A central feature of the litigation process that affects case outcomes is the selection of
cases for litigation. In this study, we present a theoretical framework for understanding the
operation of this suit selection process and its relationship to the underlying distribution
of potential claims and claimants. We implement the model empirically by assuming that
individuals vary more in their litigiousness (inverse costs of litigation) than do corporations.
This assumption, coupled with the case selection process we present, yields clear predictions
on trial rates as a function of whether the plaintiff and defendant were individuals or
corporations. The model also yields a prediction on the plaintiff ’s win rate in lawsuits as
a function of the plaintiff ’s identity. Our empirical analysis, using data on over 200,000
federal civil litigations, yields results that are generally consistent with the theory. Lawsuits
where the plaintiff is an individual are found to have higher trial rates and lower plaintiff
win rates.
trials
We develop a model of the plaintiff’s decision to file a law suit that has
implications for how differences between the federal government and private litigants and
litigation translate into differences in trial rates and plaintiff win rates at trial. Our case
selection model generates a set of predictions for relative trial rates and plaintiff win rates
depending on the type of case and whether the government is defendant or plaintiff. In
order to test the model, we use data on about 350,000 cases filed in federal district court
between 1979 and 1997 in the areas of personal injury and job discrimination where the
federal government and private parties work under roughly similar legal rules. We find
broad support for the predictions of the model.