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

• DOI: http://doi.org/10.1111/lasr.12293
• Date: 01 December 2017
• Published date: 01 December 2017

The Effect of Gender and Relational Distance on

Plaintiff Decision Making in the Litigation Process

Claire B. Wofford

Individuals’ choices about whether to resolve disputes via litigation can be affected

by their relationship with the potential defendant . I explore whether gender also

plays a role, with women being less aggressive in legal tactics than men as their

connection to the potential defendant becomes closer. The study uses a survey

design with vignettes to explore decisions across the legal process, including the

willingness to sue, responses to settlement offers, and whether or not to appeal.

The survey varies the extent of the relations hip between the potential plaintiff

and defendant and includes two types of injuries—a “slip and fall” and pay dis-

crimination. The findings reveal that once litigation has begun, women have a

greater preference than men for mediation in both types of cases, but they are

more resistant than men to settlement in discrimination disputes. Neither men

nor women’s legal strategies seem to be affected by relational distance.

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 law-

suits filed each year

2

and repeated complaints about the over-

This research was made possible by the generous support of the American Political Science

Association Fund for the Study of Women and Politics and the College of Charleston. I also

want to thank Dr. Karyn Amira, Dr. Susan Haire, Dr. Jordan Ragusa, Dr. Gibbs Knotts, and

the anonymous reviewers and editors at Law & Society Review. An earlier version of this paper

was presented at the 2017 Southern Political Science Association Annual Meeting.

Please direct all correspondence to Claire B. Wofford, Assistant Professor, Department of

Political Science, College of Charleston, Charleston, SC 29401; email: woffordcb@cofc.edu

1

See Newsweek’s “Litigious America” (7/29/01; av ailable at http://www.newsweek.com/liti-

gious-america-155121), “More Money into Bad Suits” in the New York Times (11/16/2010; avail-

able at: https://www.nytimes.com/roomfordebate/2010/11/15/investing-in-someone-elses-lawsuit/

more-money-into-bad-suits); The Economist’s “Risk and Litigation: Home of the Unbrave” (1/15/

2015; available at http://www.economist.com/blogs/democracyinamerica/2015/01/risk-and-litiga-

tion); http://www.nytimes.com/2013/10/28/booming/storm-still-brews-over-scalding-coffee.html.

For an excellent account of how the media misrepresented the “hot coffee” case, see Haltom and

McCann (2004). The documentary film “Hot Coffee” by Susan Salandoff (2011) also exposes

the largedisconnect between the facts of the case and the public’s perception of it.

2

In 2016, for example, there were almost 275,000 civil suits filed in federal district

courts alone (data available at: http://www.uscourts.gov/statistics-reports/federal-judicial-

caseload-statistics-2016).

Law & Society Review, Volume 51, Number 4 (2017)

V

C2017 Law and Society Association. All rights reserved.

966

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 pub-

lic’s perception about litigation has been well documented (Engel

2016; Haltom and McCann 2004). Still, scholars have devoted dec-

ades of study to understanding how, when, and why Americans ini-

tiate 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 characteris-

tics of the parties themselves. Willingness to make a legal com-

plaint 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

Wofford 967

work in the law and economics vein, choices about litigation can

be understood as the consequence of litigants’ expected value cal-

culations (Priest and Klein 1984; Robbennolt 2014). Given per-

fect 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 liti-

gants, 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. 1995; Moore and Healy

2008; Robbennolt 2014). In addition, people’s propensity for

risk-taking (assumed by the standard economic model to be neu-

tral or low) varies depending upon whether they are anticipating

gains or losses (Kahneman and Tversky 1984): plaintiffs actually

become more likely to take a chance at trial given a low probabil-

ity of winning the case (Guthrie 2000). Interestingly, there is

some evidence that these frames differ between men and women

(Kim 2012; Umphrey 2003) and that women may evaluate gains

and losses differently than men (Harris and Jenkins 2006).

Building from Felstiner et al.’s (1980–81) concept of “naming,

blaming and claiming,” see, for example, Berrey et al. 2012, 2017).

Nielsen et al. (2017) have argued that identifying the injury as

potentially actionable (“naming”), identifying the party responsible

for the injury (“blaming”), and demanding a legal remedy

(“claiming”) depend on the individual’s location in the social hierar-

chy. They suggest that members from marginalized minority groups

will be more likely to recognize instances of racial discrimination but

less likely to seek remedy through the legal system.

Scholars of legal consciousness are interested in dispute proc-

essing, particularly the “naming” and “blaming” stages (Ewick

and Silbey 1998; Hoffmann 2003; Silbey 2005). They emphasizes

the importance of internal aspects of the individual such as emo-

tion, principles and values, and psychological frames (Abrams

2011; Hadfield 2008; Marshall 2003; Relis 2006; Sandefur 2007).

More tangible traits such as income, education, and knowledge of

the legal system also shape how individuals understand conflicts

and whether or not they take legal action to resolve them (Berrey

et al. 2012; Genn and Paterson 2001; McDonald and People

2014). Members of disadvantaged groups (such as the poor,

women, and racial minorities) seem less likely to pursue legal

remedies or claims of discrimination in particular, behavior which

seems driven in part by their beliefs about the legal system’s

inability to understand and respond to their complaints (Balmer

968 Effect of Gender and Relational Distance