Reversal Rates In The Sixth Circuit And Elsewhere
This post provides the latest statistics for a question we are frequently asked: what is the chance of obtaining a reversal on appeal? Private civil cases see the most reversals of any category at 13.4%, followed by appeals in bankruptcy and civil appeals involving the United States at 12.5%. In other words, the circuit reverses about once for every seven or eight cases involving private plaintiffs. If you are appealing a criminal conviction, or otherwise in prison, your chances of winning anything are much lower. This year, the circuit reversed about 5% of criminal cases, which is unusually low–the circuit’s average is around 10%. Prisoners and habeas plaintiffs (who often labor under difficult standards of review) prevail in one-in-twelve to one-in-twenty appeals.
Over the years, the Sixth Circuit’s reversal rates have been relatively steady, and its numbers similar to the reversal rates in most other circuits. That said, two circuits consistently reverse significantly less than average. The Eighth Circuit’s overall reversal rate usually hovers around 5%, and its reversal rate in criminal cases is usually about 3%–both are much less than any other circuit. These very low reversal rates have been in place for decades. The Fifth Circuit usually has the second least reversals. That’s tough luck for appellants in those circuits. (Note that private civil cases and bankruptcy can be exceptions; both circuits will often reverse those cases about as often as their sister circuits.)
What could account for these large differences? Given that the Eighth and Fifth circuits reverse at near-normal rates when private parties are on both sides, the explanation could well be that circuit judges in the Eighth and Fifth Circuits are more deferential to state and federal governments than circuit judges elsewhere. Whatever the reason, the effects are consistent and have a big impact on both litigants and the development of the law in those circuits—litigants going up against the government on appeal should expect about half the chances of success that they would expect elsewhere.
