Vol. 9 No. 7 (July 1999) pp. 306-308.


LEGAL ADVOCACY: LAWYERS AND NONLAWYERS AT WORK by Herbert M. Kritzer. Ann Arbor: The University of Michigan Press, 1998. 269pp.

Reviewed by Kevin T. McGuire, Department of Political Science, University of North Carolina at Chapel Hill.

What would America be like if there were no lawyers? The legal profession, of course, has a virtual monopoly on the practice of law in the United States; bar associations working in conjunction with state legislatures have seen to that. But what if the barriers to entry into that market were eliminated? Would nonlawyers seek to compete with professionally trained practitioners? Would the consumers of legal services turn to these nonlawyers for advice? And, to they extent that these entrepreneurs were able to provide the kinds of services that had previously been the domain of lawyers alone, what impact--if any--would it have on judicial outcomes?

These questions are not hypothetical. Indeed, they are at the heart of Herbert Kritzer’s penetrating empirical picture of the role of nonlawyers in the United States. Examining a number of judicial settings in which nonlawyers are permitted to appear and argue against bona fide practitioners, he analyzes the extent and impact of legal advocacy that is performed by those not formally educated in the law. The results are telling; they reveal that, despite their credentials, lawyers bring no special advantages to the courtroom. It turns out that expertise--not education--is the key.

Framing the analysis, Kritzer begins by positing a set of possible reasons for why litigants might benefit from formal representation. Lawyers, for example, have specialized education and the ability to recognize their clients’ best interests. Likewise, as regulated professionals, they can be held accountable for their actions. Determining whether these theoretical advantages actually benefit lawyers is the primary aim of the book.

To address these issues, Kritzer draws data from four specialized judicial settings in Wisconsin, where judges sit to hear disputes over unemployment compensation, income taxes, social security disability benefits, and labor grievances. In each of these forums, nonlawyer advocates are permitted to appear on behalf of individual parties, often going head-to-head with members of the bar. Depending upon the setting, these advocates will appear with surprising regularity, as they prepare evidence, examine witnesses, and argue cases.

As Kritzer surveys one substantive area after another, it becomes increasingly clear that the success or failure of a litigant turns more upon the expertise of one’s advocate than it does upon his or her formal education. Many of the "untrained" develop specialized practices, earning reputations with judges as highly capable representatives. In contrast, lacking either a command of the issues or a detailed understanding of courtroom operations, otherwise able attorneys flounder. Controlling for a number of relevant predictors, knowledge of the substantive area of the law and familiarity with decision-making procedures emerge as the most powerful explanatory variables. By itself, representation by a lawyer tells us little about a litigant’s chances of success. For instance, in the analysis of labor grievance arbitration--the strongest quantitative chapter of the book--Kritzer concludes that "it is not the simple lawyer/nonlawyer distinction that accounts for the difference. Rather, it appears to be more a function of specialization. Specialist nonlawyers and specialist lawyers appears to be better advocates than nonspecialist lawyers" (p. 185).

	One of the more appealing aspects of the inquiry is that Kritzer combines the use of archival data with first-hand observation. Not only does he assemble an impressive array of information for his statistical work, he also attends a full complement of judicial hearings, testing his empirical results by sounding out both judges and advocates. The excerpts from these hearings that appear in the book show experienced nonlawyers deftly handling judges and witnesses, while full-fledged attorneys, uninitiated to their surroundings, are seemingly oblivious to the court’s expectations.

Aside from these direct tests, Kritzer also provides a clever examination of the legal skills of nonlawyers by conducting an independent evaluation of their written briefs. Specifically, he carried out a survey of several different groups--law students, law professors, and lawyers, among others--in which the respondents were provided a sample of actual written briefs and asked to identify their authors as lawyers or nonlawyers. This strikes me as important, given that part of the argument in favor of maintaining the bar’s monopoly on legal services is that lawyers possess specialized skills that other advocates do not; if that were so, then it ought to be a simple matter to separate the stylized work of the well-trained from the roughly hewn of the unsophisticated. In fact, anywhere from 30% to 40% of the time, the respondents incorrectly identified the source of the brief. Thus, briefs crafted by members of the bar are frequently mistaken as mere pedestrian efforts, while the amateur briefs are often tagged as professionally prepared. This hardly makes an overwhelming case for excluding nonlawyers.

Based upon his investigation, Kritzer issues a call to eliminate the laws that restrict the unauthorized practice of law. If the practical knowledge about how to litigate is the key to success--and since that knowledge is typically not imparted in most law schools--then there is no reason to prevent nonlawyers from offering legal services. Taken on its own terms, the book provides a fairly strong basis for that claim.

The primary limitation, as I see it, is that Kritzer’s analysis is restricted to a rather small number of highly specialized venues. It is not clear that his argument--based on results drawn from a handful of small courts of fairly narrow jurisdiction in the state of Wisconsin--can be extended to the practice of law more generally. Of course, this is scarcely Kritzer’s fault; after all, there are relatively few places in which one might directly observe nonlawyers providing legal services in competition with members of the bar. Moreover, to the extent that similar allowances for nonlawyer advocacy exist in other states, I rather suspect that one would find comparable effects elsewhere. Still, while the author provides persuasive evidence that nonlawyers can work effectively in the courtroom, he does not speak as directly to the broader issue of legal advice. Can nonlawyers carry out the same set of responsibilities currently being performed by the legal profession, or is there something special about the domain of litigation that enables outsiders to succeed? Some skeptics will, I suspect, demand more empirical support before endorsing Kritzer’s call to eliminate the lawyers’ monopoly.

Regardless of whether, in the end, one agrees with Kritzer’s call for reform, LEGAL ADVOCACY is an important and compelling study of the ways in which legal interests are articulated in court. Since it convincingly shows that, to some extent, lawyers are not a necessary feature of the judicial process, it is sure to spark debate over the direction and future of the legal representation.

Copyright 1995