Susan B. Haire

Do the "haves" come out ahead over time? Applying Galanter's framework to decisions of the U.S. Courts of Appeals, 1925-1988

This investigation examines the success of various types of litigants appearing before the U.S. Courts of Appeals from 1925 to 1988. The analysis parallels the earlier studies by Songer and Sheehan (1992) and Wheeler et al. (1987) that applied the core concepts introduced by Galanters groundbreaking analysis of why the haves come out ahead to study litigant success on the U.S. Courts of Appeals and state courts of last resort. The findings suggest that repeat player litigants with substantial organizational strength (haves) are much more likely to win in the federal courts of appeals than one-shot litigants with fewer resources. The haves win more frequently in published decisions, even after controls are introduced for the ideological makeup of the panel. The advantage in appellate litigation enjoyed by repeat player haves is remarkably consistent over time. In particular, the U.S. government has compiled an impressive record in these courts by dominating opposing litigants over the 64-year period of analysis

Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals

In the U.S. legal system, litigants frequently retain counsel to represent their interest in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel, representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decision making, judge were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These finding suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal.

The Value of Precedent: Appellate Briefs and Judicial Opinions in the U.S. Courts of Appeals

This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in the courts adoption of a partys use of a precedent. At times, ideological congruence between the circuit panel and the litigant increases the likelihood that the courts opinion will use a precedent in the same way as presented by the litigants. Concerning attorney experience, when their clients ultimately win the case, attorneys with no experience before the circuit are less likely to see the court use litigant-cited precedents in a similar way to the party brief. Even when their clients lose, experienced attorneys are more likely to see the courts opinion address the precedents the attorneys have raised positively. This suggests that attorney experience has some influence in shaping legal policy, regardless of whether the litigant wins or loses.

Diversity, Deliberation, and Judicial Opinion Writing

Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997–2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.