Attorney Expertise, Litigant Success, and Judicial Decisionmaking in - - PowerPoint PPT Presentation

2010/12/22 1

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

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Stratification and litigation success

• There is stratification within the private legal

profession: elite lawyer and ordinary lawyer

• Stratification ‐> quality of representation

‐> likelihood of success in litigation

Elite lawyer Ordinary Lawyer Firm size Large Small or solo Clients Corporation or wealthy individual One‐shot individual

• Avg. income

Higher Lower

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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
• Expertise of counsels representing plaintiffs vary more widely

Plaintiff Defendant One‐shot Repeat Less resource to shop for expert Retain attorney on contingent fee basis

• In‐house counsel
• Financial resource (additional expert)

High stake but less ability to select firm or attorney best suited High stake (financial or reputational)

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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

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Party capability theory and the quality

• f representation
• Litigant types and litigation success
• Selection effects, litigation success, and

attorney expertise

• Attorney expertise and Judicial behavior

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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

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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)

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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

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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

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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

• utcome)(Kritzer 1998)

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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)

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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
• utcome(McGuire 1995; Kritzer 1998)

– more experienced expert litigators prevailed more when opposed by those with fewer previous appearance before Court

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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

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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)

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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

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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

• f law or familiarity with the judge and their

court) – Anticipate judge’s votes will be associated with the expertise of attorneys

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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

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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

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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

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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

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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

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Results_Expertise of counsel representing plaintiff versus defendants

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

v

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v v v

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Result_Litigant success rate and expertise

• f counsel

v v v v v

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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

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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

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Control for attitude selected for by appointing president

• Appeals court judges are classified according

to the ideology and strategy of the appointing president(Tate and Handberg 1991)

– Conservative (‐1), not ideology conscious (0), liberal (1)

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Legal norms and principles of case law

• Lead appeal court judges to accord a high

level of deference to the decision of trial court judge

• A variable measure the directionality fo the

lower court decision

– Coded 1 if lower court ruled in favor of the plaintiff, 0 in favor of the defendant

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Case characteristic associated with important claims, defenses and factual elements in product liability lawsuit

• Application of strict liability standard

– Coded 1, if opinion indicated that the claim brought under this theory

• Fact patterns

– Coded 1, if the defect existed when the product left the manufacturer’s control – Coded 1, if defendant argue that plaintiffs contribute to their injury through the unreasonable use of product

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v v v

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Discussion

• Results generally support expectation

– Defendant hire more experienced attorney – Plaintiff were represented by counsel whose practices were less likely to be concentrated in specialty with product liability

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Discussion

• Individual “matchup” between counsel

representing plaintiff and defendant do not affect litigant success

– When opposed by more expert attorney, parties fared the same – Threshold effect exists because the lack of expertise by counsel may disadvantage the client

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Discussion

• Relationship between expertise and judicial

voting is dichotomous(expertise, no expertise)

• Influence of attorney expertise affecting

judicial decisionmaking depends on litigant type

– Plaintiff lost more often with counsel lack of process expertise, defendant lost more often with counsel lack of substantive expertise

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Discussion

• Existence of some linkages between counsel

expertise and decisionmaking in civil cases before the federal appeal courts

• Limitation of generalizing based on single issue

area

– But may allow influence on judicial behavior to emerge

• The model provides an initial look at the

influence of attorney expertise that may emerge in other issue area