By Hon. Jason Nemes


            One of the most frequent questions I am asked by attorneys preparing a motion for discretionary review is whether their case, if reviewed, is likely to be affirmed or reversed.  While it is difficult to predict particular cases, the statistics do allow for some useful generalizations.

            In 2010 the Kentucky Supreme Court rendered 58 opinions in civil cases that made it to the Court on discretionary review.[1]  43 of these 58 civil cases were reversed, which means that three-fourths of the Supreme Court’s discretionary civil docket results in at least a partial reversal.  The Court affirmed 15 Court of Appeals’ opinions.  Furthermore, of those 58 cases, nearly 20 involved a business versus a non-business; and of that subset of 20 cases the Supreme Court ruled in favor of the plaintiff 63 percent of the time.

The Court’s discretionary criminal docket yields similar results.  There were 33 such opinions, 22 of which were at least partially reversed.

All told, the Kentucky Supreme Court rendered 91 opinions in discretionary review cases.  Of those 91 cases, the Court of Appeals’ opinion was reversed in 65 of those cases.

Therefore, it appears that the Kentucky Supreme Court is exercising its discretion to review cases where it is much more likely than not that the justices believe the Court of Appeals reached the wrong result.

            A 74 percent reversal rate of the Supreme Court’s discretionary civil docket is a rather high clip.  However, this is less surprising when one considers that a handful of the cases that reached the Court were novel questions of law, which, by definition, made it difficult for the Court of Appeals to predict how the justices would have decided the question presented.  And this seemingly high rate of reversal may be explained by the Court’s internal mechanics. 

It is well known that it takes four justices (out of nine) for the United States Supreme Court to grant certiorari.  As such, less than a majority of the justices have the power to place a case on the Court’s docket.  By way of contrast, it takes a bare majority (four of seven) of justices of the Kentucky Supreme Court to grant discretionary review.  Consequently, when the Kentucky Supreme Court takes a case, that case already has a majority of the justices interested in reviewing that case.  This does not necessarily mean that a majority of justices are interested in reversing the case, but a tribunal is more likely to reverse a case it decides—by majority vote—to review.

Knowing this fact should enter the analysis of appellate attorneys in determining how to (indeed, whether to) approach an appeal.  For instance, a lawyer may wish to put more effort and thought into persuading the Court that her particular case is not appropriate for discretionary review.  To that end an advocate should argue (if the facts bear it out) that her case is of little interest to anyone not already a party.  Moreover, knowing that the chances of reversal are very high, an appellate attorney may decide to cross-appeal an issue they may otherwise have left undisturbed.  Or an advocate may wish to pose alternative arguments to give the Court something to fall back on.  Though not ideal, these additional strategies should be analyzed as a way to mitigate harm caused to one’s client by an outright reversal.

So the answer to the oft repeated question—Is the Supreme Court more likely to reverse my case now that it has decided to review it?—is yes.  The statistics indicate that the petitioner will win three out of every four cases reviewed on the Court’s discretion.

[1] These 58 cases are only cases in which the Supreme Court granted discretionary review from a Court of Appeals opinion, and do not include the few cases that were granted transfer, thereby skipping the Court of Appeals.

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