Lawyers With More Experience Obtain Better Outcomes

Work experience acquired through on-the-job-training has been shown to lead to greater success in many occupations, but evidence of a causal connection between experience and success is sparse for appellate lawyers. Do experienced attorneys obtain better outcomes for their clients? Adopting a strategy for causal inference that could be applied to almost any peak court, we assess how similarlysituated novice and experienced attorneys fare against a comparable—and high quality—opponent: the federal government. We find that, on average, the outcomes obtained by experienced attorneys are significantly better than the outcomes they would have obtained had they been novices. This result shores up the importance of attending to attorneys in models of judicial behavior. Word count (excluding cover page): 3870 ∗We are grateful to Adam Feldman and Timothy R. Johnson for sharing their data and to William M. Landes, Kevin McGuire, Eric Posner, and participants at workshops at National Taiwan University, the University of Chicago, and the University of Kansas for offering valuable insights. Epstein thanks the National Science Foundation and the Guggenheim Foundation for supporting her work on judicial behavior. The data, code, and documentation to replicate all analyses in this paper to be posted at: http://epstein.wustl.edu/research/DoAttorneysMatter.html †Corresponding Author. Department of Political Science, Penn State. Contact: mjn15@psu.edu ‡Department of Political Science and School of Law, Washington University in St. Louis. Contact: epstein@wustl.edu With only limited fanfare, litigation in the U.S. Supreme Court has undergone a fundamental— and abrupt—transformation. In the not-so-distant past, novice lawyers were the norm. No longer. Today nearly two-thirds of the private-sector attorneys appearing before the justices had argued at least one prior case, compared with under a quarter in the 1980s (Online Appendix 2.2). These experienced lawyers, many of whom work in Washington, D.C. firms, are so in demand that they earn an hourly wage 15 times higher than the average U.S. lawyer (Weiss, 2015). The emergence of a highly professionalized private-sector bar in the United States and elsewhere (Chang, Chen and Lin, 2019; Hanretty, 2019) raises a number of important questions, not the least of which is whether the outcomes obtained by experienced attorneys are significantly better than the outcomes they would have obtained had they been novices. “Of course” would seem the obvious answer, and one reinforced by long-standing theory on human capital (e.g., Becker, 1962, 1964; Mincer, 1962). Tracing to Adam Smith’s The Wealth of Nations (1776), human capital theory holds that through work experience, individuals acquire on-the-job-training, sometimes highly specialized training, which leads them to be more productive, more successful, and, in turn, to earn higher wages (e.g., Brown, 1989; Maranto and Rodgers, 1984). In other words, the “experienceproductivity profile slope[s] upwards” because many jobs, including appellate lawyering, require learning (Medoff and Abraham, 1980, 703; see also Abrams and Yoon, 2007). For this reason, litigants who retain experienced Supreme Court lawyers should be at an advantage relative to litigants who hire first-timers,1 just as are auction houses that hire art connoisseurs (Ashenfelter and Graddy, 2003; Bonus and Ronte, 1997), students taught by experienced teachers (Chetty, 2011), and companies that invest heavily in “EX” (employee experience) (Morgan, 2017). Evidence of the importance of experience in appellate lawyering is not hard to find (e.g., Haire, Lindquist and Hartley, 1999; Szmer, Songer and Bowie, 2016; McAtee and McGuire, 2007; McGuire, 1Justice Robert H. Jackson (1951, 802), a seasoned Supreme Court litigator, put it this way: “Experience before the Supreme Court is valuable, as is experience in any art. One who is at ease in its presence, familiar with its practice . holds some advantage over the stranger to such matters. ” Many scholars agree (Feldman, 2016; Lazarus, 2008; Wahlbeck, 1997), though they would add that the experienced attorney—just as the experienced lobbyist—is better able to convey information the justices need to reach the results they most desire (Johnson, Wahlbeck and Spriggs, 2006; Lazarus, 2008; McGuire, 1993).