DO YOU WANT TO KNOW WHAT JUDGES REALLY THINK OF LAWYERS?
The Stanford Law Review recently published a law review article, What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317, January, 2011, penned by the Seventh Circuit's Judge Richard Posner and University of Toronto Associate Law Professor Albert Yoon. The team surveyed 666 state and federal judges at the appellate and trial levels, asking judges "to answer questions relating to their perceptions of the quality of legal representation, and how that quality - and significant disparities in quality between opposing counsel - influences how they and juries decide cases." 63 Stan. L. Rev. 317, 319.
The findings? It is not surprising that Judges found that they responded differently than juries to the disparity in the quality of legal representation. 63 Stan. L. Rev. at 320. When such disparities arise, judges stated that they conducted independent research outside the courtroom in order to decide legal issues. As for how juries perceive trial counsel, the articles stated that "jurors are inclined … to favor the litigant with the higher-quality lawyer." Id.
What does this mean?
When litigants have lawyers of unequal quality, judges can frequently correct the imbalance through their own research, whereas juries cannot and therefore respond to the inequality in representation by gravitating toward the litigant with the stronger lawyer. This finding is consistent with evidence that the quality of legal representation has a strong effect on case outcomes. If the stronger lawyer coincides with the litigant with the stronger case on the merits, then one would expect judges and juries to agree on the outcome. If, however, the weaker lawyer coincides with the litigant with the stronger case on the merits, then judges and juries are likely to disagree. One federal district judge suggested that judges were performing the job of the lawyers: "It is frustrating having to conduct research, raise fundamental issues sua sponte, and having the litigants reap all the benefits."
Id. at 346.
The solution is self-evident. Litigants should retain lawyers with trial advocacy skills. When asked how to enhance the quality of legal representation, most judges suggested changes at the law school level. Jeffrey J. Kroll has taught at numerous law schools in Chicago, including trial advocacy and medical malpractice law at DePaul University College of Law, trial advocacy at Northwestern University College of Law and deposition practicum courses at John Marshall Law School. The attorneys at the Law Offices of Jeffrey J. Kroll have over 20 years of experience trying cases throughout Illinois and across the nation.
