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Boyd & Hoffman on Motions & Settlement

By Lawrence Solum

Christina L. Boyd (State University of New York (SUNY) - Department of Political Science) & David A. Hoffman (Temple University - James E. Beasley School of Law) have posted Litigating Toward Settlement on SSRN. Here is the abstract:

What is the relationship between litigation and settlement? Previous research assumes that the factors influencing settlement are exogenous to the parties: once the complaint is filed, the die is cast. We hypothesize, by contrast, that the parties are active participants in the process by which they come to understand their cases and agree to private resolutions. This active and reflexive process of learning through litigation is likely to be just as important in determining when a case will settle as are the litigation characteristics ? managerial judging, fee structure, case type, court congestion ? that have dominated previous research.

Using detailed federal district court data to analyze how the filing and resolution of motions influences the timing of compromise, we find that the mere filing of a motion speeds case settlement. As theory predicts, motions which are granted are more immediately important to the settlement rate than motions denied, plaintiff victories are more important than defendant victories, motions about unclear areas of law are more important than motions about settled law, and motions later in cases are more important that motions earlier in cases. Our results open up a new area of research into the pro-social effects of litigation. We question the common assumption that litigators simply add cost and that settlement must be midwifed by active judging. Rather, the parties can force information from each other (and the court) by filing motions at appropriate moments in the case.

Highly recommended.

Full post as published by Legal Theory Blog on August 11, 2010 (boomark / email).