Federal appellate courts tilt toward defendants, study finds.

An as-yet-unpublished study by two Cornell Law School professors reveals that defendants enjoy an even greater advantage on appeal than plaintiff attorneys have long suspected.

The authors of the study, Plaintiphobia in the Appellate Courts, reviewed a database that combined information on all federal civil trials and appeals decided since 1988, and found that defendants succeed more often than plaintiffs on appeal from civil trials. Defendants appealing their losses obtained reversals 33 percent of the time, while losing plaintiffs succeeded in only 12 percent of their appeals.

Professors Kevin Clermont and Theodore Eisenberg found that the advantage for defendants was even higher in cases appealed from jury trials. This evidence, they concluded, supports their thesis that appellate judges look skeptically on jury awards to plaintiffs.

Their investigation "revealed that the defendants' advantage grew as the case better fit the format of little victim against big defendant, just as it grew with the case's having been decided by a jury," they wrote.

The tendency of federal appellate courts to scrutinize awards to plaintiffs "might be appropriate," the authors continued, "if the trial courts were in fact biased in favor of the plaintiff. But as empirical evidence has accumulated in refutation of trial court bias, the appellate judges' perceptions appear increasingly to be misperceptions."

Similar pro-defendant trends appeared in all types of civil litigation, ranging from personal injury cases to economic damages suits.

The professors found particularly lopsided results in the category of civil rights litigation--especially in employment cases, "where minorities and females are the numerically dominant types of plaintiffs," they wrote.

According to the study, employment law plaintiffs obtain reversals of defense victories in fewer than 6 percent of their appeals, while defendants obtain reversals of plaintiff wins about 44 percent of the time. The chance that a winning plaintiff in an employment case will hold on to that victory on appeal "cannot meaningfully be distinguished from a coin flip," the authors wrote.

Clermont and Eisenberg noted that prior research has shown that most job discrimination cases turn on the employer's intent to discriminate, not on the disparate impact of an employer's policies. "When the plaintiff has convinced the fact finder of the defendant's wrongful intent, that finding should be largely immune from appellate reversal," yet their research shows the opposite.

The section of the study dealing with employment law cases is to appear soon in the University of Illinois Law Review.