Litigants And Claimants Parties Research Paper

It is important at the onset to differentiate between those who initiate legal proceedings and defendants. Plaintiffs in civil courts and complainants in criminal courts exercise volition in choosing to take disputes to court. While defendants in criminal and civil court proceedings may indirectly exercise volition, in the sense that the legal proceedings may be a consequence of their own prior decisions, the choice to be involved in the legal proceeding itself is typically not something they would choose on their own.

Disputes and allegations of illegal behavior that end in court are merely the tip of the iceberg (Felstiner et al. 1980–81). On the civil side, people may formally or informally negotiate a settlement ‘in the shadow of law’, or may ‘lump’ an unresolved dispute due to high costs of proceeding, inability to find an advocate who will take the case, or fear of retaliation for making legal claims. In many places, criminal cases are resolved by plea bargains instead of a formal trial. Complainants may also have their cases turned away by gatekeepers as not being sufficiently ‘legal’ to warrant court attention (Yngvesson 1993, Merry 1990).

1. Dimensions Of Difference In Parties

The research literature focuses on (a) the distinction between individuals and organizations, and (b) demographic differences related to social power—primarily gender, race, and class. Both lines of research attempt to account for differences in the experiences of various types of parties with legal systems, but in somewhat different ways.

Comparisons of individuals and organizations have been made in studies testing Marc Galanter’s theory of why ‘haves’—parties with greater resources—may have a greater advantage in legal settings (Galanter 1974). Most empirical tests of the theory have examined success rates for different classifications of organizations compared to individuals and each other, using appellate court cases in which there is a written record. In addition, white-collar crime research has also emphasized differential treatment of organizations and individuals, and poses additional explanations for why organizations may experience more advantageous treatment than individuals when they violate the law.

 Studies of gender, race, and ethnicity tend to focus more on case processing, and to examine variations among different categories of individuals in far greater detail, with minimal attention to variations among organizations. A variety of methodologies have been employed, including observational studies, analysis of legal cases, and quantitative survey studies. Some studies focus on variations in resources and skills that affect an individual’s chances of negotiating successfully through legal proceedings, while others focus on the social categories and standards used by legal decision-makers in making decisions on how to proceed with cases.

2. Comparisons Of Individuals And Organizations

Galanter’s classic 1974 article ‘Why the ‘‘haves’’ come out ahead’ argues that organizations are more likely, compared to individuals, to have structural advantages that increase the likelihood of winning in court. In addition to their greater financial resources and ability to hire legal talent, large organizations are more likely to be ‘repeat players’ who are better able to mobilize legally and to use law to meet strategic goals (Galanter 1974). A number of studies of state and federal appellate court decisions have found support for Galanter’s argument (Songer et al. 1999). The most consistent finding is that government organizations, particularly federal and state governments, experience a substantial advantage over both business and individuals, while business organizations appear to have a modest advantage over individuals. Studies that distinguish between larger business corporations and smaller business organizations generally find a stronger advantage for big business (Farole 1999, Songer et al. 1999).

Much of the appellate court research has been conducted in the United States, but similar patterns have also been found for other countries governed by the English common law tradition. Moreover, Songer et al. (1999) found considerable stability over time of the basic pattern of results for the US Court of Appeals, suggesting some generality to the pattern of greater organizational success in appellate courts.

A study of Philippine Supreme Court decisions, however, found strikingly different results, with individuals experiencing greater success in winning cases than organizations (Haynie 1994). Haynie speculates the legitimacy of high courts in developing countries may be more precarious. This may lead courts to make more decisions with redistributive effects in a bid to enhance their legitimacy by establishing their independence from other powerful actors in society.

Research on lower courts points to mixed evidence regarding the thesis that organizations are advantaged over individuals. Anthropological studies of the lower courts suggest that organizations face fewer difficulties than individuals in getting their complaints against others into court. Yngvesson (1993) found that the majority of complaints brought by individuals were characterized as ‘garbage’ cases by court clerks, who often expended considerable effort to keep them out of court (see also Merry 1990). In contrast, complaints filed by police officers—representatives of a local governmental agency—were routinely admitted with minimal review as to their appropriateness for legal action. Similarly, motor vehicle complaints, code violations, and welfare fraud cases filed by government agencies, as well as debt collection cases filed by local businesses, were given a higher priority.

No doubt one of the reasons why complaints filed by the police, other government agencies, and businesses were more readily accepted and processed by the lower courts is that they are more likely to be explicitly linked to legal provisions and couched in the language of law and legal doctrine. This is in part due to the focus of such cases on disputes about money and property, while complaints brought by individuals tend to involve interpersonal disputes and problems with relationships. In addition to the more explicitly ‘legal’ character of property disputes, the greater training and proficiency of organizational representatives in formulating their complaints in legal terms may also assist getting borderline cases into court. As one police officer stated, while discussing a complaint he filed of ‘deliberate and malicious’ damage to a tree. If you really want to, you can find a law to do what you want to do’ (Yngvesson 1993, p. 21; emphasis in original).

Organizational studies abound with examples of the strategic use of the law to achieve organizational goals. Examples in the business sector include innovative interpretations of tax laws in tax avoidance schemes (McBarnet 1991) and the strategic use of bankruptcy law (Delaney 1992). In the government sector, prosecutors in the USA have creatively used the RICO (Racketeer-Influenced and Corrupt Organizations) law to expand prosecutions beyond the original target of organized crime to include whitecollar crimes such as commercial and financial fraud, tax evasion, embezzlement, and bribery (Friedrichs 1996).

While the extension of RICO laws to white-collar offenses offers an example of legal innovation that increases the advantage of large government organizations over individuals and business organizations, the research literature on white-collar crime finds that, as suspects and defendants in criminal proceedings, organizations are advantaged over individuals. As Sutherland (1983) noted, illegal behaviors by organizations are typically handled by regulatory agencies instead of criminal law enforcement agencies. Sanctions by regulatory agencies are relatively mild, typically involving fines, cease and desist orders, and other civil sanctions. While regulatory agencies may seek criminal sanctions, the criminal prosecution of organizations remains relatively rare.

The allocation of cases of organizational misconduct to civil courts and administrative enforcement, rather than criminal courts, cannot be attributed to a lesser seriousness of organizational misconduct generally. Cost comparisons typically find that illegal behaviors by organizations tend to be more deadly and expensive in the aggregate than crimes committed by individuals (Poveda 1994). Survey research generally finds that the public considers corporate crimes that results in loss of life as serious in nature (Friedrichs 1996). Some authors have also argued that greater alienation and cynicism by the public against public institutions generally is an additional cost of organizational crime (Maier and Short 1995).

Various explanations exist for why ‘street crimes,’ primarily committed by lower-class individuals, are relegated to the criminal courts, while of offenses of organizations are handled primarily by civil courts and administrative enforcement actions. Legal conflict theorists argue that those who have power and money are better able to influence legislators to exclude their behavior from criminal statutes (Green 1997). Even when laws define misconduct by organizations as criminal, practical difficulties to securing criminal convictions include the diffusion of responsibility within organizations, and the greater complexity and cost of amassing evidence for organizational crimes (Friedrichs 1996).

Moreover, contemporary theories of organizational misconduct point to the influence of organizational culture and processes or organizational decision-making as causes of misconduct that do not conform easily to models of individual choice such as underlie much of the criminal law (Ermann and Rabe 1997). As Vaughan notes in her study of the Challenger disaster, ‘repetition, seemingly small choices, and the banality of daily decisions in organizational life—indeed, in most social life—can camouflage from the participants a cumulative directionality that too often is discernible only in hindsight’ (Vaughan 1996).

Finally, the pragmatics of securing cooperation from organizations to prevent future harms may be a key factor in the allocation of law enforcement activities related to organizational misconduct to regulatory agencies. While US regulatory agencies have historically been more likely to use adversarial, deterrence-oriented tactics such as the imposition of fines and penalties, regulatory agencies in most countries typically focus their energies on using educational and persuasive techniques to secure compliance (Braithwaite 1985).

The primary rationale for cooperative law enforcement strategies is that, while compliance with law for individuals often means refraining from committing illegal acts, compliance for organizations typically involves perspective behaviors, such as buying new equipment, training employees, and undertaking new routines and processes that are both expensive and time-consuming. Utilizing adversarial tactics may be counterproductive if they result in organized resistance by powerful actors (Bardach and Kagan 1982). Braithwaite (1984) frankly notes that a consequence of cooperative enforcement techniques is the introduction of distributive inequities, but argues that the payoff in increased effectiveness in saving lives and reducing human misery is worth the cost.

Counterbalancing the advantages organizations have in avoiding criminal proceedings for instances of illegal behavior, research on the civil courts typically finds that, when cases go to trial and the plaintiffs win, civil court verdicts are typically harsher for organizations than for individuals (Chin and Peterson 1985, Maccoun 1996). The ‘deep pockets’ hypothesis suggests that organizations are both more likely to be sued and to have higher damages assessed because they usually have more assets than individuals. While ‘deep pockets’ may explain decisions by both potential plaintiffs and attorneys to pursue cases, jury simulation studies have found little evidence that greater wealth explains the differential size of damage awards. Instead, it appears that juries apply different standards to organizations than individuals (see Maccoun 1996). However, the greater harshness of civil damage awards against organizations should be placed in context, in that few lawsuits go to trial.

3. Demographic Differences Related To Social Power

The purpose of this research paper section is to contrast apparent commonalities in what legal parties want from legal decision-makers with the difficulties they may experience in obtaining what they want due to barriers arising from their position in society.

Research on procedural justice suggests a high degree of commonality in what people want from legal proceedings (Lind and Tyler 1988, Tyler 1988). Studies conducted in different countries and in a variety of legal settings have consistently found that perceptions of fair process affect satisfaction with legal experiences as much or more than objective outcomes and perceptions of distributive justice. Moreover, procedural justice perceptions are generalized beyond the specific experience to affect the legitimacy of other legal and political authorities (Lind and Tyler 1988) and also expectations of fair treatment in other legal settings (Stalans 1994).

According to the group-value model of procedural justice, encounters with legal authorities convey profoundly symbolic messages to individuals about their social standing (Lind and Tyler 1988, Tyler and Lind 1992). The concept of standing emphasizes basic concerns individuals have about their membership and inclusion in social groups, about whether they are valued members of the community. Tyler (1988, 1994) argues that a substantial consensus exists on how people define procedural justice, and suggests that fair process is a means by which multicultural societies can maintain their legitimacy amid the diverse goals and interests of different groups within society. Results from other studies, however, caution that procedural justice may be a less important concern than outcomes for people who do not have a sense of identification with the larger collectivity (Huo et al. 1996).

Despite the emphasis of the group-value model of procedural justice on social standing and intergroup relations, surprisingly little procedural justice research explicitly addresses issues of social stratification. Yet many of the most pressing and controversial issues in law and society research involve the ways in which external social structures of power and domination are reproduced in legal settings during the enactment of legal procedures.

Anthropological research indicates that social stratification is intertwined with relational concerns and definitions of ‘legal’ issues in ways that systematically privilege some groups over others in actual legal proceedings. To begin, the types of disputes that are often of central concern to women and lower-income individuals involve troubled relationships, including domestic violence. Yngvesson (1993) notes that clerks in New England courts were reluctant to bring cases involving relationship problems before judges. Even divorce lawyers who make their living from the dissolution of troubled relationships tend to be unresponsive and aloof to clients’ tales of relational woes (Sarat and Felstiner 1995).

Merry (1990) notes that cases involving relational issues are more likely to be diverted from court into mediation—and that mediation itself and the court employees who manage mediation have a devalued social status in the court system. While mediation explicitly focuses on relationship issues, the application of rules of discourse that discourage conflict during the process of mediation may serve to systematically disadvantage women, compared to more adversarial court proceedings that focus on advocating and protecting legal rights (Conley and O’Barr 1998).

Discomfort with handling troubled relationships is not confined to Western legal systems. Griffiths (1997) reports that, in Botswana, a common ruling by kgotla in marital disputes is simply to order the parties to go home and ‘live together in harmony and peace.’ In Kenya, Swahili women who tell stories of domestic conflict and discord in Islamic Kadi courts violate social norms against revealing family secrets in public (Hirsch 1998). While some African courts encourage the airing of relationship issues, detailed analyses reveal the systematic shaming of women during the process of talk about relationships (Conley and O’Barr 1998).

The devaluation of relationship talk surfaces in Conley and O’Barr’s study of US litigants in small claims court. Conley and O’Barr described two distinct types of narrative structures used by litigants. Rule- oriented accounts are ordered sequentially, describing the unfolding of events in a linear fashion while noting violations of specific rules, duties, and obligations by the other party. They articulate cause and effect and assess responsibility. Relational accounts, on the other hand, focus more on social position and general ru s of social conduct. They are more likely to be full of details about the life of the speaker and the history of his/her relationship with the other party, including details that are not relevant to the legal issue at hand.

As Conley and O’Barr (1998) note, rule-oriented accounts conform to the logic of law in Western societies. Legal decision-makers readily understand rule-oriented accounts, while they have more difficulty processing relational accounts. It takes more work for judges and lawyers to translate the jumbled and rambling accounts in relational narratives into the rule-oriented framework of law. Many do not make the effort, to the disadvantage of individuals who employ relational accounts. This gives an advantage to repeat players, to those who can afford to hire legal counsel, and to better-educated, more articulate parties who bring to court greater skills in couching their narratives in forms readily comprehensible to legal decision-makers.

Conley and O’Barr also describe stylistic features of speech that can serve to reproduce structures of social domination (Conley and O’Barr 1998, Ainsworth 1993). Conley and O’Barr note that women and men of lower social status in society are more likely to evidence styles of speech that project deference and uncertainty, thereby undermining their own credibility. ‘Powerless’ speech includes the use of hedge words, polite forms, tag questions, exaggerated imprecision about quantities, and a rising intonation at the end of declarative statements. Although Lakoff (1975) first identified these speech styles as gendered features of language, studies in legal settings have found that some men also use these forms of speech, to their detriment (Conley and O’Barr 1998, see also Ainsworth 1993).

While dominant social orders tend to reproduce themselves in legal settings, the process is by no means immutable and unchanging (Griffiths 1997, Hirsch 1998). As Conley and O’Barr (1998) note, many individuals of subordinate social status are capable of adopting a rule-oriented discourse strategy and modifying their speech styles. In addition, the existence of a ‘chivalry bias’ favoring women in criminal cases (Anderson 1976) and the harsher sentences given to high-prestige individuals convicted of white-collar crimes (Weisbrud et al. 1991) highlight that the general social order is not simply reproduced in legal settings, but can be transformed in ways that create reversals of social fortune.

At the same time, it important to note that some patterns of domination and unequal treatment are more deeply engrained in the fabric of legal interactions and less amenable to modification or manipulation (e.g., Matoesian 1993, 1995). Studies of legal case processing in particular illuminate seemingly ubiquitous processes of social categorization of parties by legal decision-makers according to race, class, and gender in the course of identifying suspects, managing caseloads, evaluating credibility, and making decisions about how hard to work on cases (e.g., Waegel 1981, Frohmann 1997). While social categorization often works to further organizational goals and to increase the speed and efficiency of legal decision-making, it does so at the cost of procedural and distributive inequities that arise when individuals are judged through the prism of presumed group characteristics.

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