Volume and Delay in the Nebraska Supreme Court: A

VOLUME AND DELAY IN \r THE NEBRASKA SUPREME COURT: A Staff Study/

A. John cMartin and' . Elizabeth A. Prescott

A Publication of Appellate Justice Improvement Project Northeastern Regional Office NATIONAL CENTER FOR STATE COURTS The Volume and Delay Staff Study Series . Series Editor: Michael J. Hudson, Project Director, Appellate Justice Improvement Project

This research was conducted under Grants No. 78-DF-AX-0021 and No. 79-DF-AX-0082, awarded to the National Center for State Courts by the Law Enforcement Assistance Administration of the U. S. Department of Justice. Additional funding was supplied by the Charles E. Culpeper Foundation. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the U. S. Department of Justice, the Charles E. Culpeper Foundation, The National Center for State Courts, or the project advisory board. The Law Enforcement Assistance Administration reserves the right to reproduce, publish, translate, or otherwise use, and to authorize others to publish and use, any or all parts of the copyrighted material contained in this publication. I

THE NATIONAL CENTER,FOR STATE COURTS

The National Center for State Courts is a nonprofit organization dedicated to the modernization of court operations C and the improvement of justice at the state and local level / throughout the country. It functions as an extension of the 't state court systems, working for them at their direction and I; providing for them an effective voice in matters of national importance. In carrying out its purpose, the National Center acts as a focal point for state judicial reform, serves as a catalyst for setting and implementing standards of fair and expeditious judicial administration, and finds and disseminates answers to the problems of state judicial systems. In sum, the National Center provides the means for reinvesting in all states the a profits gained from judicial advances in any state.,

iii Board of Directors Lawrence W. IsAplson, Chief Justice, Supreme Court of Virginia, President William S. Richardson, Chief Justice, Supreme Court of Hawaii, Vice-president Lawrence H. Cooke, Chief Judge, Court of Appeals of New York Mercedes F. Deiz, Judge, Circuit Court of Oregon Roland Jo Faricy, Judge, Ramsey County Municipal Court, St, Paul, Minnesota Joe Ha. Greenhill, Chief Justice, Supreme Court of Texas E. Leo Hilonas, Deputy Chief Administrative Judge, New York City Courts Theodore R. Newman, Jr., Chief Judge, District of Columbia Court of Appeals Wilfred W. Nuernberger, Judge, Separate Juvenile Court OB Lancaster County, Nebraska KaPiste J. Saloom, Jr., Judge, City Court of Lafayette, Louisiana Joseph R. Weisberger, Associate Justice, Supreme Court of mode Island Robert A. Wenke, Judge, Superior Court of California, Los AngePes County Council of State Court Representatives Loren Do Hicks, State Court Administrator, Supreme Court of OregonB Chairman John Po Cotter, Chief Justice, Supreme Court of Connecticut, Vice-Chairman Staf f Headquarters Office, Williamsburg, Virginia Edward B. McConnell, Director Geoffrey W. Peters, Deputy Director for Programs Keith L. Bumsted, Deputy Director for Administration Regional Offices Francis ]Le Bremson, Director, North Central, St. Paul, Minnesota Samuel D. Conti, Director, Northeastern, North Andover, Massachusetts e. Mae Kuykendall, Director, Mid-Atlantic, Williams- burg, Virginia James R. James, Director, Southern, Atlanta, Georgia Larry L. Sipes, Director, Western, San Francisco, California

iv The following is one in a series of eleven reports focusing on the problems of volume and delay in appellate courts. These reports are the product of an extensive data collection effort undertaken by the Appellate Justice Improvement Project in June- August, 1978, as part of its national examination of these problems. Though each of these reports addresses the problems and procedures of a particular court, the authors wish to point out a that there were in fact many factors common to all the courts examined, and several similar, if not identical problems. In view of these mutual concerns, and because the data from each

Of the factual explanations made and conclusions drawn in any one report may appear in others.

V The authors wish to acknowledge the following persons, who provided assistance and contributed generously of their expertise during both the data collection effort and the writing of this report: Chief Justice Norman Krivosha and

Mr. Larry Donelson, Clerk. We would also like to thank the members of the Advisory Board, who reviewed the draft reports and offered guidance and direction; Dr. Jerry Goldman, who contributed substantially to the design and focus of the report;

Mr. Nick Demos, for his support and encouragement of the research effort; and Mr. Sam Conti, for his supervision and advice during the writing of this report. We wish to thank Drs. Barry Mahoney and Steven Weller, former directors of this project, whose work in Phase I determined in large part the scope of the project and this report. Our special thanks to Glora CoBson, who typed the numerous drafts of this report h cheerfully and diligently.

vi Project Staff

Michael J. Hudson, Project Director

John A. Martin

Elizabeth A. Prescott

Research Assistants James W. Adams

Charles G. Raimondi

Project Evaluator Dr. Jerry Goldman

Northwestern University

vi i

TABLE OF CONTENTS

Page

PREFACE ...... xi INTRODUCTION ...... xiii SECTION 1. ASSESSING APPELLATE COURT DELAY 1 A Summary of the Literature ...... 1

Appellate Court Delay: A Definition and Perspective ...... 4

SECTION 2. THE APPELLATE COURT SYSTEM: AN OVERVIEW OF THE NEBRASKA SUPREME COURT . . . . . Panel Structure ...... Case Assignment ...... Alternate or Summary Disposition of Appeals . . Oral Argument ...... Decisions and Opinions ...... Interaction Between the Nebraska Supreme Court and Lower Courts ...... 10 Sanctions Against Abuse of the System . . . . 12 Characteristics of the Nebraska Supreme Court's Caseload ...... 12

SECTION 3. CASE PROCESSING TIME IN THE NEBRASKA SUPREME COURT ...... 16 Components of Case Processing Time: Steps in the Appellate Process ...... 30 SUMMARY...... 36

SECTION 4. CONCLUSIONS ...... 38

ix Page

APPENDIX A. A Framework for Examining Delay in Appellate Court Systems ...... 45 APPENDIX B. Case Subject Matter ...... 52 APPENDIX C. Types of Attorneys Involved in Appeals . . . 54 APPENDIX D. Time Interval Graphs ...... 56 APPENDIX E. Correlates of Case Processing Time . . . . . 74

X 0 STAFF STUDY: THE NEBRASKA SUPREME COURT

PREFACE

In this report the staff of the National Center for State Courts' Appellate Justice Project present information and offer some related conclusions concerning the operation of the Nebraska

Supreme Court. While this report's primary concern is the Nebraska appellate system, it should be viewed as but one product of a comprehensive research, evaluation, and technical assistance effort designed to help reduce delay in state appel-

late courts throughout the United States.

The National Center for State Courts, in response to the need for knowledge of and solutions to the problems of delay in 0 state appellate courts, has initiated this nationwide appellate justice project. The project staff have undertaken a variety of tasks, all of which are designed to provide substantive information about the sources and severity of delay in state appellate

courts, and to lead to specific recommendations or solutions to

the delay problem. These tasks include an extensive review of the literature on problems of volume and delay in appellate courts and proposed solutions to those problems' and a bibliography of literature on the appellate process. 2

'This review has been published by the National Center in a monograph entitled Volume and Delay in State Appellate Courts: Problems.- ana-- Kesponses.

kbliography: State Appellate court Workload and Delay, by Thomas B. Marvel1 (National Center €or State Courts, April 1979).

xi In addition, the project staff have established demonstra- tion programs designed to test and rigorously evaluate solutions to the problems of volume and delay in four diverse appellate jurisdictions. Staff have also collected data from court records of the Nebraska Supreme Court and ten other state appellate courts across the country. 4 Finally, technical assistance has been initiated in several state appellate courts. Included in this general technical assistance effort are the preparation of state reports for the eleven jurisdictions that were the data collection sites. No two jurisdictions are exactly alike in the makeup and operation of their appellate court systems. Appellate courts obviously serve different populations; they are faced with different case loads: they operate under different state constitutional and statutory provisions and rules of procedure. In spite of these and other differences, appellate courts are often challenged by similar problems and can benefit from an understanding of operations in other jurisdictions. Consequently, the materials presented in this report should be useful not only to the Nebraska Supreme Court but to appellate courts in general

3California First District Court of Appeal; Colorado Court of Appeals; Connecticut Supreme Court (two demonstrations); %ode Island Supreme court. 4 Colorado Court of Appeals; Florida Supreme Court and First District Court of Appeal; Illinois Appellate Court, First District; Indiana Court of Appeals; Montana Supreme Court; New Jersey Superior Court, Appellate Division; Ohio Court of Appeals, Eighth District; Oregon Court of Appeals; and Virginia Supreme Court.

xii INTRODUCTION 0 During the past two decades judges, court administrators, attorneys, litigants, members of the general public, and academic observers have all noted a dramatic increase in volume

and delay in state appellate courts. Observers have indicated that in many jurisdictions the problems of delay have reached

a critical level: average case processing times in appellate courts in many jurisdictions, for example, are no longer spoken of in terms of days, but rather in terms of months and years. Commentators have differed in their assessments of the specific impact appellate delay has on litigants, judges, and court personnel, but nonetheless they generally agree that court delay, in some jurisdictions, is dangerously compromising if not jeopardizing the quality of justice available to citizens. 0 Even though the problems of delay are for the most part clearly perceived, their causes are still primarily a matter

of speculation and conjecture. In addition, while state court systems have offered numerous solutions in an effort to alleviate delay problems, the solutions remain largely untested and their effects largely unknown. The purpose of this report is to present and summarize empirical information obtained during the project and, when supported by the information, to state specific conclusions. This report with its information and conclusions may serve also

as a reference document for future court improvement. Any such improvement efforts may be by Nebraska Supreme Court personnel

xiii alone or in conjunction with a technical assistance effort, tailored to the specific needs and wishes of the Nebraska Supreme CourtB by the staff of the Appellate Justice Project. In this report two types of information have been used as a basis for conclusions. The first type of information is descriptive information concerning court rules and procedures, acquired through site visits to the court. The second type of information is quantitative data which describe the court's caseload in terms both of case characteristics and time lapse information on case processing in the Nebraska court. ("Case characteristics" include case subject matter, type and number of parties, attorneys, and type of judgment or order appealed from.) The quantitative data were derived from a systematic sample drawn from the court records of 633 cases from the years 1975 and 1976. The years 1975 and 1976 were selected to insure that most of the cases included in the sample would have been disposed of, and hence would include complete time lapse data, at the time of the data collection in 1978. In the report we have relied heavily on statistical information drawn from the sample of cases from the court's records. For individuals new to statistical and social science terminology, examination of statistics-based information can be a confusing experience. Consequently, we have kept reference to statistical terms at a minimum. In those instances where statistics are necessary, they have been expressed in simplified

xiv 0 terms. For those more familiar and comfortable with the language of statistics, we have included more extensive statistics-based discussions in accompanying Appendices. Section 1 begins with a brief summary of previous literature which has suggested how the problems of delay

should be addressed. This is supplemented by a general

analytic framework presented in Appendix A. In Section 2 a general overview of the Nebraska Supreme Court's rules, pro-

cedures and resources is provided. Section 3 presents descriptive data on case processing time in the Nebraska court, and summarizes the sources of case processing time delay. The fourth and final section of the report presents general conclusions for the court's consideration.

xv SECTION 1

ASSESSING APPELLATE COURT DELAY

A Summarv of the Literature Previous studies have dealt extensively with the sources of delay in appellate courts and courts in general. These studies have suggested a myriad of responses available to courts challenged by expanding caseloads and unacceptable case processing times. Although the scope of prior efforts to identify the sources of delay has varied, the conclusions of these studies have, for the most part, isolated three causes: 1) Caseload; i-e., appellate courts simply do not have the personnel or resources to keep up with 5 increasing case volumes; 2) Inefficiency; i.e., judges and other appellate court personnel do not use their time effectively. Courts are poorly organized and inadequately administered. Even if appellate court resources were increased, litigants would still encounter

5 See, for example, Carrington, Meador, and Rosenberg, Justice on Appeal, (St. Paul, &IN: West Publishing Co., 1976); "Alabama Appellate Court Congestion: Observations, and Suggestions from an Empirical Study," Alabama Law Review, Vol. 21 (1968) p. 150; Baker, Watkins, Lardy, "Appellate Court Reform," Mississippi Law Journal, Vol. 45 (1974) p. 121; Paul D. Carrington, "Crowded Dockets and the Courts of Appeal," Harvard Law Review, Vol. 52 (1969) p. 542; Cartwright, Friedman, and Wheeler, "The Business of State Supreme Courtsp" Stanford Law Review, Vol. 30 (1977) p. 121; "Judical Statistics of State Courts of Last Resort," Journal of the American Judica- ture Society, Vol. 31 (1947) p. 116; and Albert Tate, Jr., "Containing the Law Explosion," Judicature, Vol. 56 (1973) p. 228.

1 substantial case processing time delays; and 0 3) A combination of both groups 1 and 2 above. There are too many cases, courts lack sufficient resources 7 and are poorly organized and administered. As might be expected, solutions suggested by authorities to the problems of delay and volume are directly related to those authorities' perceptions of the sources of appellate court delay. For those who maintain that increased case volume is the primary source of delay, solutions emphasize devices designed to reduce the judicial workload. These solutions include increased numbers of judges and support personnel available to the court; establishment of separate appellate courts for criminal and civil cases; intermediate courts to

'Proponents of this position include: Harry Jones, (ed. ) , The Courts, the 0 Public, and the Law Explosion, Englewood cliffs, N. J.: Prentice-Hall (1965); Ziesel, Kalven, and Buchholz, Delay in the Court, Boston, MA: Little Brown (1959); "Appellate Case Management and Decisional Processes," Virginia Law Review, Vol. 61 (1975) p. 225; R. E. English, "Crisis in Civil Appeals," Chicago Bar Record, Vol. 50 (1969) p. 231; Donald Hunter, "Riding the Circuit: Indiana Probes Delay," Judicature, Vol. 59 (1975-76) p. 18; Jacobson and Schroeder, "Arizona's Experiment with Appellate Reform," American Bar Associa- tion Journal, Vol. 63 (Sept. 1977) p. 1226; Robert Lefler, "Appellate Judicial Innovation," Oklahoma Law Review, Vol. 27, (1974), p. 321; Kenneth J. O'Connell, "Streamlining Appellate Procedures," Judicature, Vol. 56 (1973) p. 234; Sulelan and Spencer, "Constitutional Relief for an Overburdened Court," William and Mary Law Review, Vol. 8 (1967) p. 244; Editorial, "Ways to Relieve Appellate Court Congestion," Judicature, Vol. 56 (1973) p. 94; and K. C. Todd, "Appellate Delay in the Criminal Courts of Texas," Texas Bar Journal, Vox. 37 (1974) p. 454.

7Examples of this position are numerous. Comprehensive assessments include: Osthus and Shapiro, Congestion and Delay in State Appellate Courts (Chicago, IL: American Judicature Society, 1974); John Reed, The Applications of Operations Research to Court Delay, (New York: Praeger Publishing, 1973); the results of a symposium, "Judges on Appellate Reform," UCLA Law Review, Vol. 23 (Feb. 19761, pp. 419-500; and Richard Record, Jr., "Remedies for Backlog in the Appellate Court of Illinois," Illinois Bar Journal, Vol. 62 (19731, p. 82.

2 lessen the burden on courts of last resort; increased court control of the caseload by implementing selective review through certiorari; reduced opinion and brief lengths; and the issuance of memorandum opinions and oral decisions, i.e., decisions from the bench. Proponents of the view that appellate court delay is the result of poor court organization and administration generally suggest that courts should concentrate on such efforts as employing central staff review procedures; developing compu- terized recordkeeping systems; developing screening systems and alternative dockets for separating error correcting cases from cases dealing with fundamental legal questions; and implementing systems of centralized court administration. Although judges and other persons involved in appellate courts are aware of most of these suggested solutions, previous literature on appellate delay offers few guidelines to help them determine how severe the delay problem may be in a particular court, what the sources of its delay problem are, how solutions may work given the dynamics of the court, and how the solutions can be implemented and ultimately evaluated. Before presenting a framework designed to respond to these problems it is necessary first to discuss briefly how "delay" is defined in this report.

3 Appellate Court Delay: A Definition and Perspective To define delay and in turn to identify its causes, one must first define and measure case processing time.

Case processing time is defined and measured in this study as the number of days that elapse between judgment in the initial forum, usually a trial.court, and the date of the issuance of a final mandate by the appellate court. It should be noted that this is not the interval which the'courts'themselves tend to regard as the appellate case processing time: they customarily measure from the time of the filing of the, appeal, which usually comes after the judgment or order below, to the time of the release of the opinion, which often precedes the issuance of a final mandate. However, this study uses a more comprehensive time frame because it represents the total time the litigants are involved in the appeal and thus is the basis by which they assess appellate delay. In addition, a comprehensive time frame emphasizes the importance of viewing the appeals process as a comprehensive system whose efficient operation is dependent on the actions of a variety of actors--lower court judges and clerks, who often control the preparation of records; attorneys; appellate court judges and their staff; and, where applicable, supreme court judges and their support personnel. The determination of whether a given case processing time is acceptable or not (i.e., whether or not that amount of case

4 processing time constitutes "delay") is largely a perceptual matter. A year to complete an appeal may be acceptable to some actors in a particular jurisdiction but not to others, or may be acceptable in one state but not in another. More objective criteria for determining the acceptability of case processing time, however,are available and have been used in this study. These standards are the Nebraska court's own rules governing time requirements for accomplishing the steps in an appeal and the standards advanced by the American Bar Association. 8 Once a determination has been made that delay exists, the next step is to identify the causes of delay. In approaching this problem the project staff have recognized that case processing time is a function of a large number of interactions among the organizational aspects of a court, the cases filed in it, and the activities of the persons in that court. To organize the analysis of these various factors and their

effects on case processing time, the staff have developed a general conceptual framework of the appeals process. This framework has been applied in producing the description of the Nebraska appellate court system which is presented in Section 2.

'American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Appellate Courts, (Chicago, IL: American Bar Association, 1977); Revised Rules of the Supreme Court of.the State of Nebraska, 1977.

detailed description of this framework is presented in Appendix A.

5 SECTION 2 '. THE APPELLATE COURT SYSTEM: AN OVERVIEW OF THE NEBRASKA SUPREME COURT

A,brief overview of the structure, resources, caseload, and procedures of the Nebraska Supreme Court is presented in this

section of the report. This is done in order to provide a description both of the general appellate court environment and of how the Supreme Court has adjusted to the demands arising therein

by adopting specific rules and procedures. The relation of case characteristics to case processing time is also discussed in this section. The Nebraska Supreme Court derives its authority from

Article V of the state constitution. There are seven judges on the court, which sits in Lincoln. There is no other appellate court in the state.

In the years from which this sample was taken, 1975-76, there were 571 (1975) and 615 (1976) appeals filed, or 82 filings

per judge in 1975 and 88 in 1976. Compared to other appellate courts included in the study, the*ratioof filings per judge is relatively low.

Panel Structure Judges in the Nebraska Supreme Court sit both en banc and in fixed panels of five, which rotate on a monthly basis. (Three District Court judges are temporarily assigned to the Supreme Court each month to enable the Court to sit in panels.)

6 Inevitably, when a court sits in panels there will be conflicts concerning the resolution of particular cases. The Nebraska Court has used a weekly all-court conference to resolve panel conflicts when they arise. All opinions are read during the court conference, and, if necessary, the court will sit en banc to resolve the conflict in a difficult case.

Case Assignment The chief justice of the Nebraska Supreme Court makes the initial determination of whether a case will be assigned to a panel or heard en banc, within certain constitutional limits. Cases are then assigned to a particular judge prior to oral argument. The assigned judge is responsible for reading the record, undertaking additional research if necessary, preparing a bench memorandum to be used during oral argument (a task usually assigned to that judge's law clerk), leading the discussion at the post-argument conference, and, finally, authoring the written opinion. In instances where the assigned judge is in the minority, the case is usually not reassigned; rather, the assigned judge will prepare the majority opinion, which will be submitted as a per curiam decision. He may then choose to submit a signed dissent. Some members of the Nebraska court criticized this unusual practice, indicating a preference for reassignment in these instances. It was noted especially that they felt the quality of these opinions might suffer as a result of the fajlure to reassign the majority opinion.

7 0 Alternate or Summary Disposition of Appeals As is the practice in many state appellate courts, the I Nebraska Supreme Court has developed a technique for disposing of so called "Anders" appeals (arising from the decision of the U. S. Supreme Court in Anders v. California [1967] 386 U.S. 738).

These appeals usually involve the submission of a short brief, accompanied by the attorney's request for leave to withdraw

from the case. No oral argument is granted in the consideration of these appeals. In addition, the Nebraska Supreme Court has adopted through

court rules other alternative disposition methods. These alternative methods include Rule 19(c), which provides for "report and order'' disposition instead of disposition by opinion

in excessive sentence cases; Rule 20, which allows disposition by one word opinion (e.g., "affirmed") in certain cases; and Rule 14, which provides for oral arguments of ten minutes rather than thirty.

Oral Argument

Unlike many courts included in the study, oral argument is scheduled automatically and does not involve any request procedure. Each side in the appeal receives thirty minutes to present its case (except in the summary calendar mentioned above). The court schedules six oral argument days per month. This has allowed the court to hear an average of fifty-five arguments per.month if sitting in panels, or thirty-six per 0

8 month if sitting en banc. Contrary to the opinions generally expressed by judges in other state appellate courts, judges in the Nebraska Supreme Court are generally supportive of oral arguments. They view oral argument as a good technique for examining attorneys and uncovering issues which may be missed by simply reading the record and the briefs.

Decisions and Opinions

Immediately following oral argument, the judges who heard the case conferB participate in a straw vote, and confirm the assignment of the opinion to a particular judge. Any judge not assigned the opinion can prepare a concurrence or dissent, but there are very few such opinions filed in this court--approximately 4% of cases had concurring opinions and approximately

10% dissenting opinions. All opinions are drafted by the judges themselves rather than by their law clerks, the latter being the practice in many other state appellate courts. There were, during the sample years, no rules in the Nebraska Supreme

Court specifying how soon after oral argument written opinions should be completed, although some of the judges noted that the preparation of concurrences and dissents may have caused unnecessary delays in announcing the decision. A thirty-day limit for preparing dissenting or concurring opinions has since been considered and adopted.

All opinions of the Nebraska Supreme Court are published.

As indicated in Table 2-1, the majority of the opinions are between two and five pages long.

9 TABLE 2-1 PAGE LENGTH OF MAJORITY OPINION

Majority Opinion Length:

4% (14) 2-5 pages 1 64% (254) 6 or more pages 1 32% (129)

.I------I --L-d.---1- 1 t I 1 t I 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Percentage of Total Cases

Average Opinion Length: 5.1 pages Source: 397 Cases out of 633 in which opinion length data were available. 0 Interaction Between the Nebraska Supreme Court and Lower Courts

The amount of control exercised by an appellate court Over

its caseload depends upon several factors: the point at which

the appellate court takes jurisdiction of the case, the potential

areas where,the process can be abused and the utility of sanctions

designed to check abuse, and the policy of the court with regard

to motions for extensions of time.

In Nebraska,affirmative case management appears to be a

serious issue and may have contributed substantially to exces-

sive case processing time in the sample years. One problem in effectively controlling case flow is the fact that some initial

steps in the filing of an appeal take place in the trial court

10 rather than in the appellate court. Specifically, the notice of appeal is filed and the transcript of pleadings is desig- nated, prepared, and reviewed in the trial court. It is then the responsibility of the trial court clerk to forward these documents to the appellate court. The transcript of the evidence ("Bill of Exceptions")" is prepared by the court reporter and filed in the trial court. During the period

for which data for this study were collected, the judges of

the Court and the State Court Administrator indicated that reporters in the trial courts were not preparing the transcripts of evidence in a timely fashion. This was clearly, during the years of the data collection, a source of serious delay.

Motions for time extensions--usually to file transcripts

and briefs--must be granted by the Supreme Court. The case record data included in this study revealed that on the average 1.3 time extensions were requested per appeal and that

the extensions were granted 99.5% of the time. The 1.3 extension request rate in Nebraska is relatively low compared to the

request rates in the other appellate jurisdictions examined

and occurred most frequently at the early stages of the appel-

late process.

"The Bill of Exceptions in Nebraska historically refers to the transcript of the evidence--testimony and exhibits--prepared by the court reporter, and not, as in other states, a separate statement filed by appellant's attorney listing bases of the appeal. In the inberest of clarity, the terms "transcript of the evidence,' referring to the reporter's transcript, and "transcript of the pleadings," referring to the file prepared by the District Court clerk, will be used in the remainder of this report.

11 , In Nebraska there is no "tickler system" for automatically

'identifying late cases. Rather, when the.monthly statistical

report is prepared, the clerk of the court will draw the Chief Justice's attention to those cases which are overdue in some

respect.

Sanctions Against Abuse of the System The court identified the court reporters as principally

responsible for long delays in the preparation of the transcripts - of evidence. However, project staff were informed that sanctions--including suspension of pay or dismissal from one's

Ii position--have subsequently been imposed against reporters. Delay in preparation of transcripts of evidence is no longer

perceived by the court as a problem.

Characteristics of the Nebraska Supreme Court's Caseload During the first phase of the Appellate Justice Project, the relationships between- case characteristics and case processing

, time were examined in depth. '* The results of this analysis revealed, for the most part, no significant relationships between

case characteristics and case processing time--cases did not systematically vary in procedural case processing time on the basis of particular categories which describe substantive case characteristics. Specifically we found no significant variation

"This perception is apparently supported by the data. See Table 3-2, p. 19.

12See, Steven Weller, John Martin, and Elizabeth A. Prescott, Volume and Delay In Appellate Courts: Some Preliminary Findings From A National Study, National Center for State Courts, May, 1979 (unpublished).

12 between case processing time in the different categories which described the type of appellants and appellees involved 0

in the case,,the type of attorneys, the subject matter, the issues raised on grounds for appeal, or the source of the appeal. These findings led us to the general conclusion that differences in case processing time are attributable more to differences in the general court environment and procedures and in the manner in which the procedures are followed, than to identifiable differences in the nature of the cases themselves. The bulk of the court's caseload--as indicated in Table 2-2-- is composed of appeals from trial court judgments. Less than one quarter of these trial judgments were jury trials.

TABLE 2-2

SOURCE OF APPEALS

Appeal Source: Trial Judgement EL Interlocutory Trial

Administrative Agency 3% (20)

Original Jurisdiction 1% (4)

Other

1 1 J 9 1 1 1 I 1 1 1 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Percentage of Total Cases Source: 631 cases (out of 633) in which source of appeals data were available.

13 Fifty-four percent of the total caseload were civil appeals,

the remaining 46% criminal appeals. The most common civil appeals

'. were commercial in nature. As was not the case in the other juris-

dictions included in the study, murder, manslaughter, rape and

sexual assault cases account for a relatively small percentage

of the appeals caseload. 13

Private attorneys represent over one-half of all litigants

involved in the Nebraska appellate process. 14

Table 2-3, which presents information on the frequency of

cases which involve procedural complications, reveals that very

few cross appeals, intervenors,or amicus curiae briefs appeared

on the court's docket. Table 2-3

CASE I RPEGULARITIES

Percent Total -__-__Irregularity Type: N Cross Appeal 4% 22 633

Jntervenors 4% 25 629

Amicus Curiae 1% 9 629

Consolidated Cases 8% 48 629

In addition, Table 2-3 shows that only 8% of the cases in the

court were consolidated.

13See Appendix B for a detailed breakdown of the subject matter of the cases in the sample. 14See Appendix C €or a detailed breakdown of the types of attorneys in the 0 Nebraska Supreme Court. As noted above, prior analysis by the project staff has indicated that differences in case characteristics do not appear to relate directly and systematically to differences in case processing time. Therefore, the next two sections of this report emphasize the effects of structural features, procedures adopted by the Nebraska court and other aspects of the appellate environment, rather than case characteristics, on case processing time.

15 SECTION 3

CASE PROCESSING TIME IN THE NEBRASKA SUPREME COURT

This portion of the report presents information concerning the actual length of time it took to process cases in the

Nebraska Supreme Court in the years 1975 and 1976, and compares the actual processing time with court rules and the standards announced by the American Bar Association.

Table 3-1 and Figure 3-1 present a summary of the number of days Nebraska requires to process cases from lower court judgment to mandate of the Supreme Court. The data reveal

that, on the average, a total of 301 days was required to pro- ~ 15 cess cases.

TABLE 3-1

TOTAL AVEFLAGE CASE PROCESSING TIME

Standa rd Deviation N _-Mean __-Median - L-

Tdtal Processing Time 301 304 120 603

15Cornplete statistical descriptions of the total time interval and all other time intervals, are located in Appendix D.

16 Figure 3-1 Total Time:

Lower Court Judgment to Appellate Court Mandate

75-

Frequency 30

25 as

800 200 300 400 500 600 700 800 900 1000 Number of Days

Valid Cases: 603

17 . . . . .--

The total case processing time measure is useful in that it can be viewed as a composite indicator of the appellate

system's performance. When compared to the other jurisdictions included in the study, the total average case processing time in the Nebraska appellate process was substantially lower than the

averages for those other courts. This does not mean that the Nebraska system is free of case processing bottlenecks or that case processing time cannot be improved.

Table 3-2 compares average case processing %ime for the different steps in the appeals process with the time require- ment specified in the court's rules and the standards

established by the American Bar Association. The data reveal 0 that the problems associated with preparation and transmittal of documents to the Supreme Court have resulted in substantial disparity between actual processing times and these standards.

Specifically, 92% of all the cas'es processed by the Nebraska court exceed maximum time limit set by court rule of 130 days

from lower court judgment to the filing of the last brief. In addition, 93% of the cases take longer than the 90 days prescribed by court rule to file the appellant's brief after a lower court judgment and 65% of appellee's briefs took longer

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a a a a a a a, a, a, a, a, a, -4 -4 -4 -4 4Jw uw uw “uw 0 -4 0 -4 0 -4 0 *rl z: am z: 10 a ma ma w UY c a: (d 0-l CJ W N a3 0 U -4 a3 a3 -3 a3 -3 m z a d rl rl H 2 zll PI 4J w 0 \D a3 X B a3 In I- rn a, m N .c

a, ILo 4J brc a CH a0 a a, 3 -4 c -4 tlu mLi ua)Q 4J 2 ku 0 3x 4J ow tn U 3 w kO 2 L rl ac sr;: NO m 0 .rl mcl .. ffl w vo ii0 .. .r( rlc, rl4J mu 24 a, U’ 4Jo 8 mu h 19 evidence) and brief preparation tim,e. The court rule governing 0 time limits for preparing and transmitting the transcript of evidence after the notice of appeal has been filed provides for - either,three weeks plus one month or six weeks plus one month

(roughly 51 or 72 days). A 160-day average between judgment

and filing of the transcript of evidence appears on the surface

unacceptable (given the relatively low number of case filings).

As mentioned previously, the court became aware of this problem

and implemented new policies governing preparation of the

transcript of evidence after data for this study were collected.

The average time from lower court judgment to filing of

the transcript of the evidence in the Supreme Court is 196 days.

This step, however,does not occur in concert with any other

step: Rule7c(4) specifies that the transcript of the evidence 0 is to be filed in the District Court (which signals the start

of briefing time), and is to be forwarded to the Supreme Court by the date of the filing of the appellee's brief.

The data show that the transcript of the evidence may

in fact be filed in the Supreme Court at any time during the

briefing schedule,prior to hearing.

The average time for filing of appellants' briefs was

161 days from lower court judgment and the average time for

filing of appellees' briefs was 46 days from the filing of the

appellants' briefs. This apparently excessive preparation

time is probably not a result of attorneys preparing exceptionally

long and complex briefs. On the contrary, as shown in Table 3-3, 0 20 a, d tr m a PI

dP mcn

F C a, d a, P ld PI

m d -4 v)

21 Figure 3-2

Lower Court Judgment to Filing of Appellant's Brief

100-

95 - 9.0 j KEY actual

. . . .Court Rule*

Frequency 45501

l-T77 1 I 1 I I11 I I I I IIIIIIII rill 100 200 300 400 500 600 700 800 900 1000

Number of Days

Descriptive statistics

Valid Cases: 405

Mean 160.88 Median 147.87 standard Deviation 70.04

*Court rules specify a time limit of 90 days.

22 Appellant's Brief to Appellee's Brief

160-1

KEY actual

..... Court Rules*

9s- : 93- : 85- . Freqyency eo- 0 7s- . 'O- : 65- 60- -_; sc- 3- : so- : $5- :

20- : 15- : io- 1 51 I. 1-A.I Ill1 tli ill /'i III I I 1 I I I I I 1/11l~llllllllll IIII 100 200 300 430 500 600 700 OQO 300 lOOG

Number of Days

Descriptive Statistics

Valid Cases: 396

Mean 45.69 Median 43.33 Standard Deviation 23.22

*Court rules specify a time limit of 30 days.

23 briefs filed in the Nebraska Supreme Court are comparatively 0 short, and in no instance exceeded the page limits established in the court's rules. Nor is it a consequence of some briefs

taking extraordinarily long and skewing the average: Figures

3-2 and 3-3 show remarkable consistency in filing.

Turning to the decision phases of the appellate process,

Table 3-2 presents data concerning the number of days between

materials and oral argument (Step 2) and oral argument to

decision (Step 3). On the averag'e 80 days elapsed between

the date on which all materials necessary to hear a case (briefs

and transcripts) were received by the Supreme Court and the

date at which oral argument was heard. The 80 day figure is

perhaps misleading in that the average, as indicated in Figure 3-4,

has been significantly inflated by the existence of a few cases

0 which took an extraordinarily long period of time. Consequently,

in this instance, the 69 day median more accurately reflects

elapsed time for the vast majority of cases during this step

of the appeals process.

Step 2 is a waiting period: cases are ready and waiting

to be heard. Compared to other courts included in this study,

the sixty to eighty day waiting period is relatively short.

Table 3-2 also reveals that an average of fifty-six days

were required during Step 3 of the process--from the date of

oral argument to the date of decision. Although there are

no Supreme Court guidelines specifying how fast cases should

be decided, the fifty-six day average is certainly acceptablk 0 24 rLyULt: J-l

Materials to Oral Argument

KEY actual

i ABA Standards* t .....

Frequency 43-

I/ I I I I IIIII IIIllillII 1'1 I 1 I I I 'I Ill Ill1 ('I

Number of Days

Descriptive Statistics

Valid Cases: 378

Me an 79.94 Median 68.50 Standard Deviation 78.31

*ABA Standards specify a maximum of 90 days.

25 Figure 3-5

/ Oral Argument to Decision Announced

Number of Days

Descriptive Statistics

Valid Cases: 383

Mean 55.86 Median 43.54 Standard Deviation 50.13

26 when compared to other courts and the standards established 1 by the American Bar Association. For non-oral argument cases, the available data did not permit dividing decision making time into two separate steps. Table 3-2 and Figure 3-6 present data concerning decision time for non-oral argument cases in the Nebraska Supreme Court. They reveal that there were very few non-oral argument cases in the Nebraska court sample. While these non-oral argument cases were generally processed more quickly than oral argument cases at the decision phase, the specific times involved varied considerably from case to case. There is no clear explanation for this wide variation but it may be due to the small number of non-oral argument cases in the sample. Finally, Table 3-2 and Figure 3-7 reveal that, on the average, the time between announcing decisions in the court and issuing mandates (Step 4) is very short, averaging only 25 days. This relatively short decision to mandate average may be, in large part, due to the fact that the Nebraska Supreme Court is the only appellate court in the process and, consequently, decisions in the court do not have to go to another state court for review. It may also be due to the fact that the seven judges live and work insthesame city, thereby affording greater interaction and increased collegiality, leading in turn to greater finality of opinions. This centrality also 'makes prompt reargument possible.

27 Figure 3-6 Decision Time Non-Oral Argument Cases

Materials to Date Decision Announced

49 -

35 - KEY actual

...... ABA Standards* 30 -

25 -

20 - Frequency

1 s-

Number of Days

Descriptive Statistics

Valid CBses: 21

Mean 77.85 Median 30.00 Standard Deviation 151.89

*ABA Standards specify a maximum of 90 days.

28 Figure 3-7

Appellate Court Decision to Mandate

400

3i)G

250 Frequency

20Q

1 so

I ec!

5 0

0 109 200 300 43G 500 600 709 2C0 900 109,Z

Number of Days

Descriptive Statistics

Valid Cases: 608

Me an 25.00 Median 21.26 Standard Deviation 36.78

29 Components of Total Case Processing Time: Stem in the Amellate Process

To this point the analysis has focused on describing the

number of days which elapse in each step of the appellate process

and comparing the actual number of days in each step with established standards. Total case processing time is a summation

of time elapsed in each part of the process. In this portion

of the analysis, the focus is shifted to describing total case

processing time by examining the proportion of the total case processing time which is attributable to each step of the appellate process. In addition, total case processing the

is described by examining the extent to which cases differ from each other in total number of processing days.

An examination of the relative contribution of each step

0 to the case processing time total should help determine where cases are being delayed. Once the points of delay are

determined, the sources of delay can be isolated and identified.

An understandina-the importance of each step in the appellate process as a potential point of delay requires an understanding of the related concepts of proportion and var'iance. The proportion is the fraction of total time attributable to each step in the appeals process, expressed as a percentage, 16 - and the summation of all steps equals 100% of total time.

'%or example, hypothetical Case A took a total of 300 days to process from lower court judgment to mandate. One hundred percent of total time would thus be 300 days. Of this 300 day total, 150 days were attributable to'time between the date of lower court judgment and the filing of materials with the supreme court (Step 1). Eighty days were attributable to time waiting in the oral argument queue (Step 2), 50 days elapsed between the date of

30 As noted previously, variance is a measure of the spread or variability of scores. In this study, the scores are the number of days per case in a particular time interval. Thus variance describes the extent to which processing days for cases within a particular time interval differ from one another. There are a number of statistics, often called measures of dispersion, available for summarizing this variability. The two measures used in this study are the variance and the standard deviation. Both measures tell us how closely the number of processing days for cases cluster around the average number of days for all cases. Variance will be small when there is a great deal of homogeneity in case processing time-- when most cases cluster closely around each other. The 12” - standard deviation is simply the square root of the variance, and is much easier to interpret than the variance, primarily because it is based on the same units (days) as the original variable. For example, total case processing time averages 301 days in the Nebraska appellate system. The variance for this time interval equals 14324 units and the standard deviation is 120 days. A total variance of 14324 units or a standard deviation of 120 days when viewed in conjunction with the average of 301 days, indicates that cases in the Nebraska

the oral argument and the announcing of the decision (Step 31, while 20 days elapsed between the date the decision was announced and a mandate issued. Converting the processing time for each step into a percentage of total time would thus reveal that for hypothetical Case A, Step 1 equals 50% (Step 1 = 150 + 3001, Step 2 26.66% (80 + 3001, Step 3 16.66% (SO + 3001, and finally Step 4 6.66% (20 + 3001, of the total case processing time. The 100%total time is thus a simple summation of each part, 50% + 26.66% + 16.66% + 6.66% = 99.98% or rounded to a whole number 100%.

0 court are relatively homogeneous. .Case processing time simply

, does not vary all that dramatically from case to case 'in the Nebraska Supreme Court. Although the amount of variance in total case processing time is relatively small in the Nebraska appellate process, an identification of the contribution of each step's variance to the total variance remains an important consideration. It is useful to identify the points at which case processing times

differ, and then to determine the sources and impact of these differences.

Summary measures of data are not evaluative: they do not connote good or bad judgments about the phenomena under examin- 0 ation. The goal of analysis is to account for variance. Inso- far as variance cannot be explained, then the theories that purport to account for that variance are inadequate.

In Table 3-4 the principles of proportion and variability are applied to time-lapse data for oral argument cases from the Nebraska Supreme Court. The diagram in Table 3-4 charts the average number of days for each step in the appellate process along the horizontal X axis, while the vertical Y axis, which \ charts standard deviations, presents the variability of cases

at each step. The mean number of days, the standard deviation,.. the percentage of total time, and percentage of total variance for each step in the process, are presented below the diagram. 0

32 __-I_. .

a) co co coco In In m InIn m m m mm

ua, c ld 4 k d ld 0 3 0 rl rl rd c, 0 B dP -. I 1 a, E -4 j B d rl 0 rd 0 c, rl t 0 I B oQ i

a m m

mw 22 c aa rd 2

0 c, -1.------Ln 0 In r- Ln c\1 !3 H B

33 Information presented in Table 3-4 indicates that Step 1 0 of the appellate process, as noted previously in the discussion of court rules and procedures, is an area of concern. The pre-

decision phase--from judgment below to the date at which all

materials are available to the Supreme Court--represents on the

average over 200 days or 57% of the total processing time.

Materials to oral argument (Step 2) represents 21% of the total

time, while Step 3, oral argument to decision, accounts for 14% a of the total. Step 4, decision to mandate, on the average takes only 28 days or represents about 7% of the case processing time

total. ‘The variance figures for each step indicate that the

57% of total case processing time in Step 1, accounts for 58%

of the total variance. Viewed together the two sets of percentages

can be interpreted to mean that not only is case processing time

0 excessive at this first stage, but that, in addition, it is

generally uniformly excessive. Very few cases fall below the

200 day average.

The waiting stage (Step 2), and decision stage (Step 31, of

the appellate process account for 21% and 14% respectively of

total case processing time. The percentage of total variance

explained by the two steps are proportional to the total time

percentages, and thus indicate that the variation pattern in

these two steps are relatively systematic; cases do not differ

dramaticallytin processing time at these two steps of the process

which are under the control of the Supreme Court. Finally,

34 Table 3-4 shows that the decision to mandate stage of the appellate process accounts for a very small percentage of both the total case

processing time and the total processing time variance. Clearly

this final stage of the process is not a major point of concern

in the Nebraska Supreme Court.

In general the breakdown of total case processing time by

steps in the appellate process in the Nebraska Supreme Court has

revealed that the major point of concern in the Nebraska court 0 is the preparation and submission of materials stage of the

appellate process. This pattern is systematic. Because the

variations between cases at the predecision stage of the appellate

process are small, yet the processing time accounted for by this

stage is substantial, one would not expect the sources of delay

to be attributable to specific attributes of the cases themselves.

Rather one would expect the sources to be structural and procedural

features of the appellate process. 17

17See Appendix E.

35 0 SUMMARY Information presented previously revealed that, with the exception of certain aspects of the pre-decision stage of the process, the Nebraska Supreme Court was operating efficiently and uniformly for cases filed in the data collection years. Once cases came under the direct contrbl of the Nebraska Supreme

I. Court, the Court kept up with the caseload. The decision and post-decision phases of the appellate process were not areas of particular concern, as evidenced by data which revealed that average case processing times at these steps in the appellate process were relatively short and not subject to wide variation. The panel procedures, the assignment of cases to specific judges, and the all-court conference techniques were working well. Cases were being decided, opinions assigned and written, decisions announced and mandates issued in a relatively short period of time. There was, however, considerable case processing delay ,at the predecision stage of the process. Although the sources of delay at the predecision stage were potentially numerous, analysis previously presented provided specific information for determining what these sources were and were not. The examination of the constitutional and statutory provisions which define the Supreme Court's authority, the characteristics of the court's jurisdiction, and the assessment of resources available to the court, revealed that none of these

36 environment-defining features were sources of case processing delay. The legal framework does not tie the court to outdated, unworkable procedures, but rather allows the court considerable organizational and administrative flexibility. The court's caseload was relatively small and did not place unreasonable demands on the personnel and financial resources of the Nebraska

Supreme Court e

In the fourth and final section of this report, specific recommendations concerning how the Nebraska Supreme Court can eliminate the identified sources of delay are presented. In addition the final section includes suggestions concerning how the court can continue to operate efficiently as case volume increases beyond its present level.

37 SECTION 4 CONCLUSIONS

0 Although the Nebraska Supreme Court had rules specifying when materials under the control of lower court clerks, reporters, and attorneys were to be filed, the analysis presented previously revealed that, during the period from which case record data were collected (cases filed in 1975-76), the rules were not being consistently followed. Judges \of the Nebraska Supreme Court indicated that they were aware of this non-compliance, and had subsequently implemented new policies designed to eliminate the problem. However, it is notknownhow successful the new policy changes have been in stemming abuse of the process. Consequently, the Court is urged to evaluate the impact of the new policies. Assessing the impact of the new policies would require further analysis of time-lapse information from cases filed after 1976. The National Appellate Justice Project can provide technical assistance to the Court for this additional analysis.

Court rules specify that notices of appeal are to be filed in the District Court. The Court might consider changing that rule to require filing in the Supreme Court instead. Implementation of such a rule would provide the Supreme Court valuable case monitoring information. During the time period when data for this study were collected, lower

38 court clerks were required to forward copies of all notices of appeal to the Supreme Court. Apparently this duty was not being consistently performed. When case record data for this study were collected, notices of appeal often were not included in case files.

In the Nebraska court, transcripts of the evidence are labeled "Bills of Exceptions." These documents are filed in the District Court, and are later forwarded to the

Supreme Court. It appears that attorneys prepare their briefs using information contained in the copy of the Bill of Exceptions filed in the trial court clerk's office.

Though the Supreme Court has a rule specifying that the

Bill of Exceptions is to be filed with it no later than the date of the filing of the appellee's brief, the analysis indicated that official "Bills of Exception" or transcripts of the evidence frequently are not filed with the Supreme

Court until immediately before oral arguments. This process may not allow adequate preparation time for oral argument. Consequently, the Supreme Court should consider modifying

the rule to specify that the Bill of Exceptions must be

filed 10 days after the appellee's brief is filed, and

adopting measures to enforce that or the current rule. It

is not recommended that the Bill of Exceptions be required

to be filed any earlier, since the procedure of leaving it

for some time in the lower court may represent a saving of some expense to litigants.

39 0 o Oral arguments do not have to be requested in the Supreme Court, but are automatically scheduled. The analysis indicated that the Court was able efficiently to schedule and dispose of a caseload composed almost exclusively of oral argument cases. In spite of their current success, judges of the Supreme Court may want to consider developing mechanisms for screening and disposing of cases which do not require oral argument. It is possible in the future that, as congestion at the pre-decision stage of the process is eliminated, or as more cases are filed due to population increase or other changes, the practice of automatically scheduling oral arguments may become burdensome and contribute to case processing delays. These: case processing a delays may offset the benefits of oral argument.

The Nebraska Supreme Court follows the unusual practice of not reassigning majority opinions in instances where

assigned judges find themselves in the minority. Rather than reassign the majority opinion, the court follows a

practice whereby the assigned judge, if in the minority, will first prepare a majority per curiam opinion and then (if he so wishes) prepare and submit a signed dissent. Conclusions concerning whether or not this procedure increased case processing time can not be made on the basis of data analyzed in this stu'dy. (The court record data did not include enough cases for comparison.) In any event,

40 even if sufficient data were available, this is an issue which should not be resolved on the basis of differences in case processing time. It is an issue with strong normative overtones, and should be addressed accordingly. For example, one can argue that when a judge prepares both the majority and minority opinion for a single case, the quality of either one or both of the opinions may suffer. This is, however, an infrequent occurrence, happening perhaps a dozen times in any,year. Nevertheless, the Court may want to weigh the desirability/necessity of this practice in the future.

The Nebraska Supreme Court is operating efficiently in the sense that once case materials have been filed, arguments are being heard, cases decided, and opinions written within a relatively short period. The specific reasons why the court is operating efficiently are difficult to determine. Nonetheless a partial explanation of the reasons for the court's efficiency may be due to the fact that the Nebraska

Supreme Court judges interact frequently. All seven of the Court's permanent members live in Lincoln where the court is located, have chambers near one another, participate in all court conferences, and currently sit en banc to decide most cases or resolve any panel conflicts which may develop.

41 0 0 Like many appellate courts throughout the United States, the Nebraska Supreme Court had not, during the sample

years, adopted rules specifying how soon after oral argu-

ment written majority, concurring, and dissenting opinions

should be submitted. Since that time, however, the court

has adopted a 30-day rule with regard to dissents and

concurrences.

Data included in this study revealed that opinion

preparation time was not a source of delay in Nebraska.

In spite of this finding, the Court might consider imple-

menting a 30 day majority opinion preparation time limit.

In other appellate courts examined during the course of

the Appellate Justice Project, opinion writing time, when 0 not controlled by court rules, was often a substantial problem.

0 The Nebraska Supreme Court currently does not have an

effective case tracking system. The Court is urged to

develop a uniform case tracking system.

The tracking system should be implemented and monitored

by the Supreme Court clerk's office. An effective case

tracking system would enable the court rapidly to identify

cases which are overdue in some respect. In addition it

would provide general information which could be used

in periodic court performance evaluations. The information

which would need to be collected would include, for each

case considered by the court:

42 - the date of the lower court judgment

- the date the notice of appeal was filed - the dates when Bills of Exceptions and transcripts were filed, both in the trial court and Supreme Court - the dates when appellant and appellee briefs were filed - the date of oral argument (when applicable) - the date the case decision was announced - the dates relevant to petitions for rehearing (when applicable)

- the date the mandate was issued - the dates of any motions - the method of case disposition - the effect of the disposition - the types and number of opinions prepared by the court

43 c

APPENDIX A

44 APPENDIX A

A Framework for Examining Delay in Appellate Court Systems

This framework reflects the assumptions that delay is determined subjectively but that any attempt to measure it must begin with measuring case processing time, and that case processing time is a function of the interactions among cases filed, the organizational aspects of a court, and the actions of its participants. Constitutional and statutory provisions (Set A in the diagram) define the legal structure in which the appellate court operates. Environmental elements that can affect the court--size of population served by the court, geographic location of the court and court personnel, workload as defined by annual filings and backlog--are listed in Set B. Resources available to the court (Set C) are the third group of elements included in the framework.,

A description of the total environment (Sets A, B & C) in which the appellate court operates provides a context for analyzing the demands placed on the court and for determining the extent to which the court can adjust its rules and procedures to satisfy more efficiently those demands without enlisting the aid of other governmental units. Reforms designed to reduce case processing time may in fact depend on the alteration of some of these elements which define the general court environment. That is, it may be that in some jurisdictions courts simply do not have the resources necessary to insure acceptable

45 m

.I lt tn C .rl m 0 N ual 0 & ~1. PI V \L al al m m a 'U u d W a a

m .. wal U al

. .rl2 E

U Ll 7 0 U /

d m8 I1 I1 I1 -4' .. 0 rl Nrn WC c c, h uo -rl a m X i? Erc u-l 0 tn Ll 0 4 A 0 al 4z a c, m a a / B 3 .rl E Iw 0 d (d al c, u 0 a E a II I1 x X x

46 case processing times, and that efforts to improve the court are dependent on increased court resources. The availability of those resources may be limited by constitutional and statutory provisions or the actions of other governmental actorsp eeg,I state legislators. The understanding of a court's rules and procedures (Set D) is crucial to an assessment of the sources and severity of delay. Conceptuallyp rules are an expression of the court's goals, procedures are means to implement those goals. In addition, the rules serve as a benchmark for assessing the performance of the court: are the participants meeting the time requirements (goals) set by court rule? The final set of elements (Set E) included in the framework relate directly to variations in case processing time. Two of the elements--judge and court personnel work habits, and attorney and litigant motivation--deal with the behavior of individuals involved in the appeals process. The third element included in set E, interactions between the appeals court and other courts, is the nature of relationships between the appeals court and other courts whose cooperation is essential for the efficient processing of appeals, and the official and unofficial interactions among them regarding this processing. For example, in some jurisdictions, lower court judges or clerks may control the preparation of the record needed by the appeals court. If the cooperation of the lower court is lacking, extensive delay may result.

47 0 Case characteristics, another element in the set, are classified into four primary categories: variables relating to parties and their attorneys; the substantive content of the appeal; variables regarding the information provided to the court to decide the appeal (briefs, transcripts, motions, etc.); and the final appellate court work product, usually opinions. Another element is the court's own perception of delay in the processing of appeals. This perception may be either of specific cases which are considered to require fast disposition, or of the caseload as a whole. In the former instance the perception of urgency .can prompt special treatment of the cases in question; in the latter, the perception of 0 systemic delay can prompt both increased individual productivity and reexamination and possibly revision of the appellate system. Case processing time is one result of the elements and their interactions. This measure begins with the date of the lower court's final order or judgment and ending with the date that a mandate is issued by the appeals court. In order to isolate specific problem areas, the comprehensive time interval

is divided into three steps which correspond to steps in the , appellate process. The first step begins with the date of final order or judgment in the lower court and ends with the date that all materials necessary to decide a case are filed with the appeals court. Step two focuses on appellate court K decision-making time, beginning with the date materials are

48 available and ending with the date a decision is announced. In instances where cases have oral arguments, step two is divided into two parts, The first begins with the date that materials are available to the court and ends with the date of oral argument, while the second begins with the oral argument date and ends with the date the decision is announced. The final step in the appeals process measures elapsed time, if any, between the date that the decision is announced and the date that a mandate is issued.

Using the Framework While the conceptual framework is useful as a theoretical device, the real test is its utility as a guide in addressing the critical issues of appellate court delay. Among these issues are the following:

8 How long does it take to process cases? What is the average number of elapsed days from judgment in the lower court to mandate in the appellate court? Are there large variations in elapsed time among cases? How long does each step in the appellate process take? Is there an identifiable relationship between elapsed time in one step, and elapsed time in other steps?

Q When does case processing time constitute delay? Does average time per step in the appellate process exceed the limit stipulated by court rule? Do the rules accurately reflect appellate court expectations?

49 0 Can case processing time be reduced? At what points in the process is reduction possible? What are the specific sources of case processing delay?

0 If case processing time can be shortened, how can that be accomplished? What are the relationships between elements included in the framework

and case processing time? Can case processing time be shortened by stricter enforcement of court rules? By increasing resources available to the court? By changes in the environment in which the court operates? The issues and questions outlined above are addressed 0 in the text of the report.

50 APPENDIX B

51 APPENDIX B

CASE SUBJECT ;.‘J;?‘TER

Criminal Cases Civil Cases Total

46% (290) , 54% (340) 100% (630)

Criminal Case “ype: -% -- # Civil Case Type:

Murder One 1% 4 Liquor Laws 1% 4

Murder Two 1% 4 14otor Vehicle 1% 1

Manslaughter 2% 7 ~orkman’s, Compensation 5% 17

Rape or Sexual Assault 3% 8 Elections 1% 2

Robbery 12 % 36 Taxes 2% 6

Burglary 10 % 30 Zoning 1% 2

Theft 0% 1 Other Administrative Law 3% 12

Assault 5% 15 Commercial 19 p. 66

Battery -% - Landlord/Tenant 2% S

Fraud 2% 7 Other Property 16 % 55 I

Arson 1% 1 Trust & Estates 1% 2

Criminal Trespass -% - Child Custody & Support 11 % 36

Narcotics 14 % 41 Juvenile 1% 4

Drunkenness 5% 14 Other Domestic Relations 2% 7

Traffic 3% 5 Auto Personal Injury 7% 25

Juvenile Delinquency 1% 1 Other Injury 5% 17 - tlora 1s -% Labor 5% 17 Weapons Charges 2% 5 Other Non-Administrative 18% 62

Disorderly Conduct - -

I Other 38% 111

TOTAL 100 % 290 100% 340

Source: 630 cases (out of 633) for which subject matter data were available.

52 APPENDIX C

/--.

53 APPENDIX C

TYPE OF ATTORNEY INVOLVED IN APPEAL

Appe 1lant Appellee

Percent Number P e r c e n t 14 umbe r Attorney Type

48 % 306 Private Counsel 68 % 429

43 % 272 Attorney General 2% 16 3% 20 District Attorney 1% 9 4% 26 Municipal Corp. Counsel 2% 11 1% 4 Public Defender 23 % 143 0% 2 Legal Aid 0% 1 22 0% 1 Pro Se 4% ' 1

- -% - 0 Other -9,

100 % 631 100 % 631 TOTAL

Source: 631 cases (out of 633) in which attorney data were available.

54 APPENDIX D

55 APPENDIX D

Time Interval Graphs

Graphs illustrating the distribution of cases for each step in the appellate process, along with statistics which describe each time interval are presented and discussed in this appendix. In addition, a summary table of statistics used in the analysis of variance portion of the study is also presented and examined. Figure D-1, which summarizes the distribution of total case processing time data for all cases in the Nebraska Supreme Court included in the study sample, illustrates the format used to describe time-lapse information. The horizontal, or X, axis of the graph, which ranges from 1 to 1,000 days, refers to the

total number of case processing days, while the vertical, or Y, 0 axis represents the absolute frequency of cases. The intersections of axis X and Y are represented by + and were used as coordinates for drawing the actual curves for each time interval. Case Distribution curves or graphs presented by themselves are useful devices for describing data. For example, by merely looking at the curve presented in Figure D-1, one can see that the bulk of cases in the Nebraska Supreme Court cluster around a point which represents approximately 300 total case processing days. In addition the graph shows that there are a few extreme

cases which take anywhere from 525 to 950 total case processing days. There are also numerous statistics which are useful in that they describe in detail the distribution of cases along the various 0

56 Figure D-1 Total Time:

Lower Court Judgement to Appellate Court Mandate

Frequency ?to 25 t

$00 200 300 400 500 600 700 800 900 1000 Number of Days

Descriptive Statistics

Valid Cases: 603

Me an 301 27 Standard Error 4.87 Kurtosis 1.82 Median 303.62 Standard Deviation 119.68 Skewness .43 Mode 336.00 Variance 14323.78 -95 Confidence Interval 291.70 to 310.85

57 0 case processing time intervals. These descriptive statistics are included at the bottom of each graph. While all of the descriptive statistics provide summary

information about the'nature of the distribution, each describes the distribution in a slightly different way. For example, the first three measures or descriptive statistics included with each figure, the mean, median, and mode, are all measures of central tendency or typicality, and are associated with the general notion of "average." The arithmetic mean or average is probably the most widely understood and used measure of central tendency. It is simply the sum of all scores divided by the number of scores. Because the mean can be affected by extreme scores, the median is usually also reported in descriptive tables. The median is the case at the exact mid-point of the distribution--the point or case where 1/2 of all the

cases fall below and 1/2 above. Finally the mode is simply the value that occurs most often in a distribution pattern. The standard deviation and variance are additional measures which describe the distributions of data. Variance is the

arithmetic mean of the squared deviations from the mean. (While the concept of variability is of great theoretical consequence to statisticians it is used here primarily to define standard deviation.) The standard deviation is merely the square root of variance. The size of the standard deviation is inversely proportional to the degree of data concentration about the mean.

58 Consequently, a large standard deviation indicates that data is widely spread and exhibits little central tendency. These two measures are often referred to as measures of dispersion because, in contrast to measures of central tendency (which describe the typicality of data) these measures describe the heterogeneity of, or variation among data. Measures of dispersion are particularly important in instances where data does not strongly group around a central value in that they indicate that the measures of central tendency, the mean and median, are not representative. Thus measures of dispersion and central tendency are complimentary statistics, the latter describing where the data are grouped, the former describing how widely data are dispersed around this point. For example, applying the principles of central tendency and dispersion to the total case processing time distribution presented in Figure D-1, the statistics accompanying the graph indicate that cases cluster closely around the 301 day

average e

The third set of statistics presented at the bottom of each graph, the confidence interval and standard errors, are measures which help determine how accurately the data from the sample of appellate cases reflect or represent the total caseload. Using Figure’D-1 once again as an example, the .95 confidence interval statistic indicates that there is a 95% probability that the actual mean for all cases (not just the sample) in Nebraska will fall within a range of 292 and 311 days. In other words, if all the cases in the Nebraska Court during the sample years would have

59 been included in our data set, there is a 95% probability that

the total case processing time mean would fall within this

extremely narrow range of 292 to 311 days. (The extremely high

reliability of the Nebraska sample should not be too surprising

in that the sample was an extremely large proportion, over 1/2,

of the total court caseload.) As an added check on the statis-

tical reliability of the results, a measure called the standard

error has been included in the statistics accompanying the time

interval graphs. The calculation of this measure is extremely

difficult to explain and not necsssary for this presentation.

The interpretation’ of the standard error, however, is important.

It essentially indicates how much fluctuation within a sample

of cases can be expected. The standard error of 4.87 for the

total time interval illustrated in Figure D-1, indicates that

the mean of 301 days can fluctuate approximately 4.87 days

higher or lower. The very low standard error thus once again

confirms the high reliability of the sample. Figure D-5, which

illustrates decision time in non-oral argument cases, demonstrates

how these statistics can be used to identify a poor sample.

Specifically the .95% confidence interval indicates a huge

range of between 8.71 to 146.99 days and a large standard error

of 33.14 days. Clearly, generalizations made from this sample

would be dangerous and misleading.

The fourth and final set of statistics accompanying the

time interval graphs, the kurtosis and skewness, describe the

0 60 shape of a graph or curve relative to the ideal bell-shaped curve. Both statistics indicate how closely the actual curve approximates a normal bell shaped curve, i.e., the skewness indicates whether cases generally cluster to the right or left of the mean, while the kurtosis indicates the "peakness" of the curve. The skewness statistics has a value of zero when the distribution of cases approximates a normal bell-shaped curve, while a positive value means that cases cluster to the left of the mean and a negative value indicates clustering to the right of $he mean. A zero value for the kurtosis statistics indicates a normal distribution, a positive value a more "peaked" than normal curve, and a negative value, a flatter than normal curve. For example, the skewness and kurtosis statistics accompanying the curve presented in Figure D-1 indicate that cases in the Nebraska court fall to the left of the mean (or take generally less processing time than would be expected given a normal distribution) and that the curve is slightly more peaked than normal. The statistics appearing in Table D-11 amplify the relative percentage of total variance figures presented in Table 3-4. The Multiple r statistic is a summary multiple correlation which indicates the cumulative amount of total variation explained as each variable is added to the overall variance equation. An examination of the Multiple r statistics presented in Table D-11 indicates that when the last step in the appellate process variable,

61 i

step 4, is added to the equation, all of the total time variation has been explained by the cumulative effects of the four steps in the process. If the final Multiple r did not equal 1.00 or loo%, one would know that a portion of the total time variance

i is due to error and/or the effect of other variables not included in 'the equation. The Pearson's correlations r, appearing in Table D-11, indicate the bi-variant relationship between each step in the process and total time when the interactive effects of all the steps are not controlled. The r2 indicates the cumulative amount of correlation within total processing time obtained as each variable is added to the equation. Finally the r2 change statistics indicate the proportionate increase in explained variation accounted for by each step when the effects of other steps are 0 controlled for. The r change is thus the figure used for determining the percentages of total variance explained by each step.

62 Figure D-2 STEP 1

Lower Court Judgement to Materials

75 70 4 65

50 Frequency

45.

40-

35 -

39 ~

25 -

29 -

IS-

i0-

C- 2-

I I I I) 1 \ 11 11 I I I I1 I I I' I I Ill I I I't I 1'1 IIIiIlIII 100 200 30G 400 SO0 600 705 8GO 900 1000

Number of Days

Descriptive Statistics

Valid Cases: 390

Mean 204.98 Standard Error 3.71 Kurtosis 11.46 Median 189.50 Standard Deviation 73.41 Skewness 2.34 Mode 159.00 Variance 5390.15 .95 Confidence Interval 197.58 to 212.20

63 Figure D-3 STEP 2

Materials to Oral Argument

jii70 - 65

60 5s

45 Frequency

100 200 390 430 so0 600 700 aoo goo 1000

Number of Days

Descriptive Statistics

Valid Cases: 378

Me an 79.94 Standard Error 4.02 Kurtosis 62.12 Median 68.50 Standard Deviation 78.31 Skewness 6.17 Mode 133.00 Variance 6132.55 .95 Confidence Interval 75.02 to 87.86

64 Fisure D-4 STEP 3

Oral Argument to Decision Announced

1 e5 iRO- 175- i 70- i65- - 160- i55- 150 -. 345- 140- 135- i 30- 125- i20- i 1s- 110- 105- iQ0- 95 - Frequency 90 -. E5- - PO- 75- 70- 65- 60-. s5- so- 45- -- 410 -. 35 - I

Number of Days

Descriptive Statistics

Valid Cases: 383

Mean 55.86 Standard Error 2.56 Kurtosis 64.69 Media 43.54 . Standard Deviation 50.13 Skewness 6 - 56 Mode 30.00 Variance 2513.32 -95 Confidence Interval 50.82 to 60.90

65 Figure D-5 Decision Time Non-Oral Argument Cases (STEPS 2 & 3)

Materials to Date Decision Announced

Frequency 20

0 IOI I I' IllllllillllI I I I'I I'I IIIIiIIII i ' 10.3 200 339 400 50G 600 700 ROO 900 1000

Number of Days

De scriptive Stat is t ics

Valid Cases: 21

Me an 77.85 Standard Error 33.14 Kurtosis 18.35 Median 30.00 Standard Deviation 151.89 Skewness 4.18 Mode 20.00 Variance 23072.12 .95 Confidence Interval 8.71 to 146.99 0 66 ' Figure D-6 STEP 4

Appellate Court Decision to Mandate

45Q-

430-

2.50.

330-

Frequency 250.

200.

j 50

i 00

I IO 0 I I I 1 I'I'I'I'I I I I I I I I I I I I ~iiIi1III I I III'I'i I I I I I

Number of Days

Descriptive statistics

Valid Cases: 608

Mean 25.00 Standard Error 1.49 Kurtosis 343.02 Median 21.26 Standard Deviation 36.78 Skewness 16.40 Mode 21.00 Variance 1353.24 -95 Confidence Interval 22.07 to 27.93

67 Figure D-7 STEP 1A

Filing of Transcript to Appellant Brief

i FG 155 i SO 145 140 135 'I 30 i 25 i 20 115 110 105 i 00 95 30 Frequency 85 e 0 7s 70 65 60 5s 0 SO 45 43 3 Cj 39 25 20 15 10 " c'3 I Number of Days

Descriptive Statistics

Valid Cases: 410

Me an 90.22 Standard Error 3.10 Kurtosis 107.00 Median 81.75 Standard Deviation 62.81 Skewness 8.21 Mode 78.00 Variance 991.00 -95 Confidence Interval 84.12 to 96.32

68 Appellant's Brief to Appellee's Brief

15s

i30- :25- 120- :1s-

95 93 -- Frequency 85 - 80 - 7s -

70-. 65- 60 - -- 55 - so - 45- 43-

42-?C 30 - 25 - 2r, - is- io- 5. I 1-4- I I I I I I'I i'l 11i 1'1 I I i I I I I I i I I iIiI1lIIl Ill1ill1 100 200 3i)O 430 500 600 700 800 900 100s

- Number of Days

Descriptive Statistics

Valid Cases: 396

Mean 45.69 Standard Error 1.16 Kurtosis 9.25 Median 43.33 Standard Deviation 23-22 Skewness 1 - 61 Mode 28.00 Variance 539.15 -95 Confidence Interval 43.40 to 47.99

69 Figure D-9 STEP 1C

Lower Court Judgment to Bill of Exceptions

15 -

70-

Frequency

c-2-

IIIIII/ I .I II/IIIIIIIII Ill I I'I ('I 1'1 I I i Ill/IIIi 103 200 300 430 SOD 600 700 HGC) 300 1000

Number of Days

Descriptive Statistics

Valid Cases: 451

Mean 196.07 Standard Error 4.14 Kurtosis 2.77 Median 182.28 Standard Deviation 88.07 Skewness 1.12 Mode 279.00 Variance 7756.99 .95 Confidence Interval 187.92 to 204.22

70 Figure D-10 STEP 1D

Lower Court Judgment to Filing of Appellant's Brief

105 ____.. ._ I .Id

80 7s

60.

Frequency 55. SO -

45 -

43- 35 -

32 -

2s -

20 -

is-

i0-

I I ,I1 i I I ti I I I 1 I'I 1'1 1'1 1'1 I i I i I I I I I I I 100 200 330 400 500 600 700 800 900 1000

Number of Days .- Descriptive 'Statis t ics

Valid Cases: 405

Me an 160.88 Standard Error 3.48 Kurtosis 13.02 Median 147.87 Standard Deviation 70.04 Skewness 2-68 Mode 126.00 Variance 4905.79 -95 Confidence Interval 154.04 to 167.72

71 TABLE D-1

SUMMARY FIGURES OF VARIANCE BY STEPS IN APPEALS PROCESS

Multiple r r r Change r

ORAL ARGUMENT CASES

STEP 1 Lower Court Judgment to Materials -762 .580 .580 -762 Received by Appeals Courts

STEP 2 Date Materials Received to .355 Date Oral Argument .915 .837 -256

-981 -963 -126 -433 STEP 3 Oral Argument to Decision ,

.036 .283 STEP 4 .Decision to Mandate 1.000 1.000 (N-358)

72 APPENDIX E

73 APPENDIX E

Correlates of Case Processing Time

Table E-1 presents Spearman's correlations between case features and the processing time intervals. These correlations indicate the degree to which variation in one variable is related to variation in another. The value of Spearman's correlations varies between 1.0 and -1.0, with 1.0 indicating a very strong positive relationship, zero indicating no relationship, and -1.0 indicating a very strong negative relationship. Although there are no set mathematical criteria for labeling the strength of Spearman's correlations, the conventional standards used in social science literature were used in this study.

These standards are: .O to .10 positive or negative are non-

0 significant relationships, .10 to .19 positive or negative

denote weak relationships, .20 to .50 positive or negative denote moderate relationships, and .50 to 1.0 positive or * negative denote strong relationships. Turning to specific correlations, Table E-1 reveals no significant 'relationship between time spent in the first stage of the appellate process and case features. The only exception to this general picture of no relationship is

a moderate correlation between processing time and the number * For a more thorough discussion of the principles of correlation and the - use of Spearman's correlations, see Hubert M. Blalock, Jr., Social Statistics, (New York: McGraw Hill Book Company, 1972), pp. 415-418

74 h h h a, a, Q) a, aJ aJ Q) a, a, a, m a, N z d d 4dd r-4 d a, 0 N m -3 0 P$S$%Yrd Y V u u u u 0 0 -4 -4 ..-I ..-I -.-I -4 -4 -4 -rl -4 C-D' d d d rl d d d d d m d d v 0 al-d N 0 0 .PI cl v) a aa2a 0 0 &Wrd 2-3 w -4 a 2 4 R 2 r( BUG JJ JJ JJ JJ JJ JJ JJ 4J JJ JJ V1Q)rdk 0 0 0 0 0 0 0 N m 0 0 0 d d N v z zzOZ zz z z z zom -3 I

v) 0) v) v) 0) m v) m m Q) a, aJ a, ai a, a, a, v) v) m UJ m m rd Id a rd rd id u u u u u 0

5 E E z 5 % E Ercz F F Fz FE F F E F E 0 c, 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 E-, R I3 z I9 E-, R H E-, R I3 B

h h - h h h - h h In cn d a, N u) u) In 0 0 ID cn m *1 a, cv a, I- cn d m a, I- I- a, m m rl Y w"w Y*- 9 u 0 0 v u) rl rl m N a, rl in rl -4 m m 0 74 0 0 UJ m 0 0 rl 0 Fi m d 0 0 0 m 0 0 0 0 0 a

a, 0 JJ' cv 0 0 N v u) u) cn cs m m d 0 0 d m -3 0 u) m m m m d u) z l-i 0 m m 0 w rl .e d N I I

h n h h h h h h d a, u) O I- ID I- m a, in N I- m I- I- cn d N a, a, a, a,

w FiYm w wm- Y =j;g+d d U 0 u 0 a, N -3 d u) I- m 0 rl -4 .PI -PI -4 m cv a, cv .e 9 cn u) 0 rl d d d N d 0 N m 0 cv N 0 a a 2&4 JJ c, JJ JJ in .e N \D Fi I- u) d cv 0 0 0 0 -3 0 I- (v a, In a, cn z z z z 0 d 0 -4 0 0 0 d d o I I I I I - h h h h h h w I- m N N d a, cn In in m a, m a, a, cn Fi m a, a, N m m m m d w v Y Y Y w Y Y Y

in cv 4 a, d d a, a, cv 0 0 u) 0 0 cn I- d d 0 0 d 0 0 -3 m

m 0 a, u) -3 cn 4 I- cv 0 0 0 0 I- u) a, I- a, m O I- t-4 z z z z 0 cv d d d N 0 0 I I I -

aJ r-4 v) a c rd 00 z -4 -4 c k z s >o2 lJ 1= a, Wh W rcc 5 oa 0 0 C 'u 4 3 C H of time extensions in a case. This should not be too surprising m in that time extensions would by definition increase case processing time.

The correlations between case features and Step 2 reveal no relationships. Since this step of the process is essentially a waiting period, the lack of relationships is not too surprising. Table D-ldoes indicate meanipgful relationships between case features and processing time spent at the decision stage of the appellate process (Step 3). Specifically the data reveal weak to moderate relationships between the length of appellant's and appellee's briefs, the majority opinion, and decisionmaking time. Cases with relatively longer briefs and opinions take slightly longer to process than cases where less information 0 is considered. Since the briefs and opinions in the Nebraska court,as indicated in Section 11, are relatively short, and since decision time is also relatively short, these relationships should not be interpreted to indicate that briefs and opinions

. are a major source of delay.

Finally, Table E-1 documents weak to moderate relationships between whether or not cases had dissenting opinions, and whether or not cases had petitions for rehearings, and post- decision time. As indicated previously, judges in the Nebraska court noted the tendency for cases with dissents to take.longer than cases without dissents. Although the data bears out the .. judges concern, .and a 30 day limit for preparing dissents is

76 advisable, the presence of this relationship does not necessarily mean that dissenting opinions are a major delay source. Since there are so few dissenting opinions and the decision to mandate stage represents a small percentage of total case processing time, the overall impact of added preparation time for dissents is minor. The same general conclusion can be applied to the relationship between petitions for rehearing and post-decision processing time--the impact of petitions for rehearing in the

Nebraska court on total case processing time is relatively minor.

77 a COUNCIL OF STATE COURT REPRESENTATIVES Alabama Georgia C, C. Torbert, Jr. Hiram K. Undercofler Chief Justice, Supreme Court Presiding Justice, Supreme Court Alaska Hawaii Roger G. Connor Tom T. Okuda, Deputy Adminis- Associate Justice, Supreme Court trative Director of the Courts

Arizona Idaho Frank X. Gordon, Jr. Allan G. Shepard Justice, Supreme Court Justice, Supreme Court Arkansas Illinois C. R. Huie Robert C. Underwood Executive Secretary, Judicial Justice, Supreme Court Department, Supreme Court Indiana California Richard M. Givan Ralph J. Gampell Chief Justice, Supreme Court, Director, Administrative Office of the Courts Iowa Robert G. Allbee Colorado Justice, Supreme Court James D. Thomas State Court Administrator Kansas David Prager Connecticut Justice, Supreme Court e John P. Cotter Chief Justice, Supreme Court Kentucky Charles D. Cole, Director Delaware of the Administrative Office William Duffy of the Courts Justice, Supreme Court Louisiana District of Columbia Pascal F. Calogero, Jr. Larry P. Polansky Associate Justice, Supreme Court

Executive Officer, Courts I of the District of Columbia Maine Sidney W, Wernick Florida Associate Justice, Supreme Arthur J. England, Jr. Judicial Court, Chief Justice, Supreme Court

78 Maryland New Mexico David Ross Dan Sosa, Jr. Associate Judge of the Supreme Chief Justice, Supreme Court Bench of Baltimore City New York Massachusetts Herbert B. Evans Edward F. Hennessey Chief Administrative Judge Chief Justice, Supreme Judicial Court North Carolina Joseph Branch Michigan Chief Justice, Supreme Court John FitzgeraPd Deputy Chief Justice, North Dakota Supreme Court William L. Paulson Associate Justice, Supreme Minnesota Court Robert J. Sheran Chief Justice, Supreme Court Ohio Frank D. Celebrezze Mississippi Chief Justice, Supreme Court R. P. sugg Associate Justice, Supreme Court Oklahoma B. Don Barnes Missouri Justice, Supreme Court Robert T. DonnePPy Justice, Supreme Court Oregon Loren D. Hicks Montana State Court Admini strator John Conway Harrison Justice, Supreme Court Pennsylvania Samuel J. Roberts Nebraska Justice, Supreme Court Norman M. Krivosha Chief Justice, Supreme Court Rhode Island Walter J. Kane Nevada Court Administrator John Mowbray - Chief Justice, Supreme Court South Carolina J. Woodrow Lewis New Hampshire Chief Justice, Supreme Court John w, King Associate Justice, Superior South Dakota court Roger L. Wollman Chief Justice, Supreme Court New Jersey Arthur J, Simpson, Jr. Tennessee Acting Administrative Ray L. Brock Director of the Courts Chief Justice, Supreme Court

79 e Texas Wisconsin Joe R. Greenhill Nathan S. Heffernan Chief Justice, Supreme Court Justice, Supreme Court Utah Wyoming Thornley K. Swan A. G. McClintock Chief Judge, Utah Judicial Justice, Supreme Court Council American Samoa Vermont Richard I. Miyamoto Franklin S. Billings, Jr. Chief Justice, High Court Associate Justice, Supreme Court Guam Virginia Paul J. Abbate Albertis S. Harrison, Jr. Presiding Judge, Superior Justice, Supreme Court Court Washington Puerto Rico Charles T. Wright Jose Trias-Monge Justice, Supreme Court Chief Justice, Tribunal General de Justicia West Virginia Fred H. Caplan Virgin Islands Chief Justice, Supreme Court Eileen R. Petersen 0 of Appeals Judge, Territoral Court

80 e