By Dr. Ken Broda-Bahm:
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.