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Abstract
In spite of popular perceptions about legal actors operating in a competitive environment, political scientists note that long-term relationships among attorneys, judges, and court personnel develop over time. These working relationships can help attorneys achieve positive outcomes for their clients, increase efficiency in court proceedings, and help enhance attorneys’ professional reputations. But what happens when attorneys have to venture out of familiar territory to try a case? Using a survey of attorneys practicing in a southeastern state, we explore the extent to which civil and criminal litigators perceive unfair treatment by judges and court personnel when practicing in unfamiliar jurisdictions. Are certain types of attorneys more apt to perceive unfair treatment than others? The results show that, compared to white male attorneys, minority men perceive more unfair treatment from judges, and white women perceive more unfair treatment from court staff. Perceptions of unfairness are also generally higher for attorneys with fewer years in the profession, though very experienced minority men report much higher levels of unfair treatment by judges than other similarly experienced groups. This suggests that the challenges associated with working in a new or less familiar setting are not felt equally across all attorneys. The findings have important implications for understanding potential barriers for diverse groups within the legal profession.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Quote from anonymous North Carolina attorney, drawn from our survey.
2 To be clear, Miller and Sarat (Citation1980) are describing injuries and grievances with respect to potential litigants, not attorneys, and our focus is on attorneys who might perceive discriminatory behavior.
3 A task force examining gender bias in the Maryland court system found a number of egregious examples. One male judge told female attorneys that he only hired attractive women for clerkships “because [he] had to look at them the whole year” (O’Neill and Czapankiy Citation1989, 43). A female attorney observed, “Judges, lawyers, clerks, etc. … definitely discriminate against women, particularly the older members of the [bar]. I’ve been treated like a child and called little girl in front of my clients…by judges, and I resent it” (quoted in Thompson Citation1990–91, 303). The task force concluded that judges and court personnel sometimes were “disrespectful and demeaning” in how they addressed female attorneys and made comments about their personal appearance (Thompson Citation1990–91, 302–03).
4 One ethnography found that Latina attorneys were frequently mistaken for interpreters or other administrative staff when they showed up for their court appearances (Garcia-Lopez Citation2008).
5 The average responses for white women, black women, and Latinas significantly differed from the mean for white men. While Hispanic women reported observing more gender bias than Hispanic men, there was no significant difference between African American women and African American men.
6 We include a control for how much of an attorney’s practice involved litigation (self-reported). Those who reported that zero percent of their practice involved litigation (119 total respondents or 5.7 percent of the sample) were excluded, as those who do not litigate at all are unlikely to be in a courtroom and interact with judges or court staff. In addition, we estimated alternative models using other litigation cut points, but these did not significantly change the results.
7 These options included: “My clients and I are treated much less fairly by judges outside my home area”; “My clients and I are treated somewhat less fairly by judges outside my home area”; “My clients and I are treated about the same from judges outside and within my home area”; “My clients and I are treated somewhat more fairly by judges outside my home area”; and “My clients and I are treated much more fairly by judges outside my home area.”
8 While the original survey question asked attorneys about their treatment by outside judges and court personnel on a five-point scale, only 18 respondents (less than 1 percent) said they were treated much better by outside judges, and only 13 said they had “much better” treatment from outside administrators. Given the limited number of respondents who reported significantly better treatment when working outside their home area, we collapsed the dependent variable into three categories; however, our results are robust to either specification of the dependent variable (five-category or three-category).
9 The survey instrument allowed respondents to define what they considered to be their home area. For respondents included in this study about 7 percent said their “home area” was one city, 23 percent said one county, 42 percent said one district (which in North Carolina could be multiple counties), and 28 percent selected “other” when they were describing their home area. Most of the “other” responses indicated a statewide practice, multiple counties, or a more regional practice such as “Western North Carolina.”
10 We follow the practice area designations used by the American Bar Association. For an example, see the ABA publication on “Lawyer Demographics” at www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2013.authcheckdam.pdf.
11 Although the survey did not include a question about respondent age, it did ask attorneys to indicate the year that they passed the bar.
12 Of the respondents to our survey, 92% (1,808) were white, 5% (98) were African American, and roughly 1% were Latino/a (18), Asian (16), or another race (19). Ideally, we would like to model minority women and men’s experiences across different racial categories; however, the limited number of observations for each category prevents a meaningful analysis. As such, we rely on aggregate responses for all minority men and all minority women for our main models.
13 We note that the likelihood-ratio test was significant in both models, indicating potential issues with the parallel regression assumption necessary to estimate an ordered logit. Further Brant tests (Brant Citation1990; Long and Freese Citation2014) identified four control variables (career satisfaction and three of our practice-type controls) as the source of the problem. To evaluate the robustness of our results, we estimated alternative models using generalized ordered logit, which allows researchers to relax the partial regressions assumption where needed (Williams Citation2016). The results (not shown here) indicate that the statistically significant variables from Models 1 and 2 remain unchanged, regardless of specification.
14 When the excluded, reference category is rotated so that it is “nonwhite women,” this reveals some evidence that white women and nonwhite male attorneys are also more likely to report unfair treatment than minority women (p < .10, two-tailed), although white males are not statistically distinguishable from nonwhite female attorneys.
15 Of course, not all minority groups experience disparate treatment in the same manner. Unfortunately, neither our data nor the composition of the NC state bar allows for extensive disaggregation of racial and ethnic groups by gender in multivariate models. However, in alternative models (not shown), we test the influence of sex and racial/ethnic identity separately, rather than using race-sex cohorts. When we include a dichotomous variable for sex, female attorneys report more unfair treatment by outside court administrators but are no more likely than males to report unfair treatment by outside judges. For race alone, we see that minorities are no more likely to report unfair treatment from judges or court administrators than white attorneys. When we utilize three racial variables (white, African American, and all other nonwhite attorneys), other minority attorneys (including Latinos and Asians) are statistically more likely to report unfair treatment by both outside judges and outside court administrators than white or African American lawyers. However, given prior findings on the overlapping influence of race and sex (Collins, Dumas, and Moyer Citation2017b), we believe that the intersectionality approach provides the best insight to the shared influence of demographic factors on perceptions of unfairness.
16 For ease of interpretation, these probabilities represent the likelihood that a respondent would report she and/or her clients were treated either “somewhat less fairly” or “much less fairly” by judges outside their home area (the lowest two values on our ordinal dependent variable in Models 1 and 2).
17 Most existing research that polls attorneys about discriminatory treatment does not specify which judges or court staff the respondents should refer to in their answers. Thus, an innovation of this study is that we ask respondents to characterize the behavior of “outside” court actors. However, we recognize that because there is no measure of how often unfair treatment occurs in an attorney's “home” territory, we lack the ability to make comparisons. Future research should continue to parse the differences between different types of court settings.