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Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals

Published online by Cambridge University Press:  02 April 2024

Susan Brodie Haire ,
Roger Hartley  and
Stefanie A. Lindquist
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Abstract

In the U.S. legal system, litigants frequently retain counsel to represent their interests in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decisionmaking, judges were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These findings suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal.

Type
Articles
Information
Law & Society Review , Volume 33 , Issue 3: Changing Employment Statuses in the Practice of Law , 1999 , pp. 667 - 685
Copyright
Copyright © 1999 by the Law and Society Association

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Footnotes

A preliminary version of this manuscript was presented at the annual meeting of the Midwest Political Science Association in Chicago in April 1997. Helpful comments on earlier drafts were offered by Craig Emmert, Kevin McGuire, and Susette Talarico. The authors gratefully acknowledge the research assistance provided by Kiki Caruson and Mark Degennaro.

References

Abel, Richard L. (1988) “United States: The Contradictions of Professionalism” in Abel, R. L. and Lewis, P. S. C., eds., Lawyers in Society: The Common Law World. Berkeley: Univ. of California Press.Google Scholar
Aldrich, John H., & Nelson, Forrest D. (1984) Linear Probability, Logit, and Probit Models. Newbury Park, CA: Sage Publications.CrossRefGoogle Scholar
Barclay, Scott (1997) “Posner's Economic Model and the Decision to Appeal,” 19 Justice System J. 77–99.CrossRefGoogle Scholar
Bright, Myron H. (1984) “Oral Argument? It May Be Crucial,” 70 American Bar Association J. 68–71.Google Scholar
Bright, Myron H. (1991) “Getting There: Do Philosophy and Oral Argument Influence Decisions?” 77 American Bar Association J. 68–72.Google Scholar
Clermont, Kevin M., & Eisenberg, Theodore (1998) “Do Case Outcomes Really Reveal Anything about the Legal System? Win Rate and Removal Jurisdiction,” 83 Cornell Law Rev. 581–607.Google Scholar
Coffin, Frank M. (1994) On Appeal: Courts, Lawyering, and Judging. New York: W.W. Norton.Google Scholar
Eisenberg, Theodore (1990) “Testing the Selection Effect: A New Theoretical Framework with Empirical Tests,” 19 J. of Legal Studies 337–58.CrossRefGoogle Scholar
Epstein, Lee, & Kobylka, Joseph F. (1992) The Supreme Court and Legal Change: Abortion and the Death Penalty. Chapel Hill: Univ. of North Carolina Press.Google Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
Gross, Samuel R., & Syverud, Kent D. (1996) “Don't Try: Civil Jury Verdicts in a System Geared to Settlement,” 44 UCLA Law Rev. 1–64.Google Scholar
Heinz, John P., & Laumann, Edward O. (1994) Chicago Lawyers: The Social Structure of the Bar. Chicago: Northwestern Univ. Press and American Bar Association.Google Scholar
Higginbotham, Patrick E. (1986) “Judicial Attitudes: Pylons for the Advocate,” 5 The Rev. of Litigation 181–98.Google Scholar
Horwitz, Morton J. (1977) The Transformation of American Law, 1780–1860. Cambridge: Harvard Univ. Press.Google Scholar
Knight, Jack, & Epstein, Lee (1996) “The Norm of Stare Decisis,” 40 American J. of Political Science 1018–35.CrossRefGoogle Scholar
Kritzer, Herbert M. (1998) Legal Advocacy. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Lindquist, Stefanie (1996) “Beyond Realism: Evaluating Modern Jurisprudential Theory in the U.S. Courts of Appeals.” Ph.D. diss., Dept. of Government and International Studies, Univ. of South Carolina.Google Scholar
McGuire, Kevin T. (1995) “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success,” 57 J. of Politics 187–96.CrossRefGoogle Scholar
Merritt, Gilbert S. (1990) “Judges on Judging: The Decision Making Process in Federal Courts of Appeals,” 51 Ohio State Law J. 1385–97.Google Scholar
Mnookin, R. H., & Kornhauser, L. (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale Law J. 950–97.CrossRefGoogle Scholar
Partridge, Anthony, & Bermant, Gordon (1978) The Quality of Advocacy in the Federal Courts. Washington, DC: Federal Judicial Center.Google Scholar
Priest, George L., & Klein, Benjamin (1984) “The Selection of Disputes for Litigation,” 13 J. of Legal Studies 1–55.CrossRefGoogle Scholar
Schavell, Steven (1996) “Any Frequency of Plaintiff Victory is Possible,” 26 J. of Legal Studies 493–502.CrossRefGoogle Scholar
Sheehan, Reginald S., Mishler, William, & Songer, Donald R. (1992) “Ideology, Status, and the Differential Status of Direct Parties before the Supreme Court,” 86 American Political Science Rev. 464–71.CrossRefGoogle Scholar
Songer, Donald R., & Haire, Susan (1992) “Integrating Alternative Approaches to the Study of Judicial Voting,” 36 American J. of Political Science 963–82.CrossRefGoogle Scholar
Songer, Donald R., & Sheehan, Reginald S. (1992) “Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals,” 36 American J. of Political Science 235–58.CrossRefGoogle Scholar
Tate, C. N., & Handberg, Roger (1991) “Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior,” 35 American J. of Political Science 460–80.CrossRefGoogle Scholar
Viscusi, W. Kip (1991) Reforming Products Liability. Cambridge: Harvard Univ. Press.Google Scholar
Wheeler, Stanton, Cartwright, Bliss, Kagan, Robert A., & Friedman, Lawrence M. (1987) “Do the ‘Haves’ Come Out Ahead? Winning and Losing in State Supreme Courts, 1870–1970,” 21 Law & Society Rev. 403–45.CrossRefGoogle Scholar