Can You Predict a Split Decision in Civil Cases at the Illinois Supreme Court After Oral Argument?

Last week, we reviewed the academic literature studying oral argument analytics, and then compared the data for civil and criminal cases, both affirmances and reversals, to the outcome of those earlier studies.  This week, we’re digging deeper on that work.  For last week’s comparison, we aggregated outright reversals and split decisions: “affirmed in part, reversed in part.”  Now let’s disaggregate – compare outright reversals to split decisions.

You’ll recall that the academic literature suggests that all things being equal, the party which gets more questions is likely to lose the case.  When we review the data for outright reversals in civil cases, our result is similar to the aggregated total – losing appellees average more questions in only seven of the past thirteen years (including each of the past four).

Next, we review the split decisions (although one big caveat about this data: split decisions are a small data set in individual years, so we must be cautious about sweeping generalizations).  What we see is that there is a bit of a difference between the two groups of cases.  Appellees in civil split decisions average more questions that appellants in only six of the past thirteen years – less than half the time.

Join us back here tomorrow and we’ll review the data for Illinois’ criminal cases.

Image courtesy of Flickr by Peter Harrison (no changes).

Can You Predict a Split Decision in Criminal Cases at the Illinois Supreme Court After Oral Argument?

Yesterday, we disaggregated the data on oral arguments in civil cases where there is a partial or complete reversal.  Today, we’re looking at the criminal cases.

First, we review the data for outright reversals – did the appellants or appellees average more questions per argument?  We report the data in Table 1673 below.  In ten of thirteen years between 2008 and 2020, appellees averaged more questions than appellants in outright reversals.

Now let’s look at the split decisions.  Once again, the same caution – these are typically very small data sets, so we must be cautious about our conclusions.  But once again, the data shifts just a bit.  In only six of the past thirteen years – less than half the time – have appellees averaged more questions than appellants in cases that ended in split decisions: “affirmed in part, reversed in part.”

Join us back here next Tuesday as we continue our review of the oral argument data.

Image courtesy of Flickr by Phil Sanders (no changes).

Can a Winner Be Predicted In Illinois Supreme Court Criminal Case Oral Arguments?

Last time, we surveyed the academic research applying analytics techniques to appellate oral arguments and then reviewed the data for civil arguments at the Supreme Court since 2008.  In this post, we’re reviewing the data for the same period on the criminal side of the docket.

Since the Court began posting arguments in 2008 through the end of August 2020, the Supreme Court has asked counsel 11,580 questions in criminal cases – 6,567 to appellants and 5,013 to appellees.  Perhaps because criminal defendants are the appellants in most criminal cases the Court hears, appellants have received more questions across the entire criminal docket each year since 2008.

Next, we divide the criminal case data between affirmances in Table 1669 and partial and complete reversals in Table 1670.  For affirmances, losing appellants received more questions than winning appellees in every year.

Now we review the data for average questions each year to each side in criminal reversals – (losing) appellees versus (winning) appellants.  Once again, the relationship is what we expect: in eleven of thirteen years, the losing appellees averaged more questions than winning appellants.

Join us back here next week as we continue our analysis of the oral argument numbers.

Image courtesy of Flickr by Chris Bartnik (no changes).

Can a Winner Be Predicted In Illinois Supreme Court Civil Case Oral Arguments?

Today, we begin a new subject in our ongoing analytics study of the Court’s decision making – oral arguments.  Although the academic community has been producing analytics studies of appellate decision making for a century, the analytics study of oral arguments is a much more recent development.

The earliest study appears to be Sarah Levien Shullman’s 2004 article for the Journal of Appellate Practice and Process.  Shullman analyzed oral arguments in ten cases at the United States Supreme Court, noting each question asked by the Justices and assigning a score from one to five to each depending on how helpful or hostile she considered the question to be. Once seven of the ten cases had been decided, she divided her observations according to whether the Justice ultimately voted for or against the party. Based upon her data, she made predictions as to the ultimate result in the three remaining cases. Shullman concluded that it was possible to predict the result in most cases by a simple measure – the party being asked the most questions generally lost.

John Roberts addressed the issue of oral argument the year after Shullman’s study appeared. Then-Judge Roberts (at the time, two years into his tenure on the D.C. Circuit) noted the number of questions asked in the first and last cases of each of the seven argument sessions in the Supreme Court’s 1980 Term and the first and last cases in each of the seven argument sessions in the 2003 Term. Like Shullman, Roberts found that the losing side was almost always asked more questions. So apparently “the secret to successful advocacy is simply to get the Court to ask your opponent more questions,” Judge Roberts wrote.

Professor Lawrence S. Wrightsman, a leading scholar in the field of psychology and the law, took an empirical look at U. S. Supreme Court oral arguments in a 2008 book. Professor Wrightsman chose twenty-four cases from the Supreme Court’s 2004 term, dividing the group according to whether they involved what he called ideological or non-ideological issues. He then analyzed the number and tone of the Justices’ questions to each side, classifying questions as either sympathetic or hostile. Professor Wrightsman concluded that simple question counts were not a highly accurate predictor of ultimate case results unless the analyst also took into account the tone and content of the question.

Timothy Johnson and three other professors published their analysis in 2009. Johnson and his colleagues examined transcripts from every Supreme Court case decided between 1979 and 1995 – more than 2,000 hours of argument in all, and nearly 340,000 questions from the Justices. The researchers isolated data on the number of questions asked by each Justice in each argument, along with the average number of words used in each question. The study concluded, after controlling for other factors that might explain case outcomes, all other factors being equal, the party asked more questions generally lost the case.

Professors Lee Epstein and William M. Landes and Judge Richard A. Posner published their study in 2010. Epstein, Landes and Posner used Professor Johnson’s database, tracking the number of questions and average words used by each Justice. Like Professor Johnson and his colleagues, they concluded that the more questions a Justice asks, all else being equal, the more likely the Justice will vote against the party, and the greater the difference between total questions asked to each side, the more likely a lopsided result is.

In Table 1665 below, we show the year-by-year court-wide total number of questions for appellants versus appellees.  In civil cases from 2008 through the end of 2020, the Supreme Court has asked 11,046 questions – 6,005 to appellants and 5,041 to appellees.  That might appear that appellants always get more questions, but in fact appellees have gotten more in five of the past thirteen years.  Furthermore, we’re mixing results here between cases appellants won, cases they lost and mixed results.

Now we divide the civil case data into affirmances and reversals (for these purposes, we’re counting mixed results – affirmed in part and reversed or modified in part – as reversals).  In Table 1666, we report the year-by-year data for affirmances.  The result is in line with the research reviewed below: in every year since 2008, appellants who end up losing average more questions in civil cases than appellees do.

Now, let’s look at reversals.  Here, the data is a bit more equivocal – although there are many cases each year in which appellees who will wind up losing the case get more questions, losing appellees wind up outdistancing appellants in only seven of the past thirteen years.  Curiously, four of these seven years where losing appellees got more questions were 2017, 2018, 2019 and 2020 (so far).

Join us back here next time as we turn our attention to the data for criminal cases.

Image courtesy of Flickr by brokinhrt2 (no changes).

What Kinds of Civil Constitutional Law Cases Does the Supreme Court Decide (Part 2 – 2005-2019)?

Yesterday, we began our review of the Supreme Court’s civil constitutional law cases from 1990 to 2019.  Between 2005 and 2019, the Supreme Court decided 64 civil constitutional law cases.  Thirty-three of the Court’s constitutional law cases involved challenges to state government actions, and these cases were evenly distributed across the fifteen years.  Thirteen cases involved court process and procedure.  Nine cases involved claims of individual rights and another nine involved challenges to local government actions.

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

Image courtesy of Flickr by David Wilson (no changes).

What Kinds of Civil Constitutional Law Cases Does the Supreme Court Decide (Part 1 – 1990-2004)?

For the past two weeks, we’ve been digging deeper on the Supreme Court’s caseload, dividing the cases by area of law into sub-areas.  This week, we’re looking at the Court’s docket of civil constitutional law cases – what kinds of cases make it to the Supreme Court?  We’ll divide the cases into four categories: cases involving the actions of state government; cases involving the actions of local governments; cases involving court process and procedure; and individual rights.  Once again, the height of a bar on the chart signifies the total number of civil constitutional law cases for the year.  The height of each colored ban in the bar signifies the number of cases involving that issue.

Between 1990 and 2004, the Supreme Court decided 107 civil constitutional law cases.  Sixty-nine cases involved challenges to the actions of state government.  Twenty-seven cases involved court process and procedure.  Only eight involved questions of individual rights, and three involved challenges to the actions of local governments.  The state government cases were predominantly in the first half of this fifteen-year period, between 1990 and 1997.  Civil procedure, on the other hand, was a bit more common between 1998 and 2004.

Join us back here tomorrow as we complete our review of the Court’s civil constitutional law cases.

Image courtesy of Flickr by Matt Turner (no changes).

What Kinds of Insurance Cases Does the Supreme Court Decide (Part 2 – 2005-2019)?

Between 2005 and 2019, the Supreme Court has decided 32 insurance cases.  Twelve of those cases involved coverage issues.  Eight involved defenses to coverage.  Six cases involved exclusions to coverage.  There were three cases involving regulatory issues, two “other” and none involving excess coverage.

Join us back here next week as we turn our attention to a new issue.

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

What Kinds of Insurance Cases Does the Supreme Court Decide (Part 1 – 1990-2004)?

Last week, we drilled down on the Court’s tort docket, reviewing the sub-areas of tort law that the Court’s cases have been drawn from over the past thirty years.  This week, we’re doing the same thing for the Court’s insurance law cases.

We divide the insurance cases into seven categories: Coverage (and the insurer’s duties resulting from coverage, such as duty to defend); Excess coverage; Separate torts by insurers; Exclusions; Defenses; Regulatory issues and “Other.”  Since all of the Court’s insurance cases between 1990 and 2004 fell into one of the first six categories, we omit “other” in the chart below.

The Court decided 22 coverage cases during these years.  Fifteen cases related to insurer defenses.  Another dozen related to coverage exclusions.  The Supreme Court decided five regulatory cases, two cases relating to excess coverage issues, and one regarding separate torts.

Join us back here next time as we review the cases for the years 2005 through 2019.

Image courtesy of Flickr by GPA Photo Archive (no changes).

What Kinds of Tort Cases Does the Supreme Court Decide (Part 2 – 2005-2019)?

Last time, we began taking another look at the Court’s tort cases since 1990 – specifically, what issues within the field of tort law has the Court been interested in?  This time, we’re reviewing the data for the years 2005 through 2019.

Tort cases have been significantly less common on the Court’s docket during this period – 233 cases from 1990 to 2004, only 111 from 2005 to 2019.  Once again, the sub-areas of duty and defenses were the most common, as the Court decided 37 duty cases and 33 cases involving various tort defenses.  There were fewer spikes between those issues – the Court decided seven duty cases and only two involving defenses in 2012, and four defenses cases and zero duty in 2016 – but otherwise, the numbers were evenly split each year.  Damages cases became a bit more common in comparison to the other two remaining sub-issues.  The Court decided 19 damages cases during these years, 11 involving breach and causation issues and 11 “other.”

Join us back here next week as we turn our attention to another area of law.

Image courtesy of Flickr by Stephen Hanafin (no changes).

What Kinds of Tort Cases Does The Supreme Court Decide (Part 1 – 1990-2004)?

For the past few months, we’ve been looking at the Court’s decision record and the individual Justices’ voting records in various civil and criminal areas of law.  This week, we’re beginning a deeper dive – dividing those areas of law into discrete sub-issues and tracking where the Court has been drawing its cases from.

We begin with torts, which we divide into five categories: duty, breach, defenses, damages and “other” – mostly procedural questions which tend to arise in tort cases.  In Table 1659, we report the data for the years 1990 through 2004.  If you’re unfamiliar with this type of chart, the height of each bar is the total number of tort cases the Court decided in a given year, and the different colored slices show the number of cases which fell into each sub-issue.

Between 1990 and 2004, the Supreme Court decided 233 tort cases.  Although duty was the most common sub-area with 97 cases, it wasn’t by much – the Court decided another 78 cases which dealt with various defenses.  There were only 10 cases falling into the category of breach (causation issues).  The Court decided 25 damages cases and another 23 “other.”

Although there were spikes in both directions between duty and defenses cases – 11 duty to 5 defenses in 1990, 2 duty to 11 defenses in 1997 and 10 duty to 2 defenses in 1998 – those two sub-areas tended to split the Court’s tort docket fairly evenly year by year.  The breach cases fell in 1991 (1), 1992 (3) and 1999-2001 (3, 2 and 1, respectively).  Damages and “other” cases were evenly spread across the fifteen year period, and neither sub-area ever predominated over the other in a given year.

Join us back here next time as we review the data for the years 2005 through 2019.

Image courtesy of Flickr by Kristina D. C. Hoeppner (no changes).

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