Ranking the alternative system efficiency Formal protection of civil liberties 1950 US political model 1 4 Adversarial legalism 4 1 US plea bargaining 2 3 Bureaucratic legalism 3 2 The shadow of the law Costly unpredictable system of A L Incentives to plea bargain Results often divorced from legal merits Criminal versus civil law Criminal law Involves the prohibition of certain conduct and the threat of punishment by the state Civil law Involves everything else and typically but not always centers on compensation of the plaintiff The bottom line We frequently use our civil justice system to address significant social economic and political issues that other countries address via parties and the bureaucracy So let s take a took at how the civil litigation process works Civil cases a procedural timeline Filing of the complaint by the plaintiff Defendant either Defaults Answers may counterclaim Pre trial discovery and motions Motions to dismiss Summary judgment motions Pre trial conference Trial Post trial motions Appeals Judgment enforcement The cost and inefficiency of A L A L is slow Median time to trial two years Germany half had decision within 6 months in 9 months A L is expensive Litigation costs ranged from 35 to 45 percent on each side A L is unpredictable Judges reduce 20 to 25 percent of all jury awards Why is the US system so costly Redundant procedures All at once trial Juries Why is the US system unpredictable Juries Politically selected judges Entrepreneurial lawyers SO WHAT Vast majority of cases settle Number range from 80 to 97 percent of all cases depending on the study Bargaining in the shadow of high costs and legal uncertainty What s wrong with settlement It is a form of self help in which parties can tailor the outcome to the individual merits of the case By definition it involves mutual consent and thus should have a high degree of legitimacy It is faster and less costly than trial Results can be tailored on case by case basis What could possibly go wrong Bargaining in the shadow of the cost and uncertainty of A L scenario I II III IV Status of law clear clear unclear unclear Expected damages 100 100 Pi 100 Delta 80 Pi 100 Delta 80
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