A new study reports that for 10 years starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70 percent to 35 percent.
It remained at a 35 percent win rate for the next 15 years. University of Connecticut law professors Alexandra Lahav and Peter Siegelman say they can’t point to a single reason for the “astonishing” drop in success rates, Reuters reports.
“A significant puzzle remains unsolved,” they write in the draft study. "We explore, and largely reject, several possible explanations for this surprising finding. Although the reason for the falling win rate remains a mystery, we conclude that courts may need to justify decisions not only in individual cases, but at a systemic level."
Interestingly, so many attorneys are starting mass torts practices that the litigation now makes up 36 percent of the entire federal civil docket -- up from 16 percent in 2002. No longer the domain of large, national trial law firms, a mass tort practice is an opportunity for any size law firm, according to LawLytics.
The professors say that another obvious explanation for the decline in the win rate is that the mix of adjudicated cases might have shifted away from those that plaintiffs usually win (e.g., student loan) towards those in which plaintiffs rarely prevail (e.g., prisoner or civil rights). Similarly, perhaps the case mix shifted towards circuits where plaintiffs do less well. Or perhaps there are more pro se plaintiffs as a share of total cases, who have always fared less well than those who are represented by counsel.
It’s possible that judicial attitudes toward plaintiffs are changing, the professors told Reuters, but they would need additional data to test the theory. The federal courts don’t release case outcomes for particular judges, information that would be helpful for researchers.