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O'Connell Early Settlement Offers: Toward Realistic Numbers and Two-Sided Offers

23 Pages Posted: 17 May 2010  

Bernard S. Black

Northwestern University - Pritzker School of Law; Northwestern University - Kellogg School of Management; European Corporate Governance Institute (ECGI)

David A. Hyman

Georgetown University

Charles Silver

University of Texas at Austin - School of Law

Abstract

In a prior article in this journal, we estimated the effect of an “O'Connell” early settlement offer program on payouts in medical malpractice litigation. Using Texas data and a base set of assumptions, we predicted that early offers would result in a 16 percent (20 percent) decline in payouts in currently tried (settled) cases. The overall decline came almost entirely from a sharp drop in payouts in cases with small economic damages. We compared our results with the estimate by Hersch, O'Connell, and Viscusi (2007) (HOV) of a 70 percent reduction in payouts, reconciled the two estimates, and explained why HOV's estimate reflected the compound effects of a series of unreasonable assumptions. In a reply in this journal, Hersch, O'Connell, and Viscusi (2010) (HOV-2) complain that we misunderstand both the early offer proposal and their analysis. Remarkably, they do not dispute our estimates, given our assumptions. In this rebuttal, we defend our assumptions and provide an alternate analysis of settled cases based on insurer allocations, which also produces an estimated 20 percent payout decline. We also develop further our proposal for two-sided early offers. This proposal would reduce the predicted payout decline by about 2 percent in both tried and settled cases. We explain in greater detail the problems with HOV's analysis. If we correct an error they made in understanding the Texas data set, and leave their other assumptions unchanged, their payout decline estimate drops to 30 percent, not far from ours.

Suggested Citation

Black, Bernard S. and Hyman, David A. and Silver, Charles, O'Connell Early Settlement Offers: Toward Realistic Numbers and Two-Sided Offers. Journal of Empirical Legal Studies, Vol. 7, Issue 2, pp. 379-401, June 2010. Available at SSRN: https://ssrn.com/abstract=1605477 or http://dx.doi.org/10.1111/j.1740-1461.2010.01182.x

Bernard S. Black (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-2784 (Phone)

Northwestern University - Kellogg School of Management

2001 Sheridan Road
Evanston, IL 60208
United States
847-491-5049 (Phone)

European Corporate Governance Institute (ECGI)

Brussels
Belgium

David A. Hyman

Georgetown University ( email )

Washington, DC 20057
United States

Charles M. Silver

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1337 (Phone)
512-232-1372 (Fax)

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