Revisiting Eisenberg and Plaintiff Success: State Court Civil Trial and Appellate Outcomes

20 Pages Posted: 10 Aug 2016

See all articles by Michael Heise

Michael Heise

Cornell Law School

Martin T. Wells

Cornell University - Law School

Multiple version iconThere are 3 versions of this paper

Date Written: September 2016


Despite what Priest‐Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg's analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff's success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff's decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff's decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that likely account for the observed differences that distinguish our results from Eisenberg's. First, legal cases that persist to an appellate outcome are a filtered subset of underlying trials and legal disputes and various selection effects inform much of this case filtering. Second, where Eisenberg analyzed the relation between pretrial motions and trial outcomes in federal courts, we assess possible relations between trial and appellate court outcomes in state courts. The pretrial and trial context and the trial and appeals context likely differ in ways that disturb plaintiff success. Third, while Eisenberg studied federal cases between 1978–1985 we study state cases between 2001–2009. In addition to differences between federal and state civil cases, the composition of cases that selected into formal litigation may have evolved over time.

Suggested Citation

Heise, Michael and Wells, Martin T., Revisiting Eisenberg and Plaintiff Success: State Court Civil Trial and Appellate Outcomes (September 2016). Journal of Empirical Legal Studies, Vol. 13, Issue 3, pp. 516-535, 2016, Available at SSRN: or

Michael Heise (Contact Author)

Cornell Law School ( email )

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Martin T. Wells

Cornell University - Law School ( email )

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United States
607-255-8801 (Phone)

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