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Litigation
Abstract
Litigation is a highly structured process of dispute resolution that invokes the power of the state, or a contractually agreed-upon private decision-maker, to provide a means to authoritatively adjudicate a dispute between two or more parties. Key theoretical issues for understanding litigation include rights, procedures, incentives, and uncertainty. Rights focus on who has access to litigation and under what circumstances; procedures deal with the processes employed in the litigation process (with a major distinction between adversarial and investigatory procedures); incentives turn on both what can be achieved through litigation and how the costs of employing litigation are determined and distributed; uncertainty reflects the strategic nature of litigation. The frequency of litigation varies among countries, but precise estimates of the quantity or rate of litigation are difficult to determine, due to differences in what is included and what is counted. Litigation is typically conducted through agents (lawyers) who have their own set of incentives. Litigants can be divided into one-shot and repeat players, with the latter enjoying a range of advantages reflecting resources, experience, and time horizon. Litigation procedures are frequently criticized as costly and slow; for these reasons, reform of those procedures occurs with some regularity.
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The cost of civil litigation is a key factor in determining the extent of access to justice. Following cuts in legal aid attention has focused upon finding alternative methods of assisting litigants without producing costs which are out of proportion to the damages obtained. The recent report by Lord Justice Jackson attempts to deal with concerns about increasing and disproportionate costs said to arise in part because of the encouragement of conditional fee agreements. This article considers the proposals made in the report, and argues that too little attention has been paid to before-the-event insurance as a means of securing access to justice for the great majority of claimants who suffer personal injury.
One hallmark of Herb Jacob's analyses of criminal courts—extensive consideration of the interaction among actors–was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.
Debate over civil justice reform in the United States frequently centers on the extent to which damage awards granted by juries have been escalating over time. However, past studies on civil juries have been hampered by lack of data on verdicts spanning a sufficiently long time period. Average jury awards tend to be highly variable from year to year, making it difficult to distinguish trends over relatively short periods of time. We use the longest time series of data on jury verdicts ever assembled: 40 years of data on tort cases in San Francisco County, CA and Cook County, IL collected by the RAND Institute for Civil Justice. We find that while there has been a substantial increase in the average award amount in real dollars, much of this trend is explained by changes in the mix of cases, particularly a decreasing fraction of automobile cases and an increase in medical malpractice. Claimed economic losses, in particular claimed medical losses, also explain a great deal of the increase. Although there appears to be some unexplained growth in awards for certain types of cases, this growth is cancelled out on average by declines in awards in other types of cases.
The relationship between legal fees and damages is fundamental to the way litigation is funded in most countries. In jurisdictions where fee shifting is the norm, the means by which courts regulate recoverable costs (i.e., the plaintiff's fees), and the extent to which they are proportional to damages, is of central importance. This article explores a recent case study from the United Kingdom involving the introduction of procedural rules designed to build an explicit and transparent degree of proportionality into the determination of legal costs. In October 2003, the Department of Constitutional Affairs in England and Wales announced the introduction of the “Fixed Recoverable Costs Scheme for Low Value Road Traffic Accident Claims.” This established a set of fixed costs that successful lawyers could recover from losing defendants in such cases. The Fixed Recoverable Costs Scheme was based closely on research undertaken by the authors for the Civil Justice Council and the current article describes the process that brought this about. In so doing, it provides an explicit example of empirical legal studies having a direct impact on policy. We were also asked to provide some basic evaluation of the scheme two years later and the article also shows how the scheme was operating, including some of the behavioral changes it apparently induced. We argue that some of these were predictable at the time the scheme was being designed and that the total experience allows us to consider ways the interaction between empirical legal studies and policy can be improved in the future.
This article looks empirically at the notion of ‘American-style’ problems with contingency fees: in particular, the purported link between contingency fees and claims explosions. It does so in the light of renewed interest in contingency fees as a vehicle for access to justice and the resolution of costs problems in the civil justice system prompted by Jackson LJ and others. The article sheds light on the considerable debate about the (de)merits of contingency fees in one of the main – and most controversial – contexts where they are permitted: employment tribunals. The evidence casts doubt on the claim that contingency fees, coupled with US-style costs rules, lead inexorably to an explosion in litigation. The article also examines the significant inequalities in access to justice experienced by claimants and considers how far contingency fees address those concerns, suggesting limits to Kritzer's portfolio theory in relation to employment cases in England and Wales.
The ‘compensation culture’ has featured frequently in the popular press over the last decade. There have, however, been comparatively few academic studies and such studies as there have been have largely focused on personal injury claims. A compensation culture, if it exists, could extend much wider than that. This article compares the exponential increase in the use of the term ‘compensation culture’ in the national printed media since 1995 with available statistics relating to the Queen's Bench, County Courts, and employment tribunals. Far from spiralling upwards, these statistics show a broad decline across a range of claims with the exception of claims before the employment tribunals, where the government has created a slew of new heads of claim. In order to counter the misconceptions founded by the popular media, and to allow for greater scrutiny, more attention should be paid to the collection and dissemination of judicial and claims statistics.
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.
Summary judgment in federal courts has been widely regarded as an initially underused procedural device that was revitalized by the 1986 Supreme Court trilogy of Celotex, Anderson, and Matsushita. Some recent commentators believe summary judgment activity has expanded to the point that it threatens the right to trial. We examined summary judgment practice in six federal district courts during six time periods over 25 years (1975–2000), extracting information on summary judgment practice from 15,000 docket sheets in random samples of terminated cases. We found that when we controlled for changes over time in the types of cases being filed, the likelihood that a case contained one or more motions for summary judgment increased before the Supreme Court trilogy, from approximately 12 percent in 1975 to 17 percent in 1986, and has remained fairly steady at approximately 19 percent since that time. The increase prior to the 1986 trilogy and the modest changes subsequent to the trilogy would be unexpected by many legal commentators. Although summary judgment motions have increased over this 25-year period, this increase reflects, at least in part, increased filings of civil rights cases, which have always experienced a high rate of summary judgment motions. Surprisingly, no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ summary judgment motions, again after controlling for differences across courts and types of cases. These findings call into question the interpretation that the trilogy led to expansive increases in summary judgment. Our analysis suggests, instead, that changes in civil rules and federal case-management practices prior to the trilogy may have been more important in bringing about changes in summary judgment practice.
This article traces the decline in the portion of cases that are terminated by trial and the decline in the absolute number of trials in various American judicial fora. The portion of federal civil cases resolved by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing a long historic decline. More startling was the 60 percent decline in the absolute number of trials since the mid 1980s. The makeup of trials shifted from a predominance of torts to a predominance of civil rights, but trials are declining in every case category. A similar decline in both the percentage and the absolute number of trials is found in federal criminal cases and in bankruptcy cases. The phenomenon is not confined to the federal courts; there are comparable declines of trials, both civil and criminal, in the state courts, where the great majority of trials occur. Plausible causes for this decline include a shift in ideology and practice among litigants, lawyers, and judges. Another manifestation of this shift is the diversion of cases to alternative dispute resolution forums. Within the courts, judges conduct trials at only a fraction of the rate that their predecessors did, but they are more heavily involved in the early stages of cases. Although virtually every other indicator of legal activity is rising, trials are declining not only in relation to cases in the courts but to the size of the population and the size of the economy. The consequences of this decline for the functioning of the legal system and for the larger society remain to be explored.
The propensity of accident victims in England and Wales to claim compensation through the tort system has generally increased since the 1970s. Contrary to popular belief, however, it has remained relatively stable since 2000, if not since 1997/1998. The upward trend in claims abated, therefore, when no-win no-fee advertising achieved prominence. Whether this long-term increase in our propensity to claim supports the notion that a compensation culture has developed is largely a matter of interpretation. Our understanding of recent trends in our propensity to claim has clearly, however, been distorted through the media. This distorted legal consciousness may not only have affected our views of the tort system but may also have influenced our readiness to use it and thereby contributed to the stabilisation of accident claims in recent years.