In a commentary piece now available on the San Antonio Express-News website, the Court’s staff attorney for public information Osler McCarthy talks about some of the statistics that have been circulating in recent articles.

His basic points are that the statistics being used in the press don’t match the Court’s internal statistics and that they overstate the nature of the backlog. At the same time, he acknowledges that a backlog exists, which he says is strongly correlated to new Justices joining the Court and getting up to speed. I think he’s right on both points, although I tend to think that there are other institutional factors at work, too, such as the increased role of per curiam opinions and the way the current briefing-on-the-merits process precedes the decision to grant.

Osler writes:

A Dallas television station used another would-be watchdog’s calculations to report on the court’s backlog and opinion production, but the watchdog omitted two months of the court’s term last year, calculating the average time for issuing opinions at 152 days more than the Office of Court Administration officially reported to the Legislature.

The two months they omitted were July and August — when a burst of opinions traditionally occurs at the end of the fiscal year. Last August 31st alone, the Court decided 13 causes.

Before all that, two newspapers reported the court’s backlog at 111 petitions at the end of December. But the actual figure for pending “cases” — those that will be decided by one opinion — was almost half that. That’s because petitions can double or triple up in one case, and when you throw in cases involving petitions that had not even been argued by the year’s end, the pending caseload number falls to 61.

You know, when those newspaper articles came out, I was surprised by the number. Not because of its absolute size, but because it was completely irreconcilable with my own system of tracking the Court’s docket. I spent hours trying to figure out where all these “extra” cases the newspaper seemed to know about were hiding in my database. Needless to say, I never did find them.

One watchdog — using numbers and a methodology it did not explain — calculated the time the court took to dispose of petitions at a few days shy of a year in the 2007 term. The OCA report to the Legislature puts that figure at 158 days — about 40 percent of what the watchdog stated it was.

The “watchdog” numbers, as I understood them, started by picking the cases that would tend to have the longest total times — the cases that ultimately did result in a written opinion on the merits — and then worked backwards to see how long those cases took. By contrast, you’d get a very different perspective if you took the perspective of someone actually filing a petition and asking “How long will my petition take?” The answer is much less time — many petitions are denied after about two months (30 days for a response to be filed; 30 days for the Court to return its internal vote sheets), unless they are among the smallish fraction of cases that move to the briefing on the merits stage. My suspicion is that the OCA number above is a mean of all petitions (including the very short and the very long) and that measuring the median instead would yield an even shorter number still, perhaps around 60 to 75 days.

(Thanks to Texas Appellate Law Blog for noticing Osler’s article)