Legal Profession

Australia is the home to some of the world’s most interesting and provocative legal profession developments.  For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms.  Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms.  As a result, Australia became the site of the world’s first publicly traded law firm.  Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.

As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons.  Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales.

Given the path-breaking nature of lawyer regulation in Australia and the global interest in these developments, Professor Christine Parker’s scholarship is particularly important.  Professor Parker’s prior work includes collaborations with academics from other countries and from other fields and with Australian government officials.  For example, one of her most influential lawyer regulation articles was jointly written with Steve Mark and Tahlia Gordon, who are regulators in the New South Wales, Australia Office of the Legal Services Commissioner: Regulating Law Firm Ethics Management: An Empirical Assessment of the Regulation of Incorporated Legal Practices in NSW, 37 J.L. & Soc’y 466 (2010).  This article has been influential because it noted an approximate one-third decrease in the rate of complaints against New South Wales practitioners who practiced in an incorporated legal practices structure and were subject to the New South Wales self-assessment regime for encouraging firms to actually put into practice “appropriate management systems.”

While a number of academics, included U.S. academics Ted Schneyer, David Wilkins, and Elizabeth Chambliss, previously have written about the expected benefits of implementing systems requirements and ethical infrastructure requirements – i.e., systems, – the Parker-Gordon-Mark article was useful because it included empirical research that indicated that proactive ex ante management systems can – in fact and not just in theory – reduce client complaints against lawyers.

Given the synergies that emerged from Professor Parker’s prior collaboration with Australian regulators, I looked forward to reading the Queensland Workplace Culture Check article, which was jointly written by Professor Parker and Lyn Aitken, who is the Policy and Research Coordinator for the Legal Services Commission in Queensland.  I was not disappointed by their collaboration.

In recent years, there has been a significant amount of scholarship that focuses on what has been called the “ethical infrastructure” of law firms.  Scholars have discussed and debated the recommended structure and potential impact of such systems on lawyer and law firm behavior, but there has been limited empirical data.  This article is situated within this broader theoretical debate, but provides a significant contribution to the literature by collecting and analyzing data that considers the operation – in practice – of various firms’ ethical systems.

The article begins by explaining the origins and methodology of the 2009 Workplace Culture Check Survey which the Queensland Legal Services Commissioner asked fifteen law firms to complete.  The article continues by explaining why the survey data allows one to draw reliable inferences about ethical infrastructure issues despite the fact that the survey was designed with a different purpose in mind.  One of the most striking aspects of the data that Aiken and Parker present – or perhaps not so striking to those who have been in law firm environments – was the very different ways in which junior and senior lawyers viewed the ethical infrastructure systems.  For example, there were significant differences in the level of awareness of formal ethical supports and significant differences in their perceptions about whether anyone had been disciplined for unethical conduct within the past five years.  Professor Parker and Ms. Aiken discuss the implications of this data and suggest concrete changes that might support ethical compliance within law firms, such as greater use of instruments such as the Workplace Culture Check to ensure that more junior lawyers are socialized into firms cultures that encourage ethical discussion and action and as a tool for regulators to decide where they might most effectively focus their attention.  Parker and Aiken also used this study and the results that emerged to identify avenues for additional research.

This article is important in several respects.  First, for those interested in lawyer regulation in general and the ethical infrastructure issues in particular, this article provides not only theoretical grounding, but useful empirical data combined with rigorous analysis of that data.  Second, for those who have not traditionally been interested in lawyer regulation issues, this may be the right time to develop such an interest.  Although Australia was the first jurisdiction to have publicly traded law firms and pioneered the use of “appropriate management systems” to create ethical firm infrastructures, it will not be the last such jurisdiction.  Given the number of law firms that have both London and New York offices and U.S. lawyer imputation rules, these English developments are likely to have an even broader impact than the Australian developments.  Indeed, some claim that the 2007 U.K. Legal Services Act and the pending launch of ABS-firms will have the same magnitude of impact as did the UK financial markets’ Big Bang.  Although the Solicitors Regulation Authority had not yet issued any alternative business structure (ABS) licenses at the time this review was written, such licenses are imminent.  Moreover, even the SRA has noted its surprise at the large number of ABS applications it had received.  Blogs and news sources report interest in, or applications from, entities that include a private equity fund, a financial services firm, an insurance company, and the claims handling division of Telecoms giant BT, along with an application from Australia’s leading publicly-traded firm and an application from an affiliate of DLA Piper.  In my view, the UK and Australian developments have fundamentally and permanently changed at least the outward shape of the practice of law. Global developments have a habit of seeping beyond national borders. Thus, in the future, it will be increasingly important for all lawyers and scholars to understand not only the theory but the practice of how one can go about creating an effective ethical infrastructure for lawyers and law firms.

The final lesson to be learned from this article is a reminder of the useful collaboration that can take place between academics and regulators.  In both New South Wales and in Queensland, Professor Parker has persuaded the regulators to collect and share data with the academic community.  The resulting cooperative relationship benefits scholars, regulators, and the public.  It contributes to a better understanding of how regulation works in both theory and practice.  In this respect, the Queensland Workplace Culture Check article is worthy of emulation.

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Section Editors’ Note: Regarding emulation, the UK Legal Services Board has instituted an initial study that might lead to similar kinds of intra-firm ethical monitoring and evaluation.

As a current PhD student, whose research interests include legal professionalism and large law firms, I wish Andrew Francis’ latest book had been written several years ago. In just 228 pages, the book positively canters through many of the research themes I spent months compiling for my own literature review.

For example, by the end of chapter one, a novice reader will be made aware of the size, entry routes and recent reforms to the English and Welsh legal market, to name but a few topics. By the end of the first page of chapter 2, the reader will be introduced to many historical, and current, writers on a range of issues relating to legal professionalism – no mean feat in a mere 20 pages.

However, these topics – while useful in their own right – are not the central aims of Andrew Francis’ book. Rather, the subjects discussed in the first two chapters act as a springboard for his discussion of the two topics alluded to in the book’s title. That is, an examination of the where the “edge” of the English and Welsh legal market currently lies. And, secondly, as a review of shifting nature of legal professionalism itself – albeit almost exclusively from an English and Welsh perspective.

To some extent, the book’s contents page (available here) provides an early indication of where Francis believes the “edge” of the English and Welsh legal market currently lies. However, this definition is made more explicit on page seven of the book’s introduction. Firstly, Francis suggests that “many of the actors considered in this book” are ‘cutting edge’ in the work they do, challenging accepted practices and patterns of behaviour in the field.” His second definition describes those who are ‘edgy’ – “displaying status anxiety or identify dissonance about their place in the professional field”.

On a purely practical level, the very specific focus of Francis’ book may limit its potential audience, even amongst those interested in studying the world’s legal professions. Notwithstanding the first two chapters’ excellent introduction to the nature of contemporary professionalism – which will appeal to readers from any jurisdiction – relatively little of this book is given over to a discussion of issues surrounding contemporary professionalism in relation to “mainstream” providers of legal services in England and Wales – i.e. solicitors (barristers are not discussed at all). Rather, Francis’ book will arguably only make sense to those who already have a sound understanding of where the mainstream of legal practice / legal professionalism in the England and Wales currently lies. It is only by understanding this mainstream will Francis’ debate about the nature of professionalism at the law’s “edge” make sense.

Turning to the individual chapters themselves, several are devoted to the second of his stated research themes – that of “edgy” legal professionalism. Here, Francis’ main interests is the way in which the English and Welsh legal profession continues to exercise an (albeit) weak form of social closure – that is,  the profession continues to influence which people it “allows” to join its ranks. For example, chapter three focuses on the way in which large firms continue to use a variety of techniques to consciously (or unconsciously) exclude potential recruits who have an unconventional educational or career background. This theme of exclusion and marginalisation is also carried over into chapter four, which examines attitudes to towards the “third” (i.e. not typically regarded as being part of) branch the English and Welsh legal profession – Legal Executives. Here, Francis examines both the subservient regulatory status of the Institute of Legal Executives relative to the Law Society, and also the (perceived) lower status of Legal Executive practitioners relative to solicitors.

After a somewhat standalone chapter on cause / activist lawyering (chapter five) – which is arguably the only chapter which substantially deals with Francis’ first stated aim of discussing “cutting edge” approaches to delivering legal services – chapters six and seven return to the concept of “edgy professionalism”. Here, chapter six operates as a case study of the Society of Trusts and Estates Practitioners (STEP), while chapter seven examines the charging governance structures relating to the English and Welsh solicitors’ profession.

If one was to crudely summarise and contrast these two chapters, one would say that the STEP chapter describes the “bottom up” process by which a private organisation has begun to talk on some aspects of a professional body, notwithstanding the fact that its membership comprises a diverse range of professions, working in numerous locations in addition to the UK. By contrast, the chapter focusing on the Law Society tells a story of the declining importance of the organisation – largely the result of top-down, legislation-imposed, structural change as a result of the Legal Services Act 2007. Telling, the chapter concludes (page 160) by saying the Law Society is “no longer to fulcrum of professional advancements” or the “primary driver of the collective mobility project.”

Overall, given the usefulness of the book as a reference source, and the large number of themes examined in a relatively brief number of pages, one feels churlish for drawing attention to some of its possible shortcomings. Nevertheless, I felt there were three aspects of the book which prevented it from providing as comprehensive a guide to the “edge” of legal professionalism as it otherwise could have been.

The first challenge relates to Francis’ self-imposed boundaries of the “edge” of law, in terms of which legal service professionals he examined. As early as page eight, he admits he made a conscious decision not to discuss barristers, claims management firms, will writers and immigration advisors, in addition to Legal Executives or STEP members. Francis’ justifies his case history selections by stating that “they all represent different examples of the way in which ‘the edge’ operates as a feature of legal professionalism”. More specifically, “the in depth analysis of legal executives, a largely ignored branch of the legal professionalism, demonstrates the attempt of an aspirant occupational group to deploy many of the traditional strategies of professional advancement yet remain locked at the edge of the law.”

The use of individual case histories to illustrate a wider point is, of course, a perfectly valid approach to research. On a personal note, I confess that, before reading Francis’ book, I had never considered either legal executives or STEP members to be part of the English and Welsh legal market – so the book did change my perceptions of where the law’s “edge” in this country correctly lies. Nevertheless, I did feel that the sheer number of potential legal professionals Francis omitted to study in this book means that it can only be regarded as a partial examination of the true outer “edge” of the English and Welsh legal market.

My second issue with this book is that relevantly little space given over to Francis’ second stated aim: discussing those at the “‘cutting edge’ legal service delivery, challenging accepted practices and patterns of behaviour in the field”. As already mentioned, chapter five is probably the best chapter (if not only) chapter to discuss this topic. What’s more, given the imminent arrival of truly innovative alternative providers of legal service – made possible by the Legal Services Act, I cannot help but feel that Francis’ perception of what amounts to a “cutting edge” of legal practice will (very rapidly) become not particularly cutting edge at all.

The final challenges relates to his attempt to devise a new coherent narrative to explain the “fluidity, fragmentation and heterogeneity” (page 172) of the modern legal profession – discussed in the book’s final chapter, chapter eight. Given that chapters four, six and seven of his book (in particular) spent a large amount of time discussing contradictory trajectories of professionalism, it is arguable that his new idea, that of “contingent legal professionalism” is little more than a shorthand phrase for “documenting chaos”.

Of course, this is not a fact that Francis shies away from. Indeed, even the book’s title “emergent and divergent models of legal professionalism” provide an early clue to his findings. Furthermore, his explicitly justifies his stance as early as page 33, stating that: “The contingency of the framework that I develop in this book is not nervousness about nailing my colours to the mast of a grand narrative.” Rather, his approach aims to describe: “a model of professionalism that shifts and changes according to the markets’ / field’s needs at any one time; a model of complexity.” (page 172).

In other words, the fact that his book does not include a grand narrative about trends in the contemporary legal professions appears to be due to the fact that, having examined the evidence, the main conclusion that Francis was able to draw was that nature of contemporary professionalism is even more fluid and uncertain than was previously thought. What’s more, the more that the debate about the nature of legal professionalism pushes out towards the law’s outer “edge”, the more fluid and uncertain the concept the nature of legal professionalism becomes.

In the glamorous/murky/elite/financially rewarding world of commercial law is it clients or lawyers who are the bad guys?  Put another way, does business corrupt law or do lawyers corrupt business?  This is the question that lies at the heart of Parker, Rosen and Nielsen’s paper.   Since the Savings and Loan scandals via WorldCom, Enron and latterly UK’s own Hackgate, corporate wrongdoing is often accompanied by the question, Where were the lawyers?  And as Big Law turns increasingly, well, ‘big’, the “is law a business or a profession” question is posed increasingly nostalgically, usually with deliberate exaggeration and answered only with speculation rather than evidence.  It is refreshing, therefore, to report on a study which is deals with the relationship between law and business empirically and with imagination which also deals with conceptually important questions.

Indeed, it is a central premise of professionalism that lawyers that they apply their specialist knowledge in the public interest.  That is lawyers should act to encourage lawfulness on the part of their clients.  They should encourage compliance.  Professional ethics courses tend to concentrate on the idea that it is a Holmesian ‘bad man’ client that pushes lawyers into ethically grey areas.  In particular that client (usually a businessman or criminal defendant–sometimes both) exploits a lawyer’s duty to zealously defend their client’s interests.  Corporate clients, as sophisticated players, with deep pockets and repeat business on offer, are able, so the theory goes, to corrupt their lawyer’s into finding ways of playing the system to the client’s advantage.  In simple terms the theory is lawyers good/clients + markets bad.  And, of course, markets win.  Parker and her colleagues ask the question: Is this an empirically testable proposition? And, once tested, is it an accurate proposition which is borne out by the evidence?  For those of you with short attention spans the answers are yes it’s testable and no, it’s not an accurate proposition.

Ingeniously, the study separates out lawyer attitudes to compliance and business client attitudes to compliance and then looks at how those businesses use those lawyers.  Do those who use lawyers value compliance more or do they, “exhibit a more resistant or game-playing approach to compliance?”  The answer is both: “Some businesses that use lawyers more value compliance more, while others exhibit a more resistant or game-playing approach to compliance.”  It is the latter part of the study which is particularly interesting.  It seeks to determine what influences clients towards one strategy or the other.  To a degree it is client choice: “clients generally pick lawyers who are aligned with the client’s commitments to compliance, but that some lawyers also influence their clients to take a legalistic, game-playing approach to law. Clients who are committed to compliance hire lawyers to help promote compliance in their organizations, and those who are committed to resistance hire lawyers to resist compliance.”

So there is some truth in the claim that a number of clients are Holmesian bad-men who then pick lawyers who will be likely to adopt their strategy of resisting or avoiding compliance with the law.   Clients + markets pick (or lead to) lawyers who are bad (if one accepts that resisting and avoiding compliance is bad, a topic much debated by adherents to zealous advocacy theses in corporate contexts).  Crucially, however, they go on to consider the extent to which lawyers contribute to, or ameliorate, the extent of the problem: taken as a whole do they tend to nudge clients towards compliance or avoidance?  Parker et al indicate, “Our data suggest that to the extent lawyers influence clients, it is towards game-playing, not commitment to compliance or resistance to compliance.”

Thus, to the extent that lawyers exert any moral agency they seem to be tending towards an unethical rather than an ethical position: “lawyers supply services that incline clients to increasingly accept legal risk and adopt a gamester approach to law and regulation.”  This is only one study, of course, and it is confined to Australian firms’ compliance with consumer and competition regulation, but it throws important and critical light on a key assumption behind the professionalization thesis. In the UK, the debate manifests around Alternative Business Structures and assumes that lawyers are more ethical than external owners.  This looks more questionable after this study.  In the US, and elsewhere, lawyers are seen as potential regulators of business as ‘gatekeepers’–virtuous proponents of probity.  Parker, Rosen and Nielsen remind us of the possibility that sometimes clients want their lawyers to be good, and (worryingly) sometimes their lawyers talk them out of it.

 

Two years ago I had an opportunity to attend the “Future(s) of Professional Services Programme” organized by Harvard Law School and Oxford Said Business School.  It was a terrific conference in many respects, not least for its interdisciplinarity, bringing together scholars from business and law whose work focused on professional service firms. As a lawyer studying law firms in the context of globalization, the insight of the business scholars was enlightening: by placing law firms in the larger context of professional service firms and by bringing the framework of management and strategy to bear on the study of law firms, legal scholars gain a new perspective from seeing the same picture from a different vantage point.

In truth, conversations with law firm leaders and others that have informed my own work on globalization and the legal profession indicate that decisions about law firm globalization and strategy are neither so clean nor logical as some of the management and strategy school research suggests. Rather, law firms’ activities with regard to globalization often are as much reactive and opportunistic as strategic. Nonetheless, the analysis of the business school scholars reflects the reality of regulation outside of the US, in that regulators involved in international as well as foreign regulation of their domestic legal profession increasingly are not trained as lawyers and have little incentive to treat lawyers particularly differently than other professional service providers (see, for example, Laurel Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”).

Listening to my fellow conference participants explain their analyses of what law firms were doing, I came away thinking that their explanation of what should happen with regard to law firm strategic decision-making was spot-on, even if not completely convincing as capturing the reality of what actually was happening. It is clear that lawyers and law firm leaders — particularly in the US — have much to learn from getting outside of their own skin, both from those who study their organizations and work from another perspective and from those whose work focuses on the work of lawyers and law firms from other countries. I worry that lawyers and law firms in the US may not engage sufficiently with these external frameworks to consider the ways in which the distinctive approaches in the US support or undermine competitiveness.

A new article by Susan Segal-Horn and Alison Dean revives these lessons, providing insight into the topic of global strategies for elite corporate law firms. In The Rise of Super-Elite Law Firms: Towards Global Strategies, Segal-Horn and Dean consider the drivers of globalization for law firms as well as the question of what firms should pursue as global strategies. Their work is informed by in-depth interviews with lawyers at three of the top ten UK-based global law firms as well as a smattering of clients (PP. 201-202), and structured within the framework of “global industry drivers.” (P. 195.) In this way, they consider law as any other industry; that is, they approach law in the same context as the study of non-law firms in which management and strategy are considered crucial for leadership and decision-making.  This allows the reader to view the legal profession and law firms through an outsider’s perspective.

Segal-Horn and Dean approach the question of whether elite corporate law firms should pursue a global growth strategy by considering four areas of influence: market drivers, competitive drivers, cost drivers and government/regulatory drivers. Each area is further divided into forces that push towards globalization (“globalization enablers”) and those that inhibit global growth (“globalization inhibitors”). (PP. 203-209.) In all but the government/regulatory area, the enabling factors outweigh the inhibitors, pointing toward globalization as a sound strategic choice. According to Segal-Horn and Dean, the reason “super-elite legal firms invest[] in global strategies . . .  is about long-term competitive advantage. The globalizing firms are making a specific bet on the nature of the development pathway of the industry and therefore on what will matter in this industry in the near future.” (P. 210.) Regulatory barriers are acknowledged by global firms in their “develop[ment of] strategies which allow them to overcome local regulations on who can practice where.” (P. 210.) Their analysis is perfectly consistent with staffing patterns in global firms, where the norm is for lawyers to be educated and licensed in the jurisdiction where they practice (Silver, DeBruin Phelan & Rabinowitz, Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Global). In considering incentives and barriers to globalization, the authors’ approach in situating regulation simply as one of four forces shaping strategic decision-making is a useful construct for placing law in context, although may not be the emphasis placed on regulation in an analysis by lawyers. Their approach also will be useful for law firms in reconsidering global strategies in light of changes since the economic downturn.

I am left wondering how a similar sort of outside-looking-in framework for analysis might usefully be applied to legal education, another segment of the legal profession in the US facing substantial challenges. In simply identifying relevant elements within each of the four industry drivers, our understanding of the influences shaping decision-making might be sharpened. While it is common among critics of US legal education to point to medical and business schools as models for the direction law schools should follow, little analysis of the relative merits of each system have been offered; even less attention in this regard is focused on legal education regimes in other countries. But in looking outside of our own system, whether to the education of other professional service providers or of lawyers in other countries, useful lessons may be learned about our place in an increasingly competitive market.

Milton Regan has chronicled the troubled times of law firms before in Eat What You Kill: The Fall of a Wall Street Lawyer (2004). On both occasions the firms appear to have undergone profound changes in culture that have eventually destabilized them and either wrought dire consequences for the lawyers or caused the death of the firm. Regan is a methodical obituarist.

He ascribes two underlying causes to these cultural shifts. One is the tenuous hold a law firm has on its share of the market. Lawyers might move taking clients with them or new specialist firms might aggressively shift into an established market drawing business away from others. The firm’s mix of top quality work may get diluted with less valued work. The second is the organizational dynamics of the law firm. Law firms operate under continuing centrifugal forces as practice groups proliferate and new rainmakers join putting management in the position of persuading and cajoling others to stay. Emmanuel Lazega refers to these factions as composing a Montesquieu structure of interlocking competing networks. And there is the everpresent problem of ethical fading—lawyers inured to certain liminal behaviours—when lawyers may no longer realize how their behaviour may be characterized. There are two absences in Regan’s analysis: one is the role of regulation and its interaction with ethics and the other is the rise and domination of the professional services firm.

The law firm has become emblematic of the modern legal profession. Since the Cravath system came to idealize the growth and functioning of the law firm in the 20^th century, its development has been both inexorable and upward (Galanter & Palay; but cf. Wilkins & Gulati). Since the 1990s law firms have sought to recreate themselves as global entities competing with other global professional service firms (Flood).  For some this has entailed developing firm-specific capital (e.g. Skadden Arps [Caplan]) while for others it has meant a futile quest for dominance and riches (e.g. Finlay Kumble [Eisler]). In the 21^st century law firms are evolving into quite sophisticated professional service firms (PSF) with highly developed corporate structures. (See Morgan & Quack.) This situates Regan’s tale in an intermediate space between old-style lawyering and new-style conglomerate practice. We can read this story as the death rattle of the ancient regime.

Jenkens & Gilchrist was a small but high-end law firm in Texas with desires to grow, especially into New York. But its profits per partner (PPP) were insufficient to attract the best lateral hires even though by Texas standards it was successful. (See Sida Liu’s review of profits.) Having been through a bad spell in the early 1980s the firm had rebuilt itself but it remained at heart a regional law firm. Then enter stage left Paul Daugerdas in 1998.

Daugerdas was a lawyer and an accountant who had worked for Arthur Andersen and Altheimer & Gray where he had developed a tax shelter practice. (Both of these firms have subsequently folded.) He claimed he could bring in a book of business worth $6 million a year and moreover he wanted to be compensated based on his revenues, not those of the firm. After much argument over Daugerdas himself and the legitimacy of his work he was taken on. In his first year at Jenkens he generated $28 million in revenue, the firm’s PPP rose and the firm went from 77^th to 57^th in the AmLaw 100.

Within a couple of years of hiring Daugerdas the Office of Tax Shelter Analysis was formed by the government and the IRS went hunting for taxpayers who had bought illicit tax shelters. Jenkens & Gilchrist soon came within range and found itself mired in investor litigation which resulted in a multi-million dollar settlement against the firm. Despite this Jenkens was also investigated by the US Attorney’s Office in Manhattan and found itself rapidly losing lawyers—from 600 in 2001 to 144 in 2006. Once the firm had admitted that it had marketed fraudulent tax shelters the end was ineluctable. Jenkens paid a $76 million penalty and went out of business in 2007. Moreover, approximately 1,400 investors advised by Jenkens owed interest and penalties. Daugerdas, himself, went on trial for fraud in March 2011.  (See indictment here.)

Regan examines the case of Jenkens & Gilchrist in the light of competition dynamics and cultural segmentation. Jenkens was fortunate to find itself in a field of work which paid by the percentage rather than the hour, could be repeated, and also to an extent could be protected from external view. Competitively, Jenkens was ready to move into new and lucrative markets.

Inside the firm, however, it was known that there was risk attached to hiring Daugerdas but not how much. First, there was the question of the legitimacy of his practice and the risks it posed to the firm if challenged by the government. Jenkens seriously under-estimated the force of the IRS attack. Second, Daugerdas’s role in Jenkens was fraught in that he demanded his own compensation structure and that he wouldn’t necessarily be bound by firm policies. He was, in effect, a solo practitioner within the firm based in another office which was outside management’s control.

I have deliberately referred to Regan’s story as an obituary, one not just of a particular law firm but more of a dying old guard—a fossilized nomenklatura who are being replaced by sophisticated siloviki.The new corporatized professional service firms (Faulconbridge & Muzio)are less beholden to maverick leaders than to committees, risk managers (vide Enron and Andersen), and to potential external investors as liberalizing regulatory reforms course through the world. It is important to understand how (r)evolution in professionalism occurs so we can understand the new structures that are appearing before us. Many are based on the new emerging forms of regulation at national and global levels. These have come about through anti-competition authorities pursuing a free market agenda in respect of professional services and firms. One example is the introduction of outcomes-focussed regulation in the UK by the Solicitors’ Regulation Authority. (See Chambliss on regulators and ethical culture, the Legal Services Board “rationale of regulation”.) Although US lawyers might like to think that they will remain immune from foreign incursions into their self-governance, they are seriously mistaken as Laurel Terry’s work on GATS has shown.  How quickly and to what extent the US legal profession will find itself bound up in the new professionalism is open. Yet, in this respect, Regan’s story is a cautionary tale of a law firm’s collapse in the face of the expanding regulatory state.

References

Caplan, L. 1994. Skadden: Power, Money, and the Rise of a Legal Empire. Farrar, Straus & Giroux.

Eisler, K 1990. Shark Tank: Greed, Politics, and the Collapse of Finley Kumble, One of America’s Largest Law Firms. Beard Books.

Faulconbridge, J & Muzio, D. 2008. Organizational Professionalism in Global Law Firms. 22 Employment and Society 7.

Flood, J. 1996. Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice. 3 International Journal of the Legal Profession 169.

Galanter, M & Palay, T. 1991. Tournament of Lawyers: The Transformation of the Big Law Firm. University of Chicago Press.

Lazega, E. 2001. The Collegial Phenomenon: The Social Mechanisms of Cooperation Among Peers in a Corporate Law Partnership. Oxford University Press.

Morgan, G & Quack, S. 2006 Global networks or global firms? The organizational implications of the internationalisation of law firms, in Ferner, A et al, eds. Multinationals and the Construction of Transnational Practices: Convergence and Diversity in the Global Economy, Palgrave Macmillan.

Regan, M. 2004. Eat What You Kill: The Fall of a Wall Street Lawyer. University of Michigan Press.

Terry, L. 2010. From GATS to APEC: The Impact of Trade Agreements on Legal Services. 43 Akron Law Review 875.

Wilkins, D & Gulati, M. 1998. Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms. 84 Virginia Law Review 1581.

In many respects, law practice involves a brave new work of global lawyering.  On a daily basis, lawyers from Main Street to Wall Street represent clients with transnational legal needs.  At the same time, lawyers face pressure to reduce the costs of delivering legal services.  Cost containment initiatives include outsourcing legal work to subcontractors who provide services at a lower cost.  Whether legal work is sent to Indiana or India, outsourcing results in less personal connections between clients and the lawyers who originally were retained to handle the representation.  Increasingly, in-house counsel unbundle the corporation’s legal work, dividing the work among numerous law firms rather than relying on one firm to meet needs on a full-service basis. For many, these trends threaten the very fabric of the trust relationship between clients and their attorneys. In his forthcoming article, Big Law and the Marginalization of Trust, Professor Robert Vischer examines the role of trust in the current climate and economic reality of global lawyers. As the title suggests, the article considers whether trust is a casualty of the trends in the structure, operation, and regulation of law firms. Rather than simply declaring trust dead, Professor Vischer persuasively explains why trust is of vital importance to lawyers, the clients we serve, and society.

The article is particularly interesting in providing context for understanding the concept of trust and the role it plays in professional relationships. Professor Vischer starts by discussing the nature of trust and the difference between cognitive and affective trust, referring to the definition of trust as a “state of mind that enables its possessor to be willing to make herself vulnerable to another—that is to rely on another despite a positive risk that the other will act in a way that can harm the trustor.” (quoting  A Cognitive Theory of Trust by Claire A. Hill and Erin Ann O’Hara). The discussion of vulnerability is particularly timely given that a few experts have urged the 2020 Ethics Commission to consider adopting separate ethics rules to regulate large law firms that represent sophisticated clients who can presumably protect themselves and are therefore not vulnerable. This relates to Professor Vischer’s observation that different potential clients may require different degrees and manifestations of trust.

Professor Vischer examines the trends that strain the viability of what he calls “relational trust” between lawyers and their clients. These trends include globalization, the “disaggregation” of legal services, the rise of in-house counsel, the decline of self-regulation, and the multi-disciplinary practice of law. With each of these trends Profess Vischer considers the effect on trust as an attribute of the attorney-client relationship and the impact on the relationship. For example, what are the personal and professional liability implications for an attorney representing clients from around the world? Such clients may not be reluctant to sue the attorney for malpractice because the clients do not feel connected to the attorney. As pointed out by Professor Vischer, the lack of face-to-face interactions is not conducive to trust and trust diminishes as social distance increases. This risk reminded me of my own experience with a client representative who I knew only through telephone and electronic communications.  When the relationship was tested because of allegations by opposing counsel, I believe that the client may not have fully embraced my account of the situation. Since that time, I have wondered if the client’s assessment may have been different had the client and I had a stronger professional relationship.  Clients who don’t know their attorneys beyond a signature line on an email or a voice on a telephone conversation may be more inclined to sue their lawyers for malpractice. Findings from studies related to medical malpractice claims reveal that patients are less inclined to sue physicians when there has been good communication with patients, even when medical error occurs. Communication and interpersonal dealings help build trust between clients/patients  and their service providers. With heavier reliance on electronic communications and greater distance between clients and their attorneys, attorneys need to be intentional in taking steps to cultivate their relationships with clients. In this sense, fostering trust improves the quality of representation for clients, while lowering attorney’s liability exposure.

Fostering trust also promises to enhance attorney sense of professional fulfillment.  A close trust relationship with clients moves the attorney down the continuum from technician to valued shepherd and counselor.

A final aspect of trust relates to the professional relationships among attorneys, especially those who work together in law firms. On a daily basis, newspaper articles and internet posts bemoan the decline of collegiality and professionalism within firms. Associates condemn law firm managers who lay off associates rather than reducing profits per partner. Partners criticize associates when they act in a disloyal manner, such as when associates disclose proprietary firm information on popular websites.  Partners also lament when lateral moves disrupt the stability and economic foundation of their law firms. With lawyer mobility and disputes, lawyers question whether there is anything “firm” about law firm practice. Lawyers may not trust one another when their relationships with other firm lawyers appear to be temporary associations rather than long term commitments. As a result, lawyers may yearn for the revitalization of the traditional approach to partnership in which lawyers are committed to and trust their partners.

Thanks to Professor Vischer for providing a thorough analysis of the current trends that strain the attorney-client relationship. He gives readers an opportunity to seriously consider the role of trust plays in productive relationships.  As he persuasively asserts, trust not only matters, but is essential distinguishing feature of an attorney-client relationship.

Dr. Christopher Decker and Professor George Yarrow are economists at the Regulatory Policy Institute, Oxford, who were commissioned to consider the “case for regulation” and the role of professions in the legal services market in the UK. Their report appears at a time when the professions in England and Wales are in the midst of a quiet revolution, precipitated by the Legal Services Act 2007 (LSA). The Act places a range of professional groups, from the mainstream solicitors and barristers to the more esoteric trade marks and patent agents, under the purview of the Legal Services Board (LSB), an “oversight regulator.” This means that the professions retain a large measure of regulatory control, over ethics and education for example, but that they, and the LSB, must pursue statutory objectives.

While much of the theory that Decker and Yarrow refer to is familiar to scholars of the legal professions, in Rick Abel’s work for example, it is valuable for scholars of professions and legal services to see the argument through the prism of another discipline. The report is accessible to those without an economics background and might therefore provide a better foundation for dialogue between lawyers, economists and others than presently exists. This potential to stimulate debate is not purely parochial. Although the report uses examples of the practices of the English professions, the general approach is an “in principle” analysis of the rationale for regulation. Such a study might undermine the basis of legal professionalism, but it might also doubt the rationale for regulation per se, even public regulation by an oversight regulator. Decker and Yarrow do not disappoint in this regard, but also point to the limits of economic analysis in answering the questions they were posed.

The LSB has statutory duties that appear to compete, for example promoting consumer interests and a strong and independent legal profession. In the two years it has been operating, the LSB has worked hard to navigate this difficult terrain. While economics informs other analyses of legal services provisions in England and Wales, it is unusual for regulators to fund theoretical projects. Commissioning a report that examines the economic rationale for regulation, that questions fundamental assumptions, is symptomatic of its open approach.

A particularly impressive feature of the report is a willingness to concede ambiguities and limits of economic analysis. Early in the report Decker and Yarrow concede that most of the economic analysis of legal professions and legal markets is in the tradition of modern neo-classical economics (MNC). This approach theorizes an efficient market equilibrium achieved by perfect competition. One of the features of the model is that any situation that does not conform to the unrealistic assumptions of the model is labelled a “market failure.” This, the authors suggest, is a common analytic misunderstanding. Rather, because MNC is an abstract theory, scarcely applicable to concrete situations, it has limited explanatory power.

While MNC has severe limitations, it is the foundation of public interest theories of regulation, which assumes capacity to correct market failures. In fact, it cannot. Decker and Yarrow argue that “market failures” such as information asymmetries between suppliers and consumers are too difficult or expensive to eradicate completely. In fact, they suggest reputation, one of the main priorities of professions and professional firms, is one of the most effective means of mitigating the impact of information asymmetry. Therefore, distinctions such as Queen’s Counsel (QC), awarded to elite advocates, are ambiguous. Challenged by the UK competition authorities as a restrictive practice, the QC fudge could also be seen as a reputational indicator helpful to consumers. For example, see Joel Poldony’s  sociological study of market competition.

Decker and Yarrow’s report suggests that the regulatory experiment in the UK is largely built on political conviction rather than economic facts. In fact although they find no evidence of cartelization or other anticompetitive practices among UK lawyers, the assumption of regulatory policy in the UK is that professions, left to their own devices, will favor their own members over members of the public. Indeed, Decker and Yarrow point out that changing regulation is often a way of shifting market advantage from one group to another.

The rights or wrongs of government intervention in the legal services market may not be the main point of Decker and Yarrow’s report. Rather they are considering whether any regulation of the market is necessary. Their starting point for an affirmative answer is that the provision of legal aid points to legal services being a necessary “social good,” and therefore, like public utilities, worthy of regulatory effort. This analogy, however immediately breaks down. Legal services, unlike gas or electricity, are not capable, for example, of being organized so as to facilitate cross subsidy. Large commercial firms at one end of the market make huge profits while legal aid firms at the other, are, increasingly, going out of business.
The decline of the legal aid sector in the UK points to the central problem in legal services regulation. Government no longer trusts that legal services suppliers (lawyers, as we used to call them), will take enough from transactions with consumers to ensure efficient supply. Therefore, although there is scant economic evidence that they do take more than they need to run an efficient service, it is assumed that lawyers do so, contrary to consumer interests. The regulatory oversight attempted by the Legal Services Act will either ensure that they are “more efficient,” or admit others (non-lawyers) to the market. This is the entry point for Alternative Business Structures, also to be introduced under the LSA, but not a phenomenon dealt with at length by Decker and Yarrow.

Those who are interested to read the report should note the availability of a supplementary collection of essays, many of which make valuable points on, or contribute important perspectives about, the report. The great value of Decker and Yarrow’s report is that it authoritatively supports and questions many of the economic assumptions on which the emerging regulatory philosophy, based on ideal competition, is based. As it is, a strong possibility is that legal services in the UK will become progressively de-regulated, albeit with a transitional period of public regulation. This, as Decker and Yarrow show, would be to replace one flawed system of regulation with another. Before that happens, other, more nuanced and empirical studies will, it is to be hoped, test the assumptions of the economic model, illuminating the theoretical shadows identified in this report.

Among scholars who study the legal profession, perhaps no one else has travelled as far as Yves Dezalay and Bryant G. Garth. They have studied international commercial arbitration across continents, they have investigated the political struggles between lawyers and economists in four Latin American states, and now their new book, Asian Legal Revivals, covers the history of lawyers and the state in almost ten different Asian countries. No matter if you like their findings or not, we must admire the effort required to bring together such a large variety of national and historical contexts to develop a general theory of lawyers in relation to the market and the state.

The theoretical contribution of this book to the scholarship on lawyers and politics is significant. In the vast academic literature on the legal profession, the relationship between lawyers and the state has been, oddly, inadequately theorized despite many good efforts in this direction in the 1980-1990s. By this book and their previous study on Latin America, The Internationalization of Palace Wars, Dezalay and Garth have outlined a relatively coherent theory of lawyers and the state. Following Pierre Bourdieu, particularly his flexible and inclusive concept of capital, the authors argue that lawyers do not necessarily seek market monopoly or take political action based on their professional ideology, but form various types of relations with the state based on their social and legal capital–they could serve as clerks, mediators, or spokespersons in different political contexts.

For post-colonial Asian states, the accumulation, attrition, and revival of legal capital appear to have a cyclical pattern: Phase I: investment of legal capital and its combination with local social capital; Phase II: use and demise of accumulated capital for market and political gains; and Phase III: a capital rebuilding process similar to the first phase. By the introduction of the concept of capital and the emphasis on the reproduction of the legal elite, Dezalay and Garth successfully problematize the theoretical opposition between lawyers’ market and political activities in existing scholarship.

However, this Bourdieuian approach to the legal profession also has its weaknesses. First, it focuses too much on the elite of the bar and pays almost no attention to the vast number of grassroots law practitioners. In none of the countries that the book covers do we see a good analysis of the production and diffusion of legal expertise in the broader legal community beyond the limited scopes of corporate law and public interest law, both of which are heavily influenced by foreign economic and political investments.

Second, Dezalay and Garth’s application of Bourdieu’s theory is a partial one because it bypasses two other central concepts in the theory, namely, field and habitus. By juxtaposing lawyers between the market and the state, or what Bourdieu would call the economic and political fields, the authors leave little autonomy for the legal system, or what Bourdieu would call the juridical field. The vastly different habitus of legal elites in different countries is reduced to various types of capital, without taking into account the structured and structuring effects of habitus to the field of law. As a result, the boundaries of the juridical field look extremely ambiguous. In other words, the authors give too much autonomy to individual agents of law but not enough attention to the structure of the economic, political, and juridical fields.

Those two weaknesses aside, the book does provide a unique theoretical lens for observing the comparative historical development of the legal profession in Asia. My last comment on this excellent book is methodological. When reading the book, I kept wondering what experts on the legal profession in each of the Asian countries would think of the analysis. To make an analogy, the authors resemble two art connoisseurs who travel around the vast territory of Asia to collect the best art works in each country, and then put them together in an Asian art collection. The collection is indeed spectacular and it enables an eye-opening cross-national comparison, but from this collection it is impossible to situate the art works in their respective cultural contexts or to gain a good sense of the whole field of art in each country. This is perhaps the inevitable methodological problem of comparative research, but my hope is that this thought-provoking book will inspire more “archeologists” of the legal profession across the world to conduct in-depth analysis on lawyers, market, and the state to support or challenge the theoretical thesis that Dezalay and Garth have rigorously outlined. After all, without archeologists, art collectors would have no art to collect.

 

Here is one way of describing the ethical challenge facing contemporary lawyers:

Traditionally, professions transcended the seller-customer relation because they met the challenge of moral difficulties, including evil, and emerged not only unscathed but triumphant. Today, legal professionals, fearing they cannot resist, let alone control, the moral pollution around them, retreat into technical virtuosity and specialized expertise. Cleanliness has become the aspiration of the profession. Lawyers seek purity by defining their cases and their work solely in terms of the abstract norms of professional knowledge. At the same time, they argue that to do anything else is dangerous and potentially immoral. To be anything other than a supplier of technical information is to dominate clients. At its best, it is paternalistic. At worst, it is power mongering. The claim is that there is no ethical way for the lawyer to meet moral difficulties. (PP. 158-9.)

It is as apposite a criticism of corporate lawyers-and their abdication from ethical commitment-today as it was in 1984 when it was first written. The paragraph is found near the end of Professor Rob Rosen’s book on lawyers in corporate decision-making that has recently appeared as part of an initiative to publish “influential” unpublished doctoral theses-in this case from UC Berkeley’s sociology department. What an excellent choice for such a series! Although Rosen has drawn on and published parts of the thesis in journal articles, it is a real treat to have the whole thesis now readily available, and with a Foreword by Professor Sung Hui Kim.

In its time Rosen’s thesis was a groundbreaking piece of empirical sociological research and ethical analysis of the emerging phenomenon of inside counsel. It remains a “classic”-and still very timely-dissertation for two main reasons:  First, the design of Rosen’s empirical research is instructive and challenging for those of us who are interesting in doing sociology of the legal profession. Second, the way that Rosen combines sound and creative empirical sociological research with ethical insight, critique and analysis using literature on both the legal profession and organizations is an inspiring model for those who want to do solid social science research and make a normative contribution as well.

As Rosen points out in his preface to the 2010 edition, the methodology remains “distinctive”. The focus is on inside counsel, but the unit of analysis for the research is not individual inside counsel or their organizations, as it has been in most other studies of inhouse and other corporate lawyers. Rosen more productively chooses specific legal cases-particular instances of advice provided to industrial corporations-as his unit of analysis. That is, his object of study is not the person in the role of inhouse counsel, but the work that they do for the corporation in connection with the external lawyer and business manager. His methodology (explained in the original preface to the dissertation) thus involved first interviewing a range of inside counsel about their work. On this basis he identifies a number of specific problems or cases where legal advice had been provided. He went on to identify both the external lawyers and internal business managers involved in each case and interview them. This process yielded 70 interviews-but as Rosen points out, it is not the “counting” that is important, it is the ability to understand the complexity of how legal tasks are understood and structured from the perspective of the three groups of actors most centrally involved in creating and prosecuting them: “From these interviews with different participants, three versions of the same events emerged. I was thus able to reconstruct the problems to analyze the behavior of and the constraints facing the various actors.” (P. x.)

The substance of Rosen’s work in each of the substantive chapters is therefore based on rich description of particular cases in specific organizations from the point of view of several participants with different roles and commitments in each case:

Rosen’s study is therefore not based on interview data consisting of abstract pietisms or self-serving reflections from lawyers alone:

I therefore abandoned a set formula with abstract questions and concentrated on tracing the ramifications of particular decisions. The lawyers, who are used to answering specific questions about a case, like those presented in a deposition, seemed grateful for this more concrete method. In addition to being encouraged to focus on specific decisions, the lawyers also were asked how other lawyers handled or would have handled the same issue. … [This] prodded the lawyers to talk both about their action and about their reasons for acting. (P. xi.)

On this basis he is able to tell us about real products and real companies and the various legal services that become relevant in every day organizational life and processes. We learn about hiring and firing, about tax and patents, what happens when a chemical company starts selling to a beauty products manufacturer rather than a steel company, and what happens when a vitamin supplement becomes popular for the wrong reasons. We also find out about power struggles between lawyers and managers, and managers and managers, and how they are resolved.

There is much for scholars of the legal profession and legal ethics to learn here. It is often too easy think we are doing “law and society” type analysis of lawyers’ ethics when we begin and end with the lawyers’ view of his or her working world. But in this study the focus is on the lawyer’s work itself which inevitably leads Rosen to examine the connections between lawyers and the world of people and things in their organization and outside of it. It is only in understanding these relations (not just the lawyer’s view of them) that we can get any grip on the ethical world of the corporate lawyer, since ethics by definition involves how a person responds and relates to other people and things. In studying corporate lawyers’ ethics the questions must be: whose interests and influences (which other corporate actors? which other lawyers? in what relationships to one another?) are brought into action in what ways (through what processes of engagement, persuasion, argument, or threat? using what justifications to themselves and to others?) and with what effects (on people and things inside and outside the organization) through corporate lawyers’ work? This is the question that Rosen unfolds for us in this wonderful research. It should challenge those of us who work in this area to build on Rosen’s work and go even further tracing the lawyer’s work through not only the client and the external lawyer hired for the client, but also the lawyers and clients on the other side in contracts, disputes and litigation, the judges and those ordinary customers and others who might ultimately have been affected directly or indirectly by what the lawyers and their clients do together.

Rosen’s sound micro-sociology of lawyers’ work forms a robust basis for his more normative task – “my search for the bases of civic good in corporate legal services” (P. vii.) His empirical work informs us about the constraints and opportunities that individual lawyers experience in choosing to be either “rule-formalists” or “responsibility consultants”. Rosen goes on to connect this micro-sociology to broader themes in the sociologies of the legal profession and organizations in a most enlightening way. Ultimately Rosen addresses the (erroneous in his opinion) view that “certain choices are questions of business not of law” (P. 140.) by showing-empirically and normatively-that “rather than a split, a continuum exists between law and business. The law is not merely the formal derivative of public political processes. Law is part of all social processes.” Indeed. This is a central theme of law and society research, and here is a book well worth reading for how it demonstrates the value (in both senses of the word) of law and society research on corporate lawyers’ ethics.

As an ethnographer I subscribe to Everett Hughes’s view:

I am suspicious of any method said to be the one and only. But among the methods I would recommend is the intensive, penetrating look with an imagination as lively and as sociological as it can be made. One of my basic assumptions is that if one quite clearly sees something happen once, it is almost certain to have happened again and again. The burden of proof is on those who claim a thing once seen is an exception; if they look hard, they may find it everywhere, although with some interesting differences in each case.

It is ethnography that enables us to go inside the black box. It is surprising then that the world of law is often neglected in the ethnographic milieu. Anthropologists engaged with it while studying kinship and exchange systems, seeming to take Durkheim’s idea that contract was at the base of the social division of labor. Yet one of the central features of the law is the court which is an alienating environment.

Thomas Scheffer and his colleagues decided to investigate the world of courts and they looked at American, German, Italian and English courts. Despite being social scientists and with some possessing legal training, they initially found the world of courts one which estranged them by making them feel unwelcome and awkward. How much of this was due to their naiveté and innocence we can only glimpse. Scheffer describes his initial encounter with court staff where he sat in the public gallery with his notebook. This “abnormal” conduct earned him the disapprobation of the court clerk and a move to the press gallery where writing was normally undertaken. It left him, however, with a poor view of the court.

Adversarial Case-Making takes on Scheffer’s journey through the arcane and esoteric world of the English Crown Court. In five chapters Scheffer attempts to make sense of the unworldly world of the court. His method is to take a series of slices in the activity of making a case. Although he cannot hope to provide a complete coverage, he tries to capture a series of moments that frame how lawyers engage in putting together and presenting cases. In Chapter 1 he examines the construction and failure of an alibi in an assault case. Chapter 3 looks at how expert testimonies are pitted against each other. The lawyer’s file and how it coordinates activity is the centre of attention in Chapter 5. In Chapter 7 the moralizing element is invoked as part of the learning process in the developing lawyer-client relationship. In the remaining three chapters Scheffer tries to theorize about his ethnography.

Scheffer starts with Kagan’s idealization of adversarialism as central to the US and UK courts where much of the case, especially in its preparation, is left to the lawyers. Adversarialism in its classic sense is in the UK less strident than the American.  Scheffer points out another dimension to adversarialism, that of the case emerging and being formed over time. As it goes through the procedural steps, it acquires more material—depositions, reports, etc—that create its being.

The two main sites of action we encounter in the book are the courtroom and the lawyer’s office. They differ in that one is public and the other private: the files supply a conduit between the two, so they become almost the obverse and reverse of each other.

We can see this at work in the rise and fall of the alibi in the assault case in Chapter 1. For Scheffer the case has a career that is almost separate from its participants. In this case the assailant was alleged to have head-butted her victim which she denied in her police interviews by stating she was not present. When defense lawyers begin to countermand the prosecution’s case they look for means of undermining the allegations. Statements of non-presence by the accused quickly become co-opted into the process and so are integrated into the procedural memory of the case. As Scheffer simply states: “Linda presented a minimal, but complete alibi” (p. 7). The solicitor’s role is to turn the minimal into a coherent narrative that can be presented in court by the barrister. In this process the alibi is examined more deeply and its inadequacies become apparent. The defense team believed they had the support of a co-defendant who would reinforce Linda’s claim that she was elsewhere when the assault occurred. Unfortunately, the defense found a recording of a police interview with the co-defendant that clearly undermined their belief and led to the fall of the alibi. Even though the alibi made it into court, it came across as feeble and disappeared from the barrister’s final address to the court. The procedure in raising the alibi for the defense lays it open to attack, critique and eventual defeat if the opposition forces are sufficiently strong as they were in Linda’s case. For Scheffer adversarial case-making demands risk-taking and not all risks are foreseeable.

In Chapter 3 we are led into the middle of a case where the accused is charged with indecent assault and his defense is that he was sleep-walking and therefore not responsible for what occurred. Both the prosecution and defense present expert testimony from scientific experts in the field. And for Scheffer this is an important point that it is not the court that requires the expert witnesses but that the parties require them, nevertheless their testimony must be impartial and for the benefit of the court. Experts share similar knowledge bases and training: expertise is also a diplomatic achievement (p. 91). Taking this last point we see that the uncertainties inherent in expert testimony—discussing the general while trying to apply it to the particular—must always be insufficient for the court and so leaves ample space for judicial interpretation of the evidence given.

What do we learn from Scheffer’s study of case-making? It is complicated and complex. It is iterative and repetitive. It is confusing and arbitrary. It is co-production embedded in a history of procedure and convention. Scheffer relies much on the interaction order of the court proceedings to understand what is happening and to see how the parties are making sense of this order. Some of this can be accounted for by things: the way the court is laid out; the manner in which the case file is put together (the types of documents, their order); how stories are told. The division of labour reflects this order in that the solicitor remains close to the file while the barrister articulates the case in court. Taking Scheffer at his word:

Court, file, and story—together with other materials—facilitate the hearing. The hearing as it is…is not feasible by means of direct interaction only. The resources add a sense of stability, historicity, and predictability. They fix past event, specify possible futures and steady expectations….In short, they turn the gathering into a procedural event (p. 188).

Adversarial Case-Making is both an insightful and frustrating book. At times it is over-laden with burdensome theory. If theory is to assist the reader, it should clarify and explain not hinder. Scheffer’s use of the science and technology studies literature is one example of a theoretical enterprise that has done much to clarify the inner workings of institutions. The comparison between the work of laboratories and lawyers’ offices and courts does illuminate.

There are insights into the complexity of putting cases together. Scheffer is able to show us the messiness and partiality of the process and make us wonder how it manages to function at all. It is almost as if the procedure is designed to prevent resolution rather than bring it about. Ideally, the book should be read in combination with others. For example, Steve Bogira’s Courtroom 302 offers reportage of a year in a criminal court where we can view the process from start to finish. Scheffer’s is necessarily episodic probing into moments. For students of the legal process it will add to their knowledge and perhaps help them see how cases are formulated in a more thoroughgoing and analytical way.