TorteDeForm

Justinian Lane

Cornell studies show that Defendants are almost twice as likely to win on appeal than Plaintiffs

Plaintiphobia is a term Professor Eisenberg first used in a 2002 study (SSRN Link) to describe the fact that Federal appellate courts are "more favorably disposed to the defendant than are the trial judge and the jury."  The 2002 study, Plaintiphobia in the Appellate Courts: Civil Rights, found Defendants prevailed in 33% of their appeals, while Plaintiffs only won 12% of theirs.

Professor Eisenberg recently extended his work to cover state courts, and the findings are very similar. In May of 2007, Cornell professors Theodore Eisenberg and Michael Heise released Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal (SSRN Link). 

Eisenberg wrote that "[D]efendants were far more likely than plaintiffs (41.5% versus 21.5%) to successfully reverse an adverse trial outcome. Indeed, from the perspective of a plaintiff victorious at trial, the appeals process offered a chance to retain victory not far from what a coin-flip would predict." (Emphasis added.)

The table below breaks down the reversal rates for both State and Federal appeals.

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Lawyer folklore holds that appellate courts are reluctant to disturb the decision of a jury.  This study revealed that appellate courts are actually more likely to reverse a jury decision than a decision by the trial judge - a finding that surprised the Professors.

The following table lists the reversal rates for trials by type of case and again shows that state appellate courts tend to favor Defendants.  As Eisenberg noted, "In five of the 14 case types considered, the defendants’ reversal rate met or exceeded 50%. In none of the case types considered did the plaintiffs’ reversal rate exceed 40%. Thus, defendants emerged from the state appellate process in a far better position than they left the trial court." (Emphasis added.)

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This study is just the latest nail in the coffin for the incorrect theory that the civil justice system treats Defendants unfairly.  If anything, the evidence suggests it is Plaintiffs who don't get treated fairly.

Justinian Lane: Author Bio | Other Posts
Posted at 11:10 AM, Jun 14, 2007 in Civil Justice
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Comments

To the contrary - the fact that the defendants usually win on appeal shows how badly (or incompetantly) the trial courts are treating civil defendants. The appellate process is very expensive (if the jury has run amok with the size of the award, then the cost of the appeal bond is huge) and, depending upon the jurisdiction, very slow.

It is hardly surprising that an appellate court will disturb a jury verdict more often than that of a trial judge. When you consider how hard plaintiff counsel (usually) works to eliminate any juror with intelligence and / or education during jury selection, you would expect juries to make decisions commensurate with their collective lack of intelligence - and they do.

[Justinian: There you have it, folks. Juries are too stupid to decide a car crash lawsuit, but are smart enough to decide which criminals to put to death.]

Posted by: Paul W Dennis | June 14, 2007 11:21 PM

I'm a little confused, Justinian. If your data shows that trial courts get it wrong significantly more frequently in favor of plaintiffs than in favor of defendants, how do you conclude that it's plaintiffs being treated unfairly?

[Justinian: That's not what the data shows. The data shows that of those cases that are appealed, Defendants do better than Plaintiffs. Your assertion would require an analysis of all cases decided by trial courts, including those which were not appealed.]

Posted by: David Nieporent | June 15, 2007 3:36 AM

Do you know if there is state-specific data available? It would be interesting to see how states compare with one another.

Are certain states' courts more likely to treat defendants more favorable than other states? Is there a regional bias? Does this follow political trends within states?

Posted by: Alex Winslow | June 15, 2007 3:58 PM

"[Justinian: There you have it, folks. Juries are too stupid to decide a car crash lawsuit, but are smart enough to decide which criminals to put to death.]"

My point exactly. While philosophically I AM in favor of the death penalty, as a practical matter I DO NOT think it can be adminstered fairly, there I oppose its application

[Justinian: I'm with you there, Paul. There are some people who should be put to death, but absent a guilty plea and video evidence, I'm too afraid to support the death penalty.

What about judges? Would you permit them to award as they see fit?]

Posted by: Paul W Dennis | June 16, 2007 9:57 PM

Why is it any surprise that jury verdicts are reversed more often than bench verdicts? If there's prejudicial error in a bench trial, the judge can write an opinion explaining that he or she disregarded the error. And many judges "appeal-proof" their decisions by deciding on alternative grounds to reduce the chances of being reversed. A jury verdict is merely thumbs-up or thumbs-down, and they can't defend their decision to an appellate court in anticipation of the arguments the losing side is going to make. (We'll leave aside the fact that jury trials are necessarily a different mix of cases than bench trials, so the apples-to-apples comparison that Lane is making is faulty to begin with.)

The data shows that plaintiffs do better in trial courts (where there is one judge) than in appellate courts (where there are three judges). And that's all that it shows.

One cannot conclude that the system is treating plaintiffs or defendants more or less fairly without an underlying examination of the cases. It could be that defendants win 32% of appeals but should be winning 60% of appeals, and both trial courts *and* appellate courts are being unfair to defendants. Or it could be that both levels are unfair to plaintiffs, though that would contradict other studies on the subject that demonstrate the severe disadvantage out-of-state defendants have against in-state plaintiffs in state court, a problem recognized as far back as the Federalist Papers. (Our Founding Fathers, those dastardly tort reformers!) Or it could be that one level is unfair to plaintiffs and one level is unfair to defendants. Or that one is unfair to one, and one is fair to both. So when JL says "This study is just the latest nail in the coffin for the incorrect theory that the civil justice system treats Defendants unfairly" it just shows he once again has no idea what he's talking about.

And it's not just a theory: it's a fact, one regularly bragged about by plaintiffs' lawyers when they think the public won't hear them. Google "magic jurisdiction" sometime, or do a search of Mikal Watts on pointoflaw.

Posted by: Ted | June 17, 2007 6:03 PM

Mikal Watts? The Mikal Watts that's going to send Senator Cornyn back home? Lol. I'm not going to engage you in discussion about "magic jurisdictions" unless and until you admit there are jurisdictions that are "magic" for defendants.

In your discussion of jury verdicts being thumps-up or down, you forgot to mention that many times jury verdicts are appealed because of an error made by the judge, such as letting in improper evidence or excluding proper evidence.

"One cannot conclude that the system is treating plaintiffs or defendants more or less fairly without an underlying examination of the cases."

Then that means you can't say the justice system isn't treating defendants fairly.

Posted by: Justinian Lane | June 17, 2007 6:47 PM

Most juries vote for the defense on the facts. Most tort claims allege garbage facts, so say juries.

This study shows appellate courts vote for the defense on the law. Most tort claims assert garbage law, so say appellate courts.

Torts. Garbage facts. Garbage law.

Posted by: Supremacy Claus | June 17, 2007 8:57 PM

Justinian, caught once again being dishonest, changes the subject instead of defending his exaggerations, much less correcting himself.

"I'm not going to engage you in discussion about "magic jurisdictions" unless and until you admit there are jurisdictions that are "magic" for defendants."

In case you aren't aware of basic rules of civil procedure, defendants don't get to choose the jurisdiction where plaintiffs file cases (beyond the occasional opportunity to remove cases to federal court when plaintiffs are careless about taking advantage of jurisdictional loopholes), so, no, I'm as yet unaware of a "magic jurisdiction" where a defendant can turn a losing claim into a winning claim, and I have yet to hear you identify one so that I can judge the evidence. You keep asserting such animals exist, and they might, but the fact that in two years you haven't named a single county where they do suggests something.

"jury verdicts are appealed because of an error made by the judge, such as letting in improper evidence or excluding proper evidence."

Um, no, I didn't. That was precisely my point. It's assumed a judge can disregard these things, while they may prejudice a jury. In a bench trial, a judge who wants to appeal-proof his or her decision will make an evidentiary ruling, and then write that it was not material to his or her decision so that if the evidentiary ruling is incorrect, it doesn't result in reversal. So, ceteris paribus, one would expect jury trials to see more reversals than bench trials.

"Then that means you can't say the justice system isn't treating defendants fairly."

I can't say it with respect to *this study*, because this study doesn't answer the question. But I can say it in general, because (1) I'm relying on a different dataset that does demonstrate that state juries treat out-of-state defendants differently than other parties; (2) I *have* analyzed the underlying cases that I criticize; (3) I see the firsthand evidence from the plaintiffs' lawyers who practice that they believe that certain jurisdictions don't treat defendants fairly; and (4) I am criticizing specific judicial decisions that violate defendants' constitutional rights, such as Illinois courts' Lipke rule or the Ninth Circuit's approach to class actions.

Posted by: Ted | June 17, 2007 11:39 PM

Any dishonesty must be on the part of Eisenberg and Heisse, as I said very little beyond quoting them. The only exaggeration I could have made was by stating that I believe the evidence shows plaintiffs are treated unfairly and that defendants are treated fairly. OK, how's this: "Some defendants and some plaintiffs are treated unfairly in some jurisdictions."

One "magic jurisdiction" for Defendants is Taylor County, Texas. Juries there often award legitimately injured plaintiffs a sum less than their medical bills. Judges there routinely rule in favor of a Defendant moving for summary judgment. The District Court judges there seem more pro-defendant than the County Court at Law judges, so you can confine your study to the DC's. You could also take a look at the 11th Circuit, which has a reputation as being far more Defendant-friendly than Austin's 3rd Circuit, for example.

Posted by: Justinian Lane | June 18, 2007 10:15 AM

"How's this: "Some defendants and some plaintiffs are treated unfairly in some jurisdictions.""

That's still not supported by the data. Moreover, you haven't issued a correction. Moreover, you continue to make false statements (as your latest slander of me), and it's not just sloppiness, because they're all false in a pro-litigation-lobby direction.

Name one unreasonable reported pro-defendant decision from the Texas 11th Circuit. Just one. I'll even document it on Overlawyered; I haven't hesitated to criticize unreasonable pro-defendant decisions there.

Posted by: Ted | June 18, 2007 11:19 AM

What am I supposed to correct? The fact defendants get treated better by appellate courts than do plaintiffs? Show me contradicting data or point out errors in Eisenberg's methodology in either this study or his prior study.

I haven't slandered you. I simply pointed out that the policies you advocate will make it harder for minorities to bring discrimination suits. You're fooling yourself if you think noneconomic damage caps and "loser pays" won't reduce the number of attorneys willing to file these suits.

To be clear: I did not say and I do not think you're a racist. I did say and do think your employer has funded the work of racists, and as such, don't believe it's appropriate for you to levy charges of racial prejudice against the AAJ. I already gave a greater response at Corprefom, and would prefer to keep that discussion there.

The appropriate challenge isn't to find one pro-defendant or pro-plaintiff decision. I'm sure every circuit has at least one decision that can be described as biased in one way or the other. The appropriate challenge is to find a circuit that ruled unfairly against defendants more often than they ruled fairly for defendants. In order to name such a circuit, one would have to analyze every decided by that circuit for a specific period of time. Without such evidence, it's incorrect to claim a court is a "magic jurisdiction" - regardless of whatever you've heard Mikal Watts say about his favorite court(s). Let's single out everyone's favorite "magic jurisdiction" Madison County. Do you have evidence that the judges in Madison County unfairly rule in against defendants more often than they rule fairly in favor of defendants? If so, produce the evidence. Otherwise, why not quit unfairly characterizing an entire jurisdiction as biased because of a few errant decisions?

Posted by: Justinian Lane | June 18, 2007 12:10 PM

Justinian, apparently unable to remember a comment made just a few hours ago, still hasn't corrected his dishonest statement "This study is just the latest nail in the coffin for the incorrect theory that the civil justice system treats Defendants unfairly," and now claims that there is nothing to correct at all, even though he still hasn't defended it against my refutation.

"The appropriate challenge isn't to find one pro-defendant or pro-plaintiff decision."

In other words, though Justinian continues to claim that there are jurisdictions that are unfairly pro-defendant, he can't back up his claim with even an anecdote of unfairness, much less the comprehensive data that demonstrates the problem on the other side.

"I simply pointed out that the policies you advocate will make it harder for minorities to bring discrimination suits."

And, once again, Justinian lies, when in fact he falsely claimed that I wanted to deprive "all" African-Americans of "meritorious" discrimination suits.

"Do you have evidence that the judges in Madison County unfairly rule in against defendants more often than they rule fairly in favor of defendants?"

Nice dishonest changing of the subject, but that's not the question. The question is whether plaintiffs have a systematically unfair advantage in Madison County courtrooms, and the answer is yes (though the courts there are slightly better now than five years ago as the judges behave better now that they are under scrutiny). This is well-documented on Point of Law, on Overlawyered, and in the reports and opinions cited there. And note that one of those "errant decisions" was hardly just an immaterial accident: it was a $10 billion judgment in the Price case on behalf of plaintiffs who suffered no personal injury, and the lawless judge in that case has attempted to revive it ultra vires even after the Illinois Supreme Court reversed him and ordered the case dismissed. The unconstitutional Lipke decision alone has resulted in the theft of billions of dollars from innocent defendants in thousands of cases.

Don't try to defend Madison County when you haven't even done the basic reading on the subject, Justinian: it exposes your ignorance.

Posted by: Ted | June 18, 2007 12:47 PM

Did you not read where I wrote, "some plaintiffs and some defendants are treated unfairly in some jurisdictions?"

"...he can't back up his claim with even an anecdote of unfairness, much less the comprehensive data that demonstrates the problem on the other side."

Here are some "anecdotees" of unfairness: SCOTUS' Ledbetter decision. The Texas court decision that Vioxx suits are all bust because of FDA preemption. Trudy Roy's lawsuit against Alabama. And of course, my favorite, State Farm v. Campbell. Seems to me Defednants came out well in all of those.

"And, once again, Justinian lies, when in fact he falsely claimed that I wanted to deprive "all" African-Americans of "meritorious" discrimination suits."

I'm not lying, you just can't read. I said that you "work tirelessly" - not "wanted to". I said you're trying to deprive the AAJ members of the ability to file descrimination suits - not that you're trying to do anything to blacks. You completely dodged my point that the policies you advocate will make it harder for minorities to bring meritorious discrimination suits.

You missed or misunderstand the point about "magic jurisdictions." It doesn't matter how unconstitutional or how costly the Lipke decision was. *ONE* case does not mean a jurisdiction is unfairly biased. Neither does 2. Or 20. What matters is if a significant percentage of the decisions rendered were unfair. Do you have those stats? Here's how to do the math: Take the total number of cases decided unfairly, and divide them by the total number of cases decided. What's the percentage? 1% of cases? 3%? Only with that data can you tell if there's something fundamentally wrong with a given jurisdiction.

Posted by: Justinian Lane | June 18, 2007 2:30 PM

"I said you're trying to deprive the AAJ members of the ability to file descrimination suits"

And, again, Justinian repeats the lie.

"Do you have those stats?"

Yes, I do. 100% of the asbestos cases in Madison County were decided under the unconstitutional Lipke rule that guaranteed that it would be impossible for a defendant to get a fair trial. Which is why, at its peak, one out of three asbestos cases in the nation were being brought in Madison County, almost invariably by plaintiffs who never set foot there. And again, Justinian demonstrates he doesn't know what he's talking about when he incorrectly states that Lipke was "just one case," but feels it is more important to try to bluff a response instead of being honest or actually researching what he is talking about.

Lane identifies several cases in different jurisdictions where defendants won complete or partial victories because the judges correctly applied the law as written by the legislature instead of just awarding money to plaintiffs. (State Farm v. Campbell is an exception: that was a constitutional case where the Supreme Court decided that a $145 million punitive damages award for a wrong that had a maximum criminal penalty of $10,000 was unconstitutional. Note that the plaintiff in that case still received $1 million plus additional punitive damages; he lost only the lottery jackpot award. Doesn't sound very defendant-friendly to me, given that the trial court originally threw the case out as meritless, and given that plaintiff suffered zero economic damages. But making an unharmed plaintiff a millionaire, to Justinian, means that the "defendant came out well ahead.") That's hardly a magic jurisdiction, and once again, Lane fails to back up false claims he makes.

[Justinian: That's three times now you've refused to answer whether you think loser pays and damage caps will reduce the number of suits filed.

Lipke *was* just *one* case, out of Cook County, if I recall correctly. It was a case that prevented defendants from admitting other evidence of causation of asbestosis, right? The Illinois Supreme Court hasn't yet ruled on whether Lipke is unconstitutional, has it? So isn't it accurate to say that 100% of asbestos cases in Madison Country were tried under a rule in Illinois that is still the law of the land?]

Posted by: Ted | June 18, 2007 7:31 PM

Loser pays and noneconomic damages caps will reduce the number of meritless suits filed. It will increase the number of meritorious suits filed. And I've said that several times before over the last several years. Note that Justinian's concern is only about "the number of suits" rather than whether truly injured plaintiffs recover and innocent defendants are protected from extortion: the reformers care about justice, while the anti-reformers care only about the effect on the trial bar.

Justinian *still* hasn't corrected or defended his exaggerated lie "This study is just the latest nail in the coffin for the incorrect theory that the civil justice system treats Defendants unfairly. If anything, the evidence suggests it is Plaintiffs who don't get treated fairly."

Posted by: Ted | June 19, 2007 2:24 PM

Loser pays and noneconomic damages caps will reduce the number of meritless suits filed. It will increase the number of meritorious suits filed. And I've said that several times before over the last several years. Note that Justinian's concern is only about "the number of suits" rather than whether truly injured plaintiffs recover and innocent defendants are protected from extortion: the reformers care about justice, while the anti-reformers care only about the effect on the trial bar.

Justinian *still* hasn't corrected or defended his exaggerated lie "This study is just the latest nail in the coffin for the incorrect theory that the civil justice system treats Defendants unfairly. If anything, the evidence suggests it is Plaintiffs who don't get treated fairly."

I also note that Justinian has no substantive defense of the unconstitutional Lipke rule that has unfairly prejudiced every asbestos defendant in Madison County.

Posted by: Ted | June 19, 2007 2:25 PM

"Loser pays and noneconomic damages caps will reduce the number of meritless suits filed. It will increase the number of meritorious suits filed." Loser pays will scare every plaintiff and will reduce both meritorious and non-meritorious lawsuits. This is especially true for cases in which the plaintiff's damages are small, but the defendant's legal costs are likely to be large.

With respect to my "exaggerated lie": Ted, that is my opinion. It is neither exaggerated nor a lie. I truly believe plaintiffs are at a disadvantage, and I base that belief in part on this study. If I "corrected" my opinion, I'd have to quit writing on behalf of plaintiffs and tear down Corpreform. As much as those actions might please you, it's not gonna happen.

As for Lipke? First of all, it has not yet been declared unconstitutional. I find it odd that someone who purports to respect the rule of law would so harshly criticize Madison County judges for relying on a twenty-year old case that has yet to be overturned. Should judges just ignore the law to protect defendants?

Posted by: Justinian Lane | June 19, 2007 3:17 PM

This is why it is pointless to discuss anything with Justinian: he refuses to take a consistent or intellectually honest position. His June 17 6:47 PM comment is 180 degrees opposite of his June 19 3:17 PM comment. Which *still* hasn't addressed my June 17 6:03 PM comment showing that his "final nail" statement is an appalling lie, even though he now has had a dozen separate opportunities to do so. He's simply trolling.

[Justinian: Ted, "final nail" is a metaphor. It is nothing more than a colorfol way of expressing my *opinion* that the court system does not treat defendants unfairly. There is absolutely no way of proving one way or the other which party is treated fairly by the court system as each case is differen and requires its own analysis. And, "fairly" is a matter of *opinion*. It's like trying to prove steak is better than chicken. (Which, in my *opinion* it is.)

Finally, did you know that Wikipedia says, "Sometimes, overly using the word "troll" may constitute trolling in itself." I think this is the third time you've accused me of trolling on TD or Corpreform...]

Posted by: Ted | June 20, 2007 2:31 AM

Justinian: If studies show that juries vote for the defense in the majority of claim over many years, if studies show appellate courts vote hold for the defense over many years, that is scienter by the plaintiff bar. They are on notice, most of their claims have merit neither on the facts nor on the law. Such notice justifies a class action against the plaintiff bar, the colluding judges allowing meritless claims, and their employers, the government entities.

Why will no lawyer here support the benefits of torts in improving the lawyer and judge services? The reason is that torts is a lucrative land piracy operation. Torts is a crime of massive proportion, dwarfing the damage caused by other theft.

Posted by: Supremacy Claus | June 20, 2007 7:52 AM

Unpersuasive, unlawyerly epithets against those who disagree only show frustration in the traverse on the traverse. I once considered hiring him as a litigator. Frustrated, personal remarks in a tribunal end the case for the client.

[Justinian: Sick burn.]

Posted by: Supremacy Claus | June 20, 2007 4:36 PM

"Justinian: Ted, "final nail" is a metaphor."

Another reason why it's pointless to debate anything with Justinian is that he seems to think that words don't actually mean anything, and that when he uses words that mean X, it's okay to simply say "I didn't mean X" eighteen comments down instead of correcting himself, much less apologize for wasting everyone's time. It's a fundamentally dishonest means of argumentation.

Of course "final nail" is a metaphor. It's a metaphor meaning "conclusive proof that buries an argument." Since the Eisenberg study is not in the slightest conclusive proof (or, indeed, even support) for your proposition you are being dishonest when you use that language, and you're being dishonest when, instead of defending your claim, you weasel and say "it's a metaphor" instead of either (1) responding to the refutation explaining why the Eisenberg study doesn't support your position or (2) retracting your lie.

[Justinian: Ted, there is no way you can conclusively prove that the civil justice system is unfair to defendants. There is no way I can conclusively prove the civil justice system is unfair to plaintiffs. "Fair" and "unfair" are matters of opinion. What you may think is fair, I think is unfair and vice versa. Does that mean one of us is a liar?

And I do believe the Eisenberg study supports my claim that plaintiffs are treated unfairly in appellate courts.]

Posted by: Ted | June 20, 2007 10:45 PM

"Ted, there is no way you can conclusively prove that the civil justice system is unfair to defendants."

That's absolutely false. Lester Brickman has done a wonderful job demonstrating that 80 to 90% of asbestos claims are fraudulent. A case-by-case study of the Vioxx trials shows that Merck has been systematically treated unfairly in state court. Similar analyses are possible in other spheres.

"I do believe the Eisenberg study supports my claim that plaintiffs are treated unfairly in appellate courts."

And, as I demonstrated in this comment, you believe that without any factual basis from the study, yet twenty comments later, you still refuse to address the refutation.

Posted by: Ted | June 21, 2007 6:57 PM