Abstract

Arguments are statements used to persuade someone or in support of a claim. However, these are not perfect and the opponents can exploit them to build their own arguments. In this paper, we propose a new litigation success function that (i) considers the intrinsic and immutable strength of the arguments presented by the plaintiff and defendant, (ii) solves the limitations of the existing literature in dealing with the English fee-shifting system, and (iii) is flexible and tractable in analytical terms. As a robustness check, the proposed litigation success function confirms several important results in the literature, but also brings new insights on how argumentation strength affects the individuals’ efforts and the decision to file and contest lawsuits in different fee-shifting systems. In this context, we also show how to introduce the worldwide-accepted presumption of innocence in favor of the defendant and the possibility of settlement.

Highlights

  • The decision by the plaintiff to bring a case and the decision by the defendant to defend it, depend crucially on the legal system, the value under dispute, the objective merits of the case, the strength or quality of the Preprint submitted to unknown arguments and the costs involved

  • Analytical tractability can be recovered by assuming constant returns to scale in the production of legal arguments, but as explained, no case reaches trial under the English system, which is counterfactual;4 thereby restricting to a great extent the generalized application of the ”rent-seeking” Contest Success Function (CSF), and questioning whether this approach to litigation is complete enough

  • We propose a new and alternative Litigation Success Function (LSF) that resolves the limitations of the commonly employed CSF in dealing with the English fee shifting system in an analytically tractable model

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Summary

Introduction

The decision by the plaintiff to bring a case and the decision by the defendant to defend it, depend crucially on the legal system, the value under dispute, the objective merits of the case, the strength or quality of the Preprint submitted to unknown arguments and the costs involved. We found that competitive suits in which both parties hold strong arguments are unlikely to be contested because the defendant anticipates high argumentation intensity, and a strong likelihood of losing and ending up paying all the litigation costs These results are in line with the existing literature but introduce a qualitative dimension (Katz and Sanchirico, 2011; Rosenberg and Shavell, 1985; Shavell, 1982). The proposed LSF is flexible enough to accommodate litigation specific aspects, such as, for example, bias and other merits, the possibility of settlement, cost and stake differences, among others In this context, we show how to introduce the worldwide-accepted presumption of innocence in favor of the defendant without affecting the analytical tractability of the problem.

The litigation success function
The American system: baseline model
The English system: baseline model
Extensions to the baseline model
The presumption of innocence
The settlement of Litigation
Other extensions to the baseline model
Comparison between the American and English systems
Conclusion
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