The medical profession enjoys ah evaluative practice for elevating physician performance. It is the autopsy. Literally translated, autopsy means to see for oneself. The pathologist observes the condition of the deceased and compares it with the diagnosis and treatment. The profession treats as a given that errors occur during the course of treatment, a judgment supported by autopsy studies of the last several decades that expose a consistent error rate hovering at forty percent. (1) The autopsy has practical value: it identifies mistakes, assesses performance, and provides a feedback loop for correction and remediation across a wide swath of treatment. (2) The legal profession has nothing like it.
Attorneys and judges perform at a low level of visibility. Assessment is possible but forbidding because studying the relevant documents--briefs, transcripts, and lower court records--is arduous and time-consuming. Data on the incidence of indisputable error, such as timely filing, proper choice of cause of action or remedy, citation of leading cases, and the like, is non-existent. Unlike the medical profession, competence is assumed and error deemed extraordinary.
Judge Richard Posner stands virtually alone in calling for evaluation of judicial performance. "In dealing with the work of judges," he observed in 1990,
we inevitably take much on faith. Appellate decision making in the
American legal system is characterized by a high degree of
uncertainty. This makes it difficult to assess a judicial decision
without access, which often is itself difficult and time-consuming
to obtain, to briefs and lower-court records, and without careful
study of the precedents and the other sources of law at the
Subsequently, Posner encouraged researchers to undertake studies of judicial decision making that would apply autopsy-like objective standards for evaluating performance.
The most illuminating kind of critical study would compare the
judge's opinion in some notable case with the opinion of the
lower-court judge, the record of the case, and the lawyers' briefs
and oral arguments, along with any internal court memoranda written
by the judge, his colleagues, or his or their law clerks. The aim
would be to determine the accuracy and completeness of the judge's
opinion; whether it was scrupulous in its use of precedent; the
value it added to the briefs....
A series of critical judicial studies would yield insights into the
methods as well as the quality of the judge. (4)
Judge Posner's call for judicial studies can be extended to attorney performance. A similar set of evaluative studies could focus on client representation--the extent to which error characterizes certain aspects of law practice and is subject to remediation.
Such studies of judicial decision making and attorney practice open a door to a novel body of research, one that more accurately describes civil legal process and stimulates self-examination. A well-designed case study may produce representative findings that impact both practice and legal education, which tends to distance itself from law in action. Perhaps researchers cannot assess performance by legal professionals with the same certitude as pathologists performing an autopsy. Yet the analogy is apt. The legal profession has well-understood performance standards and specifications.
Evaluative studies of the order suggested by Judge Posner do not presently exist. (5) There are, however, pockets here and there in the literature that can be culled for data on attorney and judicial performance. One small but fertile database contains the studies of leading contract cases. Contract case studies are distinctive in that they are the only cluster of case studies, other than torts, that make use of the trial record; (6) and, as noted above, assessment is not possible without access to the record. …