Deterrence, Lawsuits, and Litigation Outcomes Under Court Errors

This article presents a strategic model of liability and litigationunder court errors. Our framework allows for endogenous choiceof level of care and endogenous likelihood of filing and disputes.We derive sufficient conditions for a unique universally divinemixed-strategy perfect Bayesian equilibrium under low courterrors. In this equilibrium, some defendants choose to be grosslynegligent; some cases are filed; and some lawsuits are dropped,some are resolved out of court, and some go to trial. We findthat court errors in the size of the award, as well as damagecaps and split awards, reduce the likelihood of trial but increasefiling and reduce the deterrence effect of punitive damages.We derive conditions under which the adoption of the Englishrule for allocating legal costs reduces filing.