"Scott Baker (2017) has provided a thought-provoking contribution to this symposium volume, helping us to better understand the strategic game of litigation. In terms of both resources and actual disputes resolved, pretrial practice is vastly more important than actual trials. Trials are a rarity in the American civil justice system, as the overwhelming majority of disputes are resolved via settlement. Indeed, rational-choice scholars have struggled to explain why all disputes are not resolved via settlement, as settlement avoids the expense of a trial, which is a dead-weight loss to both sides of the dispute. The parties’ mutual incentive toward settlement is only reinforced by the influence of judges, who – faced with overburdened dockets – also strongly favor settlement. Consequently, understanding the dynamics of the pretrial process and how it affects settlement is critical to understanding how disputes are actually resolved."
Pritchard, Adam C. "Toward a Theory of Motion Practice and Settlement: Comment." J. Inst. & Theoretical Econ. 17, no. 1 (2017): 168-73.