Litigation Experience Research Articles

The important role of civil class actions in the enforcement of corporate criminal law

Recent experience in civil litigation, particularly with opt-out class actions against corporations for competition law offences, has highlighted the efficiency of ‘dual enforcement’ as a strategy for fighting corporate crime. The success of the opt-out class action regime has resulted in innovation and developments that have pushed the boundaries of competition law, involving cases that are traditionally considered matters of environmental, data or consumer protection law. However, although private litigation can overcome the deterrence deficit associated with criminal enforcement by deferred prosecution agreement, and is an increasingly important tool in the fight against corporate crime, the Supreme Court’s recent decision in the PACCAR case has created uncertainty in the third-party litigation funding market, upon which these class actions rely. Given the woefully inadequate funding afforded to public enforcement agencies, including the UK’s Serious Fraud Office, there is a clear economic case for the availability of dual enforcement, and thus an urgent need for Parliament to enact amending legislation, with retrospective effect, to reverse the PACCAR decision. Furthermore, the dual enforcement model should be extended to enable individuals to enforce consumer protection law through opt-out class actions. This would avoid the current situation in which claims are being framed as competition law infringements, such that success may well turn on the finest of distinctions. Lacking the various constraints associated with the criminal law, this extension would also enable the private enforcement of various types of corporate misconduct that, viewed through alternative the lens of the criminal law, are tantamount to fraud.

Exploring Evidence-Based Analysis of The Plight of Awaiting Trial Inmates in North-Central Nigeria

Inmates awaiting trial are individuals who have not yet received a legal conviction for any crime, yet they remain in police or correctional custody. This study assessed the increasing number of awaiting trial inmates across correctional facilities in North Central Nigeria with evidence from Kwara State. The study obtained primary data through semi-structured interviews, key informant interviews (KII), and focused group discussions (FGD). The panel data from the Nigerian Correctional Service (NCS) and other secondary sources to complemented the information. Structural functionalism was the theoretical framework for the study. The population for the study consists of inmates awaiting trial, top officials of the Nigerian Correctional Service (NCS), senior police officers with prosecutorial experience, and lawyers and magistrates with cognate experience in litigation. The study revealed that the increase in awaiting trial inmates is largely responsible for recorded jailbreaks in the region. It also revealed that prison congestion and the overstretch of physical infrastructure available for convicted inmates results from legal technicalities that make it difficult for bail conditions to be easily met and the nature of crimes committed. The study recommended constitutional reviews to make the surety system less burdensome. This will go a long way toward easing and speeding up the justice delivery system. Budgetary allocations to the statutory bodies in the justice delivery system should be increased to increase the holding capacity of the correctional facilities, the courts and modern court infrastructure, and police stations. Keywords: Inmates, Awaiting Trial, Correctional Service, Convict, Structural Functionalism

The effects of foreign patent litigation on firms’ patent strategies: evidence from Chinese litigants in the US court

ABSTRACT The internationally orientated market leads to a surge of cross-border patent litigations. Despite the growing literature on patent litigations, research on the impact of patent litigation on firms’ patent strategy is sparse, especially on the impact of foreign patent litigations. Using US patent infringement lawsuits in which Chinese public firms act as defendants, this paper investigates the effect of foreign patent litigation on firms’ subsequent patent outputs and patent trajectories. We find that the experience of foreign patent litigation increases the accused firms’ subsequent patent filings, and those firms tend to apply exploitative patents instead of exploratory patents. We further find that such promoting impact is more pronounced for firms with a high level of international intensity and firms in the ICT industry. These findings highlight the role of foreign patent litigation in future patent creation, thus enriching the literature on patent litigation and international business. According to the results, firms should take foreign patent litigation as an opportunity to build a strong patent portfolio and improve patent strategies.

Of fogs and bogs: Does litigation risk make financial reports less readable?

We predict that firms’ attempts to reduce litigation risk can inadvertently worsen financial report readability by increasing reports’ size, complexity, and altering their linguistic characteristics. We find that litigation risk reduces report readability. Readability worsens after firms experience a securities class action. This persists for several years after lawsuit resolution. To alleviate endogeneity concerns, we show that the litigation experience of a firm's managers and directors at other firms impacts readability. We also find that firms adjust readability around litigation flashpoints. Using an SEC rule change as an exogenous shock, we show that adjustments to readability can moderate firm litigation risk.

Executives' Legal Expertise and Corporate Innovation

ABSTRACTResearch QuestionThis study investigates whether and how executives with legal expertise impact corporate innovation.Research FindingsUsing a sample of listed firms in China, we have the following findings: (1) Firms that hire executives with legal expertise are associated with more corporate innovation. (2) These firms talk about potential legal risks and legal advisors more often in their annual reports and have lower chances of being sued in patent litigations. (3) The innovation‐promoting effect is stronger when the firms are state‐owned enterprises, have more overseas revenue, operate in high‐tech industries, have prior patent litigation experience, and are in strong legal environments.Theoretical/Academic ImplicationsThe findings indicate that executives with legal expertise bring more attention to legal risks and help the firm to shape a stable environment, which can effectively promote innovation activities. Also, the innovation‐promoting effect of lawyer executives complements the role of in‐house legal counsels and the external legal environment. This paper adds to the literature on the value of executives with legal background.Practitioner/Policy ImplicationsOur results emphasize the important role played by executives with legal expertise in corporate innovation. Given the continuing shortage of legal talents and the gradual improvement of the legal system in China, firms need to employ more legal talents to avoid potential legal risks and maintain sustainable growth.

NCPD Tests: Navigating the Litigation Experience.

NCPD Tests: Navigating the Litigation Experience.

Navigating the Litigation Experience.

Healthcare is a highly regulated industry whose practitioners are responsible for adhering to laws, regulations, policies, and standards of care. When poor outcomes occur, a malpractice case can arise, thus beginning the litigation process. Because nurses are leaders in the delivery of care, they may become involved in legal claims. The purpose of this article is to provide information, as a foundation for nurses who are unfamiliar with navigating the litigation process in a legal claim, and to help nurses build confidence in the process. An overview of the litigation process, nursing licensure, and essential legal terms is provided. A case scenario is introduced that addresses the role of a nurse in an orthopaedic medical malpractice case.

Unravelling Factors Influencing the Mutually Agreed Solution in International Trade Disputes: An Empirical Exploration Based on WTO Disputes

Abstract This study explores the factors influencing the achievement of a mutually agreed solution (MAS) in international trade disputes, drawing insights and patterns from the WTO dispute experience. Through an in-depth examination of prevailing literature and compliance theories, the research pinpoints various factors that impact the achievement of MAS in WTO disputes, including the dynamics of economic size, experience in WTO litigation, reputation as a respondent, and costs in time. The results, obtained through a probit model, reveal the significance of economic size in achieving MAS, where the complainant’s GDP surpasses that of the respondent but not the per capita GDP and trade ratio. Originally, this study discloses that experience in WTO litigation as a disputing party and reputation as the respondent also influence the willingness to settle amicably. While this research primarily centres on the WTO, its findings, derived from WTO data, have broader implications. The identified factors are not only pertinent to WTO members but also hold relevance for solving trade disputes between states. Recognizing these factors is crucial for policymakers across different trade platforms to devise strategies that bolster collaboration and elevate the efficacy of their respective dispute-resolution mechanisms. By illuminating the complexities of the decision-making processes in achieving MAS, this study offers invaluable insights. These insights are instrumental for all stakeholders involved in trade disputes, guiding them towards forging consensus-driven solutions that uphold the principles of just and balanced international trade.

The Political Ecology of Climate Remedies in Latin America and the Caribbean: Comparing Compliance between National and Inter-American Litigation

Abstract The climate crisis will continue to affect human and natural systems across Latin America and the Caribbean (LAC). Undoubtedly, this jeopardizes entire communities’ enjoyment of human rights. In that context, the Inter-American Human Rights System (IAHRS) is expected to respond, particularly since its organs have jurisdiction to order remedies over most LAC countries, provided they determine a rights violation. Despite the growing number of domestic human rights-based climate cases in the region, the organs of the IAHRS have yet to adjudicate and order remedies in a case concerning the climate crisis. Against this backdrop, this article inquires how to understand climate remedies from a political ecology perspective to capture the LAC climate litigation experience. Additionally, the article asks what the challenges of implementing such remedies may be. To answer these questions, first, it compares the remedial approaches of domestic courts in six finally decided climate-related cases with those of the Inter-American Court of Human Rights (IACtHR) in ‘anti-extractivist’ cases. Second, it applies a political ecology lens to understand the elements that might hinder the implementation of the identified remedies. The article argues that the socioeconomic cost for States largely determines remedial compliance in domestic climate litigation and the IACtHR’s anti-extractivist litigation. Ultimately, the aim is to anticipate the future of climate remedies and their effectiveness at the IACtHR based on present climate litigation in LAC.

Prevalence and determinants of defensive medicine among physicians: a systematic review and meta-analysis

Abstract Defensive medicine, characterized by physicians’ inclination toward excessive diagnostic tests and procedures, has emerged as a significant concern in modern healthcare due to its high prevalence and detrimental effects. Despite the growing concerns among healthcare providers, policymakers, and physicians, comprehensive synthesis of the literature on the prevalence and determinants of defensive medicine among physicians has yet been reported. A comprehensive literature search was conducted to identify eligible studies published between 1 January 2000 and 31 December 2022, utilizing six databases (i.e. Web of Science, PubMed, Embase, Scopus, PsycINFO, and Cochrane Library). A meta-analysis was conducted to determine the prevalence and determinants of defensive medicine. Of the 8892 identified articles, 64 eligible studies involving 35.9 thousand physicians across 23 countries were included. The overall pooled prevalence of defense medications was 75.8%. Physicians engaged in both assurance and avoidance behaviors, with the most prevalent subitems being increasing follow-up and avoidance of high-complication treatment protocols. The prevalence of defensive medicine was higher in the African region [88.1%; 95% confidence interval (CI): 80.4%–95.8%] and lower-middle-income countries (89.0%; 95% CI: 78.2%–99.8%). Among the medical specialties, anesthesiologists (92.2%; 95% CI: 89.2%–95.3%) exhibited the highest prevalence. Further, the pooled odds ratios (ORs) of the nine factors at the individual, relational, and organizational levels were calculated, and the influence of previous experience in medical-legal litigation (OR: 1.65; 95% CI: 1.13–2.18) should be considered. The results of this study indicate a high global prevalence of defensive medicine among physicians, underscoring the necessity of implementing targeted interventions to reduce its use, especially in certain regions and specialties. Policymakers should implement measures to improve physicians’ medical skills, enhance physician–patient communication, address physicians’ medical-legal litigation fears, and reform the medical liability system. Future research should focus on devising and assessing interventions to reduce the use of defensive medicine and to improve the quality of patient care.

Patent insurance and innovation trajectory: evidence from patent insurance pilot cities in China

ABSTRACT Patent insurance protects innovation and appropriability by reducing patent litigation costs. However, whether patent insurance promotes incremental or breakthrough innovation has not been solved. Taking China’s patent insurance pilot cities as a quasi-natural experiment, we evaluate how patent insurance influences innovation trajectory using firm-level data from 2008 to 2017. The results show that being located in patent insurance pilot cities promotes incremental innovation. The patent insurance subsidy of the local government positively moderates the effect of patent insurance on incremental innovation. Heterogeneity results show that patent insurance strongly promotes incremental innovation for state-owned enterprises and enterprises with litigation experience. The results are robust and provide policy implications for China’s patent insurance.

Maternal Morbidity Following a Trial of Labor After Cesarean Section vs. Elective Repeat Cesarean Delivery at KIU Teaching Hospital

This study aimed to determine maternal morbidity and predictors of successful vaginal birth control (VBAC) among women at KIU Teaching Hospital. A retrospective cohort study was used, with 384 files of women who delivered between 2014 and 2018 selected. Descriptive statistics were used to determine the incidence of maternal morbidities. Univariate analysis and bivariate logistic regression were performed using STATA version 14.0 to identify predictors of successful VBAC. The mean age of the study participants was 25.62 years, with 63.54% of them elective repeat caesarean sections (ERCD) and 36.46% trial of labor after caesarean sections (TOLAC). Morbidities included uterine rupture, thromboembolism, transfusion requirement, and endometritis. Risks of TOLAC versus ERCD included uterine rupture, thromboembolism, and blood transfusion requirement. BMI, birth weight, spontaneous onset of labor, previous safe vaginal birth, and non-diabetic status were found to be predictors of successful VBAC. Delivering women with previous cesarean sections is a complex process that involves the physician's knowledge, experience, and fear of litigation, as well as the previous maternal experience and knowledge. Any decision made will affect the present pregnancy's outcome, future obstetric performance, and fertility of the patient. Keywords: Maternal Mortality Rate, Cesarean delivery, Women, pregnancy, Labour.

Challenges of Legal Intermediaries in Construction Litigation

Litigation remains the least preferred dispute resolution method because it promotes adversarial relationships between disputants. However, its ability to secure a binding decision has proven its effectiveness in ending disputes. Because construction lawyers typically are only involved after disputes arise, construction professionals who have been part of the project since the inception stage need to fill the knowledge gap of the lawyers about the projects, taking up the roles of legal intermediaries. The communication between legal intermediaries and construction lawyers is one of the determinants of the case verdict because it fundamentally affects the potential of lawyers in preparation for litigation. This paper aims to formulate litigation case management strategies for legal intermediaries. The process included the identification of potential challenges faced by legal intermediaries during preparation for litigation and was followed by suggestions to overcome them. Quantity surveyors (QSs) were selected as the subject of study because the aspects covered by them during litigation preparation are wider than other construction practitioners. Qualitative research was conducted by interviewing 13 respondents who are construction lawyers and QSs who have experience in construction litigation. Among the challenges faced by legal intermediaries in litigation case management are documentation, proceedings, knowledge of the law, personality, and their daily job scope. The findings on their strengths, weaknesses, and suggested methods to overcome the challenges were integrated to form strategies for legal intermediaries in overcoming the challenges faced in preparation for litigation. Apart from contributing to the current body of knowledge, construction professionals could equip themselves by applying the suggested methods from this study to overcome the challenges faced as legal intermediaries.

Whither repeat players? Litigation experience and success in court: Evidence from Russian commercial courts

This paper tests the party capability theory of Galanter (1974) using the universe of legal entities and their 9.8 million commercial disputes in Russia in 2012–2019. We find that repetitiveness is negatively associated with litigation success in general. We explain this by selection into litigation. Entities engaged in unfair business practices are repeatedly selected into disputes as respondents becoming repeat players in spite of themselves. We argue that repetitiveness should be decoupled from party capability and urge for conceptual revision of the notion of a repeat player in court.

Mobilising the Market: An Empirical Analysis of Crowdfunding for Judicial Review Litigation

This article provides an analysis of 413 crowdfunding campaigns raising funds for judicial review cases. In doing so, it empirically captures the judicial review crowdfunding landscape for the first time, drawing attention to the divergent rates of funding and generating a profile of the actors using the resource based on their geographic scope and their litigation experience. Noting the proliferation of campaigns seeking social goals beyond the immediate litigation, it argues that crowdfunding reveals, and gives rise to, an important reality of legal mobilisation that has received insufficient recognition – the use of law for social change by groups that are inexperienced or locally‐oriented. It therefore constructs a typology for understanding these broader patterns of legal mobilisation, accounting for the dimensions of scale and litigation experience.

Experience of electronic litigation in the Saudi system as an interlocutor of legal protection in the right to litigation as a constitutional right

Experience of electronic litigation in the Saudi system as an interlocutor of legal protection in the right to litigation as a constitutional right

The Effect of Litigation Experience on the Scope of R&D Alliances

This paper examines the role of partnering firms’ litigation experience on their proclivity to enter into broad scope R&D alliances. Although prior alliance research proposed factors that will likely influence partnering firms’ preference for engaging in a broad scope alliance, these studies have focused on product market and capability linkages between partnering firms that are likely to intensify competitive concerns, while understudying how partnering firms’ prior experience can generate similar concerns. In this study, we attempt to fill this theoretical gap by unpacking partnering firms’ prior litigation experience as a novel dimension of experience that has been hitherto not considered in alliance research. We suggest that partnering firms’ greater litigation experience will be negatively associated with their choice of a broad scope alliance. Furthermore, we argue that insofar as partnering firms’ litigation experience intensifies competitive concerns and induces them to opt-out a broad scope alliance, such concerns will allay for partners when partners share dyadic experiences such as common technological experience and collaborative experience. Using a sample of R&D alliance agreements in the biopharmaceutical industry we furnish evidence for our theory.

Is Your Knowledge Still Valuable? CVC Knowledge Obsolescence and Portfolio Firm Innovation

We examine the impact of a corporate venture capital (CVC) investor’s knowledge obsolescence on their portfolio firms’ innovation performance. We propose that a CVC investor’s knowledge obsolescence, defined as the degree of decline in the value or usefulness of a firm’s knowledge base, has a negative impact on their portfolio firms’ innovation performance as knowledge obsolescence increases the incentive of CVC investors to focus efforts on their own innovation rather than those of the portfolio firms. We also suggest that this effect would be weakened by the prior litigation experience of the CVC investor and the network prominence of the independent venture capital (IVC) that co-invests with the CVC investor. Using a sample of U.S. semiconductor ventures that received a CVC investment in 2006-2015, we find support for all of our predictions. Through this study, we bring in a temporal perspective on knowledge value and provide its implications on CVC investments and portfolio firms’ innovation performance.

Learning to Litigate: the Relationship Between Past Litigation Experience and Litigation Outcomes in the Chinese Intellectual Property System

Intellectual property (IP) and the protection of IP is of increasing importance to firms’ competitiveness, and firms must be able to defend their IP when it is infringed upon. In most markets, IP and the defense of IP is a stringent legal process, but in developing markets and markets undergoing changes, this is not necessarily so. The Chinese IP system and protection is comparatively new, and the system is still under development. In this study, we analyze the relationship between firms’ previous litigation experience and litigation outcomes using a sample of 10,211 court cases tried in China between 2001 and 2009. We find that despite litigation being a rare event for most firms, plaintiffs’ prior litigation experience and especially prior successful litigation experience or experience with specific case types is related to their likelihood of a positive outcome. However, plaintiffs’ successful application of prior litigation experience is contingent on the type of litigation case.

The Liability of Performing Orthognathic Surgery.

This is a retrospective case series using the Thomson Reuters Westlaw Edge database, an online subscription-based database of over 40,000 state and federal records. There is growing academic interest in the medical malpractice literature. The primary objective of this study was to examine medical malpractice in orthognathic procedures in order to characterize factors that determine legal responsibility and help make the craniomaxillofacial (CMF) surgeon more comfortable when treating this patient population. The database was queried for medical malpractice cases involving orthognathic surgery from 1985-2021. The characteristics of each lawsuit were identified, and descriptive statistics were reported. A total of 42 CMF malpractice cases were available for review, and total of 15 cases were included in the final sample. Verdict decisions and settlements occurred between 1991 and 2012. Of the 15 cases, the highest concentration of cases occurred in California (6) and Pennsylvania (2). 53% of cases were ruled in favor of the defendant, 7% of cases were settled, 27% of cases were ruled in favor of the plaintiff against the surgeon, and 13% were ruled in favor of the plaintiff against the hospital with the surgeon being found not liable. The minimum award of damages was $29,999 and the maximum was $550,000. Litigation experience can be very time consuming and troublesome for medical practitioners. The risk of litigation and complications might be a prohibiting factor as to why CMF surgeons may not be preforming orthognathic surgery. The best defense against a malpractice case is to avoid one altogether. Learning from past mistakes is one way of ensuring that goal.