Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals Susan Brodie Haire, Stefanie A. Lindquist, and Roger Hartley 報告人：葉晉愷 2010/12/22 1
Stratification and litigation success • There is stratification within the private legal profession: elite lawyer and ordinary lawyer Elite lawyer Ordinary Lawyer Firm size Large Small or solo Clients Corporation or wealthy individual One ‐ shot individual Avg. income Higher Lower • Stratification ‐ > quality of representation ‐ > likelihood of success in litigation 2
Why focuses on product liability in the U.S. Courts of appeal • Sufficient number of cases (comparable fact patterns and issue) • Appropriate context for analyzing difference of expertise Plaintiff Defendant One ‐ shot Repeat Less resource to shop for expert • In ‐ house counsel Retain attorney on contingent fee • Financial resource (additional expert) basis High stake but less ability to select High stake (financial or reputational) firm or attorney best suited • Expertise of counsels representing plaintiffs vary more widely 3
Counsel expertise and litigation success • Few studies explore the notion that litigation success in appellate court related to parties’ ability to retain expert counsel • Parties with more experienced counsels were likely to prevail(McGuire 1995) – repeat attorney win more because of enhanced credibility – Litigant success tied to attorney’s knowledge of the court and the appellate process(measured by experience level before the court ) • Legal expertise has substantive dimension(Kritzer 1998) – Attorney also masters substantive element of client’s legal claim or defenses Impacts of process and substantive expertise are evaluated • 4
Party capability theory and the quality of representation • Litigant types and litigation success • Selection effects, litigation success, and attorney expertise • Attorney expertise and Judicial behavior 5
Litigant types and litigation success • “Haves” (gov. and corp.) more likely to prevail – Resource, ability to settle unfavorable cases, institutional farsightedness, repeat player status – Hierarchy of party type in U.S. Courts of Appeals (gov., big corp., other corp, other individual, and underdog) (Songer and Sheehan 1992) – Large governmental party fared best, followed by large corporation in state supreme courts( Wheeler et al. 1987) Impact of party strength can be viewed in relationship to • resource and “repeat player” status before the court 6
Selection effects, litigation success, and attorney expertise(1/3) • Success of repeat players is their ability to choose to litigate winning and settle those with less favorable fact pattern. – Most disputes settle because attorneys familiar with patterns of jury awards in different localities(Mnookin 1979) and able to predict likelihood of success at trial – Those litigate take relevant factors into account and thus plaintiff win rate should tend to 50% (Priest and Klein 1984) 7
Selection effects, litigation success, and attorney expertise(2/3) • Some categories of litigant prevail in number of substantive areas(consistent with capability theory) – More experienced attorney seeks settlement when probability of success is low due to legal standard and contextual variable – Less experienced attorney still choose to litigate when probability of success is low because the ability to predict success is less well developed and less accurate 8
Selection effects, litigation success, and attorney expertise(3/3) • Link between quality of counsel and success rate of certain litigant has been tested(Wheeler et al. 1987) – Stronger parties tended to retain attorneys affiliated with firm and clients fared better 9
Attorney expertise and Judicial behavior • More expert attorneys may be able to influence judges’ decisionmaking process • Two dimension of expertise: substantive and process(influence on judges’ vote and case outcome)(Kritzer 1998) 10
Attorney expertise and Judicial behavior • Substantive expertise: knowledge of legal principle in particular of law – Some attorneys craft persuasive legal arguments that influence judges and justice – Attorney specializes in certain areas is expected more skillful in framing issues and fact patterns in accordance with relevant precedent – Anecdotal evidence and testimonials from judges suggest that quality of legal briefs and oral argument do matter (Coffin 1994) 11
Attorney expertise and Judicial behavior • Process expertise: understand the institutional characteristics of courts and ideological or predilections of individual judge • Process expertise affects case processing and outcome(McGuire 1995; Kritzer 1998) – more experienced expert litigators prevailed more when opposed by those with fewer previous appearance before Court 12
Attorney expertise and Judicial behavior • No clear relationship between characteristic of counsel and judicial decisionmaking in lower appellate courts • Specific attorney characteristics were found not a good predictor of quality advocacy according to evaluations of sitting judges of the U.S. Courts of Appeals(Partridge & Bermant) • Absence of counsel was significant factor in determining judges’ votes(Lindquist 1996) – Judges more likely to vote against pro se litigant 13
Hypotheses: litigants, representation, and decisonmaking 1. Stratification within the legal profession suggests that corporate defendants hire lawyer with substantive and process expertise – Compare expertise of attorneys retained by plaintiff and defendant(experience and specialization in substantive area relevant to product liability) 14
Hypotheses: litigants, representation, and decisonmaking 2. Litigants with enhanced resources and litigants represented by attorneys with repeat experience are more likely to prevail Research on selection effects suggest that more – expert counsel evaluate cases more accurately Cases outcomes vary depending on the – substantive and process expertise of attorneys 15
Hypotheses: litigants, representation, and decisonmaking 3. Judicial decisionmaking may be affected by an advocate’s ability to persuade judges to endorse a particular legal approach or argument Correspond to attorney’s substantive knowledge – of law or familiarity with the judge and their court) Anticipate judge’s votes will be associated with – the expertise of attorneys 16
Research design • Data: published decisions of the U.S. Courts of Appeals • Decisions: identified through a Westlaw search for product liability cases decided from 1982 to 1993 • Exclude cases: raised solely procedural issues unrelated to products liability, indemnity claims, that did not identify counsel or cases could not be unambiguously characterized as either in favor of the plaintiff or defendants • 285 cases remained 17
Research design_Parties • Products liability case: individual plaintiffs versus business defendants. • Assessment regarding the relative merits of an appeal may vary by litigant type, requiring authors to control for appellant – Identify whether plaintiffs, defendants or both file the appeal 18
Research design_attorney process expertise • Published decisions typically include names of counsel in the appeal • Record the names of all attorneys and conduct a Westlaw search to determine the number of times that attorney had appeared before the same circuit court • Result in experience level for 1375 attorneys • Use the measure of litigation experience for the most experienced counsel for each side • First time appearance, coded 1 19
Research design_attorney substantive expertise • Focus on specialization • Identify lead attorney for the plaintiff or defendant • Area of specialization: Martindale ‐ Hubbell Law Directory • Identify whether the attorney listed products liability, mass torts or appeals as an area of specialty 20
Research design_Attorney substantive expertise • Record the number total number of specialty fields listed • Ratio measure of specialization: – Numerator ranges from one to three (products liability, mass tort or appellate litigation) – Denominator is the total number of fields listed • Code 0, if attorney did not list any field or did not include in the Directory for any of the years during analysis period 21
Results_Expertise of counsel representing plaintiff versus defendants v v v v In the U.S. Courts of Appeals, first timers represented 35.1% of plaintiff and 20% of the defendants in the case analyzed 22
v v v 23
Result_Litigant success rate and expertise of counsel v v v v v 24
Expertise of counsel and judicial Voting • Dependant variable : judge’s vote, coded 1 if support plaintiff; 0 if support defendant • Exclude votes that could not be unambiguously classified, 841 votes remained 25
Measure expertise dichotomously • Counsel representing plaintiff ‐ defendant did not have any prior experience before circuit, “no process expertise” for plaintiff ‐ defendant coded 1 • Counsel representing plaintiff ‐ defendant have no relevant substantive specialization, “no substantive expertise” for plaintiff ‐ defendant coded 1 26
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