This week’s lead story, "The Geography of Justice," examines the political differences between the First and Second Departments and their relationships to the trial courts they oversee.

Observers say the Appellate Division’s First Department (which hears appeals from Manhattan and the Bronx) has become more conservative in recent years, especially when compared to the trial court judges. LexMetrics wondered if that has translated into more reversals.

The answer is a qualified yes.

An analysis published by New York’s Bar Association (members only) shows that in civil cases, the First Department has been reversing a little more often in recent years:

First Department Reversal Rate - Civil Cases
2006        36%
2005        34%
2004        34%
2003        31%
2002        32%
(Note: the source separates reversals and modifications, but Judicial Reports treats modifications as defacto reversals. Hence, the above numbers are presented differently from those in the referenced article).

If one assumes that Manhattan and Bronx trial judges lean to the left of the average judge, the First Department's recent trend toward reversing more often tends to confirm a rightward shift.

Their reversal rate has also increased in criminal appeals:

First Department Reversal Rate – Criminal Cases
2006        11%
2005        12%
2004         7%
2003         7%
2002         7%

Does this also confirm the rightward trend? The Appellate Division is disagreeing with the trial judges more often, but almost all criminal reversals are pro-defendant (prosecutors don’t have the same array of appeals post-verdict that defendants do). One can argue this is a leftward movement by the First Department.

Another assertion from observers is that the Second Department is further to the right than the First (the Second hears appeals from Brooklyn, Queens, Staten Island, Long Island, Westchester and the northern suburbs). This supposedly results from the Second Department being more ideologically in tune with the conservative-leaning suburbs and less often on the same page with New York City’s judges.

The Bar’s reversal rates show that the Second Department reversed civil cases 39 percent of the time and criminal cases 5.4 percent in the years 2002-06. So, compared to the First Department, they reverse more often in civil cases, and less frequently in criminal (a mixed verdict).

However, things change if you look only at appeals originating from New York City (which the Bar's article does not do). Last year, Judicial Reports did its own reversal rate survey covering 2000-05. In that analysis, the Second Department reversed much more frequently than the First.

Reversal Rates for Cases Originating From NYC Only (2000-05)
                    First Dept.    Second Dept.
Civil Cases          37.1%       45.2%    
Criminal Cases      7.0%       11.9%

Clearly, the Second Department is disagreeing with NYC judges much more frequently than with their suburban peers. However, the contradiction remains that criminal reversals are heavily pro-defendant.

There’s one more theory that needs to be explored. What if you look at the First Department’s reversal rate by borough? Again, the Bar's analysis never did this, but here are our numbers:

First Dept. Reversal Rate by Borough (2000-05)
                 Civil       Criminal
Bronx          43.5%       8.8%
Manhattan   35.8%       6.2%

Not only is the difference significant, but the Bronx’s reversal rate is now comparable to the other boroughs residing in the Second Department.

All of which (that is, the debate about appeals courts moving to the left or right) might mask some underlying truths:

- Many judicial candidates find Manhattan the most attractive borough in which to work.
- Manhattan, therefore, attracts better judges on average.
- Better judges get reversed less often than worse ones.

Of course, that's just a thought.

Let the borough bashing begin.