A microeconomic analysis of the rules of evidence in civil litigation.

Summary Procedural standards are likely to affect the strategies implemented by the parties to a dispute. We study their impact on the volume of litigation and on the amount of expenses incurred by the parties in order to win the case. These two components of the social cost of litigation are at the heart of the challenges that developed countries face in ensuring the effectiveness of substantive law. Our work focuses in particular on the rules of evidence, and we emphasize the opposition between civil law and common law rules.After having defined the contours and the stakes of our subject in the general introduction, we develop a plan in two parts. The first part deals with the behaviour of the parties when they have the possibility of reaching an agreement. Strategic and optimistic models are developed to understand the decisions to go to court and to negotiate. The second part focuses on the process of evidence production that precedes the final hearing. We use rent-seeking models to analyze the incentives of parties to incur expenses.The results suggest that the rules of evidence have a considerable impact on the social cost of litigation. We show that the volume of litigation in France and the United States can be explained by the different rules of evidence that apply in these two countries. Our analysis also reveals that rules of evidence are a major determinant of the private cost of litigation and of defendants' defense strategies.