The Wall Street Journal has an article today which details some studies about how plaintiffs fare in federal court cases.  In a word: badly.

From 1979-2006, plaintiffs prevail in 15% of cases.  The average for plaintiffs winning in federal court in all other civil cases is 51%.  From 1998-2006, the employment win rate is closer to 10%.  This is according to a Harvard Law & Policy Review study to be published (pdf).

As a result, fewer and fewer cases are being filed.  From 1999-2007, case filings are down by 40%.

Why is this occurring?  A few theories:

  • Few minorities on the bench
  • Difficulties in proving job discrimination, which is rarely overt
  • Companies settle cases quickly which appear to be losers
  • Greater rate of cases being discharged on motions for summary judgment (12.5% for employment cases versus 3% of contract cases and 1.7% of personal-injury and property-damage suits) or motions to dismiss
  • Higher standards of proof by judges in employment cases

What’s the takeaway?  Non-employment federal cases are essentially 50-50 crap shoots.  Federal court employment cases are far more likely to go towards the employer.  If you have an employment case, you are likely to fare better by settling the case before trial.  It will be far less expensive given the “odds” of winning at trial.

New Jersey has one of the most robust anti-discrimiation laws in the country.  Suits with NJ Law Against Discrimiation (LAD) are usually filed in state supreme court. In NJ, it is more likely a discrimiation case will be filed in state court rather than federal court.