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Discovery and Disclosure with Asymmetric Information and Endogenous Expenditure at Trial

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  • Amy Farmer
  • Paul Pecorino

Abstract

We develop a model with asymmetric information, in which the uninformed party makes the offer. When the parties proceed to trial, their endogenous expenditures partially determine the outcome. The endogenous spending at trial can either strengthen or weaken the bargaining position of the uninformed party with the player types who settle. When the bargaining position is strengthened, some standard results on information transmission prior to trial may be overturned. The recipient of the offer with a weak case may make a costly voluntary disclosure. In addition, the party making the offer may refuse costless discovery. Both of these results contrast with the standard results in the literature derived from models in which spending at trial is treated as exogenous.

Suggested Citation

  • Amy Farmer & Paul Pecorino, 2013. "Discovery and Disclosure with Asymmetric Information and Endogenous Expenditure at Trial," The Journal of Legal Studies, University of Chicago Press, vol. 42(1), pages 223-247.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/667932
    DOI: 10.1086/667932
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    2. Ayouni, Mehdi & Friehe, Tim & Gabuthy, Yannick, 2023. "Asking for information prior to settlement or trial when misrepresentation of evidence is possible," Mathematical Social Sciences, Elsevier, vol. 121(C), pages 26-35.
    3. Claudio Detotto & Riccardo Marselli & Bryan C. McCannon & Marco Vannini, 2024. "Experts and arbitration outcomes: Insights from public procurement contract disputes," Kyklos, Wiley Blackwell, vol. 77(4), pages 922-943, November.
    4. At Christian & Friehe Tim & Gabuthy Yannick, 2019. "On Lawyer Compensation When Appeals Are Possible," The B.E. Journal of Economic Analysis & Policy, De Gruyter, vol. 19(2), pages 1-11, April.
    5. Farmer Amy & Pecorino Paul, 2016. "Litigation with a Variable Cost of Trial," Review of Law & Economics, De Gruyter, vol. 12(2), pages 203-226, July.
    6. Andrew F. Daughety & Reinganum F. Reinganum, 2014. "Settlement and Trial: Selected Analyses of the Bargaining Environment," Vanderbilt University Department of Economics Working Papers 14-00005, Vanderbilt University Department of Economics.
    7. Morin Chassé, Rémi, 2019. "Strategic behavior in environmental contests with asymmetric ability and reimbursement," International Review of Law and Economics, Elsevier, vol. 58(C), pages 115-126.
    8. Ian A. MacKenzie, 2014. "Precaution with endogenous litigation choices," Discussion Papers Series 535, School of Economics, University of Queensland, Australia.
    9. Farmer, Amy & Pecorino, Paul, 2020. "Disclosure and Discovery with fairness," International Review of Law and Economics, Elsevier, vol. 62(C).
    10. Shaun Larcom & Mare Sarr, 2018. "On the Perils of Commitment to Punishment when Criminals Are Strategic," The Journal of Legal Studies, University of Chicago Press, vol. 47(2), pages 391-418.
    11. McLeod, Alex, 2021. "Discovery, disclosure, and confidence," International Review of Law and Economics, Elsevier, vol. 66(C).
    12. Guerra Alice & Luppi Barbara & Parisi Francesco, 2019. "Standards of Proof and Civil Litigation: A Game-Theoretic Analysis," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 19(1), pages 1-19, January.
    13. Jonah B. Gelbach, 2016. "Can Simple Mechanism Design Results be Used to Implement the Proportionality Standard in Discovery?," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 172(1), pages 200-221, March.
    14. Bryan C. McCannon & Joylynn Pruitt, 2018. "Taking on the boss: Informative contests in prosecutor elections," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 20(5), pages 657-671, October.

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