Strategic behavior in litigation

Litigation provides many opportunities for “strategic behavior.” Broadly speaking, the intuition behind the fancy word “strategy” is that individuals and firms decide how to act based on their expectations of how other individuals and firms are likely to act. Put another way, to act strategically means taking into account the anticipated or expected actions of other actors when making a decision. In this post, we shall consider some examples of strategic behavior by plaintiffs and by defendants …

Strategic behavior by plaintiffs

Forum shopping refers to the practice of choosing a court that is most likely to provide a judgment in one’s favor. In this regard, the plaintiff enjoys a strategic advantage over the defendant when it comes to forum shopping, since it is the plaintiff who initiates a case by filing the complaint. The plaintiff will thus get to choose in which court to bring his action. Although the plaintiff is required to bring his action in a court located in a State that has some connection to the legal issues being litigated, since most business and commerce occur across State lines, the plaintiff may have significant leeway in selecting a forum. Generally speaking, the plaintiff will prefer to bring his action in his home jurisdiction or in a court with a reputation for being “plaintiff-friendly.” If the defendant lives in a different State or is overseas, the defendant will thus have to incur significant travel expenses to defend the case in the plaintiff’s home State.

Strategic behavior by defendants

Delay generally works to the defendant’s advantage because of the temporal dimension of litigation. The longer it takes for a case to go to trial, the longer the plaintiff must wait to win a judgment and recoup his investment in his case. Although many delays are the product of court congestion–there are a limited number of judges and courtrooms to handle a large amount of cases–some delays are tactical or strategic in nature, for there are many opportunities for delay, especially during the discovery phase of litigation. Ordinarily, for example, the defendant is required to submit an “answer” or formal response to the plaintiff’s complaint within a certain number of days after being served with the complaint. The defendant, however, can extend this time period significantly by filing a “motion to dismiss” instead. By filing a motion to dismiss, the defendant is able to buy additional time to submit her answer to the complaint, since the time period for submitting the answer will not begin to run until after the court has ruled on the merits of the defendant’s motion to dismiss.

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One Response to Strategic behavior in litigation

  1. Pingback: Litigation is costly | prior probability

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