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Hylton, Keith N.; Lin, Haizhen --- "Trial Selection Theory and Evidence" [2012] ELECD 105; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 17

Section Title: Trial Selection Theory and Evidence

Author(s): Hylton, Keith N.; Lin, Haizhen

Number of pages: 20

Extract:

17 Trial selection theory and evidence
Keith N. Hylton and Haizhen Lin


1. Introduction
This chapter presents a review of trial selection theory. We use the term
"trial selection theory" to refer to models that attempt to explain or
predict the characteristics that distinguish cases that are litigated to judg-
ment from those that settle, and the implications of those characteristics
for the development of legal doctrine and for important trial outcome
parameters, such as the plaintiff win rate. Using this definition, trial selec-
tion theory can be said to have started with Priest and Klein (1984).
Trial selection theory is important for many reasons. People often refer
to plaintiff win rates in an attempt to assess whether the law works as it
should in certain areas of litigation.1 Low plaintiff win rates are often cited
as a sign that the law favors defendants, and conversely. Trial selection
theory is useful in any effort to draw reliable inferences from trial outcome
statistics.
Another reason trial selection theory is useful is that it helps us under-
stand how litigation influences the path of the law. If, for example, the most
uncertain cases are the ones that go to trial, then the law will not exhibit
a pro-plaintiff or pro-defendant bias over time. If, on the other hand, the
cases that go to trial tend to be those with facts that favor defendants, then
we will observe legal rules that exhibit a pro-defendant bias.
On a more confounding ...