Any Frequency of Plaintiff Victory at Trial is Possible

Abstract

A basic question about litigation concerns the frequency of plaintiff victories at trial and how cases that go to trial relate to settled cases. In a stimulating paper Priest and Klein advanced a model in which there is a tendency for plaintiffs to prevail with probability 50% regardless of the likelihood with which they would have won the cases that they settled. However this note demonstrates that in a simple frequently employed model of litigation it is possible for the cases that go to trial to result in plaintiff victories with any probability. Moreover given any probability of plaintiff victory at trial the probability of plaintiff victory among settled cases may be any other probability. Further data on the frequency of plaintiff victory does not clearly support the 50% tendency. In consequence the note concludes that it does not seem appropriate to regard 50% plaintiff victories as a central tendency either in theory or in fact.