April 6, 2015

Account for Anti-Lawyer Bias in Legal Malpractice Trials

By Dr. Ken Broda-Bahm:

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Attorneys know that, in the public’s eye, the profession isn’t winning any popularity contests. In a Gallup poll last year, only 21 percent rated lawyers’ ethics as “high” (16 percent) or “very high” (5 percent). This compares to 80 percent who say nurses’ ethics are high and 65 percent who say the same about doctors. Another poll (McGinn & Company, 2012) shows an average belief that 51 percent of lawsuits are frivolous and unnecessary. Two thirds also agree with the statement “Most plaintiffs’ lawyers suing big corporations exaggerate damage claims to win a big verdict or settlement.” To be fair, these negative views shouldn’t apply to all lawyers, since the public’s distrust is likely to focus most on litigators, and more specifically on plaintiffs’ attorneys in personal injury or products suits. But still it is safe to say that for anyone who has a “J.D.” after their name, it is likely that some of this negativity will spill over. 

So what happens when the lawyer is in the defendant’s chair in a professional negligence trial? Herbert Kritzer of the University of Minnesota Law School and Neil Vidmar of Duke University School of Law recently looked at that question. The study (Kritzer & Vidmar, 2015) is prompted by the observation that, compared to medical malpractice trials, there are proportionately few legal malpractice claims that make it all the way to trial. Looking at some venues, the authors note that medical claims are more common, but the ratio of medical to legal claims is fairly narrow: 1 to 1 ranging to 3 to 1. However, looking at cases that go all the way to verdict, the ratio is dramatically different, with medical malpractice verdicts outstripping legal malpractice verdicts by a ratio ranging from 12 to 1 all the way up to 36 to 1. That means that legal malpractice cases are far less likely to go to trial. There are several reasons why medical cases might be more trial worthy: differences in the insurance market, attitudes of judges and arbitrators, and typically lower damage amounts in legal cases. But one remaining factor serves as the focus for Kritzer and Vidmar’s study:  the settlement-driving perception that jurors will be biased against attorneys. Because they could find no evidence in support of that perception, the researchers devised a clever experiment to test whether there is a bias when the defendant is an attorney. The somewhat surprising answer: little if any bias. This post reports on the study and considers a few implications for legal malpractice trials. 

The Research: Measuring the Effect of Anti-Attorney Bias in Three Case Scenarios

It is fairly easy to trust a doctor: Based on our own need, we want to believe that doctors are worthy of that trust. Lawyers? Not so much. At least that is the perception. Kritzer and Vidmar wanted to test that belief by looking at whether jury decisions in legal malpractice cases are influenced by the public’s negativity toward lawyers. Answering that question in actual cases is difficult because every situation is going to be different, and there is a strong bias in the kinds of cases that are decided by jury versus a judge or an arbitrator. So the researchers decided on an experimental approach that took advantage of the “case within a case” that is common in legal malpractice trials. When a litigator misses a filing deadline, for example, the causation question to be resolved at trial is often whether the original claim would have prevailed in court if the lawyer had not missed the deadline. In evaluating the effect of the attorney’s negligence, then, the jury is really evaluating the underlying case. 

So Kritzer and Vidmar created an experimental and a control version of three case scenarios. The underlying claim focused on an auto accident, a sidewalk slip and fall, or medical malpractice. In the control version, the defendant was, respectively, the driver, the sidewalk owner, and the doctor. In the experimental version, the researchers simply added a plaintiff’s attorney who had missed a deadline, and made that person the defendant. The question is, with an otherwise identical fact pattern, will mock jurors be more likely to believe the original claim would have prevailed and more likely to award damages when the defendant is an attorney? 

They assigned a total of 1,157 respondents to the control (original defendant) or the experimental (attorney defendant) versions of each of the three fact patterns. The results varied a little depending on the topic. In the slip and fall case, there was a significant but modest tendency for higher damages when the defendant was the attorney. In the automobile accident case, there was a suggestion that the attorney-defendant version led to higher damages, but the differences did not turn out to be statistically significant. And in the medical malpractice case, there was no difference. They write, “We conclude that there is at best minimal evidence that the simulated jurors in this case were more plaintiff-friendly when the actual defendant was the plaintiff’s former lawyer.”

The Implications:  Account for Anti-Attorney Attitudes in Legal Malpractice Cases

When the case centers on alleged wrongdoing by a lawyer, juror attitudes are clearly important. But here are a few things to remember.

Don’t Assume the Worst

If the stereotype of deep hostility toward lawyers were true, we should see robust results in all three scenarios in the study, and not just modest results in one. It is fair to expect some bias, but as the authors conclude, “We would be hard pressed to argue that our study suggests that lay jurors want to punish lawyers by favoring plaintiffs in legal malpractice claims.”

 But Do Ask

Like every other important attitude, the role it plays will vary from case to case. So it is essential to voir dire for the anti-lawyer attitudes that would matter the most in the context of your specific case. Perceptions might vary depending on whether we are talking about the lawyer’s competence, care, thoroughness, ethics, or zeal. Ask prospective jurors how common it is that a lawyer would lack the quality plaintiff is alleging the defendant lacks in this case.

And Do Pay Particular Attention to the “Case Within a Case” 

One way to read the study results is that, in most cases, jurors are going to decide the legal malpractice case in essentially the same way they would have decided the underlying “case within a case.” In the actual case, particularly where liability is contested, it will be more complicated than that. But it is natural for jurors to gravitate toward the “first story” in the legal malpractice case: the trial or the deal that could or should have been.

Of course, none of that is going to stem the tide of lawyer jokes and the bias that goes all the way back to Shakespeare. But as widespread as those attitudes are, they can also be shallow. The more a jury is given a chance to learn about the individual lawyer-defendant and the specific representation, the greater the chance that the jury’s evaluation will be driven by facts and not by bias.

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Other Posts on Professional Malpractice: 

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Kritzer, H. M., & Vidmar, N. (2015). Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Trials. Duke Law School Public Law & Legal Theory Series No. 2015-15

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