Thursday, May 17, 2012
Thanks to Michael Green (Texas Wesleyan) for the pointer that there was a brief article on the ABA website a few days ago referring to an American Bar Foundation study recently published in the Law and Society Review: Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation, by Ellen Berrey, Steve Hoffman, and Laura Beth Nielsen.
The study suggests that more than half of employment discrimination claimants feel that their lawyers are incompetent. As Michael observes, although the ABA on-line journal article title suggests the study focuses on the employee complaints about competency of their attorneys, the actual study has a lot of interesting information and addresses broader concerns about what employer representatives and employees involved in discrimination litigation think about the process and how unfair both sides perceive it to be.
I myself wonder whether the fact that so many employment discrimination plaintiffs lose their cases today (and on 12(b)(6) motions under Iqbal and Twombly) translates into these claimants getting a false impression that their attorneys are not doing everything they possibly can do to help them. This is not to say that there are not some incompetent attorneys out there (especially those that just dabble in employment discrimination law practice), but the numbers the study reports seem to be showing that claimants don't understand how the system (adminsitratively and legally) is structurally stacked against them.