Predicting appellate outcomes based on the panel

Thanks for reading another installment of this Exceptionally Appealing practitioner column. Presumably this isn't your first such reading, and hopefully won't be your last. But practitioner columns--no matter how practical or amusing--are probably not why you subscribe to the Daily Journal. Presumably what's more important is legal news, which also is often useful or interesting. But let's put aside any pretense that your devotion to this newspaper is for the actual news or advice columns: The truth is that you're really here for the judicial profiles.

Nearly every issue of this paper features a judicial profile on the front page. These are most likely to be scrutinized and saved by litigators. The reason for this is obvious: Lawyers (and clients) typically want to know all they can about who will be deciding their case. This desire exceeds idle curiosity and arises from a deep-seated conviction that knowing about judges provides insight into how they may evaluate issues and ultimately rule. This is why your email inbox at the law firm and from your bar group is inundated with emails inquiring "does anyone have info on judge X?"

Is gathering intelligence on judges really that useful? In a platonically perfect world, it should not matter who the judges are, because the law and facts drive the outcome, and judges are not supposed to inject anything personally related to themselves into their decision-making. Indeed, judges are theoretically fungible, wearing the same black robes and engaging in the same enterprise of neutrally and fairly hearing all arguments and ruling, again, as the law and facts dictate. And yet while it may be true that for many cases, it may not matter who's doing the judging because the outcome is clearly mandated (again, by the facts, the law, or the governing appellate standard of review), it is also well understood that many cases are hard to decide, could go either way, and require explorations into unresolved or gray areas of the law.

Furthermore, personal experience teaches us (quickly and decisively) that we do not live in an ideal world. We must acknowledge that for all their professionalism and neutral detachment, judges are people. And all people are influenced, at the very least unconsciously, to some degree or another, by their own backgrounds. Hence the popularity and prevalence of the judicial profile/interview column in most legal periodicals.

So, taking it as a given that judicial background is amorphously "important," what are the significant details a lawyer should consider? Gender, age, race, religion, educational background, practice experience, and myriad other factors are often researched and weighed. But is there any way to tell which, if any, of these actually matters? Two recent law review articles shed light on this question.

In "Judicial Backgrounds Influence the Standard of Review," 55:1 Univ. of the Pacific Law Review 1 (Nov. 2023), Judge Kira Klatchko and Professor Quinn Keefer explore various facets of the personal backgrounds of appellate justices, searching for statistically significant conclusions. They use a sample universe of 500 randomly selected California Court of Appeal decisions (published and unpublished), and drill down to specific issues within those decisions. Id. at 1, 11, 14-15. Using biographical data on the justices (collected from DJ profiles and official bios), they analyze background traits that could be "objectively categorized and verified," such as gender, political affiliation, prior professional legal experience, length of time on the trial court bench, and other features. Id. at. 16. From all these categories, they conclude that political party affiliation, gender, and trial court experience had no significant impact on the selection and application of the standard of review. Id. at 18. (We pause here to express an obvious but implicit point: The selection of the standard of review on appeal is crucial to the outcome of an appeal.)

According to this study, only one factor exhibited a statistically significant impact on selecting the standard of review: the type of prior professional legal experience of the panel judges. In short, whether a justice's practice background is civil or criminal influences the selection of the standard of review. The authors "hypothesize that the collective training and experience of a panel in civil or criminal law significantly shapes [the panel's] analogic reasoning, i.e., their mental model." Id. at 2, 5.

Specifically, they observed that "standards of review are unevenly applied" and that "panels of jurists with majority civil law experience prior to assuming the bench are most likely overall to apply the de novo standard of review; meaning they are least likely to afford deference to trial court decisions even where they have the option to do so." Id. at 4-5, 20. In particular, a panel of "civil law only" majority background panels are, when confronted with "dynamic issues" (i.e., where the panel has discretion to choose a standard of review), 22% more likely to choose a de novo standard of review, as opposed to an "other background" panel. Id. at 17. The article contains other data-crunching to support the conclusion that "judicial background impacts analytical outcomes, measured by selection of the standard of review, and also ultimate outcomes measured by reversal rates" such that "civil law only" background panels are "most likely overall to apply the de novo standard of review," and "criminal law only" panels are "least likely overall to review for abuse of discretion, and "other background" panels are, overall, "least likely of all panels to reverse issues." Id. at 20-21.

The second recent article of note on this topic is Harvard Law School Professor Alma Cohen's "The Pervasive Influence of Political Composition on Circuit Court Decisions,"(Harvard Discussion Paper No. 1109, Feb. 2024). This paper begins by reciting how on the federal side of predicting intermediate appellate court rulings, there has been a "long-standing and heated debate" about when, and to what extent, the decisions of judges appointed by Democratic or Republication presidents systematically differ. Id. at 1. One view, of course, is that party affiliation of circuit court judges is irrelevant to the outcomes of most cases. Id. at 1-2 (citing articles). Another view, resting on empirical research, has documented "party effects" in cases involving certain areas, e.g., civil rights, free speech, labor relations, criminal appeals, abortion, affirmative action, capital punishment, and sex discrimination. Id. at 2 (citing articles).

Professor Cohen's piece is the latest entry into this thicket--i.e., investigating "the extent to which the political affiliations of circuit court judges can help predict case outcomes"--and it stands out by using a "novel" and "much larger and more comprehensive" dataset than that used by earlier authors--a dataset of about 670,000 published and unpublished 3-judge circuit court decisions from 1985 to 2020 (about 480 individual judges). Id. at 1, 4, 15-16.

Cohen concludes that "political affiliations of panel judges can help predict outcomes in a broad set of cases that together represent over 90% of circuit court cases"--specifically that "panels with more Democratic judges are more likely than those with Republican judges to reach a decision that favors the individual party" who is often "perceived by judges to be the weaker party." Id. at 5. (Note that there is significant literature finding that "Litigation is structurally biased against weak parties." Id. at 18.) In standard of review terms, "having more Democratic judges on the panel increases the odds of the panel intervening in, rather than deferring to, the district court decision." Id. at 6-7.

The association between Democratic judges and "'Pro-weak' outcomes ... is not only highly statistically significant but also meaningful in magnitude." Id. at 6. Indeed, "switching from an all-Republican panel to an all-Democratic panel is associates with an increase of 55% in the baseline odds of a Pro-weak outcome." Ibid. Cohen also concludes that "a lone Republican judge on a panel with two Democratic judges has a stronger 'moderating' effect on the panel majority than does a lone Democrat on a panel with two Republican judges." Id. at 7. Of course, Cohen is careful to emphasize that particular decisions in any given case "cannot be predicted with certainly," but notes that based on her work, it is fair to conclude that political affiliations can "significantly help assess the odds of particular outcomes." Id. at 8.

Practitioners are not going to be shocked to hear that more liberal federal appellate panels are more favorably inclined toward individuals/the weak party as against institutional/strong parties. Savvy appellate practitioners have long been running that analysis when the Ninth Circuit discloses the identity of panel judges the week before argument. Thus, the impressive work done by Cohen using her enormous dataset merely confirms what lawyers had always known anecdotally, but could not necessarily prove numerically. The Klatchko/Quinn article is noteworthy both for concluding what factors are not statistically significant and for highlighting the practice-background factor as statistically meaningful. Practitioners are still stuck with whatever panel they draw regardless, but everyone appreciates being able to at least attempt to predict what is likely to happen and why. These recent studies provide appellate practitioners with new tools for prognosticating.