For many years after the Texas Supreme Court adopted rules that divided the opinions issued by the intermediate courts of appeals into “opinions” and “memorandum opinions,” many appellate practitioners privately concluded that if an opinion was designated “memorandum opinion,” the chances of getting Texas Supreme Court review were substantially reduced.  But in 2018, I reported that between the years 2014 and 2017 approximately 1/3 of the Supreme Court’s docket of granted petitions was made up of “memorandum opinions.”    When one considers the standard that is supposed to be applied to these designations, that’s a high proportion since only really significant cases with cutting-edge issues are supposed to be designated “opinions.”

But with the close of the 2019 calendar year, I have even better news for appellate practitioners.  Sixty-one percent of opinions issued on petition for review involved review of a “memorandum opinion.”  That’s a record percentage, and it would seem to indicate that the designation of “memorandum opinion” versus “opinion” does not itself prejudice whether the Texas Supreme Court decides to review the case.

But the statistics reveal an even more interesting phenomenon:  There’s a higher reversal rate for “memorandum opinions” than for “opinions.”  Cases involving “memorandum opinions” were reversed 84.5% of the time, while cases involving “opinions” were reversed only 65.5% of the time.   When I removed unsigned, per curiam opinions from the mix, there was still a higher reversal rate for “memorandum opinions” (79% reversal versus 66% reversal).

I was curious to know whether 2019 might just be an anomaly insofar as the difference in reversal rates, so I ran the numbers for 2018.  In 2018, the reversal rate for “memorandum opinions” was 85% and 73% for “opinions.”  When I took the unsigned per curiam opinions out of the mix, the difference was still there, but not quite as stark (78% reversal for “memorandum opinions” versus 70% for “opinions.”).

The reason for the difference might be explained by the fact that “opinions” are usually a little more fully reasoned and developed, and it might be that the more robust reasoning helps to persuade the supreme court justices that the author of the “opinion” was correct.

By Published On: March 18, 2020Categories: AppellateTags: , ,

About the Author: Mike Northrup

Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group.