Litigation Costs and Cost Shifting Practices [in Hebrew]
||Keren Weinshall-Margel and Ifat Taraboulos
||Recovery of litigation costs in Israeli civil cases is left entirely to judicial discretion. Such a fee regime can potentially serve to promote and to maintain a delicate balance between a range of rationales, such as indemnification, access to justice, litigant behavior and distributive justice.
This research examines the manner in which judges exercise their discretion and provides for a comprehensive empirical depiction of the de-facto fee regime in Israel,
while addressing cost-shifting rates, amounts, and their influencing factors.
Determination of these trends allows for an informed discussion regarding the actual role of the fee regime in Israeli civil litigation.
The research methodology is based on statistical analysis of a representative sample of 2,000 civil cases, combined with interviews of 23 judges and 122 attorneys specializing in civil litigation.
The findings show that costs are awarded in 66.4% of all cases adjudicated on the merits, mostly in favor of the prevailing party, in amounts that do not represent those actually expended by the litigant. However, cases adjudicated on the merits comprise of only 18% of all civil cases and most are resolved short of full-fledged adjudication,
by way of settlements, lack of prosecution, voluntary withdrawals and so forth.
Though the underlying rationales of fee regimes can be especially relevant in these cases,
we find that costs are allocated in only 30.5% of all civil cases.
In cases adjudicated on the merits, cost rates and amounts are found to be predicted primarily by the sums of the claim, the recovery and their difference, and by a few variables relating to case complexity and invested resources.
These findings indicate a partial realization of the indemnification rationale and a slight realization of the litigant behavior rationale. In all other cases, however,
we identify very few predicting factors on the judicial cost-shifting decision, such that the cost-shifting rationales are only vaguely and inconsistently reflected.
Findings show that the most consistently influential factor on the judicial cost-shifting decision is the request of costs by the prevailing litigant. An adversarial system of costs becomes apparent,
in which judges are bystanders and "approvers" rather than initiators, thus reducing the ability of the Israeli fee regime to promote cost-shifting rationales.
CEPEJ Report on European Judicial Systems – 2016 Edition (2014 data) – a brief overview [in Hebrew]
||Gali Aviv and Shanee Benkin
In October 2016, the European Commission for the Efficiency of Justice
(CEPEJ) published the sixth biennial report on European judicial systems (efficiency and quality of justice).
The report provides a detailed picture of the performance of the judicial systems, their budgets,
the situation as regards judges, prosecutors and lawyers, and the organisation of courts in the 45 participating member States and Israel,
as a non-member state of the Council of Europe with an observer status in CEPEJ.
The full report is available here; The data collected on Israel can be viewed here
For the first time, the commission carried out a thorough evaluation of the use of information technology (IT)
in the judicial systems of the Council of Europe’s member states and Israel as part of the CEPEJ’s 2014-2016 cycle. This report can be viewed here.
Small Claims Court [in Hebrew]
|| Gali Aviv and Inbal Galon
The goal of this research is to provide an accurate and broad picture of the functioning of small claims courts in the state of Israel;
while contributing to the social, legal and management discourse on the roles,
features and future perspectives of this court.
The methodological design used to achieve this goal was comprised of a quantitative analysis of a sample of 1,000 small claim cases
that were resolved between January 2014 and December 2014; a qualitative analysis of interviews conducted with 100 litigants in small
claims cases and 23 judicial officers presiding in small claims courts (judges, senior registrars and retired judges who sit in the courts occasionally);
and a comparative analysis of small claim courts worldwide.
The findings are reviewed in five chapters: data related to the filings of small claim cases, trial data, data regarding the closing of these cases,
and two thematic chapters: the complexity of cases and the satisfaction of small claims litigants with this procedure.
Some of the key findings are as follows: the phenomenon of frequent-filing litigants who submit repetitive pleadings (over five claims throughout the period of a year),
is negligible (0.05% of the plaintiffs who filed claims in 2014); nearly half of the defendants are companies (49.2%); nearly half of the claims (46.3%)
were filed under the case type "provider - client", i.e. consumer claims; the average sum of the claim was 11,019 NIS, which is about one third of the maximum sum claim set by the law
(33,800 NIS in 2014), a figure which has remained consistent over the years; in 55.6% of the cases, only one hearing was conducted; the average length of a small claims case is almost seven months
(208.86 days); almost half of all small claims cases were decided on by way of consent judgment (48.2% of the cases); appeals were filed to the District Courts in only 1.12% of all the small claims cases decided on in 2014;
in general, litigant satisfaction levels are high, with an average of 5.4, on a scale of 1-7. When examining the levels of satisfaction by outcome,
we found that in cases in which the outcome of the claim was a partial win due to a compromise, the satisfaction level was even lower than those who lost the case.
Finally, elements that still require improvement and optimization which arose from our findings or throughout our interviews with the judicial officers were discussed.
These elements include company representatives, who are "repeat players" in these cases, the high percentage of failures to appear at hearings,
the amount of hearings per shift, and general recommendations for reducing workloads in the small claims courts.
Evaluation of the Supreme Court President's Directive regarding Continuance of Hearings in the Israeli Court System [in Hebrew]
Gali Aviv and Inbal Galon
This research examines the Supreme Court President's directive on motions of continuance of hearings in the Israeli Courts System.
This directive is the direct result of a previous research conducted by the Israeli Courts Research Division,
regarding the scope of continuances of hearings as well as their characteristics, causes and effects on various aspects of the judiciary in Israel (published in 2013).
The study estimates the extent of the phenomenon of continuance motions following the directive, both prior to the hearing,
and at the time of the hearing itself; and examines the implementation of the main principles presented in the directive which were designed to optimize the requests and help prevent the protraction of court proceedings
In order to do, a sample of 1,000 continuance requests for each main proceeding in each instance was compiled at two separate periods:
around six months after the publication of the directive and about a year following its publication (a total of 16,000 continuance requests).
These figures were then compared to the data collected in the previous research, prior to the publication of the directive. Alongside the quantitative approach,
we conducted semi-structured interviews with judges and lawyers.
The results of the research indicate that the directive did not have the desired impact, and the possible reasons for that are discussed in the paper.
In light of the methodological difficulty to collect the data, one of the research’s recommendations was to computerize the process,
thus simplifying data extraction and analysis, enabling better monitoring of the process and increasing the operational effectiveness of the directive.
Evaluation of the Pilot Program for Evening Court Hearings in Israeli Magistrate Courts: Final Report [in Hebrew]
Gali Aviv and Inbal Galon
This study evaluates the efficiency of the pilot program for evening court hearings in the two-year period since commencement of the pilot in 2012. As part of the pilot, civil cases of up to 75,000 NIS are heard by senior registrars in afternoon hearings (between 16:00 and 22:00), in civil magistrate courts of the Jerusalem and Central districts. The program's purpose is to reduce the backlog of civil cases, whilst improving the service rendered to court users, shortening waiting periods and reducing case lengths.
This report is based largely upon the "Interim Report for the Evaluation of the Pilot Program for Evening Court Hearings in Israeli Magistrate Courts" prepared by Dr. Keren Weinshall-Margel and Inbal Galon [in Hebrew, October 2013].
An Empirical Study of the "Fast Track" Procedure in Israel [in Hebrew]
|| Gali Aviv and Ifat Taraboulos
The Fast Track Procedure in the Israeli civil courts is used for cases being tried in the magistrate courts with a financial value of less than 75,000 NIS. The Civil Procedure Regulations - 1984, stipulate various guidelines and procedures for the pretrial and trial phases aimed at reducing the duration of these cases and minimizing the time and resources invested in them.
This research empirically examines the Fast Track Procedure, with special emphasis on implementation of the timetables and the unique guidelines that accompany this Procedure.
Class Actions in Israel – an Empirical Perspective [in Hebrew]
Alon Klement, Keren Weinshall-Margel, Ifat Taraboulos and þýRoni Avissar-Sade
This research describes the implementation of the Israel Class Actions Law of 2006, over a six-year period since its enactment.
CEPEJ Report on European Judicial Systems – 2014 Edition (2012 data) – a brief overview [in Hebrew]
|| Gali Aviv and Ifat Taraboulos
In October 2014, the
European Commission for the Efficiency of Justice (CEPEJ)
published the fifth biennial report on European judicial systems (efficiency and quality of justice).
The 2014 edition is based on data from 2012.
For the first time, Israel has participated in the evaluation cycle as a non-member state of the Council of Europe with an observer
status in CEPEJ.
The full report is available here ;
The data collected on Israel can be viewed here .
Case Weights for the Assessment of Judicial Workloads in Israel [in Hebrew]
Keren Weinshall-Margel, Inbal Galon and Ifat Taraboulos
Judiciaries worldwide are coping with increasing workloads and limited resources,
and are thus searching for effective tools with which to allocate resources and proactively manage the courts.
A valuable such tool is an empirical "case weight" measurement, which assesses and compares judicial workloads based on the average
judicial time invested in different case types.
This paper describes the creation of a case weights measurement within the Israeli judiciary, with special emphasis on the methodologies used, which enabled the obtainment of a higher and more refined resolution of case weights than common in other judicial systems. This measurement assigns a weight to 101 case types in the magistrate, districts and labor courts, ranging from weight "1", assigned to a search and entry warrant case, to weight "1826", assigned to a severe criminal offense case heard by a panel of district court judges.
We modeled case weights based upon the interaction, in each case type, between the average frequency of all the events comprising the processing of a case in the courts, and the average complexity of these events. We describe the four individual research designs conducted in order to obtain data for average event frequency and average event time, including qualitative research for assessment of judicial time by groups of judges and quantitative analyses of computerized data and representative samples of cases. We demonstrate examples in which case weights can be utilized by the judicial system for effective allocation of resources, standardization of the judicial needs of the judiciary, identification of managerial challenges, and for planning and carrying out evidence-based reforms. We recommend building “normative case weights” which will reflect the optimal combination between efficiency and justice in the Israeli judiciary.
Continuances of Hearings in the Israeli Court System [in Hebrew]
Keren Weinshall-Margel and Ifat Taraboulos
The wide-spread practice of continuances in modern court systems is understood to be one of the primary causes of protracted court proceedings, thus decreasing the quality and the efficiency of justice.
This research presents descriptive information about the scope of continuances in the Israeli Court System,
as well as the characteristics, causes, and effects of these continuances on various aspects of the judiciary.
The research provides an empirical basis for policy decisions intended to diminish the scope of continuances,
and presents practical steps based on the findings.
Case Weights for the Assessment of Judicial Workloads in Israel (PowerPoint presentation)
Keren Weinshall-Margel, Inbal Galon and Ifat Taraboulos
Presented at the "Conference on Empirical and Experimental Legal Research",
under the auspices of "Mishpatim" Law Review (The Hebrew University, June 2013).
The full-text article is forthcoming in "Mishpatim" Law Review (2014).
Conviction and Acquittal Rates in Israel
Oren Gazal-Ayal, Keren Weinshall-Margel and Inbal Galon
The research presents descriptive information regarding verdicts and sentences in
criminal proceedings in Israel, with special emphasis on conviction and acquittal
The findings are based on a representative sample of 1417 criminal cases from magistrate
courts and 244 criminal cases from district courts (while acting as a court of first
instance) that were decided between May 2010 and May 2011. The sample included only
cases where indictment was issued.
Results show that ~40% of the defendants were convicted on all charges brought against
them and ~25% were convicted on some of the charges (or convicted on less serious
charges). For 5% of the defendants, the court exercised its discretion and declared
the defendant guilty but did not record the conviction. In magistrate courts, we
found that for 30% of the defendants, all of the charges were dismissed before trial.
The most common reasons for these dismissals were defendants that didn’t appear
for trial (11.3%) and withdrawal of charges by the prosecution (10%).
Only 6% of the defendants chose to plead not guilty and to proceed with a full trial.
Among the cases that went to trial, we analyzed each charge that was brought against
the defendants separately. In magistrate courts, less than 70% of the charges ended
with a guilty verdict (either to the original charge or to a lesser included one),
15% ended with an acquittal and 15% were dismissed. In district courts, 70% of the
charges ended with a guilty verdict, 26% ended with an acquittal and 4% were dismissed.
In magistrate courts, 76.5% of the defendants whose cases were not dismissed before
trial pleaded guilty as part of a plea bargain and about 17% of these defendants
plead guilty without a plea bargain. In district courts, 86% of the defendants whose
cases were not dismissed before trial plead guilty as part of a plea bargain and
only 6% plead guilty without a plea bargain.
Auto Damage and Subrogation Claims in Israel
Keren Weinshall-Margel and Sharon Hershenson
Auto damage claims are claims resulting from property damage to vehicles in road
accidents. Auto subrogation claims are a distinct category of auto damage claims.
These are subrogation claims between the plaintiffs' and the defendants' insurance
companies, following the reimbursement of the insured's damages by the insurer.
Our research goals were to gain understanding of: a) the scope and the characteristics
of different types of auto damage claims; b) whether there was an increase in the
number of auto damage and subrogation claims brought before the courts, and the
reasons for such an increase; and c) auto damage subrogation proceedings in other
The results are based on analysis of quantitative data from the Israeli cases routing
and online management software – “Net Hamishpat” and of qualitative data attained
from observations of courts proceedings and in-depth interviews, as well as comparative
The study results show that the number of auto damage claims constituted about a
quarter of small claims and at least 15% of all civil cases submitted to the magistrate
courts in Israel in 2010. Most of the auto damage claims submitted to magistrate
courts are submitted via a fast track procedure.
Auto damage claims are relatively less complicated and less time consuming than
other civil proceedings. The average damage amount claimed is 10,795 NIS (~2,840
USD), while for about half of the claims, the sum claimed is less than 6,252 NIS
(~1,620 USD). The number of hearings held in auto damage claims is comparatively
lower than those held in other civil proceedings, including fast track procedures.
The hearings usually involve deciding between varying witness statements in order
to resolve the factual disputes concerning liability.
The results show that in the past few years, there has been an increase in the number
of auto damage claims submitted to the magistrate courts by individuals (in proceedings
which include legal representation). These individuals either do not possess insurance
policies, or choose, for economic reasons, not to activate their policies. Lawyers
specializing in auto damages claim that it is in an individual's best interest to
pursue his damages in magistrate courts, and thus to avoid payment of policyholders'
participation fees and potential raises in premium fees. These lawyers assert that
this is especially the case in light of the relatively low litigation costs of auto
damage claims, costs that will most likely be recovered (in cost-shifting rulings).
We did not find a significant increase in the number of subrogation claims submitted
to the courts since 2002. Most of the insurance companies, who constitute about
84% of the auto insurance market in Israel, settle their subrogation claims via
the "Benoam" arbitration system.
Comparative research of auto subrogation claims shows that in the U.S, Canada, U.K.,
and in the EU, courts rarely hear auto subrogation claims. These disputes are usually
solved in voluntary arbitration mechanisms (such as in the U.S. and Canada) or in
various agreements between the insurers (for example, in the U.K., until the late
90s' such agreements were required by law). In Australia, the influence of "knock-for-knock"
agreements has greatly diminished, and most of the subrogation claims are presently
being heard in the courts.
Reliability of Data From the Israeli Cases
Routing and Online Management Software - “Net Hamishpat” [in Hebrew]
Keren Weinshall-Margel, Talia Yehuda and Aviv Shirtz
The purpose of the study was to evaluate the reliability of information in "Net
Hamishpat" regarding opening and closing details of cases, and to identify the factors
influencing the level of reliability.
The quality of the data is essential and has three major objectives: for the management
of a specific case (for the purpose of filing fees, case routing, etc.); for the
management of the system as a whole; and for the purpose of conducting in-depth
studies on the judiciary.
The study combines quantitative and qualitative research methods. The quantitative
part of the research is based on the creation and the analysis of a representative
sample of 6,544 court cases. The ICRD's research assistants read all the documents
of each case, and in accordance with these documents tested the reliability of the
data entered into "Net Hamishpat". Data inserted into the system under the most
appropriate option was marked as "reliable". The qualitative part of the research
was aimed at unfolding the factors influencing the reliability levels. This included
non-participant observations of the courts' secretariats and in-depth interviews
with court secretaries and functionaries in the courts' management.
In a preliminary stage of the research, we asked ourselves how a "case" is defined
and how cases are counted in the "Net Hamishpat" system. We found that the cases
in are counted in a consistent and reliable manner, such that more than 99% of the
cases reviewed involved at least one "main" legal procedure (as defined by law).
The study results distinguish between the reliability of "operational" data and
the reliability of "statistical" data. Operational data, such as the type of proceedings
or the sum claimed, is data that determines how each specific case is handled and
routed, its filing fees, and the "tasks" that open in "Net Hamishpat" relating to
that case. Our results show that the operational data is highly reliable, at a level
of over 95%.
The statistical data does not directly influence how a specific case is handled.
However, this data is important for depicting the "big picture" – the characteristics
of the cases, how they are handled, identification and analysis of trends, etc.
The reliability level of the statistical data was lower: data regarding "case type"
was found to be reliable for 64.5% of the cases, and data regarding the closing
reasons of the cases (for example, a settlement versus a reasoned verdict) was found
to be reliable for about 55% of the cases.
The levels of reliability vary according to the type of proceedings, the court where
the case was heard, and specifically, according to the closing date of the case.
The reliability levels rose explicitly as more time passed since the implementation
of "Net Hamishpat".
The research includes in-depth analysis of the various factors that influence the
reliability of the statistical data, among these, the characterization of categories
in the "Net Hamishpat" system, the absence of consistent rules for updating the
information, and the absence of supervision of how the data is updated. For example,
in court secretariats where observations were held, the reliability of the data
increased by more than 13% in the week following the observation.
Implementation of Recommendations for Improvement of the Statistical Data:
Following the findings of the Data Reliability Study, a working group was formed
for improving the reliability of the statistical data in "Net Hamishpat". The team,
whose members include representatives of court secretariats and members of the ICRD,
redefined the categories for closing reasons, and as of June 2012 this re-categorization
was in its final stages. In addition, future changes are planned to enable automatic
links between data, such that the need for manual updating by the secretariats will
decrease and the data reliability will rise. After implementation of these changes,
the secretariats' administration will distribute procedures for updating statistical
data. Finally, the Courts' Director is planning a number of steps for implementation
and for raising the awareness of the importance of statistical data reliability.
Overlooked Factors in the Analysis of Parole
Keren Weinshall-Margel and John Shapard
Published in Proceedings of
the National Academy of Sciences. Available at:
A Comparative Review of Cost Shifting Practices
in Civil Litigation - Towards an Empirical Study in Israel [in Hebrew]
Keren Weinshall-Margel and Ifat Taraboulos
In this comparative review, we describe two primary cost shifting regimes - the
“English rule” (the “loser pays” rule) and the “American Rule” (wherein each party
bears its own fees), and their underlying rationales.
The application of these rules widely varies between legal systems and in the legal
systems themselves, with regards to the types of costs that can be allocated, the
sums that can be recovered, the predictability of the cost-shifting rule applied,
and more. For example, in a “loser pays” regime, the difference between the actual
expenditures and the recoverable amount (the recoverability gap) can vary from recovery
of realistic amounts (close to what was actually expended, usually with regards
to attorney fees) to symbolic recovery of costs (such as recovery of filing fees).
This can influence the decision-making process of claimants and defendants in critical
points before and during the litigation process, such as whether to initiate a lawsuit
and whether to defend against a lawsuit; how much effort to expend in preparation
for a trial and what kind of lawyer to hire; and the choice between a full trial
and a settlement.
The Israeli rule is unique in that the recovery of litigation costs is left almost
entirely to the judges’ discretion. In a forthcoming empirical study of cost shifting
in Israeli civil litigation, we set to provide an empirical understanding of actual
cost shifting practices, across different courts and case types. We will also test
whether these practices influence the scope and the characteristics of civil proceedings
in Israel, and how.
A Comparative Evaluation of Case Loads in
Legal Systems [in Hebrew]
Keren Weinshall-Margel, Inbal Galon and Sharon Hershenson
A statistical portrait of the
handling of civil cases at the trial court levels in Israel, 55 other Western and
Middle Eastern countries and 51 U.S. state courts. The data compares, inter alia,
caseloads, attorneys and judges per capita.