Managerial Judges: An Economic Analysis of the Judicial Management of Legal Discovery

Joel L. Schrag

RAND Journal of Economics, 1999, vol. 30, issue 2, 305-323

Abstract: I analyze the effect of procedural rules that permit judges to limit pretrial discovery. In the presence of asymmetric information, a litigant may forgo settlement before discovery if his opponent interprets a serious offer as a sign that her discovery is likely to uncover useful evidence, leading her to invest more in discovery. Furthermore, a litigant may forgo settlement in order to strengthen his or her threat of future discovery. I show that by limiting pretrial discovery, the judge can simultaneously increase the probability of early settlement and reduce expected litigation costs, without reducing potential injurers' incentives to take care.

Date: 1999
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