Today's DJ offers
The last frontier of ADR: appellate mediation, by 1/2's retired
Justice Nace Ruvolo, who's now with JAMS. He makes the following points:
The latest Court Statistics Report (2017) published by the
California Judicial Council reveals what many laboring through the intermediate
state appellate process already experience: The median time for appeals from
notice of appeal to a filed opinion is 842 days with a range from 622 to more
than 1,200 days. Ironically, like the trial delays of the 1980s and 1990s that
drove litigants and lawyers to erect alternative dispute resolution processes
for lower court cases, so too appellate delay is contributing to the momentum
behind appellate mediation's growth.
Compounding the impact of appellate delay is the unique reality
that an appellant who appeals from an adverse monetary judgment will have to
pay 10 percent annualized post-judgment interest if the judgment is affirmed.
Thus, the time value of the judgment itself becomes relevant in comparing the
post-judgment interest rate to the rate of investment return available during
the pendency of the appeal, particularly when the process will not be completed
for two to four years.
As significant to the success of appellate mediation as any of
the above factors is the relatively high reversal rates for civil appeals
generally. For example, the most recent Judicial Council annual report reveals
reversal rates for civil appeals in 2013, 2014, and 2015 at 30 percent with
another 10 percent of judgments modified. These reversal rates are consistent
with my own experience at the 1st District Court of Appeal over more than two
decades.
Similar to the statistical conclusions reached in the 1st
District, the 3rd discovered that, in descending order, the settlement rates
were highest for appeals from court trial verdicts, followed by jury trial
judgments, and then motions for summary judgment. The lowest rate was in
appeals from judgments entered after demurrer.
Examining
settlement rates by area of substantive law involved, both courts have found
that probate and family law appeals, which almost always involve the
practicality of "wasting assets," and which often arrive at the
appellate level with the parties emotionally exhausted, enjoy the highest
settlement rates.
- Speaking of retired appellate judges, what's Judge Posner up to? Well, see: Posner brief accuses judge of laziness for copy-and-paste order
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