It is generally understood that federal appellate courts do not often reverse or remand, but the actual statistics are not as well-known. The yearly Judicial Business Report, put out by the Administrative Office, gives the statistics for every circuit. In 2009, the Sixth Circuit decided 590 appeals in private civil appeals on the merits of the case (this does not include criminal, bankruptcy, administrative, or cases involving the government). Of those cases decided on the merits, 85% resulted in a win for the appellee, either affirmance (83%) or dismissal (2%) – only 15% were reversed or remanded. (Another 550 private civil cases were also dismissed for lack of jurisdiction or other procedural reasons, showing there is still considerable confusion about what orders and judgments can be appealed.)
The Sixth Circuit’s numbers are just under the 16% average for merits decisions in the federal courts of appeal. The Ninth Circuit has the highest reversal rate for private civil appellants, at 18%, while the D.C. Circuit has by far the lowest rate, at 7%. Most circuits are between 13-16%.
Because of those long odds, appeals must be carefully and passionately written and argued. Judge Aldisert of the Third Circuit has written that “more than ever, the appellant’s brief takes on a vital and decisive role.” The brief must immediately convince the judge that the case presents a serious reversible error – that yours is the one appeal on the judge’s desk that requires reversal. Clerking on the Third Circuit, I learned that many judges felt that the great majority of appeals did not come anywhere close to presenting reversible error. An appellant’s brief cannot just show where the district court went wrong – it must cry out for reversal.