Vol. 2 No. 2 (February, 1992) pp. 26-29
THE JUSTICE BROKER: LAWYERS & ORDINARY LITIGATION by Herbert
M. Kritzer. New York: Oxford University Press, 1990. 233 pp.
$35.00.
Reviewed by Mark Kessler, Department of Political Science, Bates
College.
In THE JUSTICE BROKER, Herbert Kritzer uses data collected by the
Civil Litigation Research Project (CLRP) to explore the role of
attorneys participating in "ordinary" civil cases
(cases involving $25,000 or less). Kritzer argues that a
sophisticated understanding of civil lawyers' work requires
transcending a conception of lawyers as professionals, selfless
servants who act autonomously, employing specialized knowledge
and skills gained through rigorous training to resolve disputes.
This conception must be supplemented by viewing civil lawyers as
brokers, self- interested intermediaries who resolve disputes
using informal, "insider" knowledge gained through
participation in relationships with other parties in litigation.
According to Kritzer, a "dual framework" that includes
both professional and broker roles is most fruitful in capturing
the complexity of lawyers' behavior and illustrates the tensions
and contradictions characterizing the lawyer's daily work.
This thin volume (176 pages of text, including over 50 tables and
figures) is largely, though not exclusively, a compilation and
synthesis of several previously published research papers relying
on CLRP data by Kritzer and his associates. These data were
gathered through telephone interviews with 1382 lawyers in five
judicial districts who had been involved in a sample of 1649
state and federal civil cases terminated in 1978. Kritzer
examines these data in order to identify aspects of lawyers' work
that correspond to the alternative role conceptions.
The book begins by describing four dimensions that distinguish
professionals from brokers: the nature of attorney expertise
(technical/formal for professionals versus insider/informal for
brokers), the role of the fee-paying relationship (not important
to professionals, very significant to brokers), the degree of
client control (low for professionals, high for brokers), and the
lawyers's position in relation to other actors (professionals
with autonomy versus brokers embedded in a web of relationships.)
The chapters that follow describe the data employed, types of
cases handled by attorneys in the sample (area of law, stakes,
parties), characteristics of attorneys (legal background,
experience, practice setting, attitudes toward work), relations
between lawyers and clients (how clients find lawyers, why
lawyers accept cases, how fee arrangements are decided upon and
discussed, control of litigation), relations between lawyers and
other parties (opposing counsel, opposing party, judge), the work
done by lawyers (use of "formal" and
"informal" legal skills, amount of time devoted to
cases, types of actions taken), relationship between fee
arrangements and the time and effort allocated to cases, and case
outcomes.
Kritzer's analysis indicates that the daily work of civil lawyers
"is a blend of the professional and broker images with...a
heavy tendency toward the broker image" (p. 167). Although
lawyers possess specialized
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knowledge gained in law school, they rarely use it in the
processing of civil cases. Briefs are filed infrequently, lawyers
make heavy use of standardized legal forms, and the level of
lawyer activity in typical cases is relatively modest. Kritzer
uses these findings to argue in a concluding chapter for the use
of para- professionals in the handling of many types of ordinary
civil disputes. His argument is bolstered by CLRP data suggesting
that, in the median case, lawyers allocate only 30 hours of their
time. In state court cases, which constitute the vast majority of
civil cases, lawyers allocate less than 20 hours to the
"typical" case. Consistent with the professional role
conception, lawyers act with considerable autonomy from their
clients. But lawyers are quite interested in receiving fees for
their services, are embedded in relationships with opposing
counsel, parties, and judges, and the fee-paying arrangement
(contingent versus hourly) structures the process by which
lawyers allocate time to cases. Throughout the book, Kritzer's
analysis is thorough, careful, and nicely qualified. His
considerable methodological skills are apparent, particularly in
chapters that examine the effects of fee- arrangement and case
outcomes. Moreover, findings are placed intelligently in the
context of previous work on lawyers and the legal profession.
Kritzer appears to extract the maximum amount of information on
lawyers' behavior and activity from the CLRP data. However,
limitations in the data, many of which Kritzer discusses
candidly, confine what can be learned about civil lawyers and, in
some cases, raise questions about the author's interpretations
and conclusions. CLRP's primary purpose was to examine various
stages in the civil dispute resolution process. Consequently,
CLRP employed the "case" rather than the
"lawyer" as the unit of analysis (Kritzer, 1980- 81).
Although CLRP collected an impressive amount of information
regarding attorneys in cases, these data appear to have been
sought to further illuminate processes of dispute resolution,
rather than to determine the precise role that attorneys play in
these processes. This may explain why many of the connections
that Kritzer seeks to draw between CLRP data and lawyers' role
conceptions are loose and, at times, forced.
Lawyers backgrounds (law school attended, experience) and
practice settings, for example, are not clearly related to
Kritzer's operational definitions of alternative roles. In a
similar way, it is difficult to understand how lawyers' responses
to a question regarding the relative importance to them of such
things as intellectual challenge, winning, making a decent
living, helping individual people with problems, and gaining the
respect of family and friends, sheds light on their role (p. 47).
Indeed, conceptual problems in the professional/broker
distinction itself render it difficult to interpret these
responses. Professionals may enjoy "making a decent
living," although this is not their primary motivation in
practicing law. They also may enjoy "helping individual
people with problems," although they do so by making
decisions on their own and through the use of specialized
knowledge. Brokers, on the other hand, may enjoy the
"intellectual challenge" of informally resolving
disputes, rather than the challenge of engaging in legal
research, writing briefs, and persuading judges and juries.
Kritzer shows that most lawyers believe that a reputation for
"thoroughness" characterizes the successful litigator.
But in response to another question, most lawyers did not seem to
enjoy the "planning and research" required for thorough
preparation. Although Kritzer never suggests that professionals
must enjoy all aspects of their work, he concludes that the
contradiction in responses between viewing thoroughness as a
desirable quality in
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a litigator and not enjoying planning and research "may be a
hint that the daily work of litigation is less the work of the
abstractly trained and oriented professional and more the world
of the streetwise and experienced insider, the broker" (p.
51).
CLRP data are weakest in exploring relationships between lawyers
and their "workgroups," crucial relationships for
distinguishing between professional and brokers. Although
recognizing some of the data's limitations, Kritzer suggests that
civil lawyers are "deeply embedded in a web of relationships
that influence services provided to the litigant-client" (p.
76). He constructs this "web" from lawyers' responses
to a handful of questions regarding previous relations with
opposing counsel, opposing parties, and judges. The questions are
so general (e.g., before you took this case, did you know the
lawyer for the opposing side on a personal basis, outside of
business?) that they provide no detail on the direction (e.g.,
"I know her well and dislike her" or "We ski
together on holidays"), intensity, value, or impact of these
relations.
CLRP's focus on cases leads Kritzer to look for explanations of
lawyers' activity exclusively in elements of the cases and
parties to the cases. While these factors are significant, the
explanatory frameworks can not incorporate findings from research
appearing since the design of CLRP that examine relationships
between local culture and civil dispute processes. Engel's (1984)
study of "Sander County" and Greenhouse's (1986)
examination of an Atlanta suburb, for example, suggest that
widely shared local norms play a large role in shaping the civil
dispute process and may help explain variations within and across
jurisdictions in lawyer and litigant behavior. Although the CLRP
collected data from five different jurisdictions, Kritzer does
not compare lawyer activity among them, choosing instead to
aggregate lawyers' responses. This choice creates the impression
that civil lawyers behave in similar ways, regardless of their
geographical location (in one of the few comparisons across
jurisdictions, Kritzer notes that past referrals from opposing
counsel are more frequent in the less urban districts (p. 70)).
The exclusive reliance on structured survey questions in this
study also limits what can be learned. In many areas, more detail
is needed -- the type of detail that one only acquires through
observation or in-depth interviews -- to interpret and make sense
of survey responses. Kritzer, for example, draws conclusions
about client control and lawyer autonomy from a survey question
asking lawyers and litigants to characterize their relationship
by selecting among several possible responses. Lawyers were asked
if clients (1) provided instructions followed by the lawyer, (2)
approved decisions made by the lawyer, (3) discussed issues with
lawyers, who then made decisions based on these discussions, or
(4) turned the case completely over to lawyers (p. 61). The
responses to such structured questions may mask important
lawyer-client dynamics. For example, the "broker" who
follows client instructions may frame questions to achieve
desired "instructions": "My twenty years of legal
experience tell me that going to trial is very risky. I've seen
some real disasters! But, of course, you make the decisions here.
What will it be?" And clients who believe they control the
lawyer's decisions may ask for advice (and follow it) every step
of the way.
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The absence of in-depth interviews and observations also raises
questions about Kritzer's argument that "the
professional/broker distinction actually captured the conflicts
that confront lawyers in their day-to-day work...Lawyers work in
a world that involves large elements of schizophrenia, regarding
both the expectations of lay clients and observers and the
economic realities that impinge on the routine work most nonelite
lawyers perform most of the time" (p. 166). Without
discussing these "conflicts," "tensions," or
"contradictions" with lawyers to assess whether they
experience them as such, no reliable conclusions may be drawn
regarding their significance. Indeed, I am not persuaded that any
of the following situations described by Kritzer as
"conflicts" are experienced in this way by attorneys:
lawyers are concerned about fee arrangements (broker), but
possess substantial autonomy in carrying out their work
(professional); lawyers are well trained and possess considerable
technical expertise (professional), but rarely go to trial or
file briefs (broker); lawyers believe that thorough preparation
characterizes the successful litigator (professional), but
dislike doing the work that thoroughness implies (broker). It is
unclear, then, whether the "tension" or
"conflict" discussed by Kritzer constitutes an
important element of the civil lawyer's consciousness or merely
has been imposed by the author as a result of his conceptual
framework.
Like much of the published work employing CLRP data, the clear
strength of THE JUSTICE BROKER is its description of civil
justice processes and the work that civil lawyers do in ordinary
litigation. Despite the limitations of CLRP data for addressing
the roles of civil lawyers, and although one may object to or
quibble with operational definitions and measures relating to the
conception of alternative roles, Kritzer makes a credible case
that civil attorneys involved in routine cases behave very much
like the solo practitioner, private criminal defense lawyer, and
legal services attorney described in previous research. Data
presented on such things as the amount of time lawyers spend on
cases, the infrequent use of legal research in the writing of
briefs and preparation for formal legal proceedings, and the
impact of fee- arrangement on lawyers' activity, constitute
significant empirical findings that may stimulate more
theoretically -guided research in the future.
REFERENCES
Engel, David M. 1984. "The Oven Bird's Song: Insiders,
Outsiders, and Personal Injuries in an American Community,"
LAW & SOCIETY REVIEW. 18:551-582.
Greenhouse, Carol J. 1986. PRAYING FOR JUSTICE: FAITH, ORDER, AND
COMMUNITY IN AN AMERICAN TOWN. Ithaca, NY: Cornell University
Press.
Kritzer, Herbert M. 1980-81. "Studying Disputes: Learning
from the CLRP Experience." LAW & SOCIETY REVIEW.
15:503-524.
Copyright 1992