Plaintiphobia in the Appellate Courts

Civil Rights Really Do Differ from Negotiable Instruments

Professors Clermont and Eisenberg conducted a systematic analysis of appellate court behavior and report that defendants have a substantial advantage over plaintiffs on appeal. Their analysis attempted to control for different variables that may affect the decision to appeal or the appel-late outcome, including case complexity, case type, amount in controver-sy, and whether there had been a judge or a jury trial. Once they ac-counted for these variables and explored and discarded various alternate explanations, they came to the conclusion that a defendants’ advantage exists probably because of appellate judges’ misperceptions that trial lev-el adjudicators are pro-plaintiff.

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