016, the Court has decided 262 criminal cases which were unanimously decided at the Appellate Court. The Court has decided 78 cases which were unanimous below. For appellants, a dissent below does mean at least a slightly more active oral argument. No-dissent appellants have averaged 15.14 questions per argument. Appellants in cases with dissents have averaged 17.42. The spread of the data suggests that the difference is sometimes much greater than that. The standard deviation for appellants in no-dissent cases is 9.3. The standard deviation for appellants where there was a dissent below is 11.77.
A dissent below has some impact on an appellee’s argument as well. Appellees in cases with no dissent below averaged 11.37 questions. Appellees in cases with a dissent below averaged 12.85. Once again, there is evidence that the impact is greater in at least some cases. The standard deviation for appellees in no-dissent cases is 8.8, but the standard deviation for appellees in cases with a dissent below is 9.55.
Join us back here next Tuesday as we turn our attention to another issue in our analysis of the Court’s oral arguments.