Proof Discontinuities and Civil Settlements

62 Pages Posted: 22 May 2020 Last revised: 24 Feb 2021

See all articles by Mark Spottswood

Mark Spottswood

Florida State University College of Law

Date Written: April 26, 2020


This Article explores settlement incentives under three different burden of proof rules. The conventional burden of proof is a discontinuous step-function, jumping from no damages to full damages at the 0.5 jury confidence level. Continuous burdens of proof, by contrast, would permit sanctions to steadily increase as juror confidence rises from 0 to 1, with no discontinuity. Linear burdens, which have received extensive attention in prior literature, escalate sanctions steadily across the whole range of confidence levels, while the logistic burden takes a nonlinear form.

Using a data simulation approach guided by the empirical realities of American civil litigation, I consider the incentives that each of these rules creates for parties contemplating settlement, using a model in which parties make divergent forecasts of their expected outcomes at trial due to optimism bias. Based on this analysis, I conclude that a linear burden would likely raise our settlement rate by a modest amount, except in very large cases and in “easy” cases, in which an unbiased person would predict that a trial fact-finder would have a level of confidence in liability quite close to either zero or one. I also compare the expected error rate of the settlements that each rule produces, and find that the linear rule modestly lowers the expected error rate of settlement overall, although this benefit does not hold for easy cases or those with very high damages. Lastly, I conduct a similar analysis for the logistic burden, finding that it induces a similar quality and quantity of settlements as we currently achieve using conventional burdens.

Keywords: trials, settlements, evidence, burden of proof, liability, simulation

Suggested Citation

Spottswood, Mark, Proof Discontinuities and Civil Settlements (April 26, 2020). 22 Theoretical Inquiries L. 201 (2021), FSU College of Law, Public Law Research Paper No. 924, FSU College of Law, Law, Business & Economics Paper No. 20-12, Available at SSRN:

Mark Spottswood (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL Florida 32306
United States
8506444248 (Phone)


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