Litigant Status and Trial Court Appeal Mobilization

• Date: 01 October 2015
• Published date: 01 October 2015
• DOI: http://doi.org/10.1111/lapo.12040
• Author: Christina L. Boyd

Litigant Status and Trial Court

Appeal Mobilization

CHRISTINA L. BOYD

The advantages held by haves over have nots in litigation have long fascinated

scholars, with a long line of research revealing that litigant status often affects

litigant resources, experience, and chances of overall success from trial courts to

appellate courts. What has received considerably less attention, however, is how

this status affects the decision to appeal. Bringing a new perspective to this

important area holding implications for the shape and content of the judicial

hierarchy, this study analyzes the decision of the losing federal district court

litigant to appeal to the US courts of appeals. Utilizing an original database

containing a sample of federal district court civil cases decided between 2000 and

2004, the results indicate, as predicted, that litigant status differentials affect

whether there will be an appeal. This influence is further magnified when condi-

tioned upon the relative costs of the appeal. These findings provide one of the first

detailed examinations of litigant status and appeals coming from US trial courts

and, simultaneously, offer the first empirical evidence to date that business liti-

gants, like previously known government parties, are advantaged over individuals

when deciding whether to appeal.

“The right to appeal at least once without obtaining prior court approval is

nearly universal” and “has become, in a word, sacrosanct” (Dalton 1985, 62).

Within civil cases in the federal judicial hierarchy in the United States, the

right to appeal from the trial court (district court) to the intermediate appel-

late court (courts of appeals) is generally guaranteed to litigants and is not

subject to the discretionary, agenda-setting decision making of the appellate

court (Haire, Lindquist, and Songer 2003), thus making this an institutional

provision that varies significantly from the US Supreme Court’s discretion-

ary agenda control. This right to appeal has been deemed so important that

I am grateful to Ryan Black, Pauline Kim, Andrew Martin, Margo Schlanger, Kevin Scott,

James Spriggs, and the editor and anonymous reviewers of Law & Policy for providing useful

comments; Sophie Fortin, Shadi Peterman, Gregg Re, Annie Rushman, and Erica Woodruff for

their excellent research assistance; and the National Science Foundation, the Center for Empiri-

cal Research in the Law at Washington University, the Baldy Center for Law & Social Policy,

and the Department of Political Science at the University of Georgia for supporting this

research.

Address correspondence to: Christina L. Boyd, University of Georgia—Political Science, 104

Baldwin Hall, 355 S. Jackson Street, Athens, GA 30602, USA. Telephone: 706-542-2958; E-mail:

cLboyd@uga.edu.

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LAW & POLICY, Vol. 37, No 4, October 2015 ISSN 0265–8240

© 2015 The Author

Law & Policy © 2015 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12040

it is considered a great, nearly axiomatic, procedural protection of the Ameri-

can legal system (see Dalton 1985, quoting Robert Leflar).

Importantly, however, while losing federal civil trial court litigants gener-

ally have a right to appeal their adverse judgments, they only rarely exercise

it.1This consistently low overall rate of federal trial court appeal begs the

important questions of who appeals, when, and why. The answers to these

questions may well lie with litigant status theory (sometimes referred to as

party capability theory). According to this theory, with resources, experience,

higher quality lawyers, efficient operations, and repeated opportunities to

adjudicate matters, haves are often advantaged over their have not opponents

in many litigation-related activities and decisions (Galanter 1974). As a con-

sequence, advantaged parties tend to reap numerous advantages, ranging

from higher success rates in court to prosperity in “the distribution of mate-

rial and symbolic goods” (Songer, Sheehan, and Haire 1999, 812) that result

from court outcomes.

Just as with other litigation decisions like filing a lawsuit, prosecuting or

declining to prosecute, settling a lawsuit prior to trial, or accepting a plea

bargain, a potential appellant’s resources, strengths, experience level, and

other advantages relative to his opponent—in other words, factors at the

heart of litigant status theory—should be closely intertwined with the appeal

mobilization decision. Despite this potential litigant status link and the

overall importance of the appeal decision, the influence of litigant status on

the appeal decision has received little empirical attention. What evidence that

does exist supports the presence of a status effect outside of US trial courts.

Zorn (2002) and Pacelle (2003) find that the federal government has uniquely

powerful abilities in US Supreme Court appeal decisions. Waltenburg and

Swinford (1999) confirm the presence of this strength in appeal mobilization

among state governments. And Atkins (1993) and Hennigar (2007) indicate

that these significant advantages held by haves also extend to foreign court

appeal decisions. While informative, these appeal-focused studies leave much

unknown about litigant status and appeal mobilization, including whether

status advantages at appeal extend beyond governments and, in the United

States, beyond high court settings. To help further this body of work, this

study turns to the potential influence of litigant status on the decision of

whether or not to appeal a federal trial court outcome to the federal courts of

appeals—the intermediate federal appellate courts responsible for the final

decisions in nearly all federal appeals today (Martinek 2008).

In what follows, this article argues that when it comes time to mobilize for

an appeal from the federal trial court to the supervising court of appeals, the

potential appellant’s odds of continuing to pursue his case should be at their

highest when he is a have, leveraging the many advantages inherent with that

status, facing a relative have not opponent. As the theory details, through

sophisticated filtering, asymmetrically advantaged potential appellants’ like-

lihoods of appeal are likely to be conditioned on the relative costs of the

appeal (i.e., the costs of appeal relative to the costs already sunk into the case

Boyd TRIAL COURT APPEALS 295

© 2015 The Author

Law & Policy © 2015 The University of Denver/Colorado Seminary