What Can Individual Justices’ Questioning Forecast About the Result – Civil Cases 2018

Last time, we began reviewing the Court’s oral arguments in civil cases decided in 2018.  This time, we’re finishing that review.

Who was the heaviest questioner?  Once again, Justice Thomas led, asking 201 questions in all.  Dividing the arguments by segment, we find that Justice Theis was the highest questioner for appellants’ initial argument, asking 68 questions to Justice Thomas’ 58 questions, Justice Burke’s 30 questions and Chief Justice Karmeier’s 24 questions.  Justices Kilbride and Garman asked 15 questions of appellants.  Justice Thomas was by far the heaviest questioner of appellees, asking 108 questions.  Justice Theis asked 57 questions, Justice Burke asked 34, Justice Garman asked 33, Chief Justice Karmeier asked 25 questions and Justice Kilbride asked 15 questions.  In rebuttal, Justice Thomas was once again the heaviest questioner, asking 35 questions.  Justice Theis asked 16, and everyone else was in single digits – Chief Justice Karmeier 8 questions, Justice Garman 5, Justice Burke 4 and Justice Kilbride 2.

Did writing a majority opinion result in asking more questions?  For almost all Justices, the answer was yes.  Justice Burke asked 2.25 questions of appellants when writing a majority and 3.5 questions of appellees.  Justice Garman asked 1 question of appellants and 2.33 questions of appellees when writing a majority.  Justice Kilbride, one of the less frequent questioners on the Court, averaged 1 question of appellants when writing a majority and 0.25 in rebuttal.  Justice Thomas averaged 3.6 questions of appellants, 4.4 questions of appellees and 1.6 questions in rebuttal.  Chief Justice Karmeier averaged 2.5 questions of appellants and four of appellees.  Justice Theis averaged 9 questions of appellants when writing the majority and 12 questions of appellees.

It’s difficult to draw strong conclusions, based on only one year’s data, as to whether concurrences and dissents impact questioning.  For 2018 civil cases, Justice Garman averaged 0 questions to appellants, 3 to appellees and 1 in rebuttals when writing a concurrence.  Justice Thomas averaged 4 questions to appellants, 8.5 to appellees and 1 in rebuttals.  Justice Burke asked 6 questions of appellants when writing a dissent and 4 more in rebuttal.  Justice Garman asked no questions at all in her civil dissents.  Justice Kilbride averaged 2 questions to appellants and none in the next two segments.  Chief Justice Karmeier averaged 1.5 questions to appellants in dissents, 1.25 to appellees and 0.5 to rebuttals.  Justice Theis averaged 5.5 questions to appellants when writing civil dissents, 1.5 to appellees and 2.0 in rebuttals.

So let’s divide the cases by comparing the majority result to the individual Justice’s vote.  When the Justice joined the majority in an affirmance, Justice Burke averaged 1 question of appellants and 1.22 of appellees.  Justice Garman averaged 0.75 of appellants and 0.25 in rebuttal to 1.125 of appellees.  Justice Kilbride asked 1 question of appellants, 0.11 in rebuttal and 0.67 of appellees.  Justice Thomas averaged 4 questions of appellants, 2.5 in rebuttals and 2.75 of appellees.  Chief Justice Karmeier asked 1.57 questions of appellants in civil affirmances and 0.57 questions in rebuttal and 1.29 questions of appellees.  Justice Theis asked 2.11 questions of appellants, 0.33 questions in rebuttals and 2.22 questions of appellees.

Next, we address reversals where the Justice joined the majority.  Justice Burke averaged 2 questions to appellants, 0.4 in rebuttals and 1.8 to appellees.  Justice Garman averaged 0.75 questions to appellants, 0.25 in rebuttals and 2 questions to appellees.  Justice Kilbride averaged 0.55 questions to appellants, 0.09 in rebuttals and 0.82 to appellees.  Justice Thomas averaged 2 questions to appellants, 1.15 questions in rebuttal and 6.15 questions to appellees.  Chief Justice Karmeier averaged 0.92 questions to appellants, 0.17 questions in rebuttal and 0.92 questions to appellees.  Justice Theis asked 3.33 questions to appellants, 0.75 in rebuttal and 3.08 questions to appellees.

What about where the Justice was in the minority?  Well, it’s a very limited data set.  Justice Thomas averaged zero questions to appellants, six to appellees and none in rebuttal when dissenting from an affirmance.  Chief Justice Karmeier averaged zero questions to appellants, 0.5 to appellees and zero in rebuttals.  When dissenting from a reversal, Justice Burke averaged six questions to appellants and four in rebuttal.  Chief Justice Karmeier averaged two questions to appellants, four to appellees and two in rebuttals.  Justice Theis averaged nine questions to appellants and four in rebuttals.

We also tracked which Justice asked the first question in each segment.  Over only one year, this metric isn’t especially informative, but over the longer term, asking the first question generally suggests that the Justice is writing an opinion.

Justice Burke led off twice to appellants and twice to appellees.  Justice Garman was first once to appellants and twice to appellees and in rebuttals.  Justice Kilbride began once with appellants and twice in rebuttals.  Chief Justice Karmeier began twice with appellants, once with appellees and three times in rebuttal.  Justice Theis began six times with appellants, three times with appellees and twice in rebuttals.  Justice Thomas led the Court, asking the first question ten times of appellants, sixteen times of appellees and six times in rebuttals.

Join us on Tuesday as we turn our attention to the Court’s criminal arguments last year.

Image courtesy of Flickr by Brian Crawford (no changes).

Is the Party Getting More Questions Likely to Lose – Civil Arguments 2018

This time, we’re tracking the oral arguments for the Court’s cases decided in 2018, beginning with civil cases.  If you’re a new reader of our blog, we reviewed the history of oral argument analytics here.

Among the civil cases decided in 2018, the Court asked 285 questions of appellant – opening segment and rebuttal – and 274 questions of the appellees.  Appellants averaged 12.95 questions per civil argument and appellees averaged 12.45 questions per argument.

As we show in the summary of past analytics on oral arguments, parties who will lose tend to be asked more questions.  So we divided the 2018 civil cases by the ultimate result.  Affirmances follow the expected pattern, as appellants averaged 12.89 questions while appellees averaged only 10 questions per argument.

What about split decisions, where the Court affirms in part and reverses in part?  In split decisions, appellants averaged 17 questions while appellees averaged 10.33 questions.

For reversals, once again the result is as expected – appellees averaged 15.3 questions while appellants averaged 11.8 questions.

Join us back here next time as we take a deeper look at the Court’s civil arguments.

Image courtesy of Flickr by HystericalMark (no changes).

How Have Non-Government Entities Fared in Cases Involving Governmental Agencies and Officers and Administrative Law (2014-2019)

The Court’s docket of government and administrative law cases is up a bit over the past six years, increasing to forty cases: seven in 2014, eight in 2015, eleven in 2016, nine in 2017, four in 2018 and one (up to early May) in 2019.

Nineteen of the Court’s cases were won by the government below and twenty-one were won by the challenger to government authority.

With each subject we’ve reviewed, we look at each side’s winning percentage at the Supreme Court by the winning party below.  In other words – are cases won by the challenger or defender of government action reversed at an unusually high rate?

Between 2014 and 2019, challengers to government conduct have won eleven cases at the Supreme Court while losing eight.

On the other hand, defenders of the government’s authority and actions have won nine cases at the Supreme Court while losing a dozen.

Merging this data to cover the entire docket, we find that challengers to government conduct, regardless of who won below, have won twenty-three cases at the Supreme Court while losing seventeen.

The Court has decided nineteen cases since 2014 involving the powers, duties and conduct of government officials and entities.  The Court has decided thirteen cases involving government procedure and nine involving private parties’ rights against the government.

Turning to the individual Justices’ votes, Justice Kilbride led with twenty-one votes in favor of challengers to government authority and conduct.  Justices Garman and Burke cast twenty votes apiece, Justices Theis and Freeman cast eighteen votes, Chief Justice Karmeier and Justice Thomas have cast seventeen votes each, and Justice Neville has so far cast one.

Justice Thomas has led with twenty-three votes against parties challenging government conduct.  Justice Theis has cast twenty-two votes.  Chief Justice Karmeier has cast twenty-one votes, Justice Garman has twenty, Justices Kilbride and Burke have nineteen, Justice Freeman has cast sixteen votes, and Justice Neville has cast three.

Across the entire twenty-nine-year period (1990-2019), challengers to government actions and authority have won seventy-five cases which losing one hundred two at the Supreme Court – a winning percentage of 42.37%.  Which Justices were more likely across their tenure to support challengers than a majority of the Court on which they sat?

Eleven Justices have supported challengers at a high rate than the overall winning percentage for challengers: Justices Rarick (73.68%), Kilbride (51.3), Rathje (50%), Harrison (47.92%), Fitzgerald (46.55%), Garman (46.02%), Thomas (45.22%), Burke (44.12%), Theis (43.85%), Stamos (42.86%) and McMorrow (42.68%).

Which Justices were less likely to support challengers in these cases than a majority of their Courts?  Justice Freeman voted for challengers in 42.17% of his cases.  Chief Justice Karmeier has done so forty percent of the time.  Four Justices were in the thirties: Cunningham (38.46%), Calvo (33.33%), Clark (31.82%) and Bilandic (30.77%).  The remaining seven Justices were in the twenties: Ryan, Moran and Ward (28.57% each), Nickels (26.67%), Heiple (26.42%), Neville (25%) and Miller (24.59%).

Join us back here next Tuesday as we take on a new issue.

Image courtesy of Flickr by Gary Todd (no changes).

 

 

How Have Non-Government Entities Fared in Cases Involving Governmental Agencies and Officers and Administrative Law (2006-2013)

Cases involving government and administrative law fell substantially between 2006 to 2013. During those eight years, the Court decided thirty-eight cases: eight in 2006, four in 2007, one in 2008, five in 2009, two in 2010, seven in 2011, five in 2012 and six in 2013.

The Court decided twenty cases won by the defender of government action or power below and eighteen won by the party challenging the government.

Once again, challengers to government conduct who won at the Appellate Court had a difficult time at the Supreme Court, winning eight cases while losing fourteen.

Defenders of government conduct and authority didn’t do much better, winning only five while losing eleven.

Overall (disregarding the winner below), challengers to government conduct won fourteen cases between 2006 and 2013 while losing twenty-four.

What kinds of issues was the Court deciding in these cases?  The Court decided twenty-one cases involving the powers and duties of government entities and officials, thirteen involving private individuals’ rights against the government, and only four involving government entities’ procedures.

Justice Kilbride led with fourteen votes between 2006 and 2013 for challengers to government authority and action.  Chief Justice Karmeier and Justices Freeman and Thomas cast twelve votes each.  Justice Garman cast eleven votes, Justice Burke cast ten, Justice Theis cast seven, Justice Fitzgerald cast five and Justice McMorrow cast two.

Three Justices led the Court with twenty-six votes against challengers to government conduct and authority: Justices Freeman, Garman and Thomas.  Chief Justice Karmeier cast twenty-five votes against challengers, Justice Kilbride cast twenty-three, Justice Burke cast nineteen, Justice Fitzgerald cast fourteen, Justice Theis cast ten and Justice McMorrow cast three.

Join us next time for the final part of this post, covering the years 2014 to 2019 and taking stock of the overall numbers.

Image courtesy of Flickr by Doug Kerr (no changes).

How Have Non-Government Entities Fared in Cases Involving Governmental Agencies and Officers and Administrative Law (1998-2005)?

Between 1998 and 2005, the Court decided a total of fifty-four cases involving government officers, agencies and powers: five per year in 1998, 1999 and 2000, six in 2001, eight in 2002, ten in 2003, eight in 2004 and seven in 2005.

Two-thirds of those government/admin cases were won at the Appellate Court by the party challenging government actions or authority – eighteen cases won by the government actor and thirty-six won by the challenger.  Between 2001 and 2004, twenty-three cases were won by the challenger at the Appellate Court and only nine were won by the government challenger.

Parties challenging government actions or entities very nearly gained a split in cases which had been won by challengers below.  Between 1998 and 2005, challengers arriving at the Supreme Court on a win won seventeen cases at the Supreme Court while losing nineteen.

Defenders of government actions and authority did gain a split in their cases: government entities which had won at the Appellate Court won nine and lost nine between 1998 and 2005.

Merging these data points, we find that overall parties challenging governmental entities or actions won twenty-six games between 1998 and 2005 and lost twenty-eight.

 

The Court decided twenty-two cases involving the powers and actions of governmental officers and entities.  Seventeen cases primarily involved government procedure and sixteen involved purported rights against the government.

Five Justices during these years cast twenty or more votes in favor of parties challenging governmental entities and power: Justice Freeman twenty-nine votes, Justice McMorrow twenty-seven votes, Justice Thomas twenty-three votes, Justice Fitzgerald twenty-two votes and Justice Kilbride twenty-one votes.   Justice Rarick cast fourteen votes for challengers and Justice Harrison cast twelve votes.

Justices Freeman and McMorrow led in votes against challengers to government action and authority, each casting twenty-four votes.  Justice Fitzgerald cast seventeen votes for government entities, Justice Garman cast fifteen and Justices Thomas and Kilbride cast fourteen votes for government entities.

Join us back here in a few days as we turn our attention to the years 2006 to 2019.

Image courtesy of Flickr by Gary Todd (no changes).

How Have Non-Government Entities Fared in Cases Involving Governmental Agencies and Officers and Administrative Law (1990-1997)?

Today, we begin our analysis of one of the Court’s most common areas on concern – cases involving governmental entities and administrative law.  As usual, we’ll begin with the first eight years – 1990-1997.

Between 1990 and 1997, the Court decided forty-eight cases which involved governmental entities and officers and administrative law: nine in 1990, two in 1991, eleven in 1992, four in 1993, ten in 1994, three in 1995, four in 1996 and five in 1997.

In Table 1190, we report the caseload, divided between government and non-government parties.  Note that in this data, we define “government” to include a private party who is defending governmental conduct or actions – for example, if a private entity was suing on a claim whose validity depended on whether an action of the Illinois Commerce Commission was within its authority, that entity would be classed as “government” here.

For the entire eight years, the Court decided sixteen cases won below by the defender of government authority and thirty-one won by the challenger to the government.  In 1990, the Court decided six government wins from the Appellate Court and only three challenger wins.  In 1991, the cases were equally divided – one government winner, one challenger winner.  In 1992, the Court decided only two cases won by the government defender and eight won below by the challenger.  In 1993, all four government-admin cases were won below by the party challenging the government.  In 1994, ten cases were divided nearly evenly – six government wins, four challenger wins.  From 1995 to 1997, the Court decided only one case won by the government power defender below – in 1995.  It decided two challenger wins in 1995, four in 1996 and five in 1997.

Below, we look at the data for challengers to government action who won below.  During these first eight years, most of the challengers lost – overall, only eight wins for challengers coming in on a victory as opposed to twenty-six losses.  From 1994 to 1997, challengers who won below lost thirteen times at the Supreme Court, winning only twice.

“Government” parties who won below – governmental officers and agents and private litigants relying on government actions – had an easier time, winning seven and losing six between 1990 and 1997.

Next, we merge this data to determine how challengers to government actions have fared overall, regardless of who won below.  The short answer: not well.  Between 1990 and 1997, challengers won twelve cases while losing thirty-three.

Next, we divide the docket up by what the primary issues were in the Court’s government and administrative law cases: (1) cases about the powers and actions of government officials and governmental entities (i.e., “what the government did”); (2) cases about government/administrative procedure (i.e., “how the government did it”); and (3) private parties’ rights against the government.

Between 1990 and 1997, the Court decided twenty-five cases involving the powers and actions of government officials and entities, fifteen cases involving issues of government procedure, and eight involving private actors’ rights against the government.

Finally, we turn to the individual Justices’ votes.  Justices Miller and Bilandic cast twelve votes each for challengers.  Justices Freeman and Harrison cast eleven votes each.  Justice Heiple cast ten votes for challengers.  Justices Clark and Nickels were next with seven votes apiece for challengers.

Justice Miller also led in total votes for government actors with thirty-five.  Justice Freeman cast thirty votes.  Justices Heiple (twenty-eight votes), Bilandic (twenty-six votes) and McMorrow (twenty votes) were next.  Justice Nickels cast nineteen votes for government actors, Justices Clark and Moran cast fifteen votes and Justice Harrison cast thirteen votes.

Join us back here next time as we examine the Court’s government and administrative law cases from 1998 to 2005.

Image courtesy of Flickr by Christina Rutz (no changes).

 

How Have Defendants Fared in Workers Compensation Cases (Part 4 of 4)

The Court’s workers compensation docket has been light in the last six years.  The Court has decided only three workers compensation cases recently – two in 2015 and one in 2016.

All three of the Court’s latest workers compensation cases were won by the plaintiffs below.

Defendants who won at the Appellate Court were one win and zero losses at the Supreme Court.

Plaintiffs who won their workers compensation cases at the Appellate Court were winless at the Supreme Court, winning zero while losing two.

Overall, defendants have won all three workers compensation cases since 2014.

Next, we review the issues the Court decided in its workers compensation cases.  The Court decided one case in 2015 involving the power and structure of the Workers Compensation Commission, one case involving compensability and one case involving procedural issues.

None of the Justices have cast votes for defendants in workers compensation cases since 2014.  Justices Freeman, Garman, Kilbride, Thomas, Karmeier, Burke and Theis have all cast three votes against defendants.

Finally, we compare the Justices’ votes for the entire twenty-nine year period to the overall data regarding cases won by the defense side to determine which Justices were more likely to vote for the defense side than the Court as a whole.  Justice Miller voted for defendants 65.63 percent of the time, Justice Moran did so in sixty percent of cases.  Justice Nickels was 57.89%, Justice Rathje was 57.14%, Justice Heiple’s rate was 55.17%, Justice McMorrow’s was 52.5% and Justices Calvo and Cunningham voted with defendants half the time.

Finally, we review the Justices who were less likely to support defendants in workers compensation than the Court as a whole.  First, we have Justice Fitzgerald at 47.62%.  Three more Justices were in the forties – Justice Bilandic (46.43%), Freeman (41.07%) and Clark (40%).  Four Justices were in the thirties – Thomas (39.13%), Garman (37.04%), Stamos (33.33%) and Ryan (33.33%).  Justice Karmeier agreed with the majority only 27.78% of the time.  Justice Burke did so in 27.27% of cases.  Behind her were Justices Harrison (25.81%), Kilbride (23.08%) and Theis (16.67%).  Justice Rarick did not even vote for workers compensation defendants.

Join us next Tuesday as we turn our attention to a new area of law.

Image courtesy of Flickr by CheepShot (no changes).

How Have Defendants in Workers Compensation Cases Fared Since 1990 (Part 3 of 4)

Today, we continue our review of the Illinois Supreme Court’s workers compensation caseload.  Between 2006 and 2013, the Court decided twelve workers compensation cases – three in 2006, three in 2007, one per year in 2008, 2009 and 2010, none in 2011 or 2012 and three in 2013.

Seven of the Court’s most recent workers compensation cases were won by the plaintiff below and five were won by defendants.

Defendants who won workers compensation cases at the Appellate Court have had a rough time of late, winning only one while losing four.

Plaintiffs who won at the Appellate Court generally lost at the Supreme Court too, winning two and losing five.

Combining the last two tables to arrive at the overall won-lost, we find that between 2006 and 2013, defendants won six and lost six.

The Court has six cases involving issues of compensability, two involving the powers and structure of the Workers Compensation Commission, two involving procedural issues, and one each involving workers compensation exclusivity and lien and credit holders.

Turning to the Justices’ voting records, Justices Freeman, Garman and Thomas cast four votes for defendants in workers compensation cases.  Justices Karmeier and Burke cast three votes for defendants.  Justices Kilbride and Fitzgerald cast two votes for defendants and Justices McMorrow and Theis cast one vote each.

Justice Kilbride led during these years with nine votes against workers compensation defendants.  Justices Freeman, Garman and Karmeier cast eight votes against defendants each.  Justices Thomas and Fitzgerald voted against defendants seven times each.  Justice Theis cast two votes and Justices McMorrow and Burke cast one each.

Join us tomorrow as we finish our review of the Court’s workers compensation cases.

Image courtesy of Flickr by Rita Simon (no changes).

How Have Defendants Fared in Workers Comp Cases Before the Supreme Court (Part 2 of 4)?

The workers comp docket was up slightly between 1998 and 2005, as the Court decided twenty-three cases: four in 1998, three in 1999, four in 2000, one in 2001, three in 2002, two in 2003 and 2004 and four in 2005.

The distribution of cases between plaintiffs’ wins from the Appellate Court and defendants’ wins was about the same as it was from 1990 to 1997.  Between 1998 and 2005, the Court decided nine cases which were won by plaintiffs at the Appellate Court and fifteen cases won by defendants.

Defendants who had won at the Appellate Court had a tough time defending their wins at the Supreme Court between 1998 and 2005.  Winning defendants won three cases while losing ten.

Plaintiffs who won at the Appellate Court were just slightly above .500, winning six cases between 1998 and 2005 while losing five.

Combining these two tables, we find that overall between 1998 and 2005, defendants won eight workers comp cases while losing sixteen.

Next, we look at the specific issues the Court decided in its workers compensation cases.  Between 1998 and 2005, the Court decided eleven cases involving procedural issues, seven involving compensability, three involving the powers and structure of the Workers Compensation Commission and three involving liens and credits against recoveries.

Next, we review the individual Justices’ voting records.  Justice McMorrow cast nine votes for defendants in workers comp cases, Justices Freeman and Fitzgerald cast eight votes each, Justice Miller cast seven votes, Justice Garman cast six votes, Justice Thomas cast five, Justices Rathje and Kilbride cast four apiece, Justices Bilandic and Heiple cast three votes each, and Justices Harrison and Karmeier cast two votes each.

Justice Freeman led with fifteen votes against defendants.  Justices McMorrow and Harrison voted against defendants fourteen times each.  Justices Bilandic, Heiple and Kilbride voted against defendants eight times apiece.  Justice Garman voted against defendants six times.  Justices Miller, Nickels, Fitzgerald and Thomas voted against defendants four times each.  Justice Rathje voted against defendants three times and Justices Rarick and Karmeier did so twice each.

Join us back here next week as we continue our review of the Court’s workers compensation cases.

Image courtesy of Flickr by Ryan Summers (no changes).

How Have Defendants Fared in Workers Comp Cases Before the Supreme Court (Part 1 of 4)

Today, we’re beginning a new area of law in our analysis of the Justices’ handling of workers compensation cases, beginning with the years 1990 to 1997.

From 1990 to 1997, the Supreme Court decided twenty-one workers comp cases – three in 1990, one in 1991, two each in 1992 and 1993, six in 1994, two each in 1995 and 1996 and three in 1997.

Did the Court incline more towards plaintiffs’ wins or defense wins from the Appellate Court for its workers comp docket?  For the years 1990 to 1997, the Court decided eight cases which the plaintiffs won at the Appellate Court to thirteen cases won by the defendant.

Defendants who won before the Appellate Court won six cases before the Supreme Court between 1990 and 1997 while losing seven.

Plaintiffs who prevailed in these cases at the Appellate Court had a rough time between 1990 and 1997, winning one while losing seven.

Between 1990 and 1997, defendants won thirteen workers compensation cases at the Supreme Court and losing eight.

During these years, the Court’s workers comp cases were largely procedural.  The Court decided thirteen cases involving procedural issues, four related to compensability, three involved issues of liens and credits against the judgment, and one case apiece related to workers comp exclusivity and the power and structure of the Workers Compensation Commission.

Justice Miller cast the most votes for workers compensation defendants during these years – fourteen votes.  Justice Heiple cast thirteen votes.  Justices Freeman, McMorrow and Nickels cast eleven votes in all.  Justice Bilandic cast ten votes.  Justice Harrison cast six votes, Justice Moran cast three, Justice Clark cast two and Justices Stamos, Ryan, Calvo and Cunningham cast one vote apiece.

Justice Harrison led the Court in votes against workers comp defendants with nine.  Justices Miller, Bilandic and Freeman cast seven votes each.  Justice Heiple cast five votes, Justices McMorrow and Nickels cast four votes each, Justice Clark cast three votes, Justices Stamos, Ryan and Moran cast two votes apiece.  Justices Calvo and Cunningham supported defendants only once.

Join us tomorrow as we continue our review.

Image courtesy of Flickr by Peasap (no changes).

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