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Archive for October, 2011

Who Usually Wins At Trial

One issue that may not be discussed in the litigation context as often as it should be is:  “who usually wins this kind of case… plaintiff or defendant?”  Of course, this question is, by its very nature, broad and ill-defined. It fails to take into account that every case stands on its own and the presence or absence of a few key facts can often result in a win over a loss.  In other words, the facts of each case vary considerably, and thus generalizations are often hard to make.

While understanding that this principle is true, there are still patterns to be gleaned from the awards juries and judges make at trial.  With this in mind, take a look at some of the statistics found in certain types of cases.

A study of medical malpractice cases in California from 1993 to 1999 shows that approximately 1,283 medical malpractice cases went to verdict.  Plaintiffs “won” in only 310 of those cases, a success rate of 24.1%.[1]

From a 1990s report on auto accident jury verdicts in California, the statistics show that plaintiffs won at trial approximately 61% of the time.  However, these verdicts varied statewide with plaintiffs in Los Angeles County only winning approximately 54% of the time, versus plaintiffs in Alameda County who won approximately 60% of the time.[2]  What exactly accounts for this statistical variation may be any number of factors, including regional bias and prevailing attitudes, cultural make-up, and the severity of the cases making their way to trial.

When it comes to employment wrongful termination lawsuits in California, the statistics show that in 1992 plaintiffs won approximately 52.4% of jury verdicts, whereas only four years later  in 1996,  plaintiffs only won 46.5% of jury verdicts.[3]  Of these cases, unlawful discrimination was alleged in 56% of the cases, and unlawful retaliation in 31% of them. The other cases usually involved contract matters where the employee claimed there was an express or implied agreement not to terminate them except for good cause.  The statistics showed that plaintiffs were less successful in discrimination and retaliation cases than they were in contract cases, and that the contract cases were likely to be filed by executives, professionals, or higher level managers.  The employment law statistics can be compared to the overall success rate for all tort cases in selected California counties, in which plaintiffs won between 45.7% to 73.3% of the time in matters involving financial harm.[4]

A 2005 report by the U.S. Department of Justice found that at a national level, viewing all types of cases as a whole, plaintiffs won approximately 53.2% of jury trials and 65.7% of bench trials (where a judge decides the case).[5]  The report noted that bench trials usually involved business litigation.  Nationwide, plaintiffs won approximately 66% of contract cases, and 52% of tort cases.  Plaintiffs were most successful in litigation involving animal attacks (winning 75% of the time), followed by motor vehicle accident (64%), asbestos (55%), and intentional tort (52%) cases.  Plaintiffs had the lowest percentage of wins in medical malpractice trials (23%), products liability cases not involving asbestos (20%), and false imprisonment or imprisonment trials (16%).  The Department of Justice report is an interesting read for lawyers and non-lawyers alike, and can viewed at:   http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf.

Any good lawyer would agree that statistics are only one aspect of whether or not someone should file a lawsuit or take a case to trial.  Statistics are no substitute for knowing a case inside and out, and knowing in your bones that your client has been “wronged,” or that your client is truly innocent.  Scholars who have researched the topic of jury verdict statistics have convincingly argued that you cannot draw concrete inferences from jury verdict statistics because there are so many competing explanations as to why a certain jury found a certain way.[6]  Moreover, depending on the type of case, jury trials usually account for only 1% to 12% of the total cases filed in court.[7]  However, as they say “statistics don’t lie,” and for this reason they can help provide an overall impression of a case, as well as a bit of the wisdom only learned once a trial is completed.


[1]               J. Clark Kelso & Kari Kelso, Jury Verdicts in Medical Malpractice Cases and the MICRA Cap (1999)

University of the Pacific McGeorge School of Law

[2]               National Association of State Jury Verdict Publishers, Trials Digest, Oakland California.

[3]               David Jung, Jury Verdicts in Wrongful Termination Cases, (October 29, 1997.) Public Law Institute, Hasting College of Law

[4]               Id.

[5]               Bureau of Justice Statistics, (October, 2008) NCJ 223851 http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf

[6]               Neil Vidmar, Making Inferences About Jury Behavior from Jury Verdict Statistics, Law and Human Behavior, (1994) Vol. 18, No. 6.

[7]               Id.

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