1. Choosing Sides: On the Manipulation of Civil Litigation.
- Author
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Kaplan, Yotam and Paldor, Ittai
- Subjects
Personal injuries -- Laws, regulations and rules ,Tort law -- Evaluation ,Limitation of actions -- Laws, regulations and rules ,Recidivists -- Laws, regulations and rules ,Liability insurance -- Laws, regulations and rules ,Costs (Law) -- Laws, regulations and rules ,Waiver (Civil procedure) -- Laws, regulations and rules ,Burden of proof -- Laws, regulations and rules ,Judicial error -- Laws, regulations and rules ,Government regulation - Abstract
INTRODUCTION 1213 I. THE PLAINTIFF-DEFENDANT DICHOTOMY 1223 A. Professional Plaintiffs 1223 B. Professional Defendants 1227 II. CHALLENGING CONVENTIONAL WISDOM 1231 A. The Ability to Manipulate Litigatory Positions 1231 1. Contractual [...], 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. Based on this observation, this Article makes three novel and important contributions. First, it reconceptualizes our understanding of the litigatory landscape. The Article challenges the existing understanding of the litigation system by deconstructing the traditional plaintiff-defendant dichotomy and highlighting the malleability of the litigatory setting. Second, it draws attention to the implications of professional litigants' manipulation tactics. Finally, it proposes legal reforms designed to balance the scales and update the institutions of litigation to the current reality, in which most legal disputes occur between private individuals on one side and professional adversaries on the other.
- Published
- 2024