Does Being a Repeat Player Make a Difference? The Impact of Attorney Experience and Case-Picking on the Outcome of Medical Malpractice Lawsuits

Abstract

Empirical analyses explaining litigation outcomes are not often attempted either in legal scholarship or in the sociology of law. There are studies focusing on conversation analysis in mediation, but few other empirical issues in litigation have been examined in depth. In addition, there is little theory addressing the causes of litigation outcomes in legal scholarship. Similarly, there are few micro-level studies or theories in the sociology of law, other than that of Donald Black, that address the litigation process. There are several reasons for the dearth of studies. Determining outcomes of actual, filed civil cases is difficult, tedious, and time-consuming. There are few databases from which samples may be drawn in a systematic way. Cases must be identified. Court records must be found, read, and abstracted. Critical information about cases is often not a part of the court file. For example, official court records seldom state whether a monetary settlement was reached, and, if so, the terms of that settlement. Instead, court records merely indicate either that the court rendered a judgment or dismissed the case. Why the case was dismissed, or on what terms the case was dismissed, is seldom disclosed. Nonetheless, there is a great need for the insights to be gained from empirical studies based on court records supplemented by additional sources such as archival data, questionnaires, and interviews. Such studies could lead to a richer understanding of the conflict resolution process as it is conducted in the civil court system. The work of Miller and Sarat provides an example. More than twenty-five years ago, Miller and Sarat described the litigation process in the larger context of what they called the "dispute pyramid," with layers of grievances, claims, disputes, filings (involving lawyers), court filings, trials, and appeals. They discussed the process of case attrition, and noted that this attrition may be pronounced. The result resembles a pyramid, with only the most durable cases rising through each layer to reach the top. The shape of the dispute pyramid varies by type of case, but what all these pyramids have in common is that very few cases survive to the apex-a pattern supported by considerable empirical evidence. Many, but not all, cases settle for money being paid to the plaintiff. Other cases are simply dropped prior to trial without any money being paid to the plaintiff. Thus, a successful plaintiffs lawyer must have the ability to select cases that are likely to settle or, if a trial occurs, that are likely to result in a plaintiff's verdict.