The Effect of Gender and Relational Distance on Plaintiff Decision Making in the Litigation Process

By Wofford, Claire B. | Law & Society Review, December 1, 2017 | Go to article overview

The Effect of Gender and Relational Distance on Plaintiff Decision Making in the Litigation Process


Wofford, Claire B., Law & Society Review


Conventional wisdom holds that the United States is the world's most litigious country. Media headlines scream about a "Litigious America" and its many "Bad Suits" and Americans seem convinced that "McDonald's Hot Coffee" cases are a frequent occurrence.1 There are also frequent reports about the striking number of lawsuits filed each year2 and repeated complaints about the over- burdening of our court systems. Within sociolegal scholarship, the argument that people litigate readily has been called a "persistent myth" since most people do not pursue legal grievances (Epp 2000; Galanter 1983; Silbey 2005), and the inaccuracy of the public's perception about litigation has been well documented (Engel 2016; Haltom and McCann 2004). Still, scholars have devoted decades of study to understanding how, when, and why Americans initiate legal action.

Turning to a closer examination of when people frame a grievance as legal and when they pursue it, sociolegal scholars have argued from resources, (Galanter 1974; Miethe 1995), the nature of the injury (McDonald and People 2014; Miller and Sarat 1980281; Pleasence et al. 2011), and the "social meaning" attached to use of the legal system (Albiston and Sandefur 2013: 104; Felstiner et al. 1980). Others have examined the characteristics of the parties themselves. Willingness to make a legal complaint in the United States varies by socioeconomic status, level of education (Access to Justice; McDonald and People 2014), gender (Hoffmann 2003; Marshall 2003), and race (Morrill et al. 2010; Nielsen et al. 2017). The relationship between an injured person and the organization or person complained against also affects whether individuals resolve disputes via the legal system (Berrey et al. 2017; Felstiner et al. 1980281; May and Stengel 1990; Miller and Sarat 1980281; Morgan 1999; Yngvesson 1984).

In this study, I build on these findings to examine whether women and men make different decisions about legal strategies, and whether relational distance is evident as a factor in decisions to complain in a legal institution. Pathbreaking studies have relied on observation and survey data; this study will evaluate findings via a survey using vignettes. The project separates legal action against a stranger, acquaintance, or close friend. Unlike most extant work, I also examine multiple stages of the litigation process (the decision to file suit, how to respond to a settlement offer, and whether to appeal a losing verdict), and disputes involving two different types of legal injuries. Gender does sometimes shape the decision making of potential plaintiffs, though it varies by the stage of litigation and the nature of the harm. Gender does not appear to interact with the plaintiff's connection to the potential defendant. This project gives us more insight into which individuals pursue legal action and, consequently, who does-and does not-undertake the risks and benefits of the legal system. It also illustrates how gender can shape the legal system in subtle, but still important ways.

The Decision to Litigate

Insights about relational distance contrast with frames relying on rational calculation and psychological biases. For those who work in the law and economics vein, choices about litigation can be understood as the consequence of litigants' expected value calculations (Priest and Klein 1984; Robbennolt 2014). Given perfect and symmetrical information, litigants decide whether to settle cases or proceed to trial based upon which option provides the highest expected value (Cooter and Ulen 2012). Potential litigants, in other words, are rational actors whose choices are driven by strategic calculations (Boyd 2015; Boyd and Hoffman 2012; Hylton 2000).

Psychological factors can shape calculations. Individuals can overestimate their chances for success, have biased perceptions about how much their injury is worth, and be overly confident in the likelihood of victory (Babcock et al. …

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