You’ve lost a case in the North Carolina Court of Appeals, It was unanimous, 3-0. You are talking with your client about a Petition for Discretionary Review to the North Carolina Supreme Court.
What are your chances? Frankly, not very good at all. I took a look at the Supreme Court’s track record this year on Petitions for Discretionary Review. I counted 341 Petitions ruled upon on the five release dates so far this year. Of that number, 319 were denied, and 22 were allowed. In overall percentage terms, 94% were denied.
The numbers break a little better for civil Petitions as opposed to criminal Petitions. There were 180 criminal Petitions, of which only 5 were granted. That’s less than 3%. There were 161 civil Petitions, of which 17 were granted. The chances on a civil Petition, overall, were slightly better than 10%, but eight of those were Petitions where there was a dissent in the Court of Appeals. When you take those out of the mix because the Supreme Court was going to take the appeal as of right, the winning percentage is about 6%.
I haven’t subjected these numbers to actuarial review, but they are accurate enough for me to say that you might be better off looking for 4-leaf clovers than asking the Supreme Court to take your case on a discretionary basis. The Court of Appeals, for all practical purposes, is the final level of review for a civil case in North Carolina.
Things are quite different if there is a dissenting opinion in the Court of Appeals and you ask the Supreme Court through a Petition for Discretionary Review to consider additional issues. Virtually all of those Petitions were granted.
If you are proceeding ahead with a Petition despite the long odds, and are looking for a winning Petition to get some guidance in drafting your own, at the bottom of this post there are links to five of the Petitions allowed this year in civil cases.