Michael T. Brody, co-chair of Jenner & Block.

Many of us have been in the following situation. You complete your oral argument in the U.S. Court of Appeals for the Seventh Circuit, walk out of the courtroom, shake hands with your opponent and turn to your client who asks the inevitable question: "So when will the court rule?"

The honest answer—"whenever it is ready"—is not very helpful. Your client has paid you a lot of money for handling the appeal and expects a little more wisdom than that. So, what can you tell the client?

Every lawyer has a hunch about how long it will take the court to rule. The answer that the court will likely rule in six months, and almost certainly will rule by the time the next court term begins in September, is usually right. Can we be more precise?

To answer this question with a little more precision, I looked for data. I was unable to find reports of how long it usually takes the Seventh Circuit to rule, so I gathered my own. I created a database of every opinion listed on the court's website and published in 2019. I excluded nonprecedential dispositive orders, which are rarely used to decide argued cases. The Seventh Circuit issues a precedential opinion in almost every argued case. I eliminated procedural orders. If a case was consolidated with another case or included cross-appeals, I listed it only once. I made sure I did not count dissents or concurrences as separate appeals. I identified 485 published decisions of the Seventh Circuit issued in 2019. For each case, I identified the argument date and calculated the length of time, in days, it took the court to publish its opinion. I then generated some statistics.

Before I go through the statistics, I confess that the predictive power of this exercise, as applied to a particular case, is limited. As we all know, every case is different. Appellate courts sometimes rule quickly and other times take a long time to resolve an appeal. The length of time it takes a court to rule may depend on issues peculiar to the case: uncertain legal doctrines, the interplay of an appeal with appeals in other circuits, or the existence of cases presenting similar issues awaiting decision in the U.S. Supreme Court. In addition, circumstances unique to individual judges may affect how long it takes a court to rule. A judge may be ill or occupied with a different matter, for example. The panel may be divided on an issue, or a member of the panel may be contemplating issuing a separate opinion. Thus, the averages I report in this article are simply that—averages. They do not predict your case.

With those disclaimers out of the way, here is what the 2019 data revealed.

First, on average, it took the court 122 days—essentially four months—to issue an opinion in the appeals the Seventh Circuit decided with a published opinion in 2019. This is an average. In one case, the court issued its opinion two days after argument. In 21 cases, the court took one year or longer.

Second, the median decision time was 90 days. That is, one half of the appeals were decided within 90 days of argument. The other half took 90 days or more to resolve. The fact that the median is one month shorter than the average is due to the fact that the average is influenced by the minority of cases that take a very long time to resolve. The "tail" of the distribution extends well beyond the median. So, for a run-of-the-mill, ordinary Seventh Circuit appeal, if there is such a thing, the data from 2019 reveal that litigants have a 50% chance of receiving a decision in three months.

Third, the distribution is wide—the court has outliers on each end. In 2019, the court issued published decisions in 56 cases—more than 10% of its output—in three weeks or less. Once past the median, the right-hand tail of the distribution stretches out. Using the 2019 data, 70% of the cases were resolved by day 135; and 80% of the cases were decided by day 175. The 10% of cases it took the court the longest to decide took 277 days or more.

If one were to exclude the fastest 10% and the slowest 10% of the court's output, what would that do to the numbers? Looking at the middle 80% of the appeals, the average decision time drops to 100 days, 10 days more than the median. Thus, in the 80% of cases that fall within the middle of the court's distribution, precedential opinions are issued, on average, within a little more than three months after argument.

Does the type of case matter? Yes. On average, the court decided criminal cases in 85 days and civil cases in 131 days. Prisoner cases, a smaller sample size, on average took 142 days to decide.

Does the existence of a dissent or concurrence matter? Again, yes. In 2019, one or another judge dissented or concurred in 43 published cases, approximately 9% of the court's decisions. The average length of time to decide those cases was approximately 195 days. Thus, not surprisingly, the existence of the separate opinion, which may reflect the difficulty of the case, predictably slowed down the court by more than two months.

What do we make from this data?

The Seventh Circuit is remarkably efficient. The court hears oral argument in nearly every counseled case, and issues published opinions in nearly every argued case. Yet on average it takes the court only about four months to rule. While every experienced litigator can point to a case that the Seventh Circuit, or some other court, took an unexplained period of time to decide, the median for decisions in the Seventh Circuit is 90 days. Not bad. The parties typically take longer to brief a case than the court does to decide it.

So how do you answer your client's question? You can tell your client that on average, the Seventh Circuit will decide a civil appeal within three to four months. Direct criminal appeals are usually decided sooner. Those are averages—some cases are decided in a matter of days, while others take longer. You may be able to advise your client about why your appeal is one that you think is likely to take longer, or one that you think will be decided by the time you get back to the office.

What else can you add? You can tell your client the court will decide whenever it is ready.