The Attorney–Client Relationship in Capital Cases and Its Impact on Juror Receptivity to Mitigation Evidence

The United States Supreme Court has placed a great deal of trust in the ability and willingness of capital jurors to consider mitigation evidence during sentencing deliberations as a constitutional aspect of capital sentencing. This paper examines the jurors’ perception of the affective warmth and friendliness shared by attorney and client, and the degree to which the defense attorney appears to regard the defendant as a close working member of the defense team. Using data obtained from interviews with 725 jurors in capital trials, regression analysis revealed that respondents were more receptive to mitigation evidence when they viewed the relationship between the attorney and client as warm and friendly, but less receptive when they reported the attorney–client as having a close working relationship. Analysis of interaction terms revealed that the negative effects of the close working relationship can be suppressed by modeling a warm affective attorney–client relationship.     

A “good fit”: Client sorting among nonprofit,private, and pro bono immigration attorneys

Existing scholarship finds that having an attorney in immigration legal proceedings increases the chances of a favorable outcome. This work, however, often acknowledges that the representation effect is underexplained: selection may explain outcomes, and variation among attorneys is difficult to assess. Through 103 interviews with attorneys who practice immigration law in three organizational environments (nonprofit legal services, private firms, and corporate law firm pro bono programs) in two East Coast areas, this paper argues that attorneys' sorting of clients between different types of legal organizations helps explain the representation effect. Attorneys define what type of case is a “good fit” for their representation, selecting cases they think they can help increase the probability of a favorable outcome. However, what they define as a “good fit” varies by attorneys' practice environments, and centers not only on the facts or characteristics of a client and their case, but also attorneys' organizational constraints. By documenting the central role of practice environment variation and its organizational constraints on attorneys' case selection, this paper helps explain the representation effect and its implications for increasing vulnerable immigrants' access to legal representation in the United States.     

The effects of attorney presentation style,attorney gender,and juror gender on juror decisions

Extralegal characteristics of attorneys may play a significant role in the decision-making behavior of jurors. Presentation style, for example, is one factor to which trial lawyers pay a great deal of attention. However, a given style of speech may not be perceived equivalently when used by different speakers. The present study examined the effects of the defense attorney's presentation style and gender, and juror gender on jurors' verdicts and evaluation of the attorney and witness. Undergraduate college students read a brief summary of an assault-and-robbery case, viewed a videotape of either a passive or aggressive male or female attorney interrogating a witness, then rendered a verdict and rated the witness and attorney on characteristics such as competency, credibility, and assertiveness. The results indicated that, overall, aggressive attorneys were more successful at obtaining an acquittal for their clients than passive attorneys, and that male attorneys were more successful than female attorneys; presentation style also interacted with gender of attorney and juror. Some possible mechanisms for these effects are discussed.     

SEX AND HISTORY

California requires mediation of almost all child custody disputes. The effects of the variables of client and attorney gender, obtaining settlements, and prior mediation and litigation history were examined in a sample of 150 parents who completed surveys after mediating at the Los Angeles County Conciliation Court mediation service. Clients of female attorneys were more likely to respond negatively after failing to settle and were adversely affected by prior family law litigation. Female attorneys were more likely to treat fathers and mothers differently. Clients of male attorneys became negative after prior mediation but not litigation. Clients represented by attorneys of either sex found mediation procedures more helpful than did unrepresented parents. Having an opposite-sex attorney was correlated with communicating with the other parent. Both sexes expressed strong support for the mediation process regardless of whether they settled, although disputants who did settle reported a higher rate of satisfaction than did those who did not. Attorney support for the mediation was important to its success, and having opposite-sex attorneys may promote settlement.     

Defense Attorney Plea Recommendations and Client Race: Does Zealous Representation Apply Equally to All?

Research on racism in the criminal justice system generally focuses on the role of the jury; yet, the vast majority of convictions are obtained through plea bargains. This research addresses the role of the defense attorney and proposes that disparities in sentence length and incarceration rates between African Americans and Caucasian Americans are in part due to the plea bargains that defense attorneys recommend these clients accept. Using practicing defense attorneys from around the country, findings indicate that the pleas attorneys felt they could obtain with a minority client contained higher sentences (adjusted M = 2.88) than those they felt they could obtain with a Caucasian client (adjusted M = 2.22) and were significantly more likely to include some jail time. Reasons for the disparate recommendations were not due to increased perceptions of guilt with the minority client nor to perceptions that the minority client would fare worse at trial. Theoretical and practical implications are discussed as well as possible future directions.     

Legal Entrepreneurship and the Strategic Virtues of Legal Uncertainty

The field of law and strategy (LAS) has advanced our understanding of the law's role in competitive advantage. To date, however, LAS has neglected low rule of law environments—countries characterized by expansive degrees of legal uncertainty. LAS should account for these settings, too, since environmental uncertainty is a strategically significant factor for any company. This article situates the strategic relevance of legal uncertainty in the Chinese context and fills an important gap by illustrating how LAS principles apply in low rule of law jurisdictions. Specifically, this article develops the construct of legal entrepreneurship—the notion that attorneys may apply an entrepreneurial mind-set and skill set to position the client favorably and legitimately within the uncertainties of the legal landscape, thereby creating legal competitive advantages for the client. Drawing upon interviews with expert attorneys and executives, this article presents a typology of legal strategies available to U.S. companies in China, uniquely modeling these approaches along the two fundamental dimensions of legal strategy. Additionally, this article identifies two basic types of legal uncertainty in the cross-border context and offers guidelines for the exercise of legal entrepreneurship. Together, these arguments demonstrate that legal entrepreneurship is an empirically viable construct within the LAS project. In low rule of law jurisdictions that have embraced foreign enterprise, legal entrepreneurship will generally optimize the American company's pursuit of both legal value creation and legal risk management.     

Attorney communication and impression making in the courtroom

This study investigated the effectiveness of attorney communication and impression making in the courtroom. Trained in-court observers rated attorney presentations for factual and legal informativeness, organization, articulateness, and rapport during the opening statement phase of 50 trials. After the trials, jurors were asked to evaluate the attorneys' overall articulateness. enthusiasm, and likableness during the trial. The attorneys were then questioned about their own performance on these indices. The results revealed that the opening statements of prosecuting attorneys were judged by observers as better organized and more factually and legally informative than defense attorneys. However, these variables were not related to trial outcome. Juror evaluations of prosecuting attorneys more closely agreed with these attorneys' self-perceptions of courtroom performance while defense attorneys rated themselves significantly more favorably than did jurors. More courtroom experience did not generally lead to better courtroom performance during opening statements for either prosecuting or defense attorneys, and often resulted in significant overestimations of general performance relative to juror evaluations, particularly among defense attorneys. System constraints operating in favor of prosecutors and performance feedback mechanisms available to prosecutors but not to defense attorneys are discussed. These mechanisms may account for the discrepancies between juror perceptions of attorneys and attorney self-perception.     

Limitations on the ability to negotiate justice: attorney perspectives on guilt,innocence, and legal advice in the current plea system

In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and investigate their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process.     

Standing for the client: on the interactional becoming of the criminal defence attorney1

In this essay, I explore the meaning of the legal profession (the defence attorney). I carry out my investigation in the interactional register. I suggest that we examine the profession of defence attorney as a professional identity in becoming. I localize the event of becoming in the first attorney-client interview. I propose that it is during the first encounter that the attorney comes to stand for the client as a legal counsel. I further propose that the analogy of ‘standing for’ be accessed empirically through an analysis of a recorded episode from the first attorney-client conference. For my methods I use a combination of frame analysis and conversation analysis. The two analyses show how the attorney becomes to stand for the client as a legal figure moulded in a series of interactional moves. By reformulating and reframing the ordinary talk that is introduced as an entry mode into an institutional relationship, the attorney and the client alter their discursive positions until the attorney assumes his professional identity, that is, becomes to stand for the client in legal action.     

Testamentary capacity

Wills are more prone to challenge on the issue of testamentary capacity because, as people live longer, they are more likely to have the kind of conditions that interfere with capacity and because the courts seem to be more apt to hear evidence and allow findings of lack of testamentary capacity than in the past. Therefore, it is incumbent on attorneys to protect the interests of their clients by addressing the issue of testamentary capacity in any case in which a will contest might be anticipated. Ideally, attorneys in such situations should have their clients counsel with a psychiatrist who is knowledgeable and experienced in matters of probate and will contests. Further, the attorney and the client must provide extensive data (of the kind which a jury might ultimately obtain) on which the psychiatrist can base his or her conclusions that the client is of "sound mind."     

UNBUNDLING THE ETHICAL ISSUES OF PRO BONO ADVOCACY: ARTICULATING THE GOALS OF LIMITED‐SCOPE PRO BONO ADVOCACY FOR LIMITED LEGAL SERVICES PROGRAMS

This article seeks to articulate the practical goal of unbundled legal services for the pro bono family law sector as it applies to limited legal services programs (also known as brief advice clinics), through the use of a goal spectrum, derived from the theoretical goal of access to justice. This article briefly discusses the status of the Indiana Rules of Professional Conduct, as they pertain to the ethics of unbundling. This article then focuses extensively on some practical considerations within the ethical issues of both the scope of representation and attorney competence in order to articulate an appropriate goal for unbundled legal services. Finally, the article concludes that service providers in limited legal services programs should explicitly identify and then perform an essential, discrete service that the client needs to have performed in order to help the client meet his or her ultimate objectives. The service provider and the client could then gauge the success of the limited scope representation based on whether and how well the specific service has been provided.     

The Organization of Child Representation Services in Child Welfare Cases: A Study of Washington State

To date no empirical studies have analyzed delivery of legal services to children and considered the implications of organizational structure for child representation practice. This study of 126 attorneys in Washington State compares children's lawyers working in solo practice, private law firms, and specialty staff attorney offices. The manner in which child representation is organized has lessons for the recruitment, training, and support of such lawyers. Staff attorney offices offer a number of advantages but rural areas with fewer cases may not be able to support such offices and the attorneys in specialty offices were less experienced and report lower incomes.     

Et Tu, Counselor: may an in-house attorney file a qui tam action against the attorney's employer?

Most corporations probably do not consider their in-house counsel to be potential qui tam threats. That may be a naive assumption. Case law provides an illustrative view of the legal ramifications involved when an attorney brings a qui tam suit. In general, there is no prohibition on attorneys who wish to bring these actions. Nevertheless, a corporation can take preventive steps to eliminate the likelihood of attorney qui tam actions. In addition, the corporation can take advantage of state professional ethics laws to mount a defensive action against the attorney who files any such action.     

Personalized or bureaucratized justice in legal services: Resolving sociological ambivalence in the delivery of legal aid for the poor

This paper examines and tests some of the claims about the professional autonomy of attorneys working in a bureaucratic environment. Following an analysis of the concept of professionalism across various types of attorney practices, data are offered to explore how attorneys who provide legal services for the poor resolve the potential conflict between bureaucratic demands and personal or professional autonomy. The data, which consist of attorney time sheets covering some 2284 separate legal tasks as well as in-depth personal interviews with 23 attorneys, reveal some difference between actual practice routines and perceived personal autonomy. Implications of this for the delivery of legal service are discussed. The paper concludes that although the conflicting demands of legal services practice might lead to sociological ambivalence, as long as the attorneys do not perceive themselves as bureaucratic service deliverers but as autonomous professionals, there is little manifest ambivalence. Developing an adaptive strategy to avoid sociological ambivalence, attorneys see themselves as individual service providers, personalizing the justice they deliver.A lawyer is a lawyer-but only to a pointAn earlier version of this paper was presented to the Midwest Political Science Association Annual Meeting, Milwaukee, Wisconsin, April 28–May 2, 1982.     

Client abilities to assist counsel and make decisions in criminal cases

Three studies of attorney-client decision making were conducted in a public defender office. In studies 1 and 2 a structured interview was used to debrief attorneys regarding clients' participation in their cases. Study 1 examined a sample of 200 felony and misdemeanor cases selected prospectively and resolved by any means (92.5% by plea); study 2 examined 200 felony and misdemeanor cases resolved by trial. Study 3 involved debriefing both attroneys and clients regarding perceptions of client participation in 35 recently closed felony cases. Attorneys doubted the competence of 8%–15% of clients charged with felonies and 3%–8% of clients charged with misdemeanors. In cases involving clients of doubted competence, attorneys often responded by means other than referral to mental health professionals for competence evaluations. As compared with clients whose competence was presumed, attorneys tended to view clients whose competence was doubted as less helpful and as less actively involved in their cases, but as actively involved in making key decisions. Defendants' perceptions appeared to be roughly consistent with attorneys' perceptions, allaying concerns that attorneys' reports may be distorted in order to conform to expected norms.     

Do Defense Attorney Referrals for Competence to Stand Trial Evaluations Depend on Whether the Client Speaks English or Spanish?

Criminal defense attorneys (N = 142) responded to a survey asking them to read a vignette describing a Hispanic defendant charged with assault and rate the severity of the defendant’s mental illness and likelihood of referring him for an evaluation of competence to stand trial (CST). The vignettes varied in terms of whether the defendant spoke English or Spanish, and whether his mental illness symptoms were obvious or ambiguous. Overall, attorneys rated the Spanish-speaking defendant as less mentally ill than the English-speaking defendant, and were less likely to refer the Spanish-speaking defendant for a CST evaluation. Attorneys who perceived more logistical barriers to seeking a CST evaluation in their local communities were less likely to refer the defendant for a CST evaluation, but only when the defendant spoke Spanish. These findings suggest attorney decisions were influenced by language, although further research is needed to identify the mechanism of this influence.     

Plea bargaining and appraisals of eyewitness evidence by prosecutors and defense attorneys

A sample of defense attorneys and prosecutors from matched California counties participated in a two-part study. Study 1A reports the results of a survey regarding how influential each of the 17 eyewitness factors is in affecting the accuracy of real eyewitness identifications. Generally, both attorney groups considered all eyewitness factors to be influential; on only 6 of the 17 factors were defense attorneys more likely than prosecutors to provide higher importance ratings. In Study 1B, the attorneys answered questions regarding their willingness to plea bargain after reading each of four scenarios in which (1) same- versus cross-race identification and (2) whether the perpetrator was familiar were experimentally manipulated. Both eyewitness factors influenced plea bargaining decisions, and effects were generally consistent for both attorney groups. Results confirm that plea bargaining decisions at least by defense attorneys are made ‘in the shadow of the trial,’ and that appraisals of the strength of eyewitness evidence play a significant role in these decisions.     

EMERGING ROLES OF THE FAMILY LAWYER

The author examines the problem of representing adverse interests of the parties in family law disputes and proposes some measures for attorneys to address this need. The role of the attorney shifts from being merely an advocate to becoming a consultant and adopting other roles, depending on the needs and wishes of the client. According to this article, the bar must become more sensitive to the needs of the public and the call for a simpler, more “user-friendly” system.     

Automating the legal Reasoning Process: A Computer That Uses Regulations and Statutes to Draft Legal Documents

Several years ago, the American Bar Foundation initiated a modest investigation into the feasibility of designing a computer that could automate the assembly of form legal documents such as wills, trusts, complaints, and the like. The investigation has since matured into a major research effort to design an entirely new kind of computational processor. A prototype processor has now been constructed, and it is undergoing field tests to determine whether it truly fulfills the specialized needs of the legal drafter. This article briefly traces the history of the project, explaining the motivation behind it and describing the role of the participants. The article then introduces a new language—the principal result of the research effort—that may be used to draft both form documents and statutes, regulations, and other “instructions” defining how form documents are to be assembled. The new language, a subset of English, is fully comprehensible both to attorneys and to a properly designed computational processor. An attorney or paraprofessional may redraft form legal documents, statutes, and regulations in the new language and then feed them directly into the computer; no conventional programming is required. The computer asks questions couched in language taken from the forms and statutes, performs any necessary computations, and draws any necessary legal conclusions. The computer then returns client-customized legal documents ready for court filing. The article tells how the new processor may be set up to perform even the most complex drafting tasks—even complex tax-return preparation. Particular emphasis is placed on having the computer force the attorney or paraprofessional to proceed in a highly organized fashion with the development of a complex delivery system so that the computer, and not the attorney or paraprofessional, keeps track of the complex linkages between the elements of the system as it evolves. In its concluding section, the article explores the possible impact of this new technology upon the legal profession and the public, and the author expresses his view that centralized systems set up by legal specialists to support the work of numerous nonspecialists may expand the areas in which the generalist may do competent work and may enable the general practitioner to buck the current trend toward specialization.     

Power and intergroup perception between public defenders and district attorneys

This paper proposes a theoretical framework for understanding intergroup perception differences between public defenders and district attorneys. Social psychological research is reviewed to outline the role of power in intergroup perception differences between high and low status groups. These power differences as well as perception differences are then applied to public defenders and district attorneys, who themselves represent low and high status groups, respectively. To help substantiate this theoretical framework, a qualitative field study is presented in which public defenders and district attorneys of the juvenile justice system were interviewed regarding their perceptions of the youth they process, themselves, and each other. While this field study is a first step and supports the theoretical claim that power underpins intergroup perception differences between public defenders and district attorneys, more quantitative and qualitative empirical research is necessary. The implications of this research are discussed in the terms of the welfare of juvenile offenders.