Plaintiphobia. There's a word to stir up the blogs.
It was coined by Cornell professors Theodore Eisenberg and Kevin Clermont, in a 2002 paper showing that defendants succeed more often than plaintiffs in reversing federal trial court judgments on appeal. (Personal note: Kevin Clermont was the first professor to call on me in law school. Almost thirty years later I'm a little nervous just typing his name.) Prof. Eisenberg and his Cornell colleague Michael Heise, now both also of Empirical Legal Studies Blog, extend the study to state court data in a new article, "Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal."
For winning plaintiffs, "not far from a coin-flip"
Sure enough, defendants succeed more often than plaintiffs in state appeals too. Eisenberg and Heise explain:
[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. For defendants, by contrast, victories at trial were far more secure.
Forget what you've heard about jury verdicts on appeal
The other "loser" in this study is a surprise: the jury trial itself. Any trial lawyer can confirm that conventional wisdom, as the authors put it, "typically emphasizes the sanctity of jury verdicts and warns that 'appellate challenges to jury findings rarely succeed.'" But the conventional wisdom isn't true: in the state court study, bench trials were reversed only 27.5% of the time, while jury verdicts were reversed more than a third of the time.
What's going on here? Are trial courts favoring plaintiffs and appeals courts simply correcting the imbalance? Are appellate judges really plaintiphobes, not to mention juryphobes? Eisenberg and Heise crunched the data every which way, trying to rule out "confounding factors, including the trial court’s behavior, the decision to appeal, and post trial settlement conduct." They suspect the key factor is "appellate court attitudes and assumptions about trial courts":
Whether the observed higher plaintiff reversal rate flows from trial courts favoring plaintiffs or appeals courts favoring defendants or some combination of both remains unclear. Because appeals court systematic disagreement with trial courts is strongest for jury verdicts favoring plaintiffs combined with aggregate trial court decisions that have not been demonstrated to favor plaintiffs over defendants, the interpretation that appellate court misperceptions about jurors’ bias toward plaintiffs— rather than outright jury bias at trial—is currently the more plausible explanation.
Does it ring true?
From a practitioner's seat at counsel table, a higher reversal rate for jury verdicts makes sense when you think about it. As the authors suggest, it's far easier for everyone involved to make mistakes in jury trials. Bench trials have no jury instructions, special verdict, or voir dire to get wrong, for one thing. For another, judges hearing trials alone are more willing to give us time to get things like an evidentiary foundation right. And in the calmer atmosphere of a bench trial, we are more likely to remember to protect the record.
But as Eisenberg and Heise point out, none of that explains why defendants win more appeals than plaintiffs do. Every case in the end must stand or fall on its own mix of strength and luck, and plaintiffs win plenty of trials and appeals. But if you read this paper right after the recent one suggesting that juries favor doctors in malpractice cases, you might start to wonder if there really could be such a thing as plaintiphobia.
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The Eisenberg and Heise article is also linked to at TortsProf Blog and Legal Blog Watch.
(Photo by SideLong at http://www.flickr.com/photos/sidelong/305305214/; license details there.)
