Plaintiphobia in State Courts Redux? An Empirical Study of State Court Trials on Appeal

• DOI: http://doi.org/10.1111/jels.12066
• Date: 01 March 2015
• Published date: 01 March 2015
• Author: Theodore Eisenberg,Michael Heise

Plaintiphobia in State Courts Redux?

An Empirical Study of State Court Trials

on Appeal

Theodore Eisenberg and Michael Heise*

Prior federal and state civil appeals studies show that appeals courts overturn jury verdicts

more than bench decisions and that defendants fare better than plaintiffs on appeal.

Attitudinal and selection effect hypotheses may help explain an appellate court tilt that

favors defendants. This study builds on and extends our prior work on state civil appeals and

examines a comprehensive state court civil appeals data set to test leading theories on

appellate outcomes as well as to explore the relation between plaintiff success at trial and on

appeal. Using data from 40 different states and 141 counties on 8,872 completed civil trials

and 646 concluded appeals, we find that appellate reversal rates for jury trials and defendant

appeals exceed reversal rates for bench trials and plaintiff appeals. The reversal rate for

plaintiff appeals is 21 percent, compared with 40.9 percent for defendant appeals. The

reversal rate for jury trials is 33.1 percent, compared with 25 percent for bench trials. Both

the attitudinal and selection effect hypotheses find some level of support in our descriptive

analyses and results from more formal models. Finally, we find little correlation between how

plaintiffs fare at trial and how they fare on appeal.

I. Introduction

Appeals perform multiple and critical functions in our legal system, including error cor-

rection and facilitating the uniform application of legal rules.1In discharging their func-

tions and seeking to reconcile the competing desires for finality and accuracy, appealed

cases also form the foundation of what most observers know about the legal system. More

specifically, appellate decisions dominate casebooks, establish doctrine that binds trial

courts, and are more accessible to researchers than are the mass of unappealed trial court

decisions.

Despite their importance, appellate decisions can too easily distort perceptions of the

legal system. After all, it is the unusual legal dispute that persists through a trial and

*Theodore Eisenberg (1947–2014); address correspondence to Michael Heise, Professor, Cornell Law School, Myron

Taylor Hall, Ithaca, NY 14853.

Ted Eisenberg suddenly and tragically passed away recently, and prior to this article’s publication. Ted was a

brilliant colleague and gracious mentor. My many collaborations with Ted are—and will endure as—among my most

cherished as a law professor. Many, including me, miss Ted deeply.

1Cassandra Burke Robertson, The Right to Appeal, 91 N.C. L. Rev. 1219 (2013).

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Journal of Empirical Legal Studies

Volume 12, Issue 1, 100–127, March 2015

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generates a trial court decision. As Siegelman and Donohue demonstrated in the employ-

ment discrimination context, tried cases that generate written opinions constitute only the

tip of a large underlying iceberg of adjudicated discrimination cases.2Appellate litigation

culminating in an appellate court decision is rarer still. Even though appellate court

decisions do not accurately reflect the much larger body of legal activity that takes place

prior to an appeal, what happens to cases on appeal warrants consideration. More specifi-

cally, appellate outcomes, particularly in relation to trial court outcomes, deserve careful

study. To this end, this article explores the relation between trial and appellate court

outcomes and seeks to contribute to a growing empirical literature.

We know comparatively little about the relation between trial and appellate court

outcomes. Until relatively recently, a paucity of helpful data frustrated scholars interested

in such issues. Existing empirical scholarship on the rates of appeal and factors influencing

decisions to appeal favors federal court data;3far less is known about these issues in the state

court context.4The scholarly bias favoring federal courts is odd, particularly, as Galanter

notes, since the vast bulk of civil litigation—including appellate litigation—occurs in state

courts.5

A paucity of data has not dampened the formation of both opinions and conven-

tional wisdom concerning appellate outcomes and their relation to trial court outcomes.

Indeed, if anything, a data vacuum enhances the influence of opinions, perceptions,

anecdotes, and casual impressions. For example, standard advice to appellate lawyers

typically emphasizes the sanctity of jury verdicts and warns that “appellate challenges to jury

findings rarely succeed.”6Not surprisingly, such advice informs concrete decisions at the

beginning of the litigation process when a lawyer’s decision about whether to select a jury

trial pivots partly on popular perceptions about the comparative resilience of jury outcomes

to appellate review.7

2Peter Siegelman & John J. Donohue III, Studying the Iceberg from its Tip: A Comparison of Published and

Unpublished Employment Discrimination Cases, 24 L. & Soc’y Rev. 1133 (1990).

3Kevin M. Clermont & Theodore Eisenberg, Appeal from Jury or Judge Trial: Defendants’ Advantage, 3 Am. L. &

Econ. Rev. 125 (2001); Theodore Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further

Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. Empirical Legal Stud. 659 (2004).

4Theodore Eisenberg & Michael Heise, Plaintiphobia in State Courts? An Empirical Study of State Court Trials on

Appeal, 38 J. Legal Stud. 121 (2009); Donald J. Farole & Thomas H. Cohen, Litigating Civil Cases in State Inter-

mediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of

Appellate Litigation on Trial Court Outcomes (2013) (unpublished manuscript, on file with author).

5Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J.

Empirical Legal Stud. 459 (2004).

6George A. Somerville, Standards of Appellate Review, in Appellate Practice Manual 25 (Pricilla A. Schwab ed.,

American Bar Association 1992).

7Roger S. Haydock & John Sonsteng, Trial: Theories, Tactics, Techniques 81 (West Group 1991).

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