Standard of proof and volume of litigation: A comparative perspective

This paper explores the effect of the standard of proof on the level of litigation. A comparative perspective is adopted to study the consequences of the high standard applying in the civil law tradition as opposed to the low standard (preponderance of evidence) applicable in the common law tradition. To this end, I build on the canonical asymmetric information model, further assuming that a stronger standard of proof decreases the plaintiff's probability of success at trial. With this interpretation, the suit and the settlement probabilities are shown to decrease as the standard of proof becomes more rigorous, everything else being equal. Thus, the analysis suggests that the standard of proof may be part of the explanation for differences in litigation activity patterns across countries.