It is often said that there are three kinds of knowledge: what we know, what we don’t know, and what we think we know but don’t. According to a recent study, the third category may include the common advice by appellate practitioners that it is exceedingly difficult to overturn a jury verdict on appeal. The study also indicates that defendants that take an appeal are much more likely than plaintiffs to prevail in the appellate court. These conclusions suggest that defendants that lose in the trial court are likely to fare better on appeal than they might assume.

Two Cornell Law School professors recently examined civil appeals in the state-court systems. See Theodore Eisenberg & Michael Heise, Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal, Cornell Legal Studies Research Paper No. 07-006 (May 2007). Their study used data from 46 of the nation’s 75 most populous counties and included jurisdictions in California, Florida, Georgia, Illinois, Massachusetts, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Texas, and Virginia. The study looked at 8038 jury or bench trials and the resulting 549 appeals that were litigated to conclusion on appeal. (Because the study focused on trial verdicts, cases that were disposed of in other ways, e.g., pretrial motion, were not included.)

The principal conclusions of the study – some of which are surprising and counterintuitive to appellate practitioners – include the following:

  • Of the 8038 trial cases, only 965 (12%) led to an appeal. And of the 965 appeals taken, only 549 (57%) proceeded to decision in the appellate courts; the rest were terminated during the appellate process (e.g., settled or became moot). Of the 965 cases in which an appeal was commenced, only 24 reached the state’s highest court.
  • The percentage of trial judgments appealed varied considerably by the subject matter of the case. For example, appeals occurred in 30% of employment-contract cases, 26% of products-liability cases, and 18% of fraud cases.
  • Defendants that lost at trial were slightly more likely to appeal than plaintiffs that lost – 13% vs. 11%. The losing party was a bit more likely to appeal from a bench trial than a jury trial – 15% vs. 11%.
  • Appellate courts reversed the trial verdict in 32% of the appeals. The reversal rate varies greatly by state – for example, it was 13% in Georgia and 56% in New Jersey. The overall reversal rate also significantly depends on the type of case – it was 32% in fraud cases and 33% in products-liability cases, but 50% in employment-contract cases. 
  • Notably, as between appeals taken by defendants and those by plaintiffs, the results were “starkly asymmetric” (Study at 13) in favor of defendants. In fact, defendants’ appeals were much more likely to be successful than were plaintiffs’ – 42% vs. 22%. 
  • For example, defendants prevailed in 62% of their appeals in employment-contract cases, while plaintiffs won 39% of their appeals. In fraud appeals, the numbers were 39% and 15%, respectively.
  • Likewise, notwithstanding the appellate deference usually accorded to jury verdicts, appellate courts were more likely to reverse jury verdicts than bench verdicts – 34% vs. 28%. 
  • Accordingly, the study “suggests an appeals court tilt favoring defendants, especially defendants that lost in a jury trial.” Study at 13 (emphasis added).

In sum, given the significant reversal rate in many state appellate courts and the greater success of defendants’ appeals in relation to those of plaintiffs, it appears that defendants in general have been unduly reluctant to seek appellate review. In addition, given the higher reversal rate for jury judgments than bench judgments, defendants also appear to have been unduly cautious in taking appeals in jury cases.

Finally, although this study addressed appeals in state courts, similar conclusions were reached in previous studies on federal appeals. For example, defendants’ federal appeals had an overall success rate of 33% or nearly three times the reversal rate of 12% for plaintiffs’ federal appeals (compared to 42% and 22% in state appeals, or not quite double). Furthermore, the federal reversal rate was higher following a jury trial (more than 20%) than a bench trial (17%). And appeals were pursued in 29% of cases tried to judgment in federal court (12% in state courts), and trial judgments were overturned in 18% of the federal appeals (32% in state appeals). Study at 3, 7, 12-13. Thus, federal appellate courts, like state appellate courts, reversed more often in defendants’ appeals after trial than in plaintiffs’ appeals and more often for jury verdicts than bench verdicts.