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Full-Text Articles in Law

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski Dec 2014

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …


Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Dec 2014

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Jeffrey J. Rachlinski

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.


Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski Dec 2014

Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions—a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for …


Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski Dec 2014

Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.


Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski Dec 2014

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.


Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski Dec 2014

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers that have been shown to distort litigation decision making, appear to make decisions in a …


Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski Dec 2014

Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Jury trials have always been a source of anxiety for litigators. Despite years of preparation, the outcome of a case can turn on the whimsical biases of a group of people who may or may not understand the legal arguments involved. In recent years, attorneys have taken steps to reduce this uncertainty by hiring social scientists who study jury decision making. One of the most popular services which these consultants offer is assistance in the jury selection process. The use of sociological and psychological methods in identifying and excluding unfavorable jurors from service, known as Scientific Jury Selection ("SJS"), has …