First, a note about methodology: This is not a task that can be accurately performed by having a clerk tally up rescripts. There are partial reversals, there are cross appeals, there are reservations. I personally looked at every reported Supreme Court decision that was argued between September 2002 and June 2003, and decided by March 9, 2004. This means that I have basically considered one full court year. A full year strikes me as a fair sample because it covers 165 decisions. Also, there was no change in personnel on the Supreme Court that year, nor is there likely to be for four years. Where the decision was a mixed one, I read it closely to see who was likely to crack open the champagne bottle. Where decisions were reconsidered (there were two of them), I counted the case as having one decision the final one. A reversal was counted as a reversal regardless of whether the remedy was judgment directed, a new trial or further proceedings. (Very few clients have complained when I won reversed, new trial even though I asked for reversed, judgment directed). Finally, I eliminated the two reservations since there was no real appellant.

Of the 163 decisions (excluding the two reservations), 95 (58%) were substantial or full affirmances, and 68 (42%) were substantial or full reversals. I then divided the appeals into three categories according to how they got to the Supreme Court. The three categories were (1) direct appeal ¿ mostly murder convictions, but also one writ of error and one C.G.S. ¿52-265a appeal (Chief Justice Sullivan does not grant many of these); (2) appeals transferred from the Appellate Court before argument; and (3) appeals certified from the Appellate Court after decision.

Since the Supreme Court has little control over whether it will hear a direct appeal (it has the right to transfer most direct appeals to the Appellate Court, but it rarely does that), that portion of the docket logically would and in fact does have the lowest reversal rate. Of the 12 direct appeals decided, 3 (25%) were reversals. That of course means that the other categories had a higher reversal rate. The workhorse of the Supreme Court, over 70% of its business, is the transfers from the Appellate Court before argument. 115 of the 163 decisions (plus the two reservations) fall into that category. 67 (58%) were affirmances, 48 (42%) were reversals. Finally, the 36 certification cases had the highest reversal rate, with 19 (53%) affirmances and 17 (47%) reversals.

These statistics have an obvious implication for litigants. Unless there is some strong countervailing factor, such as a favorable Appellate Court precedent and none in the Supreme Court, appellants should try to transfer their appeals to the Supreme Court. Conversely, appellees should usually try to resist transfer.

There are many ways to affect the odds of transfer happening. The first way is the phrasing of the preliminary statement of issues. This can get or not get the Supreme Court’s attention. A sparkling pure issue of law usually will do so, while a fact-weighted issue usually will not. A counter issue by the appellee stating that the appellant’s sparkling pure issue of law was not properly preserved is worth filing. A motion to transfer can be filed at any time before the case is set for oral argument, but that is an unwise motion before the preargument conference (PAC) has been held. The PAC judge has the power to recommend transfer, but a prematurely filed and denied motion to transfer will not be helpful. The appellant should usually press the PAC judge for a transfer recommendation. If the judge is negative or nothing happens by a month or two after the PAC, a party wanting transfer should usually wait until all the briefs are filed and then move for transfer. Even if it is denied then, the Supreme Court may suo motu transfer the case later on. For that reason, if there are further developments (e.g., a recent decision), bring them to the Supreme Court’s attention by letter or motion.

Because any case can be unexpectedly transferred to the Supreme Court docket, parties should be sure to write their appellate briefs with that possibility in mind. If a favorable but questionable Supreme Court precedent is on point, don’t spend your whole brief saying the precedent is binding on this (Appellate) Court.

The important point is that any case is a potential candidate for Supreme Court review. With the reversal rate exceeding 40%, appellants should usually try to get there if they can.