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Cost Shifting in Civil Litigation: A General Theory

Listed author(s):
  • Ben Chen
  • José A. Rodrigues-Neto

We model civil litigation as a contest between a plaintiff and a defendant. A success function describes the litigants’ respective posterior probabilities of success based on their simultaneously-chosen efforts and an exogenous prior reflecting their relative advantages. The present success function satisfies general assumptions which capture frequently-used functional forms. These assumptions represent natural intuitions regarding the properties of reasonable success functions, and enable the results arising from the present model to reach a great degree of generality. Another generalization is the use of an exogenous proportion to characterize a cost-shifting rule that allows the winner to recover that proportion of her litigation costs from the loser. There exists a unique Nash equilibrium with positive efforts. In equilibrium, more cost shifting makes the outcome of the case more predictable, but may increase the litigants’ collective expenditure and decrease their collective welfare.

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File URL: https://www.cbe.anu.edu.au/researchpapers/econ/wp651.pdf
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Paper provided by Australian National University, College of Business and Economics, School of Economics in its series ANU Working Papers in Economics and Econometrics with number 2017-651.

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Date of creation: May 2017
Handle: RePEc:acb:cbeeco:2017-651
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