1 SCREENING, SORTING, AND SELECTING IN COMPLEX PERSONAL INJURY CASES: HOW LAWYERS MEDIATE ACCESS TO THE CIVIL JUSTICE SYSTEM by Mary Nell Trautner Copyright Mary Nell Trautner 2006 A Dissertation Submitted to the Faculty of the DEPARTMENT OF SOCIOLOGY In Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY In the Graduate College THE UNIVERSITY OF ARIZONA
2 2 THE UNIVERSITY OF ARIZONA GRADUATE COLLEGE As members of the Dissertation Committee, we certify that we have read the dissertation prepared by: MARY NELL TRAUTNER entitled: SCREENING, SORTING, AND SELECTING IN COMPLEX PERSONAL INJURY CASES: HOW LAWYERS MEDIATE ACCESS TO THE CIVIL JUSTICE SYSTEM and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of: DOCTOR OF PHILOSOPHY Date: June 9, 2006 Ronald L. Breiger Date: June 9, 2006 Don S. Grant Date: June 9, 2006 Patricia MacCorquodale Date: June 9, 2006 Calvin Morrill Final approval and acceptance of this dissertation is contingent upon the candidate s submission of the final copies of the dissertation to the Graduate College. I hereby certify that I have read this dissertation prepared under my direction and recommend that it be accepted as fulfilling the dissertation requirement. Date: June 9, 2006 Dissertation Director: Ronald L. Breiger
3 3 STATEMENT BY AUTHOR This dissertation has been submitted in partial fulfillment of requirements for an advanced degree at The University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library. Brief quotations from this dissertation are allowable without special permission, provided that accurate acknowledgement of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder. SIGNED: Mary Nell Trautner
4 4 ACKNOWLEDGEMENTS While I know my words cannot possibly do justice to the gratitude that I feel, I would like to thank the members of my committee for their support, encouragement, and thoughtful criticism throughout the dissertation process. Sarah Soule was a constant source of positive energy, good advice, and helpful feedback from the very beginning of the project, even though external circumstances prevented her from being there at the very end. Ronald Breiger has been a deep source of support and inspiration throughout my graduate career. I thank him for his thoughtful attention to my work, his mentorship, and his extremely helpful guidance through the publishing process, the job market, and the dissertation. In addition to sharing a great deal of critical insights into my work, Patricia MacCorquodale taught me a number of important lessons that I will carry with me throughout my writing career. I also thank Pat for always offering a hug when I needed it most. Don Grant has always been supportive of my work and provided me with good advice, especially about grant writing and publishing. I am particularly beholden to Calvin Morrill, not only for his amazingly smart feedback and enthusiasm for my work, but for sparking my initial interest in the sociology of law. I can truly say that my research would never have turned in this direction had it not been for him. Data collection was made possible through a Dissertation Improvement Grant from the National Science Foundation s Law & Social Science Division (SES # ), two Graduate Research Grants from the Social and Behavioral Sciences Research Institute at the University of Arizona, and through funds from the Department of Sociology at the University of Arizona. Elizabeth Borland, Wade Roberts, and Sue Trautner generously hosted me during part of my travels. I want to also thank Joy Inouye, Ryan Reikowsky, Karen Gordon, Lanie Anderson, and Justin Manders for assistance with transcription. I want to also thank my friends and family for putting up with me throughout the writing process. They all endured more than their fair share of my ups and (especially) my downs and doubts. While I feel very fortunate to have had a wide support network, a few people deserve special recognition. I especially want to thank Samantha Kwan for her friendship and for getting me out of the office on a regular basis. Claude Rubinson was a careful editor and commentator on many of the chapters that follow, and was a great help with the quantitative aspects of my analyses. I could not have asked for a better cheerleader than Elizabeth Borland, who was constantly supportive, helpful, and confident in my ability to finish. Tim Bartley has always inspired me to do good work, and I thank him for his insightful and probing questions and comments, and his steady stream of advice. I am lucky to have friends like each of you. And finally, I greatly admire and appreciate the work that personal injury lawyers do for their clients and for the betterment of society as a whole. I am deeply indebted to those lawyers who shared their time, insights, and stories with me, as well as to the various trial lawyer associations who helped me find them. Thank you.
5 5 TABLE OF CONTENTS LIST OF TABLES 8 LIST OF FIGURES 9 ABSTRACT 10 CHAPTER 1: INTRODUCTION 12 Benefits of Personal Injury Litigation 15 Screening As an Important Part of the Disputing Process 17 Overview of the Chapters 19 CHAPTER 2: PAST RESEARCH AND THEORETICAL BACKGROUND 22 Earlier Approaches: Analyses of Cost, Benefit, and Risk 22 DESCRIPTIVE ACCOUNTS OF SCREENING RATES 24 THE ASSESSMENT OF RISK 26 INCREASING REWARDS 27 Critiques of Rational Choice: Toward a Sociological Analysis of Screening 28 SOCIAL STRATIFICATION: STATUS AND STRUCTURAL CHARACTERISTICS 30 ORGANIZATIONAL CULTURE AND PRACTICE CHARACTERISTICS 33 STATE-LEVEL LEGAL CULTURES 35 Summary 37 CHAPTER 3: RESEARCH DESIGN, METHODS, AND DATA 38 Selecting the Case: Complex Personal Injury 38 Selecting the Sites: Texas, Colorado, Pennsylvania, Massachusetts 42 Sampling 44 Interview Content and Format 47 Data Analysis 54 Preview of Empirical Chapters 54
6 6 TABLE OF CONTENTS Continued CHAPTER 4: HOW SOCIAL HIERARCHIES WITHIN THE PERSONAL INJURY BAR AFFECT CASE SCREENING DECISIONS 60 Distinctions Among Lawyers: Previous Research 60 Case Selection: Previous Research 65 Stratification within the Personal Injury Bar 66 Case Screening Rates: Developing and Testing Hypotheses 75 Summary and Conclusion 84 CHAPTER 5: LIABILITY V. LIKEABILITY: HOW LEGAL CULTURE SHAPES THE SCREENING PROCESS 91 Elements of Screening 93 Easy Screening: Cells A and D 100 Likeable Client, Uncertain Liability: Cell B 101 Strong Liability, Unlikeable Client: Cell C 104 The Shift from Likeability to Liability 107 Summary and Conclusion 117 CHAPTER 6: PERSONAL RESPONSIBILITY V. CORPORATE LIABILITY: CASE EVALUATION AND ACCEPTANCE 126 The Vignette 127 Interpretations of Case Components 129 (1) WARNINGS, DAMPERS, AND THE LEGAL HIERARCHY OF PRODUCT SAFETY 129 (2) CHARACTERISTICS AND CONDUCT OF THE DEFENDANT 134 (3) CHARACTERISTICS AND CONDUCT OF THE PLAINTIFF 138 General Categories of Acceptance and Rejection 141 ROLLER STICKS AS LEGALLY DEFECTIVE 144 STAR AS A SOCIALLY IRRESPONSIBLE CORPORATION 147 PLAINTIFF AS PERSONALLY RESPONSIBLE 149 Summary and Conclusion 151
7 7 TABLE OF CONTENTS Continued CHAPTER 7: CONCLUSION 153 Overview of Main Empirical Findings 153 Implications 158 Extensions and Additional Questions 162 APPENDIX A: PLAINTIFFS RATES OF VICTORY IN FIVE SORTS OF CASES 165 APPENDIX B: TORT REFORMS BY STATE 166 Colorado Reforms 166 Texas Reforms 169 Massachusetts Reforms 173 Pennsylvania Reforms 174 APPENDIX C: HUMAN SUBJECTS CONSENT FORM 175 APPENDIX D: LAWYER INTERVIEW GUIDE 176 APPENDIX E: HYPOTHETICAL CASE VIGNETTE 180 APPENDIX F: ORGANIZATIONAL INTERVIEW GUIDE 181 REFERENCES 183
8 8 LIST OF TABLES TABLE 3.1. RESPONSE RATES ACROSS FOUR CITIES 57 TABLE 3.2. SAMPLE CHARACTERISTICS 58 TABLE 3.3. COMPARISON OF LAWYER DEMOGRAPHIC AND ORGANIZATIONAL CHARACTERISTICS TO OTHER SAMPLES OF LAWYERS 59 TABLE 4.1. CASE SELECTION RATES 67 TABLE 4.2. HIERARCHIES WITHIN THE PERSONAL INJURY BAR 69 TABLE 4.3. AVERAGE CASE VALUES (LOWER END) 73 TABLE 4.4. ANOVA TEST OF CASE VOLUME AND CASE SELECTION RATES 75 TABLE 4.5. ANOVA TEST OF GENDER AND CASE SELECTION RATES 77 TABLE 4.6. ANOVA TEST OF GENDER AND CASE SELECTION, LOW-VOLUME LAWYERS ONLY 77 TABLE 4.7. ANOVA TEST OF YEARS OF EXPERIENCE AND CASE SELECTION RATES 78 TABLE 4.8. ANOVA TEST RESULTS FOR YEARS OF EXPERIENCE FOR LOW-VOLUME LAWYERS 79 TABLE 4.9. ANOVA TEST OF SPECIALIZATION AND CASE SELECTION RATES 80 TABLE ANOVA TEST OF AVERAGE CASE VALUES AND CASE SELECTION RATES 82 TABLE ANOVA TEST OF LARGEST CASE VALUE AND CASE SELECTION RATES 83 TABLE 5.1. VARIATIONS IN SCREENING ELEMENTS 100 TABLE 5.2. SCREENING CRITERIA IN NON-REFORM STATES 125 TABLE 5.3. SCREENING IN REFORM STATES 125 TABLE 6.1. HYPOTHETICAL CASE ACCEPTANCE PATTERNS 142 TABLE 6.2. ACCEPTANCE RATES FOR EACH HYPOTHETICAL VICTIM 143 TABLE 6.3. ACCEPTANCE RATES FOR EACH CITY 143 TABLE 6.4 ACCEPTANCE RATES OF HYPOTHETICAL CASE (COLLAPSED CATEGORIES) 144 TABLE 6.5. LEGAL CULTURE AND CASE ACCEPTANCE 146 TABLE 6.6. CORPORATE SOCIAL RESPONSIBILITY AND CASE ACCEPTANCE 148 TABLE 6.7. CORPORATE SOCIAL RESPONSIBILITY AND CASE ACCEPTANCE IN REFORM STATES 148 TABLE 6.8. PERSONAL RESPONSIBILITY AND CASE ACCEPTANCE IN NON-REFORM STATES 149 TABLE 6.9. PERSONAL RESPONSIBILITY AND CASE ACCEPTANCE 149 TABLE PERSONAL RESPONSIBILITY AND CASE ACCEPTANCE IN REFORM STATES 150 TABLE PERSONAL RESPONSIBILITY AND CASE ACCEPTANCE IN NON-REFORM STATES 150
9 9 LIST OF FIGURES FIGURE 1.1. THE DISPUTING PYRAMID 18 FIGURE 3.1. DISTRIBUTION OF TORT CASES IN JURY TRIALS 56 FIGURE 4.1. VOLUME OF CASES HANDLED IN A YEAR 87 FIGURE 4.2. LAWYER SPECIALIZATION IN COMPLEX PERSONAL INJURY CASES 88 FIGURE 4.3. INDIVIDUAL LAWYERS LARGEST CASE VALUE 89 FIGURE 4.4. LOG VALUES OF LARGEST CASE EVER HANDLED 90 FIGURE 5.1. DIRECT MAIL ADVERTISEMENT SENT TO TEXAS VOTERS, FIGURE 5.2. DIRECT MAIL ADVERTISEMENT SENT TO TEXAS VOTERS, FIGURE 5.3. TRUCK ADVERTISEMENT IN SUPPORT OF TORT REFORM 123 FIGURE 5.4. TEXAS BILLBOARD IN SUPPORT OF TORT REFORM 123 FIGURE 5.5. TEXAS BILLBOARDS IN SUPPORT OF TORT REFORM 124
10 10 ABSTRACT Personal injury lawyers aid clients who see themselves as victims of medical, commercial, or other forms of negligence and who seek compensation through the civil justice system. Previous studies have suggested that these lawyers are highly selective, accepting only a small percentage of potential cases with which they are presented. Yet little is known about the actual process of screening. How do lawyers decide which cases to accept and which to decline? Do lawyers agree on the factors that make a good case and those which make a bad case? How might local legal and cultural environments influence the screening process? These questions, and related issues of access, inequality, policy, and justice, are at the core of this dissertation. Using in-depth interviews and an experimental vignette study given to 83 lawyers who specialize in medical malpractice and products liability, I examine the case screening process, paying particular attention to the roles of tort reform and the legal cultures and environments in which lawyers work. Half the lawyers I interviewed practice in states which are considered to be difficult jurisdictions for the practice of personal injury law due to tort reform and conservative political climates (Texas and Colorado), while the other half work in states that have been relatively unaffected by tort reform and are considered to be more plaintiff friendly (Pennsylvania and Massachusetts). Lawyers respond not only to legal rules and changes to those rules, but also to their perceptions of how jurors will respond to and evaluate their case. My analyses show that while lawyers in both types of states accept roughly the same percentage of
11 11 cases, they do so using different approaches and theories of liability. When making distinctions between good and bad cases, lawyers in states without tort reform emphasize the importance of a client s likeability and jury appeal, while lawyers in states with tort reform place more importance on characteristics related to the defendant, particularly the strength of liability and causation. I address the implications of intended and unintended consequences of tort reform for inequality, access, and the growth or inhibition of tort law itself.
12 12 CHAPTER 1: INTRODUCTION Given that eighteen-year old Gerard Anthony August had previously had two liver transplants, he was required to carefully monitor his health. 1 So when he developed a fever on June 1, 2002, he went to the closest Austin-area hospital for some lab tests. Seton Medical Center, however, was unsure of how to read the test results for a transplant patient, thus demanded that Gerard admit himself to the hospital. From there, a number of additional mistakes occurred. The hospital did not have on hand the medicine Gerard needed, and the delay in obtaining it led to a breakdown in his kidney functions and immune system. Hospital staff twice failed to correctly insert a tube for dialysis, leading to a crushed trachea and acute bleeding and swelling. Though Gerard s mother, Yvonne Harrison, repeatedly asked the hospital to send Gerard to the specialists in San Antonio who had performed his transplants, Seton Medical Center refused, and Gerard died of pneumonia three days later. Nearly two years after Gerard s death, Harrison began taking steps to sue Seton Medical Center for medical negligence. She made an appointment with an Austin medical malpractice lawyer, but upon hearing the facts of the case, the lawyer turned her down. So she met with another lawyer. And another. And another. In total, Harrison spoke with 92 lawyers, every one of whom declined to accept her case. The reason, she was told, was due to recent legal changes which would severely limit the amount of money she could collect for the death of her son, making the case too expensive for the 1 My account of this case is based on Osborn (2004a, 2004b). I thank Dan Hilliard for informing me of this case.
13 13 lawyers to handle. Lawyers explained that for an unemployed 18-year old with no spouse or children, compensation for his death would be limited to $250,000 for pain and suffering, and that the amount of money they would have to pay to experts to prove the case would likely meet or exceed that amount. Harrison believed so strongly in her case that she decided to pursue it anyway even without a lawyer. She ultimately reached a settlement with the hospital (for a confidential amount), but the extreme stress of handling the case caused her to develop blood pressure so high that she temporarily lost her sight and fell and broke her leg (Osborn 2004b). The Harrison case tells a number of interesting stories. The most direct is that of a grieving, distraught mother who wouldn t take no for an answer, who against all odds prevailed 2 in battle with an established hospital and their large, experienced law firm. Another story is of the Texas lawyers who, based solely on the money her case could bring in, would not trouble themselves to help a mother grieving over her son (although one firm did help her to prepare her lawsuit). Yet another story is of the profound legal changes in Texas which gave rise to the predicament in which Harrison found herself. Each of these interpretations of the Harrison case, however, points to one fundamental, underlying issue: access to justice. In any given year, about 98,000 people die from preventable medical errors (Kohn et al. 2000). This is more than the number of people who die from highway auto accidents (42,643 in ), breast cancer (40,870 in ), and workplace accidents 2 The settlement amount was confidential, thus we do not know how well she was compensated. 3 National Transportation Safety Board (2005). 4 Estimate from the American Cancer Society (2005).
14 14 (5,703 in ) combined. Yet, according to the Bureau of Justice Statistics, only 1,156 medical malpractice cases were litigated in the 75 most populous counties in (Cohen 2004). Of those, only one-third involved a death claim. Why is there such a discrepancy between the number of deaths and the number of cases being litigated? The facts of the Harrison case suggest one possible answer: lawyers simply decline to file a large number of potential cases. Although they are commonly portrayed as greedy ambulance chasers who will take any case regardless of merit, a number of studies have shown that personal injury lawyers are highly selective about the cases they choose to accept (Crane 1988; Daniels and Martin 2000; Kritzer 1996, 1997a, 1997b; Parikh 2001). And while Harrison did eventually come to a settlement agreement with Seton Medical Center, her success is highly unusual. It is generally accepted as a truism that for victims of medical, commercial, or other negligence, lawyers are a necessary, but not sufficient, condition for obtaining compensation through the civil justice system (Kritzer 1996, 1997a, 1997b, 2004; Martin and Daniels 1997; Michelson 2006). Thus, lawyers act as gatekeepers to justice in a way similar to that in which other professionals control people s access to a wide array of socially valued resources (see Coser 1975 on publishers; Maxfield 1998 on banks; Mullan 2002 on generalist physicians; Pearce 1979 on real estate agents; and Steinberg 2002 on college admissions panels). Yet despite this important implication for social justice, little is known about the process by which lawyers decide which cases to accept and which to decline, and what implications these screening decisions ultimately have on citizens access to justice. This 5 Bureau of Labor Statistics (2004). 6 Only 27% of all medical malpractice plaintiffs won their case at trial.
15 15 research ultimately seeks to understand this screening process. What are the screening practices of lawyers? Do different lawyers screen cases in different ways? How might local legal and cultural environments influence the screening process? What are the implications of these screening practices? Based on in-depth interviews with 83 medical malpractice and products liability lawyers in four U.S. states, I attempt to answer these questions in the pages ahead. Understanding the screening process in tort cases 7 is especially important not only because of lawyers gatekeeping role, but also because of the significant public and social benefits of personal injury litigation. Insight into the screening process will also add to our knowledge about more general socio-legal phenomena, such as the disputing process, and it can also help us understand the role of culture and context in rational-choice decision making processes. In the next few sections, I discuss these areas in greater detail. I then close this introduction with a brief preview of the chapters that follow. Benefits of Personal Injury Litigation Most scholars of torts have argued that the tort compensation system has a number of positive functions. Of course, people suffering from injuries receive monetary compensation, which aids in the recovery and/or caretaking process. This compensation is designed to make the plaintiff whole again by replacing lost wages, providing for lost earning capacity, reimbursing past medical expenses as well as those the plaintiff 7 I use tort law and personal injury law interchangeably. Tort law is a broad term that encompasses a wide range of wrongs, not all of which are physical. As Dobbs (2000) says, Tort law is more than injury law because it includes rules for wrongs that cause economic and emotional injury even when no physical harm of any kind has been done (9-10), for example, slander or libel. In contrast, people usually refer to personal injury law as the portion of tort law which deals directly with physical injuries caused by another (Dobbs 2000).
16 16 may incur in the future as a result of the injury. Tortfeasors are also often asked to compensate for a plaintiff s pain and suffering, emotional anguish, disfigurement, or loss of enjoyment (Dobbs [2000: 1052] lists several activities that diminish one s quality of life, such as no longer being able to see a sunset, or hear music, or engage in sexual activity ). But through lawsuits, civil litigants and plaintiffs lawyers also expose dangers and risks that have gone unnoticed by regulators and the criminal side of law, for example, the dangers posed by exposure to asbestos, silicone breast implants, or the bad batch of Firestone tires. As a result, personal injury litigation benefits the public interest by punishing and guarding against such things as unsafe products, workplace hazards, unfair employment practices, and preventable medical errors (Koenig and Rustad 2001). Personal injury litigation, in other words, acts not only as a deterrent to bad behavior, encouraging self-regulation (Bogus 2001) but it also directly impacts public policy (Burke 2002). Many of the safety laws we now take for granted (e.g., seatbelts, drug tests, warning labels, machine guards) were born from personal injury lawsuits. Since the mid-1980s, tort law has come under attack a number of times by corporate and business interests seeking to restrict their legal liability and responsibility for financial compensation (see Haltom and McCann  for a thorough description of the rise of the tort reform movement). Most states have passed some type of tort reform, which range from capping the amount of money a plaintiff may receive for his/her injuries (generally agreed to be the most severe), to restrictions on joint and
17 17 several liability, 8 to adding requirements for expert witnesses, such as requiring that they have particular credentials or that they file particular reports at a designated time, or restricting the venue or jurisdiction in which a lawsuit may be filed. A fair amount of research suggests that tort reform depresses the number of lawsuits filed by lawyers (Daniels and Martin 2000; Finley 1997; Kessler and McClellan 1996; Sharkey 2005). The Harrison case suggests that because some tort reforms impact the monetary values of cases, lawyers screen cases differently than they would without such reforms. Yet is there any guarantee that lawyers would have accepted Harrison s case had it not been for the caps on damages? How do these reforms impact the process by which lawyers evaluate cases? If lawyers do indeed screen cases differently under tort reform, what are the broader social implications of those screening methods and processes? Screening As an Important Part of the Disputing Process The issue of how lawyers screen cases also represents an important addition to our understanding of the trajectory of disputes. Socio-legal scholars have built up a great deal of knowledge about the disputing process, that is, how people identify injuries or events as grievances, some of which turn into disputes, some of which ultimately end up in trial, yet the screening process remains understudied. Figure 1.1 shows the disputing pyramid developed by Felstiner, Abel, and Sarat ( ), called so because at each step along the way, potential cases fall out of the system. The pyramid illustrates that there 8 Under joint and several liability, all wrongdoers could be held equally financially responsible for an injury, regardless of comparative fault. For example, if Doctor A is 10% responsible for a patient s death, and Doctor B is 90% responsible, but has no insurance, a plaintiff may collect all monetary damages from Doctor A.
18 18 are many fewer trials than there are potential trials because potential cases fall out at each of these stages. FIGURE 1.1. THE DISPUTING PYRAMID Felstiner, Abel, and Sarat ( ) While the upper portion of the pyramid deals mainly with the final stages of disputes, the lower part of the pyramid captures what Felstiner, Abel, and Sarat call the naming, blaming, and claiming process. It examines if, how, and when people decide to mobilize the law, and is strongly associated with the literature on legal consciousness (see, for examples, Ewick and Silbey 1998; Merry 1990; Nielsen 2000). This portion of the pyramid is most concerned with questions of how people define events as troubles, particularly as legal troubles, and how, if at all, they attempt to resolve their disputes. Through each of these lower steps, potential cases disappear from the pyramid. Not all
19 19 people who have an injury, for example, think of it as a problem that can be remedied. Not all of those people identify who is to blame for that injury, and even fewer of those people request compensation, and so on. While the legal consciousness literature has helped us to learn a fair amount about the early stages of disputes, and we know a great deal about the later stages of disputes (e.g., trials and outcomes of trials), we know very little about the stage of the disputing process that involves lawyers. Essentially all that we know for certain is that fewer cases leave the lawyer s office than came into it. But how does this come to be? What role do lawyers have in the disputing process? That is, how do they screen cases and clients? One reason why so little is known about this stage is that most studies examine the disputing process from the perspective of the potential litigants themselves, rather than from the perspective of outside parties who ultimately transform the dispute. Thus, this study of how lawyers screen cases represents an important addition to our knowledge of the disputing process. Overview of the Chapters Chapter 2 provides background on previous studies of lawyer screening. I discuss rational choice approaches to decision making, stressing the necessity to embed such decisions in cultural and legal environments. In Chapter 3, I review the data and methods used in the study. My primary data consists of in-depth, semi-structured interviews with 83 medical malpractice and product liability lawyers in four U.S. states, representing two types of legal cultures.
20 20 Based on the findings of previous studies, Chapter 4 develops and tests a number of hypotheses about the role of lawyers social and organizational characteristics on rates of screening, that is, how many cases that come to them that they end up accepting. My data show little support for the hypotheses. I argue in this chapter that rather than focusing on rates of case selection, researchers should focus on the process of case selection and the factors that lawyers consider when making case screening decisions. Chapter 5 takes a comparative approach to understand the role of legal culture in how lawyers make distinctions between good cases and bad cases. Lawyers respond not only to legal rules and changes to those rules, but also to their perceptions of how jurors will respond to and evaluate their case. When making decisions about whether to accept a potential case, lawyers in states without tort reform ( non-reform states ) emphasize the importance of a client s likeability and jury appeal, while lawyers in states with tort reform ( reform states ) place more importance on the strength of liability and causation. In Chapter 6, I elaborate on and extend the findings presented in Chapter 5. I present results from the experimental vignette portion of this study in which I asked lawyers across the four states to evaluate the same hypothetical personal injury case. While lawyers in reform states and non-reform states are equally likely to accept the hypothetical case with which they were presented, they approach the case in different ways, use different theories, and make different arguments in order to justify their acceptance of the case. In Chapter 7, I offer a summary of the important findings and theoretical contributions of the dissertation, and I address the implications of both the intended and
21 21 unintended consequences of tort reform for inequality, access to justice, and the growth or inhibition of tort law itself. I also offer directions for future research that are suggested by the findings in these chapters.
22 22 CHAPTER 2: PAST RESEARCH AND THEORETICAL BACKGROUND In this chapter, I consider previous research on case and client screening and suggest a new theoretical framework for understanding the process by which complex personal injury lawyers evaluate cases. The majority of prior research explains case screening primarily in terms of individual, rational-choice decision making. However, this narrow approach misses important structural and cultural forces which may also be at work. After a careful and critical review of this research, I show how attention to cultural factors such as social and status characteristics, organizational practices, and broader legal environments can greatly increase the explanatory power of the individual-level, rational-choice decision making model. A major contribution of my approach is the assertion that lawyers assessments of risk and reward are not simply economic; rather, their estimations are largely culturally driven. Earlier Approaches: Analyses of Cost, Benefit, and Risk Contrary to the perception that the arrival of the contingency-fee arrangement led to a booming personal injury sector and a increase in overall litigation rates, the contemporary contingency fee arrangement was actually born from a spike in population growth and the massive increase in injuries in late 19 th -century industrial New York, as the legal profession clamored to compete for valuable injury cases (Bergstrom 1992). Under this arrangement, clients paid only for success. As New York Court of Appeals Judge Irving Vann explained in 1905, contingency fees [were] intended to help a poor
23 23 man, with an honest claim, who could not afford to pay counsel for commencing or conducting a suit to collect it (quoted in Bergstrom 1992). Contemporary plaintiffs personal injury lawyers work nearly exclusively on a contingency basis. This means that if they win a case they are paid a percentage of the award. However, if they are unable to win, they are paid nothing for their time or effort, and their own firm or practice must bear all of the expenses associated with the case, the bulk of which are spent on finding and hiring expert witnesses. Particularly in the complex personal injury fields of medical malpractice and product liability, the costs of experts alone can easily run between $50,000 $100, Given these financial stakes, attorneys screen cases as carefully as possible starting at the first meeting with a potential client, long before lawsuits are ever filed, settled, or litigated (Kritzer 1996). Almost all previous findings on the screening of personal injury cases suggest that cases and clients are screened according to this risk/return formula, following the rational choice model set forth by neoclassical economics. In this approach, the economic value of a case is the critical determinant of whether or not a lawyer accepts a particular case. The expectation is that lawyers will routinely accept cases that have the potential to generate high fees for the lawyer, and will routinely decline those cases worth smaller amounts, or in which the risk of losing is high (Kritzer and Krishnan 1999). The probabilities of winning the case and the likely payoff are calculated and compared to the time it will take to prepare the case and see it through either settlement or trial verdict. Lawyers thus pursue those cases with low risks (a high probability of success, usually 1 I will discuss the origin and validity of these figures in more detail in Chapter 3.
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