Appeal from Jury or Judge Trial: Defendants' Advantage

Posted: 29 Feb 2008

See all articles by Kevin M. Clermont

Kevin M. Clermont

Cornell Law School

Theodore Eisenberg

Cornell University, Law School (Deceased)

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The prevailing 'expert' opinion is that jury verdicts are largely immune to appellate revision. Using a database that combines all federal civil trials and appeals decided since 1988, we find that jury trials, as a group, are in fact not so special on appeal. But the data do show that defendants succeed more than plaintiffs on appeal from civil trials, and especially from jury trials. Defendants appealing their losses after trial by jury obtain reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials. Both descriptive analyses of the results and more formal regression models dispel explanations based on selection of cases and instead support an explanation based on appellate judges' attitudes toward trial-level adjudicators. That is, these attitudes make the appellate court more favorably disposed to the defendant than are the trial judge and the jury. The especially large differences between appellate court and trial jury dispositions probably stems from the appellate judges' sizable misperceptions about the jury.

Suggested Citation

Clermont, Kevin M. and Eisenberg, Theodore, Appeal from Jury or Judge Trial: Defendants' Advantage. American Law and Economics Review, Vol. 3, No. 1, pp. 125-164, 2001. Available at SSRN:

Kevin M. Clermont (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5189 (Phone)
607-255-7193 (Fax)

Theodore Eisenberg

Cornell University, Law School (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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