(Reuters) - A genuine mystery has been hiding in 30 years of data from the Administrative Office of the U.S. Courts, according to a newly released draft study by University of Connecticut law professors Alexandra Lahav and Peter Siegelman. According to the law profs, the winning rate for plaintiffs in civil litigation in federal courts declined drastically and steadily between 1985 and 1995, from about 70 percent to 30 percent.
Win rates recovered a bit in the late 1990s before dipping again, though not as consistently or precipitously. In 2009, plaintiffs prevailed in only 35 percent of the civil cases in federal court that ended in any kind of judicial determination, including dismissal, summary judgment, default judgment or judgment after a jury verdict. That 2009 rate, according to Lahav and Siegelman, is a drop of more than 50 percent from plaintiffs’ success rate in 1985. If plaintiffs had continued to prevail at 1985 rates across the 24 years the professors evaluated, they would have won 377,000 more cases than they actually did.
So what accounts for a drop Lahav and Siegelman call “astonishing”? That’s the mystery: As the professors explain in the paper, entitled “The Curious Incident of the Falling Win Rate,” there’s no single, testable explanation for the dramatic decrease in favorable outcomes for plaintiffs. And that itself is a reason to worry about what the change means.
“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 that something 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.”
Lahav and Siegelman considered and rejected (with far more quantitative literacy than I possess) some obvious and not-so-obvious possible explanations for the drop in plaintiffs’ win rate. It’s almost certainly not a clerical quirk, for instance, or a shift in the kinds of cases that plaintiffs have filed in the past 30 years. Win rates have declined across almost the entire spectrum of federal civil litigation, the professors found, and no single category of litigation can account for a shift discerned from millions of case outcomes. Even Social Security claims, in which plaintiffs experienced a win rate decline of more than 35 percent between 1985 and 2009, account for only 7 percent of the cases in the data set.
Are plaintiffs’ lawyers filing a higher volume of dud cases? Lahav and Siegelman think not, though their explanation is more intuitive than quantitative. “We find that story unconvincing, for several reasons,” the professors wrote. “First, it begs the question of why plaintiffs or their lawyers would suddenly start bringing worse cases in 1985, continue doing so for 30 of the next 40 calendar quarters, and then abruptly decide to stop,” the paper said. “Second, it is far from clear as a matter of theory that a fall in the average quality of filed cases would lead to a drop in the win rate: Some or all of those new low-quality cases might settle out, leaving the ultimate win rate unchanged.”
The professors similarly cast doubt on the hypothesis that defendants are successfully contesting more cases. “What change in the background rules or culture could explain such a change in strategy? We are unaware of any change in the law on the books, or in other factors such as litigation costs, that might predict such a large and consistent decline,” they wrote. Moreover, the adjudication rate has actually fallen since 1980, suggesting that defendants are actually more likely to settle than to fight.
As you’ve probably realized, the elephant in the room (or, in this case, the study) is judicial attitudes. Lahav and Siegelman describe previous legal scholarship identifying “an increasingly hostile view of litigation that began to be seen in judicial decisions in the late 1970s, as well as greater emphasis in the federal courts on settlement.” It’s possible, their paper said, that in the critical time frame of 1985 to 1995 judges were more skeptical of plaintiffs’ claims and more likely to enter judgments for defendants.
In an interview Wednesday, Lahav and Siegelman emphasized the difficulty of measuring the impact – or even proving the existence – of changing judicial attitudes. For that reason, both of the professors said, they are extremely wary of inferring system judicial bias against plaintiffs’ claims. “I’m an academic, I don’t like to speculate,” Siegelman said.
Nevertheless, the professors said, it’s worrisome that no other explanation accounts for the marked decline in plaintiffs’ win rates. As Siegelman, the team’s quantitative expert, explained, if systemic developments were occurring randomly, you’d expect some to favor plaintiffs and others to favor defendants. But the data indicate changes in case outcome all point in the same direction – against plaintiffs. That outcome, Siegelman said, is akin to flipping a coin and always coming up heads.
“The thread that runs through is general hostility toward plaintiffs’ claims,” Lahav said. “There could be a lot of drivers, but all of these things seem to be part of theme.”
Lahav and Siegelman said they’d like to come up with a way to quantify any change in judicial attitudes but need additional data from the U.S. courts to do it. The federal court system does not release judge-by-judge case outcome information, the researchers said. That’s an understandable decision, since practicing lawyers would surely use such data to try to steer cases toward particular judges. Lahav and Siegelman said the courts could, however, come up with ways to make data accessible to academics without exposing it to practitioners.
“What our results show is that there’s a need to study the court system to understand what happens in the aggregate,” Lahav said. “There are systemic things going on.”
The professor have not yet submitted their paper to law journals for publication.