What are we missing when we think about case processing in litigation and mediation?

Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.

The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.

Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).

The book is based on data deriving from 131 interviews, questionnaires, and hearing observations encompassing 64 litigated and mediated fatality and medical injury cases (mandatory and voluntary, pre-and intra-litigation) in Toronto. Although the research utilizes one particular dispute-type for methodological consistency, the matters explored relate to generic issues inherent in the legal processing of cases. Thus, the findings are arguably pertinent to the bulk of human-oriented litigated and mediated cases. This is supported by similar findings relating to different case-types (e.g. divorce, commercial, consumer, small claims, etc.), which I discuss throughout the book. In fact, I have found analogous trends in my current book-in-progress based on 4 years of empirical research on human rights violations case processing in India, which I look forward to discussing in a later post.

By juxtaposing all sides’ views on the micro-elements of case processing, I challenge the underlying rational economic assumptions of civil justice, i.e. that people solely or predominantly seek discrete monetary objectives from court processes. I demonstrate instead that, in fact, both plaintiffs and defendants additionally pursue various noneconomic goals. Thus, I argue that the formal and informal/quasi-legal justice systems are not being utilized to their maximum potential and are not serving many of disputants’ intrinsic, often overriding extralegal needs that are inextricable from their legal needs. Linked to this, I further challenge the premise that litigants and their lawyers understand and want similar things in case processing. Indeed, the data provide disconcerting evidence relating to the surprising degree to which understandings and perceptions of the function of legal case processing and the justice system generally as well as particular needs and aims for case resolution are not only diverse between lawyers and parties, but frequently contradictory—including between attorneys and their own clients. Thus, throughout the chapters the findings indicate repeatedly that notwithstanding the benefits that legal representation can offer, utilizing attorneys to assist disputants in resolving their cases is laden with difficulties as epistemologically each actor group essentially occupies different, though parallel worlds. The data additionally show that litigants throughout are dominated by lawyers, dependant on attorneys’ expertise and paternalistic constructions of what is best. However, this is seen throughout the book to frequently be incongruous with litigants’ own understandings, needs and goals.

I conceptualize this phenomenon as a discontinuity of understandings, interests, language and agenda of legal versus extralegal actors in the justice system. Each new conceptual group—lawyers on all sides versus parties on all sides—ascribes similar meanings to cases and their resolution, wants similar things, and wants communication. But each do not want the same things, nor do they speak the same language. Instead, actors involved in case processing create competing meanings. Nevertheless, the findings ultimately show that lawyers’ values and interests are primarily served within the system, with lawyers exercising hegemonic elements of control during case processing. I consequently offer a new theory, arguing for the reinvention of identities to reflect this reality and as basis for meaningful reform.

The research informs a number of debates in various literatures. The informalism versus formal justice critiques of Fiss, Abel and Auerbach, although delivered from different ideological standpoints, amount to an endorsement of superior court adjudication (Abel:1982; Fiss:1964; Auerbach:1983). My findings show these critiques are fully justified. However, they add a rider to the critiques—particularly to Fiss’ work, i.e. ‘We must not let the critiques of informalism end in glorification of formal justice as that too is shown to be just as defective’. The research also informs the literature on what plaintiffs want (Merry S., and S. Silbey, 1984, 151-58, 160, 171,176), and the dispute transformation debates that encompass divorce, injury, poverty law, consumer, commercial, and small claims cases. Additionally, the findings speak to the lawyering theory literature, which asks ‘How do attorneys understand what a client’s problem is? What facts escape them (Sherwin, 1992)? Does the justice system undervalue the human element? Do lawyers’ and clients’ goals diverge? Do lawyers intensify or moderate legal conflict (Abel, R. 1995, 6)? What are litigants’ hidden agendas for litigation (Conley J. and O’Barr 1988,182-84, 196-97)? In addition, feminist legal theory makes the claim that there are gender relations that always affect the way law works. Yet there is limited empirical knowledge on how the different genders practice law. This research provides some such data and also informs the values and limits of the feminist critiques of informal justice for the disempowered, including women, which has generally been more concerned with broader structural features (Grillo, 1991). I also draw on the procedural justice literature, including Tom Tyler’s work, who notes that what parties want from the justice system reflects a psychological paradigm, which is different from the legal decision-making paradigm that lawyers are socialized into in law schools and which dictates discussions in the legal field (Tyler, T. 1997, 872-84).

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3 Responses

  1. A.J. Sutter says:

    Your question that begins, “How do professional, lay and gendered actors …,” certainly was puzzling to this reader: it sounds as if you regard these categories as either triply conjoint or else mutually distinct. (The title of your book slightly less so, since some plaintiffs and defendants aren’t individuals — though lawyers are, at least corporeally if not intellectually.)

    Are there any individual actors who aren’t gendered? Why should it be any surprise that gender affects the way conflict and resolution are perceived and experienced?

    You also don’t specify to what legal systems your conclusions apply. Are the problems the same in litigation in civil law systems such as France or Japan? or are they limited to Anglo-Saxon-derived legal systems?

    Do you control for the variable of fee structures in your analysis of how the workings of the law benefit professionals? Does your analysis apply equally to situations in which parties will have an ongoing relationship after the legal intervention, such as family law disputes or issues between vendors and customers, and those in which they probably will not, such as many types of product liability or personal injury litigation?

    BTW in my experience in transactional practice, many of the insights you mention don’t require the teaching of more theory in law school. More focus on transactions at the expense of litigation would be a good enough start. Though no doubt the theory is way more attractive to today’s professoriate.

  2. Names are a social construct which i deny says:

    I would like talk today about epistemological differences between blogs and academic journals on epistemology. A blog reader experiences this post as inappropriately situated, and might well characterize it as jargon-laden and over-wrought.

    Not me, I thought it was fascinating. But jargon-laden where common words would well have sufficed.

  3. Tamara Relis says:

    Thank you for both comments. The book is based on my PhD research and dissertation. But, I will write more plainly in future posts.

    A.J. Sutter – By ‘professional actors’, I mean lawyers, judges and mediators. In terms of ‘lay parties’ the book focuses on individual, non-corporate plaintiffs and defendants. However hospitals as institutional defendants are involved in some of the cases, and I examine some of their representatives’ understandings and views. There is also a small amount of input from institutional actors like insurers who are involved in the cases. That being said, as I note in the post, throughout each chapter (as well as in the two law review articles deriving from the book) I refer to similar findings in other studies that involve a wide array of case-types and parties. I also examine males’ and females’ case understandings and case resolution aims in each of the main groups—hence CUP, the publisher, suggested the term ‘Gendered Parties’ in the title. This is of interest as there is little empirical data on how the different sexes actually understand cases and behave during legal case processing.

    In terms of legal systems, as noted, this particular study was conducted in North America in a common law jurisdiction. At the end of the book, under ‘Recommendations for Future Research’ I note that, “It would be particularly valuable if similar research would be done in other jurisdictions and other cultures to test whether they too suffer from similar problems relating to the use of legal representatives in formal courts and informal justice processes or whether the present findings are solely or predominantly a product of western, adversarial legal systems and legal education.” That being said, interestingly, immediately after my first conference presentation on these findings at the American Law and Society Annual Meeting (much before the writing of the book), I was invited by a Japanese scholar in the audience (through a Japanese government grant) to speak at Kyoto University Law School (Law and Politics Symposium: The Participation of Non-legal Professionals and Citizens in Judiciary)—as he and his colleagues felt that what I found in Toronto was directly relevant to the situation in Japan. My paper there was subsequently published in Japan in both English and Japanese (Lawyers and Clients: Disparate Conceptions of Dispute Resolution in Litigation-Linked Mediation, in SOCIOLOGY OF LAW, JAPAN ASSOCIATION OF THE SOCIOLOGY OF LAW (JASL) UNIVERSITY OF TOKYO 24-41, October (2004); AND Disparate Lay and Legal Actor Perceptions of the Meaning and Function of Mediation (translated to Japanese), KYOTO UNIVERSITY LAW SCHOOL PUBLICATION, March (2004). Clearly though, as I note at the end of the book, more such research needs to be done in different jurisdictions.

    Fee structures were not a direct focus of this research. However, as noted in the book “contingency fee arrangements between plaintiffs’ lawyers and their clients existed de facto for almost all of the cases studied. Contingency fee lawyers only accept cases if they see the opportunity for an economic return: if the cases look like sound investments. As such, regardless of clients’ motives, contingency fee systems drive lawyers to evaluate their cases initially as investments and to constantly re-evaluate them in the same way. Moreover, as with defense counsel, plaintiffs’ lawyers, other than sole practitioners, are also judged by their peers and superiors based on fiscal considerations such as how much money they bring into the firm in legal fees and the amounts of settlements they are able to achieve. Judgments based on these considerations have a significant impact on lawyers’ own career trajectories, including election to partnership within their firms. Thus, economic realities of legal practice may have played a role in how the various legal actors in the study talked about plaintiffs’ motivations and litigation aims.” I will provide examples of things people said in my next post.

    The plaintiffs and defendants in the book did not have ongoing relationships. The cases were generally very serious and involved death of a parent or child, loss of sight, loss of limb, etc. However, other research I discuss throughout the chapters include similar findings in cases where parties did have ongoing relationships, such as family law and consumer cases.