Plaintiff Favoritism in Judicial Cost-Shifting Decisions

Keren Weinshall*, Ifat Taraboulos

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

1 Scopus citations


Are judges inclined to favor plaintiffs over defendants? We analyze the rela-tionships between win rates and cost-shifting outcomes in the Israeli loser-pays regime. Though qualitative analysis of semistructured interviews with judges as-sures us that litigants are equal in the cost-shifting arena, quantitative analysis portrays evidence to the contrary: judges allocate more and higher costs in favor of prevailing plaintiffs than defendants. Results are replicated in three datasets: a sample of all civil cases, small claims between individuals, and claims with matching counterclaims. We discuss explanations for this implicit pro-plaintiff effect in cost-shifting and implications for a possible broader pro-plaintiff bias.

Original languageAmerican English
Pages (from-to)156-189
Number of pages34
JournalJournal of Institutional and Theoretical Economics
Issue number1
StatePublished - 2023

Bibliographical note

Funding Information:
Structural and procedural differences between litigants may result in systemic favoritism towards one litigating party or the other. Some experimental studies indicate that plaintiffs’ narratives are more persuasive as they generally present their case first, stimulating primacy effects. Other experiments find recency effects and status quo biases that could work to defendants’ advantage (Walker, Thibaut, and Andreoli, 1972; Costabile and Klein, 2005; Enescu and Kuhn, 2012; Engel, * Hebrew University of Jerusalem, Israel. Corresponding author: Keren Weinshall. We are grateful for suggestions by Elliott Ash, Ian Ayres, Omri Ben Shahar, Berni Black, Frank H. Easterbrook, Christoph Engel, Lee Epstein, Valerie Hans, Morgan Hazelton, William Hubbard, Tami Kricheli Katz, Bill Landes, Adi Leibovitch, Alexander Morell, Assaf Posner, Gerald Rosenberg, Issi Rosen-Zvi, Ayelet Sela, Alex Stremitzer, Vera Shikhelman, Raanan Sulitzeanu-Kenan, Doron Teichman, Eyal Zamir, and participants at the 39th Seminar on the New Institutional Economics (Judicial Decision-Making), June 2022, Stralsund, Germany. The research was supported by the Israel Science Foundation (grant no. 1404/17). Some of the data collection for this study was performed as part of the work of the Israeli Courts Research Division. It should be emphasized that the views presented in the article are those of the writers and do not necessarily reflect those of the Israeli legal system.

Publisher Copyright:
© 2023 Mohr Siebeck.


  • civil litigation
  • cost-shifting
  • judicial behavior
  • judicial bias


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