Posner and Rakoff debate whether courtroom lawyers ever make a difference.

A Pair of Judges Debate Whether Courtroom Lawyers Ever Make a Difference

A Pair of Judges Debate Whether Courtroom Lawyers Ever Make a Difference

The law, lawyers, and the court.
July 31 2017 1:41 PM

Do Courtroom Lawyers Make a Difference?

A pair of judges debate the importance of attorneys.

Jupiterimages/Thinkstock

Jupiterimages/Thinkstock

Slate is running a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. Their last conversation was about age limits for federal judges. This month’s conversation is about how much lawyers matter in the courtroom.

Joel Cohen: Many lawyers believe that the result in a case may—or even will—heavily depend on who the judge is. But that’s an issue for another day. What about the lawyers? As a young prosecutor, I sat in the chief prosecutor’s office late one evening discussing a case. Another prosecutor, who wasn’t particularly well regarded and had absolutely zero prior trial experience, poked his head in to proudly announce that he had just won his first mafia prosecution, defeating three of New York’s best criminal defense lawyers. After he headed out to a bar to celebrate, I laughingly asked my boss what he thought of that unbelievable outcome. With a twinkle in his eye, he tersely said, “Reaffirms my faith in the jury system. Doesn’t matter who the lawyers are. The correct result will out.”

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Really? Judge Rakoff, your experience is largely (but not exclusively) at the trial level. And Judge Posner, you sit typically on appeals. From your vast experience, doesn’t the result in a courtroom case, in significant part, depend on the lawyers and their skills?

Jed Rakoff: In a close case, the skill of the lawyer can make the difference, but most cases are not that close. It is the same with most professionals: In difficult cases, the skill of the doctor can make the difference between life and death, but most cases are sufficiently routine that most doctors can treat them properly. A related but much bigger problem in our society is that most people can’t afford lawyers at all. Nationwide, the average law firm partner now charges well over $500 per hour. I can’t afford that—can you?

When an individual confronts a legal problem and can’t afford to consult a lawyer, even routine matters can prove disastrous for the unlawyered person. Any housing court judge, for example, will tell you that any tenant or homeowner who is represented by counsel can usually find some legal technicality to avoid eviction or foreclosure, or at least can negotiate a substantial delay. But except in those cases where the judge herself feels sufficiently sympathetic to the defendant to intervene on his behalf, the unrepresented defendant is going to lose his tenancy or his home. Worse yet, the percentage of such unfortunates who are unrepresented by counsel has skyrocketed in recent decades. Thus, according to statistics compiled by the National Center for State Courts, until 1970 the great majority of individual persons involved in lawsuits were represented by counsel. But now, depending on the state, as many as two-thirds are unrepresented by counsel, and in housing and family cases—which are the most common legal disputes for most Americans—the percentage of unrepresented individuals in some states is as high as 90 percent.

I wonder whether Judge Posner, who has such expertise in economics, has a view as to why lawyers have become so expensive? Of course, there are obvious barriers to entry (notably, the price of law school) and other impediments to free competition, but I wonder whether other factors are operating as well. For example, in recent years, many law school graduates could not find law firm jobs upon graduation. Yet few seem to have hung out their shingles and offered needed legal services at cut rates. I don’t know why this is. What I do know is that someone who has a serious legal issue but no lawyer to represent him is someone who is unlikely to obtain justice.

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Cohen: Judge Rakoff seems (to me) too willing to find that it really doesn’t matter who the lawyer is, except in the closest of cases. How is that possible?

Richard Posner: My experience at the trial level is limited; I did do some trial work in the 1970s when I was the law professor, and of course since becoming a judge (appellate) in 1981 I’ve read a lot of trial records and heard lawyers argue about what went on at the trial. But more important, I have conducted trials as a volunteer in the district courts of my circuit since my appointment, mainly civil trials but recently two criminal trials. The criminal trials, and virtually all of my civil trials, were jury trials.

My impression is that the respective quality of the lawyers (I believe that in only one case was one of the parties pro se) is a very important factor in the jury’s verdict. Very often the lawyers are totally mismatched in quality—by quality, I mean ability to sway a jury. The quality difference need not be intellectual; often it is personality. Some lawyers are simply very good at coming across to a jury as nice—wouldn’t lie, wouldn’t exaggerate—and when such an attorney is up against a mean or pompous lawyer, the nice guy has a big advantage. Sometimes, however, the nice lawyer is so weak that his mean opponent overpowers him.

I wouldn’t generalize these observations to New York, which has a very different culture from Chicago (where I’ve conducted most of my trials) or Gary, Indiana, where I conducted a number of trials, though none recently.

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Finally, I do think the judge has a big role in a jury trial. I for example do not use pattern jury instructions—I make up my own—and I allow the jurors to ask questions. In a civil case, I allow jurors to ask questions out loud, so I and the lawyers hear them and we can answer them if we think they’re worth answering. In a criminal trial, I require a juror who has a question to write it down and give it to a clerk who hands it to me. I might read it aloud if I think it would be a question that the lawyers could answer or I could answer it myself either out loud or in a note to the jury.

That’s about it as far as my firsthand experience with juries is concerned.

Cohen: While Judge Posner sits in different trial venues than you do, your general views on the impact of the trial lawyer on case results widely differs from his. (For what it’s worth, probably not much, I happen to agree with Judge Posner). Yes, your number of trials is far greater, but still. Perhaps you’re concerned about acknowledging what it might really mean about our justice system if trials reach different results depending on who the lawyer is (or whom the client can afford).

Rakoff: I interpreted your original question, Joel, to apply to all court cases, and I stand by my position that, at least in my experience, the skill of the lawyers only makes an outcome-determinative difference in close cases. Please remember that well over 95 percent of all cases, civil and criminal, never get to trial. As far as the court is concerned, most cases chiefly involve motion practice, where the judge will be doing his own legal research and analysis that may go well beyond what the lawyers present and will, in any case, not be much affected by who is the better lawyer. But even if we limit your question to jury trials, I don’t think the difference in lawyering makes much difference in most cases.

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I used to think differently during the 25 years I was a trial lawyer: If I won a jury trial, it was because of my brilliant lawyering, and if I lost the trial, it was because my opponent was dishonest, the judge was unfair, or the jury was biased against my client. But in the 21 years since I became a judge, I have made it my practice to talk privately with the jurors in the jury room at the end of the case after they have reached their verdict, and I or my law clerks have now done so in all of the more than 150 jury trials I have conducted. What has impressed me, based on these interviews, is how seriously the jurors take their job of finding the facts and applying them to my instructions of law. Many, many times, they will say to me, in essence, “We really liked Jane (the losing lawyer) much better than John (the winning lawyer), but John had the facts on his side.” Put differently, I have almost never disagreed with a jury’s verdict, and if I don’t think my view of the right result was materially affected by the skill of the lawyers, what reason do I have to believe that the jury’s view was?

I do, however, very much agree with Judge Posner that the presiding judge has a huge role to play in a jury trial not only in instructing the jury on the law—like Judge Posner, I write my own jury instructions carefully tailored to the individual case—but also in keeping the lawyers in line and focused on the relevant issues. Where a judge abdicates this role, overaggressive lawyers can take unfair advantage of their adversaries, and I have occasionally seen this happen in some state courts, although almost never in federal court.

None of this is intended to denigrate the skills of lawyers. Perhaps a lawyer’s greatest use of her skills comes in advising a client when to bring a case and when to settle it. But in so doing, the lawyer almost never bases her calculations and recommendations on the assumption that the other side will be so poorly represented that she can run roughshod over them—thus implicitly recognizing that the relative skill of competing lawyers is simply not as important as the relative strengths of their cases.

Cohen: Judge Rakoff, you adhere to your position that courtroom lawyers only rarely make a difference—that judges and jurors almost always get to the “right place” on their own. Still, the skilled imaginative lawyer may raise issues that the judge may not even consider on her own, and the jury may require the trial lawyer’s passion, persistence, and command of the facts not present in every courtroom lawyer. No disrespect, but how can what you say be so?

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Rakoff: I know it is very hard for such a talented (and high-priced) lawyer as Joel Cohen to contemplate that the facts and the law might carry the day regardless of the lawyering, but that has been my experience, and I find it reassuring. It evidences that, in most cases, we are a country governed not by lawyers but by laws. Yes, occasionally “the skilled, imaginative lawyer may raise issues that the judge may not even consider on her own,” but this is not nearly as common as a judge raising such issues independently (as a result of having seen the issues raised in similar cases) and then asking the lawyers to address the issues.

Moreover, it is very rare that a trial lawyer will raise a truly novel issue, and there is a reason for this: Legal training is focused much more on analytic prowess than on creativity, and even when practicing litigators come up with original ideas, they tend not to raise them with the judge for fear that in a legal system governed by precedent, such novel ideas will seem “weird” and out of place. (To be sure, corporate and tax lawyers frequently come up with original ideas—or should we say “loopholes”—but not litigators.) As for “passion” and “persistence,” these play a much bigger role in fictional courtroom dramas than in real life, where such approaches often come across as over-dramatization and stubbornness. (By contrast, “command of the facts” is important, but it is a very rare lawyer who does not know the facts of her case.) In short, an ounce of truth is worth a pound of bluster, and carries the day in most cases.

Cohen: Judge Posner, you’ve been sitting on a top appeals court in the nation for 35 years. Given that enormous experience, do you think that the quality of lawyering doesn’t matter much—that the judges (and their clerks) will typically dig up the right result irrespective of who briefed and argued the case?

Posner: I don’t think the quality of lawyering has anywhere near the effect on outcomes in the court of appeals that it has in a jury trial, since judges unlike jurors are both knowledgeable about law and experienced in adjudication.

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Joel Cohen, a former prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan LLP and is the author of Blindfolds Off: Judges on How They Decide.

Richard A. Posner retired as a judge on the U.S. Court of Appeals for the 7th Circuit in 2017. He is a senior lecturer at the University of Chicago Law School.

Jed S. Rakoff is a senior judge on the U.S. District Court for the Southern District of New York and an adjunct professor at Columbia Law School.