Success In Litigation Research Articles

Family Matters: Justice Gender and Female Litigant Success in Family Law Cases in the Supreme Court of Canada

ABSTRACTAs the first empirical study of family law cases at the Supreme Court of Canada, this study explores potential factors that lead to female litigant success in family law cases. This study seeks to further our understanding of areas of law that, in particular, impact women and families. Analyzing the universe of decisions in family law cases decided by the Supreme Court of Canada from 1982 to 2008, I find support for justice gender affecting female litigant success in family law cases. The results suggest that female justices tend to support female litigants more often than their male colleagues, and that certain legal factors are also determinants of Supreme Court decisions in family law cases. Female litigants enjoy high rates of success at the Supreme Court of Canada, with both justice-specific and case-specific factors as driving forces in decision-making.

The role of public law-based litigation in tobacco companies' strategies in high-income, FCTC ratifying countries, 2004-14.

BackgroundTobacco companies use a host of strategies to undermine public health efforts directed to reduce and eliminate smoking. The success, failure and trends in domestic litigation used by tobacco companies to undermine tobacco control are not well understood, with commentators often assuming disputes are trade related or international in nature. We analyse domestic legal disputes involving tobacco companies and public health actors in high-income countries across the last decade to ascertain the types of action and the success or failure of cases, develop effective responses.MethodsWorldLii, a publicly available online law repository, was used to identify domestic court cases involving tobacco companies from 2004 to 2014, while outcome data from LexisNexis and Westlaw databases were used to identify appeals and trace case history.ResultsWe identified six domestic cases in the UK, Australia and Canada, noting that the tobacco industry won only one of six cases; a win later usurped by legislative reform and a further court case. Nevertheless, we found cases involve significant resource costs for governments, often progressing across multiple jurisdictional levels.DiscussionWe suggest that, in light of our results, while litigation takes up significant time and incurs legal costs for health ministries, policymakers must robustly fend off suggestions that litigation wastes taxpayers' money, pointing to the good prospects of winning such legal battles.

The cost of adverse events from knee surgery in the United Kingdom: An in-depth review of the National Health Service Litigation Authority database

BackgroundThere has been a significant rise in the number and value of claims against the National Health Service (NHS), with limited studies on litigation in orthopaedic surgery and none in knee surgery alone. We aimed to examine claims against the NHS involving all aspects of knee surgery with respect to costs and trends. Clinical relevanceTo raise awareness of the reasons for litigation in knee surgery, thus potentially improve patient care and reduce future claims. MethodsWe analysed the NHS litigation authority (NHSLA) database for all orthopaedic surgery claims reported to the NHSLA between 2005 and 2010, with calculation of litigation success rates and odds ratios for those relating to knee surgery. ResultsThere were 515 cases identified from the 4609 orthopaedic cases in the NHSLA database (11.2%): 298 (58%) involving total knee replacements (TKRs), 11 (2%) involving unicondylar knee replacements, and 90 cases (30%) remaining open. The total pay out for closed cases was £10.45 million and amputation following TKR resulted in the highest single pay out. Litigation success rates for claimants were highest for retained drains (100%), incorrect prosthesis/prosthesis size (78%), renal failure (75%), poor outcome requiring further surgery (74%) and malalignment (71%). There were also 60 cases of delayed diagnosis which resulted in pay outs totalling £2.90 million. Based on these data, projected future pay out costs for the open TKR cases were estimated to be £2.71 million. ConclusionLitigation success rates for TKR were highest following technical errors such as malalignment compared to events less under the surgeon's control, such as infection. The number of claims involving incorrect prosthesis/size continues to be of concern. Despite the increased availability of imaging modalities, missed diagnosis also resulted in substantial pay outs.

Does Size Matter? The Influence of Law Firm Size on Litigant Success Rates

In his influential piece, Galanter (1974) argues that repeat players in the judicial system can be expected to succeed at trial in part because of the advantages repeat players enjoy compared to the one-shotters. This article explores the effect of a number of the benefits Galanter identifies on litigation outcomes for civil jury trials in four states with particular attention to the size of the law firms representing the litigants. We find possessing an advantage in relative firm size, without considering other factors, appears to produce no significant advantage in terms of achieving plaintiff compensation. On the other hand, a local presence in the county where the trial occurs increases plaintiff attorney success rates when challenging out-of-town defense firms, especially when the plaintiff's law firm is the larger of the two. Additionally, devoting more resources in terms of human capital to a particular case increases the probability of favorable outcomes.

Litigant participation and success in water rights cases in the Western States

Over the years, many decisions concerning the rights to water resources have been addressed in state legislatures and federal courts; however, the majority of decisions concerning the conflicting demands over water have been addressed in state courts. This study examines the body of water rights cases heard in state supreme courts of the eleven Western states and focus on litigant participation and success. The data set includes all the water rights cases decided between 1972 and 2008 in the eleven western state high courts (Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming). The study explores the propensity of different types of litigants to initiate water rights cases at the state supreme court level, and also examines litigation patterns to determine which litigants are the targets of these appeals. Galanter's (1974) party capability theory is used to help explain patterns of litigant success.

It's Not Always about Winning: Domestic Politics and Legal Success in EU Annulment Litigation

AbstractWhy do EU Member State governments have such varying degrees of success when they initiate annulment actions against the European Commission? Usually litigant success is associated with arguments about judicial constraint or litigants' capacity. This article sheds light on domestic politics as an additional factor that can affect governments' success record in court. It is argued that governmental annulment actions are often part of a two‐level game in which the value of the legal conflict for a national government can be independent of, or even negatively related to, legal success in court as governments may reap immediate benefits from communicating the initiation of annulment actions to voters. In addition, negative rulings can be used as normative levers in domestic reform processes. The statistical analysis indicates that the latter argument systematically affects governments' success records.

Barrister gender and litigant success in the High Court of Australia

We examine the relationship between gender of the barrister and appeal outcomes on the High Court of Australia. We find that an appellant represented in oral argument by a female barrister, opposed to a respondent represented in oral argument by a male barrister, is less likely to receive a High Court justice's vote. However, we also find that the appellant disadvantage of having a female barrister present oral argument is (partially) offset in the case of liberal justices and on panels having a higher proportion of female justices. The extent to which the disadvantage is offset, and potentially turns from being a disadvantage to an advantage, depends on the degree to which the justice is liberal and the proportion of female justices on the panel.本文探讨律师性别与诉讼结果之间的关系。我们发现这个过程并不对称。如果是由女律师上诉，而辩方是一个或一个以上男性律师，那么性别就是一个因素。不过并不存在相反的情况。我们具体发现，如果诉方是一个女律师，辩方为一男律师，诉方就不大可能获得最高法官的赞同。不过，我们还发现，如果法官具有自由主义精神，如果法官团的女性比例较高，那么女律师的不利情形就有可能被（部分地）抵消。被抵消的程度取决于法官自由精神的强弱，和法官团女性比例的大小。

婚姻、革命与法律—陕甘宁边区的离婚法实践

Abstract Based on the judicial archives of the Shaan-Gan-Ning Border Region, this article examines the Border Region’s divorce law practice in the context of the Chinese Communist revolution. Despite the retreat of the Chinese Communist Party (CCP) from its radical approach to divorce during the Yan’an period, women were encouraged by various changes introduced by the revolution to exercise the right to divorce, and their failure or success in divorce litigation was closely associated with their respective positions or statuses as defined in connection with the revolution. On the other side, male peasants, the major social force of the revolution, experienced a downward movement in the marriage market, and their encounter with gongjiaren in divorce litigation revealed the gap between the ideal of marriage as anticipated by lawmakers and the marriage market in reality. To a large extent, this tension contributed to the development of a mediation-focused judicial system, which would deeply influence the civil justice system of the People’s Republic of China. (This article is in English.) 摘要 本文利用陕甘宁边区的司法档案，在中国共产党革命的背景下考察陕甘宁边区的离婚法实践。尽管边区的婚姻立法已从苏维埃时期完全支持离婚的激进立场撤退，但革命带来的各种现实变化，尤其是对个人身份的重塑，仍然激励妇女积极地行使离婚的权利，而她们在革命中所处的位置或身份对于她们在离婚诉讼中权利的实现有重大关联。另一方面，作为革命主要社会力量的男性农民在婚姻市场上经历了下滑， 他们和公家人在离婚诉讼中的对抗清楚地显示了立法者预期的婚姻理想和现实的婚姻市场之间的紧张关系。对此法官们创造性地摸索出一套以调解为主要手段的司法技术，对于中华人民共和国的民事法律制度有根本性的影响。

婚姻、革命与法律—陕甘宁边区的离婚法实践

Abstract Based on the judicial archive of the Shaan-Gan-Ning Border Region, this article examines the Border Region’s divorce law practice in the context of the Chinese Communist Revolution. Despite the withdrawal from the Soviet’s radical approach to divorce during the Yenan period, women were encouraged by various Revolution-introduced changes to exercise the right to divorce, and their failure or success in divorce litigation was closely associated with their respective positions or statuses as defined in connection with the Revolution. On the other side, male peasants, the major social force of the Revolution, experienced a downward movement in the marriage market, and their encounter with Gongjiaren in divorce litigation revealed the gap between the ideal of marriage as anticipated by the lawmakers and the marriage market in the reality. To a large extent, this tension contributed to the development of a mediation-focused judicial system, which would deeply influence the civil justice system of the People’s Republic of China. (This article is in Chinese.) 摘要 本文利用陕甘宁边区的司法档案, 在中国共产党革命的背景下考察陕甘宁边区的离婚法实践。尽管边区的婚姻立法已从苏维埃时期完全支持离婚的激进立场撤退, 但革命带来的各种现实变化, 尤其是对个人身份的重塑, 仍然激励妇女积极地行使离婚的权利, 而她们在革命中所处的位置或身份对于她们在离婚诉讼中权利的实现有重大关联。作为革命主要社会力量的男性农民在婚姻市场上经历了下滑, 他们和公家人在离婚诉讼中的对抗清楚地显示了立法者预期的婚姻理想和现实的婚姻市场之间的紧张关系。对此法官们创造性地摸索出一套以调解为主要手段的司法技术, 对于中华人民共和国的民事法律制度有根本性的影响。

Explaining Litigant Success in the High Court of Australia

The authors examine the influence of party capability theory while controlling for legal-structural and doctrinal changes in the High Court. Based on their analysis of cases from 1970 to 2003, several notable conclusions emerge. The most interesting determinant of litigant success in Australia involves a shift within the High Court from a mechanical form of jurisprudence to a doctrine of implied rights. Once the High Court announced Mabo, ‘one-shot’ litigants gained a significant advantage and were more likely to win. Additionally, the change to a doctrine of implied rights provided barristers with new opportunities to craft novel legal arguments. Consequently, their influence over decision outcomes increased. As barristers gained more experience and more successes, the likelihood of their clients winning increased substantially.

Strategies and Success in Litigation and Negotiation in the WTO

Abstract This article analyzes linkages between litigation in the World Trade Organization (WTO) Dispute Settlement Body (DSB) and negotiation in multilateral trade rounds and develops a typology of links that can occur between the two processes. These include creating conditions where bargaining is informed by law, influencing the agenda-setting and creating momentum for negotiation on key issues, and affecting the status quo from which negotiations proceed by influencing interpretation of trade rules in the DSB. The purpose is to test whether poor and inexperienced states that are disadvantaged in negotiations can improve their bargaining power in negotiation rounds by pursuing legal proceedings, to see whether links can be exploited for strategy-making to promote the interests of these states, and to discuss how the WTO as an international organization benefits from their empowerment. The strategies suggested in this article could improve the commitment and active participation of relatively non-influential member states. This could be conducive to perceptions of the WTO as a legitimate organization and to a more constructive climate for effective negotiations.

Tackling the evaluation challenge in human rights: assessing the impact of strategic litigation organisations

This article helps human rights organisations further their ability to systematically evaluate the impact of their efforts. To bridge the gap between evaluation, public management and human rights research, it assesses three cases of strategic litigation – the use of legal tools to seek positive legal and social change – to develop goals that could be used to evaluate the cases' results, specifically their outcomes and impacts. It urges organisations to embrace goal-based evaluation in which clear goals are identified at the outset of a case or programme. In the short-term, organisations are encouraged to reflect regularly on their work and to develop a common understanding of success in strategic litigation. In the long-term, it is proposed that the human rights community adopt regular efforts to evaluate its work.

Taking enforcement on its own terms: EPA's heavy-duty diesel engine litigation

The authors of Regulation by Litigation characterize the US Environmental Protection Agency (EPA)'s enforcement action against diesel engine manufacturers as an effort to achieve by litigation what the Agency was unable to achieve by regulation: immediate reductions in emissions of nitrogen oxides. By substituting litigation for rulemaking, the authors of the book argue, the Agency avoided political and judicial accountability and put itself on a suboptimal policy track. This comment argues that the diesel engine litigation may be better understood as what it purported to be, an enforcement action, not rulemaking in disguise. The authors' characterization of the litigation is questionable on at least two grounds. First, it fails to fully appreciate the distinct functions of enforcement and policymaking in a regulatory setting. The goal of enforcement is not primarily to make policy, but to enforce it – to punish violators, deter future violations, and mitigate harms caused by violations. That goal supplies the proper measure of the litigation's success. Second, in applying public choice analysis to create a story of agency circumvention of appropriate rulemaking procedures, the authors' account misses key features of how agency enforcement decisions are made – and were made in this litigation. This latter shortcoming raises broader questions about the difficulties of applying public choice analysis in complex institutional settings.

Leveling the Playing Field? Litigant Success Rates in Health-Care Policy Cases in the U.S. Courts of Appeals

Though previous research on party capability demonstrates that the “haves” win more often in litigation than the “have-nots,” this conclusion contradicts the conventional wisdom among the general populace that views the judiciary as the institution most likely to protect individual rights. This raises the question whether an area of the law exists where the courts tend to favor the have-nots over the haves. Using data from the Courts of Appeals Database, our results demonstrate that health-care policy cases present an opportunity for the have-nots to offset advantages typically possessed by the haves, thereby increasing their chances to prevail in litigation. Whether one examines average success rates for appellants, the “net advantage” for litigants, or a more sophisticated statistical model, the data indicate that individuals (i.e., the have-nots) typically enjoy larger success rates than either state and local government or the federal government.

What is the Settlement Rate and Why Should We Care?

After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs' litigation success, or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to have been 66.9 percent in 2001–2002. Regardless of the method of computing settlement rates, no reasonable estimate of settlement rates supports an aggregate rate of over 90 percent of filed cases, despite frequent references to 90 percent or higher settlement rates. The aggregate rate for the EDPA alone was 71.6 percent and for the NDGA alone was 57.8 percent, suggesting significant interdistrict variation, which persists even within case categories. We report separate settlement rates for employment discrimination, constitutional tort, contract, and tort cases in the two districts. The highest settlement rate was 87.2 percent for tort cases in the EDPA and the lowest was 27.3 percent for constitutional tort cases in the NDGA. Our results suggest a hierarchy of settlement rates. Of major case categories, tort cases tend to have the highest settlement rates, then contract cases, then employment discrimination cases, followed by constitutional tort cases. Attorney fee structure and the nature of the parties may explain settlement rate variation. Our findings provide no evidence of a material change in aggregate settlement rates over time.

What is the Settlement Rate and Why Should We Care?

After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs' litigation success, or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to have been 66.9% in 2001-02. Regardless of the method of computing settlement rates, no reasonable estimate of settlement rates supports an aggregate rate of over 90% of filed cases, despite frequent references to 90% or higher settlement rates. The aggregate rate for the EDPA alone was 71.6% and for the NDGA alone was 57.8%, suggesting significant interdistrict variation, which persists even within case categories. We report separate settlement rates for employment discrimination, constitutional tort, contract, and tort cases in the two districts. The highest settlement rate was 87.2% for tort cases in the EDPA and the lowest was 27.3% for constitutional tort cases in the NDGA. Our results suggest a hierarchy of settlement rates. Of major case categories, tort cases tend to have the highest settlement rates, then contract cases, then employment discrimination cases, followed by constitutional tort cases. Attorney fee structure and the nature of the parties may explain settlement rate variation. Our findings provide no evidence of a material change in aggregate settlement rates over time.

After the Storm? The Israeli Supreme Court and the Arab-Palestinian Minority in the Aftermath of October 2000Ilan Saban is an Assistant Professor of Law at Haifa University. The author would like to express thanks to Gordon Anthony, Robert Chapman, Moshe Cohen-Eilya, Tammy Harel-Ben-Shahar, Hassan Jabareen, Yousef T. Jabareen, Barak Medina, Liav Orgad and Revital Sella for valuable comments.

In late September 2000, the Oslo process collapsed and the second Intifada erupted. Soon after that (during the first two weeks of October) something momentous occurred in inter-communal relations ...

A Positive Theory of WTO Adjudication

The positive theory of litigation predicts that under certain conditions plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly 90 percent of the disputes. This disparity transcends case type, country identity, income level and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates that biased rule development explains this disparity through an examination of patterns in WTO adjudicators' notorious decisions. This article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system's democratic legitimacy and legality.

Adversarial agreements: The attitudes of Israeli family lawyers to litigation in divorce practice

This paper examines the legal, demographic and practice factors that are related to adversarial stances among Israeli family lawyers within a context where mediation has been gaining ground but where cultural and institutional forces promote combativeness and litigation. This study is based on a survey of 99 family lawyers and lawyer-mediators, and 38 in-depth structured interviews. The majority of practitioners claimed to seek settlement goals, and regarded themselves as more conciliatory than adversarial, and more settlement oriented than their colleagues. Although litigation was described as undertaken reluctantly or essentially discounted as an adversarial strategy, success in litigation was widely regarded as a professional ideal, and lawyers who fought zealously and won in court were seen to be admired by clients and colleagues. The standard perception of the profession as a whole is derived from the courtroom behavior of the leading Tel Aviv lawyers, so that litigation continues to be simultaneously denigrated, reinterpreted, justified and pursued.

The impact of forest service litigation success on administrative appeals of proposed fuels reduction actions

In this paper, we explore empirically whether the USDA Forest Service's litigation success rate in each Forest Service region helps explain the persistent regional effects noted by Laband et al. (Laband, D.N., González-Cabán, A., and Hussain, A. (2006). “Factors That Influence Administrative Appeals of Proposed USDA Forest Service Fuels Reduction Actions,” Forest Science, 52(5): 477–488.) with respect to the pattern of administrative appeals of proposed fuels reduction actions. We find strong evidence of an inverse relationship between the Forest Service's litigation success rate and the likelihood of administrative appeal of proposed fuels reduction actions on public lands. However, inclusion of this variable explains only about 20% of the region-specific impact noted in Laband et al. (Laband, D.N., González-Cabán, A., and Hussain, A. (2006). “Factors That Influence Administrative Appeals of Proposed USDA Forest Service Fuels Reduction Actions,” Forest Science, 52(5): 477–488.), which continues to command additional investigation.