PLAINTIFFS AND THE PROCESS OF LITIGATION:
An Analysis of the Perceptions of Plaintiffs Following their Experience of Litigation
Tania Matruglio
CIVIL JUSTICE RESEARCH CENTRE
Australia 1994

The Civil Justice Research Centre was established by the Law Foundation of New South Wales in 1989. The principal purpose of the Civil Justice Research Centre is to help make the processes for resolving civil disputes in New South Wales more efficient, more cost effective, and more accessible to the public. The Centre examines the policies that shape the civil justice system, the behavior of the people who participate in it, the operation of its institutions, and its effects on the community's social and economic systems. The Centre adopts an interdisciplinary approach to the study of public policy issues; widely disseminates the results of its work to Government officials, legislators and judges; the unions; the business, consumer affairs, legal and research communities; and to the general public.

Methodology

Two sources of information were combined to produce this report: ... case files and responses obtained directly from plaintiffs via a self-administered questionnaire.

The CJRC reviewed 1188 files .... The cases reviewed were those included in the 1992 Special Sittings. Included in the sittings were the oldest cases next in line for hearing on the General List. Most were personal injury compensation claims. ... Following the file based data collection, a questionnaire was designed and mailed to 1105 of the 1188 plaintiffs. For various reasons, the possible sample of plaintiffs was reduced to 800. From these plaintiffs, the CJRC received a 55% response rate.

Results of the Research

The questionnaire included both fixed choice and free response questions. It addressed six aspects of the litigation process: case duration, the method used to resolve the claim, compensation received, lawyers' fees and other charges, information provided by their lawyer and the plaintiff's experience with the [court]. The final section was more general and asked questions about how satisfied the plaintiffs were with the operation of the legal system and provided space to add any further comments.

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Contrary to popular belief about what forms the basis of plaintiff satisfaction, actual case outcome, duration and cost were not found to be related to plaintiff satisfaction. ... The results of the analyses also indicated that other factors were important to plaintiff satisfaction. In particular, expectations and perceptions.

The expectations plaintiffs held about the amount of compensation they were to receive and the duration of their case impacted on their satisfaction with these aspects of their case. The perceptions plaintiffs held about the amount of control they had over the outcome of their case, how much they were able to participate during the settlement negotiations and the fairness of the negotiations were related to their satisfaction with each of the measures of satisfaction.

Case characteristics were not found to be related to satisfaction, and of all the plaintiff characteristics, only education and income were important. A further finding was that the information provided to plaintiffs by their solicitor was related to their perceptions of control, participation and fairness.

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The results of the analyses indicate that high compensation payments, low case costs and short case duration are not the most important determinants of plaintiff satisfaction. Instead, it was found that plaintiff satisfaction may be tempered by addressing the process of litigation rather than attending to its consequences.

... It was ... hypothesized that plaintiffs who perceived they had control over their case, were able to participate in the settlement negotiations and perceived that these negotiations were fair, were more likely to be satisfied than were plaintiffs who did not hold such perceptions. Again this hypothesis was supported. The impact of plaintiff perception on satisfaction was also found to be greater than that of actual case outcome or duration. It was found that plaintiffs were more likely to perceive that they had control, were able to participate and that the settlement negotiations were fair, when their solicitors provided them with information about the progress of their case.

The results have important implications. For example, case delay and costs are two areas typically targeted for reform. Implicit in these reforms is a belief that a reduction in cost and delay will increase plaintiff satisfaction. The findings of this research however suggest that procedural innovations which reduce costs and delay may not be counted on to enhance plaintiff satisfaction simply by virtue of such reductions being achieved. Instead, they indicate that reforms aimed at increasing plaintiff satisfaction require that attention be given to the role played by the plaintiff during the process of litigation.

Further, it was found that information played a central role in the expectations and perceptions the plaintiffs held: that is, in two factors found to be important to plaintiff satisfaction. The implication of these results is that the provision of accurate information about what to expect and about case progress may increase the likelihood of satisfaction.

Summary

Important to satisfaction with the operation of the legal system were the expectations plaintiffs held about case outcome and duration and their perception of how fair the negotiation process was. Thus, system satisfaction is not dependent on the consequences of litigation - that is, with actual case outcome or how long the case took. Instead, it was dependent on whether the plaintiff's expectations were matched and whether the litigation process was perceived as having been fair.