The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases

Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with “one‐shotters” whose involvement in litigation is infrequent. A remaining question, however, is whether some haves fare better than other similarly situated haves. Specifically, this article posits that the litigation strategy used by the defendant may also play a role in litigation outcomes. Companies that tenaciously fight claims that, in the short term, would be cheaper to settle might discourage otherwise valid claims in the future from being filed out of fear that the litigation will be a protracted battle. This article examines Wal‐Mart Stores, Inc. (Wal‐Mart)—the largest revenue‐generating company in the United States—to explore whether it fares better than other resource‐rich defendants. Wal‐Mart in particular has a reputation against settling cases and thus is an excellent vehicle to investigate this hypothesis. Appellate cases in an eleven‐year period involving slip‐and‐fall litigation were compiled, and the results show that Wal‐Mart did win at a higher rate than other defendants. Although more research is needed to explore fully the effect of litigation strategy on win–loss rates, this sample of cases demonstrates that Wal‐Mart is a more effective and victorious litigant.