Deterrence, Lawsuits, and Litigation Outcomes Under Court Errors

This paper presents a strategic model of liability and litigation under court errors. Our framework allows for endogenous choice of level of care and endogenous likelihood of filing and disputes. We derive sufficient conditions for a unique universally-divine mixed-strategy perfect Bayesian equilibrium under low court errors. In this equilibrium, some defendants choose to be grossly negligent; some cases are filed; and, some lawsuits are dropped, some are resolved out-of-court and some go to trial. We find that court errors in the size of the award, as well as damage caps and split-awards, reduce the likelihood of trial but increase filing and reduce the deterrence effect of punitive damages. We derive conditions under which the adoption of the English rule for allocating legal costs reduces filing