Herbert M. Kritzer’s research while affiliated with University of Minnesota and other places

During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection.

Does the process of judicial selection and retention affect the decisions made by judges? Focusing on retention rather than initial selection, this article examines whether the method of retention directly or indirectly affects decisions. Extant literature shows clear effects related to criminal cases, particularly cases involving the death penalty, but also in criminal sentencing in trial courts. At the trial court level, there are also indications of election cycle effects. At the Supreme Court level, there is also some indication of effects in abortion-related cases and in cases involving government parties. This article also looks at the impact of two process-related features of judicial elections: advertising and campaign contributions. There is little research on the advertising question but substantial research on campaign contributions. That latter literature has struggled to overcome the problem of distinguishing friendly giving from actual effects on decisions; although there are growing indications that there may be some contribution effects in some situations, the research is far from definitive.

This article examines the impact of the presence of a straight-ticket voting option (STVO) on roll-off in judicial elections, including elections for state supreme courts, intermediate courts of appeals, and urban trial courts. The core hypothesis is that STVO decreases roll-off with partisan ballots but increases roll-off when nonpartisan and retention ballots are used, and these effects should be stronger for elections to less visible, lower-level courts. The analysis finds some support for the hypothesis for state supreme courts but not for the two types of lower courts. It is unclear why there is this inconsistency.

Among the four mechanisms of discipline and regulation of legal professionals identified by David Wilkins, liability controls have received almost no attention from scholars who study legal professions. This paper presents a comparative analysis of what is known about lawyers’ professional liability drawing on reports concerning a group of 13 countries representing every continent. The discussion covers three topics: the frequency of LPL claims; the areas of practice that produce LPL claims; and insurance requirements and arrangements for compensating those who successfully bring an LPL claims. The analyses show that empirical information is available for only a small subset of the countries considered, but what is available shows very substantial variation in both the frequency of claims and the areas of practice producing those claims. Insurance requirements and arrangements also vary substantially, with LPL insurance being mandatory in only about half of the countries.

Litigation is a highly structured process of dispute resolution that invokes the power of the state, or a contractually agreed-upon private decision-maker, to provide a means to authoritatively adjudicate a dispute between two or more parties. Key theoretical issues for understanding litigation include rights, procedures, incentives, and uncertainty. Rights focus on who has access to litigation and under what circumstances; procedures deal with the processes employed in the litigation process (with a major distinction between adversarial and investigatory procedures); incentives turn on both what can be achieved through litigation and how the costs of employing litigation are determined and distributed; uncertainty reflects the strategic nature of litigation. The frequency of litigation varies among countries, but precise estimates of the quantity or rate of litigation are difficult to determine, due to differences in what is included and what is counted. Litigation is typically conducted through agents (lawyers) who have their own set of incentives. Litigants can be divided into one-shot and repeat players, with the latter enjoying a range of advantages reflecting resources, experience, and time horizon. Litigation procedures are frequently criticized as costly and slow; for these reasons, reform of those procedures occurs with some regularity.

In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.

All professionals make mistakes and sometimes those mistakes harm the clients or patients. What happens when this occurs and the professional involved is a lawyer? Surprisingly, there is virtually no empirical research on legal malpractice. In contrast, there is an extensive empirical literature on medical malpractice and the legal handling of legal malpractice claims. This literature examines the frequency of medical malpractice claims, how they are handled, how they are resolved, and their impact on access to and cost of medical care. The absence of a similar literature concerning legal malpractice is at least somewhat surprising given that there are roughly equal numbers of private practice lawyers and patient care physicians in the United States.In this paper we provide an empirical portrait of legal malpractice claims and their resolution. We draw on a wide range of data sources including reports published by the American Bar Association, reports from individual insurers, and data sets obtained from insurance regulators in Florida and Missouri. We examine a wide range of questions including the areas of practice producing large numbers of claims, the types of errors alleged in the claims, the practice settings and experience of the lawyers subject to the claims, the likelihood that claims are successful and the amounts paid in damages in successful claims and how the outcomes vary depending on factors such as the area of practice and the size of firm, and the frequency and outcomes of trials of legal malpractice cases including some comparisons to trials involving other types of professional malpractice.A central finding of our analysis is that there are essentially two hemispheres of legal malpractice paralleling the two hemispheres of the bar identified by Heinz and Laumann in their study of the Chicago bar. In the personal services sector one finds mostly relatively small stakes cases often involving plaintiffs’ personal injury, real estate, family law, and collections and bankruptcy; much of the insurance coverage is provided by mutual insurers started by and/or affiliated with state bars. In the corporate sector stakes tend to be very large, and cases involve corporate matters, corporate litigation, and high stakes areas such as intellectual property and securities; insurance is provided by either by specialized insurers or through brokers who put assemble a group of insurers to cover a large law firm.

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.

Justices on the Ballot addresses two central questions in the study of judicial elections: how have state supreme court elections changed since World War II? And, what effects have those changes had on election outcomes, state supreme court decisions, and the public’s view of the courts? To answer these questions, Herbert M. Kritzer takes the broadest scope of any study to date, investigating every state supreme court election between 1946 and 2013. Through an analysis of voting returns, campaign contributions and expenditures, television advertising, and illustrative case studies, he shows that elections have become less politicized than commonly believed. Rather, the changes that have occurred reflect broader trends in American politics, as well as increased involvement of state supreme courts in hot-button issues.