Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti‐Plaintiff Appellate Outcomes

Theodore Eisenberg

Journal of Empirical Legal Studies, 2004, vol. 1, issue 3, 659-688

Abstract: Federal data sets covering district court and appellate court civil cases for cases terminating in fiscal years 1988 through 2000 are analyzed. Appeals are filed in 10.9 percent of filed cases, and 21.0 percent of cases if one limits the sample to cases with a definitive judgment for plaintiff or defendant. The appeal rate is 39.6 percent in tried cases compared to 10.0 percent of nontried cases. For cases with definitive judgments, the appeal filing rate is 19.0 percent in nontried cases and 40.9 percent in tried cases. Tried cases with definitive judgments are appealed to a conclusion on the merits in 22.7 percent of concluded trials compared to 10.2 percent of concluded nontried cases. Appellate courts affirm and reverse at different rates appeals from judgments for plaintiffs and defendants. Defendants achieve reversal of adverse trial court judgments in about 10 percent of filed cases and suffer affirmance in about 15 percent of such cases. Plaintiffs achieve reversal in about 4 percent of adverse trial court judgments and suffer affirmance in about 16 percent of such cases. Asymmetrical reversal rates are shown to be in part possibly attributable to different trial‐win rates. But the data suggest that an appellate court effect exists, independent of trial‐win rates and appeal rates, that depresses plaintiff success on appeal in employment discrimination cases.

Date: 2004
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