Waiting Game: How Long Does It Take the N.C. Court Of Appeals To Issue Opinions?

Rakes,KenzieBy Kenzie M. Rakes

I am often called upon to answer questions related to pending appeals because I recently completed a clerkship at the Court of Appeals of North Carolina. When asked how long it will take the Court of Appeals to issue an opinion, I always say it is impossible to know with certainty, but the court has an internal policy of trying to issue opinions within 90 days of the date the appeal is scheduled for argument. After being involved in an appeal as an advocate, I decided to determine how long it takes the court to issue opinions.

First, I calculated the number of days it took the Court of Appeals to issue opinions in 2015 by counting the days from the date the appeal was scheduled for argument (regardless of whether oral argument was granted) until the date the opinion was issued. Not all appeals have an argument date. For example, some opinions are issued after the Supreme Court of North Carolina remands the case or after the Court of Appeals grants a party’s petition for rehearing. If the appeal was not argued, I treated the date that the appeal was remanded or the date the petition for rehearing was granted as the argument date.

Based on this methodology, I determined that the court issued opinions an average of 77 days after argument in 2015. The median was 62 days.

I found this information unsatisfying because I knew other factors, like whether an opinion is published, must effect how long it takes the court to issue an. So I categorized the opinions as unpublished or published. I then subcategorized the opinions as criminal, civil, juvenile-3.1, or juvenile-criminal based on the area of law assigned to the case in the COA Opinion List. I then calculated the average amount of time it took the court to issue opinions in each subcategory, as demonstrated in the table below.

Average Number of Days to Issue an Opinion
Published Unpublished All Opinions
Juvenile-3.1 39 29 31
Juvenile-Criminal 61 99 89
Criminal 91 64 71
Civil 105 96 100
All Areas of Law 93 69 77

Unpublished opinions were issued more quickly than published ones, except in juvenile-criminal cases. This may be explained by the fact that only 11 of the 1,019 opinions issued by the court in 2015 were juvenile-criminal cases, a significantly smaller sample size than any other case category.

I was surprised that juvenile-3.1 cases were issued so quickly. I knew that under Rule 3.1 of the North Carolina Rules of Appellate Procedure, juvenile-3.1 cases are a priority, but I did not realize that they were issued so much faster than other opinions.

While this information was interesting, I knew I could not rely on averages to determine when I could expect the court to issue an opinion. So I calculated the standard deviation for each area of law, except for juvenile-criminal because there were so few opinions. (Standard deviation measures how spread out numbers are in a particular data set.)

Standard Deviation
Published Unpublished All Opinions
Juvenile-3.1 28 18 21
Criminal 61 55 58
Civil 63 61 62
All Areas of Law 63 59 61

I had hoped that once I calculated the standard deviation, I would be able to determine the probability of an opinion being issued within an identifiable range of days based on the probabilities associated with a normal distribution, or bell curve. However, the data was not normally distributed, as seen in the charts below.  The horizontal axes display the range of days, while the vertical axes display the number of opinions  issued.1 3 2

Because the distribution was skewed, I determined the percentage of opinions issued that actually fell within one standard deviation of the average as demonstrated in the below table.  (In the table, SD stands for standard deviation.)

SD Average 1 SD Range % Opinions in 1 SD
Juvenile-3.1 Published 28 39 11 – 67 88%
Unpublished 18 29 11 – 47 94%
Criminal Published 61 91 30 – 152 75%
Unpublished 55 64 9 – 119 83%
Civil Published 63 105 42 – 168 72%
Unpublished 61 96 35 – 157 70%

The table below provides the number of opinions issued by category of case. The distinction between published and unpublished is removed because when an appeal is scheduled for argument, it is uncertain whether it will result in a published opinion.

SD Average 1 SD Range % Opinions in 1 SD
Juvenile-3.1 21 31 10 – 52 92%
Criminal 58 71 13 – 129 81%
Civil 62 100 38 – 162 72%
All Areas of Law 61 77 16 – 138 77%

Now when a client asks me how long it will take the court to issue an opinion in their case I can say: In 2015 the court issued opinions an average of 77 days after the case was scheduled for argument and 77% of opinions were issued between 16 and 138 days after argument.

Kenzie M. Rakes is an associate at Meynardie & Nanney, PLLC. She concentrates her practice on appellate law, business litigation, and construction litigation. If you have any questions or suggestions for how she should use the data she collected, please email her at kenzie@mnlaw-nc.com.