Choosing Sides: On the Manipulation of Civil Litigation

Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants' ability to manip...

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Bibliographic Details
Published in:Vanderbilt law review 2024-05, Vol.77 (4), p.1211-1261
Main Authors: Kaplan, Yotam, Paldor, Ittai
Format: Article
Language:English
Subjects:
Burden of proof
Checking accounts
Copyright
Costs (Law)
Disputes
Evaluation
Insurance companies
Judicial error
Laws, regulations and rules
Liability insurance
Limitation of actions
Personal injuries
Recidivists
Tort law
Waiver (Civil procedure)
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Summary:Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants' ability to manipulate their litigatory position--that is, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties' litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that, in reality, professional litigants have both the incentive and the ability to switch between positions at will, assuming whichever litigatory role best serves their interests under given circumstances. These litigants essentially choose which side of the "v." they prefer to be on. This choice allows professional litigants to reshape litigatory interactions, secure easy victories against private individuals, and hinder the fair and equal adjudication of disputes.
ISSN:0042-2533
1942-9886