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Lawyers, Power, and Strategic Expertise

Courtroom

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath . . . . Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper — rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It’s not just their ease with the language and the process that sets them apart. They dominate the space.”

This empirical study analyzes the experience of the parties described above, specifically the power, representation, and strategic expertise they bring to a dispute. Our analysis of these factors clarifies how representation may be a solution to the access to justice crisis. We find that a representative helps most parties most of the time. We also find that the other party’s representation and the representative’s strategic expertise are significant factors for understanding representation for civil litigants.

This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of data about representation in recent years. The analysis shows wide disparity in representation, with employers (the more powerful party to a dispute or the quintessential “haves”) represented twice as often as claimants (the less powerful party or the “have nots”), as well as a notable difference in parties’ use of procedures in hearings. Using difference-in-proportions tests, this Article examines the interaction of party power and representation and finds that represented parties have better case outcomes than unrepresented parties, though employers see less benefit from legal representation than claimants. In addition, the Article confirms the intuitive result that represented parties are more likely to use procedures than unrepresented parties. Yet, surprisingly, the Article finds that represented claimants who use certain evidentiary procedures have worse case outcomes than represented claimants who do not use those same procedures.

We recommend that any policy solution to the country’s civil litigation crisis, whether it is a right to civil counsel, unbundled legal services, lay advocacy, or pro se court reform, must account for these factors. To achieve this goal, we call for a deeper understanding of representation in context.

Download the Paper at SSRN

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