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This claim is frequently heard in news (and especially in TV and movies). Especially in connotation with big companies and rich individuals - "They'll get the best lawyers money can buy, and they'll get by with anything".

My feeling is that this is not how a just system would be designed - isn't the law clear enough that assuming everybody is informed of all the laws, trials should have the same outcome no matter who is involved ?

Since I've heard this mostly from popular media, based on the US justice system, let's limit the scope to that jurisdiction. Also, the jury system might be part of the answer.

Sklivvz
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Martin T.
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3 Answers3

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Lawyers make a difference as the following data from a study on public safety worker disputes in New Jersey (source: Orley Ashenfelter and David Bloom "Lawyers as Agents of the Devil in a Prisoner's Dilemma Game" NBER Working Paper No. 447, September 1993)

Fractions of awards won by the employer

                                  Union used:
                             No Lawyer    Lawyer

                 No Lawyer       44%        23%
Employer used:
                 Lawyer          73%        46%

The point being made was that having a lawyer increased the chance of winning, but both sides using lawyers tended to cancel each other on average; both sides would therefore benefit in the long term if neither used lawyers.

It is highly plausible that the same issue arises with more successful lawyers, which is why they are paid more in the marketplace.

Henry
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    Personally, I have a hard time trusting that a paper titled "Lawyers as Agents of the Devil..." is even remotely non-biased. – Russell Steen Mar 24 '11 at 14:30
  • @Russell Steen The authors are affiliated with NBER. Do you realize how esteemed NBER is in the economics world? NBER is extensively affiliated with Harvard's and MIT's econ departments, as they are all located in Cambridge MA, so that should give you a clue. There is almost certainly no overt bias in the paper. In any case, I feel like the title is either an allusion to Milton to Maxwell's Demon, but I'm not sure. – Uticensis Mar 24 '11 at 16:06
  • Yeah, I would assume "Agent of the Devil" is just a role description, like "Devil's Advocate". – Martin T. Mar 24 '11 at 16:13
  • This answer doesn't mention the precedent and "arguing the judge/jury" thing explicitly, but I like the numbers. – Martin T. Mar 28 '11 at 08:09
  • I'm pretty sure it's just a name from Game Theory. Just like the Prisoner's Dilemma in the title. – Lagerbaer Apr 11 '11 at 14:59
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    It doesn't appear to be a standard term. That said, they are basically showing that the availability of lawyers is equivalent to offering the defect choice in the prisoner's dilemma game. it's not uncommon for researchers to express their conclusions pithily in the title - I'd be more concerned about hyperbole in the paper (the introduction seems to be a common place). In this case, it isn't there. – Jivlain Apr 21 '11 at 11:44
  • They also offer several other cases - discharge grievances, plaintiff claims and child custody - with similar results. – Jivlain Apr 21 '11 at 11:46
  • Oh, yeah, and if anyone wants to read the paper, a [preprint](http://www.irs.princeton.edu/pubs/pdfs/270.pdf) is available – Jivlain Apr 21 '11 at 11:52
  • Some academic economists (that I have met) expend a large amount of time thinking about the most catchy title of a paper so that it will attract people to read it. – Jase Nov 30 '12 at 14:34
  • It could be that having a lawyer just leads to a weak case not going to court, or that people with week cases are not willing to risk the cost of a lawyer. Hence you have not shown that "having a lawyer" is what leads to winning the case. – Ian Ringrose Apr 20 '16 at 12:45
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The key is in your question

My feeling is that this is not how a just system would be designed - isn't the law clear enough that assuming everybody is informed of all the laws, trials should have the same outcome no matter who is involved?

The law system is very complex (and especially in the US, since US has a lot of very old laws, while many other countries just sit down and rewrite all laws after some major event like revolution). So knowing, understanding and being able to apply the laws requires a lot of knowledge, experience and discipline.

The laws themselves (phrasing in acts and codes) are one thing, whether and how they are being applied is another thing. Actually knowing the laws and being able to make use of them is very important for fair (or beneficial) outcomes. That's what lawyers are for.

Of course, a bad lawyer can be even more incompetent and useless than a determined citizen - as with any other specialists.

A hypothetical example. You buy a computer and it's malfunctioning and you file a lawsuit against the retailer. You come to the court and the defendant just doesn't come - he knows that according to an applicable law he can do that and noone will do anything about that because there's no evidence the subpoena has been served to him. You start panicking and now it's easier for the other party to talk you into a settlement on worse (for you of course) conditions. The defendant's lawyer acts according to the law - he just knows the procedure better than you.

So those media claims are especially right for large corporations. In many cases knowing the procedure and being able to apply the law is as important as the law itself. A qualified lawyer just knows the procedure better than average Joe does. A corporation will spend a huge sum an lawyers and they will use the procedure to literally exhaust the opponent.

sharptooth
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    The United States is a *young* country. It had a revolution very recently, if I remember - see http://en.wikipedia.org/wiki/American_Revolution. Its laws are complex because it has so many lawyers -- not the other way round. – TonyK Apr 20 '11 at 20:52
  • @TonyK: Great, but compare it to Russian Federation - most of its laws were rewritten in 1990s. – sharptooth Apr 21 '11 at 05:04
  • @TonyK - In terms of governments, 300 years is not small. I think that most of the world population are being governed by very different laws from about 300-400 years ago (China,India, USA, France, US) are some examples. – apoorv020 Apr 21 '11 at 14:29
  • @sharptooth- A great answer btw. `The laws themselves (phrasing in acts and codes) are one thing, whether and how they are being applied is another thing. Actually knowing the laws and being able to make use of them is very important for fair (or beneficial) outcomes. That's what lawyers are for.` – apoorv020 Apr 21 '11 at 14:30
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The U.S. system of law is based on precedents (previous cases that are similar to the current one). Much of the arguing in front of a judge is about what precedent should apply. A lawyer argues that the current case is much like a previous case, here's why they are the same, and here is why the judge should rule in a similar way. I have even read cases where the two opposing lawyers both cited the same case as precedent - the prosecution said it shows the defendant should be found guilty, and the defense saying the EXACT SAME CASE shows the defendant should be found innocent. The better the lawyer, and the more convincing she is, the more likely the judge will rule in her favor. It is similar to debate - whoever comes up with a more convincing argument often wins.

fred
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  • It's not that I disagree with your assessment, but at skeptics.se it's pretty much required to source your answers. – Shadur Jan 17 '20 at 08:58