Party Capability versus Court Preference: Why the 'Haves' Come Out Ahead? - An Empirical Lesson from Taiwan Supreme Court

Abstract

Using a newly assembled data on appeals terminated in Taiwan’s Supreme Court (TSC) in 2008 and 2009, this article revisits the well-known question of whether the “haves” come out ahead in litigations, and analyzes the explanatory power of the party capability theory, which suggests that the “haves” come out ahead because they can mobilize more resources and are more experienced in litigation. Our study finds that the higher-status litigants, as assumed by most studies, indeed tended to mobilize more sizeable and experienced legal representation than the lower-status litigants. The “haves” were also more likely to prevail before the TSC than the “have-nots,” both in terms of overcoming the TSC’s propensity to affirm as appellants and in terms of protecting their victory as appellees. More significantly, the advantage of the “haves” over the “have-nots” in TSC litigation holds even after the disparity of legal representation is taken into consideration. Further analysis reveals that the higher win rate enjoyed by the “haves” are mainly derived from the TSC’s decision of whether to procedurally dismiss the appeal or hear the case on the merits. In exercising its discretionary jurisdiction, the TSC strongly favored the “haves” and is biased against the “have-nots.” However, once the TSC decided to adjudicate the appeal on the merits, neither the type of litigant nor the status of legal representation affected the final outcome. Our empirical investigation therefore suggests that both the litigant’s capability and the court’s ideological preference play a role in the higher win rate enjoyed by the “haves.”