New study shows anti-plaintiff bias in federal civil appeals.

Defendants are significantly more likely than plaintiffs to win civil appeals in the federal courts--especially from jury trials--according to a new study linking data from the federal district courts and courts of appeals.

Kevin Clermont and Theodore Eisenberg, both of Cornell University, analyzed data gathered by the Administrative Office of the United States Courts and concluded in a recent article that defendants "appeal less and succeed more often" than plaintiffs because of "appellate court judges' misperceptions of the trial process."

The authors said many federal appellate judges exhibit a pro-defendant bias because they believe they need to correct for a pro-plaintiff bias at the trial court level.

Clermont and Eisenberg studied all federal civil cases in 13 tort and contract case categories that ended in fiscal years 1988 to 1997. (In 1988, the federal courts administrative office began including district court docket numbers in its courts of appeal data, allowing correlation between trial and appellate court information.)

Overall, defendants appealed 20 percent of their losses and plaintiffs, 22 percent. However, courts reversed 28 percent of defendants' losses and only 15 percent of plaintiffs'.

Breaking down the data between jury and nonjury trials, the study found an even more significant difference. While reversal rates for nonjury trials were 23 percent for defendants and 19 percent for plaintiffs, in jury trials defendants obtained reversal at the rate of 31 percent, while plaintiffs succeeded only 13 percent of the time.

The authors found that this reversal-rate discrepancy did not depend on what category of case was involved or on whether appeals were brought by corporate or individual parties.

Clermont and Eisenberg considered several possible explanations for their findings based on selection theory, which hypothesizes that plaintiffs succeed on appeal less often than defendants because of differences in the ways parties select which cases to appeal. The authors rejected these explanations and offered "an attitudinal explanation," reasoning that "the starkly higher reversal rate for defendants implies some sort of decisional bias." They concluded that appellate judges are more willing to reverse decisions for plaintiffs, either because trial courts are actually pro-plaintiff or because appellate judges perceive them to be.

The authors cited empirical studies showing that there is in fact very little pro-plaintiff bias in the federal trial courts. Those who adjudicate trials, they said, "appear to do a pretty neutral job." Therefore, defendants' higher reversal rates are attributable to "overcorrecting" by appellate judges. To buttress their conclusion, the authors noted that while all circuits showed a higher reversal rate for defendants, there was a great deal of local variation, consistent with an attitudinal explanation.

The authors found the strongest evidence of appellate bias in the especially high reversal rates for defendants appealing from jury trials. They cited "considerable research" indicating that "juries are not substantially different from judges," yet appellate judges are much more suspicious of plaintiff wins rendered by juries than they are of those rendered by judges.

"Persistent misperceptions ... pervade both the populace and legal professionals, who often imagine a biased and incompetent legal system handing vast sums over to undeserving plaintiffs," the authors wrote. They asked why appellate judges should be considered immune from this attitude and urged them to recognize misperceptions "that play an undesirable role in their decisionmaking."

Larry Stewart, an attorney in Miami who devotes considerable time to federal practice, said, "This study is very disturbing given the fact that there is no pro-plaintiff bias among jurors. It validates what many have believed--that federal appellate judges have been tending to be more conservative in recent years."

The study, Anti-Plaintiff Bias in the Federal Appellate Courts, was published in the November-December 2000 issue of Judicature magazine.