appellate law

A few weeks ago, an appellate attorney told me that the Connecticut Supreme Court has been taking longer to issue its decisions, but that the court's jurisprudence has become more scholarly. That conversation led me to look into the appellate-court process for the Connecticut Law Tribune, including examining the speed with which Connecticut Supreme Court handles its cases. You can look at the data behind the story here: 2013-2014SupremeCourtTerm.xlsx.

The story:

It may be the most comment lament of litigants when they appeal their cases: "When will the court decide my case?"

Often, appellate advocates wonder the same thing. "There is a general sense that opinions take too long to come out," says Linda Morkan, counsel at Robinson & Cole, who is cochairwoman of the Connecticut Bar Association's appellate advocacy section but emphasized she was speaking in her individual capacity.

At the same time, many appellate lawyers say they understand that the court is tasked with digging into difficult legal matters and coming up with decisions that set precedent. There is ample praise for the depth of scholarship among the current seven justices.

Chief Justice Chase Rogers said the court's goal is to work as efficiently as possible to give anxious parties a resolution to their disputes. But some cases take longer to resolve if there are multiple legal issues in need of examination. Sometimes decisions change, as what was initially the majority becomes the dissent. Moreover, decisions won't be released until all the justices are satisfied. "The bottom line is we're a court of last resort," Rogers says.

Given the interest in the matter among many Connecticut lawyers, the Law Tribune took an in-depth look at some statistics regarding the timing of decisions reached by the Supreme Court. Some may find it surprising that the current court isn't really any slower to release decisions than its recent predecessors.

Between 2005 and 2010, the average time between oral argument and the publication of decisions in the Supreme Court was 157 days, according to the Judicial Branch. Over the next three years, the average was 158 days.

During the 2013-14 term, which is officially drawing toward an end, the Supreme Court seems to have issued opinions faster than in the recent past, according to the Law Tribune's analysis. Of the 118 cases in which the justices have heard oral argument this term, 54 cases have been decided and it took 136 days on average for the court to issue decisions after oral argument. The shortest wait was 27 days and the longest 292 days.

There were still 64 cases pending as of Aug. 7, and it is unknown if any of those cases involve the type of factors that tend to delay the issuance of opinions.

At least three of those still-pending cases were heard last September—LaPointe v. Commission of Correction; Gilmore v. Pawn King; and Connecticut v. Carrion.

In contrast, the state Appellate Court took an average of 104 days after oral argument to release decisions between 2005 and 2010, according to the Judicial Branch. For the past three years, it has been 94 days.

In Connecticut, trial courts are required by law to issue their decisions within 120 days, and at least two Superior Court judges have been sanctioned in recent years for long-delayed decisions. Although some have suggested the Supreme Court adopt the same four-month deadline, Rogers said it's not workable. All sides deserve a full reading of the trial transcripts, which can be voluminous in cases with complex issues, she said. "You're not going to get a fair decision … covering all the issues in 120 days," Rogers said.

Pamela Meotti, the chief administrative officer for the Supreme Court, said the three staff offices that serve the appellate and the supreme courts are under the same imperative to be efficient. The clerk's office keeps the files and handles all communications with the parties and the public regarding cases. The staff attorney's office prepares summaries of pending cases, coordinates the court's preargument conference program that encourages settlement, and tracks issues that are coming before the court more frequently. The reporter's office checks the facts in cases, drafts the headnotes and publishes the cases when they are ready.

"Both courts aim to release the opinions as quickly as possible with the overarching goal that the opinions are decided in the right way," Meotti said.

Brendon Levesque, a partner at Horton, Shields & Knox whose practice includes appellate law, said that he tells clients it will typically take 18 months from filing their appeal to get to a decision, including taking three to six months for decisions to come out after oral argument. In fact, it takes a bit longer than that. Of the 54 cases decided so far in the term, it took 724 days on average—just shy of two years—between when the appeals were filed and the Supreme Court released its decision.

That time period can be affected by a number of factors. For example, some cases come to the Supreme Court after Appellate Court review. And some come straight from the trial courts. Chief Appellate Judge Alexandra DiPentima said the court has a panel of judges that looks for cases that should be sent straight to the Supreme Court for review.

The chief justice also receives petitions for cases involving urgent matters of public interest, such as election law cases that have to be decided quickly. Other expedited matters include child protection cases. Otherwise, cases get put on a list as they become ready for Supreme Court review, and "we just go down the list" and schedule arguments, Rogers said.

Attorneys noted that the U.S. Court of Appeals for the Second Circuit uses an informal process to issue "unpublished" decisions that come out a matter of weeks after oral arguments. The decisions serve to resolve the disputes between the parties. More in-depth published opinions are issued later. Those are the decisions that will be cited by lawyers in future cases.

In Connecticut, appellate court decisions seem to be lengthier of late, said Robinson & Cole's Morkan. In her opinion, that's a positive development for several reasons. The added depth often offers more thorough reasoning by the court, which is important for the development of the law and public policy. And the added heft helps a litigant "believe that you have been heard and the court has understood the issues."

James Streeto, a veteran assistant Connecticut public defender who regularly appears in the appellate courts, said that earlier in his career decisions seem to have come out a little more quickly. He said he thinks the quality of appellate lawyering has improved and that the courts have responded with more scholarly opinions. All that takes more time, he said. "I'd rather have a result that is careful and scholarly … than have a quick decision that's wrong."

Still, Streeto has mixed feelings. On one hand, well-crafted opinions develop the law and may help many more people down the road. On the other hand, he is representing clients who are doing very long stints in prison and "the only thing that matters to your client is if it is affirmed or reversed. The client doesn't care if 40 pages of scholarly" analysis follows their loss, he said.•