An interesting article recently hit the presses: The Curious Incident of the Falling Win Rate, by Alexander Lahav and Peter Siegleman. Here is the Article.

The study is based on federal court results nationwide for 1980 to 2010. It opens:

Between 1985 and 1995, the plaintiff win rate in civil cases adjudicated in federal district courts fell dramatically and consistently. After 1995, win rates became substantially more volatile.

In 1985, plaintiffs won almost 70% of federal court civil trials. By 1995, the plaintiff win rate was down to 30%. It climbed back to almost 50% by 2000. Since 2000, the plaintiff win rate has bounced around in the 30-40% range.

The article notes that the reasons for the changes are not known. There is some deep commentary, like this:

…there is no necessary relationship between win rates in adjudication and anything else. Suppose, for example, that for reason judges suddenly became more defendant-friendly starting in 1985 (and continuing for 10 years). Even if this were true, it is entirely possible that the win rate in adjudicated cases might not move at all in response. If all parties know that cases have become hard for plaintiffs to win, rational plaintiffs would bring fewer marginal (low probability of victory) cases and/or settle the cases they do bring on less-favorable terms, leaving win rates in the cases that survive to an adjudication largely unchanged….

The article notes that win rates declined across the board in case types–it wasn’t just pro se prisoner cases. It considered and rejects the theory that plaintiff attorneys filed poorer quality cases.

It considers other theories and rejects them. It concludes that someone needs to figure it out.

My Take:

My theory: it’s complicated.

There are lots of reasons that might justify why things have gotten tougher on plaintiffs. Is it just coincidental that plaintiffs have struggled since the Koch Brothers, Richard Scaife and other billionaires started investing so heavily in ‘think tanks’ and politics in the 1970’s? Maybe. Then again, maybe not.

Perhaps some of the veteran attorneys who read this blog who were practicing in the early 1980’s can comment.

In my 24 years of practice plaintiff lawyers have never screened cases as hard as they do now. And they are still getting their clocks cleaned in over 60% of their trials. You just can’t know how that feels unless you have lost a trial in a case you had on contingency with a lot of money in the case.

One thing is certain, plaintiffs winning a lot is good for the business of litigation. A plaintiff lawyer who wins a tough trial is more likely to get cocky and file more tough cases, creating more work for the defense bar. Defense lawyers and their clients see plaintiffs winning a lot and settle more cases for more money.

I don’t have to know why plaintiffs winning less is happening to know it’s bad for my business. A rising tide lifts all boats.

I just wish I had been a plaintiff lawyer when they were winning 70% of the time they teed it up in federal court. That must have been fun.