General Civil Jury Trial Litigation in State and Federal Courts: A Statistical Portrait

• Author: Thomas H. Cohen
• DOI: http://doi.org/10.1111/j.1740-1461.2008.00134.x
• Date: 01 September 2008
• Published date: 01 September 2008

General Civil Jury Trial Litigation

in State and Federal Courts:

A Statistical Portrait

Thomas H. Cohen*

Using data from the Civil Justice Survey of State Courts and the Adminis-

trative Office of the U.S. Courts, this article compares general civil (tort,

contract, and real property) jury trials concluded in a sample of state courts

and all federal district courts in 1992, 1996, and 2001. The study’s key

findings are: (1) that the types of civil cases coming before state and federal

juries differ substantially; (2) that overall plaintiff win rates are nearly the

same in both state and federal courts; (3) that the damages awarded to

plaintiffs in federal courts are substantially higher compared to their state

counterparts; (4) that although the vast majority of jury trials take place in

the state courts, the federal courts accounted for a relatively significant

minority of product liability trial litigation; (5) that state courts took sub-

stantially longer to dispose of civil jury trials than federal courts; and (6) that

trend data show similar patterns of declining trials and stable plaintiff win

rates in both court systems.

I. Introduction

In 1995, Eisenberg et al. published an article in the Seattle Law Review

examining civil trial litigation in the state and federal courts. Although this

article did not initially set out to compare civil trials in the state and

*Bureau of Justice Statistics, 810 7th St., NW, Washington DC 20531; email: Thomas.H.Cohen@

usdoj.gov.

Special thanks to my colleagues, including Steven K. Smith and Lynn Langton for reviewing

earlier works of this article. Paula L. Hannaford-Agor, Michael Heise, David Levin, Nicole

Waters, and an anonymous reviewer also provided helpful suggestions and comments. I’m

especially indebted to Theodore Eisenberg for providing the ideas that resulted in the genesis

of this article. The views and opinions expressed in this article are mine alone. They do not

represent the views of the Bureau of Justice Statistics, the Office of Justice Programs, or the U.S.

Department of Justice.

Journal of Empirical Legal Studies

Volume 5, Issue 3, 593–617, September 2008

© 2008, Copyright the Author

Journal compilation © 2008, Cornell Law School and Wiley Periodicals, Inc.

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federal courts, it ultimately provided the reader with a picture of both

the differences and similarities between state and federal civil litigation.

Eisenberg et al. utilized state civil trial data from the 1992 Civil

Justice Survey of State Courts and federal civil trial data from the Admin-

istrative Office of the U.S. Courts for fiscal years 1979–1993 to examine

various characteristics of civil trial litigation, including who wins in civil

trials, how much money is won, case-processing time, and trends in

plaintiff win rates.

This article updates the Eisenberg et al. study by comparing state and

federal civil trial litigation with more data and more recent data. The state

data include civil jury trials concluded in a sample of the nation’s 75 most

populous counties in 1992, 1996, and 2001, while the federal data include

civil jury trials that reached a verdict in all federal district courts during the

same calendar years. Various characteristics of civil trial litigation in the state

and federal courts are compared, including the types of cases that are

resolved by trial, plaintiff win rates in civil trials, damages awarded to plaintiff

winners, and case-processing time. In addition, this article compares the

distribution of trials and damage awards in the state and federal systems and

concludes by highlighting civil trial trends in federal and state courts during

the 1992, 1996, and 2001 time period.

Comparing civil jury trials in the state and federal courts is important

for a variety of reasons. First, there have been no studies of the subject since

the Eisenberg et al. article in the mid-1990s. Most empirical research on civil

litigation focuses singularly on either the state or federal courts. Hence, this

article will offer an important contribution to the field of civil justice

research by providing updated comparisons of civil trial litigation in the state

and federal courts. Moreover, this article will improve on the Eisenberg et al.

study by analyzing and describing federal and state trial litigation trends

from 1992 through 2001.

In addition, there is a widespread perception among attorneys, liti-

gants, and policymakers that defendants are provided with more favorable

forums than plaintiffs in the federal courts. The acceptance of this view is

manifested by the growing trend of defendants removing diversity cases from

the state to the federal courts (Eisenberg & Morrison 2005).1The Class

1Eisenberg and Morrison show that removal is being used in part as a means of increasing delays

and costs for civil litigants in state courts (Eisenberg & Morrison 2005).

594 Cohen