Plaintiff Win Rates Research Articles

An empirical study of marine environmental civil public-interest litigation in China: Based on 216 cases from 2015 through 2022

This article examines marine environmental civil public-interest litigation landscape in China based on a comprehensive empirical study of 216 cases adjudicated from 2015 through 2022. Marine environmental civil public-interest litigation is under robust development in China with the number of cases increasing and high-profile cases emerging. Many cases were built upon related criminal and administrative proceedings and the procuratorate, as a qualified plaintiff, has led in initiating litigation. The liability system is maturing with flexible remedies and a high plaintiff win rate. First-instance judgments were rendered effectively and alternative dispute resolution was used. Besides the notable progress deserving attention, there are still several obstacles yet to be overcome, such as the divergence in the categorization of cases, the application of law and the attitude towards the standing of environmental NGOs. Besides, the number of cases initiated by marine environmental supervision and management departments is relatively small and jurisdictional matters also need to be further clarified. A feasible approach to overcome these obstacles is to come up with a set of systematic and coordinated rules in this field either by releasing specialized judicial interpretations on marine environmental public-interest litigation or by revising the existing Marine Environmental Protection Law when appropriate. By this means, it could potentially optimize the system of marine environmental civil public-interest litigation and enhance its efficacy in protecting the marine environment and resources.

Gender and justice: The status of women in Ottoman courts

AbstractThis paper studies legal disparities between men and women in a patriarchal framework. Throughout history, women have confronted discrimination in matters of inheritance, property ownership, and various other legal rights. We examine the consequences of legal discrimination for women's differential engagement and success within legal conflicts, using data from Ottoman courts in the early nineteenth century. The results show that women were parties to approximately 30 per cent of cases, with a modest gender gap of around eight to ten percentage points in terms of plaintiff win rates. The gap varied across courts and types of cases, consistent with gender disparities in legal knowledge and trial stakes in patriarchal societies. Notably, when litigating against male defendants, the disparity was more pronounced in provincial courts (Konya and Kütahya), as opposed to courts in the capital city (Galata and Üsküdar). Similarly, while the gender gap was greater in property and probate cases than those involving personal crimes and commercial exchange, the gap was reversed in family matters. The analysis suggests that a significant portion of the gender gap in litigation success can be attributed to disparities in evidence presentation (witness testimonies, written documents and legal opinions).

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.

DO TITLE HOLDERS ALWAYS WIN IN THE OTTOMAN COURTS?

In this study, the relationship between litigation success and the titles of the parties (plaintiff and defendant) in Ottoman courts was examined. The registers of Galata and Üsküdar courts from the center and Konya and Kütahya courts from the province between the period 1800-1840 were used. Making use of the 50% plaintiff win rate hypothesis and the factors affecting this rate in the law and economics literature, the effect of being a titleholder on litigation success is investigated by regression analyses. According to the first model, while being a title holder has a significant effect on the probability of success considering all observations and in the provincial courts, it is not valid in the center. In the second model, in which titles are categorized in more detail, variables such as representation, the burden of proof, and evidence are added as controls besides the gender and religion of the parties. Accordingly, elite titles and the burden of proof seem to be the important factors that affect the probability of success to deviate between parties to cases and across regions.

Impact of Shorter Trial Periods in Medical Litigation

Abstract This study examined the reasons for the decline in the plaintiff win rate in medical lawsuits in Japan since 1999. The results suggest that the decline in the plaintiff win rate is likely due to the overall shortening of trial periods. In particular, if the trial period is shortened by one month, the plaintiff win rate decreases by 1.63%. After indicating the correlation between a decrease in plaintiffs’ winning rate and a shortened trial period, this study examines the causal relationship from five perspectives and the substantive factors.

New Empirical Tests for Classic Litigation Selection Models: Evidence from a Low Settlement Environment

AbstractLaw and economics theorists have long advanced theories of litigation and settlement, including the canonical Landes–Posner–Gould (LPG) and Priest and Klein (PK) models. Famously, PK predict that, as settlement rates rise, plaintiff win rates approach 50%. So far, though, empirical testing of these models has been hampered by two major limitations: first, these models make clear predictions about the effect of case stakes on settlement rates and plaintiff win rates, but lack of reliable data on stakes means these predictions have gone untested. Second, most of the studies have used data from the United States, a high-settlement, high-litigation-costs setting, and the generalizability of these models to other institutional settings has been less explored. We use a novel data set of Taiwanese court data to test previously untested predictions of the LPG and PK models and explore the extent to which these models apply to a low-settlement, low-litigation-cost setting. We find strong support for the predictions of the LPG model that we test but at best weak support for the 50% hypothesis of the PK model, consistent with recent research suggesting that the hypothesis will have limited applicability in a low-settlement, low-litigation-cost environment. These results suggest directions for research and provide guidance to policy on the role that stakes play in the filing and settlement of claims.

Civil Rights Enforcement and the Racial Wage Gap

We present new evidence on three measures of civil rights enforcement--litigation, judge dismissal, and plaintiff win rates--across US district courts from 1979 to 2016. Across courts, higher shares of Republican judges are associated with higher dismissal rates regardless of court composition in terms of gender and race. Further, we find that states with higher litigation rates also exhibit higher racial wage gaps, whereas states with higher judge dismissal (plaintiff win) rates experience higher (lower) racial wage gaps. Our results highlight the importance of legal institutions on the persistence of racial inequality.

Does the Priest and Klein Model Travel? Testing Litigation Selection Hypotheses with Foreign Court Data

Law and economics theorists have long advanced theories of litigation and settlement, including the canonical Priest and Klein (1984) model that predicts that, as settlement rates rise, plaintiff win rates approach 50%. Empiricists have tested this and other predictions from the theoretical literature, finding qualified support for the Priest and Klein model. So far, though, this literature has relied primarily on data from the U.S. Yet, because this model rests on simple assumptions about human behavior in the context of a legal dispute, not on any distinctive features of American litigation, its basic insights should apply everywhere. In this paper, we put the universality of the Priest and Klein model to the test, using a unique administrative data set from Taiwan, comprising about a half-million observations. We find strongly suggestive evidence in favor of the Priest and Klein model. We consider variants of the model incorporating risk aversion and compare results testing potential implications of models of settlement under asymmetric information.

The Curious Incident of the Falling Win Rate

For 40 quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in Federal courts fell almost continuously, from 70 percent to 35 percent, where it remained — albeit with increased volatility — for the next 15 years. We explore, and largely reject, several possible explanations for this surprising finding. Although the reason for the falling win rate remains a mystery, we conclude that courts may need to justify decisions not only in individual cases, but at a systemic level.

Dollars for Days: An Empirical Assessment of Per Diem and Anchoring Arguments

Seeking to address concerns about runaway jury awards and bias more generally, states have limited what plaintiffs’ attorneys can and cannot argue to support their claims for non-economic damages. Our 50-state survey finds that states fall roughly into four regimes. Some states allow plaintiffs to demand a lump sum award (i.e. provide an anchor) that is supported by time units (e.g. minutes of pain and suffering). Arguments based on units of time are known as per diem arguments. Some states allow lump sum demands but not per diem arguments. Other states have precisely the opposite rule, and still others prohibit both lump sum demands and per diem arguments. Each regime is purportedly justified by assumptions about how lump sum and per diem calculations will impact a jury. For example, some courts suggest that per diem calculations will give jurors a false sense that damages are certain, and this will result in runaway awards. Other courts state that per diem calculations are a fair way to provide jurors some guidance when deciding a very difficult issue. Similar arguments are made for and against lump sum awards. But no court roots its presumptions in data.This article fills a void in the scholarly literature to inform policy and guide advocates. In this article, we describe our 2x2 between-subjects experimental method, its limitations and our results. We found that anchoring has a large impact on damages and was far more effective than per diem arguments in increasing damages. Surprisingly, per diem arguments also increased plaintiff win rates. We discuss the implications.

Four Decades of Federal Civil Rights Litigation

Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.

Trial and Settlement Negotiations between Asymmetrically Skilled Parties

Parties engaged in a litigation generally enter the discovery process with different informations regarding their case and/or an unequal endowment in terms of skill and ability to produce evidence and predict the outcome of a trial. Hence, they have to bear different legal costs to assess the (equilibrium) plaintiff's win rate. The paper analyses pretrial negotiations and revisits the selection hypothesis in the case where these legal expenditures are private information. This assumption is consistent with empirical evidence (Osborne, 1999). Two alternative situations are investigated, depending on whether there exists a unilateral or a bilateral informational asymmetry.Our general result is that efficient pretrial negotiations select cases with the smallest legal expenditures as those going to trial, while cases with largest costs prefer to settle. Under the one-sided asymmetric information assumption, we find that the American rule yields more trials and higher aggregate legal expenditures than the French and British rules. The two-sided case leads to a higher rate of trials, but in contrast provides less clear-cut predictions regarding the influence of fee-shifting.

Bargaining in the Shadow of Precedent: Asymmetric Stakes Revisited

We develop a model of bargaining and litigation in the context of patent licensing (or any contractual setting). Following Priest and Klein (1984)we developed a model that explicitly allows for (1) multiple parties (leading to asymmetry of stakes), (2) binding precedent, and (3) pre-dispute bargaining done in the 'shadow' of precedent-setting courts. The pre-dispute bargaining creates an endogenous opportunity cost of litigation for both plaintiff and defendant; i.e., the harm is endogenous. We show that the effects of asymmetric stakes on the litigation rate and plaintiff win rate are offset by opportunity costs forgone licensing). That is, including the downside of litigation we see that the degree of asymmetry does not appear to substantially impact the rate of litigation or the observed win rate of plaintiffs at trial. This result is in stark contrast to the previous theoretical literature, and has implications for interpreting the empirical literature. We discuss the implications of the model for the value of patent rights.

The Government as Litigant: Further Tests of the Case Selection Model

We develop a model of the plaintiff's decision to file a lawsuit that has implications for how differences between the federal government and private litigants translate into differences in trial rates and plaintiff win rates at trial. Our case selection model generates a set of predictions for relative trial rates and plaintiff win rates, depending on the type of case and whether the government is defendant or plaintiff. To test the model, we use data on about 474,000 cases filed in federal district court between 1979 and 1994 in the areas of personal injury and job discrimination, in which the federal government and private parties work under roughly similar legal rules. We find broad support for the predictions of the model.

An asymmetric-information model of litigation

This paper presents a cradle-to-grave model of tort liability, incorporating the decision to comply with the due-care standard, the decision to file suit, and the decision to settle. I use the model primarily to examine settlement rates, plaintiff win rates, and compliance with the due-care standard. The key results of the model are as follows: (1) litigation to judgment occurs only when some but not all actors comply with the due-care standard, and (2) if defendants have the information advantage at trial, plaintiff win rates generally will be less than 50 percent. I apply the model and its simulation results to several empirical issues in the litigation literature. The model simulation indicates that the British rule for allocating legal costs is superior to alternatives in terms of social welfare. In addition, the model is capable of explaining several empirical features of litigation and puzzles in the literature on trial outcomes.

Trial Outcomes and Demographics: Is There A Bronx Effect?

This article tests beliefs about the relation between local demographics and trial outcomes. It analyzes damages awards and plaintiff trial win rates at trials in federal and state courts for torts cases, products liability cases, and employment cases. In federal court trials, we find no robust evidence that award levels correlate with population demographics in the expected directions. A persistent result is a negative relation between award levels and black population percentages. We also do not find robust evidence that local demographics help explain plaintiff win rates. We do find a significant correlation between larger black population percentages and the likelihood of a plaintiff trial win in urban job discrimination, products liability, and torts cases. State court trials yield no robust evidence that race, income, or urbanization substantially help explain award levels. Poverty rates do have marginally significant correlations with increased award levels in torts and employment cases. And plaintiff win rates do correlate positively with poverty rates in state court tort cases, but this effect does not emerge in products liability or employment cases. Overall, we find little evidence of consistent demographic effects on trial outcomes.

An Asymmetric Information Model of Litigation

This paper presents a cradle-to-grave model of tort liability, incorporating the decision to comply with the due-care standard, the decision to file suit, and the decision to settle. I use the model primarily to examine settlement rates, plaintiff win rates, and compliance with the due-care standard. The key results of the model are as follows: (1) litigation to judgment occurs only when some but not all actors comply with the due-care standard, and (2) if defendants have the information advantage at trial, plaintiff win rates generally will be less than fifty percent. I apply the model and its simulation results to several empirical issues in the litigation literature. The model simulation indicates that the British rule for allocating legal costs is superior to alternatives in terms of social welfare. In addition, the model is capable of explaining several empirical features of litigation and puzzles in the literature on trial outcomes.

Is the Tort System in Crisis? New Empirical Evidence

While journalists and politicians decry increasing tort liability, scholars have long questioned the existence of a tort crisis. This article uses a particularly comprehensive database and multivariate analysis to examine product liability and medical malpractice jury verdicts in a representative urban county over a recent 12-year period. Including variables such as injury severity, gender, type of alleged fault, trial length, number of lawyers, and number of expert witnesses, the study offers a comprehensive review of these verdicts. Among other findings, the study shows that (1) plaintiff win rates were low; (2) compensatory damages were modest; (3) punitive damages were nonexistent; (4) both win rates and verdict size declined between 1985 and 1996; (5) gender of parties, lawyers, and trial judge correlated significantly with some outcomes; and (6) obtaining a full census of verdicts was essential to the study's success because commercial verdict reporters were both underinclusive and biased toward pro-plaintiff verdicts.

Toward a Taxonomy of Disputes: New Evidence Through the Prism of the Priest/Klein Model

Abstract The Priest/Klein model predicts both trial rates and plaintiff win rates as functions of three structural parameters: the decision standard, parties' uncertainty in estimating case quality, and the degree of stake asymmetry across parties. Previous tests of the model are unsatisfactory because most have concentrated on its prediction of a 50 percent win rate, which only obtains as a limiting case. We gather independent evidence that describes the model's three parameters and compare it with estimates from a structural model that simultaneously estimates both trial and win rates. The model fits the data for four of our six case types. A four‐parameter model, in which plaintiffs face greater uncertainty than defendants, can explain the two anomalous case types.

Reconciling Asymmetric Information and Divergent Expectations Theories of Litigation

Both asymmetric information (AI) and divergent expectations (DE) theories offer possible explanations of the litigation puzzle. Under DE, cases proceed to trial when, by chance, the plaintiff is more optimistic than the defendant. As the fraction of cases tried (T) declines, this leads to a tendency toward 50 percent plaintiff win rates at trial (P), regardless of the fraction of plaintiff winners in the filed population. Under AI, by contrast, informed parties proceed to trial only when they expect to win. Hence, as the fraction of cases tried declines, plaintiff win rates at trial tends toward either 0 or 1. I present evidence that the relationship between T and P generated by the litigation process is consistent with DE and not AI. I also offer evidence of the presence of AI early in litigation in the form of one‐sided plaintiff win rates in cases adjudicated prior to trial. I reconcile these two findings with evidence that pretrial adjudication and settlement culls both likely plaintiff winners and likely plaintiff losers from the filed pool, causing a tendency toward central rather than extreme plaintiff win rates at trial.