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Behavioral Law and Economics$
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Eyal Zamir and Doron Teichman

Print publication date: 2018

Print ISBN-13: 9780190901349

Published to Oxford Scholarship Online: June 2018

DOI: 10.1093/oso/9780190901349.001.0001

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Litigants’ Behavior

Litigants’ Behavior

(p.495) 14 Litigants’ Behavior
Behavioral Law and Economics

Eyal Zamir

Doron Teichman

Oxford University Press

This chapter begins with a brief overview of the standard economic analysis of litigation and settlement. It then analyzes a series of behavioral impediments to settlement. These include self-serving biases, overoptimism, non-pecuniary motivations, biases stemming from the adversarial nature of litigation, reference-dependence in assessing settlement offers, and the framing of litigation outcomes. The chapter then points to two behavioral phenomena—regret avoidance and loss aversion—that strongly encourage settlements. The chapter looks at behavioral explanations for the relatively limited use of alternative dispute resolution mechanisms. It also takes a closer look at the role of lawyers and client-lawyer relationships. Finally, it highlights the behavioral contribution to the understanding of plea bargaining in criminal proceedings.

Keywords:   litigation, settlement, alternative dispute resolution, plea bargaining, attorney-client relationships

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