Lawyer rankings either do not matter for litigation outcomes or are redundant

ABSTRACT

I investigate the success of litigants in tax cases in England and Wales between 1996 and 2010. I explore the effect upon success of having better-ranked legal representation, according to rankings of barristers published by Chambers. I find that, for a variety of model specifications, there is no significant positive effect of having better-ranked legal representation. After conducting a sensitivity analysis, I conclude that better-ranked legal representation might have a positive effect on litigation outcomes, but only if better-ranked lawyers receive cases that are substantially more difficult to win. However, if better-ranked lawyers receive substantially more difficult cases, this suggests consumers of legal representation are sophisticated enough to dispense with legal rankings.

Acknowledgments

I should like to thank Antonios Karatzas for cleaning the litigation data and entering the rankings data. I should also like to thank the participants at the 2013 Sociolegal Studies Association Annual Conference in York for their comments on a draft version of this paper. I should also like to thank the reviewers: the article is much clearer thanks to their suggestions. The data used in this article are available online: see https://gist.github.com/anonymous/933e185f013c73301c48. The R code used is also available online, at https://gist.github.com/anonymous/e02e67feddedc2a8cff6.

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Chris Hanretty http://orcid.org/0000-0002-8932-9405

Notes

1. There is an alternative explanation, which is based on the effects of reputation. Suppose two lawyers, A and B, represent the same client in the same case, but that A has a high ranking and B has a low ranking. Suppose further that both lawyers make the same arguments. We might think that the judge hearing the case might evaluate A's arguments differently because of A's higher ranking. This alternative explanation is extremely difficult to test observationally, just because the legal system typically frowns on arguing the same case twice.

2. Barristers are lawyers who enjoy rights of audience in all courts in England and Wales. Solicitors and in-house counsel may appear in lower courts, or in higher courts after meeting certain additional requirements. The tension between barristers and solicitors regarding rights of audience in higher courts is recounted by Abel (2003, pp. 159–184).

3. Note, however, that of the counsel who argued a case in 2010, and who thus feature in the data discussed below, men were not significantly more likely to be listed in Chambers: = 0.0329 on 1 d.f., p = 0.86. It is difficult to test for ethnic biases given the ethnically homogeneous character of the English bar.

4. Some years could not be sourced due to difficulties locating the print editions of the guide.

5. Online supplementary material explores the results if lagged ranks or all-career averages are used instead of the rank in the given year. The results are similar.

6. I ignore nine cases which could not be coded in this way. Most of these cases were remitted to another court for a particular point to be considered.

7. Description taken from http://www.lexisnexis.co.uk/store/uk/Simons-Tax-Cases-Set/product.

8. See, for example, the description given of Paul Lasok QC's tax practice: “He is equally appreciated by both the tax payer and the government”. See http://www.monckton.com/barrister/paul-lasok-qc/, accessed 12 August 2015. In the present data, 50 counsel appeared for both sides in the relevant period, or just over one-eighth.

9. Of the six decisions in joined cases, split outcomes occurred in four: [2003] STC 35, [2008] STC 3090, [2008] STC 885 and [2010] STC 1965.

10. Using the length of words of the decision is somewhat unsatisfactory, since counsel quality might affect decision length. Online supplementary materials therefore use an alternative measure of complexity, namely the number of cases cited in the judgment. The results are similar.

11. Online supplementary material includes a regression model which uses the maximum rank instead of the average rank. The results are similar.

12. Indeed, this was the argument made by the Office of Fair Trading when it considered the status of Queens’ Counsel [“it is difficult to understand the client's need for a quality mark where restrictions upon direct access by clients to barristers remain in place and barristers’ services are consequently purchased by solicitors who are specialists” (Office of Fair Trading, 2001)].

Additional information

Funding

The data collection for this article was funded by the ESRC Centre for Competition Policy.