Welcoming Three New Appellate Experts to Our Growing San Francisco Office

I’m delighted to welcome three new experienced and talented appellate specialists to our growing San Francisco office!  Here’s the firm’s press release –

Horvitz & Levy Expands San Francisco Office with Three Experienced Appellate Hires

Bay Area Office for Nation’s Largest Appellate Boutique Offers Unmatched Expertise

Horvitz & Levy LLP, the country’s largest boutique law firm dedicated to civil appeals and trial  consulting, has expanded its San Francisco presence with three strategic hires. The firm operates on an experienced-hire model and in keeping with this strategy has added appellate experts Beth Jay, Christopher Hu, and Andrea Russi.

Beth Jay, former principal attorney to three California chief justices, brings 35 years of California Supreme Court experience and three years of federal appellate court insights to Horvitz & Levy’s clients. In addition to serving as a senior adviser to the Chief Justice,  Jay has served on numerous Supreme Court, Judicial Council, and State Bar committees with a focus on judicial ethics and multi-jurisdictional issues. She served former Chief Justices Malcolm M. Lucas and Ronald M. George for their entire tenure on the Supreme Court, and assisted Chief Justice Tani Cantil-Sakauye from the beginning of her term in January 2011 until Jay’s retirement in 2015.  Jay is a recipient of the Bernard E. Witkin Medal for her lifetime body of work and influence on the legal landscape.

Christopher (Chris) Hu brings to bear significant appellate expertise, having served as a judicial law clerk to Judge Kim McLane Wardlaw of the Ninth Circuit and Justice Goodwin Liu of the Supreme Court of California.  Hu is a graduate of Stanford Law School and won the Judge Thelton E. Henderson Prize for Outstanding Performance in Stanford’s Supreme Court Litigation Clinic.

Andrea Russi most recently served as a staff attorney to Presiding Justice Ignazio Ruvolo (retired) of the California Court of Appeal, First Appellate District, Division Four.  She also served as an Assistant United States Attorney in the Central District of California, worked as an associate at Latham & Watkins, and was a Lecturer in Residence for the UC Berkeley School of Law where she was the Managing Director and Director of Criminal Justice for The Chief Justice Earl Warren Institute on Law & Social Policy.     Horvitz & Levy’s Bay Area office opened in June of 2018 at 505 Sansome Street in the city’s iconic Transamerica Pyramid Center, and is led by Kirk C. Jenkins, the former Chair of Sedgwick LLP’s Appellate Task Force. “The business growth in the Bay Area and the need for deep and strategic insights into the appellate process before, during, and after trial, is the catalyst for our swift expansion. Each of these hires brings unique and highly sought-after skills to our already robust platform,” said Jenkins.  Horvitz & Levy has 40 attorneys focused on civil appeals in state and federal courts nationwide and is known throughout the legal community as the nation’s premier appellate boutique.

About Horvitz & Levy

Horvitz & Levy is the largest law firm in the nation specializing exclusively in civil appellate litigation and trial strategy consultation.  Clients turn to Horvitz & Levy for its demonstrated collaborative think-tank culture and its unmatched skill in preserving and developing issues for appellate review, helping to shape the law for the firm’s clients. For more information visit www.horvitzlevy.com.

Image courtesy of Flickr by Tiocfaidh ar la 1916 (no changes).

 

Join Me on Tuesday for a Strafford Data Analytics Webinar!

Tuesday, March 12, I’ll be a panelist for a Strafford webinar on Data Analytics and Litigation.  The other two panelists are Steve Embry, publisher of Tech Crossroads (and a former colleague of mine many years ago) and Evan Moses, a partner at Ogletree Deakins, Nash, Smoak and Stewart.  The time is 10:00 – 11:30 Pacific.  Here’s the link and the full description is below. 

This CLE webinar will guide litigators on how to use big data leading up to, and during, litigation. The panel will explore how data is being used to govern decisions as trial approaches, including settlement conditions, surveying potential jury member demographics, and use of psychographics for desired outcomes at trial.

Description

The legal profession is entering its data-driven phase. With the advent of litigation analytics, attorneys can finally quantify the prospects of success or the scope of risk for almost every option during a case.

Analytics has a role to play in every phase of litigation, from evaluating the plaintiff and opposing counsel, to the consideration of appellate issues. Understanding how to obtain and use this data is critical for litigators.

Previously, big data was only available to jury consultants or large law firms with deep pockets and enough resources to wade through immense and confusing amounts of information. But investigative programs that provide easy access to data are emerging as powerful everyday tools for lawyers seeking the bests outcomes for their clients.

Listen as our distinguished panel guides litigators on how to harness big data analytics for use during litigation. The panel will also discuss how data governs business decisions for corporations and law firms alike leading up to trial.

Outline

I.      Overview of big data and what types of analytics it offers to litigators

II.      Discussion of pre-trial data analytics, including case budgets and business decisions

III.      Discussion of data analytics during litigation, including panel selection, AFAs and exposure calculations

IV.      Best practices for obtaining and using big data analytics before and during litigation all the way from pre-trial motions through the appeal

Benefits

The panel will review these and other relevant topics:

·      What does big data include?

·      How can big data be used to govern business decisions leading up to trial?

·      How can big data analytics be leveraged both in the trial court and on appeal?

Image courtesy of Flickr by Luckey_Sun (no changes).

Reviewing the Justices’ Agreement Rates in Criminal Cases, 1990-1995

Today, we start the second part of our ongoing analysis of agreement rates among the Justices since 1990 – the criminal docket.  We proceed just as we did with the civil docket, tracking agreement rates in non-unanimous cases.  “Disagreement” is defined as two Justices not voting exactly the same way with respect to the judgment – in other words, if one Justice votes to affirm and another to affirm in part and reverse in part, that’s a disagreement.  On the other hand, when the second Justice votes to affirm but files a special concurrence saying that he or she disagrees with some or all of the majority’s rationale, that’s still agreement with respect to the result.  Finally, because the Court had significant turnover in its members during the 1990s, we expect the numbers to be a bit more volatile during that period than the Court’s most recent years.  We begin with the years 1990 to 1995.

Justice Calvo had an agreement rate of 100% with Justice Bilandic, and 81.82% with Justice Ward.  Justice Clark’s agreement rates show his philosophy closest to Justice Freeman (71.88%), Justice Bilandic (70.37%), Justice Calvo (68.42%), Justice Cunningham (68.18%) and Justice Moran (65.91%).  His agreement rate with Justice Ward was 50%.  His agreement rate with Justices Stamos and Ryan was identical – 41.67%).  His agreement rate with Justice Heiple was 29.63%, and with Justice Miller, it was even lower: 18.18%.  Justices Cunningham and Bilandic had an agreement rate of 81.82%, and Justices Bilandic and Freeman were at 63.33%.

Justices Freeman and Calvo had an agreement rate of 87.5%.  His rate was in the seventies with two Justices – Nickels (79.03%) and Moran (78.13%).  His agreement rate with Justice Cunningham was 68.18%, and with Justice Harrison, it was 67.21%.  Justices Freeman and Heiple had an agreement rate of 48.89%.  That number was comparatively low compared to Justice Heiple’s agreement rates with other colleagues: Justice Nickels, 61.29%; Justice Moran, 59.26%; Justice Cunningham, 57.14%; and Justice Calvo, 50%.  His agreement rate with Justice Harrison was 36.07%.  Justice Harrison’s agreement rate with Justice Bilandic was nearly identical – 41.27%.  Justice McMorrow had an agreement rate with Justice Freeman of 67.74%, and with Justice Bilandic of 62.9%.

Justice McMorrow had an agreement rate with Justice Nickels of 85.25%.  Her rate with Justice Harrison was 61.67%, with Justice Miller, 54.84%, and with Justice Heiple, 48.39%.  Justice Miller had two agreement rates for this period in the sixties, with Justices Nickels and Heiple (67.74% and 65.56%, respectively).  His agreement rate was in the fifties with six different Justices – Bilandic, 56.67%; Freeman, 55.79%; Cunningham, 54.55%; Moran, 52.27%; Ryan and Stamos (both 50%).  His agreement rate with Justice Calvo was 42.11% and with Justice Harrison, 39.34%.

Justice Moran’s agreement rate with Justice Cunningham was 95.45%, and with Justice Ward, 91.67%.  His agreement rate with Justice Calvo was 84.21%, and with Justice Bilandic, 81.82%.  Justice Nickels had an agreement rate with Justice Harrison of 66.67%.  His agreement rate with Justice Bilandic during these years was 59.68%.  Justice Ryan had an agreement rate of 75% with Justice Ward and 72.73% with Justice Calvo.  Justice Ryan’s agreement rate with Justice Moran was 66.67%.  Justice Stamos had an agreement rate of 91.67% with Justice Ward, a rate of 83.33% with both Justices Moran and Ryan, and of 72.73% with Justice Calvo.

Join us back here next Tuesday as we address two more periods in the criminal docket – 1996-2001 and 2002-2007.

Image courtesy of Flickr by Eric Fredericks (no changes).

Reviewing the Justices’ Agreement Rates in Civil Cases, 2014-2018

For the past two weeks, we’ve been reviewing the Justices’ agreement rates in divided civil cases across the period 1990 to 2018, working six years at a time.  Today, we’ve reached our fifth and last post on the civil docket, reviewing the years 2014 to 2018.  As we did last time, to facilitate comparisons for a single Justice and his or her colleagues, we group the results Justice by Justice.

Justice Burke’s highest agreement rate was with Justice Neville.  Justices Burke and Neville agreed in all five divided civil cases last year after Justice Neville joined the Court.  Justices Burke and Freeman had an agreement rate of 79.31%.  Justices Burke and Theis had an agreement rate of 73.53%.  Justice Burke’s agreement rate was in the sixties for three of her four remaining colleagues (Justice Karmeier – 67.65%, Justice Thomas – 65.63%, and Justice Garman – 64.71%.

Justice Garman’s highest agreement rates in divided civil cases were with Justice Thomas (84.38%), Justice Neville (80%) and Justice Karmeier (79.41%).  Her agreement rate with three Justices was in the sixties – Justice Freeman (68.97%) and Justices Burke and Theis (both 64.71%).  She agreed with Justice Kilbride in only 47.06% of divided civil cases.

Justice Freeman’s closest two matches in terms of agreement rate were Justices Burke (79.31%) and Theis (75%).  Justices Freeman and Garman agreed in 68.97% of divided civil cases.  Justices Freeman and Thomas agreed in 59.38%, and Justices Freeman and Kilbride had an agreement rate of 52.94%.  Justice Freeman and Chief Justice Karmeier agreed in 44.12% of divided civil cases.

As we noted above, Justice Neville participated in five divided civil decisions in 2018.  He agreed with Justice Burke in all five, with Chief Justice Karmeier and Justices Garman, Thomas and Theis in four of five, and with Justice Kilbride in two of five.

Justice Kilbride’s agreement rate was over 50% only with Justice Freeman – 52.94%.  His rate with Justices Garman and Theis was 47.06%.  Justices Kilbride and Thomas had an agreement rate of 40.63%, and his rate with Justice Neville, as mentioned above, was 40%.  Justice Kilbride’s lowest agreement rate was with Chief Justice Karmeier – 32.35%.

Justice Thomas agreed with his two Republican colleagues in a large majority of divided civil cases – Chief Justice Karmeier, 87.5%, and Justice Garman, 84.38%.  Justices Thomas and Theis agreed 68.75% of the time.  Justices Thomas and Burke had an agreement rate of 65.63%.  Justices Thomas and Freeman agreed 59.38% of the time.  Justices Thomas and Kilbride agreed in only 40.63% of divided civil cases.

With the exception of Justice Neville’s five cases in 2018, the Chief Justice’s highest agreement rates were with his Republican colleagues, Justices Thomas (87.5%) and Garman (79.41%).  Chief Justice Karmeier and Justice Burke had an agreement rate of 67.65%.  He agreed with Justice Theis in 58.82% of divided civil cases, and with Justice Freeman in 44.12%.  Chief Justice Karmeier agreed with Justice Kilbride only 32.35% of the time.

Justice Theis’ highest agreement rates among the Justices who served the entire six years were with Justice Freeman (75%) and Justice Burke (73.53%).  Justices Theis and Thomas agreed in 68.75% of cases, and Justices Theis and Garman had an agreement rate of 64.71%.  Justice Theis’ agreement rate with Chief Justice Karmeier was 58.82%.  Her agreement rate with Justice Kilbride was 47.06%.

Join us back here tomorrow as we begin our review of the Court’s criminal docket voting with the years 1990 through 1995.

Image courtesy of Flickr by Lisa Andres (no changes).

Reviewing the Justices’ Agreement Rates in Civil Cases, 2008-2013

Yesterday, we reviewed the Justices’ agreement rates in civil cases for the years 2002 through 2007.  Today, we’re looking at the agreement rates for the next six years – 2008 through 2013, with one change.  Since we’re now getting into a period where nearly all the current members of the Court had begun their tenures, rather than presenting data several combinations at a time, we reorganize the data to compare a single Justice’s agreement rates with each other sitting Justice.  Of course, this creates a bit of repetition in the tables – to make comparisons easy, each pairing is repeated on both Justice’s charts.  In other words, the rate for “Burke-Karmeier” below is reported again on Justice Karmeier’s table as “Karmeier-Burke.”

We begin with Justice Burke.  Justice Burke’s closest match in civil cases during these years was Justice Freeman – the two Justices voted together in 84.85% of divided civil cases.  Next were Justice Theis at 67.5%, Justice Fitzgerald at 64%, Justice Garman at 62.12% and Justice Thomas at 60.66%.  Justices Burke and Karmeier agreed in 58.21% of divided civil cases.  Justices Burke and Kilbride agreed in only 36.36% of such cases.

The 84.85% agreement rates between Justices Freeman and Burke was Justice Freeman’s closest match also.  Justices Theis (67.5%), Fitzgerald (61.54%) and Thomas (59.02%) were next.  Justices Freeman and Garman agreed in 58.21% of divided civil cases, and Justices Freeman and Karmeier agreed 52.94% of the time.   Justice Freeman’s agreement rate with Justice Kilbride was the same as Justice Burke’s – 36.36%.

Justice Garman’s closest match during these years was Justice Thomas – the two agreed in 87.1% of divided civil cases.  Justices Karmeier (78.79%) and Theis (77.5%) were close behind.  Justices Garman and Burke agreed in 62.12% of cases, and Justices Garman and Fitzgerald agreed in 61.54%.  Justices Garman and Freeman agreed in 58.21% of civil cases, and Justice Garman agreed with Justice Kilbride 42.42% of the time.

Justice Kilbride’s closest match on the Court was Justice Fitzgerald, at 65.38%.  Justice Kilbride voted with Justice Theis in 52.5% of cases, and with Justice Thomas in 50%.  Justice Kilbride and Justice Garman’s agreement rate was 42.42%, and his agreement rate with Justice Karmeier was 40.3%.  His lowest agreement rates during these years were with Justices Freeman and Burke – both 36.36%.

Justice Karmeier’s highest agreement rates were, not surprisingly, with the other Republican Justices – Justice Thomas at 80.65% and Justice Garman at 78.79%.  Justices Karmeier and Theis agreed in 70% of divided civil cases.  Justices Karmeier and Fitzgerald agreed 62.96% of the time.  Justice Karmeier agreed with Justices Burke and Freeman 58.21% and 52.94% of the time, respectively.  Justice Karmeier’s lowest agreement rate was with Justice Kilbride – 40.3%.

Justice Thomas’ closest matches were Justice Garman at 87.1% and Justice Karmeier at 80.65%.  Justices Thomas and Fitzgerald had an agreement rate of 78.26%, and Justices Thomas and Theis were at 72.97%.  Justices Thomas and Burke agreed in 60.66% of divided civil cases.  His lowest agreement rates were with Justice Freeman (59.02%) and Kilbride (50%).

During these years, Justice Theis’ highest agreement rate was with Justice Garman (77.5%), followed by Justice Thomas (72.97%) and Justice Karmeier (70%).  Justice Theis’ agreement rate with Justices Burke and Freeman was identical at 67.5%.  Her lowest agreement rate was with Justice Kilbride at 52.5%.

Join us back here next week as we take the Court’s civil agreement rates up to the present day, and begin our trip through the data for divided criminal cases.

Image courtesy of Flickr by Bert Kaufmann (no changes).

Reviewing the Justices’ Agreement Rates in Civil Cases, 2002-2007

Last week, we began our review, six years at a time, of the Justices’ agreement rates in civil cases.  First, we addressed the years 1990 through 1995, and then, we looked at the years 1996 through 2001.  Today, we’re turning our attention to the civil agreement rates for the years 2002 to 2007.

During these years, Justices Burke and Fitzgerald had relatively high agreement rates with several Justices.  Justices Burke and Freeman agreed 88.89% of the time.  Justice Burke agreed with both Justice Fitzgerald and Justice Kilbride 77.78% of the time.  Justice Fitzgerald voted with Justice Garman in 75% of divided cases and with Justice Freeman in 70.51%.  Justices Burke and Thomas agreed in 62.5% of cases, and Justices Freeman and Thomas voted together in 62.67%.  Justices Freeman and Karmeier agreed in 58.62% of divided civil cases.  Justice Freeman voted with Justice Rarick in 56% of cases and with Justice Kilbride in 53.85%.  Justices Burke and Karmeier voted together only 33.33% of the time, and Justices Freeman and Harrison were at 35.71%.  Finally, Justices Burke and Garman had an agreement rate of 28.57%.

Among our second group of combinations, Justices Kilbride and Harrison had the highest agreement rate – 84.62%.  Three sets of Justices were in the seventies: Justice Garman with Justices Karmeier (73.08%) and Thomas (79.17%), and Justices Karmeier and Fitzgerald (72.41%).  Justices Kilbride and Rarick had an agreement rate of exactly 60%.  Four combinations were in the fifties – Justices Garman and Freeman (55.26%), and Justice Kilbride with three Justices: Fitzgerald (58.44%), Karmeier (55.17%) and Thomas (50%).  Two combinations were in the forties – Justices Garman and Kilbride, and Justices Harrison and Fitzgerald (46.15%).  Justices Garman and Harrison were at 35.71%, and Justices Garman and Rarick agreed in only one-quarter of divided civil cases.

Our final group of combinations for the most part ran a bit lower than recent trends.  Two combinations, Justices McMorrow and Freeman (83.33%) and Justices Thomas and Fitzgerald (86.49%) were in the eighties.  Justices Thomas and Karmeier had an agreement rate of 76%.  Justices McMorrow and Fitzgerald (64.62%), Justices McMorrow and Karmeier (66.67%) and Justices Rarick and Fitzgerald (64%) were next.  Justices McMorrow and Garman were at 58.33%, and Justices McMorrow and Thomas agreed 59.38% of the time.  Four combinations of Justices had agreement rates in the forties – Justices McMorrow and Kilbride (41.54%), Justices McMorrow and Rarick (44%), Justices Thomas and Harrison (42.86%) and Justices Thomas and Rarick (44%).  Justices McMorrow and Harrison agreed in only 38.46% of divided civil cases.

Join us back here tomorrow as we address the years 2008 to 2013.

Image courtesy of Flickr by Michael Mooney (no changes).

Reviewing the Justices’ Agreement Rates in Civil Cases, 1996-2001

Last time, we reviewed the Justices’ agreement rates – how often each possible combination of Justices, two at a time, voted together – in civil cases between 1990 and 1995.  In this post, we’re looking at the same number for the years 1996 to 2001.

In Table 1007, we report the data for our first group of combinations.  Justice McMorrow’s agreement rate during these years wasn’t especially high with any other Justice.  She agreed at least seventy percent of the time with four of her colleagues – Justices Freeman (77.14%), Bilandic (75.41%), Rathje (73.53%) and Miller (71.09%).  Only one combination was in the sixties – Justices McMorrow and Nickels, at 65.56%.  Six different combinations were in the fifties and forties – Justices Heiple (56%), Harrison (40.88%), Garman (45.45%), Kilbride (53.85%), Thomas (41.67%) and Fitzgerald (53.85%).  Justices Miller and Freeman had an agreement rate of 71.09%.

Although the bulk of our next group of combinations is around the same level as the previous chart, Justice Miller had a 100% agreement rate between 1996 and 2001 with two other Justices – Thomas and Fitzgerald.  His agreement rate with Justice Rathje was 82.35%; his rate with Justice Kilbride was 75%.  Six different combinations on this chart were in the sixties – Justices Miller and Heiple (66.94%), Justices Miller and Nickels (66.29%), Justices Miller and Bilandic (69.42%), Justices Freeman and Nickels (63.33%), Justices Freeman and Rathje (67.65%), and Justices Freeman and Kilbride (61.54%).  One combination each was in the fifties (Justices Freeman and Heiple – 58.4%), in the forties (Justices Freeman and Harrison – 45.26%), and in the thirties (Justices Miller and Harrison – 36%).

Justices Garman and Thomas had an agreement rate of 100% for these years.  Two combinations were in the seventies – Justices Freeman and Bilandic (73.77%) and Justices Heiple and Nickels (71.59%).  Three more were in the sixties – Justices Freeman and Fitzgerald (61.54%), Justices Rathje and Bilandic (62.5%), and Justices Heiple and Rathje (67.65%).  Three were in the fifties – Justices Freeman and Thomas (50%), Justices Heiple and Bilandic (58.33%) and Justices Garman and Freeman (54.55%).  Three combinations had agreement rates in the forties – Justices Harrison and Bilandic (46.67%), Justices Heiple and Harrison (45.08%) and Justices Garman and Kilbride (45.45%).  One combination, Justices Rathje and Harrison had an agreement rate of 30.3%.

Finally, Justice Fitzgerald had agreement rates in the seventies with Justices Garman (72.73%) and Thomas (75%).  Justices Nickels and Bilandic were similar – 70.11%.  Justice Kilbride had agreement rates in the sixties with Justices Harrison (61.54%) and Fitzgerald (69.23%).  Justice Harrison was in the sixities with Justices Nickels (62.5%) and Fitzgerald (61.54%).  The agreement rate for Justices Harrison and Bilandic was 50%, and the rate between Justices Harrison and Garman was only slightly lower at 45.45%.  Justice Thomas’ agreement rates were identical for Justices Kilbride and Harrison at 41.67%.

Join us back here next week as we review the civil case data for the years 2002-2007 and 2008-2013.

Image courtesy of Flickr by Ron Cogswell (no changes).

Reviewing the Justices’ Agreement Rates in Civil Cases, 1990-1995

For the past few weeks, we’ve been looking at how often each member of the Court since 1990 voted with the majority in divided decisions on both the civil and criminal side, looking both for how closely aligned each Justice was with the majority of the Court, and perhaps a rough indicator of each Justice’s influence among his or her colleagues.  This time, we begin working on a slightly different voting indicator – how often did each Justice agree with each of his or her individual colleagues on the Court?  Today, we’ll begin a three-week trip through the Court’s recent history on the civil side, then we’ll look at the criminal side.

But first, a few ground rules.  In order to smooth out what are really random variations from year to year, we’ll group the twenty-nine-year period by looking at six years at a time – thus better seeing real relationships and trends.  Second, just as with the last series of posts, “agreement” means complete agreement – a Justice who votes to affirm and another who votes to affirm in part and reverse in part are not counted as agreeing in this data.  Third, because the Court’s unanimity rate is typically so high, we’re addressing non-unanimous decisions only (otherwise, most of these combinations would be clustered relatively high on the bar charts).  Fourth, in the data below, we address every possible combination of Justices who voted in even a single case during these years, taking fifteen combinations at a time.

We report our first set of combinations in Table 1003 below.  Justices McMorrow and Miller had the highest agreement rate during these years – 90.48% of non-unanimous civil decisions.  Five combinations were over eighty percent – Justices Clark and Calvo, 89.47%, Justices Clark and Cunningham, 87.18%, Justices Clark and Bilandic, 75.71% and Justices Clark and Freeman, 85.37%.  Three more combinations of Justices were in the seventy percent range – Justices Clark and Moran, 75.86%, Justices Clark and Ward, 75%, and Justices Nickels and McMorrow, 73.77%.  Among the lowest agreement rates in this first grouping were three combinations in the fifty percent rage – Justices Clark and Miller, 54.24%, Justices McMorrow and Heiple, 50.79%, and Justices Clark and Stamos, 50%.  Justices McMorrow and Harrison agreed in only 40.68% of divided civil cases during these years.  Finally, Justice Clark’s agreement rates were in the thirties with two of his colleagues – Justice Ryan (37.5%) and Justice Heiple (33.33%).

In Table 1004, we report the data for the next fifteen combinations of Justices.  The data for these Justices varies significantly less than the first group, mostly because almost no one in this group reached as high a number as the first: in our first group, five combinations of Justices had agreement rates over 80%, while here, only one – Justices Freeman and Calvo, four agrees in four cases, did.  Five combinations had agreement rates in the seventies – Justices Miller and Stamos (73.33%), Justices Miller and Ryan (75%), Justices Miller and Moran (77.97%), Justices Miller and Cunningham (71.79%) and Justices Freeman and Cunningham (78.38%).  Another five combinations were in the sixties – Justices McMorrow and Bilandic (61.29%), Justices Miller and Freeman (65.09%), Justices Miller and Heiple (63.89%), Justices Miller and Nickels (62.12%) and Justices Miller and Bilandic (61.54%).  Meanwhile, one combination had an agreement rate in the forties – Justices Miller and Harrison (46.77%), and one was in the thirties – Justices Miller and Calvo (35%).

The spread among the next fifteen combinations of Justices was similar.  Only one combination had an agreement rate of 80% – Justices Stamos and Moran.  Three more were in the seventies – Justices Freeman and Moran (75.61%), Justices Freeman and Nickels (71.21%) and Justices Heiple and Nickels (70.15%).  Two combinations of Justices were in the forties – Justices Heiple and Cunningham (46.15%) and Heiple and Harrison (49.21%).  Justices Ryan and Moran had an agreement rate of 31.25%.

In Table 1006, we report the remaining agreement rates for the period of 1990 to 1995.  Justice Calvo’s agreement rate with Justices Bilandic and Cunningham was 100%.  The agreement rate between Justices Moran and Cunningham was 94.87%.  Four combinations – Justices Moran and Bilandic (72.73%), Justices Moran and Ward (75%), Justices Calvo and Ward (75%) and Justices Cunningham and Bilandic (70.97%), had agreement rates in the seventies.  At the bottom of this set was Justices Ryan and Calvo, whose agreement rate was 31.25%.

Join us back here next time as we explore the data for the years 1996 through 2001.

Image courtesy of Flickr by Gabe Popa (no changes).

Who Has Been the Bellwether Vote in Divided Criminal Cases (2004-2018)?

Last time, we began our review of the data on the criminal docket regarding how often each of the Justices voted with the majority in divided criminal cases between 1990 and 2003.  Today, we’re reviewing the years 2004 through 2018.

In Table 1001, we review the most recent data for Justices Burke, Fitzgerald, Freeman, Garman, Karmeier and Kilbride.  Justice Burke was between fifty percent and the seventies in eight of thirteen years.  Justice Burke was in the seventies once (in 2013), in the sixties three times (2007, 2012 and 2017), in the fifties four times (2008-2009, 2015 and 2018), in the forties once (2014), in the thirties once (2011), in the twenties once (2010) and between zero and twenty percent twice (2006 and 2016).  Justice Fitzgerald’s in-the-majority rate was sky-high nearly every year: 91.67% in 2004, 90.91% in 2005, 92.31% in 2006, 95.31% in 2007, 75% in 2008, 100% in 2009 and 91.67% in 2010.

Justice Freeman’s divided majority rate varied during these years but was typically between the sixties and eighties.  He was in the sixties four times (2005-2007 and 2012), in the seventies twice (2014 and 2016), and in the eighties three times (2004, 2013 and 2017).  Justice Freeman was also in the thirties twice (2010-2011), in the forties once (2009) and in the fifties twice (2008, 2015).  Justice Garman has been in the seventies three times (2014, 2017 and 2018), in the eighties six times (2004-2005, 2009, 2013 and 2015-2016), and in the nineties three times (2007, 2010 and 2012).  Justice Karmeier’s divided majority rate was 100% twice (2005 and 2012), in the nineties three times (2006, 2010 and 2013), and in the eighties four times (2009 and 2014-2016).  Justice Kilbride’s divided majority rate was all over the map: at 100% three times (2010, 2013 and 2018), in the nineties once (2011), in the eighties twice (2014 and 2015), in the seventies once (2004), in the sixties twice (2006 and 2009), in the fifties three times (2012 and 2016-2017), in the thirties once (2007) and in the twenties twice (2005 and 2008).

In Table 1002, we report the data for Justices McMorrow, Neville, Rarick, Theis and Thomas.  Justice McMorrow voted with divided majorities in 92.86% of criminal cases in 2004, 72.73% in 2005 and 45.46% during her final year of 2006.  Justice Neville voted with divided majorities in two-thirds of criminal cases last year.  Justice Rarick’s rate was 92.31% in 2004.  Justice Theis has been in the eighties four times in nine years – 2012, 2015 and 2017-2018 – and at 100% in 2010 and 2016.  Justice Thomas’ voting with divided majorities rate has generally been quite high – in the seventies twice (2008 and 2013), in the eighties three times (2012, 2015 and 2017-2018), in the nineties five times (2005, 2007, 2010 and 2012-2013 and at 100% in 2006.

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

Image courtesy of Flickr by Jack Wickes (no changes).

 

Who Has Been the Bellwether Vote in Divided Criminal Cases (1990-2003)?

Last week, we reviewed the data showing how often each Justice voted with the majority in a divided civil case.  This week, we’re looking at the criminal docket.

In Table 997, we review the numbers for five Justices – Bilandic, Calvo, Clark, Cunningham and Fitzgerald.  Justice Bilandic was, for the most part, between sixty and eighty percent.  His rate was 66.67% in 1991 and 62.5% in 1996; 79.17% in 1994, 75% in 1997 and 77.27% in 1998; and 81.25% in 1992 and 82.14% in 1999.  Bilandic was in the nineties once (2000); in the fifties twice (1993 and 1995); and at 100% in 1990.  Justice Calvo was in the majority in 84.62% of criminal cases in 1990 and 100% in 1991.  Justice Clark voted with the majority in 57.14% of cases in 1990 and 1991 and three-quarters in 1992.  Justice Cunningham voted with the majority in 83.33% in 1991 and 100% in 1992.  Justice Fitzgerald was closely in sync with the Court’s majority during these years – 95.65% in 2001, 86.67% in 2002 and 92.59% in 2003.

We review Justices Freeman, Garman, Harrison, Heiple and Kilbride in the next table.  Justice Freeman was in the seventies (1994, 1997, 1999-2000), eighties (1991, 1993, 1995, 2002-2003) and nineties (1998, 2001) for most of the period.  Justice Garman voted with the majority in 87.5% of divided criminal cases in 2001, 79.31% in 2002 and 85.19% in 2003.  Justice Harrison’s rate was relatively low throughout the period, with outliers only in 1996 and 1997.  He was in the fifties in 1993-1994 and 1998, in the forties from 1999 to 2001, and at 26.32% in his final year of 2002.  These years were spread evenly across a wide band for Justice Heiple.  His rate was in the fifties three times (1992, 1994 and 1999), in the sixties twice (1991 and 1995); in the seventies four times (1993, 1997-1998 and 2000) and in the eighties once (1996).  Justice Kilbride was less often in the majority than other Justices during his first three years – 60.87% in 2001, 33.33% in 2002 and 62.96% in 2003.

Between 1993 and 2003, Justice McMorrow’s rate of voting with the majority in divided criminal cases was nearly always in the 80-90% range – 1993, 1995-1996, 1999 and 2002-2003.  Her rate was in the seventies in 1998 and 2000 and in the sixties in 1994 and 1997.  Justice Miller’s majority rate was fairly low from 1990 to 1997 – in the fifties in 1990, 1992 and 1993, in the sixties in 1991, 1994 and 1997, and in the thirties in 1996.  His rate was substantially higher in his final four years however – 86.36% in 1998, 92.86% in 1999, 85.25% in 2000 and 100% in 2001.  Justice Moran was in the majority in 92.86% of divided criminal cases in 1990 and 100% in 1991 and 1992.  Justice Nickels was in the majority in 79.17% in 1994, 93.75% in 1995, 68.75% in 1996, 75% in 1997 and 77.27% in 1998.  Justice Rarick voted with the majority in 100% of divided cases in 2002 and 91.3% in 2003.

 

Finally, we review the data for Justices Rathje, Ryan, Stamos, Thomas and Ward.  Justice Rathje voted with the majority in divided criminal cases 63.16% of the time in 1999 and 90% of the time in 2000.  Justices Ryan, Stamos and Ward, who all retired from the Court in 1990, voted with the majority that year in 75%, 91.67% and 100% of divided criminal cases, respectively.  Justice Thomas joined the majority in 73.91% of divided cases in 2001, 76.67% in 2002 and only 37.04% in 2003.

 

Join us here tomorrow as we consider the years 2004 through 2018.

Image courtesy of Flickr by Adam Jones (no changes).

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