A scholarly article written by a mediator who teaches at Columbia Law School provides insight into who wins and who loses their employment discrimination trials, and how much money they get from the jury. This article is useful in sizing up the value of a plaintiff's case. Unfortunately for plaintiffs' attorneys, the article does not provide much good news.
The article is at this link. Vivian Berger examined all employment discrimination cases filed in the Southern and Eastern Districts of New York from 2004 through 2010. This includes retaliation cases. In the SDNY, 70 cases went to trial. In the EDNY, 90 went to trial. Since some cases have multiple plaintiffs, in all, there were 200 plaintiffs. What do the statistics tell us?
First, of the 160 cases that went to trial, 48 resulted in plaintiffs' verdicts, a 30 percent ratio. The defendants won 67.5 percent of the time. Post-verdict adjustments -- thanks to motion practice -- reduce these numbers even further: a 28.1 percent success rate for plaintiffs. Excluding pro se cases, the overall success rate for plaintiffs is 30.3 percent. These numbers are similar in the SDNY (28.6 percent) and the EDNY (31.1 percent).
If we look at the overall number of plaintiffs, which takes into account multi-plaintiff cases, 34.5 percent won at trial in the SDNY and EDNY. Post-trial, that number is reduced to 33.0 percent. These numbers are better than single-plaintiff cases, probably since multiple plaintiffs reinforce each others' cases.
The research also shows that plaintiffs suing private entities (37.0 percent victory rate) tend to fare better than plaintiffs who sue public entities (25.3 percent). However, Berger writes, "the apparent disadvantage suffered by plaintiffs suing the government largely vanishes when the results are examined according to number of plaintiffs." Multiple-plaintiff cases against the government prevail 34.5 percent of the time. That same number applies to multiple-plaintiff cases against the private sector. Overall, retaliation cases (40 percent) fare better than straight discrimination cases. Sex and race/national origin cases prevail 12 to 13 percent of the time. This "suggests the correctness of the common wisdom: it is often easier to win on [retaliation] ground[s] than on a discrimination charge."
As for damages awards, Berger examined damages for pain and suffering and not back pay. Pain and suffering awards are more difficult to predict and stem from the jury's overall sense of fairness as opposed to mathematical calculations about lost income and benefits. These are sobering numbers for plaintiffs. For those who win their trials in the SDNY, the median pain and suffering award is $40,000. In the EDNY, the median number is $69,375. The median number is more realistic than the average number ($200,682 for both districts), which is skewed by outlier verdicts.
Berger also looks at punitive damages. Only 13.8 of the 160 trials even offered the jury a chance to award punitives. The average award was $466,413. In the SDNY, that's $314,250. In the EDNY, that's $583,462. Only 11.3 of the cases that went to trial even resulted in punitive damages. The dollar value goes down post-verdict, to $113,500 in the EDNY and $375,498 in the SDNY. The median award for punitive damages is $125,000 for both districts combined, or $45,000 for the SDNY and $200,000 in the EDNY. Post-verdict, those numbers go down even further: $30,000 in the SDNY and $50,000 in the EDNY.
As Berger notes, the more "extreme" cases tend to settle. That is my experience. But since most cases settle, this research allows litigants to predict with some degree of certainty what their cases are worth. This comes in handy during settlement negotiations, and it gives attorneys some concrete basis in telling their clients what their chances might be at trial and what their cases might be worth.
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