Model Of Litigation Research Articles

Why and How Do Prison Litigation Strategies and Their Cultures Matter?

Abstract This article highlights the main impediments and inequalities in access to justice for prisoners. Access to justice is considered by European institutions to be one of the vehicles for transforming legislation for better respecting human rights. However, we show that the nature and intensity of strategic litigation depend on three main prison litigation models. These models differentially impact access to justice for prisoners through three main obstacles—deterrence, procedural obstacles and legal aid. Hence, by forging the concept of differentiated litigation, this article calls attention to the different ways in which prison litigation is carried out on the ground and how these lead to different impacts on the barriers to access to justice.

Resolving lawsuits with a decisive oath: An economic analysis

The decisive oath is an interesting but little-known element in some legal proceedings, mostly in civil law traditions. It is different from ordinary (testimonial) oaths that are routinely administered to witnesses at trial with the aim of eliciting only truthful testimony, but which are of dubious value in achieving that end. By contrast, a decisive oath can end a lawsuit in cases where the plaintiff has no evidence. We use a simple economic model of litigation to examine the impact of the decisive oath in resolving lawsuits and the effects of religious status on the likelihoods of requesting and taking the oath. To test the implications of the model, we use data from the early nineteenth century Ottoman courts to examine the empirical relationship between the stakes of the case, religious status of defendants, and litigation outcomes. The results show that as the stakes of a case increased: (1) resolution by evidence-based trial or the oath option were both more likely than settlement; (2) the plaintiff was less likely to request an oath from non-religious defendants as the baseline, with an additional effect that was also negative and even greater for religious defendants; and (3) non-religious defendants were more likely to take the oath, with an additional effect that was negative for religious defendants, which offset or reversed the baseline positive effect. Our analysis contributes both to the theoretical literature on the economics of dispute resolution, and to the historical literature on the role of decisive oaths in resolving legal disputes, especially in Islamic societies and civil law traditions.

Predicting patent lawsuits with machine learning

We use machine learning methods to predict which patents end up in court using the population of US patents granted between 2002 and 2005. We show that patent characteristics have significant predictive power, particularly value indicators and patent-owner characteristics. Furthermore, we analyze the predictive performance concerning the number of observations used to train the model, which patent characteristics to use, and which predictive model to choose. We find that extending the set of patent characteristics has the biggest positive impact on predictive performance. The model choice matters as well. More sophisticated machine learning methods provide additional value relative to a simple logistic regression. This result highlights the existence of non-linearities among and interactions across the predictors. Our results provide practical advice to anyone building patent litigation models, e.g., for litigation insurance or patent management more generally.

Litigation with negative expected value suits: An experimental analysis

AbstractThe existence of lawsuits providing plaintiffs a negative expected value (NEV) at trial has important theoretical implications for signaling models of litigation. The signaling equilibrium possible when there are no NEV suits breaks down because plaintiffs with NEV suits do not have a credible threat to proceed to trial, which undermines the ability to signal type. Using a laboratory experiment, we analyze behavior with and without the possibility of NEV suits. Absent NEV suits, behavior largely follows predicted patterns. However, the possibility of NEV suits is not found to cause the signaling equilibrium to unravel or to cause the dispute rate to increase. Plaintiffs only drop NEV lawsuits three‐fourths of the time, the rejection rate by defendants for revealing demands rises less than predicted and, contra theory, the rejection rate on demands in the semi‐pooling range remains unchanged.

Application of information technology in judicial field: The development model of online litigation in China

Applying communication technology to the judicial field can improve litigation efficiency and reduce judicial costs, which is the direction of judicial system development. China's online litigation has achieved rapid development in recent years, establishing a nationwide unified online litigation platform and putting it into practical operation. However, it also faces some questions and challenges. This article analyzes the construction mode of China's online litigation platform “Mobile Micro Court” and the fairness of access to the online court based on its actual operation. This article argues that when building online litigation platforms and setting up online litigation rules, it is necessary to adhere to the parties-oriented approach, making it the primary goal of online litigation to facilitate access to justice and prevent online litigation from being alienated as a tool for courts to improve work efficiency. The analysis of the development model of online litigation in China can provide a reference for other countries to develop online litigation systems.Online litigation; Access to justice; Information technology; Mobile micro court; Parties-oriented

Comparative Analysis of Expert Testimony in Cases Involving Mental Health as Mitigating Factor

In the 20th century, the reliance on expert witnesses grew due to technological advancements and complex legal cases. Notably, the scientific foundation of psychology gained widespread acknowledgment, bestowing a pivotal role upon psychologists, particularly those specializing in forensic psychology, within the courtroom. In the United States, experts assist impartial judgments in the adversarial litigation model. This article conducts a comparative analysis of two casesone in South Korea and one in the United Stateswhere forensic psychologists played a central role in providing crucial assistance to defendants grappling with mental health issues. These cases shed light on the discernible distinctions within the expert witness systems between the two countries, emphasizing the profound impact of legal traditions on the significance attributed to expert opinions and the dynamics of equitable legal decision-making. This exploration underscores the evolving role of expert witnesses in an ever-advancing legal landscape, where their expertise continues to be a lodestar guiding the pursuit of justice.

Mutual optimism and risk preferences in litigation

Why do some legal disputes fail to settle? From a bird’s eye view, the literature offers two categories of reasons. One consists of arguments based on informational disparities. The other consists of psychological arguments. This paper explores the psychological theory. It presents a model of litigation driven by risk preferences and examines the model’s implications for trials and settlements. The model suggests a foundation in Prospect Theory for the Mutual Optimism model of litigation. The model’s implications for plaintiff win rates, settlement patterns, and informational asymmetry with respect to the degree of risk aversion are examined.

Financing the litigation arms race

Using a dynamic real-option model of litigation, we show that the increasingly popular practice of third-party litigation financing has ambiguous implications for total ex-post litigant surplus. A defendant and a plaintiff bargain over a settlement payment. The defendant takes costly actions to avoid deadweight losses associated with large transfers to the plaintiff. Litigation financing bolsters the plaintiff, leading to larger deadweight losses. However, by endogenously deterring the defendant from taking costly actions, litigation financing can nonetheless improve the joint surplus of the plaintiff and defendant. In contrast to popular opinion, litigation financing does not necessarily encourage high-risk frivolous lawsuits.

A User’s Guide to the Screening Model of Litigation

A User’s Guide to the Screening Model of Litigation

Active case management in the Hungarian civil procedure

The Act CXXX of 2016 on the Code of Civil Procedure introduced the image of the managerial judge into the Hungarian civil litigation. This perception means that the judge has to take an active part in the litigation. It is not just the notion of the Hungarian legislator, but it is also an international requirement. The new principle – so-called the court’s duty to manage the case – entitles and obligates the judge to offer some kind of support to the parties so that they can perform their procedural obligations properly. This means the judge has to guide the parties if their preparatory statements are incomplete, not sufficiently detailed or contradictory. However, this support is not equal to giving advice like a legal counsel does. The judge cannot overtake the functions and tasks of either the party or the legal counsel. The judicial guidance is meant to provide the parties an opportunity to enforce their claims and to get a proper level of legal protection. This image of an active and managerial judge originates from the Austrian social model of litigation, which goes back to 1895. But it is also not unfamiliar to the Hungarian litigation because the Act I of 1911 on the Civil Procedure was based on an active role of the judge too. My goal is to determine what the real essence and function of the active role of the judge is. I also examine that in what kind of situations and in what procedural phases the judge can offer support to the parties. Furthermore, I intend to define the limits of judicial management. In addition, I analyse how some interpretations view the issues that appeared in judicial practice.

Deterrence, settlement, and litigation under adversarial versus inquisitorial systems

In this paper, we compare deterrence, settlement, and litigation spending under adversarial and inquisitorial systems. We present a basic litigation model with three sequential stages—care, settlement, litigation—and we test the predictions on experimental data. In line with our theoretical expectations, we find that, compared with the adversarial system, the inquisitorial system is associated with lower litigation spending, lower rates of cases settled, and tends to strengthen deterrence.

A coevolution model of defensive medicine, litigation and medical malpractice insurance

We model the interactions between physicians and patients, subject to clinical and legal risks, by means of an evolutionary game. In each instant of time, there is a large number of random pairwise encounters between members of the two populations. In each encounter, a physician heals a patient. The outcome of the healing process is uncertain and may result in patient harm; if that happens, the patient may sue the physician for medical malpractice. Physicians have to choose between two alternative treatments, D and ND, with different levels of benefits and risks. The treatment D is less risky than the alternative treatment ND, but has the disadvantage of providing a lower expected benefit to the patient. Therefore its provision corresponds to practicing “negative” defensive medicine.Physicians prevent, at least partially, negligence charges by buying medical malpractice insurance. This transfers the risk of litigation from the physician to the insurer.The dynamics we analyze are determined by a three-dimensional discrete-time dynamic system, where the variables x and y are, respectively, the shares of defensive physicians and litigious patients, while the variable a represents the insurance premium.In such a context we show that, depending on the policy’s price calculation principle as well as on model’s parameters related to the accuracy of the judicial system and legal reforms, the game’s final outcome could be an appealing equilibrium point in which the defensive strategy of physicians and litigious behavior of patients vanish, an interior (Nash) equilibrium in which all strategies coexist, or even an oscillatory behavior arisen via a Neimart–Sacker bifurcation in which strategies coexist in a recurrent manner. Furthermore, we state a “no chaos” conjecture, supported by analytical, numerical and empirical arguments.

Optimism & Expenditures: The Effect on Settlements

Abstract This article challenges the conventional wisdom in economic models of litigation that optimism necessarily increases the likelihood of trial and that pessimism increases the chances of settlement. We show that optimism may, to the contrary, expand the settlement range. By increasing the perceived value at stake in litigation, optimism may induce parties to invest additional resources in a dispute, which increases the overall bargaining range. Because of the strategic nature of litigation expenditures, optimistic litigants may spend an amount that outweighs the negative impact of optimism on the bargaining surplus. Whether optimism increases or decreases the settlement rate ultimately depends on whether, in concrete instances, the negative effects of optimism on the bargaining surplus outweigh the positive effects created by the additional investments in litigation. Our results provide counterintuitive insights into the selection of disputes for litigation. (JEL K00, K21).

Market entrance, patents, and preliminary injunctions: a model of pharmaceutical patent litigation

Market entrance, patents, and preliminary injunctions: a model of pharmaceutical patent litigation

A Coevolution Model of Defensive Medicine, Litigation and Medical Malpractice Insurance

A Coevolution Model of Defensive Medicine, Litigation and Medical Malpractice Insurance

Rozważania o „braku zwłoki” jako podstawie uwzględnienia spóźnionego materiału procesowego na gruncie art. 207 § 6 oraz 217 § 2 k.p.c.

Polish Code of Civil Procedure („CCP”) has traditionally, following the Austrian tradition of “social model of litigation”, placed the responsibility for the swift resolution of a civil dispute on a judge. Thus, judicial case management has been the second main doctrine, aside from the doctrine of concentrated proceeding, that has been utilized in ensuring that justice in done without unreasonable delay. Simultaneously, both of these systems adopted the rule, introduce by French Code of civil procedure of 1806, that parties are allowed to make allegations and introduce evidence until the very end of the main hearing (trial). Under Polish law this rule was eliminated only in special proceedings for commercial matters, which will be abolished effective May 3, 2012, where the principle of preclusion (Präklusivprinzip) was introduced over 10 years ago. This rule, and its essential component, the principle of eventuality or contingent cumulation (Eventual maxime), required parties to provide full account of allegations and evidence in their respective pleadings (complain and answer), including those that might only potentially come into play. Failure to comply with this requirement rendered allegation or evidence late, and thus the court was obliged to ignore them, save two limited circumstances. The practical effect of this rule was problematic. Some time ago is was noted that the regular proceedings lacked a general provision that would underline the parties’ responsibility for the effective conduct of litigation and special rules that would stimulate them to make allegations and submit evidence as early as possible. One of the primary purposes of the recent amendments to the CCP was to address these procedural defects. Accordingly, on May 3, 2012 a new art. 6 § 2 CCP comes into force. It stipulates that the parties are obliged to make all statements of fact and present evidence without delay, so that the proceeding can be concluded efficiently and swiftly. This solution is based on German and Austrian procedural ideas (Prozessförderungspflicht). This procedural burden is sanctioned by new art. 207 § 6 CCP. Under this provision court is obliged to ignore (exclude) late allegations and evidence, unless a party shows that their omission from the complaint, answer to complain or further supplementary pleading can be excused due to lack of negligence or the acceptance of late allegations and evidence does not delay the resolution of the case or other extraordinary circumstances justifying their inclusion. Similar rule has been introduced at the main hearing where, however, it is up to the court to decide whether an allegation has been made or evidence presented in a belated manner (art. 217 § 2 CCP). I this article I am focusing on “lack of delay” as an exception to the court’s obligation to exclude late allegations and evidence. I am discussing the scope of the burden to support the orderly, efficient and swift conduct of the litigation by making proper allegations and identifying respective evidence in the pleading. Next, I look into German law to gain a comparative perspective on the new law. Subsequently, I am discussing how a party should make and how, on the other hand, the court should asses a claim of lack of delay in a broader procedural context of judicial case management.

Discovery in a screening model of final offer arbitration

We develop screening models of final offer arbitration (FOA) in which the uninformed party makes a demand to the informed party. We consider models in which settlement occurs before and after the submission of binding offers, and in each we analyze costly discovery. Our results are compared to conventional arbitration (CA) which may be viewed as a litigation model. Overall, the incentive to invoke discovery is stronger in FOA than in CA, due in part, to informational rents often present in FOA, but not in CA. Moreover, submitted proposals under FOA contain information which raise the benefit of invoking discovery. FOA is a widely used procedure, including in the telecommunications industry.

Discovery and Disclosure in a Signaling Model of Final-Offer Arbitration

We develop a signaling model of final-offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator, and if no agreement is reached the arbitrator must select one of the two submitted proposals. In the context of this model, we analyze costly voluntary disclosure and costly discovery. In standard litigation models, costly disclosure may occur in the signaling game, but costly discovery never takes place. By contrast, under FOA if information transmission takes place prior to the submission of proposals to the arbitrator, costly discovery may take place. However, the incentive to engage in a voluntary disclosure is weakened relative to a standard litigation model. If information transmission takes place after the submission of proposals to the arbitrator, then the results are analogous to those found in a standard litigation model.

The Opioid Crisis or Climate Change

Societal problems can occasionally have legal solutions, and several tools exist to implement change, including litigation and regulation. However, what elements make a societal problem more suitable for litigation or regulation? This Article examines four different societal issues (tobacco use, obesity, opioid addiction, and climate change) to determine whether litigation or regulation is the more appropriate route for success. The tobacco litigation serves as a successful example, while the fast food litigation serves as an unsuccessful example. Six signs of success are derived from the tobacco litigation: a large settlement agreement, evidence of corporate wrongdoing, change in public opinion, the litigation inspiring regulations, new courtroom avenues, and the ability to aggregate claims. The Article concludes that opioid litigation will be more successful under the tobacco litigation model than climate change litigation, because opioid litigation adapts the tobacco model to end the opioid epidemic. Novel solutions include utilizing Multi-District Litigation and the first-ever “negotiation class” that allows all 30,000 American cities to participate in a global settlement agreement with Big Pharma.

Signaling in the ‘Before’ Model of Final Offer Arbitration

We develop a signaling model of final offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator and if no agreement is reached, the arbitrator must select one of the two submitted proposals. We analyze a “before” model of FOA in which all settlement activity occurs prior to the exchange of proposals. We characterize the pure strategy separating, equilibrium associated with this game. Relative to a model of conventional arbitration (CA), the pure strategy separating equilibrium is associated with a higher dispute rate because weak player types have an enhanced incentive to bluff in this setting. This result continues to hold in semi-pooling equilibria. Thus our model is consistent with a higher dispute rate in FOA compared to CA. Results on the incentive to engage in costly voluntary disclosure are mixed across the two models. In contrast with CA, costly discovery can occur in this model of FOA. The analysis of out of equilibrium beliefs and actions is considerably more complex than in the standard litigation model.