The records of PRO SE that deal with the costs of a lawsuit turn a question about how much into a question about who pays and when. They do not tell a reader what a lawsuit costs, what share of a lawyer's fee comes back, or how large a deposit or a security will be. They tell the reader that some money is paid or put up while the case runs, that the final burden is settled later, and that what settles it is the way the case ends or a ruling still to come. This study argues that this ordering is how the records stay on the side of general information, and that it has a consequence for the person they are written for: in the records' frame, the final burden of costs is settled only after the outcome that it might be weighed against.
The question and why costs
The research question is narrow. How does a public record written for people who go to court without a lawyer frame a decision about money: who pays, how much, when, and what would make the matter be looked at again? The question belongs to the series of studies this paper joins, which asks of every domain what must be decided now and what would change the decision.
A cost is, before anything else, an amount. If any record in this library should give a figure, a record that asks how much of the money spent on a lawsuit counts as costs should. And the decision that costs bear on is plainly a decision in the sense the series cares about: whether to bring a claim, whether to settle, whether to ask for help with the price of going on.
PRO SE publishes its library as a list of questions in four sections, each question marked synthetic, under the notice "General information, not legal advice". Each record gives a question, says what material is examined, sets out two readings, puts a further question where a judgment would stand, and names a condition for looking at the matter again. No record makes the decision for its reader, and this paper does not make it either. It reads the form.
Two literatures on the price of a lawsuit
The first literature is the economics of litigation costs. Its starting point is a decision. Steven Shavell, Suit, Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs (1982), asks whether a party who believes he has a legally admissible claim for money damages will bring suit and, if so, whether he will settle or go to trial. He analyses these questions under four methods of allocating legal costs: the American system, in which each side bears its own costs; the British or indemnity system, in which the losing side bears all costs; and two systems that favour one side, in which that side pays only its own costs if it loses and nothing otherwise. Lucian Arye Bebchuk, Litigation and Settlement under Imperfect Information (1984), studies a model in which the parties do not know the same things. He shows how an asymmetry of information can lead to a failure to settle, and he identifies how the likelihood and the amount of settlement are shaped by the size of the amount at stake, the magnitude of the parties' litigation costs and the nature of their information. He also uses the model to examine how legal rules, such as those governing the allocation of litigation costs, affect the likelihood of settlement. James W. Hughes and Edward A. Snyder, Litigation and Settlement under the English and American Rules: Theory and Evidence (1995), take the contrast between the two main rules to data. Under the English rule as they describe it, losers at trial pay the winner's legal fees up to a reasonable limit. Using records from a period in which Florida applied that rule to medical malpractice claims, they find higher plaintiff success rates at trial, higher average jury awards and higher out-of-court settlements, and they read this as a change in the quality of the claims that reached the point of choosing between settlement and trial.
Two works qualify this picture without leaving it. Russell Korobkin and Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach (1994), set psychological barriers beside the rational-actor paradigms as a third explanation of why disputants fail to settle. Their nine laboratory experiments isolate framing, equity seeking and reactive devaluation, and they find that considerations which do not maximise value can affect the choice between settling and going to trial. Robert H. Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce (1979), move the attention from the courtroom to the bargaining outside it. They see the primary function of divorce law not as imposing order from above but as providing a framework within which the parties can themselves determine their rights and responsibilities, and they note that most divorcing couples do not need adjudication at all.
This study reads these works as sharing a picture in which the cost of a lawsuit is an input to a choice: the allocation rule is a parameter, the magnitudes are quantities a party weighs, and information changes what the party does. It takes that picture as a description of what a person deciding about a lawsuit would need to know. It does not take the works to say what a person without a lawyer actually knows.
The second literature asks why the price of law is what it is and what access to justice requires. Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System (2000), begins with the question why lawyers cost so much. Among the imperfections she catalogues are complexity and uncertainty that make legal services credence goods, and the incremental nature of legal fees, which turns legal spending into a sunk-cost auction in which the cost of services can easily and rationally exceed the amount at stake. She concludes that the market puts individual clients with justice interests at stake into a bidding contest with corporate clients. Rebecca L. Sandefur, Access to What? (2019), rejects the description of the access-to-justice crisis as a crisis of unmet legal need. Justice, she argues, is about just resolution, not legal services, and resolving justice problems lawfully does not always require lawyers' assistance. Tanina Rostain, Techno-Optimism & Access to the Legal System (2019), warns that the hope of putting the law in the hands of disadvantaged people through online tools rests on unrealistic assumptions: people living in poverty rarely resort to the law, and when they do they meet educational and material impediments, literacy among them. She concludes that such tools need to be integrated with human assistance.
The two literatures meet at the person PRO SE writes for. This study reads the first as picturing a decider who knows the rule and can put numbers to the stake and the cost. It reads the second as concerned with people for whom the price of law is a barrier, and with help that does not always take the form of a lawyer. A library of written questions for people without a lawyer is one such kind of help. The question this paper puts to it is what it supplies of the inputs that the first literature treats as given.
The contribution
The paper makes three claims, each limited to the records read.
First, it describes a form. In the fourteen cost records, the question how much is asked without a sum: none contains a figure, a rate or a number word, and where a record asks how much, it answers with a test, a standard set elsewhere or the steps by which an amount is fixed. Across the whole library no English record contains a digit.
Second, it argues that the form replaces the amount with an order of payment. The records separate what is paid in advance, deferred or put up as security from the final burden, and they tie the final burden to the way the case ends or to a ruling still to come. The conditions for looking again turn, in most of the fourteen, on such a ruling, never on a date.
Third, it sets the form beside the two literatures. The records give the shape of a cost-allocation rule, as readings rather than as rules, and none of the magnitudes the economic models need. This study reads that as consistent with staying on the side of information, and it names where the gap falls: on the person who must weigh a cost that the record shows will be decided later.
PRO SE marks every record synthetic. Nothing here reports how any court has ruled on costs or should rule, and nothing here is advice to anyone deciding whether to sue, settle or apply for aid. The study reads how one public set of records frames the decision, and Chapter 1 sets out its data and method before reading the records closely.