One in 35 Americans will be in a car crash in the next twelve months. What is your chance of being in a car crash in the next twelve months?

One in a million Americans will be struck by lightning in the next twelve months. What is your chance of being struck by lightning?

The answer to both is that you have no idea.

Whether you are in a car crash depends on how careful you are—especially how well you avoid distractions—the condition of your car, how many miles you drive, where you drive, when you drive, and the weather you drive in.

Whether you are struck by lightning, likewise, depends on your behavior. If you like playing golf in the rain, your chances increase. If you live in a city, they decrease.

You know that the statistics don’t predict what will happen to you, much less the things that you can control.

The Court of Criminal Appeals grants about 7% of the petitions for discretionary review filed in a year. What are your chances it will grant discretionary review on your case?

You have no idea.

The Court of Criminal Appeals is looking for interesting issues of importance to the law. Most appeals don’t involve such issues. Most of the time the intermediate courts of appeals get things right, and most of the things they get wrong are object level and of interest only to the particular defendant: was the evidence legally sufficient? were the rules of evidence violated? was the defendant harmed by the introduction of inadmissible evidence?

Most petitions for discretionary review are not well written. About half of them are filed pro se by people who aren’t lawyers, and most of the lawyers filing PDRs don’t know what they’re doing—you’ll see them arguing that the court of appeals was wrong, but not arguing that the issues are important and interesting.

Part of showing the court that the issues are important and interesting is spotting the important and interesting issues. “The evidence was legally insufficient” is probably not important to anyone but the defendant; “the court of appeals got the legal-insufficiency argument wrong because it did not apply Texas Constitutional law to the question” might spark interest in the court.

Like the car crash or the ligtning strike, whether the court grants discretionary review depends on factors beyond your control—are there issues that are important and interesting? is it of particular interest to some of the judges (or their briefing attorneys)? how are the judges (or their briefing attorneys) feeling today?—and factors within your control—how good is your lawyer at this? can he or she find those interesting and important issues, and show them to the court?

Don’t be ruled by statistics.