Confidence and the Justice System and Outcomes for Discrimination Plaintiffs

By Anne King

DRI – The Voice of the Defense Bar recently released survey results indicating that many Americans have little confidence in the fairness of the civil justice system.

A few interesting highlights: “41% of Americans are not confident that the civil law system is fair and just. Only 9% are very confident.” “Confidence in the courts is higher among liberals than conservatives.” “83% say that the side with the most money for lawyers usually wins,” a result that remains consistent across all political parties and identifications. Despite this perception, “[i]n a suit pitting a corporation against an individual, 54% would favor individuals.”

I encountered the DRI survey results (via the Blog of Legal Times) not long after reading Katie Eyer’s That’s Not Discrimination: American Beliefs and the Limits of Anti- Discrimination Law, recently published in the Minnesota Law Review. Eyer collects and summarizes a number of empirical studies finding that discrimination plaintiffs, especially employment discrimination plaintiffs, face extremely challenging odds in litigation. Specifically, “less than 5% of all discrimination plaintiffs will ever achieve any form of litigated relief.” Dismissal on a motions to dismiss or summary judgment “account[] for a full 86% of litigated outcomes.”  Eyer draws on psychological research to offer an explanation for discrimination plaintiffs’ low success rates.

Eyer’s article makes for an interesting juxtaposition with the DRI survey results.  Perhaps low win rates for discrimination plaintiffs contribute to low confidence in the civil justice system.  Also, given that many survey participants reported generally favoring individuals above corporations, perhaps discrimination plaintiffs would fare better, on average, if more had an opportunity to try their cases before a jury.  (Or maybe not – discrimination plaintiffs have a high loss rate at trial and on appeal.)


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