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Lawyers, Power, and Strategic Expertise

53 Pages Posted: 11 Sep 2014 Last revised: 2 Jul 2016

Colleen F. Shanahan

Temple University - James E. Beasley School of Law

Anna E. Carpenter

University of Tulsa College of Law

Alyx Mark

North Central College Dept. of Political Science; American Bar Foundation

Date Written: September 28, 2015

Abstract

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.

Keywords: legal representation, use of procedures, party power, lawyer expertise, litigation

JEL Classification: K40, K41, K49

Suggested Citation

Shanahan, Colleen F. and Carpenter, Anna E. and Mark, Alyx, Lawyers, Power, and Strategic Expertise (September 28, 2015). 93 Denv. U. L. Rev. 469 (2016).. Available at SSRN: https://ssrn.com/abstract=2479857

Colleen F. Shanahan (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
(215) 204-0804 (Phone)

HOME PAGE: http://www.law.temple.edu/contact/colleen-shanahan/

Anna E. Carpenter

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States
918-631-5799 (Phone)

HOME PAGE: http://works.bepress.com/anna_carpenter/

Alyx Mark

North Central College Dept. of Political Science ( email )

Naperville, IL
United States
6306375366 (Phone)

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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