In the Fall of 2004 I began a new research project involving observation in a law firm with a significant practice in the area of insurance defense. This firm, which I call Etling, Burke & Howe, was selected because its work also included some cases involving significant issues of expert testimony.
A preliminary paper, entitled, "Rhetoric and Reality . . . Uses and Abuses . . . Contingencies and Certainties: The American Contingent Fee in Operation" examined extant research and data to describe a variety of aspects of the contingency fee in practice. The results of my original research have appeared in book form as Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States (Stanford University Press, 2004). A brief summary of sum of the important results can be found in:
Responses to a critic of my work can be found at:
I have described various aspects of my results in a series of specific papers:
Critics of the contingency fee have been critical of the results of my study. A response to one critic can be found in a response I published:
Several papers and book chapters from earlier work also considered contingency fees as an aspect of the work of lawyers. See the following:
In the concluding chapter of Legal Advocacy I tentatively advance the idea that recent developments form the core of a phenomenon that I label "post-professionalism." After the publication of the book, I expanded some of the ideas in the last chapter as an essay, "The Professions Are Dead, Long Live the Professions: Legal Practice in a Post-Professional World," which appeared Law & Society Review (1999). This in turn has led to several articles on the status and future of the legal profession, including:
"Disappearing Trials? A Comparative Perspective," Journal of Empirical Legal Studies 1 (2004), pp. 735-754.
"Litigation," in the International Encyclopedia of the Social and Behavioral Sciences (Elsevier Science Ltd., 2001), pp. 8989-8995. Single copies of this article may be downloaded and printed for the reader's personal research and study.
"The Government Gorilla: Why Does Government Come out Ahead?" in Herbert M. Kritzer and Susan S. Silbey (eds.), In Litigation: Do the 'Haves' Still Come Out Ahead? (Stanford, CA: Stanford University Press, forthcoming 2003).
My research on civil litigation began with the Civil Litigation Research Project, which existed from 1979 to 1981, and was based at the University of Wisconsin Law School (David M. Trubek served as Director of the project). The extensive data collected by the project resulted in a large number of publications, including my first two books, The Justice Broker: Lawyers and Ordinary Litigation (Oxford University Press, 1990) and Let's Make a Deal: Negotiation and Settlement in Ordinary Litigation (University of Wisconsin Press, 1991); a summary of early findings from the project appeared as "The Costs of Ordinary Litigation," which was published in 1983 in the UCLA Law Review. Click here for a full bibliography of publications and papers produced as part of CLRP and subseqently drawing upon the data; many of these papers are available on-line. The data from the project is available from the Interuniversity Consortium for Political and Social Research.
In the early 1990s, working under the auspices of the American Judicature Society (and in collaboration with AJS's then director, Frances Kahn Zemans, and Professor Lawrence Marshall of Northwestern Law School), I carried out an extensive survey of lawyers' experiences with the sanctioning provisions of the 1983 version of FRCP Rule 11 (which was later extensively revised in 1993). This project led to three publications:
In light of much of the recent debate on litigation reform, I developed an interest in looking at some of the implications of punitive damages. In particular, I am interested in what is called the "shadow of punitives." Research has shown pretty clearly that punitive awards are fairly rare, and that most are fairly small. However, it may still be true that punitives have major influences on the litigation system (e.g., fear of punitives might greatly influence the handling of litigation and the settlement process). In 1996, working with Frances Zemans, who was then Executive Director of the American Judicature Society, I designed a survey of corporate counsel to try to look at these impacts. Our pretest of that survey was a failure; we obtained almost no responses. We prepared a brief essay discussing our experience trying to do this study in light of the information we were able to distill from several extant data sets which provided some minimmal information on the shadow of punitives. A first version of this essay was presented at a conference on punitive damages held at the University of Wisconsin Law School in the fall of 1996; the essay, "The Shadow of Punitives: An Unsuccesful Effort to Bring It into View," was published as part of the conference proceedings which will appeared as an issue of the Wisconsin Law Review.
The Institute for Legal Studies at the University of Wisconsin had a grant from the Robert Wood Johnson Foundation for a broad- ranging study of litigation related to tobacco and health. As part of this project, I examined the experience of plaintiffs' lawyers who have been approached about possible tobacco-related cases and trends in public opinion that might affect the viability of litigation against tobacco companies. I identified about 40 lawyers in Wisconsin who have been approached by clients with tobacco-related injuries; we conducted brief interviews with those lawyers to ascertain what, if anything, would affect their future decision-making in potential tobacco-related cases. We have identified several several with questions that deal with the attribution for responsibility for tobacco-related health problems. We also carried out a replications of key questions from those surveys in order to determine whether there have been shifts in public perceptions that might have significance for future litigation. We found little evidence of major shifts in public attitudes, at least through May 1996.
An earlier project of mine focused on the propensity to sue. This NSF-funded project produced three published papers:
Several additional papers that remain unpublished were also prepared. These include:
One earlier article also concerned propensity to sue, focusing on the issue of notification in mass torts and class actions:
That article included a table summarizing data about claiming rates in class actions and mass torts. In 2000, I prepared an updated version of that table which is available by request.
Working with the Center for Public Representation and the Elder Law Center (which is a unit of the Coalition on Aging), and with funding from the State Justice Institute, I oversaw an assessment of the adult guardianship process in Wisconsin. The Elder Law Center published a full report of the study, which is summarized in Herbert M. Kritzer, Helen Marks Dicks, and Betsy J. Abramson, "Guardianships in Wisconsin: How Is the System Working?" Marquette Law Review 76 (1993), pp. 549-575.
One theme that has recurred in my writing is the issue of the impact of how lawyers are compensated for their services. In 1994, I was asked to contribute a comment, "Lawyers' Fees and the Holy Grail: Where Should Corporations Search Next?", as part of a symposium in Judicature on "new" approaches that corporations were pursuing to try to control their legal costs.
In 2002, I prepared a paper for a conference at the University of Texas that surveyed the empirical literature on the impact of legal fees: "Lawyer Fees and Lawyer Behavior in Litigation: What Does the Empirical Literature Really Say?" Texas Law Review 80 (June 2002), pp. 1943-1983.
In 2000-01, I conducted a survey to assess public knowledge of several aspects of the American legal system. One aspect of that survey examined the public's knowledge of the size of typical personal injury jury awards. My analysis of these data shows that
This paper, "Public Perceptions of Civil Trial Verdicts," published in Judicature, Vol. 85 (September-October 2001), also looks at what factors correlate with (1) whether the respondent was willing to provide an estimate, (2) the estimated typical verdict, and (3) whether the estimated typical verdict was $1 million or more.
This collaborative project (my primary collaborator is Mark Richards, a Wisconsin Ph.D. now teaching at Grand Valley State University) seeks to develop models of Supreme Court decision making which incorporate explicitly a role for law. A first publication from this project appeared in 2002 in the American Political Science Review; a second publication, focusing on Establishment Clause cases, appeared in 2003 in Law & Society Review
In addition, five convention papers have been presented from this project, one of which was authored by Mark Richard:
Additional papers and materials from this project are available on Mark Richards' website.
Papers extending this work have been presented at
Related to this work is a book chapter which appeared in a volume entitled Judicial Pioneers edited by Nancy Maveety (University of Michigan Press, 2002). My contribution to book is an essay on Martin Shapiro's contributions to institutional analyses of law and courts.
As part of a grant from the State Justice Institute, I worked with staff from the Wisconsin Supreme Court to design and carry out a study of citizens' views of their experience with the Wisconsin courts. The results of that study, which found generally positive views, was published as a report by the Supreme Court. A summary of that report, along with comparisons to studies from other states, appeared in Judicature in 1998. The Judicature article includes a brief summary table of other state-level studies of public evaluations of the courts, and notes that an expanded table is available from my Web site. Growing out this, I was asked to prepare a presentation for meeting of World Bank staffpersons, which I entitled "What Do They Know and When Do They Know It? Using Public Opinion to Evaluate Institutional Performance."
Drawing on a survey that happened to be in the field at the time of the 2000 Presidential election, I have prepared a paper that examines the impact of the Supreme Court's action in the Florida ballot controversy on the public's evaluation of the Court and the public's knowledge of the Court. I found significant, albeit modest, impacts on both evaluation and knowledge. This paper, "Into the Electoral Waters: The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court," appeared in the July-August 2001 issue of Judicature; a somewhat expanded version was presented at the 2001 annual meeting of the Law & Society Association, Budapest, Hungary, July 4-7.
A paper examing a trend data from a variety of surveys (Gallup. Pew, National Election Study, General Social Survey, and the Wisconsin Continuous Telephone Survey) describes the patterns of public support for the Supreme Court during William Rehnquist's tenure. The paper, "The American Public's Assessment of the Rehnquist Court," which appeared in the November/December 2005 issue of Judicature
In an earlier study, done in collaboratively with Charles Franklin and Liane Kosaki, we examined the salience of Supreme Court decisions. Using a daily survey extending over eight months from January through August 1992, we assessed the likelihood that respondents were aware that the Court had actually decided several cases, the most prominent of which was the abortion decision in Planned Parenthood v. Casey (1992). The results of this study were reported in two papers presented at professional meetings:
I have a continuing interest in English legal process. This is reflected in a 1992 essay on "The English Rule," in ABA Journal 78 (November 1992), pp. 54-58, and an article comparing patterns of blaming and claiming in after injuries in England and the United States:
"Propensity to Sue in England and the United States: Blaming and Claiming in Tort Cases," Journal of Law and Society 18 (1991), pp. 452-479.
Most recently, I prepared an article on patterns of trials in England and Wales (and the Canadian province of Ontario) as a comparison to work by my colleague Marc Galanter examining the decline in trials in the United States:
"Disappearing Trials? A Comparative Perspective," Journal of Empirical Legal Studies 1 (2004), 735-754.
I contributed a chapter on law, politics, and judicial process in England to a book edited by Herb Jacob. The book, entitled Courts, Law, and Politics in Comparative Perspective, was published in 1996 by Yale University Press. The book also includes chapters on United States (by Herb Jacob), Germany (by Erhard Blankenberg), France (by Marie Provine), and Japan (by Joseph Sanders).
Other work related to England include two long review essays, one focusing on Hazel Genn's book on settlement of personal injury claims in England, and one focusing on Richard Abel's extensive comparative analysis of legal professions in England and the United States.
In 2001, I presented a paper at the W.G. Hart Workshop, Institute for Advanced
Legal Studies (London), which was subsequently published in the International
Journal of the Legal Profession, entitled "The
Fracturing Legal Profession: The Case of Plaintiffs' Personal Injury Lawyers."
This paper includes a discussion of the likely impacts of ongoing changes in
English legal processes on the solicitors' profession.
I served as General Editor of Legal Systems of the World (Santa Barbara, California: ABC-CLIO, 2002). This is a four volume encyclopedia which provides basic information about legal and court systems around the world along with information on transnational judicial bodies, jurisprudential ideas, key elements of court systems, and central concepts about law and courts. Legal Systems of the World is available the publisher or through on-line book dealers such as Amazon.com.
For Legal Systems of the World, I prepared the entry on "San Marino," [in Herbert M. Kritzer (ed.), Legal Systems of the World (Santa Barbara, California: ABC-CLIO, 2002), pp. 1400-1403]
This project was my effort to develop an integrated perspective on how data are interpreted
by social scientists. I published three papers from this project. The first, "Interpretation and Validity Assessment in Qualititative
Research," which appeared in Law & Social Inquiry (1994)
was a review essay of H.W. Perry's book, Deciding to Decide, focusing
on issues of data analysis and interpretation when the data are qualitative
in nature. The second, "The Puzzle of Data:
Interpretation in Quantitative Research," American Journal of Political
Science (1996), dealt with the general issue of interpretation in quantitative
analysis. The third paper, "'Data, Data, Data, Drowning
in Data!' Crafting The Hollow Core," appeared in Law &
Social Inquiry (1996) and provided an analysis of interpretation in a specific
quantitative research project.
"'Loser Pays' Doesn't," Legal Affairs (November/December 2005), pp. 24-25.
“Access to Justice for the Middle Class,” pp. 257-268 in W.A. Bogart, Frederick Zemans, and Julia Bass (eds)., Access to Justice for the New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005).
"American Adversarialism [AReview Essage focusing on Adversarial Legalism, by Robert Kagan] ," Law & Society Review 38 (2004), 349-383.
“The Impact of Law: A View from North of the Border [A Review Essay focusing on Consequences: The Impact of Law and its Complexity, by W.A. Bogart].” Judicature 88 (September-October 2004), 38-41.
"The Government Gorilla: Why Does Government Come out Ahead?" pp. 342-370 in Herbert M. Kritzer and Susan S. Silbey (eds.), In Litigation: Do the 'Haves' Still Come Out Ahead? (Stanford, CA: Stanford University Press, 2002).
"Evaluating the American Law Institute: Research Issues and Prospects," Law & Social Inquiry 23 (1998),
"Public Notification Campaigns in Mass Litigation: The Dalkon Shield Case," Justice System Journal 13 (1988-89), pp. 220-239.
"The Dimensions of Lawyer-Client Relations: Notes toward a Theory and a Field Study," American Bar Foundation Research Journal 1984: 409-425.
"Fee Arrangements and Fee Shifting: Lessons from the Experience in Ontario," Law and Contemporary Problems 47 (Winter 1984), pp. 125-138.
"Political Culture, Trial Courts, and Criminal Cases," pp 131-169 in Peter Nardulli (ed.), The Study of Criminal Courts (Cambridge, Massachusetts: Ballinger, 1979).
"Federal Judges and Their Political Environments: The Influence of Public Opinion," American Journal of Political Science 23 (February, 1979), pp. 194-205.
"Enforcing the Selective Service Act: Deterrence
of Potential Violators," Stanford Law Review 30 (July 1978),
"Political Correlates of the Behavior of Federal District Judges: A Best Case' Analysis," Journal of Politics 40 (1978), pp. 25-58.
(Herbert M. Kritzer and Thomas M. Uhlman) "Sisterhood in the Courtroom: Sex of Judge and Defendant as Factors in Criminal Case Disposition," Social Science Journal 14 (April 1977), pp. 77-88.
"Sanctions and Deviance: Another Look," IUSTITA 3 (1975), pp. 18-28.
(Thomas M. Uhlman and Herbert M. Kritzer) "The Presidential Ambition of Democratic Senators: Its Timing and Impact," Presidential Studies Quarterly 9 (Summer 1979), pp. 316-328.
(Herbert M. Kritzer and Robert B. Eubank) "Presidential Coattails Revisited: Partisanship and Incumbency Effects," American Journal of Political Science 23 (August 1979), pp. 615-626.
"Ideology and American Political Elites," Public Opinion Quarterly 42 (Winter 1978), pp. 484-502.
"The Representativeness of the 1972 Presidential Primaries," Polity 10 (Fall 1977), pp. 121-129.
"A Theory of Unconventional Political Action: The Dynamics of Confrontation," pp. 108-132 in Marjo Hoefnagels (ed.), Repression and Repressive Violence (Amsterdam: Swets & Zeitlinger, 1977).
"Political Protest and Political Violence: A Nonrecursive Causal Model," Social Forces 55 (March 1977), pp. 630-640.
(Lewis Lipsitz and Herbert M. Kritzer) "Unconventional Approaches to Conflict Resolution: Erikson and Sharp on Nonviolence," Journal of Conflict Resolution 19 (December 1975), pp. 713-733.
"After Prison: The Thoughts of Resisters,"
WIN Magazine (September l2, 1974), pp. 14-15.
"Nonviolent National Defense: Concepts and Implications," Peace Research Reviews 5 (April 1974), pp. 1-57.
"The Military as a Target of Protest," Gandhi Marg 17 (January 1973), 58-73.
"Stories from the Field: Collecting Data Outside Over There," pp. 143-159 in June Starr and Mark Goodale (eds.), Practicing Ethnography in Law: New Dialogues, Enduring Methods (New York: Palgrave/St. Martin's Press, 2002)
"Substance and Method in the Use of Ratio Variables, or the Spurious Nature of Spurious Correlation?" Journal of Politics 52 (February 1990), pp. 243-254.
"Using Categorical Regression to Analyze Multivariate Contingency Tables," pp. 157-201 in William D. Berry and Michael S. Lewis-Beck (eds.), New Tools for Social Scientists: Advances and Applications in Research Methods (Beverly Hills, California: Sage Publications, 1986).
"Mothers and Fathers, and Girls and Boys: Socialization in the Family Revisited," Political Methodology 10 (1984), pp. 245-265.
"Testing for Change in Relational Measures," Political Methodology 10 (1984), pp. 143-164.
"The Identification Problem in Cohort Analysis," Political Methodology 9 (1983), pp. 35-50.
"Comparing Partial Rank Order Correlation Coefficients from Contingency Table Data," Sociological Methods & Research 8 (May 1980), pp. 420-433.
"Problems in the Use of Two Stage Least Squares: Standardization of Coefficients and Multicollinearity," Political Methodology 3 (Winter 1976), pp. 71-93.
"Approaches to the Analysis of Complex Contingency Tables: A Guide for the Perplexed," Sociological Methods & Research 7 (February 1979), pp. 305-329.
"Analyzing Contingency Tables by Weighted Least Squares: An Alternative to the Goodman Approach," Political Methodology 5 (1978), pp. 277-326.
"An Introduction to Multivariate Contingency Table Analysis," American Journal of Political Science 22 (February 1978), pp. 187-226.
"Analyzing Measures of Association Derived from Contingency Tables," Sociological Methods & Research 5 (May 1977), pp. 387-418.
"Simultaneous Equations in Path Analysis: A Comparison of Goodman's Technique to the Traditional Econometric Solution," Political Methodology 4 (Winter 1977), pp. 1-21.
"Sources of Role Orientations: Reality or Chance?" Journal of Politics 37 (November 1975), pp. 1048-1055.
(Herbert M. Kritzer, A. Paul Hare and Herbert H. Blumberg) "The General Survey: A Short Measure of Five Personality Dimensions," Journal of Psychology 86 (January 1974), pp. 165-172.
Last Updated on March 3, 2006
By Bert Kritzer