Taylor C. Young 2014-04-01 00:09:30
The Appeal: Now How Long Will This Take? A year ago, we addressed one of the most common appellate questions we are asked by lawyers and laypeople alike: “How long will this take?” As noted in last year’s article, the answer is “It depends.” We reported that, for direct appeals in civil matters before Division One of the Arizona Court of Appeals, which make up the bulk of our practice, you should expect to wait at least a year for a decision on the merits and probably significantly longer. That estimate isn’t just based on anecdotal evidence; each year, as part of the Arizona Supreme Court’s CourTools initiative, the appellate court publishes statistics regarding its own performance measured against key benchmarks. The FY2013 report has come out and it tells us what we suspected: the court appears to have reached equilibrium in handling its civil caseload and, barring radical change in case processing and/or Arizona appellate procedure, we should continue to expect most civil appeals to take at least a year to be resolved on direct appeal. Overall Time to Disposition The reference point for how long it takes Division One to decide an appellate case in a civil matter is 400 days. This is a historical benchmark based on data from 2008 approximating the number of days by which 75 percent of Arizona Court of Appeals Division One’s civil appeals had been decided in that fiscal year. In fiscal year 2012, Division One decided 81 percent of its civil cases within 400 days of the notice of appeal being filed. Last year, the court was slightly more efficient—moving 84 percent of its civil cases off its docket within 400 days. While many appeals filed in Arizona are resolved within a year, the CourTools report does not contain a metric for tracking complexity and time-to-disposition. We believe that cases that involve complex legal issues or a lengthy court record are much more likely to fall within the roughly 15 percent of cases that spend more than 400 days in Division One. Completion of Briefing to Decision After a civil appeal is docketed at the Court of Appeals, the clerk issues an order setting the briefing schedule. The written briefs and appendices, which are are prepared and filed by the parties, are not reviewed piecemeal. The appellate court does not start the hard work of analyzing the positions taken in the briefs, considering the legal authorities cited by the parties, and reviewing the relevant portions of the trial court record until all of the briefs have been filed and the case is “at issue.” For this reason, and because many cases are settled or otherwise resolved on procedural grounds before briefing is completed, we feel that the “at issue” to written decision statistic is more useful than overall time to disposition. In fiscal year 2012, 74 percent of Division One’s civil cases were decided within 225 days of the parties completing the briefing. That statistic remains the same for fiscal year 2013. Indeed, for the past few years, Division One has decided three out of four civil cases within eight months of completed briefing. That means, of course, that one out of every four civil cases takes longer. Under Advisement to Decision Another way to slice the data is to look at how long it takes for the Court of Appeals to render a decision once the case is “under advisement.” Even after the briefing is complete and the case is “at issue,” it will be some time before the three judges who will decide the appeal actually meet to hear the case – either with or without oral argument. And, only after the judges meet is the case taken “under advisement” and a member of the court officially assigned to provide a written decision. There is usually already a draft when the case is taken under advisement, but producing that written decision still takes time. We have seen written decisions issued in as little as a week and some that were not issued until more than a year after being taken under advisement. Both ends of the spectrum are possible. Nonetheless, Division One has been fairly consistent in deciding the vast majority of its cases within 120 days of when they were taken under advisement. In the past two fiscal years, Division One met that benchmark in 86 percent of its civil appeals. The previous fiscal year it was at 89 percent and the one before that was 85 percent. Mindset(s) The appellate process is deliberative and painstaking. The judges at the Court of Appeals are charged with taking the time necessary to understand the issues presented to them and producing thorough written decisions explaining the court’s reasoning. If you are going to pursue an appeal, it is helpful to adopt the same mindset. Otherwise, it is going to be a long year. Taylor C. Young is an AV Preeminent Peer Review Rated appellate lawyer and co-founder of Mandel Young, a Phoenix-based appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to-mid size law firms, in-house legal departments, and others ready access to top-notch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics. His musings can be found on Mandel Young’s appellate blog – www.myappellate.com and at www.mandelyoung.com.
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