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Trial and settlement negotiations between asymmetrically skilled parties

Bertrand Chopard (), Thomas Cortade () and Eric Langlais

No 2008-32, EconomiX Working Papers from University of Paris Nanterre, EconomiX

Abstract: 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.

Keywords: litigation; unilateral and bilateral asymmetric information; legal expenditures (search for similar items in EconPapers)
JEL-codes: D81 K42 (search for similar items in EconPapers)
Pages: 30 pages
Date: 2008
New Economics Papers: this item is included in nep-cta and nep-law
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Related works:
Journal Article: Trial and settlement negotiations between asymmetrically skilled parties (2010) Downloads
Working Paper: Trial and settlement negotiations between asymmetrically skilled parties (2010)
Working Paper: Trial and settlement negotiations between asymmetrically skilled parties (2008) Downloads
Working Paper: Trial and settlement negotiations between asymmetrically skilled parties (2008) Downloads
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