In Custodian of Records v. State (2004), the Wisconsin Supreme Court cautioned that the “power wielded by the government is considerable,” creating “a potential for infringing on Fourth Amendment and other constitutional rights.”  This was not a perfunctory observation buried in an analysis of other issues.  It followed a six-page discussion under the heading “Fourth Amendment principles,” crafted to support the decision’s conclusion that the State’s quest for evidence of criminal activity was “unreasonable” in the case at bar.  Not only that, the majority opinion saw fit to marshal its Fourth-Amendment arguments despite the fact that neither of the contending parties even mentioned the amendment in their briefs.

Were this not enough to encourage nascent criminal-defense lawyers to feature Fourth-Amendment arguments wherever possible, any remaining doubt might have crumbled upon learning the identity of the decision’s author—Justice Roggensack, one of the court’s most conservative members.  If even she saw fit to rely so heavily on the Fourth Amendment to shield citizens from an aggressive search by the state, surely the court would approve Fourth Amendment protections in other cases as well.  And yet, a perusal of the court’s decisions over the past nineteen terms (1995-96 through 2013-14)[1] suggests that few arguments have less chance of success than appeals invoking the Fourth Amendment.

During this 19-term period, the court heard 81 cases in which the Fourth Amendment generated at least one of the issues presented, and in only 10% of these cases did the court rule favorably on the defendants’ Fourth-Amendment arguments.  In the most recent six terms (2008-9 through 2013-14), during which the court’s current members have all served together, this figure dropped to 7% (2 “favorable” rulings out of a total of 30 Fourth-Amendment cases).  As one might expect, Fourth-Amendment appeals fared better during the four terms in which Justice Butler joined the court (2004-5 through 2007-8), but even here the “success” rate was only 17% (2 out of 12 cases)—and over the preceding 9 terms (1995-96 through 2003-4) it was only 10% (4 out of 39 cases).

To appreciate how low these percentages are, consider the “success” rates in criminal cases of all types (Fourth-Amendment and all other criminal cases taken together).  Over our 19-term period, the court heard 449 criminal cases, of which 25% (114 cases) resulted in decisions favorable to the defendants—fully two and a half times the 10% “favorable” rate for Fourth Amendment arguments alone.  Of the 120 criminal cases heard during the six most recent terms, 13% (16 cases) yielded decisions that favored defendants—nearly twice the 7% rate of “favorable” outcomes for Fourth-Amendment appeals over the same period.  This information appears in Table 1, along with comparable figures for the “Butler years” and the preceding 9 terms, all of which suggest that cases relying on Fourth-Amendment arguments faced a considerably stiffer challenge than criminal cases generally.[2]

Table 1

Terms	% of all criminal cases resulting in favorable rulings for defendants	% of Fourth-Amendment cases resulting in favorable rulings
2008-9 through 2013-14	13% (16/120)	7% (2/30)
2004-5 through 2007-8	26% (20/77)	17% (2/12)
1995-96 through 2003-4	30% (77/254)	10% (4/39)
Total for all 19 terms	25% (114/449)	10% (8/81)

Just as dramatic is the difference in voting tendencies among individual justices.  For instance, Table 2 indicates that Justices Abrahamson, Butler, and Bradley accepted Fourth-Amendment arguments in over 60% of their votes.  The fact that only 17% of Fourth-Amendment decisions favored defendants during Justice Butler’s tenure demonstrates how wide the gulf was between these three justices and the other members of the court on this issue.

Regarding the current justices, it is interesting to note that Justice Prosser, often labeled a conservative, voted in favor of Fourth-Amendment arguments at two and a half times the rate of Justice Crooks, more commonly characterized as a “swing vote” than a conservative in the press.  Finally, the gap between Justices Abrahamson and Bradley on the one hand (accepting 72% and 63% of Fourth-Amendment arguments, respectively) and Justices Ziegler (6%), Gableman (3%), and Roggensack (2%) is enormous.  I do not recall any other issue in previous SCOWstats posts where the difference in voting rates between current “liberal” and “conservative” justices has been so stark.

Table 2[3]

Justices	% of cases in which individual justices favored the Fourth Amendment arguments presented by defendants (1995-96 through 2013-14)
Abrahamson	72% (58/81)
Butler	67% (8/12)
Bradley	63% (50/80)
Bablitch	33% (12/36)
Geske	20% (2/10)
Prosser	18% (12/68)
Sykes	8% (2/25)
Steinmetz	8% (1/13)
Crooks	7% (5/76)
Ziegler	6% (2/35)
Wilcox	4% (2/46)
Gableman	3% (1/30)
Roggensack	2% (1/44)

Given a judicial climate so inhospitable to Fourth-Amendment arguments,[4] how should one explain the court’s hearty endorsement of Fourth-Amendment protection in Custodian of Records v. State, where neither party addressed the amendment at all?  This seems to have puzzled Justice Abrahamson, who wondered if “[m]aybe something was in the air, or water …”[5]

In this instance, perhaps one could seek an answer in the nature of the people threatened by the State’s demands.  They were not accused of possessing heroin or child pornography.  Instead they were unnamed Wisconsin State legislators, suspected by the Dane County District Attorney of illegal activity in connection with the political caucuses of that period.  Hence the John Doe subpoena for a sweeping array of legislative communications, which the court found overly broad and thus an unreasonable search under the Fourth Amendment.  (Justice Abrahamson, by the way, agreed that the subpoena was too broad but maintained that this conclusion could, and should, have been reached from the arguments briefed by the parties.)

There may well be additional explanations for such an ardent embrace of the Fourth Amendment by a majority of justices normally disinclined to apply it, and I would be grateful for any conjectures that readers can offer.

[1] The decisions may be found on the Wisconsin Court System website.

[2] The category “all criminal cases” encompasses all cases whose numbers end with the CR suffix, except for those resulting in per curiam decisions or (in five instances) decisions that were difficult to regard as either favorable or unfavorable for the defendants.  Also, it should be noted that four of the Fourth-Amendment cases do not have CR suffixes and thus would not be included in the “all criminal cases” calculations.  However, their number is so small that their absence from the “all criminal cases” category has virtually no effect on the percentages in Table 1.

[3] On rare occasions, a justice would accept a Fourth-Amendment argument but affirm a defendant’s conviction for other reasons.  In State v. Subdiaz-Osorio, for instance, Justice Bradley concluded that, in the context of the Fourth Amendment, the warrantless search conducted in the case should not have been regarded by the circuit court as justified.  Thus I categorized her opinion as favoring a Fourth Amendment argument—even though she concluded that the circuit court’s error did not contribute to the defendant’s conviction.

Custodian of Records v. State is not included in these calculations, because neither of the parties argued or briefed the Fourth Amendment.

Justice Day is not included in the table because the data cover only his last term (1995-96) on the bench.

[4] It would be interesting to know if Fourth-Amendment arguments have fared differently in Wisconsin’s lower courts, despite their chilly reception in the Supreme Court.

[5] Custodian of Records for the Legislative Technology Services Bureau v. State (In re Doe), 2004 WI 149, ¶5 (order denying reconsideration) (Abrahamson, C.J., dissenting).

Commenting last month in the New York Times, Adam Liptak noted that decisions issued by the United States Supreme Court have grown substantially longer over the years, prompting him to choose such terms as “sprawling” and “metastasizing” to characterize the fruit of the justices’ labors.

Had Liptak turned his attention to Wisconsin’s Supreme Court, he would doubtless have offered a similar assessment, because decisions issued by the justices in Madison now require an average of approximately 50 pages to convey their analysis.  Just as striking as the length of these decisions is the pace at which they have grown.  As recently as 1995-96 and 1996-97, Supreme Court decisions in Wisconsin averaged 23 pages.  Thereafter, their length increased steadily until the average had more than doubled by 2007-08—and the following years continued to yield decisions approximately 100 percent longer than those of the mid-1990s.

Averages for each of the 19 terms currently covered by the SCOWstats database are presented in Table 1, and they may also be viewed as a graph.

Table 1    Average Number of Pages per Decision[1]

Term	Page Length
2013-14	49
2012-13	53
2011-12	44
2010-11	46
2009-10	50
2008-09	44
2007-08	52
2006-07	44
2005-06	42
2004-05	44
2003-04	40
2002-03	38
2001-02	33
2000-01	36
1999-00	33
1998-99	30
1997-98	31
1996-97	23
1995-96	23

One factor at work here is the increasing number of concurring and dissenting opinions, which have added to decisions’ bulk.  Tables 2a and 2b reveal that concurrences and dissents accounted for only 3 pages per decision during the earliest term of our period (1995-96), but by 2013-14 the figure had ballooned to 17 pages per decision.  This increase of 467 percent is remarkable, but it accounts for only about half the number of pages by which decisions have grown.  The same tables demonstrate that majority opinions also swelled substantially during these years—from an average of 19 pages in 1995-96 (and 17 pages in 1996-97) to 30 pages in 2013-14 (and 34 pages in 2012-13).

Table 2a                     Average Number of Pages per Decision

	Majority opinion pages	Concurring and dissenting opinion pages
1997-98 (72 decisions)	23	5
1996-97 (82 decisions)	17	4
1995-96 (75 decisions)	19	3
Weighted average for all three terms	20	4

 

Table 2b                     Average Number of Pages per Decision

	Majority opinion pages	Concurring and dissenting opinion pages
2013-14 (61 decisions)	30	17
2012-13 (44 decisions)	34	17
2011-12 (59 decisions)	31	11
Weighted average for all three terms	31	15

 

As one might expect, the average length of majority opinions varies considerably among the justices.  In 2012-13, for instance, majority opinions authored by Justice Prosser averaged 46 pages—77 percent longer than Justice Crooks’s average of 26 pages.  During the following term, the average length of Justice Ziegler’s majority opinions exceeded those of Justice Bradley by 50 percent.  Comparisons between any pair of justices over the three most recent terms are available in Table 3.

Table 3                   Average Length of Majority Opinions Written by Each Justice

Justice	2011-12	2012-13	2013-14
Abrahamson	38 pages	40 pages	29 pages
Bradley	27 pages	26 pages	22 pages
Crooks	29 pages	26 pages	27 pages
Prosser	32 pages	46 pages	36 pages
Roggensack	27 pages	34 pages	29 pages
Ziegler	30 pages	32 pages	33 pages
Gableman	36 pages	34 pages	32 pages

Table 4, which covers the earliest years of our period, may be compared to Table 3 as a means of illustrating the rapid increase in the size of opinions over 19 terms.  This information also allows us to focus on three justices (Abrahamson, Bradley, and Crooks) who have served long enough on the court to appear in both tables.   Computing weighted averages for the three terms covered in each table, we find that Justice Abrahamson’s majority opinions averaged 19 pages during the period 1995-96 through 1997-98 and 35 pages during the period 2011-12 through 2013-14—an increase of 84 percent.  Justice Bradley’s majority opinions grew by 39 percent (18 pages to 25 pages), while Justice Crooks recorded an increase of 29 percent (21 pages to 27 pages).[2]

Table 4                    Average Length of Majority Opinions Written by Each Justice

Justice	1995-96	1996-97	1997-98
Abrahamson	22 pages	18 pages	16 pages
Bradley	18 pages	16 pages	20 pages
Wilcox	21 pages	15 pages	27 pages
Bablitch	17 pages	13 pages	21 pages
Steinmetz	13 pages	13 pages	28 pages
Geske	21 pages	26 pages	25 pages
Day	19 pages	—	—
Crooks	—	19 pages	23 pages

Disputes will persist as to whether the court’s decisions should be described as bloated or comprehensive, but there can be no doubt that recent opinions are much longer than those drafted little more than a decade ago.  Less clear is whether this trend will persist in view of the court’s new rules designed to reduce the time between oral argument and the filing of decisions.  A reasonable hypothesis could surmise that shortening the gestation period of decisions will also affect their birth weight, although the current turmoil on the court complicates predictions on this score.  However, with the conclusion of the 2014-15 term close at hand, we will soon be able to replace conjecture with certainty.

 

[1] The figures include title pages, majority opinions, concurrences, and dissents.

[2] The weighted average for Justice Crooks covered only two terms in Table 4, because he did not join the court until the 1996-97 term.  Weighted averages are used because the number of opinions written by the justices varied slightly from term to term.

This post compares some of the findings of the previous post (“Public Defender Outcomes, 1995-96 through 2013-14”) with the outcomes obtained by other attorneys who presented oral arguments in the same category of cases—those featuring criminal-defense issues and indigent-defense issues.  Here we will narrow our focus to the six terms (2008-09 through 2013-14) in which the Court’s current members have occupied the bench, and begin by considering the 88 cases in this category where defense attorneys from outside the Office of the Public Defender delivered oral arguments.[1]

Of these 88 cases, the attorneys in question obtained a favorable outcome in 13, or 15% of the total.  The year-by-year results are as follows.
2013-14: 2/16=13%
2012-13: 2/15=13%
2011-12: 3/12=25%
2010-11: 2/16=13%
2009-10: 3/16=19%
2008-09: 1/13=8%

As one would expect, the voting records of individual justices vary greatly.  In the ratios below, the denominator indicates the number of oral arguments heard by a justice out of the total of 88 cases.  The numerator indicates how many times a justice favored the position advocated by defense lawyers from outside the Office of the Public Defender.
Abrahamson 49/85=58%
Bradley 45/87=52%
Crooks 16/85=19%
Prosser 16/81=20%
Roggensack 11/88=13%
Ziegler 8/87=9%
Gableman 7/85=8%

The following tables compare results obtained by attorneys from the Office of the Public Defender with the outcomes in our batch of 88 cases handled by defense lawyers employed outside the ranks of the Public Defenders.

             Percentage of Cases in which a Favorable Result was Obtained

	Public Defenders	Defense Attorneys from Outside the Office of the Public Defender
2013-14	13% (2/15)	13% (2/16)
2012-13	33% (3/9)	13% (2/15)
2011-12	33% (5/15)	25% (3/12)
2010-11	0% (0/7)	13% (2/16)
2009-10	10% (1/10)	19% (3/16)
2008-09	0% (0/5)	8% (1/13)

The six-term success rate for Public Defenders of 18% (11/61) was slightly, but not dramatically, higher than the six-term success rate of 15% (13/88) for defense lawyers who were not Public Defenders.

These two categories of attorneys also received similar percentages of favorable votes from individual justices—with the striking exceptions of Justices Abrahamson and Bradley, who voted in favor of Public Defenders at a considerably higher rate than they sided with defense lawyers outside the Office of the Public Defender.

Percentage of Cases in which a Favorable Vote was Received, 2008-09 through 2013-14

Justices	Public Defenders	Defense Attorneys from Outside the Office of the Public Defender
Abrahamson	70% (43/61)	58% (49/85)
Bradley	66% (40/61)	52% (45/87)
Crooks	18% (11/61)	19% (16/85)
Prosser	20% (11/56)	20% (16/81)
Roggensack	11% (7/61)	13% (11/88)
Ziegler	10% (6/61)	9% (8/87)
Gableman	13% (8/61)	8% (7/85)

 

[1] This total of 88 cases does not include three per curiam decisions, and it also omits State v. Long (2007AP2307-CR), which is difficult to categorize as either a favorable or unfavorable outcome for the defendant.  In Long the Court upheld the defendant’s conviction but accepted his argument that he was not a “persistent repeater.”

This post presents findings from an examination of 201 cases in which attorneys from the Wisconsin State Public Defender’s Office delivered oral arguments before the Supreme Court during a period covering nineteen terms (1995-96 through 2013-14—the current extent of the SCOWstats database).[1]

Our focus centers on the outcomes—categorized as either “favorable” or “unfavorable” toward the positions advocated by the Public Defender’s attorneys—and we’ll begin by considering the terms during which the Court’s current set of justices have served together (2008-09 through 2013-14).  These six terms have yielded 61 cases in the category under scrutiny here, and of these 61 decisions, only eleven—or 18%—favored the Public Defender’s positions.  In contrast, during the previous 13 terms (1995-96 through 2007-08), 32% of the 140 relevant decisions sided with the Public Defender.

The following list is a year-by-year compilation of the percentages of favorable outcomes for the Public Defender, with figures that also specify the total number of cases heard each term in which the Public Defender’s attorneys delivered oral arguments.  The line for 2013-14, for instance, indicates that the Court sided with the Public Defender’s attorneys in two of 15 decisions—or 13% of the time.  Over the years, the Court’s membership changed several times, and these alterations are indicated at the appropriate points in the list below. 

2008-09 through 2013-14
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, and Gableman)

2013-14: 2/15=13%
2012-13: 3/9=33%
2011-12: 5/15=33%
2010-11: 0/7=0%
2009-10: 1/10=10%
2008-09: 0/5=0%

2007-08
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, and Butler)

2007-08: 2/7=29%

2004-05 through 2006-07
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Butler, and Wilcox)

2006-07: 5/12=42%
2005-06: 4/11=36%
2004-05: 3/11=27%

2003-04
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Wilcox, and Sykes)

2003-04: 3/8=38%

1999-00 through 2002-03
(Justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Sykes, and Bablitch)

2002-03: 6/15=40%
2001-02: 4/16=25%
2000-01: 3/11=27%
1999-00: 4/12=33%

1998-99
(Justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Bablitch, and Steinmetz)

1998-99: 2/13=15%

1996-97 through 1997-98
(Justices Abrahamson, Bradley, Crooks, Wilcox, Bablitch, Steinmetz, and Geske)

1997-98: 3/7=43%
1996-97: 3/6=50%

1995-96—the year in which the database currently ends
(Justices Abrahamson, Bradley, Wilcox, Bablitch, Steinmetz, Geske, and Day)

1995-96: 3/11=27%

Information available on the Wisconsin Court System website also permits calculation of the voting records of individual justices in the 201 cases assembled here.  The results are arrayed below in descending order of support for arguments advanced by the Public Defender’s attorneys—and the contrasts are striking.  Among the Court’s current members, Justices Abrahamson and Bradley found the Public Defender’s arguments meritorious in 62% and 58% respectively of the arguments that they heard, while for Justices Roggensack, Gableman, and Ziegler, the figures were 14%, 13%, and 12% respectively.

In the ratios below, the denominator indicates the number of Public Defender arguments heard by a justice, with the differing totals among justices explained by the fact that they have served for varying numbers of years.  Only the tenures of Justices Abrahamson and Bradley have spanned the entire nineteen terms and all 201 cases.  The numerator indicates how many times a justice sided with the Public Defender.

Abrahamson 124/201=62%
Bradley 116/201=58%
Butler 22/41=54%
Geske 13/24=54%
Bablitch 39/91=43%
Day 3/11=27%
Steinmetz 10/37=27%
Sykes 16/59=27%
Crooks 47/189=25%
Wilcox 30/131=23%
Prosser 36/166=22%
Roggensack 15/108=14%
Gableman 8/61=13%
Ziegler 8/67=12%

[1] The total of 201 cases does not include fourteen per curiam decisions, and it also omits two cases in which several justices concurred with varying parts, and dissented with varying parts, of the “majority” decisions.  State v. Jerrell C.J. (2002AP3423) and State v. Stenklyft (2003AP1533-CR).

These tables are derived from information contained in 75 Wisconsin Supreme Court decisions filed between September 1, 1995, and August 31, 1996.  The total of 75 decisions does not include rulings arising from disciplinary proceedings against lawyers, which appear along with the decisions in the Supreme Court’s listing of opinions and dispositional orders for this period.

Occasionally, the Court’s listing of opinions contains separate entries for individual cases that were ultimately consolidated and resolved by a single decision.  If two or more cases were combined in this manner, the decision is counted only once for the purposes of the following tables.

The year under consideration also witnessed an unusual outcome in Estate of Cavanaugh by Cavanaugh v. Andrade.  Here, only Justices Bradley, Bablitch, and Day supported all portions of the “majority” opinion, while the other four justices dissented with regard to one portion or another.  Consequently, I will include the case only in the “Opinions Authored” table, the “Days Between Oral Argument and Opinion Filing” table, and the “Number of Oral Arguments Presented” table. 

Three additional cases—deadlocked (3-3) per curiam decisions (Ware v. Schoone; Thompson v. Jackson; and State v. Elam)—figure only in the “Number of Oral Arguments Presented” table.  All of the decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

As the NCAA basketball tournament reaches its climax, we match its allure by studying the court performance (or presence, at any rate) of universities in a different setting.  Exploiting data churned up by earlier posts, we will compare the number of oral arguments presented by graduates of law schools that qualified for the competition.  Our gaze encompasses the past six terms (2008-9 through 2013-14), during which 795 oral arguments were delivered before the Supreme Court.  In only seven instances was I unable to determine the participants’ law schools, leaving us with 788 entries in the tournament.  In a very small number of cases two lawyers split an oral argument, and when this occurred, each lawyer’s law school was counted in the total of 788.  Also, if one lawyer delivered multiple oral arguments over the years in question, his/her law school was credited separately for each of these arguments.

Number of Oral Arguments Presented at the Wisconsin Supreme Court by Graduates of the Following Law Schools, 2008-9 through 2013-14 (includes schools whose graduates delivered at least eight oral arguments—1% of the total of 788)

University of Wisconsin 367/788 (47%)
Marquette University 182/788 (23%)
Harvard University 16/788 (2%)
New York University 12/788 (2%)
University of Chicago 11/788 (1%)
Drake University 11/788 (1%)
University of Missouri 11/788 (1%)
Indiana University 10/788 (1%)
University of Pennsylvania 10/788 (1%)
University of Minnesota 9/788 (1%)
Northwestern University 9/788 (1%)
University of Virginia 9/788 (1%)
John Marshall Law School 8/788 (1%)
Yale University 8/788 (1%)

The previous post (“Law Firm Success Rates”) focused on just the twelve private firms that presented at least five oral arguments during this period.  Listed below are the law schools whose graduates delivered the oral arguments for these firms.  Here we are counting all oral arguments, including those in a handful of cases that were omitted from the previous post (3-3 per curiam decisions, for instance, and decisions that did not clearly favor one party or the other).

The twelve firms are: Axley Brynelson; Cannon & Dunphy; Crivello Carlson; Foley & Lardner; Godfrey & Kahn; Habush Habush & Rottier; Kasdorf, Lewis & Swietlik; Michael Best & Friedrich; Quarles & Brady; Stafford Rosenbaum; von Briesen & Roper; and Whyte Hirschboeck Dudek.

Number of Oral Arguments Presented on Behalf of the Twelve Firms by Graduates of the Following Law Schools

Wisconsin 58/121 (48%)
Marquette 27/121 (22%)
Harvard 6/121 (5%)
Chicago 4/121 (3%)
NYU 4/121 (3%)
Indiana 3/121 (2%)
Iowa 3/121 (2%)
Northwestern 3/121 (2%)
Ohio State 3/121 (2%)
Yale 3/121 (2%)
Columbia 1/121 (1%)
Georgetown 1/121 (1%)
John Marshall 1/121 (1%)
Minnesota 1/121 (1%)
Northern Illinois 1/121 (1%)
Virginia 1/121 (1%)
Wayne State 1/121 (1%)

It is interesting to note that while Wisconsin’s and Marquette’s shares of the oral arguments for these twelve firms are nearly identical to their shares for the total number of 788 oral arguments, their oral arguments were distributed unevenly across the twelve firms, as detailed in the following table.

Number of Oral Arguments Presented on Behalf of Each of the Twelve Firms by Graduates of the Following Law Schools

Axley Brynelson: Wisconsin 10/12; Marquette 2/12.
Cannon & Dunphy: Marquette 5/7; Wisconsin 2/7.
Crivello Carlson: Wisconsin 3/5; John Marshall 1/5; Marquette 1/5.
Foley & Lardner: Wisconsin 5/13; Chicago 4/13; Yale 3/13; Indiana 1/13.
Godfrey & Kahn: Wisconsin 8/15; Northwestern 3/15; NYU 2/15; Columbia 1/15; Georgetown 1/15.
Habush Habush & Rottier: Marquette 5/8; Wisconsin 3/8.
Kasdorf, Lewis & Swietlik: Marquette 5/6; Wisconsin 1/6.
Michael Best & Friedrich: Wisconsin 8/14; NYU 2/14; Harvard 1/14; Northern Illinois 1/14; Iowa 1/14; Virginia 1/14.
Quarles & Brady: Wisconsin 5/14; Harvard 3/14; Marquette 2/14; Ohio State 2/14; Iowa 1/14; Minnesota 1/14.
Stafford Rosenbaum: Wisconsin 4/6; Harvard 2/6.
von Briesen & Roper: Wisconsin 5/11; Marquette 4/11; Iowa 1/11; Wayne State 1/11.
Whyte Hirschboeck Dudek: Wisconsin 4/10; Marquette 3/10; Indiana 2/10; Ohio State 1/10.

Although these twelve firms appeared frequently before the Supreme Court, the total of their appearances paled before the number of lawyers bound for the same destination from the offices of the Attorney General and the Public Defender.  Focusing on the data from these two agencies, one is struck by the fact that lawyers from the University of Wisconsin presented oral arguments in numbers far surpassing their colleagues from other schools—and considerably higher than Wisconsin’s share (47%) of the 788 oral arguments delivered by attorneys in all categories.  Wisconsin’s dominance was particularly striking in the case of the Public Defender, where the law school’s graduates accounted for a remarkable 71% of oral arguments—eclipsing the portions contributed by lawyers from the law schools of the University of Virginia (11%), Marquette (5%), and New York University (5%).

Number of Oral Arguments Presented on Behalf of the Attorney General’s Office by Graduates of the Following Law Schools (schools whose graduates delivered at least two oral arguments—1% of the total of 175)

University of Wisconsin 96/175 (55%)
Marquette University 29/175 (17%)
University of Missouri 11/175 (6%)
University of Pennsylvania 10/175 (6%)
University of Chicago 5/175 (3%)
Indiana University 4/175 (2%)
Capital University 3/175 (2%)
University of Iowa 3/175 (2%)
University of Michigan 3/175 (2%)
DePaul University 2/175 (1%)
Harvard University 2/175 (1%)
Northern Illinois University 2/175 (1%)

Number of Oral Arguments Presented on Behalf of the Public Defender’s Office by Graduates of the Following Law Schools

University of Wisconsin 45/63 (71%)
University of Virginia 7/63 (11%)
Marquette University 3/63 (5%)
New York University 3/63 (5%)
University of the Pacific 2/63 (3%)
Georgetown University 1/63 (2%)
Golden Gate University 1/63 (2%)
University of Minnesota 1/63 (2%)

 

Inspired by the NCAA basketball tournament, this post stages a competition among law firms whose members have argued cases before the Supreme Court over the past six terms (2008-09 through 2013-14).  The selection committee ruled that eligibility for the competition required a firm’s participation in at least five oral arguments—excluding a handful of cases that resulted either in 3-3 per curiam outcomes or decisions that did not clearly favor one side or the other.[1] 

To be sure, partisans of individual firms might insist that the results be viewed with various considerations in mind.  Thus an argument could be made that pro bono cases—often involving criminal issues with a comparatively low chance of a successful outcome—should not be allowed to affect a firm’s record.  For instance, two of the cases in Quarles & Brady’s collection of 12 are of this sort, and if they had been omitted, the firm’s success rate would have jumped from 50% to 60%.  Others might contend that personal-injury firms—paid only if they win—are more likely to limit their appearances in the Supreme Court to cases in which they anticipate a favorable result.  This seems plausible and might suggest that personal-injury firms ought to be grouped apart from the rest.  However, such a conclusion would also suggest that the success rate of personal-injury firms should exceed that of the remainder of the field, which proved not to be the case.  As a result, all firms are competing in a single division.

The first table details each firm’s results individually.  Here, for example, one finds that Michael Best & Friedrich prevailed in 31% (4 out of 13) of the cases in which it presented oral arguments, while Foley & Lardner secured a favorable result in 56% (5 out of 9).

Law Firms Participating in Five or More Oral Arguments from 2008-9 through 2013-14

Law Firm	% of Successful Outcomes[2]
Axley Brynelson	7/12=58%
Cannon and Dunphy	4/7=57%
Crivello Carlson	4/5=80%
Foley & Lardner	5/9=56%
Godfrey & Kahn	11/14=79%
Habush Habush & Rottier	4/7=57%
Kasdorf, Lewis & Swietlik	3/5=60%
Michael Best & Friedrich	4/13=31%
Quarles & Brady	6/12=50%
Stafford Rosenbaum	4/6=67%
von Briesen & Roper	3/10=30%
Whyte Hirschboeck Dudek	3/10=30%

The second table focuses on the outcomes of the subset of cases in which the 12 firms delivered oral arguments against each other.

Law Firm	Wins and Losses (opponents in parentheses)
Axley Brynelson	one loss (Godfrey)
Cannon and Dunphy	one loss (Foley)
Crivello Carlson	No oral arguments against other firms in the field
Foley & Lardner	one loss (Habush) and one win (Cannon & Dunphy)
Godfrey & Kahn	one loss (Habush) and one win (Cannon & Dunphy)
Habush Habush & Rottier	two losses (Kasdorf and Whyte) and one win (Foley)
Kasdorf, Lewis & Swietlik	one win (Habush)
Michael Best & Friedrich	one loss (Stafford Rosenbaum)
Quarles & Brady	one loss (Stafford Rosenbaum)
Stafford Rosenbaum	two wins (Michael Best and Quarles)
von Briesen & Roper	one loss (Godfrey) and one win (Whyte)
Whyte Hirschboeck Dudek	one loss (von Briesen) and one win (Habush)

[1] When a firm prevailed on certain issues but not others, the case is counted here if it seems clear that the firm won or lost on the issues of greatest importance—a subjective call required in only a small number of cases.

[2] In addition to four 3-3 per curiam decisions, the following cases are excluded from consideration.  Bostco LLC v. Milwaukee Metro. Sewerage District; Northern Air Services v. Link; and Notz v. Everett Smith Group, Ltd.—all Foley & Lardner cases in which the outcome was not overwhelmingly favorable or unfavorable for Foley’s clients—and Marlowe v. IDS Property Casualty Insurance Co., in which the decision was unfavorable for the individual insurance company, IDS (a victory for Habush), but also satisfactory for the insurance industry in general, represented by Godfrey in an amicus brief.

I am always grateful to receive ideas for new topics, and one such suggestion pertained to the voting of the Supreme Court’s current members in insurance cases.  More specifically, two questions are posed here.  How frequently did individual justices vote in favor of insurance companies, and how frequently did pairs of justices vote together in these cases?  It seems to me that something can be done with this as long as we can formulate a reasonably clear and plausible category of cases to consider.  To this end I have tried to set fairly strict criteria that limit our set of cases to those that center on interpretations of (1) insurance policies or (2) statutes that the justices seek to apply to insurance companies. 

This approach excludes cases in which insurance companies are listed among the parties but do not figure in the discussion of issues on which a decision turns.  If, for instance, the Court determines that a person or company acted negligently, one can often conclude from the specifics of the case that an insurance company will ultimately have to pay some or all of the damages.  This might amount to an “insurance case” under an expansive definition of the term, but not necessarily for us.  If a decision hinges on a defendant’s negligence or the applicability of a certain statute, while ignoring the insurance company and the obligations and exclusions in its policy, that case is not included here.  This screening method has yielded 34 cases from the six terms (2008/9 through 2013/14) during which the Court’s current members have served together, and these cases are listed individually under the title “Decisions by Vote Split in Insurance Cases.”

Votes Favoring Insurance Companies
For the 34 insurance cases described above, the Court issued sixteen decisions that were favorable to insurance companies and eighteen decisions that were not.  As displayed below, the Court’s two most liberal justices, Abrahamson and Bradley, very rarely accepted the contentions of insurance companies—15% and 12% of the time, respectively.  In contrast, the three most conservative justices—Roggensack, Ziegler, and Gableman—found the insurance companies’ arguments persuasive in a majority of cases.  Justice Gableman stood out in this regard, siding with insurance companies 65% of the time.

	Number of votes favoring insurance companies	Percentage of all votes cast by each justice
Abrahamson	5	5/34=15%
Bradley	4	4/34=12%
Crooks	14	14/34=41%
Prosser	15	15/31=48%
Roggensack	18	18/34=53%
Ziegler	19	19/34=56%
Gableman	22	22/34=65%

Levels of Disagreement Among Justices
As detailed in the tables grouped under the title “Agreement Among Pairs of Justices in Insurance Cases,” certain pairs of justices voted together in nearly all insurance cases, while other pairs found a good deal less common ground.  At one end of the agreement spectrum, Justices Abrahamson and Bradley voted together 97% of the time (and 95% of the time in non-unanimous decisions), as did Justices Roggensack and Ziegler.  At the other end of the spectrum, disagreement was nearly as striking.  Justice Abrahamson voted with Justice Ziegler in only 10% of non-unanimous decisions, for instance, which also proved to be the share of cases in which Justices Bradley and Gableman sided together.  Indeed, the voting disagreement between the two most liberal justices and their three most conservative colleagues has been slightly greater in insurance cases than it has been in cases of all types—civil and criminal taken together—as evident in the group of tables titled “Agreement Between ‘Liberal’ and ‘Conservative’ Justices.”

 For a complete set of tables—those mentioned in this post and several others pertaining to insurance cases—click here.

These tables are derived from information contained in 83 Wisconsin Supreme Court decisions filed between September 1, 1996, and August 31, 1997.  The total of 83 decisions does not include the following items contained in the Supreme Court’s listing of opinions and dispositional orders for this period: (1) decisions arising from disciplinary proceedings against judges and lawyers; and (2) orders pertaining to motions for reconsideration.

Two additional cases—deadlocked (3-3) per curiam decisions (DeRuyter v. Wisconsin Electric Power Co. and State v. Wisconsin Central Transportation Corp.)—figure only in the “Number of Oral Arguments Presented” table.

Occasionally, the Court’s listing of opinions and dispositional orders contains separate entries for individual cases that were ultimately consolidated and resolved by a single decision.  If two or more cases were combined in this manner, the decision is counted only once for the purposes of the following tables.  All of the decisions may be found on the Wisconsin Court System website. http://wicourts.gov

The tables are available as a compete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

 

 

Perhaps the most notable feature of the Wisconsin Supreme Court’s recent decision in State v. Ramon G. Gonzalez (2012AP1818-CR, filed on December 3, 2014) was the separate opinion authored by Chief Justice Abrahamson.  Although labeled a concurrence, it resembled a dissent—not with regard to the decision in Gonzalez, which did not figure in her discussion, but with regard to the Court’s new procedure for opinion preparation and mandate.  Adopted in the fall of 2014 by a deeply divided court, the new rules are designed to accelerate the release of decisions.  To this end, the four justices (Crooks, Roggensack, Ziegler, and Gableman) who voted to adopt the rules over the objections of their three colleagues placed specific limits on the number of days for writing, circulating, and revising opinions.  Chief Justice Abrahamson’s concurrence served as a public opportunity to express misgivings over the new rules.  While acknowledging that “timely release of our opinions after oral argument is important for the litigants, for the bench and bar, for the public, and for this court,” she cautioned that “we should not, however, sacrifice thoughtful discussion and careful collegial review of draft opinions just for the sake of speed.”  She seemed especially troubled that the new time restrictions “are unwelcoming to concurrences and dissents.”

This post presents information on the relationship between the time taken to file decisions and the number of concurring and dissenting opinions included in these decisions.  As noted in previous posts, the number of days between oral argument and decision filing has increased over the past 17 years (the period currently covered by SCOWstats data), while the number of decisions filed has diminished considerably over the same interval.  (See Graphs 1 and 2.)  Clearly, more time is being taken to file fewer decisions, and it seems plausible to hypothesize that a principal reason is the larger share of contentious decisions in recent years (see “2013-14 in Perspective: Part 1”).  Pursuing this line of conjecture, one may speculate reasonably that a larger proportion of contentious decisions corresponds with a larger number of concurring and dissenting opinions—and that the number of concurring and dissenting opinions correlates with the increasing amount of time taken to file decisions.

Before presenting statistics, it may be helpful to explain that the figure of interest here is the average number of concurring and dissenting opinions per decision.  A simple calculation of the number of concurring and dissenting opinions each term would be less revealing, because some years yielded a large number of concurring and dissenting opinions mainly because a large number of cases were decided.  In such instances, the average number of concurring and dissenting opinions per decision could well be low, as evident in Table 1.

Proceeding, then, with the average number of concurring and dissenting opinions per decision, the correlation with the number of days taken to filing decisions is quite strong, as demonstrated in Graph 3—which encourages the plausible surmise that a larger number of concurring/dissenting opinions per decision contributes to a larger number of days required to file a decision.

At any rate, the four conservative justices who adopted the Court’s new procedures appear to have reached this conclusion, for their rules address concurring and dissenting opinions at length and direct at these opinions an explicit statement of blame for delays in filing decisions.  With this in mind, it should occasion no surprise to learn that the Court’s two liberal members (Justices Abrahamson and Bradley) have written the largest number of concurrences and dissents.  In fact, as shown in Table 2, Justices Abrahamson and Bradley authored more concurrences and dissents—both in 2013-14 and over the entire six terms in which the seven current justices have served together—than did the other five justices collectively.  Justice Abrahamson contributed far more of these opinions than any of her colleagues, including an output in 2013-14 that was 50 percent higher than the total written by all four of the justices who approved the new rules on concurrences/dissents.  Thus there can be little doubt regarding the primary target of these rules—nor any surprise over Justice Abrahamson’s disquiet.

Views will differ regarding the new limits adopted by the conservative justices.  Should the procedures be interpreted as a laudable effort to increase the Court’s efficiency or as an attempt by those in the majority to minimize opinions at variance with their own?  It may even be possible for some observers to embrace both interpretations.  In any case, if the new rules are enforced in their current form, they will indeed reduce the number of days between oral argument and opinion filing.  And if a correlation persists between this reduction and a smaller number of concurrences and dissents per decision, it can be illustrated beyond a doubt by the end of the term.  Less agreement will be likely as to whether such an impact on concurrences and dissents should be applauded.