, The attorneys of Newman Williams PC ,

The Mystery of Plummeting “Win” Rates in Federal Litigation

Since 1985, plaintiffs’ win rates in federal district court litigation have plummeted by more than 50%.

UConn Law Professors Alexandra D. Lahav and Peter Siegelman describe the statistic as a mystery. They offer a few possibilities about this unusual statistic but no conclusions.

Their draft study, is titled “The Curious Incident of the Falling Win Rate.”

They write that plaintiffs’ win rates between 1985 and 1995 dropped from 70% to 30%, recovered a bit in the late 1990’s, and was at 35% in 2009.

Professors Lahav and Siegelman based their statistics on any kind of judicial determination, including dismissal, summary judgment, default judgment or judgment after a jury verdict.

The professors said  they were astonished to uncover this phenomenon, and equally surprised to find that nobody seems to have noticed or commented on it to date.

An Unsolved Puzzle

“A significant puzzle remains unsolved,” the professors wrote. “We are not arguing that the win rate is ‘too high’ or ‘too low.’ Instead, we are pointing out thatsomething or things caused the win rate to change, and depending on the nature of that cause or causes, we may have grounds for concern. If, for example, the changing win rate is caused by exogenous changes such as new, more restrictive laws or procedures, the change itself would not be a cause for concern, although one might question its normative desirability. If judges suddenly became more defendant-friendly, we might think about the falling win rate quite differently.”

The statistics the professors use are from the Administrative Office of the US Courts. The data cover all federal district court civil cases that closed between Jan. 1, 1980 and Sept. 30, 2009.

What is a “Win?”

Of course, any trial lawyer knows that a “win” is in the eye of the beholder. If a plaintiff valued his case at $500,000 prior to trial and walked away with a verdict of just $20,000, statistically, that might be a win. No lawyer or his client would believe so. This is how statistics are sometimes difficult to interpret.

The professors’ study calls for additional analysis and the statistics are based on national averages and not local ones.

Effect Caused by Increasing Use of Mediation

As a federal District Court mediator, I was disappointed that the draft study did not include more detail on how the push toward mediation might affect the statistics. After all, there are many articles decrying the development of the vanishing jury trial. This is especially true in federal court which pushes mediation much more than state courts, at least in eastern Pennsylvania.

Most judges make a concerted effort to encourage the parties to mediate their disputes and, for the most part, mediation has been very successful. It saves all parties money, shortens the life-span of a case, and reduces the ever-present risk of letting a jury decide, often unpredictably, very important issues for our clients.

Cases that are not settled during mediation may be less meritorious or difficult to win.

While no conclusions were reached in the study, it should be of interest to trial lawyers. We now have one more issue to consider in negotiating settlements, deciding when to accept the risk of a jury trial, and whether this study should have any effect on case valuation.

~Jerry Geiger

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