Harnessing Adversarial Process: Proof Burdens, Affirmative Defenses, and Optimal Complementarities in Litigation
This paper studies counter response in litigation spending. The game theoretic structure of adversarial process generally dictates that one party strategically complements - advancing in response to her opponent's advance, retreating in response to his retreat - while the other strategically substitutes - advancing on her retreating opponent, retreating from his advance. Which party plays which role depends on how litigation is structured. The question therefore arises: should litigation be designed to induce the plaintiff to complement and the defendant to substitute, or vice versa? The paper argues that the answer depends on whether and whose primary activity incentives are being set by the particular evidentiary contest in question. Specifically, litigation should generally be structured so that the incentive target complements while her adversary substitutes. In some cases the defendant will be the incentive target. In other cases, the plaintiff. This principle is applied to allocating the burden of proof. Burdening a party makes her the substituter and her opponent the complementer. Accordingly, the burden of proving the target's primary activity behavior should lie with the target's adversary. This helps to justify a regularity in the law's assignment of proof burdens - one largely incomprehensible under conventional analyses.