Law Firm Success Rates

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

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

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

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

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

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

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

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

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

Insurance Cases, 2008/9 through 2013/14

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

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

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

  Number of votes favoring insurance companies Percentage of all votes cast by each justice

Abrahamson

5

5/34=15%

Bradley

4

4/34=12%

Crooks

14

14/34=41%

Prosser

15

15/31=48%

Roggensack

18

18/34=53%

Ziegler

19

19/34=56%

Gableman

22

22/34=65%

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

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

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