Dateline: January, 2011, Issue 3

Are defendants who lose civil jury trials at a disadvantage on appeal?

An oft-stated opinion is that civil jury verdicts are largely immune to appellate revision.

Eisenberg and Clermont (1999) studied whether civil jury trial verdicts are revised less often on appeal than bench trial verdicts. All federal civil trial appeals between 1988 -1997 in 13 tort and contract case categories were included in the research.

Nothing striking distinguished jury trials from bench trials: both experienced an appeal rate of about 21% and a reversal rate of about 21%.

This overall reversal rate of 21% masks significant differences between defendants and plaintiffs, however. Upon appealing a loss after a completed trial, defendants succeed much more often than do plaintiffs on their appeals. Defendants reverse 28% of their losses, and plaintiffs only 15%.

Defendants appealing their losses after trial by jury are even more successful, obtaining reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials.

The researchers find that appellate judges act on "sizeable misperceptions" of trial courts and juries being pro-plaintiff despite empirical evidence to the contrary, and give losing defendants an advantage when appealing civil jury verdicts.

The researchers conclude that a defendant jury win is sacrosanct, while a plaintiff jury win is surprisingly fragile.

Source Eisenberg, T. & Clermont, K.M. (1999). Appeal from jury or judge trial: Defendants' advantage. http://ssrn.com/abstract=202768.