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self-study / Appellate Practice

Delay in our Courts of Appeal

Jenkins kirk web

Kirk C. Jenkins

Partner, Horvitz & Levy LLP


Harvard Law School

Kirk is a certified specialist in appellate law.

One of the most frequent subjects of discussion in recent years for those of us who write often about appellate decision-making is the subject of delay. Appeals take too long, people argue; there should be a time limit within which an appeal must be decided.

It might seem as if this discussion is a recent phenomenon. It's not. The American Bar Association adopted time standards for criminal trials in the 1960s, and for civil cases in the 1970s. The ABA suggested lag time benchmarks for state supreme courts and intermediate appellate courts in 1977, amending the standards in 1987 and 1994. In 2014, the Court Management Committee of the Conference of Chief Justices and the Conference of State Court Administrators took another look at the problem, with assistance from the Conference of Chief Judges of the State Courts of Appeal, the National Conference of Appellate Court Clerks and the ABA. The 2014 project set the following standards:

1. Seventy-five percent of civil and criminal petitions for review should be either granted or denied within 150 days, and 95 percent should be granted or denied in 180 days;

2. Seventy-five percent of cases should proceed from grant of review to final disposition within a further 180 days, and 95 percent should be finished in a further 240 days.

So worst case, for the vast majority of cases (in the project's view): Nearly all appeals should be resolved in 360 days -- just short of a year.

In 2016, the issue of appellate delay came to the fore again as California voters adopted Proposition 66, which decreed that all death penalty appeals and initial state habeas proceedings should be decided within five years. This seemed like a considerable hill to climb, considering that in 2016, the time from appointment of counsel to oral argument averaged 4,496.08 days, or 12.32 years. In 2017, the average lag time from appointment to oral argument was 3,903.73 days, or 10.7 years. The California Supreme Court ultimately upheld Proposition 66, but only after holding that the five-year time limit was "directive" rather than mandatory. In dissent, Justice Mariano-Florentino Cuéllar wrote that, "by reimagining the initiative as nothing more than an earnest exhortation calling on courts to consider dialing up the speed of death penalty adjudication, the majority upholds something quite different from the initiative considered and enacted by the electorate."

Appellate lag times do seem to be edging up in California, both in criminal and civil cases. In 2000, the average time from appointment of counsel to oral argument in a California death penalty case was 2,747.2 days -- just over seven and a half years. By 2008, that number had risen to 3,194.12 days. In 2012, the average lag time has risen to 3,656.48 days.

Criminal cases -- both death penalty and non-death -- averaged 996.16 days from initiation to oral argument in 1993. By 2000, that was up only a bit, to 1,118.93 days from initiation to argument. By 2005, criminal cases were averaging 1,689.57 days from initiation to argument, and that number remained relatively flat for the seven years that followed. In 2013, criminal cases averaged 1,763.08 days from initiation to argument. In 2014, that number was up to 2,014.65 days -- five and a half years. The Supreme Court cut the lag time to 1,800.23 days in 2015, but it was up to 2,420.85 days in 2016, before dropping to 1,380.29 days -- 3.78 years -- in 2017.

Civil appeals averaged 323.41 days from grant to oral argument -- almost double the ABA's guideline -- in 1993. By 2000, the number was up to 476.76 days from grant of review to argument (and a further 76.35 days from argument to decision). By 2005, the lag time from grant to argument was up to 532.78 days. Within five years, it was up another month to 562.31 days. Since 2014, the average lag time from grant to argument has exceeded 600 days every year.

But of course, these numbers are somewhat misleading. An appellate case consists of several stages, and the lag time can be measured for each -- as the ABA recognized when it set specific guideposts for each step of a case. If we notice a significant change in any stage of civil or criminal cases, that might pinpoint the cause of delay on appeal.

On the civil side, the time from filing of a petition for review to grant of review at the Supreme Court has been comparatively constant in recent years, ranging from a low of 54.82 days (2011) to a high of 70.66 days (2010). The lag time from grant of review to the filing of the opening brief is comparatively short as well -- a low of 54.59 days in 2015 and a high of 70.5 days in 2017. The parties' briefing of civil cases takes an average of three to four months -- from 85.36 days in 2011 to 123.3 days in 2016.

The time from a civil reply brief to the final amicus or supplemental brief has varied widely across the 10 years I studied, from a low of 81.08 days in 2017 to a high of 268.35 days in 2012. The Supreme Court's decisional process -- the lag time from the filing of the last brief to oral argument -- has been taking much longer than the ABA guidelines, and has been increasing in recent years. In 2008, civil litigants waited 279.68 days from the completion of briefing to argument. In 2016, the lag time was just short of a year -- 355.06 days. Last year, it was over a year -- 385.48 days.

On the criminal side of the docket, the lag time from the filing of a petition for review to the granting of the petition was comparable to the civil docket -- typically, between 55 and 65 days. In death penalty cases, the certification and filing of the record on appeal was a significant source of delay: The average time between appointment of counsel and filing of the record ranged from 1,204.04 days (2009) to 1,798.48 days (2016). The wait to file the opening brief after appointment of counsel was substantial as well, averaging between 700 and 800 days in most years.

Briefing has proceeded more slowly on the criminal side. In 2009, 319.36 days elapsed from the filing of the opening brief to the reply brief. By 2016, that number had risen to 478.92 days, before falling in 2017 to 322.64 days. Although amicus and supplemental briefs are far less common on the criminal side than they are in civil cases, they are another source of delay in the criminal docket. In 2009, an average of 316.03 days elapsed from the reply brief to the last amicus or supplemental brief. By 2012, that time was up to 460.58 days, before falling to 287 days in 2016 and only 134.86 days in 2017. The decisional process has taken far longer on the criminal side than on the civil too, mostly as a result of the death penalty cases. For the years 2010, 2012-2013 and 2015-2017, the lag time from the end of briefing to the decision was between six and seven times on the criminal side what it was on the civil side. For the years 2011 and 2014, the gap between initiation and argument rose to more than nine times as long on the criminal side as on the civil side.

The most common response to statistics like this has been the blunt instrument -- simply set a time-under-submission goal. The California Constitution does this in Article VI, Section 19, requiring that all cases be decided within 90 days of their submission to the court. The result of this requirement has been that the decisional process is almost entirely front-loaded, as the appellate courts generally do not set oral argument until there is a tentative decision. Proposition 66 was another example -- simply require that appeals and initial habeas petitions be decided in five years, notwithstanding the fact that death penalty cases were averaging 10 to 12 years from appointment of counsel to oral argument.

But the blunt instrument approach assumes a proposition that has been comparatively unexamined in all the years that writers have been analyzing appellate delay, in California and elsewhere. Simply naming a number and requiring that all cases be decided within that time implicitly assumes that speed is the preeminent goal in appellate decision-making. But surely that is not so; just results and the reasoned and rational development of the civil and criminal common law should rank higher than mere speed. Otherwise, we would see much more often what is done once in a great while in cases of true emergency, with an appeal being argued and decided within hours or days of the initial decision.

At the Court of Appeal level, one source of significant delay is the preparation of appellate records -- both the clerk's transcript, when the appellant elects one, and the reporter's transcript. But the clerk's offices are operating with more budget constraints than ever, and most court reporters carry heavy caseloads. Is a substantially shorter deadline really an attainable goal without a substantial budget infusion? In California, many writers have suggested that California could become more strict in its historically generous approach to granting extensions of briefing deadlines. But there is little evidence that lawyers are contributing all that much to appellate lag times. At the Supreme Court, opening briefs have typically been filed 65-75 days after the grant of review. The lag time from opening brief to reply has often been between 100 and 120 days, only double what the Rules of Court call for, and there is no evidence that briefing contributes much more to delay at the Court of Appeal level. And more importantly -- where is the objective evidence that the quality of briefing would remain the same if time limits were significantly shortened?

Another possible issue at the Supreme Court level is the court's granting of most petitions for leave to file amicus curiae briefs. The California Supreme Court's policy towards amicus briefs is more comparable to the U.S. Supreme Court than to other state supreme courts, which are generally somewhat more strict about accepting additional briefs. Overall, since 2000, the California Supreme Court has accepted an average of between three and five amicus briefs for every civil case.

But could the Supreme Court become more strict about the filing of amicus briefs without negatively impacting the quality of its decisions? Not only is there no evidence that such a move would be cost-free in terms of the court's decision making, in fact, there is significant evidence that these briefs assist with the decisional process. Although 2013 and 2016 were narrow outliers, in every other year since 2011, there have been significantly more amicus briefs filed in cases ultimately decided by the Supreme Court over one or more dissents than in unanimous decisions -- in 2017, an average of six amicus briefs were filed in non-unanimous cases, and only 3.28 in unanimous ones. In other words, the harder cases tend to attract more amicus briefs -- which is exactly as it should be.

Even more compelling, winning petitioners -- those who succeed in persuading the Supreme Court to reverse the Court of Appeal -- have nearly always averaged more amicus briefs supporting them in recent years than petitioners who lost received. In 2014, winning petitioners averaged 3.11 amicus briefs supporting them to 2.8 for petitioners who lost. In 2015, winning petitioners averaged 2.35 briefs to only 0.78 for losing petitioners. In 2016, winning petitioners averaged 2.37 amicus briefs to 1.71 for losing parties, and last year, winners outpaced losers 2.29 to 1.83.

In most recent years, the segment of civil cases which has taken the longest time has been the next-to-last one, from the end of briefing to the oral argument: in California, the decisional process. Over the past 10 years, civil cases have averaged between eight and 12 months from the filing of the last brief to oral argument, and criminal cases have frequently averaged 14 to 19 months.

But we return to the same question: Where is the objective evidence that the decisional process could be substantially accelerated without negatively impacting the Supreme Court's work product -- i.e., its decisions? Of course, a substantial infusion of money and additional staff would likely enable the appellate courts to speed up their work at least somewhat, but critics of appellate delay seldom seem to couple their critiques with proposals for significant increases in the courts' budget.

Although budget cuts in recent years explain part of the increase in appellate delay, an even bigger driver, I suspect, is the evolution of the courts' workload. In recent years, the U.S. Supreme Court has made arbitration agreements much easier to enforce, and as a result, many cases are winding up in the alternative dispute resolution system rather than the courts. Simply put, the straightforward cases either get settled or wind up in arbitration. Particularly in California, with a comparatively heavy load of regulatory disputes, even though caseloads have drifted down a bit in absolute terms recently, the appellate courts are grappling with more complex cases, with more money at stake, than ever before. Although some improvement might be possible at the margins, under the circumstances, the appellate courts' taking the time to get counsel's assistance through briefing and then get these difficult cases right should be applauded.


Ben Armistead

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