Lawyering Behaviours in the Private Sector

Abstract

Abstract This chapter reviews the literature on private sector lawyering. First summarizing a long line of literature following Marc Galanter’s 1974 classic, it explores studies that investigate whether attorney representation affects outcomes in judicial decisions, settlements, and other contexts, and why attorney representation matters. Then, this chapter gives an overview of the social science literature on the arrangement between attorneys and clients, in particular the fee arrangement and how selective lawyers are in bringing disputes to courts. Finally, this chapter argues that the future of the field of comparative lawyering behaviours lies in using research designs with cross-country data that brings us closer to the gold standard of causal inference. In particular, this chapter provides examples for each of the five such research designs (the most similar cases, the most different cases, prototypical cases, most difficult cases, and outlier cases) that Ran Hirschl insightfully proposes. Overall, the reviewed studies suggest that attorneys do make a difference, especially in adversarial systems. Represented parties gain an edge, perhaps because representation itself is a signal or because attorneys have substantive or relational advantage. The mechanism of attorney effects is the holy grail, and no-one yet may claim that it has been found.