Usually at settlement times, clients ask me about our chances for success at trial. What might happen at trial drives everything in a lawsuit, especially settlement. But, predicting 6 to 12 of our fellow citizens is more art than science. Jury dynamics are often mysterious. There are so many variables in jury deliberations that that no lawyer can speak categorically about a jury outcome. But, studies of past lawsuits help. Now, there are some studies completed on federal trials and appeals. We still lack data regarding employment case outcomes in state court. Since, state district clerks do not maintain the data required by U.S. district clerks.
I previously wrote about one study by two Cornell law professors here. As I mentioned in 2010, that study of a select group of lawsuits for 1998 to 2006 shows the overall success rates as follows:
- ADA – 9%
- Title VII -11%
- ADEA -12%
- FMLA -20%
This 2009 study also found that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal. The pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%). That is, the chances of a plaintiff reversing a bad pretrial judgment is 10%. But if the defendant loses at the the pretrial stage, the employer would have a 30% chance of reversing the district court. “Pretrial” usually refers to motions to dismiss or for summary judgment.
A separate study by another Cornell professor looked at appeal rates 1988 to 1995. This study was published in 2004. Appeals of trial verdicts when plaintiffs win are the norm in Texas. Since, the chances of success for employers is so high. The Fifth Circuit is generally pro-employer. The study looked at all appellate circuits, not just the Fifth Circuit. Overall, plaintiffs won 41.1% of jury trials and 19.5% of judge trials. Plaintiffs appealed 19.1% of their losses in jury trials. They obtained reversal in 7.7% of such appeals. The defendants appealed 22.8% of their losses and obtained reversal in 39% of their appeals. So, the employer has a 39% chance of success when they appeal, while the employee has a 7.7% chance of success. These numbers are much lower than other sorts of consumer lawsuits, such as contract or personal injury cases.
As the author concludes, there appears to be a “judicial effect” apart from the merits, which depresses the plaintiff’s chances of success on appeal. The effect may be a pro-employer interpretation of caselaw or appellate court bias against plaintiffs, but there is some judicial effect, says Prof. Eisenberg. And, I am sure the numbers for the Fifth Circuit alone would reflect an even greater disparity. The Prof. Eisenberg study appears here.
And, in the 2009 study, the authors also found a disparity in appeals, In the 2009 study, when a plaintiff wins at trial, defendants have a 41% chance of obtaining reversal. While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed. As I explained to a client recently, yes, if we win at trial, then the employer will very likely file an appeal. In the Fifth Circuit, it would be almost legal malpractice not to appeal a jury verdict for the employee.