Preliminary Thoughts on the Economics of Witness Preparation

Abstract

The conventional wisdom, reflected in certain advertisements that lampoon lawyers, is that personal injury lawyers are the most likely practitioners to encourage witnesses to falsify injuries and evidence, so as to make winning cases out of losers. This article presents a variety of reasons for questioning this belief and argues instead that false testimony, witness coaching, and related abusive acts are more likely to occur in cases where other forms of discovery abuse are common, namely, in complex multi-party commercial lawsuits that involve high stakes. The empirical literature on the conduct of personal injury lawyers and lawsuits shows (1) that attorneys reject most requests for representation, (2) that most rejections occur because of weak liability facts or insufficient damages, (3) that attorneys have few conversations with clients and invest few resources in most cases, and (4) that testimony is taken in a minority of filed cases. These findings are inconsistent with the suggestion that personal injury lawyers frequently engage in extensive witness preparation. The article also develops a simple model of incentives to invest resources that obtain when lawyers handle portfolios of cases. The treatment is informal.