This empirical study analyzes what the parties and lawyers described above experience – a party’s power, representation, and the strategic expertise they bring to a dispute. These factors clarify how representation may solve the access to justice crisis for low-income Americans. We find that a representative helps most parties most of the time, but the representation on the other side of the dispute and the representative’s strategic expertise are also significant factors for understanding representation for civil litigants. This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of data about representation in recent years. The analysis shows wide disparity in representation, with employers (the more powerful party to a dispute or the quintessential “haves”) represented twice as often as claimants (the less powerful party or the “have nots”), as well as a notable difference in parties’ use of procedures in hearings. Using difference in proportions tests, this article examines the interaction of party power and representation and finds that represented parties have better case outcomes than unrepresented parties, though employers see less benefit from legal representation than claimants. In addition, the article confirms the intuitive result that represented parties are more likely to use procedures than unrepresented parties. Yet, surprisingly, the article finds that represented claimants who use certain evidentiary procedures have worse case outcomes than represented claimants who do not use those same procedures. We recommend that any policy solution to the country’s civil litigation crisis – whether it is a right to civil counsel, unbundled legal services, lay advocacy, or pro se court reform – must account for these factors. To achieve this goal, we call for a deeper understanding of representation in context.
Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (2016) (with Colleen Shanahan and Alyx Mark).