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Plaintiphobia in State Courts ？An Empirical Study of State

Court Trials on Appeal

Theodore Eisenberg and Michael HeiseJournal of Legal Studies

報告人：高培儒

20090902

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1. Introdutions

• Past Result from federal civil appeals：1. Appeals court are more likely to disrupt jury

verdicts than bench decisions

2. Trial court defendants fare better than plaintiffs on appeal

• Hypotheses1. Attitudinal effect

2. Selection effect

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1. Introdutions

• Using data from 46 countries

• They find that state court appellate reversal rates for – jury verdict (33.7%) , bench trial (27.5%)

– appealed by plaintiffs (21.5%), appealed by defendants (41.5%)

– Consistent with federal cases

– And this support more on attitudinal effect

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2.1 Differential Attitude Hypothesis

• This theory emphasizes the possibility that– Either trial courts exhibit a pro-plaintiff bias

– Or appeal courts perceive (or mis-perceive) trial courts as being pro-plaintiff

– Because natural empathy with a victim, trial court bias favoring plaintiffs may exist

– Even if the bias does not exist, appellate courts may assume such a bias exists and act accordingly

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2.2 Selection effect Hypothesis

• Posit that plaintiffs and defendants systematically appeal cases of different quality– different stakes, settlement incentives, and others

• Theory implies that– the side with more at stake should be willing to

settle their weakest cases

– This increase their win rate

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2.2 Selection effect Hypothesis

• The plaintiff win rate at trial was 55.4% (US Department of Justice 2004)

• It might evidence plaintiffs’ higher stakes

• Just as trial court, the plaintiffs should equally careful about only pushing stronger cases on appeal

• If so, appeal reversal rates for plaintiffs would approximate the defendants’ reversal rate, if not exceed it

• But this isn’t consistent with data

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2.2 Selection effect Hypothesis

• Posner (1985)– Losing defendants might access settlement

decision through a cost-benefit lens

– Losing plaintiffs might place more weight on the desire to ‘’be heard fully’’ on appeal

– If so, one would expect an appellate rate to favor defendants.

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3. Data, Methodology, and Research Design

• Data sets：1. Civil justice survey of state courts, a project of

the NCSC and the BJS gathers data from state court clerks’ offices on tort,

contract, and property cases disposed by trial during 2001

The 2001 data set covers state courts in a random sample of 46 of the nation’s 75 most populous countries

Include information on 8038 trial

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• Data sets：2. A followed-up study implemented by NCSC and

BJS– which supplemented the 2001 trial study by tracking

the 1204 appealed case

– 47 (3.9%) case were exclude, because the appeals lacked critical information about which party prevail at trial

– Exclude cases where it was not clear that the nature of the appeal was adverse

– Finally, they use 965 usable appealed cases

3. Data, Methodology, and Research Design

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Table 1

• In 8038 completed state court trails

• only 12% (965) continued to appeal process

• just over one-half (549) completed at least the first level of it, disposition by an intermediate appellate court

• The federal data cover the period 1988 through 1997

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4.1 The Vanishing Appeal

• Their state appeals rate seems being much smaller both in comparative and absolute terms

• However, there are structural differences between federal and state appeals

• The types of claim– Ex, to access the federal court system– litigants must either raise a federal question – or plead for damages that exceed $75,000 and

establish diversity between parties

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4.1 The Vanishing Appeal

• These routes naturally higher stakes cases into federal courts and away from state courts

• Therefore, if federal trials typically involve higher stake claims than those in states trials

• We should expect the federal appeals rate exceed the state appeals rate

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4.1 The Vanishing Appeal

• In alternative, their finding of lower state appeals rate might be due to the different time periods of the two studies and capture a downturn in appeals activity

• The influence of motor vehicle cases on state courts also contributes– Such cases account for a much smaller fraction of

federal trials– However, it has the lowest appeal rate (4.0%)– The overall state appeals rate increase to 16.3% if we

disregards state motor vehicle cases

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4.1 The Vanishing Appeal

• Besides

• Defendants who lost at trial were more likely than plaintiffs to initiate an appeal

• State litigants were more likely to appeal bench than jury trail decision

• These comport with federal data

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4.2 Appeal Drop-Out

• Insert Table 2

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4.3 Appeal Outcomes

• Appeals courts were far more likely to affirm than reverse a trial court decision

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5.1 Modeling the Decision to Appeal and the Appeal Outcome

• With respect to the decision to appeal, parties’ perceptions(correct or not) about

• how appellate courts react to jury trials compared to bench trials,

• and to plaintiff trial court wins compared to defendant wins, likely inform litigants

• They include these dummy variables

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5.1 Modeling the Decision to Appeal and the Appeal Outcome

• They also expect that a state and particular case type’s ‘’reversal culture’’ influences a decision to pursue an appeal

• Case types also exercise important influence over other factors– Ex, case type influence the routing of cases to trial

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5.1 Modeling the Decision to Appeal and the Appeal Outcome

• Individual, corporation, and governments vary in their appetite for and behavior in litigation

• Moreover, because litigants’ decisions about whether to appeal may vary over time,

• they include the year the lawsuit was initially filed

• To account for state-level effects, they include multi-countries dummy for those states with more than one sampled country

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5.1 Modeling the Decision to Appeal and the Appeal Outcome

• Efforts to model the outcome of an appeal call for a similar, though slightly different, set of independent variables

• These involves trial type (judge, jury, defendant win or plaintiff win)

• other ： case types, party types, and year appeal filed etc

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5.2 Results

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5.2 Results

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5.3 Discussion

• The regression models support the earlier descriptive findings and are consistent with an appellate court tilt favoring defendants, especially lost a jury trial

• And selection effects are unlikely to completely explain the appellate outcome

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5.4 Implication for Attitudinal Hypothesis

• Do their findings imply juries exert a pro-plaintiff bias？• This scenario is unlikely

• Kalven and Zeisel 1996 ； Eisenberg et al. 2005, 2006：• Judges and juries act in comparable ways when

confronted with comparable case

• These may imply that the appeal courts mis-perceive juries as being pro-plaintiff

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5.5.1 Little Evidence of a Selection Effect Explanation

• Just as plaintiffs’ higher stakes in cases should boost their trial win rates,

• the selection hypothesis also predicts that the side with lower stakes (defendants) would appeal more

• But this deference is not statistical significance

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5.5.1 Little Evidence of a Selection Effect Explanation

• More important, just as trial court,

• the plaintiffs should equally careful about only pushing stronger cases on appeal

• However, this is not the case as defendants enjoyed a far higher appeals reversal rate than plaintiffs

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5.5.2 Evidence of an Unexpected Selection Effect

• While selection theory may not explain asymmetric appellate outcomes within the state context

• According to Clermont and Eisenberg (2001)

• Selection theory may help explain differences between state and federal appellate settings

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6. Conclusion

• Appeals court are more likely to disrupt jury verdicts than bench decisions

• Trial court defendants fare better than plaintiffs on appeal

• And these are contributed by differential attitude of appellate courts