Straight Track #106

Are Federal Appellate Judges Biased Against Plaintiffs?

Steven P. Garmisa, Attorney
Hoey & Farina
1-888-425-1212

A few weeks ago, I argued a case in the Federal Appellate Court in Chicago on behalf of the widow of a railroad employee who drowned after falling from a railroad bridge into the Mississippi River as he worked on a tie-replacement project. Neither the railroad nor the railroad contractor working on the project supplied any safety or rescue equipment.

Hoey, Farina & Downes obtained a substantial settlement for the widow from the railroad. Then HFD continued its fight against the railroad contractor. Arguments centered on whether the contractor was required to supply safety equipment which could have been used to rescue the railroader from the river. 

A Trial Judge ruled for the railroad contractor, and HFD filed an appeal on behalf of the widow. The argument on appeal is that Federal Regulations and Illinois negligence law required the contractor to provide safety and rescue equipment even though the railroader who drowned wasn't an employee of the contractor.

All the attorneys at Hoey Farina & Downes who worked on this case have strong emotions riding on the appeal. As I toiled over the Appellate Briefs and prepared for Oral Argument, they kept reminding me of the deceased railroader and his family. They told me how the local community renamed their Little League field to honor the memory of this wonderful fellow. And I read the transcript of the Coroner’s Inquest, describing how this railroader died a horrible death – all because of an executive decision to save some money by skimping on safety and rescue equipment on a railroad bridge that had gapping holes, 2-feet by 11-feet, in the bridge deck.

The oral arguments in the Appellate Court were intense. It was what Appellate Lawyers call a "hot court," with well-prepared judges who hammered both attorneys with tough questions.

Back at the office, I was repeatedly peppered with the question: "How'd you do?" Looking at what lawyers call "the merits," I think we should win. But then I read some disturbing statistics about appeals by plaintiffs in Federal Court.

Railroads aren’t shy about appealing to a higher court when they lose a case. And sometimes, hurt by a bad ruling, railroaders have to appeal. Either way, the odds look bad for whoever files an appeal (called the Appellant). 

The odds are against Appellants. Statistics show that Federal Appellate Court judges affirm in 80% of the cases.

That would be okay if these numbers applied equally to plaintiffs and defendants. But a disturbing new study of statistics by two law school professors at Cornell University reveals evidence that Federal Appellate Court cases more often are resolved against plaintiffs.

When defendants lose in the Trial Court and appeal, they win 33% of the time, the professors say. Yet when plaintiffs lose and file an appeal, they win only 12% of the time!

The professors conclude there is an anti-plaintiff bias in the Federal Appellate Courts. Possible explanations are either that: 

(1) Appellate Court Judges might think (mistakenly) that Federal Trial Court Judges are biased in favor of plaintiffs, and they might be trying to neutralize what they think is a pro-plaintiff bias by Trial Court Judges. Or

(2) Appellate Court Judges – being a step removed from what happens in the Trial Court – might not recognize or appreciate the serious harm suffered by injured plaintiffs.

The professors say the notion that Federal Trial Court Judges are biased in favor of plaintiffs is a misperception. And the professors call on Federal Appellate Judges to take steps to eliminate anti-plaintiff biases.

Meanwhile, this new evidence that Federal Appellate Court Judges are biased against plaintiffs is deeply disturbing. Federal Judges can’t be voted out of office. They have life-time jobs.

As for "How'd we do?" in the appeal I just argued, the truth is there are heavy odds against plaintiffs on appeal in Federal Court. Whatever happens, we have to keep fighting for justice, and to eliminate any bias against railroaders.

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