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Sequential trials and the English rule

Jef De Mot (UGent)
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Abstract
The allocation of trial costs and the way a trial progresses are two important issues in civil procedure. The combination of these two elements has received relatively little attention in the law and economics literature. The prior literature has only compared unitary litigation (e.g. liability and damage issues are litigated, after which the court decides on both issues) under the American rule with sequential litigation (e.g. the parties first litigate the liability issue after which the court makes a decision, and then if still necessary the parties litigate the damages issue) under the American rule. In this article, I examine the influence of sequential litigation when the loser at trial pays all the litigation costs and compare the results with (a) the situation in which litigation is unitary and the loser pays all the litigation costs and (b) the situation in which litigation is sequential and each party bears her own costs. I focus on the incentive to sue, the incentive to settle (or to litigate) and on the settlement amount. Some interesting differences with the previous literature are discussed in detail.
Keywords
Bifurcated trials, Economics of civil procedure, Sequential trials, English rule, Unitary trials, American rule, Rules of cost allocation, Fee shifting

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Citation

Please use this url to cite or link to this publication:

Chicago
De Mot, Jef. 2012. “Sequential Trials and the English Rule.” European Journal of Law and Economics 34 (1): 31–43.
APA
De Mot, Jef. (2012). Sequential trials and the English rule. EUROPEAN JOURNAL OF LAW AND ECONOMICS, 34(1), 31–43.
Vancouver
1.
De Mot J. Sequential trials and the English rule. EUROPEAN JOURNAL OF LAW AND ECONOMICS. 2012;34(1):31–43.
MLA
De Mot, Jef. “Sequential Trials and the English Rule.” EUROPEAN JOURNAL OF LAW AND ECONOMICS 34.1 (2012): 31–43. Print.
@article{1108491,
  abstract     = {The allocation of trial costs and the way a trial progresses are two important issues in civil procedure. The combination of these two elements has received relatively little attention in the law and economics literature. The prior literature has only compared unitary litigation (e.g. liability and damage issues are litigated, after which the court decides on both issues) under the American rule with sequential litigation (e.g. the parties first litigate the liability issue after which the court makes a decision, and then if still necessary the parties litigate the damages issue) under the American rule. In this article, I examine the influence of sequential litigation when the loser at trial pays all the litigation costs and compare the results with (a) the situation in which litigation is unitary and the loser pays all the litigation costs and (b) the situation in which litigation is sequential and each party bears her own costs. I focus on the incentive to sue, the incentive to settle (or to litigate) and on the settlement amount. Some interesting differences with the previous literature are discussed in detail.},
  author       = {De Mot, Jef},
  issn         = {0929-1261},
  journal      = {EUROPEAN JOURNAL OF LAW AND ECONOMICS},
  keyword      = {Bifurcated trials,Economics of civil procedure,Sequential trials,English rule,Unitary trials,American rule,Rules of cost allocation,Fee shifting},
  language     = {eng},
  number       = {1},
  pages        = {31--43},
  title        = {Sequential trials and the English rule},
  url          = {http://dx.doi.org/10.1007/s10657-011-9226-y},
  volume       = {34},
  year         = {2012},
}

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