Academic journal article
By Szmer, John; Johnson, Susan W.; Sarver, Tammy A.
Law & Society Review , Vol. 41, No. 2
This article examines the impact of lawyer capability on the decisionmaking of the Supreme Court of Canada (SCC). Extending prior attorney capability studies of U.S. judicial decisionmaking, we test three lawyer variables: prior litigation experience, litigation team size, and Queen's Counsel designation. We find that the first two variables have a statistically significant and positive relationship with the SCC's decisions in non-reference-question cases from 1988 to 2000. Moreover, this relationship persists even after controlling for party capability, issue area, and judicial policy preferences.
In common law judicial systems, the lawyers representing the litigants play a significant role in the judicial process. Typically, they are responsible for the presentation of information to the courts. Moreover, given the adversarial nature of the system, as well as the courts' need for information to formulate decisions, the relative abilities of the litigators can influence case outcomes. Indeed, studies of the U.S. judiciary have found empirical support for this theory (e.g., McGuire 1995; Haire et al. 1999; Johnson et al. 2006; Kritzer 1998). To adequately develop and test the hypothesis that the relative abilities of legal counsel affect judicial decisionmaking, this theory should be investigated in other common-law contexts beyond the U.S. judicial system. As such, we examine the impact of lawyer capability on the decisions of the Supreme Court of Canada (SCC). While Canada (and its judicial system) is similar to the United States (and its judicial system) in many respects, there are still significant differences between the two states. For example, until recently Canada did not have the functional equivalent of a Bill of Rights (The Charter of Rights and Freedoms is barely 20 years old). Moreover, recent evidence suggests that lawyers do not have an effect on SCC agenda-setting (Flemming & Krutz 2002b). Given the differences between Canada and the United States, if the attorney capability theory extends to the merits decisions by the SCC, it only bolsters the importance, and in particular, the generalizability of the theory.
Prior studies have posited several aspects of the concepts we combine under the rubric lawyer capability.1 One element of lawyer capability is prior litigation experience. Akin to one of the advantages of repeat player litigants, McGuire (1995, 1998) posits that experienced attorneys are more successful on average because the judges are more likely to trust and rely on the information presented by the attorney in the form of written and oral legal arguments. Since the repeat player attorney is more likely to argue before the court in the future, the judges know that the attorney is more likely to present accurate information for fear of future recriminations. Others argue that quality of representation extends beyond trust (Haire et al. 1999). Lawyers have several opportunities to persuade judges through the arguments they present to the court. In the context of appellate litigation, lawyers typically have the opportunity to submit written and oral arguments. Written arguments, called briefs in the United States and factums in Canada, contain statements of facts, a summary of the relevant legal issues, and an argument supported by relevant sources of law. Unlike their written counterparts, oral arguments provide the lawyer with a face-to-face opportunity to answer the judges' questions. As Johnson (2001) illustrates in the context of oral arguments, these are opportunities to provide the court with information that can, at a minimum, affect how the judges formulate their substantive policy choices. Indeed, Justices William Rehnquist (2002) and Sandra Day O'Connor (Mauro 2000) both indicate that the information provided by lawyers in either the brief or the oral argument may affect their decisions.
While the briefs and oral arguments are the tools utilized by the lawyers to persuade appellate judges, some lawyers are more adept at using these tools. …