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
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
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 to
less 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 to
defendants seems to have turned into a tool to stack the deck against
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.