What Judges Think of Lawyers – From Judge Posner

Back in 2008, Judge Richard A. Posner and Professor Albert H. Yoon sent out a survey to a number of judges seeking to determine how lawyers are perceived by the judiciary. Recently, they published their findings in the Stanford Law Review. The abstract:

Studying the legal profession poses several challenges. The evolution of law has moved lawyers away from a generalist practice towards increased specialization.This makes it difficult, if not impossible, to compare lawyers across different practice areas meaningfully and to provide a comprehensive assessment of the legal profession. Judges are well situated to provide such an evaluation, given their experience and scope of cases. This article reports the responses of federal and state judges to a survey we conducted in 2008. The questions relate to their perceptions of the quality of legal representation, generally and in criminal and civil cases; how the quality of legal representation influences how they and juries decide cases; and their recommendations for change in the profession. 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 from juries to these disparities,and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

The article is wide-ranging and covers a variety of topics. Here are a few highlights:

While judges seem to think that the lawyers before them are fair-to-good, they also don’t seem to think they are getting any better. State trial judges seem to think they are actually getting worse. Not a good trend for lawyers.

As the article notes, it’s also rather unsurprising that Appellate judges rank writing so highly as that is where the most of their interaction with lawyers lie. (Like I noted last week, writing is the primary form of communication for a lawyer. Work on it.)

Worth noting, if you stink as a lawyer, apparently most judges have your back. Over 50% of judges at every level “reported that they conduct additional legal research, presumably to correct for the disparity.” Maybe, that’s the reason they think lawyers are only fair or failing. Do your work people.

And, surprise surprise, juries favor the “stronger” lawyer. Confidence, swagger, etc. – if you don’t have any, get some.

I don’t think it can be emphasized enough, you have to manage a client’s expectations.  Judges across the board agreed that the reason litigants failed to settle/mediate/etc (cheaper, faster) can be attributed to “one of the litigants having an unrealistic assessment of his likely success at trial.” From the Consulting Academy:

“In the figure above, the red line represents your client’s expectations, the black line a measure of the value you’re providing and the green line your client’s perception of that value.”

Somewhere in the process, when litigants go to trial, they’ve fallen into the trap above. They have a high expected value, but the deliverable value is actually much reduced. This is especially true in a case that proceeds to trial where it is likely an all or nothing endeavor.

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It’s a long read, but the article has lots of good information in it. I don’t have time to go into it here, but the differing views between civil and criminal attorneys by judges is quite interesting, as is the judges thoughts on what needs to change in improve the quality of lawyers. Hint: they think law schools stink at making lawyers as well…Okay, here are a couple choice bits:

• “[c]learly, more emphasis should be placed on legal writing in law school.”
• “There are many third,fourth, and even fifth tier law schools that are pumping out graduates who are unprepared and have difficulty finding jobs.”
• “The legal ‘profession’ is a business (at least since advertising was allowed) and is no longer a profession.”

You can get the whole thing here.

Posner, Richard A. and Yoon, Albert, What Judges Think of the Quality of Legal Representation (August 30, 2010). Stanford Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1668783