How well do lawyers represent their clients? It's a hard question to answer. One approach would be to ask the judges who observe the lawyers at work, and that's just what Judge Richard A. Posner and Professor Albert H. Yoon have done: What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317 (2010).
Here's the short version of their findings, from the abstract:
We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.
But don't stop with the abstract! The more detailed findings are very interesting.
Judges' backgrounds.I was surprised to see the number of judges with experience in criminal defense, since I heard or read somewhere that prosecutors more often became judges. But the patterns vary between trial and appellate courts and between federal and state courts.
| exp | fed app | fed trial | state app | state trial |
|---|
| crim defense | 19% | 36% | 29% | 40% |
| prosecution | 9% | 14% | 29% | 44% |
p. 323.
Disparities in civil cases.The civil areas where federal trial judges saw the greatest disparity were civil rights and personal injury/malpractice. When there was a disparity, the defendant had better representation. State judges saw the greatest disparities in family law and personal injury/malpractice. Again, when there was a disparity in the tort cases, it was generally the defense that had the advantage.
Judges said that intellectual property and commercial litigation cases seldom had a great disparity between the sides' lawyers. These lawyers were rated between "good" and "excellent" -- i.e., at the top of the scale.
What about criminal cases?Federal judges exhibited a clear divide, ranking public defenders highest, followed closely by prosecutors. Both federal appellate and district judges deemed court-appointed and privately retained counsel markedly (and statistically significantly) worse, although they disagreed which group was the worst. In contrast, state judges perceived greater parity among criminal lawyers, with both appellate and trial judges giving their highest ratings to retained counsel. Appellate judges generally gave similarly high scores to prosecutors and public defenders, whereas trial judges thought privately retained counsel distinctly better than other criminal lawyers.
pp. 325-26 (footnotes omitted). Judges across all categories said that they observed significant disparities in quality between prosecution and defense 21-40% of the time.
When there is a disparity in representation, many judges conduct additional research. p. 335. (But they aren't happy about this burden -- see p. 346.) The judges thought that many jurors favor litigants with better lawyers, but they thought they themselves could rise above the disparate representation. p. 326. But in many situations, they thought that the representation did not make much difference to the outcomes of the cases. p. 327. The authors discuss this perception -- and related studies about the impact of counsel in criminal cases -- at pp. 341-43.
Change law school?The survey asked judges what could be done to improve the quality of representation.
About law schools, judges were in general agreement. The most common response in each judge group was that law schools should provide more coursework oriented to instilling practice-oriented skills. The second most popular response was expansion of core curriculum—-that is, courses required of all students—-to ensure a stronger foundation for practice. More than two-thirds of the judges in each group proposed changes in law school curricula, while no more than 10% in any group recommended higher admissions standards. Recommendations to make tuition more affordable drew slightly higher but still modest support (ranging between 5% and 14%).
p. 338 (footnote omitted)
The judges would like to see better trial skills:
Judges expressed concern about the effectiveness of the bar at trial advocacy. One federal district judge remarked that lawyers are “smart, well-prepared and know the law and write great briefs—but if the case goes to trial, their trial skills are nowhere near what their pre-trial skills were.”
p. 346
The whole article is worth a look: there are lots of interesting nuggets, and the footnotes cite other intriguing studies about lawyers' effectiveness.
