Lawyers play important roles in litigation. To scholars and law practitioners, this statement sounds almost like a truism. To be sure, if millions of people pay hefty fees to retain lawyers in litigation, then the expertise that these lawyers possess and the services that they provide must be valuable. However, which part of lawyers’ expertise makes a bigger difference in ordinary litigation? Their knowledge of the law? Their familiarity with legal procedures? The social networks and relations that they develop with others? Or the symbolic power of their licensing and professional credentials? In the scholarship on the legal profession, all these aspects of lawyers’ expertise have been investigated through case studies and ethnographic work, such as Sarat & Felstiner’s (1995) work on how divorce lawyers control and construct their clients, Herbert M. Kritzer’s (2004) analysis of contingency fee lawyers as gatekeepers of the justice system, Mather, McEwen, and Maiman’s (2001) study on the collegial community of divorce lawyers, and so on. Nevertheless, there had been little systematic effort to test the effects of lawyers’ expertise in ordinary litigation using statistical methods and meta-data, until Rebecca L. Sandefur’s 2015 article Elements of Professional Expertise in the American Sociological Review.
In this article, Sandefur distinguishes between two types of expertise, substantive and relational, following Barley’s (1996) definitions. Substantive expertise is “concerned with professions’ peculiar categories and theoretical frameworks,” including “understanding both substantive law – statutes, doctrines, legal principles, and relevant past cases – and legal procedures.” (P. 911.) By contrast, relational expertise involves understanding “how to navigate the relationships involved in getting the work done” and “the social distribution of knowledge and discretion in the actual relationships through which professional work takes place.” (P. 911.) Whereas substantive expertise is “abstract” and “principled,” relational expertise is “situated” and “contextual.” (P. 911.) Both at are work in the practice of lawyers and other professionals, though relational expertise probably plays a bigger role in the work of lawyers than that of doctors or engineers given the strong relational nature of legal work.
To test and evaluate the effects of lawyers’ substantive and relational expertise on case outcomes, Sandefur adopts an innovative method called “meta-analysis,” that is, to combine extant studies and create a large database comprising more than 18,000 adjudicated civil cases for statistical analysis. Drawing on complex quantitative techniques from econometrics and other statistical methodologies, Sandefur calculated lawyers’ potential impact under three sets of assumptions: (1) managing relatively simple legal procedures (e.g., case filing or appeals); (2) deploying complex theories or doctrines (e.g., rules of punishment or compensation); and, (3) relationship to the court as professionals (e.g., familiarity with judges). While the first two assumptions correspond to two aspects of substantive expertise, the third assumption corresponds to relational expertise.
The statistical analysis leads to interesting findings. The basic finding is good news for the legal profession – having a lawyer does make a big difference on case outcomes. When compared to self-representation and representation by non-lawyer advocates, lawyer representation significantly increases the chances of winning a civil case in court. However, the analysis does not distinguish between different types of lawyers so it is not possible to compare the effect of lawyer representation across areas of practice. Among the three sets of assumptions, it turns out that lawyers’ in-depth knowledge of substantive legal doctrines is not as important as their expertise on basic legal procedures. The impact of their substantive expertise is the largest in the least complex fields of law. Furthermore, lawyers’ relational expertise also helps courts follow their own rules, especially in traditional trial courts (as opposed to simplified forums).
How to make sense of these results? Sandefur suggests that, in ordinary litigation, it is basic legal procedures that pose great obstacles for lay people. Although these procedures are routine and simple in the eyes of lawyers, without legal representation they would be very difficult for ordinary citizens to navigate. Non-lawyer advocates such as paralegals, social workers, and union representatives may help litigants with these procedures too, but not as effectively as lawyers do. Furthermore, when litigants are the “have-nots” (e.g., poor or disabled), they are often put in “a disesteemed legal position – cast as a delinquent or malingerer.” (P. 924.) In such situations, lawyers’ relational expertise can serve as an endorsement that affects how judges treat their clients and their claims. This is because “lawyers who appear repeatedly before the same court come to be seen as reliable, knowledgeable, and trustworthy by judges.” (P. 925.)
Sandefur’s explanation here is strongly reminiscent of both Marc Galanter’s (1974) classic distinction between “repeat players” and “one-shotters” in litigation, as well as Heinz and Laumann’s (1982) client-type thesis on the legal profession. Lawyers’ primary role in ordinary litigation is to bridge the gap between the legal system and the “one-shotters” who are unfamiliar with how the system works. That is precisely why lawyers’ impact is larger in less complex fields of law, as their clients in these fields are usually the disadvantaged litigants. By contrast, in more sophisticated legal fields, lawyers often serve higher-status clients, many of who are repeat players in litigation. In the latter scenario, lawyers’ impact on case outcomes is smaller because litigants are more familiar with legal procedures and might even have their own relational expertise in court.
Therefore, it would be misleading to interpret Sandefur’s findings as evidence for the insignificance of lawyers’ expertise in complex substantive law. Instead, what this study shows with solid empirical data is the vitally important role of lawyers in bridging the legal system with lay people in society through their expertise in legal procedures and their relations with judges and court officials. To make an analogy, professors are experts in highly specialized academic fields, but when we teach our classes, our strongest impact on students often comes from the teaching on relatively simple and basic knowledge of the discipline. Our relational expertise in the academia can also be of great help to our students in their studies and careers. However, this does not make the specialized knowledge of professors or the sophisticated expertise of lawyers useless. On the contrary, it is precisely such complex skills that distinguish professionals from the rest of their profession and give them prestige (and often income). It would be of great value to further investigate when and how lawyers’ expertise in substantive legal doctrines makes a difference in litigation in future research.