Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies

Abstract

This article reveals some of the tactics which lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered here to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims in the U.K. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.
For a You Tube lecture based on some of this publication see https://www.youtube.com/watch?v=XShI_gXYni8

Keywords: Tort, Personal Injury, Damages, Litigation, Tactics, Civil Claims, Settlement, Negotiation, Bargaining, Legal costs, Compensation Culture, Paralegal, Socio-legal, Empirical