The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom

Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. Here, Kritzer examines the disconnect between science and the courtroom in terms of the differing norms of persuasion found within the scientific community and within the legal community

To Lawyer or Not to Lawyer, Is that the question?

A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan) I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer

Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Trials

In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios

Empirical Legal Studies Before 1940: A Bibliographic Essay

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is an extensive bibliographic essay that surveys the English language empirical legal research from approximately 1940 and earlier. The essay is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt and bankruptcy, banking, appellate courts, legal needs, legal profession (including legal education), and judicial staffing and selection. Accompanying the essay is an extensive bibliography of research articles, books, and reports

Appointed or Elected: How Justices on Elected State Supreme Courts Are Actually Selected

During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection

The Commodification of Insurance Defense Practice

In this paper, I present an analysis of insurance defense practice using the heuristic of a commodity.7 Essentially, I argue that many, perhaps even most, insurance companies have come to view the more routine work of insurance defense as something to be purchased in a marketplace where there are a large number of interchangeable providers.8 Loyalty between buyer and seller, to the extent that it had been an important element of the relationship, has faded. Today, insurance companies frequently shop for the best deal, which may include producing insurance defense services in-house rather than purchasing those services from an outside firm.9 As is true of any commodity seller, insurance defense firms seek to differentiate their product from their competitors; how successful they are in doing so is hard to ascertain. Insurance defense firms also seek to maintain the kinds of person-to-person loyalties that were probably the mainstay of insurance defense practice thirty to forty years ago, but insurance companies increasingly have adopted policies and changed management structures and in so doing have made this personal loyalty much more difficult to maintain

Advocacy and Rhetoric vs. Scholarship and Evidence in the Debate over Contingency Fees: A Reply to Professor Brickman

In December 2001 I received a telephone call from a lawyer at a firm representing Baxter International, Inc. At that time, Baxter was facing lawsuits over a number of dialysis-related deaths that had occurred in Europe. Apparently dialysis filters manufactured at a Baxter plant in Sweden had been contaminated by a processing chemical resulting in adverse consequences when used with dialysis machines. Baxter had settled death claims involving ten Spanish patients who had died (for $289,000 each), but was facing claims in as many as another 40 cases. American contingency-fee lawyers had begun to contact families in Europe and the possibility of lawsuits in the United States was looming, with the prospect of damage payments far greater than roughly$300,000 per person. The lawyer who contacted me was seeking someone to whom his firm, or the firm’s client, could refer European journalists who would tell them about the problems with American contingency fees. He had in mind horror stories, including the supposed likelihood that the lawyers would end up with more of the proceeds than their clients. I told the lawyer that I would certainly be happy to speak with any journalists who contacted me, but I also asked whether the lawyer had visited my website to review my writings on contingency fees. When the lawyer indicated that he had not, I suggested that he just might want to do so, because he would probably determine that I was unlikely to say the kinds of things his firm’s client was hoping the journalists would hear. I went on to suggest that if he was looking for someone who would bad-mouth contingency fees, he might want to contact Professor Lester Brickman (“Brickman”). Brickman had established himself as the leading proponent of the view that contingency fees were a problem and that they needed to be substantially limited so that lawyers would not, supposedly, take advantage of naive clients and reap windfall fees. I do not know whether the lawyer contacted Professor Brickman or, if he did, whether the lawyer indicated that I had made the referral. Professor Brickman’s recent article in this law review suggests the kinds of things that he might have been expected to say. Regrettably, while his claims make good material for journalists, they also demonstrate his inclination to let his advocacy distort his scholarship. He also demonstrates a naiveté, perhaps resulting from a lack of training, about the norms and practices of social science. Rather than critiquing my work from within those norms, Brickman falls back on the use of anecdotes and horror stories, which while interesting, are the tools of the advocate not the social scientist

It\u27s the Law Schools Stupid! Explaining the Continuing Increase in the Number of Lawyers

Many countries around the world have experienced sharp increases in the number of legal professionals over the last 40 to 50 years. In this paper, I focus on the role of the gatekeepers which in most countries today are the institutions that provide education and training for those hoping to enter the profession. I argue that while the profession may have an incentive to control the “production of producers,” the educational institutions do not share this incentive. While this argument has been made previously, in this paper I seek to draw out the implications of the institutional incentives, both with regard to how the institutions operate to supply education and training, and with regard to the impact on the demand for the education and training the institutions provide. The discussion considers develops in a range of both common law and civil law countries