Screening, Sorting, and Selecting in Complex Personal Injury Cases: How Lawyers Mediate Access to the Civil Justice System

by Trautner, Mary Nell.

Personal injury lawyers aid clients who see themselves as victims of medical, commercial, or other forms of negligence and who seek compensation through the civil justice system. Previous studies have suggested that these lawyers are highly selective, accepting only a small percentage of potential cases with which they are presented. Yet little is known about the actual process of screening. How do lawyers decide which cases to accept and which to decline? Do lawyers agree on the factors that make a good case and those which make a bad case? How might local legal and cultural environments influence the screening process? These questions, and related issues of access, inequality, policy, and justice, are at the core of this dissertation. Using in-depth interviews and an experimental vignette study given to 83 lawyers who specialize in medical malpractice and products liability, I examine the case screening process, paying particular attention to the roles of tort reform and the legal cultures and environments in which lawyers work. Half the lawyers I interviewed practice in states which are considered to be difficult jurisdictions for the practice of personal injury law due to tort reform and conservative political climates (Texas and Colorado), while the other half work in states that have been relatively unaffected by tort reform and are considered to be more “plaintiff friendly” (Pennsylvania and Massachusetts). Lawyers respond not only to legal rules and changes to those rules, but also to their perceptions of how jurors will respond to and evaluate their case. My analyses show that while lawyers in both types of states accept roughly the same percentage of 11 cases, they do so using different approaches and theories of liability. When making distinctions between good and bad cases, lawyers in states without tort reform emphasize the importance of a client’s “likeability” and jury appeal, while lawyers in states with tort reform place more importance on characteristics related to the defendant, particularly the strength of liability and causation. I address the implications of intended and unintended consequences of tort “reform” for inequality, access, and the growth or inhibition of tort law itself. 12