For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how can clients persistently choose bad lawyers, lawyers persistently perform so poorly, and judicial and ethics authorities tolerate this situation? Answers include poor client information, ethics authorities’ limited ability or will to discipline bad lawyers, and two troubling lawyer behaviors: (1) overoptimistically entering the field without realizing, until suffering losses, that it requires intensive research and writing; and (2) knowingly litigating on the cheap, rather than expending briefing effort to maximize case value, because contingency-paid lawyers may profitably run “mills” living off quick small settlements. A survey of the worst brief writers’ law firms hints the problem may be a mix of the former (non-specialists in over their heads) and the latter (knowingly litigating cheaply). This Article offers reforms that, while no cure-all for a problem tracing to stubborn market forces, could help: (1) expanding educational efforts, including law school experiential learning, bar resource-sharing, and bar exam reform; (2) enhancing client access to information on lawyers, by liberalizing ethics rules restricting expertise claims and public access to court files; (3) broadening the supply of competent lawyers, by liberalizing ethics rules on corporations owning law firms and by rules restricting the standing to sue of discrimination “testers”; and (4) toughening ethics enforcement against the worst offenders, who almost all go unpunished now.
Available at: http://works.bepress.com/scott_moss/4/