The inherent variability of cases in legal practice places important constrains on the conclusions that can be drawn from observations in actual litigation. Experimental approaches provide a powerful tool for legal scholars and policy makers to counter such limitations. Experimental approaches examine legal questions by means of laboratory or field experiments, which simulate litigation contexts, or experimentally test initiatives in actual litigation practice. In these approaches, key features (e.g., the presence or absence of apologies) are varied systematically, while variability on other factors (eg, between types of tort, level of harm, etc) is minimized. Thereby, the researcher therefore can isolate the unique effects of particular actions, initiatives, or features that cannot be separated in legal practice – or which have not yet been implemented there (eg, proposed reforms). Thereby, experimental approaches provide unique insight that can enrich and advance legal scholarship and practice, by providing causal evidence that speaks to the validity of the assumptions and presumptions on which legal theorizing and policy are based. In the present chapter, this process is illustrated by reviewing experimental approaches in the domain of personal injury litigation, and applying their conclusions to the current discussion on the sufficiency of its extant litigation designs, and the direction of their future reform.
Reinders Folmer, Chris, Experimental Approaches to Private Law: The Case of Redressing Personal Injury (July 26, 2016). This draft chapter has been published by Edward Elgar Publishing in Emprical Legal Research in Action edited by Willem van Boom, Pieter Desmet, and Peter Mascini, published in 2018, available at: https://www.e-elgar.com/shop/gbp/empirical-legal-research-in-action-9781785362743.html.