Disputing through Agents: Cooperation and Conflict between Lawyers in Litigation

Abstract

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that models one or another aspect of the litigation and settlement process. But the economic literature, with rare exceptions, shares a troublesome feature. Almost by convention, litigation is modeled as a two-person game between principals, thereby abstracting away the legal system's central institutional characteristic – litigation is carried out by agents. While any model must make concessions to tractability, this simplifying assumption is especially troublesome because lawyers have long been considered to have a special influence on how litigation is conducted, even if there has been no consensus on whether lawyers dampen or exacerbate conflict in litigation. Today, the dominant popular view is that lawyers magnify the inherent divisiveness of dispute resolution. According to this vision, litigators rarely cooperate to resolve disputes efficiently. Instead, shielded by a professional ideology that is said to require zealous advocacy, they endlessly and wastefully fight in ways that enrich themselves but rarely advantage the clients.

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