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Do Better Lawyers Win More Often? Measures of Advocate Quality and Their Impact in Singapore's Supreme Court

Published online by Cambridge University Press:  05 August 2020

Simon CHESTERMAN Open the ORCID record for Simon CHESTERMAN [Opens in a new window]
Simon CHESTERMAN*
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National University of [email protected]
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Abstract

Parties to a dispute that goes to court typically seek to retain the best lawyer they can afford. But do the ‘best’ lawyers get better results? This article surveys the literature across various jurisdictions before introducing a recent study of determinants of litigation outcomes in Singapore. The focus is on whether there is a correlation between various measures of lawyer quality (size of law firm, professional status, years of experience, etc) and actual success in court. Consistent with past studies, larger and better-resourced law firms tend to do better on average – though Singapore is unusual in that the Government Legal Service functions like the largest and best-resourced law firm. Individual lawyers, however, yield unusual results, with more experienced lawyers sometimes having a lower success rate in court – perhaps due to them taking on more complex cases. The study also shows that women are significantly underrepresented as lead counsel in Singapore, but on average may outperform men.

Type
Article
Information
Asian Journal of Comparative Law , Volume 15 , Issue 2 , December 2020 , pp. 250 - 280
Copyright
Copyright © National University of Singapore, 2020

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Footnotes

*

Dean and Provost's Chair Professor of Law, Faculty of Law, National University of Singapore (NUS). Research for this project was supported in part by the Singapore Judicial College. Conceptualization and analysis benefited greatly from discussions with NUS Senior Deputy President and Provost Professor Ho Teck Hua and Associate Professor Przemysław Jeziorski at the Haas School of Business, UC Berkeley. Many thanks to former Justices’ Law Clerks Seah Ee Wei and Ho Jiayun, Bu Fan and Jerrold Soh from Lex Quanta, and student research assistants Shaun Lim Sheng Kang, Estella Low Yue Jia, Shawn Callen Kua Shao, and Tan Kah Wai. Thanks also to Lance Ang Wen Pin, Gary Bell, Michael Bridge, Damian Chalmers, Chen Weitseng, Alastair Chetty, Lynette Chua, Cleon Fong, Andrew Halpin, Ho Jiayun, Hu Ying, Arif Jamal, Swati Jhaveri, Rachel Leow, Li Zixuan, Loy Wee Loon, Joshua Phang, Muhammad Nurshazny Bin Ramlan, Lucy Reed, Elsa Sardinha, Seah Ee Wei, Daniel Seng, Jerrold Soh, Alec Stone Sweet, Michael Sturley, Tan Hsien-Li, Tan Lee Meng, Tan Yock Lin, Tan Yong Quan, Alan Tan, David Tan, Wilson Tay Tze Vern, Christopher Thomas, Vicha Mahakun, Wang Jiangyu, Helena Whalen-Bridge, and two anonymous reviewers for comments on earlier drafts. The views expressed are those of the author alone.

References

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30. ibid 222 (Lord Diplock).

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34. Chong Yeo & Partners & Anor v Guan Ming Hardware & Engineering Pte Ltd [1997] SGCA 63, [1997] 2 SLR(R) 30, [51] (Yong Pung How CJ observed that ‘[m]any of the problems highlighted would not be faced locally as juries are no longer in use here’).

35. Strickland v Washington, 466 US 668 (1984), [41], [56].

36. See eg Padilla v Commonwealth of Kentucky, 559 US 356 (2010) (ineffective assistance of counsel found in a case where the lawyer incorrectly advised a non-citizen defendant that pleading guilty would not lead to deportation).

37. Bellamy v Cogdell, 974 F2d 302 (2d Cir 1992).

38. People v Garrison, 765 P2d 419, 440 (Cal 1989).

39. Muniz v Smith, 647 F3d 619 (6th Cir 2011).

40. See eg New York State Unified Court System, ‘Rules of Professional Conduct, Part 1200’ (New York Department of State 2013), r 7.1.

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44. See Part I.C above.

45. See eg Small Claims Tribunals Act (Cap 308, 1998 Rev Ed) (Singapore), s 23(3) (parties in claims not exceeding $10,000 not to be represented by advocates or solicitors, paid or otherwise).

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54. McGuire, Kevin T, ‘Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success’ (1995) 57 Journal of Politics 187, 194CrossRefGoogle Scholar. There are some methodological limitations to this study as it treats the number of Supreme Court appearances in that six-year window as the level of ‘experience’ before the Court. Hence someone who appears ten times in that period at the end of a long career is treated as having the same experience as someone who appears ten times in that period at the beginning of their career.

55. ibid.

56. Abrams & Yoon (n 52) 1150, 1169. They found that the race of the public defender was also significant, with Hispanic lawyers achieving sentences 26% shorter than those of black or white lawyers.

57. Haire, Susan Brodie, Lindquist, Stefanie A & Hartley, Roger, ‘Attorney Expertise, Litigant Success, and Judicial Decision-Making in the US Court of Appeals’ (1999) 33 Law & Society Review 667, 676–682CrossRefGoogle Scholar.

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61. As of January 2020 there were eighty-eight on the list maintained by the Singapore Academy of Law, of whom four were honoris causa, and four are deceased: ‘Senior Counsel’ (Singapore Academy of Law, 6 Jan 2020) <www.sal.org.sg/Services/Appointments/Senior-Counsel/Directory> accessed 30 Jun 2020. The number of lawyers is the 2019 figure provided by the Law Society: ‘Number of Practitioners’ (Law Society, 30 Jun 2020) <https://www.lawsociety.org.sg/news-media/statistics> accessed 30 Jun 2020.

62. Legal Profession Act (Cap 161, 2009 Rev Ed), s 30(1).

63. ibid s 15(1)(c).

64. This anecdote is gathered from confidential interviews.

65. Alok Prasanna Kumar, ‘Does a Senior Counsel Double Your Chances of Success in the SC? Research Suggests It Might’ (Legally India, 15 Sep 2015) <https://www.legallyindia.com/the-bench-and-the-bar/does-a-senior-counsel-double-your-chances-of-success-in-the-sc-research-suggests-it-might-20150915-6602#:~:text=Research%20suggests%20it%20might,-By%20Alok%20Prasanna&text=Research%20by%20the%20Vidhi%20Centre,cases%20without%20a%20senior%20advocate.> accessed 30 Jun 2020. See also Galanter, Marc & Robinson, Nick, ‘India's Grand Advocates: A Legal Elite Flourishing in the Era of Globalization’ (2013) 20 International Journal of the Legal Profession 241CrossRefGoogle Scholar (describing the outsize role played by ‘Grand Advocates’ in India's legal system).

66. Szmer, Johnson & Sarver (n 59). Note that QC appointments in Canada have periodically been suspended at the federal and provincial level, and so are questionable as a stable measure of lawyer ‘quality’. See eg Ben Rigby, ‘Five Solicitors Appointed in Record-Breaking Year for Silk Appointments’ (Commercial Dispute Resolution, 3 Jan 2018) <https://iclg.com/cdr/people-and-firms/7849-five-solicitors-appointed-in-record-breaking-year-for-silk-appointments> accessed 30 Jun 2020.

67. Hanretty, Chris, ‘Lawyer Rankings Either Do Not Matter for Litigation Outcomes or Are Redundant’ (2016) 23 International Journal of the Legal Profession 185, 195CrossRefGoogle Scholar.

68. ibid 200–202.

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71. Hanretty (n 67) 189.

72. Miller, Banks, Keith, Linda Camp & Holmes, Jennifer S, ‘Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability’ (2015) 49 Law & Society Review 209, 228CrossRefGoogle Scholar.

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74. See Part II.A above.

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78. Szmer, Johnson & Sarver (n 59) 294.

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81. See Part I.D above.

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83. Lex Machina, ‘What We Do’ (Lex Machina 2020) <https://lexmachina.com/what-we-do> accessed 30 Jun 2020.

84. Haynie & Sill (n 60).

85. See Miller, Keith & Holmes (n 72).

86. ibid 230.

87. Indeed, there are criticisms of legal education generally as focusing unduly on appellate courts that are far removed from the day-to-day work of most lawyers. See eg Stein, Ralph Michael, ‘The Path of Legal Education from Edward I to Langdell: A History of Insular Reaction’ (1981) 57 Chicago-Kent Law Review 429Google Scholar.

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89. Priest, George L & Klein, Benjamin, ‘The Selection of Disputes for Litigation’ (1984) 13 Journal of Legal Studies 1, 4–5Google Scholar.

90. ibid 19–20.

91. See eg Seabury, Seth A, ‘Jury Verdicts, Settlement Behavior and Expected Trial Outcomes’ (2013) 33 International Review of Law and Economics 15CrossRefGoogle Scholar (discussing the impact of recent verdicts on decisions to settle).

92. Poitras, Marc & Frasca, Ralph, ‘A Unified Model of Settlement and Trial Expenditures: The Priest–Klein Model Extended’ (2011) 31 International Review of Law and Economics 188, 189CrossRefGoogle Scholar: ‘our model permits a more continuous set of outcomes. Besides settlement, the parties can conserve resources in one-sided cases by litigating them at lower levels of expenditure. Litigants might restrain expenditures by retaining lower-priced legal talent, assembling a smaller legal team, performing less research, employing fewer expert witnesses, etc.’

93. Moorhead, Richard, Sherr, Avrom & Paterson, Alan, ‘What Clients Know: Client Perspectives and Legal Competence’ (2003) 10 International Journal of the Legal Profession 5, 25CrossRefGoogle Scholar. Such a view of the law is embraced in its mythology. A nineteenth-century account of Justice Wightman describes him meeting a member of a jury and asking what the man thought of the lawyers he had observed. ‘“Well,” said the juryman, “that lawyer Brougham be a wonderful man. He can talk, he can; but I don't think nowt of Lawyer Scarlett.” “Indeed!” exclaimed the judge, “you surprise me. Why, you have been giving him all the verdicts.” “Oh, there's nowt in that,” was the reply, “he be so lucky, you see; he be always on the right side.”’ James, Croake, Curiosities of Law and Lawyers (Banks & Brothers 1883) 484Google Scholar.

94. Grossman, Joel B, Kritzer, Herbert M & Macaulay, Stewart, ‘Do the “Haves” Still Come out Ahead?’ (1999) 33 Law & Society Review 803, 809CrossRefGoogle Scholar.

95. cf Albiston, Catherine, ‘The Rule of Law and the Litigation Process: The Paradox of Losing by Winning’, in Kritzer, Herbert M & Silbey, Susan (eds), In Litigation: Do the “Haves” Still Come Out Ahead? (Stanford University Press 2003)Google Scholar.

96. See Abrams & Yoon (n 52).

97. Admittedly, word count may not always reflect complexity if a lengthy factual record dominates. Nonetheless, interviews with judges and counsel suggested that, everything else being equal, a longer judgment generally reflected a more complex case for the limited purposes of this study.

98. See Attorney-General's Chambers, ‘AGC Annual Report 2018’ <https://www.agc.gov.sg/docs/default-source/publications/annual_report_2018.pdf> accessed 30 Jun 2020. On Singapore Government salaries, see generally Ho, Benjamin Tze Ern, ‘Power and Populism: What the Singapore Model Means for the Chinese Dream’ (2018) 236 China Quarterly 968CrossRefGoogle Scholar.

99. One firm had 200 lawyers (Dentons Rodyk & Davidson LLP), while the next largest firm had 100 lawyers (Shook Lin & Bok LLP).

100. See Priest & Klein (n 89) and accompanying text above.

101. See Part II.B.7 above.

102. See Part II.B.3 above.

103. This anecdote is gathered from confidential interviews.

104. See further Kay, Fiona M, Alarie, Stacey L & Adjei, Jones K, ‘Undermining Gender Equality: Female Attrition from Private Law Practice’ (2016) 50 Law & Society Review 766CrossRefGoogle Scholar; Sommerlad, Hilary, ‘“A Pit to Put Women in”: Professionalism, Work Intensification, Sexualisation and Work–Life Balance in the Legal Profession in England and Wales’ (2016) 23 International Journal of the Legal Profession 61CrossRefGoogle Scholar; Sterling, Joyce S & Reichman, Nancy, ‘Overlooked and Undervalued: Women in Private Law Practice’ (2016) 12 Annual Review of Law and Social Science 373CrossRefGoogle Scholar.

105. See Part II.B.2 above.

106. Many thanks to Przemysław Jeziorski for his work on the regression analysis section of this article.

107. See also Table 5.

108. The reasons for higher efficacy might be linked to the quality of personnel, access to greater resources, more institutional experience, etc. Further detailed study would be required to analyze this effect.

109. Note that it is possible that Big 4 firms may have an advantage in managing more complex cases given the greater resources that may be available as compared to smaller firms.

110. Note that it is arguable that the first instance decision itself could be construed as new information, notably the findings of fact and law that shape the manner in which an appeal is presented. For the purposes of this study, however, it is assumed that an appellate decision to uphold or overturn an earlier decision is effectively a statement on whether that earlier decision should have been different.