How Data Can Drive Better Litigation Decisions: Where to File and What to Expect

By Adam J. Feldman • October 17, 2023

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Guest Post by Adam J. Feldman, editor of Empirical SCOTUS

Sometimes litigants do not have freedom on where to file cases. Venue is often dictated by where an action occurs leading to a complaint.  In situations where litigants have some flexibility on where to file though, there is room for strategic litigation decisions.  Even when they do not, statistics help them account for the possibility that their decisions will withstand an appeal. Below are statistics related to federal appeals court decisions on district court cases filed in the 12-month period ending June 30, 2023. 1

One simple metric of interest, total appeals terminated, reflects the relative caseloads of the 12 geographic circuits along with the subject matter-specific Federal Circuit. 2

The number of cases by circuit roughly parallels the circuit size so that those circuits encompassing larger populations have relatively more cases filed than those circuits covering smaller territories. While the graph above gives a general sense of the landscape of federal appeals, a more helpful metric for litigation planning is how inundated judges in the circuits are by their caseloads. The next graph shows the count of terminated cases by active judges for the same period of time.

Here we see that even though the Ninth Circuit is the largest geographic circuit, it only has the fifth highest rate of terminated cases by a judge.  The number of cases terminated by a judge in the Ninth Circuit is on average 253 fewer than those terminated by a judge in the Eighth Circuit.

Aside from the Federal Circuit which hears appeals by case type rather than by location of the appeal, the circuits primarily hear cases surrounding similar issues. It is therefore helpful to know the circuit’s breakdown by substantive case types focusing on the percentage of each case type within each circuit. 

The Ninth and D.C. Circuits for instance heard the largest percentages of administrative appeals. Ninth Circuit administrative appeals typically relate to immigration cases while executive agency cases are primarily conducted within the D.C. Circuit.  The First and Fifth Circuits heard the highest percentage of private civil cases, and the D.C. Circuit heard a much greater proportion of U.S. civil appeals than any of the other circuits.

Two other points that may be particularly helpful for litigants are reversal rates in the various circuits and more granular data focusing on particular issues. Although the U.S. Courts’ statistics do not break cases down by specific issue areas, we can remove cases from several of the case types including criminal, that do not involve civil litigants.  Based on these two items, the next graph shows reversal rates for private civil cases (and patent or trademark decisions from the Federal Circuit) over the 12-month period ending June 30, 2023.

The circuits’ reversal rates at the top of the graph at around 15% are markedly different from those at the bottom of the graph which are around 10% and below.

Bankruptcy cases are substantively different from private civil cases, so it makes sense to look at these counts and reversal rates in isolation.  Certain circuits did not review a statistically significant number of bankruptcy decisions so their reversal rates are not shown.

The Third and Eleventh Circuits reversal rates in bankruptcy cases far exceed those for the other circuits. Looking at these numbers as distinct from the private civil cases also prevents either type of decision from throwing off the reversal rates from the other type.

Statistical information like this can help paint a clearer picture of a litigation landscape. Litigants can use it to make strategic decisions to the extent that they have flexibility of where to file. These statistics also provide litigants with more clarity for their expectations of likelihood that a trial court decision will be overturned.  This can also help companies with regular litigation before one of more judicial district(s) plan for whether or not to appeal and for what to expect from an appeal.  With the right set of data and tools, one can further break these numbers down by specific judge, more particular issues, or within other dimensions. 

Adam Feldman is the editor of Empirical SCOTUS , a blog that conducts data analysis of the United States Supreme Court, and the Principal of Optimized Legal, a legal data/statistical consultancy. He is also an adjunct professor of political science and public law at California State University, Northridge. You can reach Adam for specific data and analyses related to your own litigation questions in this and other areas.

1 Data for analyses below was provided by Judicial Business Statistics from USCourts.gov. All data is for geographic circuit courts and does not include the Federal Circuit Court of Appeals. The data relate to judicial business conducted between the end of June 2022 and June 2023.

2 DC refers to the D.C. Circuit Court of Appeals; FC refers to the Federal Circuit Court of Appeals.

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