Evidence-Based Litigation Reform
75 Pages Posted: 4 Oct 2011 Last revised: 14 Nov 2012
Date Written: October 3, 2011
Over the past several centuries, medical practice has undergone a striking revolution. Slowly but surely, practices based on ancient authorities and untested theories of disease, like purging and blood-letting, have given way to more effective therapies developed through systematic experimental testing, like antibiotics. This revolution may still be in progress, but few can deny that it has improved the quality of health care services. This article considers what lessons lawyers can learn from this evidence-based revolution in medicine, and whether a similar approach to designing rules of legal procedure and evidence could succeed.
Complex systems, like the body and the litigation environment, resist intuitive understanding. If one wishes to maximize a particular result in such environments, one must systematically measure the effects of various interventions on that result, whether it be the health of a patient or the accuracy of case-resolutions. For this reason, we should place little confidence in the accuracy of results generated by existing litigation procedures, because we have never conducted systematic investigations to identify which rules generate the most accurate outcomes. The costs of this ignorance, in terms of unjust outcomes in civil and criminal litigation, may be very high even if we cannot currently perceive them.
Unfortunately, measuring the accuracy of adjudication is much harder than keeping track of morbidity or mortality. If we wish to develop our own evidence-based litigation movement, we will need to design investigative approaches that can measure and compare the accuracy of the many different types of outcomes that can resolve disputes. Towards this end, I sketch one possible accuracy-measurement protocol in this Article, while acknowledging that it would be costly to implement. I also offer some commentary on the relevance of this discussion for current theorizing and practice, with a particular emphasis on the danger of making procedural design choices based on existing forms of empirical evidence and the risks of crafting national rules without drawing on a record of comparative rule experience.
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