Oytana and Chappe, ‘Expert opinion in a tort litigation game’

Abstract
We investigate the potential impact of various proposed reforms intended both to improve the quality of expert testimony, while reducing its cost and facilitating the work of courts in appointing experts and reading their reports. We present a unilateral care model under strict liability, in which the court cannot perfectly observe the amount of harm a tortfeasor has caused to a victim. However, the judge may appoint an expert to improve his chance of reaching a correct decision. In this context, we find that the likelihood of a victim filing a lawsuit decreases with the quality of the expert testimony and with the cost of the expertise procedure. The chances of filing increases with the non-monetary cost for the judge to appoint an expert. Moreover, we find that the effects of these parameters on the injurer’s level of precaution are ambiguous. We also find that the injurer’s level of care is suboptimal. Finally, we suggest some public policy recommendations in order to (1) increase the injurer’s level of care and (2) reduce the expected cost of a trial in the event of an accident. We find that policy makers face a trade-off between these two objectives.

Yves Oytana and Nathalie Chappe, Expert opinion in a tort litigation game, European Journal of Law and Economics, August 2018, Volume 46, Issue 1, pp 67–107.

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