Most of the cases in the North Carolina Court of Appeals are decided without oral argument. In 2008, for example, the Court calendared oral argument in 175 cases, but ruled that it would decide 824 others without oral argument. These numbers, based on the Court’s calendars for 2008, mean that only about 17.5% of cases were called for oral argument. That percentage is comparable to numbers from the Court for 2005.
This no-hearing disposition is permitted by Rule 30(f)(2) of the Rules of Appellate Procedure, which provides that "[i]f all of the judges of the panel to which a pending appeal has been referred conclude that oral argument will not be of assistance to the Court, the case may be disposed of on record and briefs. Counsel will be notified not to appear for oral argument."
The Court issues 30(f) Notices in the substantial majority of the cases it decides. Can you draw any conclusions upon getting that Notice? Does it mean, for example, that the trial court was so obviously right that the Court of Appeals doesn’t need to hear the terrific argument you wanted to make? Or could it mean that the trial judge got it so painfully wrong that the appeals court doesn’t need to do anything more than read your brief to be persuaded?
Every case is certainly different, but I can provide you with some statistics that will give you a little bit of guidance. My wonderful and never complaining assistant Nancy and I ran the numbers for (1) every case in which a 30(f) Notice was issued during calendar year 2008 and (2) which was decided by the Court of Appeals by March 1, 2009.
There were 703 cases total (civil and criminal) in the group. Of that number, 499 were affirmed. That’s an overall affirmance percentage of 70% So, a broad generalization is that if you get a 30(f) notice, and you are the appellant, there’s only about a 30% chance of a reversal. And some of the reversals in our count might not be much of a win, because we counted any "affirmed in part and reversed in part" as a reversal. You’re certainly better off being the appellee, which is probably obvious anyway. (Another note: we counted appeals that were dismissed as having been affirmed).
If you are appealing a criminal case, your chances as the appellant are worse. We counted 309 criminal cases, of which 234 were affirmed. That’s a success rate for prosecutors of 76% in cases where the Court declines argument.
There probably aren’t many prosecutors reading this blog, so what about the civil cases standing alone? Overall, we counted 394 civil cases which were 30(f)’d. Of those, 265 were affirmed. That’s an affirmance rate of 67% overall.
What was the affirmance rate over the same time period for cases where the Court did hear oral argument? Higher or lower than the rate by which 30(f) cases are decided? I’ll follow up with that later this week. Call this the first blog cliffhanger.
As you are thinking about this information, don’t forget, as is often attributed to Mark Twain, "there are three kinds of lies: lies, damned lies, and statistics." That might be an apt thought to keep in mind with regard to this particular post.