"Dead data walking"

Justice Raphael's latest in the DJ is titled Dead data walking about how a certain statistic is repeated in "dozens of California opinions." But are courts using this statistic, and facts asserted in opinions generally, correctly? The specific statistic at issue (about how many armed robberies result in death) "originated in a 44-year old" SCOTUS opinion. But there are at least three major problems with this statistic and its use--the most obvious being that stats like this change over time.

the use of this statistic can provoke thoughts about reliance upon empirical data in appellate cases. When an appellate court cites a statistic in a published opinion, that statistic becomes fair game for lawyers and judges to repeat indefinitely. Challenging such a statistic takes work and requires extra-record analysis, which may be impermissible or methodologically unreliable. Law professor Allison Orr Larsen has written on the general subject. In Factual Precedents, 162 U.Penn.L.Rev. 59 (2013), she discussed situations where the United States Supreme Court has cited facts, including statistics, that lower courts then relied on without further analysis. See, e.g., id. at 62 (statistic that a quarter of carpal tunnel cases resolve within a month without intervention). She has explored how factual assertions in Supreme Court opinions could be mistaken or one-sided. Larsen, Confronting Supreme Court Fact Finding, 98 Va.L.Rev. 1255 (2012).

And from dead data to a dead appeal, Law360 has Atty's Scheduling Error Dooms Appeal In AT&T Forfeiture Suit

And check out this decision re appellate sanctions for a frivolous appeal from 2/5.

Because this appeal is both objectively and subjectively frivolous, we exercise our authority to impose sanctions on husband and his attorneys, jointly and severally. ....

In addition to her costs on appeal, wife shall be awarded reasonable fees and costs, in an amount to be determined by the family court, against husband and his attorneys, jointly and severally. Husband’s attorneys and the clerk of this court are each ordered to forward a copy of this court’s opinion to the State Bar upon issuance of the remittitur.

On the AI sanctions front, don't miss this published one from 4/1 here.