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Lawyers at Work: Theories and Methods
Abstract
This paper is based on the first chapter of Herbert Kritzer’s new book Lawyers at Work (Quid Pro Books 2015). This book brings together edited and updated versions of fourteen of Herbert Kritzer’s previously published articles and book chapters all focusing on lawyers and their work. This paper reviews the theoretical approaches used in the various chapters along with the methods Kritzer employed in his empirical research on lawyers. It concludes with a list of the articles and chapters that were the basis of the chapters in Lawyers at Work, followed by a brief discussion of current, and possible future, directions for Kritzer’s research and writing on the legal profession.
... It is not surprising then that social workers can find it hard to articulate and specify 'which theories, if any, they are using' (Munro, 1998, p. 102). This difficulty is compounded by the absence of a consistent use of practice terms, despite more recent texts including glossaries of key terms (Chenoweth & McAuliffe, 2008;Gray & Webb, 2009;Wilson et al., 2008). A different, ongoing difficulty arises because social work skills and interventions have not yet become the focus of research, although there is evidence of a growing interest in this area (Fraser et al., 2009;Rothman, 2003) in light of the increasing push towards evidencebased practice (see Chapter 26). ...
... 3 Values-based perspectives often attempt to mediate the impact of disadvantage or discrimination in some way. The perspectives most commonly adopted in social work include anti-oppressive, antidiscriminatory, and empowerment perspectives; feminist and radical or activist perspectives and those focusing on promoting or advocating for the rights of disabled people, children and young people, and Black and minority groups (Gray & Webb, 2009). 4 Skills and interventions generally indicate a range of generalist and specialist skills and interventions. ...
... Critical theory makes direct links between individual thinking and actions and the social and historical context in which they occur (Fook & Gardner, 2013;Hick, Fook, & Pozzuto, 2005). It casts Western democratic societies as sustaining significant racial and economic inequality through dominant ideology and seeks social justice and emancipation (Brookfield, 2014;Gray & Webb, 2008). When drawing on critical theory, educators pay particular attention to the complexity of relations of power and their functioning, which has a number of implications for university education, in which one of the main responsibilities of a critical teacher is to understand how students feel and think as a starting point for curriculum development (Shor, 1996). ...
Although field education is considered the signature pedagogy of social work, the work of field coordinators appear to remain peripheral to other aspects of social work education, such as coursework and research. In this article, we suggest that field coordination requires a far more complex set of knowledge and skills than merely matching students with placements based on availability and interest. Using critical and relational theories, this article conceptualizes field coordination as a negotiated pedagogy in which the coordinators navigate complex and often competing needs among students, field agencies, and social work practice. In making visible its nuances and intricacies, we suggest that field coordination is a critical relational pedagogy essential to advancing social work education.
... The value of therapeutic approaches notwithstanding, there are many contexts where a broader relational perspective that situates individual problems in the larger social context of inter alia poverty, inequality, patriarchy, classism, racism, heterosexism, privilege and ableism is preferable (Folgheraiter, 2004). Progressive scholars and activists within social work have pushed the profession to examine the personal– political dimensions and structural realities of people's lives and, in so doing, have expanded the boundaries of social work theory and practice (Gray & Webb, 2013a, 2013b). Their success in so doing has possibly led to efforts to better integrate micro and macro practice and to begin to take on a more collective perspective in the new EPAS (Council for Social Work Education [CSWE], 2015) revision in US social work. ...
This paper seeks to add to the growing literature on environmental social work education which suggests the need for a fundamental rethinking of the humanistic values and theories informing social work to embrace concerns relating to environmental degradation and climate change. For the most part, social work's interest in the environment to date relates to human needs. Of most concern here is the over-representation of people in poverty and subsistence among those impacted by deforestation and climate injustice. However, even here the emphasis is on the human experience of environmental and climate change when this is an outcome of human actions and structural inequalities. The paper begins with an overview of the theoretical terrain of environmental thought before examining issues in relation to perspective transformation and the implications for under- and post-graduate curriculum development.
How the news media constructs social work has been an area of great concern for the social work profession for several decades. It is a discussion within the professional literature that has been dominated by the assumption that the media has portrayed an unfairly critical representation of the profession. To address a significant dearth of knowledge surrounding this highly discussed but poorly researched topic, this article presents the findings from a study that analysed 12 months of social work coverage in Melbourne, Australia. The findings indicate that coverage was not necessarily unfairly critical, but rather relatively absent. Furthermore, the analysis found that existing reporting constructed the profession as being highly diverse in fields, practice methods, and worker demographics. The findings have significant implications for how the professional community understands the relationship, challenging dominant assumptions, but also informing future action and engagement with the news media.
This book presents ten short biographies of professional social workers who have made significant contributions to the wellbeing of individuals, families and communities, and to the effective functioning of government and non-government organisations. The biographies, and associated discussions, aim to help the reader to see the inspiring qualities of character—the virtues—which have helped these social workers to achieve what they have. The main purpose of this introductory chapter is to explain how we understand the nature of virtue and why we see it as important in social work practice. Virtuous action, as we understand it, is action that is appropriate to the situation that confronts a social worker. Hence, we also provide a brief outline of the socio-economic and political contexts in which the subjects of these biographies worked. We explain, too, how the subjects of the biographies were chosen, and the methods (and their limitations) used to develop their biographies. Finally, we provide a very brief summary of the order and content of the biographies.
In the UK and elsewhere parental and child involvement in social services review processes for children in care is a legal requirement and is seen as an essential mechanism through which the needs of children are identified and longer term plans for their care drawn up. Existing research indicates that despite significant improvements in law, policy and practice to secure greater involvement, and some positive parental and child experiences, important significant barriers remain. The gap between these broader developments and the experiences of many children and their parents suggests the need to reconsider the micro-dynamics within review meetings through which decisions are arrived at. Using Bourdieu’s concepts of capital, field and habitus I report on the analysis of a single case study from a larger research project on the participation rights of young children in care. Applying the concepts provides insight into the social and relational processes that occur within the structured space of the review meeting. The case-study analysis reveals practices by social workers that perpetuate the marginalisation of both parents and children during the review meeting. I argue that theoretically informed research regarding social and relational processes within review meetings is important to improve understanding regarding how and why decisions are arrived at and I suggest that this knowledge could contribute to the development of practice in this area.
This chapter describes and illustrates an application of relational social work practice with individuals in transition from prison or jail to their communities and to free society.
Integrated individual, ecological, cultural, and political perspectives are essential to understanding and working with the issues unique to this population. The vast reentry population is described, as are characteristics and issues specific to their experience. Recognition that mental illness, substance abuse, homelessness, educational limitations, employment challenges, and the burden of a criminal background are all dominant for the individual reentering from jail or prison enhances their potential for recidivism and failure. Taken as a whole, these factors indicate the critical role for social work practice, and particularly relational practice, of engaging individuals in a respectful, adequately complex, and cohesion-building experience, against great odds. Clinical assessment and treatment planning need to evolve to capture client individualization and strength and to resist the pull toward social and psychological pathological categorization of reentry clients. The chapter discusses the importance of engaging with the individual’s subjective experience, utilizing both intersubjective and anti-oppressive perspectives. A framework incorporating five steps is described and illustrated with a constructed case. Essential relational skills are identified, described, and illustrated. A case is made for actively developing a progressive clinical social work practice with this challenged and challenging population.
O debate sobre a construção do conhecimento e a relação entre teoria e prática no domínio do Serviço Social continua na ordem do dia por várias ordens de razão, de onde destacamos o seu caráter multi e interdisciplinar, o caráter complexo do seu modus operandi e ainda a relação entre oferta e procura, que no domínio social é dinâmica, movediça e pluridireccionada. Na convergência destes argumentos emergem abordagens, práticas e processos interventivos cuja especificidade se inscreve na agenda de construção e consolidação do seu conhecimento, designadamente a gestão de caso e a mediação social. Tratando-se de modos de intervenção residentes na matriz conceptual de serviço social, importa explorar a sua adequação e contornos performativos na sociedade contemporânea onde o risco, a incerteza e a desigualdade ocupam um lugar de relevo e exigem intervenções inovadoras e competências cruzadas.
Ethics is an important part of the curriculum for students of health and social care, and teaching about autonomy occupies a central place in that curriculum. This paper argues, however, that the approach to autonomy that is taken in several of the current texts which support such teaching is unhelpful to future practitioners and to service users. Current teaching about autonomy can result in ‘checklist ethics’, and a reliance on independent decision-making by reasonable adults, and which is exercised through informed consent and a narrow set of choices. This is an approach which can undermine rather than promote the exercise of autonomy in some cases, particularly if the way in which some service users express autonomy is not recognised or if health and social care practitioners are unable to relate ethical principles to their own practice. An approach to teaching which emphasises relational autonomy, and encourages students to understand the contexts of care that they are likely to encounter in practice, will emphasise the role of the practitioner in promoting autonomy and the exercise of autonomy rather than independent decision-making by reasonable adults.
This research note examines the relationship between fee arrangements and negotiation in civil litigation. Data collected by the Civil Litigation Research Project suggests a strong tendency for lawyers working on a contingent fee basis to focus their negotiation on monetary goals. While this finding should not be surprising, it has significant implications for recent discussions of negotiation and settlement.
This paper describes the data collection strategy of the Civil Litigation Research Project. It discusses many of the practical problems of choosing and implementing the research design and assesses the results of the data collection effort.
Alternatives to traditional litigation have been popular topics for discussions and debate in recent years, though existing alternatives have seldom been the subject of empirical inquiry. This note compares one particular alternative, arbitration through the American Arbitration Association (AAA) to civil litigation in state and federal courts. The analysis shows (1) that AAA cases are generally processed more quickly than court cases, (2) that AAA cases are more likely to be "decided" (rather than "settled"), and (3) that AAA processing is not necessarily less costly than court processing.
What does it mean to talk about the “cost of civil justice”? What can be done to bring down that cost? This article addresses these two important questions. Drawing on data collected by the Civil Litigation Research Project, the authors first examine the components of cost and then present an extensive analysis of what is by far the dominant element of the cost equation-legal services. The analysis of the cost of legal services examines the amount of time lawyers devote to cases and the rates they charge for their time. The major factors influencing time include adversariness, stakes, litigant goals, and court (federal versus state); hourly rates appear to be determined primarily by the legal services market. The article closes with a discussion of the implications of the results of the analysis for reforms of the civil justice system that might seek to lower the cost of justice.
This paper focuses on the impact of fee arrangement on the amount of time lawyers are likely to devote to civil cases ("effort"). Drawing upon data collected by the Civil Litigation Research Project, we compare the behavior of lawyers working on an hourly fee basis with the behavior of contingent fee lawyers. Like previous work on this issue, the paper finds that fee arrangement does influence the amount of effort lawyers devote to a given case. However, contrary to previous work, the analysis indicates that the effect is not a simple effect on hours worked but a more complex effect on a number of aspects of lawyers' behavior. Together these produce an effect on hours that varies by size of case. For modest cases (with stakes of $6,000 or less), contingent fee lawyers spend less time on a case than hourly fee lawyers. Yet we find no statistically significant evidence of a differential in effort for larger cases but rather an indication that, if there is an effect, it may be in the opposite direction.
This paper was prepared for inclusion in a symposium on "judgecraft." My specific goal in this paper is to develop a theorization of craft as an analytic concept that can be applied in studies of the work of professionals, including both judges and lawyers. Building on sociological work that distinguishes craft from art, I describe a set of elements that can be used to analyze the work and working situation of lawyers, judges, and other professionals: utility, consistency, clientele, skills & techiques, problem solving, and aesthetic. I posit that these elements can be organized along two dimensions, one that distinguishes between elements that are internal to the craft community and those that are external, and a second dimension that distinguishes elements that deal with production, functionality, and evaluation. The paper concludes with suggestions as to how this framework might be applied to the analysis of the work of judges.
The problem of costs in civil justice processes is an enduring issue. Reforms are proposed, implemented, and usually found wanting. Many of these reforms involve manipulating how lawyers are paid for their work in civil justice, a sensible approach given that lawyers’ fees comprise a very large proportion of the costs of civil justice processes.All fee systems create a mix of positive and perverse incentives. Proposals to modify fee arrangements, either coming from reformers or from individual clients, typically fail to grasp the complexity of fee systems and how those systems interact with other aspects of the justice system. In this paper, I employ the construct of ‘‘fee regimes’’ to explicate these complications. Fee regimes as used here are comprised of three components: how fees are computed; who pays the fee; and how fees are regulated and/or reviewed. Every system involves all three elements in one way or another, and the interaction of the three elements makes it difficult to anticipate how modifying only one element will impact the incentives that motivate both lawyers and parties. Moreover, fee regimes are embedded into the expectations of the actors in a civil justice system, and those expectations are often unstated because they are assumed to be natural rather than endogenous to the fee regime. I conclude with a brief discussion of how those considering reforms might better try to anticipate the likely impacts of the changes they would make.
Accident compensation, and particularly auto accident compensation, is typically thought to take one of two dichotomous forms: either no-fault or traditional tort. Further, conventional wisdom holds that while pure no-fault may be an option in theory, it is not one in practice. No pure no-fault auto regime has ever been enacted in the United States, and states these days are repealing, rather than enacting, modified no-fault legislation. Yet something peculiar is happening on the ground. Far out of the light of day, high-volume personal injury firms that I call “settlement mills” are quietly achieving many of no-fault’s objectives — speeding recoveries, lowering systemic costs, and delivering relatively standardized sums to an apparently expanded set of clients — while ostensibly operating within traditional tort. What settlement mills are accomplishing, then, is in some respects astonishing — and certainly commendable. Yet, the fact settlement mills’ distinctive operations are out of the light of day and rarely revealed to clients is problematic, raising profound issues of informed consent and highlighting severe information deficiencies in the market for legal services. A well-designed disclosure regime can preserve settlement mills’ substantial benefits, ameliorate their unique costs, and, more broadly, improve the tort system’s operation and address the vexing problem of attorney choice.
This Article examines a particular form of heretofore unexamined personal injury law practice that has proliferated across the United States. These law firms, which I call settlement mills, are characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit. Drawing on voluminous documents extracted from federal court and state bar disciplinary files, as well as fifty interviews with current and past law firm employees, the Article demonstrates that settlement mills represent a relatively new, largely distinct, and surprisingly prevalent form of law firm organization. After setting forth the characteristics that distinguish settlement mills from conventional personal injury practices, the Article considers the forces that have contributed to their rise, analyzes how they resolve claims in practice and to what effect, and asks why insurers (not facing a realistic threat of trial) bargain with settlement mills at all. The analysis reveals that settlement mills are not only organized differently than their conventional counterparts; they actually settle claims differently, in a manner that challenges prevailing theories of settlement as well as our basic notions of compensation through tort.
Companies Struggle to Control Legal Costs
- Robert S Banks
- Milton R Wessel