Standards of Proof and Civil Litigation: A Game-Theoretic Analysis

Posted: 19 May 2016 Last revised: 4 Mar 2018

See all articles by Alice Guerra

Alice Guerra

Copenhagen Business School

Barbara Luppi

University of St. Thomas School of Law; Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Date Written: February 12, 2016

Abstract

In litigation models, the parties’ probability to succeed in a lawsuit hinge upon the merits of the parties’ claims and their litigation efforts. In this paper we extend this framework to consider an important procedural aspect of the legal system: the standard of proof. We recast the conventional litigation model to consider how alternative standards of proof affect litigation choices. We analyze the interrelation between different standards of proof, the effectiveness of the parties’ efforts, and the merits of the case. We study how these factors jointly affect the parties’ litigation expenditures, the selection of cases brought to the courts, pretrial bargain solutions and preemptive strategies. Our results show that standards of proof are not only instrumental to balancing the competing goals of access to justice and judicial truth-finding, but they also play a critical role in affecting parties’ litigation investments and settlement choices, and in sorting the mix of cases that will actually be filed and defended in courts. The understanding of the sorting effect of standards of proof sheds light on their role as a policy instrument in civil litigation.

Keywords: litigation, standard of proof, litigation contest functions

JEL Classification: C72, D72, D8, K10, K41

Suggested Citation

Guerra, Alice and Luppi, Barbara and Parisi, Francesco, Standards of Proof and Civil Litigation: A Game-Theoretic Analysis (February 12, 2016). B.E. Theoretical Economics, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2780634 or http://dx.doi.org/10.2139/ssrn.2780634

Alice Guerra

Copenhagen Business School ( email )

Porcelænshaven 24A
Frederiksberg, 2000
Denmark
+45 15 35 37 (Phone)

HOME PAGE: http://https://sites.google.com/site/aliceguerrahome/home

Barbara Luppi

University of St. Thomas School of Law

2115 Summit Avenue
Saint Paul, MN 55105
United States

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics ( email )

Viale Berengario 51
41100 Modena, Modena 41100
Italy

Francesco Parisi (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

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