between the control group of lawsuits and the group of constitutional tort cases is the presence of the government as a defendant in the latter. The government may have an informational advantage in predicting the outcome of ...led suits, may have higher stakes in a given lawsuit since it must potentially defend itself against many similar suits, and may also be less risk-averse than individual plainti¤s. As a result, the model developed by Schwab and Eisenberg predicts that the government will tend to settle less often and will win more often at trial. The empirical evidence indeed indicates that plainti¤s are signi...cantly more successful in non-civil rights lawsuits than when they ...le a constitutional tort suit. However, since settlement amounts are not observed and settlement is grouped together with winning at trial as a plainti¤ success, the data cannot be used to compare success rates between settled and tried cases.

Fournier & Zuehlke (1989) use data from civil cases ...led between 1979 and 1981, and observe whether the case settles or not (but not settlement amounts) as well as some characteristics of trial awards and plainti¤s’claims. They ...nd that a higher variance of trial awards increases the probability of reaching a settlement. Although a higher variance of trial awards should increase the likelihood of the parties disagreeing on trial award predictions, it also increases the incentives of risk averse parties to settle. This empirical evidence suggests that the latter e¤ect is stronger, so that more uncertainty about trial outcomes promotes a higher settlement rate.

Gross & Syverud (1991) study 529 California civil jury trial cases in various areas of law. They observe settlement o¤ers and judgments for cases that go to trial, but have no information on cases that settle. They ...nd that the plainti¤ win rate varies greatly across case types (e.g., personal injury vs. commercial transactions). When plainti¤s pay their own litigation costs, the settlement rate increases and the plainti¤ win rate at trial increases, indicating that higher quality suits are brought on average when plainti¤s must shoulder costs of ...ling and trial. Asymmetric stakes (such as repeat players on one side) cause the settlement rate to decrease and the win rate for the high-stakes player to increase. This could imply that high stakes litigants seek to establish a tough reputation by going to trial more frequently and exerting more e¤ort to win cases at trial. Finally, they ...nd that in cases with high potential damages and rich defendants, the plainti¤ success rate at trial decreases; this may be evidence that lower quality suits are brought when defendants are richer and potential damage awards higher.

Siegelman & Donohue (1995) examine employment discrimination cases and ...nd a plainti¤ win rate well below 50%. They use the business cycle to verify implications of the case selection hypotheses. As macroeconomic conditions become more adverse, they show that the number of lawsuits ...led increases, there is a higher settlement rate, and plainti¤s tend to lose more often at trial. This indicates that on average the quality of cases ...led worsens with economic conditions, and that the selection e¤ect weeds out many but not all of the low-quality cases.

Waldfogel (1995) develops the implications of the Priest-Klein model to show that the relationship between the settlement rate and the rate of plainti¤ wins 7