Is There a Lawyer-Judge Bias in Legal Malpractice Cases?
Answer: Consider a book written by Benjamin H. Barton titled The Lawyer-Judge Bias in the American Legal System [Cambridge University Press.] Benjamin Barton is a law professor at The University of Tennessee College of Law who has had his publications quoted in Time Magazine, the New York Times and The Wall Street Journal law blog.
Professor Barton quotes an economist George Stigler "We propose the general hypothesis: every industry or occupation that has enough political power to utilize the state will seek to control entry....crudely put, the butter producers wish to suppress margarine and encourage the production of bread". George J. Stigler, The Theory of Economic Regulation 2 Bell J. Econ. & 6 Mgmt. Sci. 4-6 (1971)
Professor Barton points out that that a "study of judges; who they are, how they are trained, what their jobs are like, and their salary effects-leads inexorably to the conclusion that judges will regularly favor the interests of lawyers over those of other litigants." For starters Professor Barton points out many judges look to lawyers to get and keep their jobs. Most state judges he says face some type of election (either contested or retention), and lawyers provide most of the elected judiciary campaign donations. In states where Judges are elective states [including merit selection states with retention elections] Professor Barton submits that Bar Association frequently endorsed judicial candidates and conduct and publish "bar polls" on the judges. Professor Barton highlights that a judge who alienates her lawyer colleagues may soon be looking for other employment.
Professor Barton believes that a legal malpractice case is more difficult because the client not only has to prove that he would have had a better outcome had the lawyer done their job right but has to prove they could have collected whatever damage or benefit was lost, a standard not found in other type of professional negligence claims.
The more difficult question to study however is whether Judges, because of the reasons stated above, subconsciously favor lawyers when interpreting case facts and listening to legal arguments in legal malpractice cases. Certainly Mr. Stigler might believe, based on his theories of economic preservation, that there would be a natural bias in favor of lawyers in legal malpractice claims. The Judiciary should invite further study to be sure that the mirror of ethical reflection reveals Lady Justice with the blindfold squarely in place and her finger off the scale.