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Why do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates?


  • Theodore Eisenberg

    (Cornell University)

  • Henry S. Farber

    (Princeton University)


Multiple studies find that plaintiffs who lose at trial and subsequently appeal are less successful on appeal than are losing defendants who appeal. The studies attribute this to a perception by appellate judges that trial courts are biased in favor of plaintiffs. However, at least two alternative explanations exist. First, losing plaintiffs may appeal at higher rates independent of the potential merits. Second, if plaintiffs tend to pursue to trial lawsuits where they should win on the merits less than half the time, then errors at trial will be more likely to adversely affect defendants. This study revisits the analysis of the appellate process with a theoretical model that has implications not only for appellate outcomes but for the rate of appeal. By tying together win rates at trial, appeals rates, and success rates on appeal, the model can distinguish the competing explanations for differential appellate success rates. We estimate this model using matched data on Federal District Court trials and appeals to the U. S. Circuit Courts of Appeal. We provide evidence that the lower plaintiffs success rate on appeal is due to plaintiffs' pursuing lawsuits where they should win on the merits (which we define to be an outcome that will not be reversed or remanded on appeal) less than half the time. We also provide evidence against explaining asymmetric success on appeal being attributable to trial courts favoring plaintiffs and evidence against juries being favorable to plaintiffs compared to judges.

Suggested Citation

  • Theodore Eisenberg & Henry S. Farber, 2011. "Why do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates?," Working Papers 1329, Princeton University, Department of Economics, Industrial Relations Section..
  • Handle: RePEc:pri:indrel:567

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    References listed on IDEAS

    1. Steven Shavell, 2010. "On the Design of the Appeals Process: The Optimal Use of Discretionary Review versus Direct Appeal," The Journal of Legal Studies, University of Chicago Press, vol. 39(1), pages 63-108, January.
    2. Shavell, Steven, 1995. "The Appeals Process as a Means of Error Correction," The Journal of Legal Studies, University of Chicago Press, vol. 24(2), pages 379-426, June.
    3. Kessler, Daniel & Meites, Thomas & Miller, Geoffrey P, 1996. "Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 233-259, January.
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    Cited by:

    1. Florian Smuda & Patrice Bougette & Kai Hüschelrath, 2015. "Determinants of the Duration of European Appellate Court Proceedings in Cartel Cases," Journal of Common Market Studies, Wiley Blackwell, vol. 53(6), pages 1352-1369, November.
    2. repec:kap:revind:v:52:y:2018:i:1:d:10.1007_s11151-017-9572-1 is not listed on IDEAS
    3. Hüschelrath, Kai & Smuda, Florian, 2014. "The appeals process: An empirical assessment," ZEW Discussion Papers 14-063, ZEW - Zentrum für Europäische Wirtschaftsforschung / Center for European Economic Research.
    4. Pierre Bentata & Yolande Hiriart, 2015. "Biased Judges: Evidence from French Environmental Cases," Working Papers hal-01377922, HAL.
    5. Michael Hellwig & Kai Hüschelrath & Ulrich Laitenberger, 2018. "Settlements and Appeals in the European Commission’s Cartel Cases: An Empirical Assessment," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 52(1), pages 55-84, February.

    More about this item


    judges; trials; lawsuits; appeals;

    JEL classification:

    • D02 - Microeconomics - - General - - - Institutions: Design, Formation, Operations, and Impact
    • D63 - Microeconomics - - Welfare Economics - - - Equity, Justice, Inequality, and Other Normative Criteria and Measurement
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • K19 - Law and Economics - - Basic Areas of Law - - - Other
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process


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