Document Type


Publication Date

Winter 1999


Judicial performance, Award patterns in products liability cases, Empirical legal studies, Plaintiff trial win rates, Trial award trends


Applied Statistics | Torts


In 1992, Professor James Henderson and I wrote that, throughout the 1980s, a quiet, pro-defendant revolution in products liability had occurred. That revolution was likely largely the product of a "widespread, independent shift in judicial attitudes." It was not discernable in cases tried before juries. The federal data used in that study were available through 1989. Also in 1992, using the same database, Professor Kevin Clermont and I wrote about the surprising relation between plaintiff win rates in judge and jury trials in products liability cases. Plaintiffs prevailed at a higher rate before judges than they did before juries. Comparable data are now available through fiscal 1997 and it is appropriate to reexamine time trends in products liability cases related to judicial decisionmaking.

Assessing judicial performance in products liability cases requires reference points. It is natural to compare plaintiff win rates and trial award levels in judge-tried cases with similar statistics in jury-tried cases, and to compare products liability case outcomes to outcomes of other classes of cases.

The results both confirm and extend prior findings. The striking difference in trial win rates between judge and jury trials continues. Plaintiffs prevail in over 40% of the judge trials and only about 30% of the jury trials. Trial award patterns confirm that higher stakes cases are routed to juries. But the time trend in award patterns between products liability cases and contracts cases is strikingly similar. If trial adjudicators are increasingly generous towards products liability plaintiffs, they are similarly inclined toward contract case plaintiffs. Among tried products liability cases, the time trend in awards of judge-tried cases is more similar than different from the trend in jury- tried cases. The distribution of trial awards has approximately the same shape, but jury awards tend to be higher.

Pretrial adjudication tells an especially telling story about judicial treatment of products liability cases. Most products cases are tried before juries so trial patterns can only reveal so much about judges' behavior. All products liability cases must survive pretrial judicial scrutiny. The time-trend here is strikingly anti-plaintiff. Of those cases that survive early pretrial skirmishing, and end in pretrial judgment, an increasing percentage is resulting in pretrial judgment in favor of defendants.

Publication Citation

Published in: DePaul Law Review, vol. 49, no. 2 (Winter 1999).