Mark Roman | July 13, 2017 | news
Members of the public don’t generally spend much time worrying about the difference between our nation’s state and federal courts. Many are only dimly aware that we have those separate court systems in the first place.
The same cannot be said for lawyers. Attorneys spend a lot of time worrying about whether their cases will end up in state or federal court, and what that might mean for case outcomes. They do this because there are some critical differences between state and federal courts. While some of those differences are just matters of procedure or custom, federal ways of doing things almost always favor corporate and institutional defendants. That’s true even when the same general body of law applies to a case at either courthouse.
As lawyers who practice in Florida’s federal courts, we’ve seen these differences up close. State court judges allow lawyers to participate in picking a jury. Federal judges generally do not. State court judges allow you to argue motions in person at the courthouse. Federal judges usually don’t hear arguments from attorneys in person; they just read the motion papers and rule.
Federal courts also have more discretion to throw out doubtful cases. In state court, judges generally let juries decide cases unless they’re clearly defective. In federal court, judges have more latitude to get rid of cases. In fact, it seems like the federal rules allow trial judges to find a way to dispose of any cases they don’t like. This may be the most critical difference between the two court systems.
You might wonder how corporate defendants, who are typically the defendants in personal injury or wrongful death claims, can force cases into federal court in the first place. Obviously, the lawyers bringing injury or death claims typically don’t file lawsuits there. But legal cases don’t always end in the same place where they start. Defendants have a procedural mechanism called “removal” which lets them ship some cases from state court to federal court, even over plaintiffs’ protests.
Specifically, removal allows an out-of-state defendant to move all but low-dollar cases from state court to federal court. More than 200 years ago, the framers of our federal Constitution granted this right because of concerns about states being provincial. They were justifiably concerned about state courts discriminating against parties from other states.
In today’s world, this concern about 50 little kingdoms is quaint and obsolete. State and even national boundaries matter much less today than they did in the late 1700s. Nevertheless, the right to removal remains on the books, and defendants who think they’ll have a procedural advantage in federal court use it whenever they can.
Recent information suggests that advantage may be even greater today than we ever thought. Legal scholars just reviewed data on win/loss rates in federal courts, and the results are alarming. The numbers they crunched show that between 1985 to 1995, win rates for plaintiffs in federal court fell from about 70 percent to 30 percent. In other words, the success rate for plaintiffs fell toless than half of what it had been when that 10-year period started.
It wasn’t possible for the authors to figure out exactly why this dramatic change occurred. However, one of the possible explanations is that federal judges are just becoming more hostile to the little guy. “The thread that runs through,” one of the authors said, “is a general hostility toward plaintiff’s claims. There could be a lot of drivers, but all of these things seem to be part of a theme.”
It looks like the pendulum has swung too far. A removal mechanism set up the Founding Fathers to prevent unfairness todefendants seems to have turned into a tool to stack the deck againstplaintiffs.
In the long run, federal court hostility to plaintiffs must be fixed. Meanwhile, plaintiffs should make sure their lawyers know how to avoid federal court – but also how to fight there when they must.
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