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The Justice Broker: Lawyers and Ordinary Litigation

Overview

In law, as elsewhere, the ordinary is overshadowed in the popular and academic literature by the dramatic and sensational. While the role and behavior of lawyers in the operation of our criminal justice system has been closely scrutinized, comparatively little research has been devoted to the manner in which lawyers litigate the day-to-day civil (non-criminal) cases that comprise the vast bulk of the workload in state and federal courts. Originally commissioned by the U.S. Department of Justice, this is the first...

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The Justice Broker: Lawyers and Ordinary Litigation

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Overview

In law, as elsewhere, the ordinary is overshadowed in the popular and academic literature by the dramatic and sensational. While the role and behavior of lawyers in the operation of our criminal justice system has been closely scrutinized, comparatively little research has been devoted to the manner in which lawyers litigate the day-to-day civil (non-criminal) cases that comprise the vast bulk of the workload in state and federal courts. Originally commissioned by the U.S. Department of Justice, this is the first comprehensive national study of the U.S. civil justice system. Kritzer analyzes 1600 cases involving 1400 attorneys in five federal judicial districts. Examining the background, experiences, day-to-day activities, and outlook of civil lawyers, Kritzer finds that the work of lawyers combines the roles of the professional and the broker in many aeas of ordinary litigation. Arguing that lawyers' behavior must be understood in part as a form of brokerage between the client and the legal system, he suggests that the roles of professionals and brokers be considered as complements rather than alternatives in the justice system, and concludes by recommending that lawyers' monopoly on advocacy in civil litigation be restricted. An engaging, lucidly written study, The Justice Broker will be of special interest to practicing lawyers and legal scholars.

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Editorial Reviews

From the Publisher
"A model of competent social-scientific inquiry into a complex social phenomenon. It is dispassionate, thorough, analytically rigourous, and judicious in generalizing and drawing conclusions from the data. Although Kritzer is methodologically self-conscious, he lets the data call the tune and refrains from manipulating his findings to vindicate a preordained theoretical agenda. In reading The Justice Broker, one senses (and shares) the author's satisfaction in achieving a more complete understanding of the complicated lives of ordinary civil litigators."—American Political Science Review

"Excellent."—Annals of the American Academy of Political and Social Sciences

"An excellent study of the day-to-day work of lawyers in civil litigation....Highly recommended for public, college, university, and law libraries."—Choice

"A fascinating study....an intelligent, succinct, and thought-provoking analysis....Kritzer has admirably performed a major service for the public law field by his innovative and incisive presentation."—Focus on Law Studies

"An interesting and provocative examination of the practice of law....A particularly valuable research volume....The Justice Broker should be read by scholars studying the role of lawyers in the judicial system as well as by lawyers who are in the business of practicing law."—Perspectives on Political Science

Mark Kessler
In THE JUSTICE BROKER, Herbert Kritzer uses data collected by the Civil Litigation Research Project (CLRP) to explore the role of attorneys participating in "ordinary" civil cases (cases involving $25,000 or less). Kritzer argues that a sophisticated understanding of civil lawyers' work requires transcending a conception of lawyers as professionals, selfless servants who act autonomously, employing specialized knowledge and skills gained through rigorous training to resolve disputes. This conception must be supplemented by viewing civil lawyers as brokers, self- interested intermediaries who resolve disputes using informal, "insider" knowledge gained through participation in relationships with other parties in litigation. According to Kritzer, a "dual framework" that includes both professional and broker roles is most fruitful in capturing the complexity of lawyers' behavior and illustrates the tensions and contradictions characterizing the lawyer's daily work. This thin volume (176 pages of text, including over 50 tables and figures) is largely, though not exclusively, a compilation and synthesis of several previously published research papers relying on CLRP data by Kritzer and his associates. These data were gathered through telephone interviews with 1382 lawyers in five judicial districts who had been involved in a sample of 1649 state and federal civil cases terminated in 1978. Kritzer examines these data in order to identify aspects of lawyers' work that correspond to the alternative role conceptions. The book begins by describing four dimensions that distinguish professionals from brokers: the nature of attorney expertise (technical/formal for professionals versus insider/informal for brokers), the role of the fee-paying relationship (not important to professionals, very significant to brokers), the degree of client control (low for professionals, high for brokers), and the lawyers's position in relation to other actors (professionals with autonomy versus brokers embedded in a web of relationships.) The chapters that follow describe the data employed, types of cases handled by attorneys in the sample (area of law, stakes, parties), characteristics of attorneys (legal background, experience, practice setting, attitudes toward work), relations between lawyers and clients (how clients find lawyers, why lawyers accept cases, how fee arrangements are decided upon and discussed, control of litigation), relations between lawyers and other parties (opposing counsel, opposing party, judge), the work done by lawyers (use of "formal" and "informal" legal skills, amount of time devoted to cases, types of actions taken), relationship between fee arrangements and the time and effort allocated to cases, and case outcomes. Kritzer's analysis indicates that the daily work of civil lawyers "is a blend of the professional and broker images with...a heavy tendency toward the broker image" (p. 167). Although lawyers possess specialized Page 27 follows: knowledge gained in law school, they rarely use it in the processing of civil cases. Briefs are filed infrequently, lawyers make heavy use of standardized legal forms, and the level of lawyer activity in typical cases is relatively modest. Kritzer uses these findings to argue in a concluding chapter for the use of para- professionals in the handling of many types of ordinary civil disputes. His argument is bolstered by CLRP data suggesting that, in the median case, lawyers allocate only 30 hours of their time. In state court cases, which constitute the vast majority of civil cases, lawyers allocate less than 20 hours to the "typical" case. Consistent with the professional role conception, lawyers act with considerable autonomy from their clients. But lawyers are quite interested in receiving fees for their services, are embedded in relationships with opposing counsel, parties, and judges, and the fee-paying arrangement (contingent versus hourly) structures the process by which lawyers allocate time to cases. Throughout the book, Kritzer's analysis is thorough, careful, and nicely qualified. His considerable methodological skills are apparent, particularly in chapters that examine the effects of fee- arrangement and case outcomes. Moreover, findings are placed intelligently in the context of previous work on lawyers and the legal profession. Kritzer appears to extract the maximum amount of information on lawyers' behavior and activity from the CLRP data. However, limitations in the data, many of which Kritzer discusses candidly, confine what can be learned about civil lawyers and, in some cases, raise questions about the author's interpretations and conclusions. CLRP's primary purpose was to examine various stages in the civil dispute resolution process. Consequently, CLRP employed the "case" rather than the "lawyer" as the unit of analysis (Kritzer, 1980- 81). Although CLRP collected an impressive amount of information regarding attorneys in cases, these data appear to have been sought to further illuminate processes of dispute resolution, rather than to determine the precise role that attorneys play in these processes. This may explain why many of the connections that Kritzer seeks to draw between CLRP data and lawyers' role conceptions are loose and, at times, forced. Lawyers backgrounds (law school attended, experience) and practice settings, for example, are not clearly related to Kritzer's operational definitions of alternative roles. In a similar way, it is difficult to understand how lawyers' responses to a question regarding the relative importance to them of such things as intellectual challenge, winning, making a decent living, helping individual people with problems, and gaining the respect of family and friends, sheds light on their role (p. 47). Indeed, conceptual problems in the professional/broker distinction itself render it difficult to interpret these responses. Professionals may enjoy "making a decent living," although this is not their primary motivation in practicing law. They also may enjoy "helping individual people with problems," although they do so by making decisions on their own and through the use of specialized knowledge. Brokers, on the other hand, may enjoy the "intellectual challenge" of informally resolving disputes, rather than the challenge of engaging in legal research, writing briefs, and persuading judges and juries. Kritzer shows that most lawyers believe that a reputation for "thoroughness" characterizes the successful litigator. But in response to another question, most lawyers did not seem to enjoy the "planning and research" required for thorough preparation. Although Kritzer never suggests that professionals must enjoy all aspects of their work, he concludes that the contradiction in responses between viewing thoroughness as a desirable quality in Page 28 follows: a litigator and not enjoying planning and research "may be a hint that the daily work of litigation is less the work of the abstractly trained and oriented professional and more the world of the streetwise and experienced insider, the broker" (p. 51). CLRP data are weakest in exploring relationships between lawyers and their "workgroups," crucial relationships for distinguishing between professional and brokers. Although recognizing some of the data's limitations, Kritzer suggests that civil lawyers are "deeply embedded in a web of relationships that influence services provided to the litigant-client" (p. 76). He constructs this "web" from lawyers' responses to a handful of questions regarding previous relations with opposing counsel, opposing parties, and judges. The questions are so general (e.g., before you took this case, did you know the lawyer for the opposing side on a personal basis, outside of business?) that they provide no detail on the direction (e.g., "I know her well and dislike her" or "We ski together on holidays"), intensity, value, or impact of these relations. CLRP's focus on cases leads Kritzer to look for explanations of lawyers' activity exclusively in elements of the cases and parties to the cases. While these factors are significant, the explanatory frameworks can not incorporate findings from research appearing since the design of CLRP that examine relationships between local culture and civil dispute processes. Engel's (1984) study of "Sander County" and Greenhouse's (1986) examination of an Atlanta suburb, for example, suggest that widely shared local norms play a large role in shaping the civil dispute process and may help explain variations within and across jurisdictions in lawyer and litigant behavior. Although the CLRP collected data from five different jurisdictions, Kritzer does not compare lawyer activity among them, choosing instead to aggregate lawyers' responses. This choice creates the impression that civil lawyers behave in similar ways, regardless of their geographical location (in one of the few comparisons across jurisdictions, Kritzer notes that past referrals from opposing counsel are more frequent in the less urban districts (p. 70)). The exclusive reliance on structured survey questions in this study also limits what can be learned. In many areas, more detail is needed -- the type of detail that one only acquires through observation or in-depth interviews -- to interpret and make sense of survey responses. Kritzer, for example, draws conclusions about client control and lawyer autonomy from a survey question asking lawyers and litigants to characterize their relationship by selecting among several possible responses. Lawyers were asked if clients (1) provided instructions followed by the lawyer, (2) approved decisions made by the lawyer, (3) discussed issues with lawyers, who then made decisions based on these discussions, or (4) turned the case completely over to lawyers (p. 61). The responses to such structured questions may mask important lawyer-client dynamics. For example, the "broker" who follows client instructions may frame questions to achieve desired "instructions": "My twenty years of legal experience tell me that going to trial is very risky. I've seen some real disasters! But, of course, you make the decisions here. What will it be?" And clients who believe they control the lawyer's decisions may ask for advice (and follow it) every step of the way. Page 29 follows: The absence of in-depth interviews and observations also raises questions about Kritzer's argument that "the professional/broker distinction actually captured the conflicts that confront lawyers in their day-to-day work...Lawyers work in a world that involves large elements of schizophrenia, regarding both the expectations of lay clients and observers and the economic realities that impinge on the routine work most nonelite lawyers perform most of the time" (p. 166). Without discussing these "conflicts," "tensions," or "contradictions" with lawyers to assess whether they experience them as such, no reliable conclusions may be drawn regarding their significance. Indeed, I am not persuaded that any of the following situations described by Kritzer as "conflicts" are experienced in this way by attorneys: lawyers are concerned about fee arrangements (broker), but possess substantial autonomy in carrying out their work (professional); lawyers are well trained and possess considerable technical expertise (professional), but rarely go to trial or file briefs (broker); lawyers believe that thorough preparation characterizes the successful litigator (professional), but dislike doing the work that thoroughness implies (broker). It is unclear, then, whether the "tension" or "conflict" discussed by Kritzer constitutes an important element of the civil lawyer's consciousness or merely has been imposed by the author as a result of his conceptual framework. Like much of the published work employing CLRP data, the clear strength of THE JUSTICE BROKER is its description of civil justice processes and the work that civil lawyers do in ordinary litigation. Despite the limitations of CLRP data for addressing the roles of civil lawyers, and although one may object to or quibble with operational definitions and measures relating to the conception of alternative roles, Kritzer makes a credible case that civil attorneys involved in routine cases behave very much like the solo practitioner, private criminal defense lawyer, and legal services attorney described in previous research. Data presented on such things as the amount of time lawyers spend on cases, the infrequent use of legal research in the writing of briefs and preparation for formal legal proceedings, and the impact of fee- arrangement on lawyers' activity, constitute significant empirical findings that may stimulate more theoretically -guided research in the future. REFERENCES Engel, David M. 1984. "The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community," LAW & SOCIETY REVIEW. 18:551-582. Greenhouse, Carol J. 1986. PRAYING FOR JUSTICE: FAITH, ORDER, AND COMMUNITY IN AN AMERICAN TOWN. Ithaca, NY: Cornell University Press. Kritzer, Herbert M. 1980-81. "Studying Disputes: Learning from the CLRP Experience." LAW & SOCIETY REVIEW. 15:503-524.
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Product Details

  • ISBN-13: 9780195061420
  • Publisher: Oxford University Press, USA
  • Publication date: 3/28/1999
  • Pages: 248
  • Product dimensions: 6.38 (w) x 9.50 (h) x 1.00 (d)

Meet the Author

University of Wisconsin, Madison
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Table of Contents

Part I Introduction
1. Brokers and Professionals: The Roles of Lawyers in Ordinary Litigation 3
The Professionalism Perspective 5
The Brokerage Perspective 12
Summary 19
2. The Data 20
The Civil Litigation Research Project 20
Data Sources 20
Part II Cases and Lawyers
3. The World of Ordinary Litigation 27
What Are the Cases About? 27
What's at Stake in the Ordinary Case? 28
Who Goes to Court? 34
Summary: The Ordinary Case 36
Appendix 3A Area of Law Codes and Groups 38
4. Lawyers Who Litigate 40
Background 40
Nature and Style of Practice 43
Attitudes Toward Legal Practice 46
The Ordinary Litigator: A Sketch 49
Brokers and Professionals 50
Part III Lawyers and Their Relationships
5. Lawyers and Their Clients 55
Finding Lawyers and Taking Cases 56
Establishing the Business Relationship 57
Allocating Control and Responsibility 60
Discussion: Lawyers and Clients 66
6. Lawyers and Their "Workgroup" 68
The Opposing Counsel 69
The Opposing Party 71
The Judge 72
Discussion: The Lawyer's Working Relationships 76
Part IV Litigating Ordinary Cases
7. The Work of the Litigator in Ordinary Cases 79
The Activities in Court in Ordinary Litigation 80
How Much Time Do Lawyers Devote to Ordinary Cases? 85
What Do Lawyers Do in Civil Cases? 90
Discussion 104
Appendix 7A Level of Court Activity by Stakes for Individual Event Types 106
8. The Impact of Relationships on the Lawyer's Work in Ordinary Civil Litigation 108
The Amount of Lawyer Effort 108
Relationships and the Content of the Lawyer's Work in Ordinary Litigation 121
Discussion 126
Appendix 8A Description of Variables 127
Appendix 8B Regression Results for Hourly and Contingent Fee Lawyers 133
9. Winning and Losing in Litigation: Does the Lawyer Deliver? 135
Outcomes 136
Success from the Lawyer's Point of View 137
Success from the Defendant's Perspective 143
Success from the Plaintiff's Perspective 146
Discussion 155
Appendix 9A Multivariate Analyses 158
Part V Conclusions
10. Lawyers and Litigation: Images and Implications 165
Professionals and Brokers 166
The Role of Lawyers in Litigation: The Implications for Change 168
Notes 177
References 211
Index 227
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