The Court Statistics Project (CSP), after having analyzed several years of appellate court caseload data using the data collection model recommended in the State Court Guide to Statistical Reporting, has become aware of various court processes that differ from the assumptions made by the CSP staff and that may affect the manner in which appellate cases are being counted and compared across courts. In an effort to determine the extent of these variations in process, CSP staff requests that you review the appellate process flowchart and recommended counting rules provided here.
If the process in your court differs from those provided, or if you have a question about a process in your court and want to determine if it differs from the CSP counting rules, please contact Shauna Strickland at or 757-259-1511 to explain those processes. The CSP staff thanks you for your time in helping us to ensure that we are counting and comparing your caseloads correctly.
Examples of the process differences
- An appellate court with appeal by permission jurisdiction grants the request to review, counts the appeal by permission as disposed due to the granting of the review, and requires that the appellant file an appeal by right in order to continue their case. Both the appeal by permission and the appeal by right are counted within the court’s caseload. This practice may result in an inflated appeal by right caseload. Since it is possible that not all appellants that received permission to appeal go on to file an appeal by right case, the inflation may not be a one-to-one comparison (as it is in example #2 below), but those cases that are filed are double-counted as new cases.
- An appellate court with appeal by permission jurisdiction grants the request to review, counts the appeal by permission as disposed due to the granting of the review, and opens an appeal by right with a new case number which is then counted as a new case. Both the appeal by permission and the appeal by right are counted within the court’s caseload. This practice inflates the court’s appeal by right caseload by double counting cases in which permission to review was granted.
- All appeals are filed with the state’s court of last resort (COLR) and the cases are then determined to stay with the COLR or be transferred to the intermediate appellate court (IAC). The COLR includes all of the cases filed as part of their incoming caseload even though no or little work was done on the case at the COLR. This practice inflates the caseload of the court when compared to other COLRs.
Counting rules recommended by the State Court Guide to Statistical Reporting
Appeals of trial court cases, either by right or by permission: The filing of a notice of appeal, application for permission to appeal, or their functional equivalents are the documents that initiate an appeals case. These cases should be counted when the initiating document is filed with the appellate court clerk.
CSP commentary: It is assumed that an appeal begins with its filing and ends with its final disposition by the court. The CSP does not consider the granting of an appeal by permission to be a final disposition to the case since the case then follows the processes of an appeal by right. The first two examples of process differences illustrate the affect that counting the review of an application for permission to appeal as a separate case from the appeal by right has on the caseload of the court. The resulting double counts make the appeal by right caseloads incomparable to courts that do not have this practice. While it can be argued that the cases in example #1 really should be counted as appeals by right since the appellant filed the requisite notice of appeal, the fact that other courts do not have a similar practice still makes the appeal by right caseload incomparable to other courts.
The CSP does recognize the transfer of a case to another court as a final disposition of the case in the court that is making the transfer. In example #3, the COLR would count all of the transferred cases as disposed, and the IAC would count all cases that it received through transfer as new cases. The counting-related issue in this example is the inflation of the number of incoming cases to the COLR. The process dictates that all cases be filed with the COLR, even if the court does no or little work on the case. This makes the caseload of the COLR incomparable to other courts that do not have this “deflective” structure. There are courts in which the case must reach a specified point (e.g., must complete briefing) before a transfer is made and it may be argued that those cases are legitimately within the caseload of the COLR. However, this practice still makes the caseload incomparable to courts that do not have this process.
Original proceedings and other appellate matters: The filing of the application for original jurisdiction, or its functional equivalent, is the document that initiates an original proceeding case. These cases should be counted when the initiating document is filed with the appellate court clerk.
CSP commentary: The CSP is aware of several original proceeding case types that may be causing confusion. This is due to the fact that the name of these case types is similar to cases that should either be counted as appeals or, in one instance, shouldn’t be counted at all. The original proceeding case types that could include cases that should be counted as appeals are writs, both habeas corpus writs and writs of certiorari, and administrative agency cases. First, the writs of habeas corpus. A writ of habeas corpus that is filed in the appellate court is an original proceeding case. However, an appeal of a lower court’s decision on a writ of habeas corpus should be counted in the appeal by right or appeal by permission caseload, as appropriate. Additionally, the Guide defines a writ of habeas corpus as a writ that challenges the legality of detention when no other avenues for a remedy are available so these cases should be considered part of the criminal caseload and reported in the Criminal-Other case type. Second are the writs of certiorari. For national reporting purposes, the writs of certiorari that request review of a lower court or administrative agency decision should be counted as appeals by permission and reported in the appropriate criminal, civil, or administrative agency case type. Lastly, appeals of administrative agency decisions. While the CSP recognizes that an appeal that comes directly from an administrative agency may be considered on original proceeding of the appellate court, for the purposes of national reporting all administrative agency cases should be counted as appeals, in the appeal by right or appeal by permission caseload, as appropriate.
The original proceeding case type that may include cases that should not be counted at all is that of bar admission. A bar admission case should only be counted if there is a dispute regarding an attorney’s admission to the bar. The number of attorneys that are admitted to the bar should not be included in the count of original proceeding bar admission cases.