Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation

Americans have a long-standing reputation for relying upon the legal system to deal with all manner of problems and issues;  litigiousness is often seen as an American disease.  Yet 99% of legal cases started in the courts never even make it through the courthouse door, because formal court action is never initiated.  Instead, participants reach an out-of-court settlement.  What does this dominance of negotiated settlement over adjudication mean?  Has “Equal Justice Under Law” given way to “Let’s Make a Deal”?  So far, most of the evidence from judges and lawyers, policy makers and researchers has been anecdotal, and the public image of complex legal machinations and back-room deals derives from a few spectacular and atypical cases.
    Based on findings from the Civil Litigation Research Project, begun in 1979 and sponsored by the U.S. Department of Justice,  Herbert Kritzer has constructed a coherent picture of the routine of ordinary litigation.  He shows, for instance, that the vast bulk of “ordinary cases” that account for most claims in federal and state courts are rather “cut-and-dried” affairs that deal with relatively modest amounts of money—important information for the proponents of litigation reform.  He examines the economics of bargaining, for both lawyers and their clients, and the extent to which litigation is governed by monetary concerns.  Evaluating the  models of negotiation and game theory that are currently in vogue, Kritzer posits a more useful typology for understanding what actually happens when lawyers, plaintiffs, and defendants sit down to “make a deal.”  His illuminating insights into the divergent interests of attorneys and clients correct many of the assumptions of standard economic theories of litigation and bargaining.

Herbert M. Kritzer is professor of political science at the University of Wisconsin–Madison.